Fourth Circuit Strikes Down Higher Standard for Death Threats as Persecution

By J. Nicole Alanko, Esq., J.D. ’18, Immigrant Justice Corps Fellow

In Sorto-Guzman v. Garland,1 the Fourth Circuit Court of Appeals struck down a ruling that would not allow death threats to constitute persecution unless those threats “came to fruition.”2 The case is a powerful reminder that death threats constitute persecution for purposes of an asylum claim in the Fourth Circuit, and keeps a logical standard in asylum law.

In order to be eligible for asylum, an individual must show that they have suffered past persecution or have a well-founded fear of persecution on account of one of five protected grounds: race, religion, national origin, membership in a particular social group, or political opinion.3 In this case, the question on appeal to the Fourth Circuit was whether the death threats against Ms. Sorto-Guzman rose to the level of persecution.

Ms. Sorto-Guzman’s story begins in 2015 in the small town of Nueva Esperanza in El Salvador. In December 2015, members of the Mara 18 gang attacked Ms. Sorto-Guzman as she left her Catholic church. The gang members tore her crucifix from around her neck, “hit and kicked her, and threatened to kill her if she ever wore it or attended church again.”4 After two more attacks by M-18 gang members in January and February 2016, Ms. Sorto-Guzman fled with her son to the United States. They were apprehended by Border Patrol at the U.S.-Mexico border and put into removal proceedings in immigration court.

While in removal proceedings, Ms. Sorto-Guzman and her son applied for asylum, withholding of removal, and protection under the Convention Against Torture. At their individual hearing in 2018, the Immigration Judge found Ms. Sorto-Guzman’s testimony credible and even found that the threat she received in 2015 were on account of a protected ground: her Catholic religion. However, the Immigration Judge ruled that “the physical mistreatment even when considered along with the threat that never came to fruition simply does not rise to the level of persecution.”5 On appeal, the Board of Immigration Appeals affirmed the Immigration Judge’s decision. Both the decision of the Immigration Judge and the Board of Immigration Appeals were appealed to the Fourth Circuit Court of Appeals. A three-judge panel of Judge King, Judge Wynn, and Senior Circuit Judge Floyd heard oral argument in May and issued their decision in August.

In an opinion by Senior Circuit Judge Floyd, the Court struck down the requirement that death threats must “come to fruition” before they constitute persecution. The Court emphasized the Circuit’s longstanding precedent, in cases dating back to at least 2005,6 that affirm that death threats alone constitute past persecution.7 The Court also restated that, like prior cases such as Tairou v. Whitaker, death threats should not be “discounted” as past persecution even when an asylum seeker “did not suffer major physical injuries or long-term mental harm.”8 The Court was wary of setting a higher and “untenable”9 standard for asylum seekers to meet by requiring that death threats “come to fruition” before the harm they have suffered qualifies as persecution.

The Court limited its analysis to the question of past persecution, squarely holding that she did in fact suffer past persecution. The Court did not address whether Ms. Sorto-Guzman’s presumption of a well-founded fear of persecution was rebutted, or whether she qualifies for withholding of removal. The Court remanded the question of this presumption of well-founded fear of future persecution, as well as her withholding of removal claim, back to the Board of Immigration Appeals. From here, it will be up to the Board of Immigration Appeals to decide these questions before a final answer—whether Ms. Sorto-Guzman has won asylum—can be issued.

This decision from the Fourth Circuit, along with the Circuit’s long precedent on this issue, is a forceful affirmation of what constitutes persecution for purposes of asylum. Many people who are seeking asylum fled their countries—or, as is the case of Afghanistan, were evacuated—before their persecutors were able to carry out their threats. Requiring asylum seekers to show that those threats came to “fruition” before they can be constituted persecution erects an illogical barrier for those seeking safety in the United States. It is irrational to require someone, after receiving a death threat like the one Ms. Sorto-Guzman suffered here, to remain in their country until something “worse” happens. It is encouraging to see the Fourth Circuit standing firmly on its precedent that will certainly make a difference in the lives of the Immigration Clinic’s clients and asylum seekers across the Fourth Circuit.

The text of the Fourth Circuit’s decision is available on its website at this link.

[1] Sorto-Guzman v. Garland, _ F.4th. _ (4th Cir. 2022).

[2] Id. at *1.

[3] INA § 101(a)(42)(A).

[4] Sorto-Guzman v. Garland, _ F.4th. at *3.

[5] Id. at *5.

[6] The Court cited cases including Tairou v. Whitaker, 909 F.3d 702, 707 (4th Cir. 2018), Hernandez Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015), Crespin Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), and Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005).

[7] Sorto-Guzman v. Garland, __ F.4th. at *10.

[8] Id. (citing Tairou v. Whitaker, 632 F.3d at 708).

[9] Id.