Maydai Hernandez-Avalos was a Salvadoran woman. In 2007, her husband's cousin, Augustin, was murdered by members of the Mara 18 gang. She identified the body at the medical forensic lab. After Augustin's funeral, heavily armed gang members came to Hernandez's home and threatened to kill her if she identified Augustin's murderers to the police.
A few months later, five members of the Mara 18 gang came to her home and told her that it was time for her 12-year-old son Kevin to join the gang. When Hernandez refused, the gang members put a gun to her and threatened to kill her if she opposed Kevin's membership in the gang. On a third occasion, members of the Mara 18 again pointed a gun at Hernandez and threatened to kill her if she did not allow Kevin to join the gang within one day. Hernandez testified that she did not report these threats to the police because gang members often learn the identity of those who report them and then retaliate against those individuals.
The Immigration Judge denied Hernandez's application for asylum, finding that she had not demonstrated that she would suffer harm on account of a protected ground or that the Salvadoran government was unable or unwilling to protect her. The Board of Immigration Appeals affirmed this decision.
The Fourth Circuit reversed, finding that Hernandez was threatened on account of her membership in the particular social group comprised of her nuclear family. "Hernandez’s relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18, and the gang members’ demands leveraged her maternal authority to control her son’s activities. The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts." The court rejected the Government's argument that Hernandez was persecuted because she interfered with the gang's recruitment activities. "Because any reasonable adjudicator would be compelled to conclude that Hernandez’s maternal relationship to her son is at least one central reason for two of the threats she received, we hold that the BIA’s conclusion that these threats were not made 'on account of' her membership in her nuclear family is manifestly contrary to law and an abuse of discretion."
With regard to the issue of government protection, the court noted that "Hernandez, whom the IJ found to be a credible witness, provided abundant evidence that the authorities would not have been responsive to such a report. Hernandez’s affidavit, in combination with the other evidence presented in this case, suggests that the police in her neighborhood may be subject to gang influence."
The full text of Hernandez-Avalos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141331.P.pdf