On Sep. 30, 2025, the Board of Immigration Appeals (BIA) issued a precedential decision regarding asylum eligibility based on perceived gang membership. In Matter of L-A-L-T-, 29 I&N Dec. 269 (BIA 2025), the BIA vacated a grant of asylum by the Immigration Judge (IJ), finding that the proposed particular social group (PSG) of “perceived Salvadoran gang members” is not cognizable. The noncitizen in L-A-L-T- was never a member of a gang but was targeted and assaulted by police officers on multiple occasions because they erroneously believed him to be an MS-13 gang member. Based on the past harm the respondent suffered, the IJ found that he had met his burden of showing past persecution on account of a valid protected ground – “perceived Salvadoran gang members.”

On appeal, the BIA reversed the grant of asylum. The BIA found that the PSG of “perceived Salvadoran gang members” is not cognizable because “Salvadoran gang members” is not itself a cognizable PSG, relying on its prior decision in Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008). In doing so, the BIA acknowledged that the reasoning of E-A-G- has been rejected by multiple circuit courts. See, e.g., Chavez v. Garland, 51 F.4th 424, 434 (1st Cir. 2022) (rejecting E-A-G-’s holding that a group made up of those who are incorrectly perceived to be members of a gang is categorically barred from recognition as a particular social group); Vasquez-Rodriguez v. Garland, 7 F.4th 888, 897–98 (9th Cir. 2021) (rejecting E-A-G- as inconsistent with the requisite fact-based analysis of proposed particular social groups); Escamilla v. Holder, 459 F. App’x, 776, 786 (10th Cir. 2012) (rejecting, in an unpublished decision, the BIA's reasoning in E-A-G- that the group of people perceived to be gang members who are not actually gang members is categorically barred from recognition as a particular social group).

Despite the decisions from other courts of appeals, the BIA noted that the Fourth Circuit, where Matter of L-A-L-T originated, had not issued a decision on this topic. After analyzing the case before it, the BIA determined that the proposed social group of “perceived Salvadoran gang members” was not immutable, particular, or socially distinct. The BIA also stated that because “gang members” are not a valid particular social group, “perceived gang members” also do not qualify. The BIA held that perceived or imputed membership in a proposed particular social group will only satisfy the particular social group requirements if the underlying group of which the respondent is perceived to be a member is cognizable.

In its analysis, the Board included alarming “dicta” (non-binding asides) signaling openness to categorical denial of certain claims and stated that “while an adjudicator should normally engage in a case-by-case determination of an [applicant’s] proposed particular social group, as we do here, it is not inappropriate to rely on established precedent in concluding that certain proposed groups are categorically not cognizable.” L-A-L-T-, 29 I&N Dec. at 275. As an example the Board cited Matter of K-E-S-G-, 29 I&N Dec. 145 (BIA 2025) to support the idea that groups defined solely by sex and nationality are not cognizable. The Board also noted that “neither the INA nor the regulations contain a protected category for ‘imputed’ or ‘perceived’ particular social groups as protected grounds.” Id. at 274.

The BIA then went on to dismiss the remaining grounds for asylum that had been raised before the IJ, including alternate PSG formulations and a political opinion argument. The BIA did so even though the IJ had never considered them in the first instance. However, the BIA remanded to the IJ to consider the applicant’s eligibility for protection under the Convention Against Torture.

Take-Aways for Practitioners

1. The BIA’s reasoning on the PSG of “perceived gang members” has already been rejected by multiple courts of appeal, and the holding in L-A-L-T- is by no means a settled issue. The matter may eventually be appealed to the Fourth Circuit. In appropriate cases, practitioners should continue to argue that “perceived gang members” is a valid particular social group to preserve the issue for possible circuit court review.
    
2. Beyond the relatively narrow holding on the PSG in question, there are other troubling aspects to the BIA’s decision. The BIA appears to question the entire premise of asylum claims based on perceived or imputed grounds, stating that “neither the INA nor the regulations contain a protected category for ‘imputed’ or ‘perceived’ particular social groups as protected grounds.” L-A-L-T-, 29 I&N Dec.at 274. While the BIA does not ultimately decide this specific issue, the comment is concerning. There remains a rich body of case law from both the BIA and the courts of appeal on imputed grounds that qualify for asylum. See e.g., Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) (finding that persecution for imputed reasons can satisfy the refugee definition); Khudaverdyan v. Holder, 778 F.3d 1101 (9th Cir. 2015) (recognizing perceived whistleblowing as a ground for asylum); Alvarez Lagos v. Barr, 927 F.3d 236 (4th Cir. 2019) (finding that the agency erred in failing to consider the asylum applicant’s imputed political opinion). Is the BIA itching to reverse this line of cases? Probably, although enough appellate courts have weighed in on this issue, that a wholesale reversal would likely be difficult. Still, this is something for practitioners to keep an eye on and to preserve for possible circuit court review.
    
3. Perhaps the most troubling part of this decision is the BIA’s dismissal of the asylum applicant’s alternative claims based on PSGs and political opinion without giving the IJ the opportunity to consider them in the first instance. Over the years, the BIA has repeatedly stated that social groups must be considered on a case-by-case basis. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). Indeed, this case-by-case determination is the reason that the BIA has required noncitizens to set forth all PSGs before the IJ and prohibited raising new social groups on appeal. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018) (“The importance of articulating the contours of any proposed social group before the Immigration Judge is underscored by the inherently factual nature of the social group analysis.”). Yet, in L-A-L-T-, the BIA ignores its own precedent on the importance of case-by-case determinations. Equally troublingly, the decision references its recent decision in Matter of K-E-S-G-, 29 I&N Dec. 145 (BIA 2025), where it found that a PSG defined by an applicant’s sex and nationality is overly broad and not cognizable. The BIA cites this case as an example of when proposed PSGs can be rejected outright, without individualized analysis. This aside indicates that the BIA is giving the green light to IJs to summarily dismiss gender-based claims without considering the specific evidence in each case.
   
   The decision also summarily dismisses the applicant’s political opinion claim by stating that “[m]ere opposition to gangs and/or gang recruitment generally cannot establish persecution on account of a protected ground.” Practitioners should remember, however, that non-conventional political opinions remain viable when supported by evidence that the persecution occurred on account of that opinion. For example, in Alvarez Lagos v. Barr, 927 F.3d 236, 245 (4th Cir. 2019), the Fourth Circuit credited two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.” As a result, it found that failure to comply with gangs’ demands could be viewed as a form of political opposition. Advocates should document and present evidence — such as country conditions, expert testimony, or statements from the applicant — demonstrating that gangs targeted the applicant based on their actual or perceived political opinion. This interpretation aligns with international refugee law, including guidance from UNHCR’s Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, which notes that rejecting gang recruitment or extortion can amount to a political opinion in contexts where gangs exert de facto power and their activities and those of certain State agents may be closely intertwined.
   
   
4. Advocates must remember that the BIA is not a neutral decision maker. The agency is stacked with loyalists to the administration who are issuing decisions that are favorable to the restrictive view of asylum eligibility that the administration is pushing. Advocates must assume that almost every case before EOIR will need an appeal to the court of appeals, after a denial by the BIA, to obtain fair consideration. As a result, they must act accordingly to preserve the record and all possible arguments. The following actions are recommended:
   1. Present every basis available to support your client’s claim for relief, including exploring other grounds for asylum. Propose multiple PSG formulations, as well as any basis related to political opinion (including reproductive coercion), religion, race, or nationality.
   2. Engage country condition experts with deep knowledge of gang dynamics in the applicant’s country of origin to strengthen the asylum claim. Visit the CGRS Expert Witness Database for a list of country-specific experts. Continue to include legally defensible PSG formulations on the record and before the conclusion of the individual merits hearing, and argue for individualized, case-by-case consideration on the merits. Object on the record where IJs categorically deny specific PSG formulations.
   3. Include sufficient facts in your client’s Form I-589 at the Master Calendar Hearing or early in the process to support all available bases for relief and avoid pretermission.