The Board of Immigration Appeals (BIA) has held that death threats alone will “rarely” qualify as persecution for asylum purposes, unless those threats are objectively credible and issued by someone with the immediate ability to carry them out.
In a precedential decision issued on January 9, 2026, Matter of E-M-F-S-, 29 I&N Dec. 379 (BIA 2026), a three-judge panel dismissed the appeal of two Peruvian journalists, concluding that anonymous threats—even those accompanied by physical ammunition—did not meet the necessary legal standard. The Board upheld an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) for the couple and their children.
The journalists, a news broadcaster and a producer at a prominent Peruvian television station, claimed persecution after receiving anonymous threats tied to their reporting on former President Pedro Castillo. They described receiving two written death threats at their home a week apart, one of which included three bullets.
Although they witnessed a young man fleeing after the second incident and faced physical pushing and insults from the former president’s supporters outside their workplace, the Board found no evidence identifying the threat-makers or proving their capacity for imminent violence. Consequently, the Board deemed the harm akin to harassment rather than the severe level required to constitute persecution.
Chief Appellate Immigration Judge Dana Malphrus, writing for the panel, reviewed precedents from multiple federal circuits and rejected arguments that threats amount to persecution per se.
While some Fourth Circuit opinions have suggested otherwise in cases involving additional violence, this decision aligns the Board with the 9th and 11th Circuits, which emphasize that threats must be concrete and backed by a perpetrator’s proven means and intent. The Board further advised that immigration judges applying Fourth Circuit law should avoid a categorical approach to such claims.
The ruling also affirmed that the couple lacked a well-founded fear of future persecution. The Board cited several factors, including the couple’s six harm-free months in Peru following the threats, the subsequent removal and imprisonment of Pedro Castillo, and the family’s ability to relocate safely within the country.
Furthermore, current country conditions showed a general respect for press freedom; while some harassment of journalists occurred during protests, it did not reach the level of persecution for individuals who, like the respondents, had avoided anti-government coverage. Finally, the Board ruled that police inaction did not signal government acquiescence to torture, thereby confirming the denial of CAT protection.
Immigration attorneys have expressed concern over the ruling, noting that this decision may significantly impact other pending cases. Legal experts argue that by requiring proof of a perpetrator’s immediate ability to carry out a threat, the Board has set an exceptionally high bar for asylum. This precedent, they warn, will make it increasingly difficult for victims of anonymous or organized crime-related threats to win their cases, even when those threats are intended to silence or intimidate.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
