Case Overview
In this precedential BIA decision (in Matter of E-M-F-S-) the Board dismissed the appeal of Peruvian nationals seeking asylum based on threats from supporters of former President of Peru – Pedro Castillo. The BIA clarified that death threats alone rarely constitute persecution unless they are objectively credible and issued by individuals with the immediate ability to carry them out. This affirmed the Immigration Judge’s denial of relief.
Key Facts in Matter of E-M-F-S-
The respondents, natives and citizens of Peru, include the lead respondent (a news broadcaster and television host) and the male respondent (a producer on her show), along with their minor children. The lead respondent conducted interviews on a prominent Peruvian news channel. Following a hostile interview with former President Pedro Castillo by another reporter at the same station, the respondents faced harassment from Castillo’s supporters.
The lead respondent was physically pushed and insulted on multiple occasions while leaving the news station. The family received two anonymous written death threats left on their doorstep, one week apart. The second threat was accompanied by three bullets. They observed a young man running from their home after the second threat. The respondents reported the incident to Peruvian police, resigned from their positions, and departed Peru approximately six months later. No further harm occurred during that period, and Castillo was subsequently removed from office and imprisoned.
Procedural History in Matter of E-M-F-S-
The respondents filed applications for asylum under INA § 208, withholding of removal under INA § 241(b)(3), and CAT protection. On November 27, 2024, the Immigration Judge denied all applications. The judge found that the harm did not rise to persecution, the fear of future persecution was not objectively reasonable, and internal relocation in Peru was feasible. The respondents appealed to the BIA. The BIA panel, consisting of Chief Appellate Immigration Judge Garry D. Malphrus, Appellate Immigration Judge David J. Volkert, and Temporary Appellate Immigration Judge Michelle McCloskey, reviewed the case de novo on legal issues and dismissed the appeal on January 9, 2026.
Legal Issues Presented in Matter of E-M-F-S-
The primary legal questions were: (1) Whether anonymous death threats, combined with limited physical harassment, constitute past persecution for asylum eligibility; (2) Whether the respondents established a well-founded fear of future persecution absent past persecution; and (3) Whether the respondents demonstrated eligibility for withholding of removal or CAT protection. Key statutes and regulations at issue included INA § 101(a)(42)(A) (defining refugee), INA § 208 (asylum), INA § 241(b)(3) (withholding of removal), 8 C.F.R. § 1208.13 (establishing burden for asylum), 8 C.F.R. § 1208.16 (withholding and CAT), and 8 C.F.R. § 1208.18 (defining torture).
Decision Summary
The BIA dismissed the appeal, affirming the Immigration Judge’s denial of asylum, withholding of removal, and CAT protection. The Board held that death threats alone rarely rise to the level of persecution. Such threats only do so if objectively credible and issued by persons with immediate ability to act. No presumption of future persecution applied, and the respondents failed to show an objectively reasonable fear or inability to relocate internally. The BIA ordered dismissal and noted civil penalties for non-compliance with removal orders under INA § 274D.
Legal Reasoning and Analysis
The BIA began by reviewing the definition of persecution under INA § 101(a)(42)(A), requiring harm on account of a protected ground by actors the government is unable or unwilling to control. For past persecution, the Board examined circuit court precedents. It rejected the respondents’ argument that death threats are per se persecution under Fourth Circuit case law (e.g., Sorto-Guzman v. Garland, 42 F.4th 443 (4th Cir. 2022)). It noted that even Fourth Circuit decisions involved aggravating factors beyond threats alone and declined to interpret them categorically.
Aligning with Eleventh and Ninth Circuit standards (e.g., Diallo v. U.S. Att’y Gen., 596 F.3d 1329 (11th Cir. 2010); Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019)), the BIA held that threats must be objectively credible with immediate ability to execute. This is considered under the totality of circumstances in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). Here, the anonymous threats lacked evidence of the perpetrators’ identity or imminent capability. Cumulative harm (pushing and insults) did not suffice.
Absent past persecution, no presumption of future fear applied under 8 C.F.R. § 1208.13(b)(1). The BIA found the fear not objectively reasonable. It cited six months unharmed in Peru post-threats, Castillo’s removal from power, and country conditions showing general respect for press freedom despite isolated journalist aggression (not rising to persecution). Internal relocation was deemed feasible under 8 C.F.R. § 1208.13(b)(2)(ii), waiving the issue as uncontested.
For withholding, the higher “clear probability” standard was unmet. On CAT, the BIA found no likelihood of torture with government acquiescence under 8 C.F.R. § 1208.18(a)(1). Past harm fell short, relocation was possible, and police ineffectiveness did not equate to consent.
Practical Implications
Applicants claiming persecution based on threats must provide evidence of the threat’s credibility and the perpetrator’s immediate ability to act. This can include identity, prior actions, or proximity. Documentation like police reports, witness statements, or country conditions evidence is crucial to substantiate claims. For petitioners and employers sponsoring foreign nationals from high-risk countries, this decision underscores the need for thorough risk assessments in asylum-related filings. Risk mitigation includes gathering corroborative evidence early and considering alternative relief options if threats lack imminence. Practitioners should evaluate circuit-specific precedents when preparing appeals.
Policy and Compliance Considerations
This decision aligns with longstanding BIA policy requiring severe, cumulative harm for persecution (e.g., Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998)) but clarifies a uniform standard for death threats, potentially standardizing adjudications across circuits. It signals heightened scrutiny of threat-based claims, emphasizing objective evidence over subjective fear. Adjudicators may demand more robust proof of perpetrator capability, raising evidentiary thresholds. The ruling does not depart from existing policy but refines it, consistent with DHS and EOIR guidance on refugee definitions.
Key Takeaways
- Death threats rarely constitute persecution unless objectively credible with immediate execution capability.
- Anonymous threats without perpetrator evidence or aggravating factors fall short of past persecution.
- Asylum applicants must prove objective reasonableness for future fear, including relocation feasibility.
- Cumulative harm analysis requires totality review, not isolated incidents.
- CAT claims need evidence of likely torture with government acquiescence, beyond general inefficacy.
- Circuit precedents vary but emphasize imminence over subjectivity in threat evaluations.
- Practitioners should prioritize corroboration to meet heightened evidentiary standards.
