In Hernandez-De La Cruz v Lynch, 819 F.3d 784 (5^th Cir. April 26, 2016), the Fifth Circuit affirmed in part the denial of Hernandez-De La Cruz’s applications for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, which allows for withholding of removal if, “the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical  limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” Id.

The application for withholding was based on De La Cruz’s claims that he was kidnapped and assaulted by members of the Zetas, a Mexican criminal syndicate, who released him only after he agreed to pay $15,000. When he reported the incident to the Mexican police in defiance of the Zetas’ instructions, corrupt officers beat him.

However, the IJ denied the application and the BIA affirmed.  De La Cruz argued at the 5^th Circuit that the IJ and BIA erred in rejecting his claim that, he would be threatened with persecution in Mexico based on his “membership in a particular social group or political opinion.” See 8 U.S.C. § 1231(b)(3)(A).

The panel observed:

Although a local journalist reported that Petitioner had been beaten, it does not follow that his proposed group of former informants has “social distinction” or would be perceived as a particular group, because—according to factual findings that we lack jurisdiction to reconsider—the members of Petitioner’s proposed group are not substantially different from anyone else in the general population who resists the Zetas or otherwise threatens their interests.

The Fifth Circuit held:

To establish that he was persecuted based on his membership in a particular group, Petitioner must show he is a member “of a group of persons that share a common immutable characteristic that they either cannot change or should not be required to change because it is ‘fundamental to their individual identities or consciences.’ Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (quoting Mwembie v. Gonzales, 443 F.3d 405, 414–15 (5th Cir. 2006)).”

Thus, the Fifth Circuit noted: “There is no indication that an incorrect legal standard was applied or that it was legally erroneous to conclude that former informants do not constitute a particular social group.”