Court: Court of Appeals for the Seventh Circuit; August 21, 2018; Federal Appellate Court
In 2015, W.G.A. was threatened with death by members of the Mara 18 gang in El Salvador, a criminal organization notorious for its violent control over local populations and significant social influence. The gang, along with its rival MS-13, is responsible for high homicide rates and extensive extortion in the country. Following this threat, W.G.A. fled to the United States, where he was apprehended by the Department of Homeland Security for illegal entry, leading to removal proceedings. He applied for asylum and other forms of protection, asserting that the Mara 18 would kill him if he returned to El Salvador. However, his applications were denied by an immigration judge, and the Board of Immigration Appeals upheld this denial. W.G.A. subsequently petitioned for judicial review, which was granted, and the case was remanded for further proceedings.
W.G.A. provided credible testimony about his background, detailing his life in a small farming community where Mara 18 began operating in 2013. The gang's activities included extorting local businesses and forcibly recruiting young men. W.G.A.'s younger brother, S.R.P., was likely forcibly recruited by the gang after disappearing, and during a brief phone call, he expressed fear for his life and reluctance to return home. W.G.A. and his family felt powerless to seek police assistance due to widespread corruption and the gang's influence over law enforcement. S.R.P. later contacted W.G.A. after being released from prison, indicating he could not return home due to fear of gang retaliation.
A man, W.G.A., received a threatening call warning him to "be careful" and stating "they're looking for you," without the caller identifying himself. The next day, shortly after S.R.P. was released from prison, W.G.A. was confronted at his home by tattooed gang members who demanded to know his brother's whereabouts. After W.G.A. claimed ignorance, one gang member assaulted him and threatened his life if he did not provide information on his brother within four days. The gang also threatened to kill W.G.A. and his family if he contacted the police. Fearing for his safety, W.G.A. fled through Guatemala and Mexico to the United States, where he entered without valid documents in January 2016. The Department of Homeland Security (DHS) initiated removal proceedings against him, and W.G.A. conceded removability while applying for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The immigration judge denied his applications, affirming the removal order, which the Board of Immigration Appeals also upheld. Subsequently, DHS wrongfully removed W.G.A. to El Salvador while his appeal was pending, violating regulations that stay execution of immigration decisions during such circumstances. Following this, the government agreed to facilitate W.G.A.'s return to the U.S., where he is currently detained. The scope of judicial review hinges on whether the Board's order was independent or supplementary to the immigration judge's decision, with the court agreeing with the Attorney General that the Board's order supplemented the judge's findings, allowing broader review.
To qualify for asylum, W.G.A. must demonstrate an inability or unwillingness to return to El Salvador due to persecution or a well-founded fear of persecution based on one of five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion, as defined by 8 U.S.C. § 1158(b)(1)(A) and § 1101(a)(42)(A). If past persecution is established, there is a presumption of a well-founded fear of future persecution, which the Attorney General can rebut by proving changed country conditions or safe relocation within El Salvador (8 C.F.R. § 1208.13(b)(1)).
For withholding of removal, the Attorney General must withhold removal if W.G.A.’s life or freedom would be threatened in El Salvador due to one of the protected grounds (8 U.S.C. § 1231(b)(3)(A)). Past persecution leads to a rebuttable presumption of a threat to life or freedom (8 C.F.R. § 1208.16(b)(1)(i)). W.G.A. has established past persecution through credible testimony that the Mara 18 gang threatened him at gunpoint, which the Board recognized as persecution, supported by case law.
The contested issue is whether the persecution was based on a protected ground. W.G.A. argues it was due to his membership in two specific social groups: members of his nuclear family or family members of tattooed former gang members. While the immigration judge and the Board initially found insufficient connection to a qualifying social group, the current decision concludes that W.G.A. has identified a cognizable social group and that the Mara 18's actions were motivated by his membership in it.
Regarding the Attorney General's request for a general remand, no substantive arguments were presented related to asylum or withholding of removal. Past cases have allowed remands for the Board to reconsider asylum decisions in light of emerging case law, but with caution due to instances where the Board failed to adequately engage with the Attorney General's reasons for remand. A general remand will only be granted with persuasive justification, particularly in opposition from the petitioner, as is the case here. The Attorney General has put forth two reasons for such a remand.
The Attorney General seeks two remands regarding W.G.A.'s appeal. First, the request for the Board to reconsider if "family members of tattooed former Salvadoran gang members" qualifies as a cognizable group lacks justification, as the Board had access to relevant case law when making its decision. Second, the Attorney General argues for a remand to apply Matter of L-E-A, which requires that a family relationship be a central reason for persecution. However, L-E-A did not establish new rules but reaffirmed existing analyses, and the immigration judge already applied these principles in finding that social group membership was not a central motivation for the persecution faced by W.G.A.
The legal question of whether W.G.A. belongs to a "particular social group" under the Immigration and Nationality Act is addressed, with the court reviewing this as a question of law while granting deference to the Board's reasonable interpretations. The Board's interpretation from Matter of Acosta defines membership as sharing an immutable characteristic, with "immutable" meaning a characteristic that cannot or should not be changed. Over the years, the Board added requirements of social distinction and particularity to this definition. W.G.A. proposed two groups for asylum: members of his nuclear family and family members of tattooed former Salvadoran gang members. The Board accepted the first group but rejected the second as overly broad and lacking social distinction. W.G.A. argues that the court has not yet granted deference to the Board's additional requirements of social distinction and particularity, highlighting previous cases where these standards were criticized. The court acknowledges that denying asylum based on the number of valid claims contradicts the principles of asylum law.
Intervening Board opinions, specifically Matter of M-E-V-G and Matter of W-G-R, provide statutory interpretation and reasoning relevant to the case at hand. The circuit court has yet to determine if the Board's requirements for particularity and social distinction warrant Chevron deference, an issue left unresolved due to the government's lack of substantive arguments. The Board and immigration judge recognized W.G.A.'s proposed nuclear family as a cognizable social group, aligning with prior rulings that classify family as such. The record indicates that W.G.A. was persecuted based on his family membership, negating the need to address Chevron considerations regarding former gang members' family members.
W.G.A. contests the Board’s conclusion that he was not persecuted "on account of" his family membership, a factual determination reviewed for substantial evidence. To qualify for asylum, W.G.A. must demonstrate persecution linked to his social group, as per the REAL ID Act of 2005, which specifies that the protected trait must be "at least one central reason" for such persecution. The Board erred in applying the legal standard for withholding of removal by incorrectly assuming that failure to meet the lower asylum standard equated to failing the higher withholding standard. The requirement for withholding involves a more stringent assessment of harm severity and likelihood of harm compared to asylum eligibility, as clarified by relevant case law.
The nexus requirement for asylum and withholding of removal is uniformly applied, as established by the Board in prior cases. W.G.A.'s membership in his nuclear family is determined to be a central reason for the persecution he faced, supported by his and his family's testimony, which indicates that the gang specifically targeted them due to their relation to S.R.P. This targeting is corroborated by country reports and news articles indicating that Salvadoran gangs often attack family units to enforce their control and deter defection. Evidence shows that the gang threatened W.G.A. shortly after S.R.P.'s purported defection, illustrating a direct link between W.G.A.'s family ties and the gang's actions. The gang's threats against W.G.A., including demands for his brother's location and threats to kill his family, further underscore this connection. Circumstantial evidence from the community supports the idea that families of those who oppose or flee from gangs are also at risk. Reports from the U.S. Department of State and the United Nations affirm that family members of gang targets face significant threats, including assassination. Despite these findings, the Board erroneously concluded that W.G.A. failed to demonstrate a sufficient nexus, citing that other family members remain unharmed in El Salvador. However, W.G.A. and his family provided evidence of ongoing threats, including W.G.A.'s mother receiving multiple threatening calls from gang members, contradicting the Board's conclusion.
W.G.A.'s family has faced threats from masked gang members demanding information about W.G.A. and another individual, S.R.P., indicating a real danger to them. The immigration judge's conclusion that these threats do not constitute evidence of harm to other family members is flawed, as established in precedents like R.R.D. v. Holder and Cordova v. Holder, which emphasize that not all members of a protected group need to be harmed for an individual to be targeted due to kinship ties. Although W.G.A. testified that the gang has a personal vendetta against him, this does not negate the evidence suggesting that his familial relationship with S.R.P. is a primary reason for the gang's targeting. The immigration judge also incorrectly emphasized that W.G.A.'s remaining family in El Salvador implies safety, while in reality, the family lives in fear, exemplified by their decision to send another son, J.R.P., into hiding. The complexities of gang territory in El Salvador make relocation perilous, with reports indicating significant gang affiliation among the population and dangers faced by those crossing gang boundaries. W.G.A.'s testimony further supports the notion that threats against his family persist, regardless of their current location or safety measures.
W.G.A. seeks to defer removal to El Salvador under Article 3 of the Convention Against Torture, asserting a likelihood of torture upon return. The applicable legal standard requires W.G.A. to demonstrate a "substantial risk" of torture, distinct from the asylum criteria, focusing instead on the involvement of public officials in the torture. The immigration judge and Board failed to adequately consider crucial evidence indicating that W.G.A. would likely face torture, including ongoing gang threats and the violent murder of a family friend. They improperly relied on W.G.A.'s lack of past torture and his family's safety without acknowledging the current dangers posed by gangs.
Additionally, the Board misapplied the standard regarding government acquiescence, incorrectly requiring direct involvement of public officials in the threats against W.G.A. The evidence of systemic corruption and gang impunity in El Salvador was overlooked. The remand is necessary for the Board to reassess W.G.A.'s deferred removal claim, ensuring all relevant evidence is considered, including the immigration judge's erroneous finding regarding W.G.A.'s ability to relocate within El Salvador, which was based on incorrect burden of proof regarding past persecution.
The Board is required to reassess the immigration judge's conclusions regarding the Salvadoran government's capacity and willingness to prevent persecution. The case is remanded for further proceedings, as the Board must reconsider these unresolved issues. To protect the petitioner's identity, an initialed pseudonym is used. A U.S. State Department report indicated that El Salvador's 2015 homicide rate was 103 per 100,000 citizens, significantly higher than Chicago's rate of 17.5 and the national U.S. rate of 4.5. The excerpt also highlights the difficulty in defining a social group for asylum claims, noting that W.G.A. argues the Board's criteria of "social distinction" and "particularity" create an impractical standard. It emphasizes that dismissing a social group as too broad could unjustly deny asylum to victims of widespread persecution. W.G.A. claims that since the introduction of these criteria, the Board has recognized only one new social group, a point that has not been addressed by the Board. Additionally, a Ninth Circuit ruling has deemed the Board's position unreasonable and not deserving of Chevron deference. Finally, W.G.A. testified regarding a gang's motive for a murder, stating it was linked to the victim's refusal to join the gang and engage in extortion activities.
