Is Opposing a Gang a Political Opinion for Asylum? What Matter of D-G-E-A- Decided in 2026

Last reviewed: September 2026

On April 21, 2026, the Board of Immigration Appeals decided Matter of D-G-E-A- & N-G-G-E-, 29 I&N Dec. 570 (BIA 2026). The Board's headline holding answers one question. Disapproval of, or opposition to, a criminal gang is not, by itself, enough to establish a political opinion under the Immigration and Nationality Act.

The ruling matters most for asylum and withholding-of-removal claims that rest wholly or partly on fear of a gang, a fact pattern common in claims from El Salvador, Honduras, and Guatemala. Convention Against Torture protection does not depend on a protected ground, so the political-opinion holding does not govern it. The decision also does not resolve every gang-related claim the same way: some federal appeals courts have precedent that points the other way, and the Board's decision leaves several other legal grounds untouched, a point addressed later in this article.

What the Board Decided

A political opinion under the INA requires an expression, active or indirect, of a belief or conviction about a discrete cause that is related to a government (p.573). That test has two routes, not one.

Route one: the actual government. An opinion tied to a country's actual, recognized government can independently establish a political opinion. Opposition to official corruption is the clearest example. The Board pointed to Second and Ninth Circuit whistleblower cases, including Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000), which said that "[w]hen the alleged corruption is inextricably intertwined with governmental operation, the exposure and prosecution of such an abuse of public trust is necessarily political" (pp.573-574). Quoting the Second Circuit, the Board also noted that opposition to endemic corruption "may have a political dimension when it transcends mere self-protection and represents a challenge to the legitimacy or authority of the ruling regime" (pp.573-574). And it quoted Grava's limit: "retaliation completely untethered to a governmental system does not afford a basis for asylum" (205 F.3d at 1181 n.3). Route one does not require any showing that a gang functions as a government.

Route two: a de facto government. A de facto government, as the Board defines it, is a group in the full and actual exercise of sovereignty over a territory and people large enough for a nation (p.576), a standard the Board borrowed from Kadic v. Karadzic, 70 F.3d 232, 244 (2d Cir. 1995). "The determinative factor in deciding whether a de facto government exists," the Board wrote, "is whether the relevant group has exercised sovereignty over the territory and the people" (p.576).

Why "de facto government" is a high bar

A gang that intimidates, extorts, or controls activity in a single neighborhood does not meet that standard, because a neighborhood is not a nation-sized territory. The Board made this point discussing Alvarez Lagos v. Barr, 927 F.3d 236, 251, 254-55 (4th Cir. 2019), a case in which a gang "monitors who enters and exits the neighborhood, controls when residents can worship, collects taxes from residents, and kills individuals who disobey its commands." Even on those facts, the Board wrote, "we do not agree that opposition to a gang's activities that influence a neighborhood would be sufficient to establish a political opinion claim" tied to a de facto government (p.575). On this record, the Board found that examples of gang intimidation tactics did not show that gangs maintain governmental authority (p.577).

The Facts of This Case

The respondents are a mother, the lead respondent, and her minor child, a derivative applicant, both natives and citizens of El Salvador (p.570). The record states plainly what her claim was built on. "The respondent claims she was persecuted by her husband and fears that his sister, whom she identifies as a gang member, will harm her upon her return to El Salvador" (pp.570-571). Her minor child was a derivative on her application and also filed a separate application based on the same facts (p.570 n.1).

Her asserted political opinion was opposition to the Maras and their activities as the de facto government of El Salvador (pp.571, 576). On appeal, she argued that she holds the view, rooted in her Christian faith, that gangs, gang activities, and corrupt government actors who work with them are morally wrong, and that she expressed it by avoiding gang activity and gang ties (p.571). The Immigration Judge found that the record did not reflect that either respondent was politically active or made any statements, political or otherwise, against the Mara 18 gang or its activities (p.571). Applying its test, the Board held that she had not shown an opinion related to the ruling government of El Salvador, and that the record did not establish that the gangs exercise the sovereignty that would make them a de facto government (pp.576-577). Both routes failed on this record.

She also raised eight proposed particular social groups tied to gender and her domestic situation, including groups defined around Salvadoran women, women unable to leave a relationship, and family members of her husband's sister (p.577). The Board rejected each one, largely for lack of particularity or social distinction, applying Matter of K-E-S-G-, 29 I&N Dec. 145 (BIA 2025), and the framework Matter of S-S-F-M-, 29 I&N Dec. 207 (A.G. 2025), restored (pp.577-579). That particular-social-group analysis is its own body of law.

We read facts like these closely, because the label attached to a claim, political opinion versus a particular social group, can decide which legal standard applies to the same underlying harm.

Where This Rule Applies Differently, by Circuit (As of September 2026)

The Board's decision binds immigration judges nationwide, but it does not bind the federal courts of appeals. Where a circuit's own precedent points the other way, that precedent controls cases arising in that circuit, so results can differ depending on where a case is heard.

Since 2024, federal appeals courts decide what the immigration statute means for themselves rather than deferring to the Board; they still defer to the agency on fact-bound calls such as whether harm amounts to persecution, and their own earlier precedents remain binding. That is why circuit precedent the Board disagrees with can still control the outcome of a case arising in that circuit.

Circuits more open to anti-gang political-opinion claims (as of September 2026)

The Board expressly disagreed with three circuits. It disagreed with the Second Circuit's Hernandez-Chacon v. Barr, 948 F.3d 94, 104 (2d Cir. 2020), writing that the facts there did not "sufficiently tie the alien's actions to a belief or conviction that is related to the ruling government" (p.575). It disagreed with the Fourth Circuit's Alvarez Lagos v. Barr, 927 F.3d 236 (4th Cir. 2019), discussed above. And it disagreed with the Eighth Circuit's Aguilar v. Garland, 60 F.4th 401, 405-06 (8th Cir. 2023), which reiterated that evidence of a gang's political mindedness may be enough to show that resisting the gang is a political opinion; the Board called that approach "at odds with our understanding of a political opinion" (pp.574-575). The Board's disagreement does not change the law inside those circuits. A Board decision cannot overrule a circuit's own reading of the statute, and as of September 2026, Hernandez-Chacon, Alvarez Lagos, and Aguilar remain binding precedent in the Second, Fourth, and Eighth Circuits.

The First Circuit has taken a similar view. Two days after D-G-E-A-, and without addressing it, the First Circuit held in Lopez Martinez v. Blanche, No. 25-1225 (1st Cir. Apr. 23, 2026), that "there is no categorical bar to political opinion claims resting on resistance to gang recruitment or opposition to gangs," noting that in some places gangs "may take on a quasi-governmental role such that opposition to them is similar to opposing a government."

The Ninth Circuit, relevant to Novo's Washington practice

On claims resting on opposition to a gang, Ninth Circuit law reaches a result consistent with D-G-E-A-. In Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008), the court upheld the Board's determination that "a general aversion to gangs does not constitute a political opinion," and the Board relies on that case (p.574). Santos-Lemus was later abrogated on a separate particular-social-group point by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); its political-opinion holding was not disturbed. As of September 2026, we have not found a published Ninth Circuit decision holding that opposition to a gang or cartel is a political opinion.

As of September 2026, the Ninth Circuit has not adopted the Board's requirement that a political opinion be tied to a government, and its own precedent reads the term more broadly. In Rodriguez Tornes v. Garland, 993 F.3d 743, 752 (9th Cir. 2021), a case involving years of abuse by the applicant's husband and a later partner, the court said it had "little doubt that feminism qualifies as a political opinion" and held that the record compelled a finding that she held one. That precedent still binds in the Ninth Circuit. The Ninth Circuit has not yet addressed how D-G-E-A-'s narrower definition fits with its own case law.

The Tenth Circuit, relevant to Novo's Colorado practice

Existing Tenth Circuit law reaches a similar result by a different road. Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012), rejected an anti-gang political-opinion claim on nexus grounds. Quoting the Supreme Court's decision in INS v. Elias-Zacarias, 502 U.S. 478 (1992), the court noted that "even a person who supports a guerrilla movement might resist recruitment for a variety of reasons," and it required that applicant to show the gang's motive was more than anger at her unwillingness to join.

The Tenth Circuit did not adopt a government-tethering test at all. Its later decisions have continued to decide these claims on nexus. As of September 2026, we have not found contrary Tenth Circuit precedent, and the Tenth Circuit has not addressed D-G-E-A-'s definition.

Novo Legal Group serves clients in both circuits. Colorado sits in the Tenth Circuit and Washington in the Ninth. The circuit that reviews a case is the one where the immigration judge completed it, which is usually, but not always, the state where the person lives. On claims resting only on opposition to a gang, both circuits have reached results consistent with D-G-E-A-, by different reasoning: the Tenth Circuit on nexus, the Ninth Circuit on its holding that a general aversion to gangs is not a political opinion. The Ninth Circuit's broader reading of "political opinion" in other contexts is a point of difference from the Board. That shapes how a case is argued in each state, not just whether a claim can succeed. As of September 2026, we have found no federal court of appeals decision that cites or applies Matter of D-G-E-A- & N-G-G-E-; that can change at any time.

What Other Grounds May Still Apply

A rejected political-opinion theory does not decide the other grounds; each is analyzed separately. Four other paths deserve mention, stated generally and without predicting how any specific case would come out.

An opinion tied to a country's actual government, opposition to official corruption being the clearest example, can independently support an asylum or withholding claim under the Grava line of cases, without any need to show a gang functions as a government (205 F.3d at 1181). The tie to the government has to be shown on the record: in D-G-E-A-, the respondent argued that her view extended to corrupt officials who work with gangs, and the Board still found she had not shown an opinion related to the ruling government (pp.571, 576-577). The other four protected grounds for asylum, race, religion, nationality, and membership in a particular social group, are each independent of the political-opinion ground under INA §§ 101(a)(42)(A), 208(b)(1)(B)(i), 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i), and a claim can fail on political opinion while remaining untested, and fact-specific, on one of those grounds.

Withholding of removal is a separate form of relief under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). It requires a link to the same protected grounds as asylum, under a higher standard of proof, a "clear probability" of persecution rather than a well-founded fear. A claim with no protected ground fails for both, as it did in D-G-E-A- (p.579). Withholding can still matter when asylum is unavailable for reasons unrelated to the protected ground, such as the one-year filing deadline. Convention Against Torture protection sits apart from all of the above. It carries no requirement to tie harm to a protected ground; instead it asks whether it is more likely than not that a person would be tortured with a public official's involvement or acquiescence, under 8 C.F.R. §§ 1208.16(c), 1208.18(a). In D-G-E-A-, the Board denied CAT protection because the evidence did not show that torture was more likely than not (pp.579-580). Both withholding and CAT protection are narrower than asylum: they do not lead to a green card, do not extend to family members as derivatives, and do not prevent removal to a third country.

The particular-social-group theories rejected in this case, tied to gender and a domestic relationship, turn on a separate line of precedent. Treating a single rejected theory as the end of an asylum case would misread this decision. That is the wrong lens for a claim built on more than one ground.

Why This Decision Matters

The line between a general dislike of a gang and a political opinion tied to a government is the kind of fact-intensive distinction that decides whether an asylum claim survives. D-G-E-A- sets out the Board's test for that line: an opinion tied to the actual government, or to a group that governs like a national government.

Immigration judges generally apply that test, except where the controlling circuit's own precedent says otherwise. As of September 2026, the First, Second, Fourth, and Eighth Circuits have precedent more open to anti-gang political-opinion claims than the Board's test, and the Ninth Circuit reads "political opinion" more broadly than the Board in other contexts. Nothing in this decision changes the separate tests for the other four protected grounds, withholding, or CAT protection, each of which asks its own question on its own facts.

Why Novo Legal Group

Asylum law built on gang violence has always turned on details a form letter cannot capture: who exercised power, over what territory, and why a persecutor did what they did. We tell clients plainly what a new precedent decision changed and what it did not, rather than offering a worst-case reading or a false reassurance. Novo Legal Group is a Spanish-first immigration practice; every attorney is bilingual. That matters in cases like this one, where the facts a claim depends on are often first described in Spanish, to a Spanish-speaking attorney, long before any filing exists.

Related Reading and Internal Links

• Navigating the U.S. Asylum Process for Denver & Seattle Communities: the general asylum framework, covering all five protected grounds at a high level; this article goes deeper on one of those five, the political-opinion ground.
• Bilingual Immigration Law Firms for Asylum and Credible Fear Cases: on testimony and case preparation generally, relevant to how a political-opinion or any other asylum claim gets documented and presented.
• Immigration Attorneys for Unaccompanied Minors: on asylum and related protections for minors generally, relevant because the underlying decision involved a minor derivative applicant, though this article does not address minors as a separate topic.
• Matter of D-G-E-A- & N-G-G-E-, 29 I&N Dec. 570 (BIA 2026): the full decision (PDF, U.S. Department of Justice, Executive Office for Immigration Review).
• Grava v. INS, 205 F.3d 1177 (9th Cir. 2000): the Ninth Circuit whistleblower case D-G-E-A- cites with approval.

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