E-M-F-S-: Three Bullets on the Doorstep Did Not Prove Persecution

A note appears on your doorstep saying you will be killed. A week later comes another. One of them arrives with three bullets. You go to the police, quit your job and eventually leave the country. Then an immigration judge asks a question you may not be able to answer: Who left those notes, and could they actually have done it?

That question decided Matter of E-M-F-S-, 29 I&N Dec. 379, Interim Decision #4154 (BIA Jan. 9, 2026), a precedent decision of the Board of Immigration Appeals. A Peruvian television host and a producer on her show asked the Board to treat a death threat as persecution, full stop. The Board refused. Death threats alone rarely qualify, it held, and they “only do so if they are objectively credible and issued by a person or persons with the immediate ability to carry them out.” The family lost. The reasons reach well past the bullets, and each one is a separate problem an asylum applicant has to solve.

An interview at the station, and two notes at home

The trouble began with someone else’s interview. Former Peruvian President Pedro Castillo sat for an interview with another reporter at the host’s station, and it turned hostile. His supporters then went after the host, a broadcaster on a well-known Peruvian news channel, and the producer. She was pushed and insulted “on numerous occasions” as she left the station.

Then the threats came home. Two anonymous written death threats landed on the doorstep, one week apart. One came with three bullets. After the second, the two saw a young man running from their house. They reported it to the police and resigned from the station. About six months later, they left Peru with their minor children and sought asylum, withholding of removal and protection under the Convention Against Torture.

The judge accepted the motive and still denied protection

The immigration judge denied everything on November 27, 2024. One finding went the family’s way. The judge found that the host had been threatened on account of her imputed political opinion, meaning her attackers treated her as holding a political view, whether or not she did. That answers why she was targeted. It does not answer how serious the targeting was, and the Board corrected the family when they argued on appeal that the judge had found past persecution. The judge had not.

The host and the children had sought asylum as derivatives of the producer’s application, but the judge evaluated the host’s claims independently, and the Board treated the two adults as separate applicants. The judge ruled that the limited physical harm and the two anonymous threats were not severe enough to be persecution. The fear of future harm was not objectively reasonable. The family could safely and reasonably move elsewhere in Peru. And the torture claim failed. On appeal, the Board looked afresh at whether the harm rose to the level of persecution, without deferring to the judge on that question.

They asked for a rule that every death threat counts

The family’s argument on this point was simple and broad. Death threats, they said, are persecution per se, and the Board should follow the Fourth Circuit, which had written that “the threat of death alone constitutes persecution.”

The Board read past the sentence to the facts behind it. In one Fourth Circuit case, the applicant had been threatened, beaten, nearly sexually assaulted and robbed by gang members. In another, gang members had murdered her husband’s cousin, and she was twice threatened with a gun to her head. In a third, they had killed the applicant’s cousin and tried to kill his uncle. And when a death threat reached one applicant through two third parties, across country borders, a decade before that applicant sought protection, the Fourth Circuit declined to call it persecution. So the Board concluded that the Fourth Circuit has no categorical rule, and it told immigration judges applying that circuit’s law not to use one.

Even a categorical Fourth Circuit rule would have stood alone. The Board found no other circuit that treats every death threat as persecution, and it quoted the Ninth Circuit’s description of death threats as persecution “in only a small category of cases.”

A threat must be credible, and the threatener able to act

Until this case, the Board had no specific standard for when a death threat is persecution. The closest it had come was a 2007 decision about threats of forced abortion, which asked whether a reasonable person would view the threats as genuine and whether the harm, if carried out, would reach the level of persecution. The new test adds a question about the speaker. It has two parts, and the Board described them as consistent with the Eleventh and Ninth Circuits. The threat must be objectively credible. And the person or group making it must have the immediate ability to carry it out.

The Board’s reason is practical. “Threats themselves are sometimes hollow and . . . claims of threats are hard to disprove,” it said, quoting a Ninth Circuit decision from 2000, Lim v. INS, 224 F.3d 929 (9th Cir. 2000). Lim had explained why that matters. A finding of past persecution “flips the burden of proof” to the government, so treating every claimed threat as persecution would hand over that advantage on evidence that is difficult to test.

The burden sits with the applicant, who “must produce evidence of the ability of the persecutor to imminently carry out the threat.” A threat that is vague, anonymous or used merely to intimidate does not, by itself, meet the standard. The Board pointed to its own 1998 decision holding that an anonymous death threat painted on the outside of a house was not persecution. The applicant must “prove objectively that the threat was not hollow.”

That test looks at the person making the threat, not at the person receiving it. The Board said the inquiry is “not the subjective suffering of the applicant, but the objective treatment by the alleged persecutor.” It agreed that suffering or harm is a key part of persecution, but cautioned in a footnote that an applicant’s subjective harm, by itself, is not enough.

The test also looks at the whole picture. The Board said death threats must be considered “not in isolation but as part of the totality of the applicant’s past mistreatment,” and that in some cases other severe mistreatment may be what establishes persecution.

“Immediate” is the Board’s word, and the decision shows that other courts have put it differently. Several circuits, the Board said, have “focused on imminence or the likelihood that a threat will be carried out.” The Tenth Circuit asks for threats that are “immediate and menacing.” The Third Circuit has said that “[t]he key is not a threat’s imminence, but rather its likelihood.” That difference returns in the California section below.

The bullets did not answer who left them

Applied to this family, the standard turned on what was missing. Two anonymous notes, one with three bullets. A young man running. But the family, the Board said, had “not presented any evidence concerning the individuals who sent these threats or their ability to imminently carry them out.”

The Board’s contrast shows the kind of proof it had in mind. In an Eleventh Circuit case it cited, the threat came from the same soldiers who had killed the applicant’s brother, and he avoided the same fate by escaping. A threat from people who have already killed the applicant’s brother says a great deal about their ability to act. An unsigned note says much less.

The pushing and insults at the station did not close the gap. They came from “unknown individuals,” and the family did not show that those encounters made the threats credible or that the cumulative harm reached persecution. The Board’s own summary of the facts attributes the harassment to the former president’s supporters. In our reading, knowing the group that was angry was not the same as showing who stood at the door, or what those people were able to do next.

The consequence ran forward. An applicant who proves past persecution is presumed to have a well-founded fear of future persecution. Without that finding, the family had to prove the future danger themselves.

Fear of the future failed on its own record

They could not. To show a well-founded fear, an applicant’s fear must be genuine and objectively reasonable, and the Board focused on the second part. The family had not shown that Castillo’s supporters had been looking for them or would seek to harm them on return. They had lived in Peru unharmed for six months after the second threat. And Castillo himself had been removed from office and jailed.

The host argued that the judge ignored country evidence. The Board disagreed. The judge had found that freedom of expression was generally respected in Peru, and that journalists covering antigovernment protests had suffered some aggression that did not rise above harassment and intimidation. And the judge found the family not similarly situated to those journalists, because they did not report on the protests.

The relocation finding went unchallenged

One more finding stood in the way, and the family left it nearly untouched. The immigration judge had found that they could safely and reasonably relocate within Peru. An applicant who can avoid persecution by moving elsewhere in the country does not have a well-founded fear. On appeal, the family did not meaningfully contest the point, so the Board called the finding dispositive and deemed the issue waived.

Waiver was costly because the burden on that point was theirs. The family, which had not shown past persecution, must show that relocating is not reasonable. The Ninth Circuit places the burden the same way, as Singh v. Blanche, No. 24-815 (9th Cir. May 15, 2026), shows.

That ended asylum, and withholding of removal fell with it, because withholding requires a showing the Board called more stringent: a clear probability of persecution. With those grounds decided, the Board stated in a footnote that it did not need to reach the family’s remaining arguments on those claims. Our Salinas Luna analysis shows the same trap in a Ninth Circuit case.

Torture protection required more

Protection under the Convention Against Torture has its own test. The applicant must show it is more likely than not that they would be tortured by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. The Board gave several reasons this family had not. Their past harm did not reach persecution, “much less torture.” They did not contest that they could relocate. They had not shown that Castillo’s supporters would seek them out.

The police mattered too, though not the way the family hoped. Peruvian police had been ineffective at preventing attacks on members of the media. The Board agreed with the judge that this did not show the government would consent to or acquiesce in future harm. It dismissed the appeal.

Months later, the rule reached a man who had been beaten

The rule has not stayed with anonymous notes. In Matter of V-S-A-, 30 I&N Dec. 37, Interim Decision #4244 (BIA Sept. 10, 2026), a case arising in the Ninth Circuit, an immigration judge had granted asylum to a Mann Party supporter from India. The judge found two incidents. He was threatened, pushed from a motorcycle and beaten with hockey sticks. Later he was pushed, beaten and kicked, and treated for bruises and swelling.

The Board reversed the finding of persecution. The two short assaults, several months apart, had required only medication for minor bruising. The threats did not fill the gap. He said the Bharatiya Janata Party members who assaulted him had made them. But the incidents were months apart, and he received no further threats between the second assault and the day he left India several months later. For that point the Board cited E-M-F-S- and its requirement that the persecutor “actually possessed the ability to imminently follow through on the threat.”

Notice what that adds. In E-M-F-S-, the record contained no evidence about who sent the notes. In V-S-A-, the applicant said the threats came from the men doing the beating. Even taking his account as credible, the Board still looked at what followed. In our reading, a long silence after a threat can be used against the claim that the threat was about to be carried out. The Board did not end the case there. It sent the case back for a new credibility assessment and for decisions on future fear, withholding and torture protection.

In California, read it beside the Ninth Circuit

This family’s case arose in the Eleventh Circuit. A federal challenge to a California immigration judge’s decision generally goes to the Ninth, and the Board said its test was consistent with both circuits. Immigration judges will apply E-M-F-S-. An applicant in California should be ready for that, and should also know what the Ninth Circuit has actually said.

Start with the words. The Board’s holding requires “immediate ability.” The Ninth Circuit has said that what matters is whether the group making the threat has “the will or the ability to carry it out”—“not whether it is, in fact, carried out.” That comes from Aden v. Wilkinson, 989 F.3d 1073 (9th Cir. 2021), and the Board quoted the “will or the ability” language and called the approaches similar. Those are not the same phrases, and that is worth noticing when a denial rests on the Board’s wording alone.

The Ninth Circuit’s cases also show what proof of will or ability looks like. In Corpeno-Romero v. Garland, 120 F.4th 570 (9th Cir. 2024), a divided panel held that the record compelled a finding of past persecution for a 14-year-old threatened by gang members. One of them had been convicted of murdering the boy’s father, and days later armed men broke into the family’s home looking for someone. Mashiri v. Ashcroft, 383 F.3d 1112 (9th Cir. 2004), involved something closer to the notes in this case: a death threat on a car windshield that included the words “Heil Hitler.” The court pointed to no identified author. What made that note “much more than an idle threat” was everything around it: slashed tires, an apartment ransacked a month later, a mob the applicant had to run from, and earlier anti-foreigner violence, including two attacks on her husband in his taxi and the firebombing of a nearby store.

On the other side sits Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019). Men believed to be hitmen threatened a Mexican police officer, once by phone and once in person. But he did not know whether they had ever carried out such threats, and they took no violent action against him, his family or his property. The court held that the record did not compel a finding of past persecution, and it repeated that “cases with threats alone, particularly anonymous or vague ones, rarely constitute persecution.” So the anonymous note remains a hard case here too. The question in this circuit is what surrounded it.

The second difference concerns harm. The Board’s footnote warns against relying on subjective suffering alone. Corpeno-Romero faulted the agency for ignoring uncontradicted evidence that the boy had post-traumatic stress disorder after the threat, over a partial dissent arguing that the focus belongs on the persecutor’s conduct. Psychological evidence can matter from the first hearing. In Urias-Orellana v. Bondi, 607 U.S. 537 (2026), the immigration judge rejected a death-threat claim in part because the applicant had not submitted any medical, psychiatric or psychological evaluation.

Losing on past harm is not the end of the claim. “[C]redible evidence of political threats will still often trigger asylum eligibility by raising a well-founded fear of persecution in the future,” the Ninth Circuit said in Lim. That route has its own elements and needs its own evidence, as this family learned.

Finally, separate two kinds of challenge. An argument that your facts satisfy the test meets deferential review: Under Urias-Orellana, the agency’s application of the persecution standard stands unless any reasonable adjudicator would be compelled to conclude otherwise, as our Urias-Orellana analysis explains. An argument that the Board adopted the wrong test is different. The Supreme Court considered only the review of how the standard was applied, because no one had challenged the standard itself, and it noted the Solicitor General’s agreement that “purely legal questions about the appropriate standard” of persecution are reviewed afresh, without deference. A lawyer who believes “immediate ability” asks for more than Ninth Circuit law allows should say so, in those terms, to the Board and in any petition for review. Either way, the record built in immigration court is the record that counts.

What to check if your claim rests on a threat

• Who made it. What connects the threat to a particular person or group? The Board found no evidence about who sent the notes here.
• What they could do. What had these people already done, to you or to someone close to you? What did they do next? The Board contrasted this family with an applicant threatened by the soldiers who had killed his brother.
• Everything else that happened. Put the threats alongside any assault, stalking, break-in or damage, and explain what ties them together. This family did not show that the pushing and insults at the station made the threats credible.
• Every separate reason for denial. Read the judge’s decision for findings on future fear, relocation and torture protection. Each needs its own answer on appeal. Leaving relocation unanswered was dispositive here.
• What happened after the threat. Six months in Peru without harm counted against this family, and months without further threats counted against the applicant in V-S-A-. If you stayed, explain where you were, what you did to stay safe and any sign that the people who threatened you were still looking.
• What it did to you. Subjective harm alone will not carry the claim, but medical or psychological evidence can matter. Corpeno-Romero rested in part on it. Ask whether an evaluation makes sense early, before the hearing.
• Whether the fight is over the facts or the test. Review is deferential on the facts. A legal objection to the “immediate ability” standard has to be made expressly.

Our guide to death-threat evidence goes through the documents and witnesses in more detail. For representation in immigration court, see our removal defense practice.