The Lawletter Vol. 50 No. 4
IMMIGRATION LAW: Gang Violence and Relief from Removal Fourth Circuit Update
Suzanne Bailey—Senior Attorney
With the widely reported drama surrounding escalated enforcement by Immigration and Customs Enforcement, it is easy to lose sight of the fact that not every apprehension is the end-of-the line for non-citizens who have unlawfully entered the United States. Some non-citizens are permitted by U.S. law to remain in the United States.
A recent decision from the Fourth Circuit Court of Appeals addresses two potential avenues of relief for those for whom a return to their homeland would pose a danger that could not be alleviated by their own governments. See Ramos Marquez v. Bondi, No. 24-1842, ___ F.4th ___, 2025 U.S. App. LEXIS 30262, 2025 WL 3223424 (4th Cir. Nov. 19, 2025).
Carlos Ramos Marquez, a citizen of Honduras, left his country and entered the United States in May 2019. He was put in removal proceedings in 2023. He conceded that he was removable, but filed requests for the relief of (1) withholding of removal, 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b), and (2) protection pursuant to the Convention Against Torture ("CAT"), 8 C.F.R. § 1208.16(c). Withholding of removal is available to a noncitizen who demonstrates a clear probability that, if removed to a particular country, their "life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion." Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *14 (quoting 8 U.S.C. § 1231(b)(3)(A)). "Proof of past persecution in the proposed country of removal entitles the applicant to a rebuttable presumption that his life or freedom would be threatened." Id. at *15 (citing 8 C.F.R. § 1208.16(b)(1)(i)). The government can rebut the presumption by demonstrating by a preponderance of the evidence either that "there has been 'a fundamental change in circumstances such that the applicant's life or freedom' would no longer be threatened or that the applicant could avoid future harm 'by relocating to another part of the proposed country of removal.'" Id. (quoting 8 C.F.R. § 1208.16(b)(1)(i)(A)-(B)). Applicants cannot establish a clear probability of future persecution if they could avoid persecution by relocating within their country. 8 C.F.R. § 1208.16(b)(2). Protection pursuant to the CAT requires an applicant to "establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." Id. at *25 (quoting 8 C.F.R. § 1208.16(c)(2)). The applicant bears the burden of proof. Id. "For purposes of the CAT, torture includes only conduct 'by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.'" Id. at *25-26 (quoting 8 C.F.R. § 1208.18(a)) (emphasis added).
At the hearing before the Immigration Judge ("IJ"), Ramos Marquez testified to a reign of terror against him and members of his family ("a particular social group") by MS-13[1] members. The gang murdered one of his brothers in 2014 or 2015 in one town in Honduras. Some years later, another brother opened a business in another town, and Ramos Marquez worked there. In 2018, MS-13 members went to the business, threatened Ramos Marquez, and demanded extortion from his brother. The threats continued until the brother closed up shop and moved to yet another town in Honduras. Gang members then focused their attention on Ramos Marquez, trying to extort money from him, to get him to join the gang, and to turn in his brother to them. When he refused to cooperate, they resorted to physical violence on two occasions. The first time, he sought medical attention near his sister's home about 30 minutes from where he had been living and working and was assaulted and ultimately moved in with his sister. After the second serious assault, Ramos Marquez stayed inside his sister's house until he fled to the United States in April 2019. MS-13 members continued to send Ramos Marquez Facebook messages demanding money in 2020, even while he was living in the United States. In August 2021, the MS-13 members killed his other brother. In July 2022, Ramos Marquez's sister fled to the United States after MS-13 members threatened her when they came to her house looking for him. Police reports were filed by others concerning the murders of his brothers and the threat to his sister, but no arrests were made. Ramos Marquez never reported any of the assaults on him by MS-13 to the police because, as he explained at his hearing, the government was corrupt and nonresponsive and the gangs always found out when someone filed a complaint. The IJ found his testimony to be credible. Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *2-7.
Nonetheless, the IJ and, ultimately, the Board of Immigration Appeals ("BIA") denied the application for withholding of removal because they determined that he had not been subject to past persecution by an entity Honduras was "unable or unwilling" to control, i.e., MS-13, and because he had not shown that he could not reasonably relocate to another place in Honduras to avoid future persecution. Id. at *14-16. The BIA affirmed the IJ's denial of protection under the CAT on the ground that Ramos Marquez did not establish that the Government of Honduras would acquiesce in any torture by MS-13. Id. at *26.
The Fourth Circuit reversed the decision of the BIA and remanded for a new hearing, finding that the IJ disregarded credible evidence without explanation, including evidence that Honduras would acquiesce in his torture if he were returned to the country; the evidence in the record compelled a conclusion that Ramos Marquez demonstrated that Honduras is unable or unwilling to control the MS-13 gang; reporting his past persecution to Honduran authorities would have been futile or subjected him to further harm; and he could not have relocated to avoid persecution. Id. at *1-2. The dissent argued that the majority failed to defer to the administrative findings of the IJ and the BIA.
There are several key take-aways from this decision. In the Fourth Circuit, there is no per se requirement to report persecution to the police, and the IJ must carefully weigh credible evidence of futility or danger in reporting such persecution. Token or merely procedural police response to the report of a crime does not, without more, prove that a state is “willing and able” to protect victims from powerful gangs. Once past persecution by a non-state actor whom the government cannot control, such as MS-13, is established, the burden shifts to the government to rebut the presumption of future persecution, including on the issue of relocation within the country. A review of the record requires that the IJ and the BIA meaningfully engage with evidence of conditions within the country, especially in CAT cases where such evidence can be dispositive of governmental acquiescence. Finally, the Fourth Circuit will treat the IJ’s or the BIA's unexplained disregard of credible, unrebutted, legally significant evidence as an abuse of discretion, even under a highly deferential substantial-evidence standard of review.
[1] La Mara Salvatrucha, commonly known as MS-13, a large and violent street gang, is a U.S. export which has spread to Mexico and Central America and is the frequent source of claims of persecution and torture by applicants for relief from removal. Ramos Marquez, 2025 U.S. App. LEXIS 30262, at *2 n.1.
