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Immigration – ‘Prosecution witnesses’ is not a particular social group

By: S.C. Lawyers Weekly staff//January 11, 2022

Immigration – ‘Prosecution witnesses’ is not a particular social group

By: S.C. Lawyers Weekly staff//January 11, 2022

Where a Honduran man argued that he should not be removed from the United States because his status as a “prosecution witness” would result in threats to his life or freedom in Honduras, the claim failed because that social group was not sufficiently particular.


Walter Rolando Herrera-Martinez petitions this court for review of the Board of Immigration Appeals, or BIA’s, denial of his claims for withholding of removal under 8 U.S.C. § 1231(b)(3) and the convention against torture, or CAT.

The BIA concluded that Herrera-Martinez’s withholding claim failed because the particular social group he advanced, prosecution witnesses, was not particular. The BIA also rejected his CAT claim, first affirming the immigration judge’s conclusion that Herrera-Martinez’s testimony was not credible. It then determined that Herrera-Martinez failed to show that it is more likely than not he would be tortured if he returned to Honduras and that the Honduran government would acquiesce to such torture.

Withholding claim

In Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), this court recognized the particular social group of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.” Herrera-Martinez insists this decision supports his position that “prosecution witnesses” is a particular social group. But closer inspection reveals that the particularity analysis in Crespin-Valladares focused on the characteristic of “family relationship,” which, the court held, was not amorphous

What’s more, in Crespin-Valladares the petitioners used limiting language to describe the public nature of the witnesses’ testimony and the type of prosecution that the witnesses assisted, referring to “those who actively oppose gangs in El Salvador by agreeing to be prosecution witnesses.” Importantly, the court did not analyze whether prosecution witnesses, without limiting language, was particular.

The court today holds that, without any limitations, the group “prosecution witnesses” has no clear boundaries and thus fails for lack of particularity. Because “prosecution witnesses” has multiple meanings, there is no way to know who is in and who is out of that proposed group. As such, it is not particular.

Herrera-Martinez argues that “prosecution witnesses” is limited by the other groups raised in his brief: “[persons] … who sought to assist law enforcement against narcotraffickers” and “witnesses who file police reports.” But the BIA did not consider if prosecution witnesses who sought to assist law enforcement against narcotraffickers or prosecution witnesses who file police reports were particular social groups. It considered the group prosecution witnesses, and that is the group Herrera-Martinez asked this court to consider in his petition.

Undeterred, Herrera-Martinez argues that “a majority of circuits to evaluate this issue have determined that prosecution witnesses as a group is sufficiently particular.” Despite Herrera-Martinez’s assertion to the contrary, those cases involved different alleged particular social groups. Neither of these decisions, which expressly considered different groups, involved the broader, prosecution witnesses group alleged here. Therefore, they do not help Herrera-Martinez’s case. Because Herrera-Martinez cannot prevail on his withholding claim without a valid particular social group, the BIA’s decision that Herrera-Martinez has not met his burden for withholding under § 1231(b)(3) is affirmed.

CAT claim

The immigration judge offered specific, cogent reasons for his adverse credibility finding. He addressed the explanations offered by Herrera-Martinez and the additional evidence he introduced. Further, in affirming the decision of the immigration judge, the BIA held that substantial evidence supported the adverse credibility finding. Based on this record, the court agrees.

Since Herrera-Martinez’s testimony and his family members’ testimony was not credible, Herrera-Martinez could not show that he would incur severe pain or suffering upon removal to Honduras. Furthermore, the news articles showed that Honduran government officials would not acquiesce to his torture. Therefore, the BIA did not err in finding that Herrera-Martinez had failed to satisfy his burden for withholding of removal under the CAT.


Herrera-Martinez v. Garland (Lawyers Weekly N0. 001-002-22, 27 pp.) (A. Marvin Quattlebaum Jr., J.) Case No. 20-1423. Jan. 5, 2022. From the Board of Immigration Appeals. Krystal Brunner Swendsboe for Petitioner. Sarah Kathleen Pergolizzi for Respondent.

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