Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)

8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)

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NO. 06-75797

AGENCY NO. A99 530 588

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

Jo 0

NELSON DE JESUS SANCHEZ,

Petitioner,

V.

ALBERTO GONZALES, Attorney Generalof the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

PRINCIPAL BRIEF OF PETITIONER NELSON DE JESUS SANCHEZ

ISAAC RUIZ

Pro Bono Attorney

1132 Tenth Avenue East, Suite B

Seattle, Washington 98102

Telephone: 206) 407-3520

CATHY 041 EASON, (Az RAU.S. COURT OF PEALti



TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES i v

I. S T A T E M E N T OF THE ISSUES 1

JURISDICTIONAL STATEMENT 2

DETENTION STATUS 3

IV. S TAT E M E N T OF THE CASE 3

A. U . S . Entry and Detention 3

B. M a s t e r Hearing 3

C. I n d i v i d u a l Hearing 4

D. B I A Appeal 6

E. S t a y of Removal 8

V. S TA T E M E N T OF THE FACTS 9

A. M S - 1 3 in El Salvador 9

B. N e l s o n ' s Experience 1 2

1. N e l s o n joins MS-13 and is stained. 1 2

2. N e l s o n quits the MS-13 gang 1 4

3. T h e MS-13 gang reacts. 1 5

4. N e l s o n flees. 1 6

5. N e l s o n fears persecution in El Salvador. 1 7

VI. S U M M A R Y OF ARGUMENT 1 8

VII. ARGUMENT 2 2

A. S ta nd ard of Review 2 2



1. J u d i c i a l review of legal questions is de novo. The Court owesno Chevron deference to the order below, 2 2

2. A l t h o u g h factual findings are reviewed for substantial evidence,

Nelson s testimony must be accepted as true because there was

no adverse credibility determination 2 3

B. A s y l u m and Withholding Claims Generally 2 4

C. J u d i c i a l review is limited to the issues decided by the BIA 2 5

D. T h e MA s conclusion that Nelson could not show persecution rests on

an irrelevant, misstated, and misapplied rule 2 7

1. P h y s i c a l violence and death threats are persecution 2 7

2. T h e r e is ample evidence of persecution 3 0

a. N e l s o n suffered past persecution 3 0

b. N e l s o n also has a well-founded fear of future

persecution. 3 0

3. T h e BIA committed legal error by not applying this Circuit s

definition of persecution 3 2

a. T h e BIA erroneously equated the MS-13 gang with anational army. 3 3

b. T h e BIA relied on invalid legal authority 3 6

c. I . N . S . v. Elias-Zacarias, 502 U.S. 478 (1992), does not

support the BIA s analysis 3 7

d. T h e rule invoked by the BIA is subject to important

exceptions. 3 8

4. T h e MA s conclusion that Nelson could not show persecutionshould be reversed 3 9

E. T h e BIA erred in concluding that no countrywide threat of harmexists. 4 0



1 T h e BIA erroneously saddled Nelson with the burden of proofon this issue 4 0

2 T h e BIA did not have authority to make this determination _43

3 T h e BIA did not examine the reasonableness of internalrelocation 4 4

VIII CONCLUSION 4 7

STATEMENT OF RELATED CASES 4 8

CERTIFICATE OF COMPLIANCE 4 9

CERTIFICATE OF SERVICE 5 0

ADDENDUM 5 1

A D e c is i o n of the Immigration Judge 5 1

B D e c i s i o n of the Board of Immigration Appeals 5 2

C 8 CFR § 208 13 5 3



Cases

Alonzo v. INS., 915 F.2d 546 (9th Cir. 1990) 1 9 , 34, 35

Arteaga v. INS., 836 F.2d 1227 (9th Cir. 1988) 3 5 , 36, 37

Avetova-Elisseva v. IN.S., 213 F.3d 1192 (9th Cir. 2000) 2 4

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) 3 4

Barraza Rivera v. 9 1 3 F.2d 1443 (9th Cir. 1990) 3 8

Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) 2 2

Castillo v. INS. , 951 F.2d 1117 (9th Cir. 1991) 3 4

Chand v. INS., 222 F.3d 1066 (9th Cir. 2000) 2 0 , 24, 29

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

T BLE OF UTHORITIES

1984) 2 3

Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005) 2 8 , 30

Elias-Zacarias v. INS., 921 F.2d 844 (9th Cir. 1990) 3 5

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) 2 3

Gonzales v. Thomas, 126 S. Ct. 1613 (2006) 2 7

Harbi v. INS., 242 F.3d 882 (9th Cir. 2001) 2 5 , 28

Hernandez-Montiel v. 2 2 5 F.3d 1084 (9th Cir. 2000) 2 7

Hayha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003) 2 8

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) 2 4

I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) 3 5 , 37, 38

I.N.S. v. Ventura, 537 U.S. 12 (2002) 2 7

In re C--- A--- 2 1 1 . N. Dec. 754 (1997) 8 , 41

iv



Maldonado-Cruz v. Dep't of Immigration Naturalization, 883 F.2d 788 (9th Cir.

In re Maldonado-Cruz, 19 I. N. Dec. 509 (1988) (Maldonado-Cruz i)

passim

passim

In re R--- 0---, 20 I. N. Dec. 455 (1992)

Montecino v. INS., 915 F.2d 518 (9th Cir. 1990)

6

In re V--- T--- S---, 211. N. Dec. 792 (1997)

34

6

Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) 20, 29, 44

Kaveh-Haghigy v. INS., 783 F.2d 1321 (9th Cir. 1986) 19, 34, 35

Korablina v. INS., 158 F.3d 1038 (9th Cir. 1998)

26

28

Ladha v. INS., 215 F.3d 889 (9th Cir. 2000) 23, 24, 40

Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)passim

29

1989) (Maldonado-Cruz II) passim

Melkonian V. Ashcroft, 320 F.3d 1061 (9th Cir. 2002) passim

Montecino v. INS., 915 F.2d 518 (9th Cir. 1990) 28

Movsisian V. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) 34

Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) 38

Rep. o f Austria v. Altmann, 541 U.S. 677 (2004) 34

Sangha v. INS., 103 F.3d 1482 (9th Cir. 1997) 35, 36, 37

Shah v. INS., 220 F.3d 1062 (9th Cir. 2000) 26

Singh v. INS., 94 F.3d 1353 (9th Cir. 1996) 26

Singh v. lichen', 69 F.3d 375 (9th Cir. 1995) 22, 43

Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)passim

Federal Statutes

28 U.S.C. § 41 2

8 U.S.C. § 1101 24



8 U.S.C• § 1158 ..... . ............... ....••••••••••.• ..... • ......... ............ ••••••••••••• ................ ••••••••24

8 U.S.C. § 1231 2 5

8 U.S.C. § 1252 2

ederal Regulations

8 C.F.R. § 1003.1 p a s s i m

8 C.F.R. § 1003.3 4 0

8 C.F.R. § 1208.13 2 8

8 C.F.R. § 208.13 p a s s i m

I.N.S. Order No. 1865-97, AG Order No. 2340-2000, 65 Fed. Reg. 76121 Dec. 6,2000) 4 1

Other Source

USAID, Central America and Mexico Gang Assessment 21 2006),

www.usaid.gov/gt/docs/gangs_assessmentpdf. 1 0

vi



I STATEM EN T OF THE ISSUES

Petitioner Nelson de Jesus Sanchez is a teenager and native of El Salvador.

He has applied for asylum and withholding of removal under the Immigration and

Nationality Act (INA). Nelson claims that if deported be will be persecuted on

account of being in a particular social group namely, children who are former

members o f the MS-13 gang in El Salvador. Nelson also claims he will be

persecuted on account of a political opinion anathema to the gang. He petitions

this Court for review of a Board of Immigration Appeals decision affirming a

deportation order entered by the Immigration Judge in this case.

The petition presents two issues:

1. Persecution. The BIA held that Nelson's beatings and threats to his li fe

cannot qualify as persecution. I t relied on the rule that conscription and

punishment for evasion of military duty generally do not rise to that level. D id the

BIA err since, under Ninth Circuit precedent, this rule applies only to individuals

who are forcibly recruited by or who desert a country's official military, not a

gang?

2. Internal Relocation. The BIA found (sua sponte and without

explanation) that no countrywide threat of persecution was shown. Yet the

controlling regulation provides that applicants with past persecution do not have to

prove that internal relocation is possible. D id the BIA err since Nelson testified of



past persecution in the form of beatings and death threats and the IJ found his

testimony credible?

JURISDICTIONAL STATEMENT

1. Agency s subject-matter jurisdiction. On September 8, 2006, the IJ

issued an oral decision denying Nelson's application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). (Administrative

Record (A.R.) at 58-69.) The IJ ordered that Nelson be deported. (Id. at 68.) The

LI had subject-matter jurisdiction under 8 U.S.C. §§ 1103(g) 1158 and 8 C.F.R.

§ 1003.10. Nelson took an appeal of the Irs decision to the BIA under 8 C.F.R.

§ 1003.1. (A.R. 40-49.)

2. Finality of decision below / appellate jurisdiction. The BIA affirmed

the IF s decision on November 29, 2006. (Id . at 2-3.) As a result, the I rs

deportation order became final. Th is Court's jurisdiction rests on 8 U.S.C. § 1252.

Because the IJ completed proceedings in Tacoma, Washington, this Circuit is the

proper venue for the petition. See § 1252(b)(2); 28 U.S.C. § 41.

3. Timeliness of petition. Nelson timely filed his petition on December 27,

2006, less than thirty days from the MA's affirmance.



DETENTION STATUS

Nelson is detained in custody of the Department of Homeland Security

(DHS) at the Northwest Detention Center in Tacoma, Washington. He has not

moved the BIA to reopen, and he has not applied to the district director for an

adjustment of status.

IV. STATEMEN T OF THE CASE

A. U . S . Entry and Detention

Nelson entered the United States at Brownsville, Texas, on April 30, 2006,

where border agents immediately detained him. (A.R. at 583, 594.) The same day,

DHS served Nelson with a notice to appear, charging that he was subject to

removal. (Id. at 603-05.) DHS transferred Nelson to Fife, Washington. (Id. at

596.) Because he is a teenager and arrived in the United States unaccompanied,

the government placed Nelson in foster care. (Id.)

B. M a s t e r Hearing

Nelson s master hearing occurred on July 5, 2006. (A.R. at 91-98, 601.) A t

the hearing, Nelson conceded he was removable as charged in the notice to appear.

(Id. at 94:7—:9.) Nelson then submitted an application for asylum, withholding of

removal, and CAT relief. (Id. at 95:1—:15, 583-93.)

3



C I n d i v i d u a l Hearing

The parties submitted prehearing statements in advance of the individual

hearing. DHS s submission was a boilerplate review of legal standards, with a

couple of country reports attached. (A.R. at 554-82.) Nelson s prehearing

statement, by contrast, contained extensive elaboration of his claims. (See id. at

155-99.) Nelson sought relief from deportation on the following bases:

1 A s y l u m and Withholding of Removal under the INA Nelson

claimed persecution on account o f his membership in the particular

social group of children who are former members of the MS-13 gang

in El Salvador. (E.g., id. at 172-75,184-85,190-94.) Nelson also

claimed persecution on account of an actual or imputed political

opinion that he expressed in refusing to participate in the gang s

criminal activity. (E.g., id. at 178-79,190-94.)

2. C A T . Nelson claimed that he would be tortured i f deported to El

Salvador. (Id. at 196-99.)

Nelson submitted hundreds of pages of supporting declarations, statements, and

documentation. (Id. at 200-553.)

Nelson s individual hearing occurred on September 8,2006, before visiting

Immigration Judge Wayne Stogner of the New Orleans Immigration Court. ( Id. at

99-148 (transcript).) A t the close of evidence, Judge Stogner rendered an oral

4



decision. (Id. at 58-69; see also id. at 56-57 (written order).) He found Nelson's

testimony credible. (Id. at 62.) He added:

Respondent claims that he fears that he will be

persecuted by the members of his former gang, that being

MS-13, because he left that gang and such quitting of a

gang is not permitted by the gang. The respondent has

submitted substantial amount of background informationand this claim is consistent with that information.

(Id.) Nevertheless, the LT felt that Nelson's claims were foreclosed on purely legal

grounds. (Id. at 67 ( This is purely a matter of legal analysis and the Court

concludes that the respondent does not qualify. ).) Although the picture presented

was one of massive societal failure, the LI said he was not satisfied that that

societal failure in El Salvador is properly addressed under U.S. asylum law. (Id.

at 64.) The IJ concluded that former members of the MS-13 gang in El Salvador

do not qualify as a particular social group and that the violence to which Nelson

and others like him are subjected is not persecution on account of any such group.

(Id.)

According to the LT, Nelson stated no political opinion, stated no political

agenda and identified no other political activities. (Id. at 65.) Bu t the LI did not

address Nelson's argument that the MS-13 gang imputed a political opinion upon

him (see id. at 177-78) or his argument that, under the Department of Justice's

Guidelines for Adjudicating Children's Claims, children should not be expected to

articulate political opinions with precision (see id. at 170-71). The IJ also

5



65.)

6

concluded that vigilante violence, which Nelson fears, is not persecution. (Id. at

Finally, the LI cited several cases. (Id .) He cited In re R--- 0---, 20 I. & N.

Dec. 455 (1992), for the view that forced recruitment into the military w a s not

persecution. (A.R. at 65.) The LI thought this important to the extent an applicant

could claim persecution in being recruited into a gang (id.), but Nelson does not

make this type of claim. Next, the IJ cited In re V--- T--- S---, 211. & N. Dec. 792

(1997), in support of the point that criminal offenses, even very serious criminal

offenses, such as kidnaping, does not amount to persecution. (A.R. at 66.)

The LI ordered that Nelson be removed from the United States to El

Salvador. (Id. at 68.)

D. B I A Appeal

Nelson timely appealed the entirety of the IF s decision to the BIA on

September 29, 2006, and filed a supporting brief. (A.R. at 6-29, 40-49.) DHS

filed a three-paragraph submission. (Id. at 30-31.) On November 29, 2006, the

BIA issued an unpublished, per-curiam order by a single member. (Id . at 2-3.)

The BIA did not take issue with the IF s finding that Nelson's testimony was

credible. (See id. at 2.)

Unfortunately, the BIA left several issues in Nelson's appeal unaddressed:



1 P a r t i c u l a r Social Group. The BIA did not decide whether Nelson,

as a teenager who is a former member of the MS-13 gang in El

Salvador, belongs to a particular social group. (See id. at 2

(discussing current but not former gang membership).)

2. P o l i t i c a l Opinion. The BIA did not decide whether Nelson showed a

protected political opinion or persecution on account of such. The

words polit ical opinion appear nowhere in the BIA' s order. (See id.

at 2-3.)

3. O n Account Of. The BIA did not decide whether any of the harm

alleged by Nelson was motivated by his social group or political

opinion. (See id.)

Instead, the Board affirmed on two grounds, including one that was not raised by

anyone below.

First, the BIA read agency and Ninth Circuit authority to preclude Nelson's

claim of persecution because of its relation to his decision to quit the MS-13 gang.

(Id. at 3.) The order provides:

In Matter of Maldonado-Cruz, 19 I&N Dec. 509

(BIA 1988), rev'd, 883 F.2d 788 (9th Cir. 1989), we heldthat the threat of harm to a deserter from a guerrilla

organization is part of the military policy of that group,

inherent in the nature of the organization, and a tool of

discipline. The threat of harm to a deserter is not an act

of persecution. Id. See also Zehatye v. Gonzales, 453

F.3d 1182 (9th Cir. 2006) (forced conscription or

7



punishment for evasion of military duty generally does

not constitute persecution). W e find this principle

applicable to the instant case.

(Id.) The order did not discuss the severity of the harm inflicted on Nelson; in

concluding that the harm could not be persecution, the order put Nelson's leaving

the criminal MS-13 gang on par with deserting a national army or a guerrilla

group. (Id.)

Second, the BIA concluded, without analysis: I n addition, we cannot find

that it has been shown that a nationwide threat of harm exists to the respondent.

(Id. (citing In re C--- A--- L---, 211. & N. Dec. 754 (1997)).) Ye t DHS had never

argued that Nelson could avoid persecution by relocating internally in El Salvador.

(Id. at 30-31, 144-47, 554-56.) And the LI had not discussed or ruled on the issue

below. ( Id. at 58-69.)

E. S t a y of Removal

The IF s removal order is final. Nelson filed his petition for review on

December 27, 2006. A t the same time, he moved for a stay of removal. On

February 28, 2007, the government filed a statement of non-opposition to Nelson's

motion. A stay of removal is in effect.

Nelson recently turned eighteen. As a result, Nelson was removed from

foster care and is now in detention.

8



V. STATEMENT OF THE FACTS

A. M S - 1 3 in El Salvador

El Salvador is the smallest country in Central America. (A.R. at 249.) I t is

located along the North Pacific Ocean, between Guatemala and Honduras. ( Id. at

248.) The country is plagued with maras, criminal gangs that operate with

impunity, sowing a climate of fear and bringing social devastation through

violence, loss of life and family disintegration. (Id. at 220; see also id. at 262.)

The MS-13 gang, also known as Mara-Salvatrucha, is one of the most notorious

maras. (Id. at 220.) I t is a better organized gang than most of its rivals. (Id . at

221.) Synonymous with violence, its activities include smuggling, armed

robberies, contract killings, and drugs. (Id.; see also id. at 136:23—:24 ( They kill,

steal, beat innocent people. They even rape women. ).) The MS-13 gang is bitter

enemies with the Mara 18 gang in El Salvador. ( Id. at 221.) Inter-gang violence is

common, as horrifically detailed in the administrative record. (Id. at 221, 381-86.)

It has been fifteen years since the country's bloody civil war ended.

Because of the maras, a press report observed, El Salvador's graveyards are

swelling again. (Id. at 381.) E l Salvador has the unenviable ranking as one of

the most dangerous countries in Latin America, and it is believed that forty

percent of all homicides there involve a gang member as the victim or the

perpetrator. (Id. at 262.) This takes a political and economic toll. To give an



idea of the problem's severity, according to a recent publication by USAID, mara

violence costs El Salvador about US$1 bill ion each year, or over six percent of the

country's gross domestic product. USAID, Central America and Mexico Gang

Assessment 21 (2006), www.usaid.govigt/docs/gangs_assessment.pdf. (See also

A.R. at 265.)

Then there is the toll on El Salvador's youth. Most members of the maras

are in their teens when they are recruited into gang life. (Id. at 220.) Many have

been forced to join the gang to save the lives of their families and themselves.

(Id. at 221.) They stick out from the rest of society since they display visible and

sometimes extensive tattoos to show their membership. (Id. ; see also id. at 278

( [The maras] also provide an unparalleled sense of identity, employing a complex

system of codes and symbols, including tattoos, band gestures and even a different

alphabet )) Anyone who has enough courage to quit is considered a traitor. (Id.

at 221.) I f by chance, a member gets out of the group, he will be harassed,

threatened and possibly killed. (Id.; see also id. at 222 ( The maras in El

Salvador have a violent history and are known to harass, threaten and sometimes

kill those members who try to leave the gang. ); id. at 278 ( Members swear

unconditional allegiance; desertion is punishable with death. ))

El Salvador's governmental institutions are unable to stop mara violence.

So-called Mano Dura (Him Hand) and Super Mano Dura (Super Firm Hand)



policies are supposed to put gang members involved in criminal activity behind

bars. (Id. at 270.) Easier said than done. The judiciary and police systems are

saturated, and there are not enough personnel in these systems to manage the

problem of gangs. (Id.) El Salvador's policies have been criticized by human-

rights advocates who take issue with certain hard-line aspects. (Id. at 222.)

Moreover, Amnesty International USA has repeatedly noted that the El

Salvadoran authorities have failed to investigate human rights abuses against

former gang members as well as those abuses perpetuated against ordinary citizens

of El Salvador. (Id .) Hard line or not, the government has proven itself unable or

unwill ing to do what is necessary to stop or control the maras. (Id. at 222, 277.)

Some observers actually believe the gangs have emerged stronger as a result. (Id.

at 277.)

Out of this desperate situation, vigilantism has emerged g roups that take

the gang problems into their own hands. Vigi lante groups are very active in El

Salvador and gang members have been a target, particularly those gang members

who have identifying tattoos. (Id. at 222.) One of the groups is Sombra Negra

(Black Shadow), which wants to extelminate the MS-13 gang. ( Id. at 406, 411.)

Its members are known as self-appointed executioners of justice. (Id.) Although

the government officially denies sponsorship, there are reports that Som bra Negra

consists of off-duty police officers and members of the military. (Id.)

11



B. N e l s o n ' s Experience

The maras feed a cyclone of violence churning throughout El Salvador.

Young Nelson, then, finds himself in the eye of this storm. Shortly after being

recruited into the MS-13 gang at a very young age, Nelson stood up to the gang

and quit. The direct consequence of Nelson's courage is that he is now targeted for

revenge by MS-13 gang members. Because of his former association with MS-13

(and because he bears an MS-13 tattoo that was forcibly placed on him), Nelson is

also marked for death and violence by rival gangs and vigilante groups. I f Nelson

is deported, he will be severely harmed or killed because of who he is and what he

stands for.

1. N e l s o n joins MS-13 and is stained.

Nelson was born in El Salvador, where he lived with his mother and

siblings. (A.R. at 121:22-25.) Although he enjoyed school, he was only able to

reach the third grade. (Id. at 122:1—:6.) Like many children in El Salvador, Nelson

helped support his family by working in the fields (id. at 122:7—:10).

On December 24, 2002, at the age of thirteen, Nelson was convinced to join

the MS-13 gang. (Id. at 122:11—:16; id. at 202 ril 10-13.) Although he initially

refused, believing that the gang's criminal activities were wrong, the MS-13 gang

persisted. (Id . at 122:17-25; id. at 202 Itill 10-12.) Nelson's cousin Mercedes and

12



Nelson's former friends pressured him to join. ( Id . at 202 1 1 - 1 2 ; id. at 140:25.)

According to Nelson,

They told me that it was better to join the gang because

the gang protects you if you are a member. I f you are not

a member, they follow you around, say bad things to

your family about you and beat you up until you agree to

join or else kill you. The gang members w o u l dfollow me whenever I went out of the house.

(Id. at 202 4[111; see also id. at 122:23-25.) Mercedes told Nelson

that they wouldn't stop following and threatening me i f I

didn't join the gang. He also told me that they wouldprotect me. I told him no and, at first, this was enough

but they didn't stop so eventually I joined the gang,

hoping it would be better than refusing to join.

(Id. at 202 IT 12.) Thus at that young age, and with just a third-grade education,

Nelson came to believe that he had no choice but to be in the MS-13 gang. (Id. at

201 IT 9, 202 13 . )

Nelson promptly experienced his first beating. ( Id .) In an initiation rite,

MS-13 members viciously beat Nelson for thirteen seconds. (Id. at 123:3—:10,

:13—:14; id. at 202 11 13.) Nelson was not allowed to protect himself during this

exercise. (Id. at 124:10—:12; id. at 202 1 3 . ) A gang leader informed Nelson that

he had to remain in the gang for the rest of his life. (Id. at 124:15—:17.)

Not long after that, the gang tried to persuade Nelson to get a gang tattoo.

(Id. at 204 41i 16.) This was a bad idea, and Nelson told them so.

13



I told the gang that I did not want a tattoo and at first they

didn't make me have one. I told one of the gang leaders

that I didn't want to be stained, and that if my family

ever needed me, like i f anyone in my family ever needed

to go to the hospital, the tattoo could cause problems for

me and my family.

(Id.; see also id. at 125:6—:10 (discussing the problems that Nelson faced because

of the tattoo).) B ut MS-13 does not take no for an answer. About three months

into his MS-13 experience, the gang was meeting at Mercedes's house. (Id. at 204

1117.) Gang members gave Nelson a Coca-Cola. (Id.) Unbeknownst to Nelson,

this refreshment was laced with drugs. (Id.; id. at 125:4—:5.) While Nelson was

under, MS-13 branded him with a crude MS-13 tattoo on his right arm. (Id. at

204 1117.) Nelson was stained, against his will , as a member of MS-13. (Id. at

204 TT 16-17.)

2. N e l s o n quits the MS-13 gang.

Nelson believed that MS-13's activities were wrong, and he did not want to

be involved. (A.R. at 203 11 14.) Twice during his brief membership, Nelson was

forced to do things [he] didn't like to do. (Id. at 203 ifi 15; see also id. at 126:1—

:15.) The first time, an MS-13 gang leader known as Spray told Nelson to collect

money from a boy named Enis. Enis wasn't a gang member but his father had a

lot o f money. (Id. at 203 1115.) To this day Nelson does not know why Enis was

paying the MS-13 gang. (Id.) One can only imagine A second time, the MS-13

gang told Nelson and another member to break into a house when no one was

14



home and take about US$37.50. (Id.) These are the only wrongs Nelson

committed, and the only reason he did them was out of fear of MS-13. (Id.; see

also id. at 126:14—:15, 136:25 to 137:11.)

In Spring 2003, just months after he joined, Nelson quit the gang.

According to Nelson, I told my friend that I wanted to leave and be told the gang

leader, Spray. I always had problems with Spray because I didn't agree with the

kinds of thing[s] the gang did. (Id. at 205 1120.) Nelson understood the stakes:

The worst thing you can do in the gang's eyes is to leave.They think it is like leaving your family. They wantevery member who joins to stay in the gang for life.They wanted me to be an MS-13 member for life but Idon't want to be. I don't like gang life and gangactivities. I don't want to be associated with them

because I want to live an honest life and be respectful

like my family taught me to be. The gang does not allowyou to live an honest life.

(Id.; see also id. at 126:18—:20 (describing Spray's reaction when Nelson quit))

3. T h e MS-13 gang reacts.

When the MS-13 gang found out that Nelson quit, some of its members

physically beat Nelson, (see A.R. at 205 1121 ( When the gang found out that I left,

two members beat me up with their fists. I was hurt and in pain. ); id. at 126:21 to

127:12), scarring him permanently (id. at 127:1—:12). Two weeks later, MS-13

gang members beat Nelson again while he was walking down the street with

friends. (Id. at 127:13—:21; id. at 20641122.) The MS-13 gang members told him

15



he was a traitor for leaving the gang. (Id. at 206 1122; see also id. at 127:22 to

128:2.) Nelson recalls the attack:

The two of them hit me with their fists and because of

that I have a scar on my face and a mark on my left arm.

I was hurt badly but was too afraid to go to the hospital toget help because I didn't want to tell them what happenedto me. This was the third time I had been beaten up by

the gang.

(Id. at 206 1122; see also id. at 130:18—:24 ( i fs examination regarding injuries).)

The MS-13 gang also started to follow, chase, and harass Nelson's brother Saul.

(Id. at 206 I[[ 23.)

4. N e l s o n flees.

After the MS-13 gang beat Nelson for a second time after he left (and a third

time overall), his mother was understandably very worried about Nelson's safety.

(A.R. at 206 ill 24.) She knew that the only way he would ever be free from danger

was to leave. (Id.) A t first, Nelson's mother sent him to spend some time with an

aunt in Chapeltique, San Miguel, El Salvador. (Id.) But going to Chapeltique was

a band-aid. Nelson's mother believed that Nelson could not live there forever and

that Nelson was in danger there, too. (Id.)

Eventually, Nelson's brother Evelio, who lives in Houston, sent Nelson

US$300 so that he could flee El Salvador and come to the United States. (Id. at

207 It 25.) Nelson believed that this money would have gone far to support his

family in El Salvador, but he knew it was his only opportunity to be free from the

16



effects of former MS-13 membership. (Id.) Sixteen-year-old Nelson put the cash

in his pocket and began his solo journey to the United States through El Salvador,

Guatemala, and Mexico. (Id . at 200 4 , 207 2 6 ; id. at 129:17—:20.) When he

arrived in the United States, border agents immediately detained him. ( Id at 207

11 26; id. at 130:1—:3.) A t the time, Nelson had just $20 left in his pocket. ( Id. at

594.)

5. N e l s o n fears persecution in El Salvador.

Nelson fears returning to El Salvador because the MS-13 gang will find him,

beat him, and possibly kill him no matter where he goes in the country. (A.R. at

130:4—:8; id. at 201 5 - 8 , 207-08 111128-29.)

There's no telling what they'l l do . . They've beatenme before and they will do it again because I am a traitor

to the MS-13. They might even kill me or my family.They've harassed my family and have asked my mom

where I am and I know this is because they want to findme and punish me again and again for leaving and theywon't stop until I agree to join them again.

(Id. at 207 If 28; see also id. at 20141f 5 ( If I return to El Salvador, I fear that I will

be beaten or killed by the MS-13 because I do not want to be a member of their

gang. ).) The MS-13 gang is everywhere and the government has no control over

them. (Id. at 207 It 28; id. at 142:25 to 143:1.)

Nelson also fears persecution by a rival gang. (Id. at 208 IR 29.) I am

fearful of returning to El Salvador because I am afraid that the rival gang, the 18th

17



Street gang (or Mara 18) will harm or even ki ll me or members of my family

because they wil l think I am sti ll a member of the MS-13. (Id . at 20111 7.) He

fears that he will be persecuted by vigilante groups targeting current and former

gang members. (Id. at 201 1[16, 20911J 30.) I n fact, Nelson was threatened by a

vigilante while he was living in El Salvador. (Id . at 204 1 8 . )

After it became known that I was a member of the MS-13

gang, a man that lived in my neighborhood started

threatening me. His name is Jose Lazos. He is

considered to be a vigilante. He would pass by my house

with a pistol and make threats to me about being in thegang and tell me to leave the gang. He is a dangerousman and I was afraid of him.

(Id.; id. at 128:20 to 129:4.) Final ly, Nelson fears harm from government officials.

He fears that the police may hurt him or put him in jail i f they erroneously believe

that he is still a gang member. (Id . at 164; id. at 209 lj 31.) Nelson is at greater

risk of harm because his MS-13 tattoo identifies him as a target to would-be

persecutors.

VI. SU MMA RY OF ARGUMENT

Nelson does not have to convince the Court of the facts just presented. The

LI believed Nelson's testimony and detelmined that the evidence was consistent

with his claims. (A.R. at 62.) The BIA said no different. (Id. at 2-3.) The

petition also does not call upon the Court to decide the weighty questions of

18



whether children who are former members of MS-13 in El Salvador are a particular

social group, whether Nelson holds a protected actual or imputed political opinion,

or whether the harm alleged is on account of' one of those things. The BIA

brushed aside these questions and instead used other grounds to dispose of

Nelson's case. I t is those grounds involving persecution and the possibility of

relocation within El Salvador t h a t are in issue. The BIA, acting in haste, ignored

this Circuit's settled precedents and DHS regulations in favor of nothing more than

overruled case authority and tortured logic. I n so doing, the BIA created multiple

layers of reversible error, as discussed below.

The BIA's first holding involves the legal meaning of persecution. The

Board held that Nelson's violent beatings and the threats to his life did not qualify

as persecution because they were triggered by Nelson's quitting the gang. A s the

legal basis for this, the Board cited the rule that forced conscription or punishment

for evasion of military duty generally does not constitute persecution. (See id. at

3.) According to Ninth Circuit precedent, however, this rule applies only to the

official militaries of legitimate governments. See Alonzo v. INS., 915 F.2d 546,

549 (9th Cir. 1990). The rule is motivated by American courts' general reluctance

to call into question the public acts of foreign sovereigns. See Kaveh-Haghigy v.

783 F.2d 1321, 1323 (9th Cir. 1986). So though valid in cases of official

military conscription and desertion, the rule does not carry over to the question

19



here: whether harm by the MS-13 gang, a nongovernmental group, can qualify as

persecution. Under Ninth Circuit precedent, the answer to that question is yes.

Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004) (death threats); Chand v.

222 F.3d 1066, 1073-74 (9th Cir. 2000) (physical harm). While the BIA

did cite one of its cases, In re Maldonado-Cruz (Maldonado-Cruz /), for the (inapt)

view that punishment by guerrillas is not persecution (A.R. at 3), that case was

reversed on direct review to this Court. 19 & N. Dec. 509 (1988), rev 'd sub

nom. Maldonado-Cruz v. Dep't of Immigration & Naturalization, 883 F.2d 788

(9th Cir. 1989) (Maldonado-Cruz II). Not authoritative, Maldonado-Cruz I is also

contrary to Ninth Circuit case law limiting this rule to official national militaries.

The Court should reverse the BIA's persecution holding.

The BIA committed further error in stretching the principle involving

military punishment beyond what is appropriate even in military cases. Under

Ninth Circuit case law, a military deserter can show persecution if he is subject to

serious or disproportionate harm, Zehatye v. Gonzales, 453 F.3d 1182, 1187

(9th Cir. 2006), which Nelson has shown here. What is more, the BIA's

affirmance does not follow logically from its faulty premises. To reach its result,

the Board had to ignore uncontroverted record evidence that Nelson fears grave

harm not only from the MS-13 gang but also from rival gangs and vigilante groups.

Can the harm inflicted by those groups be seen as punishment for Nelson's

20



somehow deserting the MS-13 gang? Obviously not. Those groups want to

harm Nelson because of his former association with, not his quitting, the gang.

The MA's persecution analysis is wrong all the way around.

In its second holding, the BIA concluded, [W]e cannot find that it has been

shown that a nationwide threat of harm exists to the respondent. (A.R. at 3.) But

in cases involving past persecution, like Nelson's, DHS regulations and Ninth

Circuit case law place the burden of proof on the government to prove that the

applicant could avoid future persecution by relocating to another part of the

applicant's country of nationality and that it would be reasonable to expect the

applicant to do so, 8 C.F.R. § 208.13(b)(1)(i)(B), in light of several enumerated

factors, § 208.13(b)(3). 8 C.F.R. § 208.13(b)(3)(ii). The BIA switched the burden

of proof to Nelson, running afoul of these authorities. Also, only the LI, not the

BIA, was authorized to make the internal-relocation determination in the first

place. 8 C.F.R. § 208.13(b)(1)(i); 8 C.F.R. § 1003.1(d)(3)(iv) ( [T]he Board will

not engage in factfinding in the course of deciding appeals. ). DHS never argued

the point, and the IJ never decided it. The BIA committed legal error when it made

its finding sua sponte.

The BIA also erred in failing to examine whether it would be reasonable to

expect Nelson to relocate within El Salvador. Under Ninth Circuit precedent,

reversal and remand would be necessary on that basis alone so that the agency may

21



give a more careful consideration of the reasonableness factors set forth in 8

C.F.R. § 208.13(b)(3), which favor Nelson. Melkonian v. Ashcroft, 320 F.3d 1061,

1070-71 (9th Cir. 2002). I t is worth repeating, however, that the BIA had no

business even getting into this area in the first place.

This Court should grant Nelson's petition, reverse the BIA's disposition, and

remand for further proceedings.

VI I . ARGUMEN T

A. S t a n d a r d of Review

1. J u d i c i a l review of legal questions is de novo. The Courtowes no Chevron deference to the order below.

Nelson's first contention is that the BIA misapplied the law in concluding

that he could not show persecution. This is a legal question reviewed de novo.

Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005) ( Whether

particular acts constitute persecution for asylum purposes is a legal question, which

we review de novo. ). Second, Nelson contends that the BIA erroneously placed

upon him the burden of proving countrywide persecution as a requisite to asylum

eligibi lity and withholding. This, too, is a legal question reviewed de novo. Singh

v. Ilchert, 69 F.3d 375, 378 (9th Cir. 1995) (reviewing de novo the legal issue [of]

whether the BIA was correct in placing on Singh the burden of proving country-

wide persecution to be eligible for asylum and for withholding of deportation ).

22



The Court owes no deference to the Board's order under Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it

was unpublished and issued by a single member. Garcia-Quintero V. Gonzales,

455 F.3d 1006,1014 (9th Cir. 2006) (holding that the court of appeals does not

accord Chevron deference to an unpublished single-member order ). I n

addition, the Court does not explicitly apply the principles of deference to

questions already controlled by circuit precedent. Ladha v. INS., 215 F.3d 889,

896 (9th Cir. 2000).

2. A l t h o u g h factual findings are reviewed for substantial

evidence, Nelson's testimony must be accepted as true

because there was no adverse credibility determination.

The MA's order should be reversed on purely legal grounds. But to the

extent the Court reviews factual findings, a substantial-evidence test applies.

Under that test, administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary. Zehatye,

453 F.3d at 1185 (quotation omitted). I n this case, however, neither the IJ nor the

BIA made an adverse credibility detelrnination, and in fact the IJ found Nelson's

testimony credible. (A.R. at 62; see id. at 2-3.) This means that the factual

assertions in Nelson's testimony must be accepted as true. Ladha, 215 F.3d at 901.

[W]hen an alien credibly testifies to certain facts, those facts are deemed true, and

the question remaining to be answered becomes whether these facts, and their



reasonable inferences, satisfy the elements of the claim for relief. No further

corroboration is required. Id. at 900.

B A s y l u m and Withholding Claims Generally

To be eligible for asylum, a non-citizen must show that he is a refugee

under the INA. 8 U.S.C. § 1158(b)(1)(A). A refugee is

any person who is outside any country of such person's

nationality or, in the case of a person having no

nationality, is outside any country in which such person

last habitually resided, and who is unable or unwill ing to

return to, and is unable or unwilling to avail himself orherself of the protection of, that country because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion{.]

8 U.S.C. § 1101(a)(42)(A). I n other words, an applicant has to demonstrate that he

has a protected characteristic like membership in a particular social group or a

political opinion; that he has suffered past persecution or has a well-founded fear

of future persecution; and that the persecution is on account of his protected

characteristic. See Chand, 222 F.3d at 1073. Affmnative state action is

unnecessary if, as here, the government is unable or unwilling to control the agents

of persecution. Avetova-Elisseva v. LAT.S., 213 F.3d 1192, 1196 (9th Cir. 2000);

see supra pp. 10-11, 17. When the eligibility requirements are met, the Attorney

General has discretion to grant or deny asylum. I.N.S. v. Cardoza-Fonseca, 480

U.S. 421, 428 n.5 (1987).

24



The elements for withholding of removal are basically the same as for

asylum, but the withholding statute requires a showing that the refugee's li fe or

freedom would be threatened on account of one of the five protected

characteristics. 8 U.S.C. § 1231(b)(3). Applicants for withholding are required to

meet a higher standard of proof. Al-Harbi v. INS., 242 F.3d 882,888 (9th Cir.

2001) (holding that a withholding applicant must demonstrate that it is more

likely than not that he would be subject to persecution on one of the specified

grounds (quotation omitted)). O n the other hand, withholding of removal, unlike

asylum, is mandatory if the applicant meets these requirements. Id. at 888-89.

C. J u d i c i a l review is limited to the issues decided by the MA .

The BIA did not decide several important questions, including whether

children who are former members of MS-13 in El Salvador are a particular social

group and whether Nelson held an actual or imputed political opinion. (See A.R. at

2-3.) See supra pp. 6-7. On these issues, there was no published BIA decision on

point, as the LI recognized. (A.R. at 63.) Rather than issuing one here, the BIA

shoehorned Nelson's case through its streamlined appellate procedures, which are

not used when a case requires the BIA to establish a precedent construing the

meaning of laws, regulations, or procedures. 8 C.F.R. § 1003.1(e)(6)(ii);

§ 1003.1(e)(5). Indeed, the BIA assumed that Nelson was a member of a particular

social group. (A.R. at 2-3.) I t did not even mention political opinion. ( Id .)



The BIA only decided two points. First, it held that Nelson could not show

persecution because of Maldonado-Cruz I, 19 & N. Dec. 509 (1988), rev'd sub

nom. Maldonado-Cruz II, 883 F.2d 788 (9th Cir. 1989), and Zehatye, 453 F.3d

1182 (9th Cir. 2006). (A.R. at 3.) Second, the Board said that it could not find

that it has been shown that a nationwide threat of harm exists to the respondent.

(Id.) In its haste to affirm, the BIA erred on both points. See infra Parts VILD and

VILE.

Where the BIA conducts its own review of the record, this Court reviews the

BIA's decision and nothing more. Singh v. 9 4 F.3d 1353,1358 (9th Cir.

1996) ( Where, as here, the BIA conducts its own review of the record, we review

the BIA's decision rather than the IF s decision. ); Shah v. LN.S., 220 F.3d 1062,

1067 (9th Cir. 2000) (stating that judicial review is limited to the BIA's decision,

except to the extent that the IF s opinion is expressly adopted ). I n this case, the

BIA issued a two-page order affirming the 'Fs decision. (A.R. at 2-3.) I t

reviewed the case de novo, see 8 C.F.R. § 1003.1(d)(3)(ii) & (e)(5), and did not

expressly (or implicitly) incorporate any of the i f s legal analysis. (A.R. at 2-3.)

I f there were any doubt that the BIA reviewed the record for itself, look no further

than its conclusion that Nelson failed to show a countrywide threat of harm, a

conclusion that appeared nowhere in the IF s ruling. (Id. at 3.)

26



So the only determinations subject to judicial review at this time are the two

in the MA's order. Additional errors' the LT made are not ripe for consideration

and must remanded to give the BIA a first shot at them. Gonzales v. Thomas, 126

S. Ct. 1613,1615 (2006) (per curiam) (ordering remand where the agency had not

yet decided whether a particular social group existed); I.N.S. v. Ventura, 537 U.S.

12,16 (2002) (per curiam) ( Generally speaking, a court o f appeals should remand

a case to an agency for decision of a matter that statutes place primarily in agency

hands. ).

D. T h e BIA s conclusion that Nelson could not show persecution

rests on an irrelevant, misstated, and misapplied rule.

The issue of persecution was preserved in the administrative record at pages

15-21,43-47,163-64,166-68,172, and 176-77. The MA's ruling appears in the

administrative record at page 3.

1. P h y s i c a l violence and death threats are persecution.

An applicant for asylum or withholding of removal may qualify as a

refugee either because he or she has suffered past persecution or because he or she

1 For example, the BIA has not addressed Nelson's contentions that former

MS-13 members in El Salvador are a particular social group, that he held a

protected political opinion, and that he has a well-founded fear of persecution on

account of these things. With respect to the particular-social-group issue, the

Board mentioned current, but not former, gang membership. (A.R. at 2.) Even

then, it did not apply Ninth Circuit case law defining particular social groups as

those united by a voluntary association or former association, Hernandez-Montiel

v. IRS., 225 F.3d 1084,1093 (9th Cir. 2000).

27



has a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b). Regarding

past persecution, this Court has explained:

[T]he applicant can show past persecution on account of

a protected ground. Once past persecution is

demonstrated, then fear of future persecution is

presumed, and the burden shifts to the government to

show, by a preponderance of the evidence, that there has

been a fundamental change in circumstances such that

the applicant no longer has a well-founded fear of

persecution, or the applicant could avoid future

persecution by relocating to another part of the

applicant's country.

Delos° v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005) (citations and quotations

omitted). I f there is no past persecution, an applicant can still qualify for asylum if

he has a well-founded fear of future persecution. Id. at 864. A well-founded fear

must be subjectively genuine and objectively reasonable. 8 C.F.R. § 1208.13(b) &

(b)(2)(i); see also Montecino v. I.N.S., 915 F.2d 518, 520-21 (9th Cir. 1990)

(discussing the importance of the subjective component). The applicant does not

have to show a certainty of persecution or even a probability of persecution.

Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003). I n fact, even a ten

percent chance of persecution may establish a well-founded fear. Al -Harbi, 242

F.3d at 888.

The INA does not define persecution or specify acts that qualify as such.

Korablina v. INS., 158 F.3d 1038, 1043 (9th Cir. 1998). Neither do DHS

regulations. See 8 C.F.R. § 1208.13. Instead, the adjudicator is guided by case

28



law. This Circuit recognizes that persecution is marked by the infliction of

suffering or harm i n a way regarded as offensive. L i v. Ashcroft, 356 F.3d

1153, 1158 (9th Cir. 2004) (en banc) (quotation omitted). Physical violence,

including beatings, amount to persecution. See, e.g., Chand, 222 F.3d at 1073

( Physical harm has consistently been treated as persecution. ). I n addition,

[t]hreats on one's life, within a context of political and social turmoil or violence,

have long been held sufficient to satisfy a petitioner's burden of showing an

objective basis for fear of persecution. Kaiser, 390 F.3d at 658. An applicant

may suffer persecution because of the cumulative effect of several incidents, no

one of which rises to the level persecution. Chand, 222 F.3d at 1074.

Special consideration is given when the applicant is a minor like Nelson.

According to the Department of Justice Guidelines for Children's Asylum Claims,

The haiin a child fears or has suffered m a y be relatively less than that of an

adult and still qualify as persecution. (A.R. at 454.) Moreover, where the

petitioner establishes that many members of his or her group are targeted for

persecution, less of an individualized showing is required to qualify for asylum,

not more. Chand, 222 F.3d at 1076.

29



2. T h e r e is ample evidence of persecution.

a. N e l s o n suffered past persecution.

The administrative record contains compelling evidence o f past persecution

as defined in this Circuit. See generally supra pp. 15-18. When the MS-13 gang

found out that Nelson quit, its members violently beat him. (A.R. at 205 2 1

( When the gang found out that I left, two members beat me up with their fists. I

was hurt and in pain. ); id. at 126:21 to 127:12.) He was permanently and

physically scarred. (Id. at 127:1—:12.) A couple of weeks later, members of the

gang again beat Nelson when he was walking down the street. (Id. at 127:13—:21;

id. at 206 1122.) Their motivation, the gang members said, was that Nelson was a

traitor for leaving the gang. (Id. at 206,1 22; id. at 127:22 to 128:2.) Nelson

testified, The two of them hit me with their fists and because of that I have a scar

on my face and a mark on my left arm. I was hurt badly . . . (Id. at 2064IJ 22.)

Nelson was also threatened with death by a member of a vigilante group. (Id. at

204 If 18; see also id. at 128:20 to 129:4.)

b. N e l s o n also has a well-founded fear of future persecution.

Because Nelson showed past persecution, a well-founded fear of future

persecution is presumed. Delos°, 393 F.3d at 863-64. But even without that

presumption, the administrative record paints a compelling picture of what awaits

Nelson if he is deported. See generally supra pp. 15-18. Nelson fears more brutal

beatings and even death at the hands of MS-13 because he quit the group. (A.R. at

30



130:4—:8; id. at 201 In 5-7,207-08'11128-29.) Nelson also fears that he wil l be

persecuted by the rival Mara 18 gang (id. at 201 It 7,208 1129) and vigilante groups

like Sombra Negra (id. at 204 1[118; id. at 128:20 to 129:4) because he was in MS-

13 or because they will think he is still in the gang. Nelson is in greater danger

because of the MS-13 tattoo the gang forcibly placed upon him ( Id. at 204 1 6 —

17.)

Nelson's fear is subjectively genuine. The IJ found that Nelson's testimony

was credible, and the BIA did not disagree. (Id. at 62; id. at 2-3.) Nelson's fear is

also objectively reasonable. I n support of his claims, Nelson submitted the written

statement of Joyceen Spencer Boyle, an Amnesty International USA El Salvador

Specialist. (Id. at 220-44.) Ms. Boyle later verified the statement in sworn

testimony. (See id. at 101.) Based on her knowledge of conditions in El Salvador,

Ms. Boyle opined that Nelson has a legitimate fear that he will be targeted,

harassed, intimidated and perhaps killed if he is forced to return to his homeland.

(Id. at 223.) She added:

I find the statements made in Nelson de Jesus Sanchez's

application and affidavit to be in keeping with our

knowledge of the conditions in El Salvador. Given the

human rights situation in El Salvador, and the prevailingviolence perpetrated against alleged members of the

maras, as well as Nelson de Jesus Sanchez's desire not to

return to the gang, his removal to his country of origin

would expose him to a significant risk of persecution,

torture or death. He is a member of an at-risk group who

31



has experienced violence, intimidation, harassment and

serious human rights abuses.

(Id.; see also id. at 221 (stating that inter-gang violence is not uncommon ); id. at

222 ( AIUSA has repeatedly noted that the El Salvadoran authorities have failed to

investigate human rights abuses against former gang members. . .

Nelson fears grave harm if he is deported to El Salvador, and his fears are

backed up with solid objective evidence. Nelson has an open-and-shut persecution

case, even before factoring in his youth a consideration that favors Nelson

according to Department of Justice guidelines, see supra p. 29.

3. T h e BIA committed legal error by not applying this

Circuit s definition of persecution.

Although the BIA held that Nelson could not show persecution, it did not

actually examine whether the harm claimed by Nelson rose to the level of

persecution as defined in this Circuit and in the Department of Justice's Guidelines

for Children's Asylum Claims. Instead, the Board took an ill-advised shortcut. I t

rejected Nelson's arguments on persecution out of hand using a rule that controls

when a soldier is conscripted into a national army or is punished for desertion.

The BIA wrote:

In Matter of Maldonado-Cruz, 19 I&N Dec. 509

(BIA 1988), rev'd, 883 F.2d 788 (9th Cir. 1989), we held

that the threat of harm to a deserter from a guerrilla

organization is part of the military policy of that group,

inherent in the nature of the organization, and a tool of

discipline. The threat o f harm to a deserter is not an act

32



of persecution. Id. See also Zehalye v. Gonzales, 453

F.3d 1182 (9th Cir. 2006) (forced conscription or

punishment for evasion of military duty generally does

not constitute persecution).

(A.R. at 3.) This led to the Board's next passage, containing its conclusion:

There is no evidence in the record that the respondent

fears persecution because of his former membership in a

criminal gang in El Salvador. The respondent's fear

stems from his apprehension of the harm he may

experience from the gang because of his decision to leave

the gang.

(Id.) This analysis is wrong for several reasons.

a. T h e BIA erroneously equated the MS-13 gang with a

national army.

To begin with, the rule cited by the BIA does not apply to nongovernmental

groups. As the BIA noted parenthetically, Zehalye states that forced conscription

or punishment for evasion of military duty generally does not constitute

persecution. 453 F.3d at 1187 (emphasis added). Zehalye says nothing about

guerrilla groups, criminal gangs, or any other nongovernmental group. The

underlying motive for the principle concerning military conscription and desertion

is American courts' general unwillingness to call into question the political

justifications of the public acts of foreign sovereigns, not some policy that groups,

governmental or not, should be able to exact retribution against those who do not

want to associate with them.

33



Tracing the lineage of the rule in Zehatye leads to Kaveh-Haghigy, 783 F.2d

at 1322,2 where Iranian applicants claimed asylum because they did not want to

have to serve in the Iranian army in the war against Iraq. Laying the

groundwork for what is now recognized as the general rule for military

conscription, this Court held: We reject this claim. Absent exceptional

circumstances, it is not the place of the judiciary to evaluate the political

justifications of the actions of foreign governments. 783 F.2d at 1323 (citing

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416-37 (1964)). The Court

drew an analogy to the act-of-state doctrine, id., which provides that the courts of

one country will not question the validity of public acts (acts jure imperil)

performed by other sovereigns within their own borders, Rep. o f Austria v.

Altmann, 541 U.S. 677, 700 (2004). Obviously, this analogy does not work when

the applicant is harmed because he quit a nongovernmental group.

This means that punishment that might not be persecution when inflicted by

a country's official military is persecution when inflicted by a nongovernmental

group. I n Alonzo v. I.N.S., a case involving military conscription, this Court

2In support of the rule, Zehalye cites Movsisian v. Ashcroft, 395 F.3d 1095,

1097 (9th Cir. 2005). Movsisian itself cites Castillo v. INS., 951 F.2d 1117, 1122

(9th Cir. 1991) ( The fact that a nation forces a citizen to serve in the armed forces

along with the rest of the country's population does not amount to persecution. ),which in turn cites Kaveh-Haghigy.

34



explained why the rule applies to militaries, as opposed to nongovernmental

groups:

The difference between conscription by a

nongovernmental group and the government lies in the

legitimacy of the conscriptor's actions. Because

nongovernmental groups lack legitimate authority to

conscript persons into their armies, their acts of

conscription are tantamount to kidnapping and constitute

persecution.

915 F.2d at 549 (quoting Elias-Zacarias v. INS., 921 F.2d 844, 849 (9th Cir.

1990), rev'd on other grounds, 502 U.S. 478 (1992)). Similarly, in Arteaga v.

I.N.S., a case in which the applicant was recruited by anti-government guerrillas,

the government tried to argue that the applicant's claim was actually based on a

desire to avoid military service. 836 F.2d 1227, 1232 (9th Cir. 1988),

disapproved on other grounds, Sangha v. 1 0 3 F.3d 1482, 1490 (9th Cir.

1997). The Ninth Circuit was not convinced:

This court has rejected persecution claims based on the

threat of conscription into a national army (as distinct

from punishment for conscientious objection to military

service). See Kaveh-Haghigy v. INS, 783 F.2d 1321 (9th

Cir. 1986). Whatever justification exists for

distinguishing between national military conscription and

deprivations of freedom, such justification does not apply

to actions of nongovernmental groups, which lacklegitimate authority to raise armies by conscription.

Id. This Court concluded that efforts of non-official, nongovernmental groups to

recruit and retain members do in fact constitute persecution: Forced recruitment

35



by a revolutionary army is tantamount to kidnapping, and is therefore persecution.

Id.; see also Sangha, 103 F.3d at 1487.

The principle that the BIA's decision rests upon, though generally valid in

military cases, does not carry over to the question here. Nelson claims persecution

from non-official, nongovernmental groups namely, the MS-13 gang, rival

maras, and vigilante groups. This case does not involve punishment for deserting

El Salvador's military. A s a result, the crux of the BIA' s analysis was in error.

b T h e BIA relied on invalid legal authority

The BIA did not explain the leap it took when it applied the military-

conscription rule to Nelson's case. I t was apparently led astray by its 1988

decision in Maldonado-Cruz I, which held that a guerrilla group's punishment for

desertion is not persecution and is not on account of' a political opinion. 19 I. &

N. Dec. at 516. But Maldonado-Cruz I is not good law. On direct review from the

BIA's decision, this Court took a different view of the matter and reversed the

entirety of the BIA's opinion. The Ninth Circuit concluded that the applicant had

demonstrated persecution due to his political opinion of neutrality. Maldonado-

Cruz H, 883 F.2d at 793. In this case, the BIA's reliance on Maldonado-Cruz I is

mystifying, considering that the Board acknowledged its subsequent reversal.

(A.R. at 3.)

36



37

c. I . N . S . v. Elias-Zacarias, 502 U.S. 478 (1992), does not

support the MA s analysis.

Admittedly, unrelated portions of two of the cases discussed above, Arteaga

and Maldonado-Cruz II, were called into question by INS. v. Elias-Zacarias, 502

U.S. 478 (1992), as this Court said in Sangha, 103 F.3d at 1490. Elias-Zacarias,

however, deals only with whether persecution is on account of' a political

opinion, not the separate issue of whether harm qualifies as persecution, 502 U.S.

at 482-83. I n Sangha, a case involving recruitment by the terrorist group BTF, the

Ninth Circuit discussed the elements of asylum and stated that an applicant must

prove several separate facts, including the fact that he has been persecuted and the

fact that the persecution is on account of a protected characteristic. 103 F.3d at

1487. Although the Court discussed Elias-Zacarias at length, i t reaffirmed

Arteaga's analysis on the discrete issue of persecution. See Sangha, 103 F.3d at

1487. Ci ting Arteaga specifically, the Court concluded, The BTF wanted to

recruit Sangha and threatened him with death. These BTF actions are sufficient to

show persecution under the Act. Id. The Court parenthetically quoted these

memorable words from Arteaga: Forced recruitment by a revolutionary army is

tantamount to kidnapping, and is therefore persecution. Id. (quoting Arteaga,

836 F.2d at 1232).

Here, the BIA did not address the on account of ' aspect of Nelson's claims

(see A.R. at 3 ( The threat of harm to a deserter is not an act of persecution. )), and



that issue is not before the Court? On the separate issue of persecution, the Ninth

Circuit cases cited above remain good law.

d T h e rule invoked by the BIA is subject to important

exceptions

As discussed, the MA's conclusion that Nelson could not show persecution

should be reversed because the rule relied upon does not apply to nongovernmental

groups. But that is not the only reversible error in the Board's analysis. The BIA

stated that [t]he threat of harm to a deserter is not an act of persecution. (A.R. at

3.) Even in military-desertion cases, that is not always right. The rule is a general

one subject to exceptions. Zehatye, 453 F.3d at 1187 ( Moreover, forced

conscription or punishment for evasion of military duty generally does not

constitute persecution. (emphasis added)). The Zehaiye case itself involved

mere economic disadvantage, id. at 1186 (quotation omitted), and left the door

wide open for cases of serious or disproportionate punishment, id. at 1187. In

Barraza Rivera v. INS., 913 F.2d 1443, 1450 (9th Cir. 1990), for instance, an

asylum claim was allowed where a conscientious objector faced a terrifying

choice that the military forced upon him: murder others, or be murdered himself,

Zehaiye, 453 F.3d at 1187 (discussing Barraza Rivera). So although the rule the

3 When the BIA considers the issue on remand, Elias-Zacarias will not

preclude Nelson's claims. See, e.g., Orefuela v. Gonzales, 423 F.3d 666, 673 (7th

Cir. 2005) (holding that Elias-Zacarias does not apply to social-group claims).

38



BIA invoked does not fit this case, this case actually fits the exception; Nelson

faces violent beatings and even death i f deported. See supra pp. 30-32.

The BIA also seemed to forget that Nelson fears harm from rival gangs and

vigilante groups, not just the MS-13 gang. This is quite an oversight because the

rule that the Board found so helpful does not logically apply to persecution

inflicted by agents other than (in the Board's mistaken view) the gang. Rival

gangs and vigilante groups do not want to punish Nelson for refusing to join or

for deserting MS-13. Those groups will persecute Nelson precisely because

Nelson did allow himself to be conscripted, i f that word can even be used in this

context.

4. T h e MA s conclusion that Nelson could not show

persecution should be reversed.

The BIA's persecution analysis was wrong all the way around. Based on its

incorrect view on the meaning of persecution, the Board concluded, There is no

evidence in the record that the respondent fears persecution because of his former

membership in a criminal gang in El Salvador. The respondent's fear stems from

his apprehension of the hann that he may experience from the gang because of his

decision to leave the gang. (A.R. at 3.) Divorced of the Board's legal errors, this

passage makes no sense because there is no difference between fear due to

former membership and apprehension of harm due to quitting.

39



Nelson presented ample evidence of the harm he suffered in the past and his

fears of future harm. Because the LI found his testimony credible and the BIA did

not explicitly (or implicit ly) disagree, his testimony must be accepted as true.

Ladha, 215 F.3d at 901. That, together with the wealth of other record evidence,

compels the conclusion that Nelson has been and likely will be persecuted within

the meaning of the INA. See supra pp. 30-32. ( I t should be remembered that even

a ten percent chance of harm would be enough to fulfill Nelson's burden. See

supra p. 28.) This Court should reverse on this ground.

E T h e BIA erred in concluding that no countrywide threat of harmexists

Nelson preserved this issue before the LT in the administrative record at

pages 166, 185-86, and 195. Because the IJ made no adverse finding with respect

to this issue, Nelson was not required (and had no reason) to appeal it to the BIA.

See 8 C.F.R. § 1003.3(b) (providing that the notice of appeal to the BIA must

specifically identify the findings of fact, the conclusions of law, or both, that are

being challenged ). The government did not brief this issue before the IJ or the

BIA. The BIA's decision appears in the administrative record at page 3.

I T h e BIA erroneously saddled Nelson with the burden ofproof on this issue

The BIA's order concluded with a short, unelaborated statement: I n

addition, we cannot find that it has been shown that a nationwide threat of harm

40



exists to the respondent. (A.R. at 3 (citing In re C--- A--- L---, 211. & N. Dec.

754,757 (1997)).) This effectively placed upon Nelson the burden of proving that

he could not relocate internally within El Salvador. The government never raised

the issue in its arguments before the agency, and the IJ never decided it. (See id. at

555-56 (DHS's prehearing statement); id. at 144-47 (government's closing

argument); id. at 58-69 (l l 's decision).)

Although the issues of persecution and internal relocation are legally

distinct, they have one thing in common here: in each, the BIA relied on out-of-

date, invalid legal authority leading to reversible error. The case of In re C--- A---

L--- held that an alien seeking to meet the definition of a refugee must do more

than show a well-founded fear of persecution in a particular place within a country.

He must show that the threat of persecution exists for him country-wide. 211. &

N. Dec. at 757. But after In re C--- A--- L---, the Department of Justice amended

the relevant regulations in several important ways, effectively overruling the case.

See I.N.S. Order No. 1865-97, AG Order No. 2340-2000,65 Fed. Reg. 76121

(Dec. 6,2000). Those amendments control here.

Under the regulations an applicant's ability to relocate to another part of his

native country is not a requirement for asylum eligibility when the applicant

suffered past persecution. 8 C.F.R. § 208.13(b)(3)(ii); see also Melkonian, 320

F.3d at 1069 ( An applicant need not demonstrate a country-wide threat of

41



persecution in order to qualify for asylum. ). In those cases, the asylum officer or

LI may deny asylum if she finds, by a preponderance of the evidence, that [t]he

applicant could avoid future persecution by relocating to another part of the

applicant's country of nationality or, if stateless, another part of the applicant's

country of last habitual residence, and under all the circumstances, it would be

reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i)(B);

§ 208.13(b)(3)(ii). There is a presumption that internal relocation would not be

reasonable, unless the Service establishes by a preponderance of the evidence that,

under all the circumstances, it would be reasonable for the applicant to relocate.

§ 208.13(b)(3)(ii). The regulation places the burden of proof squarely on the

government, not the applicant. Id.; § 208.13(b)(1)(ii) ( In cases in which an

applicant has demonstrated past persecution under paragraph (b)(1) of this section,

the Service shall bear the burden of establishing by a preponderance of the

evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this section. ).

Nelson suffered past persecution. See supra p. 30. For this reason, the

question should not have been (as conceived by the BIA) whether the agency could

find that it has been shown that a nationwide threat of harm exists (A.R. at 3),

but whether the government proved by a preponderance of the evidence that

Nelson could avoid future persecution by relocating to another part of the

applicant's country of nationality. , and under all the circumstances, it would be



reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i)(B). What

the BIA concluded was irrelevant. Because it effectively placed the burden of

proof on Nelson instead of the government, the Board committed reversible error.

Singh, 69 F.3d at 379 (reversing and remanding because the BIA incorrectly

placed the burden of proof on Singh to prove country-wide persecution to be

eligible for asylum ).

2 T h e BIA did not have authority to make this determination

It bears repeating that the goverment never even argued this point, and the

IJ did not address it. (See A.R. at 58-59,144-47,555-56.) The Board had no

business raising it sua sponte. Title 8 C.F.R. § 208.13 clearly defines who can

decide the internal-relocation question, and the BIA is not among them. Instead,

that authority is vested in asylum officers and Hs. § 208.13(b)(1)(i) ( [A]n asylum

officer shall, in the exercise of his or her discretion, refer or deny, or an

immigration judge, in the exercise of his or her discretion, shall deny the asylum

application . ) . The regulation that confers appellate jurisdiction on the BIA is

consistent with this. 8 C.F.R. § 1003.1(d)(3)(iv) (providing that, except for taking

administrative notice of commonly known facts, the Board wil l not engage in

factfinding in the course of deciding appeals. I f further factfinding is needed in

a particular case, the Board may remand the proceeding to the immigration judge

or, as appropriate, to the Service. ). The BIA was the first to consider internal

43



relocation in Nelson's case. Because it had no authority to do so, it committed

reversible error.

3 T h e BIA did not examine the reasonableness of internal

relocation

The BIA should not have even considered this point because of the kind of

persecution in issue, because the government never raised it, and because the IJ did

not decide it. But even i f these errors could be ignored somehow, reversal would

be unavoidable because the BIA failed to consider the reasonableness of internal

relocation. Under the controlling regulation, the fact finder must determine not

just whether there is a countrywide threat of harm but whether it would be

reasonable to require the asylum applicant to relocate. 8 C.F.R.

§ 208.13(a)(1)(i)(B) (past-persecution cases); § 208.13(b)(2)(ii) (future-persecution

cases); Kaiser, 390 F.3d at 659 ( [W]e must first ask whether an applicant could

relocate safely to another part of the applicant's country of origin. I f the evidence

indicates that the applicant could relocate safely, we next ask whether it would be

reasonable to require the applicant to do so. (citations omitted)); Melkonian, 320

F.3d at 1069 ( It is not enough, however, for the IJ to find that applicants could

escape persecution by relocating internally. I t must be reasonable to expect them

to do so. ). Adjudicators cannot make this determination off the cuff. They

should consider, but are not limited to considering,

whether the applicant would face other serious harm in

the place of suggested relocation; any ongoing civil strife

44



within the country; administrative, economic, or judicial

infrastructure; geographical limitations; and social and

cultural constraints, such as age, gender, health, and

social and familial ties. Those factors may, or may not,

be relevant depending on all the circumstances of the

case, and are not necessarily determinative of whether it

would be reasonable for the applicant to relocate.

8 C F R § 208.13(b)(3); Melkonian, 320 F.3d at 1070.

In Melkonian, for example, the agency concluded that the applicant did not

qualify for asylum because he could have relocated to another part of [his native

country] without facing persecution on a statutorily-protected ground. 320 F.3d at

1069. But it did not expressly take into account the reasonableness of that

relocation. Id. at 1070. This Court reversed. Given that Melkonian established

a well-founded fear of future persecution at the hands of Abkhaz Separatists, the IJ

should have inquired whether the evidence presented by Melkonian established

that it is unreasonable to expect him to relocate to another region within Georgia.

Id. After reviewing the reasonableness factors in 8 C.F.R. § 208.13(b)(3), the

Court concluded: We need not recount that evidence in detail here, however, for

it is the job of the BIA to give it careful consideration on remand. Melkonian,

320 F.3d at 1071.

The MA's conclusion here that it could not find a nationwide threat

should be reversed under Melkonian. As in Melkonian, the BIA gave no hint that it

considered any of the reasonableness factors. (A.R. at 3.) The order does not



mention reasonableness at all, much less the following specific considerations:

The threat of harm to Nelson exists throughout the country. See supra p. 17. No

matter where he goes, Nelson's MS-13 tattoo wi ll identify him as a former member

of the gang to his persecutors. See supra pp. 13-14,17-18. Ongoing civil strife

makes it extremely difficult to relocate. As the IJ observed, the picture presented

is one of massive societal failure. (A.R. at 75-76.) E l Salvador's administrative,

economic, and judicial institutions have proven incapable of stopping mara-related

violence. See supra pp. 10-11,17. Moreover, Nelson faces certain social

constraints no matter where he goes in El Salvador. He is poor. H e is also very

young and only reached the third grade while in El Salvador. See supra p. 12.

Because of the tattoo, Nelson will be denied social services. See supra pp. 13-14.

All of these factors show that it would be unreasonable to require Nelson to

relocate within El Salvador.

The BIA committed reversible error under 8 C.F.R. § 208.13(b)(3) and

Ninth Circuit case law.



VI II . CONCLUSION

Petitioner Nelson de Jesus Sanchez respectfully requests that this Court

grant his petition for review and reverse the BIA s rulings that he could not show

persecution and that he failed to show a countrywide threat of harm. The case

should be remanded for further proceedings.

Dated: July 5, 2007.

Jit-c

Isaac Ruiz1132 Tenth Avenue East, Suite B

Seattle, Washington 98102

Telephone: (206) 407-3520

Facsimile: (866) 865-2670

E-mail: [email protected]

ATTO E Y FOR PETITIONER

NELSON DE JESUS SANCHEZ

47



STATEMENT OF RELATED CASES

There are no known related cases pending in this Court



certify that: check appropriate option s))

CERTIFICATE OF COMPLIANCE

1. Pursuant to Fed. R. App. P. 32 a) 7) C) and Ninth Circuit Rule 32-1,

the attached opening / answering / reply / cross-appeal brief is

Proportionately spaced, has a typeface of 14 points or more and

contains 11,273 words opening, answering, and the second and

third briefs filed in cross-appeals must not exceed 14,000

words; reply briefs must not exceed 7,000 words),

or is

0 Monospaced, has 10.5 or fewer characters per inch and contains

w o r d s o r l i n e s o f text opening,answering,and the second and third briefs filed in cross-appeals must not

exceed 14,000 words or 1,300 lines of text; reply briefs must

not exceed 7,000 words or 650 lines of text).

0 2. The attached brief is not subject to the type-volume limitations of Fed.

R. App. P. 32 a) 7) B) because

9 T h i s brief complies with Fed. R. App. P. 32 a) 1)— 7) and is a

principal brief of no more than 30 pages or a reply brief of no

more than 15 pages;

* T h i s brief complies with a page or size-volume limitation

established by separate court order dated a n d is

Dated: July 3, 2007.

0 Proport ionately spaced, has a typeface of 14 points ormore and contains w o r d s ,

or is

Monospaced, has 10.5 or fewer characters per inch and

contains p a g e s or w o r d s orlines of text.

49

Isaac Ruiz



CERTIFICATE OF SERVICE

I certify that on this 5 a y of July 2007, a true and correct copy of

PRINCIPAL BRIEF OF PETITIONER NELSON DE JESUS SANCHEZ was

served, by U.S. Mail, to the following:

COUNSEL FOR ALBERTO R. GONZALES

An Nazarov, Lead Attorney

Office of Immigration LitigationCivil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin StationWashington, D.C. 20044

202) 514-4120

202) 616-9777 FAX)

e-mail: [email protected]

Isaac Ruiz

50





A D e c i s i o n of the Immigration Judge

DENDUM

51



UNITED STATES DEPARTMENT OF JUST ICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIG RATION COURT

N or th we st D e t e n t i o n F a c i l i t yTacoma, Wash in g t on

F i l e N o . : A 9 9 5 3 0 5 8 8 S e p t e m b e r 8 , 2 0 0 6

In t h e M a t t e r o f ))

NELSON DE JESUS SANCHEZ ) I N REMOVAL PROCEEDINGS 7,..

) v (:: : :, . )yl : - .Respondent ) • : : ,

,

CHARGE: S e c t i o n 2 1 2( a) ( ) ( A ) ( i ) - p r e s e n t w i t h o u t h a v i - 4 7 2 2been a d m i t t e d o r p a r o l e d .

APPLICATIONS: A s y l u m ;

W i t h h o l d i n g ; a n d c -7 - 4 1

W i t h h o l d i n g u n d e r t h e C o n v en t i on a g a i n s t T o r t u r e .

ON BEHALF OF RESPONDENT: O N BEHALF OF OHS:

Denise F a r r N o r a NormanDav id Wer b l o w A s s i s t a n t C h i e f C o u n s e l

ORAL DECISION OF THE IMMIGRATION JUDGE

The r e sp o n de n t i s a 1 7 - y e a r - o l d ma le , n a t i v e a n d c i t i z e n o f

E l S a l v a d o r , t o w hom w as i s s u e d a N o t i c e t o A p pe a r o n A p r i l 3 0 ,

2006. T h e r es p on d en t a d m i t t e d t h e a l l e g a t i o n s i n t h e N o t i c e t o

A ppe ar a n d c on ce de d t h e r e m o v a b i l i t y o n t h e c h a r g e s e t f o r t h

above. A c c o r d i n g l y , t h e c h a r ge was s u s t a i n e d . S e e S e c t i on

2 4 0 (c ) (1 ) (A ) o f t h e A c t . S e e a l s o Woodby v . I N S , 3 8 5 U . S. 27 6

(1966). T h e i s s u e b e f o r e t h e C o u r t c on ce rn s h i s a p p l i c a t i o n s f o r

r e l i e f f r o m r e mo va l .

1

51-1

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SUMMARY OF THE EVIDENCE PRESENTED

E x h i b i t 1 i s a c op y o f t h e N o t i c e t o A pp ea r.

E x h i b i t 2 i s a Fo rm 1- 2 13 , Re c or d o f D e p or t a b l e A l i e n .

E x h i b i t 3 i s t h e r e s p on d e n t s a p p l i c a t i o n f o r a s y l um , F o rm

1-589.

E x h i b i t 4 i s t h e D ep ar tm en t o f Ho me la nd S e c u r i t y s p r e -

h e a r i n g s t a t e me n t , i n c l u d i n g T a bs A a n d B , t h e Human R i g h t s

R e po r t a n d W o r l d F a c t b o o k .

E x h i b i t 5 i s t h e r e s p o nd e n t s p r e - h e a r i n g s t a te m e nt ,

i n c l u d i n g a l a r g e numb er o f E x h i b i t s , t o t a l i n g some 3 5 5 p a ge s .

Pages 1 1 t h r o u g h 2 0 w er e a d m i t t e d f o r i d e n t i f i c a t i o n o n l y b u t

were n o t a d m i t t e d a nd co n s id e r ed , be c a us e o f t h e l a c k o f

s i g n at u r e b y t h e p e r s on m ak in g t h e s t a t e m e n t , t h e r e s p o n d e n t s

m o t he r .

E x h i b i t 6 a r e f i v e o r s i x ph ot o gr ap hs , i t l o o k s l i k e s i z e 8

and a h a l f b y 1 1 , s h o w in g t h e r e s p o n d en t s t a t t o o a n d t h e s c a r o n

h is f a ce an d h i s l e f t a rm.

The r es po nd en t a l s o t e s t i f i e d i n s u p p o r t o f h i s c l a i m , b u t

he w a s t h e o n l y w i t n e s s .

FINDINGS OF FACT

The r es po nd en t i s a 1 7 - y e a r - o l d b o y, a n a t i v e a n d c i t i z e n o f

E l S a l v a do r . E l S a l va d o r i s o n e o f t h e m o s t d an ge ro us c o u n t r i e s

i n t h e n o r t h e r n h e m i s p h er e o f t h e w o r l d . I t i s a l s o a v e r y po o r

c o un t r y. T h e r es po nd en t , a t t h e a ge o f 1 4 , a n d a t t h e i n s t a n ce

o r i n s i s t e n c e , en co ur ag em en t o f h i s c o u s i n , j o i n e d a ga n g c a l l e d

A 9 9 5 3 0 5 8 8 2 S e p t e m b e r 8 , 2 0 0 6

51-2



MS-13 i n E l S a l va d o r. A f t e r a p pr o x i m at e ly on e y e a r i n t h a t g an g,

he d e c i d e d t h a t h e ha d made a mi s t a k e a n d t h a t h e d i d n o t w a n t t o

be i n t h e ga ng a nd h e l e f t t h e ga ng . U p o n j o i n i n g t h e ga ng , t h e

r es pon de nt t e s t i f i e d t h a t h e w as b ea te n b y t h r e e o t h e r g an g

members w i t h t h e i r f i s t s f o r 1 3 s e c on ds . T h a t w as p a r t o f t h e

i n i t i a t i o n r i t u a l o f j o i n i n g t h e ga n g .

A f t e r t h e r e s po n de n t l e f t t h e g an g, h e w a s a g a i n b e a te n b y

gang membe rs. H e w as d i s c o v e r e d a nd b e a t en b y , I b e l i e v e , i t w as

t hr ee o r f o u r g an g members w i t h i n a f e w d ay s o f h i s l e a v i n g t h e

gang. S u b s e q u e n t l y , w i t h i n a p p r ox i ma t e l y 30 d ay s l a t e r , t h e

r e sp o nd e nt w a s a g a i n d i s c o v e r e d b y g a n g m em be rs a n d w a s a g a i n

b ea ten . T h i s t i m e , h e w as k n oc ke d t o t h e g r o u n d , w h e r e h e

i n j u r ed h i s c he ek o n t h e l e f t s i d e , u p c l o s e t o t h e e y e a n d a l s o

h is l e f t e l b ow o n t h e i n c i d e n t . B e t h i n j u r i e s l e f t s c a r s .

W hi le t h e r e sp o n de n t w as a member o f t h a t g a n g f o r o n e y e a r

p e r i od , h e w as d ru g g ed b y f e l l o w g an g members a n d t h e n t a t t o o e d

w i th t h e MS-13 t a t t o o o n h i s s h o u l d e r . H e t e s t i f i e d t h a t h e d i d

n ot w an t a t a t t o o a nd t h a t i t w as p l ac e d a g a i n s t h i s w i l l .

The r e s p o n d e n t w as un h a pp y w i t h t h e m e mb e rs h ip i n t h e g a n g

because h e s a i d t h e g an g r e q u i r e d h im t o d o b a d t h i n g s t h a t h e

d i d n o t w an t t o d o . H e g av e, a s e xam p le s, t h a t h e a nd f e l l o w

gang me mbers b r o k e i n t o a h o u s e a n d s t o l e v a l u a b l e s a n d t h e n g a v e

t he p ro ce ed s o f t h a t t h e f t t o t h e b o s s . H e g av e a s a n o t h e r

e xa mpl e w h e r e h e t o o k m on ey f r o m a n o t h e r p e r s o n , p r e s u m a b l y a

b oy, a n d g a v e t h a t mo ne y t o t h e b o s s .

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By t a k i n g t h e money f r o m t h e y o u n g s t e r , t h e r e s po n d en t

became t h e o b j e c t o f r e t r i b u t i o n b y t h a t c h i l d ' s f a t h e r , whom t h e

r es po nd en t a n d h i s a t t o r n e y s i n t h e h e a r i n g t o d a y h av e c a l l e d a

v i g i l a n t e . T h e r e sp on de nt t e s t i f i e d t h a t t h i s man t h r e a t e n e d t o

k i l l h im .

STATEMENT OF THE LAW

I n o r d e r t o b e e l i g i b l e f o r a sy lu m u nd e r S e c t i o n 2 08 o f t h e

A ct , t h e r e s po n de n t m us t s ho w t h a t h e i s u n a b l e o r u n w i l l i n g t o

r e t u rn t o h i s c o u n t r y b ec au se o f p e r s e c u t i o n o r a w e l l - f o u n d e d

f ea r o f p e r s e cu t io n o n a c c ou n t o f r a ce , r e l i g i o n , n a t i o n a l i t y ,

membership i n a p a r t i c u l a r s o c i a l g ro up , o r p o l i t i c a l o p i n i o n .

See S e c t i o n 1 0 1( a ) ( 4 2 ) ( A ) o f t h e I m m i g ra t i o n a n d N a t i o n a l i t y A c t .

See a l s o I N S v . C a r do z a -F o n se c a , 4 8 0 U . S . 4 2 1 ( 1 9 8 7 ) .

I n M a t t e r o f M o g ha r ra b i, 1 9 I & N D ec . 4 3 9 ( B I A 19 87 ) t h e

B oa rd o f I m m i g r a t i o n A p p ea l s a d o p t e d a r ea s o n a b l e ne s s s t a n d a r d t o

d et er mi ne w h e t he r o n e ' s f e a r o f p e r s e c u t i o n i s w e l l - f o u n d e d .

I n o r d e r t o b e e l i g i b l e f o r w i t h h o l d i ng o f r e mo va l t o a n y

c ou n tr y, t h e r e sp o n de n t m us t s ho w t h a t h i s l i f e o r f r ee do m w o ul d

be t h r e a t e n e d i n s u ch c o u n t r y o n a c co u nt o f r a c e , r e l i g i o n ,

n a t i o n a l i t y , m em b er sh ip i n a p a r t i c u l a r s o c i a l g r o up , o r

p o l i t i c a l o p i n i o n . S e e S e c t i o n 2 4 1 ( b ) ( 3 ) ( A ) .

Th is s t a t u t o r y p r o v i s i o n r e q u i r e s h i m t o d em on st ra te a

c l e a r p r o b a b i l i t y o f p e r s ec u t i o n o n o n e o f t h e f i v e g r o u nd s i n

t he A c t . I N S v . S t e v i e , 4 6 7 U . S . 4 0 7 ( 19 84 ) . T h e r e sp on de nt

must d em on st ra te t h a t ' i t i s mo re l i k e l y t h a n n o t t h a t h e w o u l d

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be s u b j e c t t o p e r s e cu t i o n i f r e t u r n e d t o h i s n a t i v e l a n d . T h i s

i s a m ore s t r i n g e n t s t a nd a r d t h e n t h a t r e q u i r e d f o r a s y l um .

I n o r d e r t o b e e l i g i b l e f o r A r t i c l e 3 o f t h e C on ve nt io n

a g a i ns t To r t u r e , t h e r e s po n de n t m u st e s t a b l i s h t h a t h e wo u l d b e

s ub je c t t o t o r t u r e , b y o r a t t h e i n s t i g a t i o n o f o r w i t h t h e

c on se nt o r ac qu ie sc en ce o f a p u b l i c o f f i c i a l o r p e rs o n a c t i n g i n

an o f f i c i a l c a p a c i t y . 8 C . F. R . S e c t i o n 1 2 08 . 18 ( a ) ,

ANALYSIS AND CONCLUSIONS

The f i r s t i s s u e f o r t h e C o u r t t o a d dr e ss i s t h a t o f t h e

r es po nd en t ' s c r e d i b i l i t y . T h e C o u r t a c ce p ts t h e r e s po n d en t ' s

t e st i mo n y as c r e d i b l e .

The r e s p o nd e n t c l a i m s t h a t h e h a s p r e v i o u s l y b e e n p e r s e c u t e d

as a member o f a p a r t i c u l a r s o c i a l g r o up i n E l S a l v a d o r . H e a l s o

c la im s t h a t h e ha s a w e l l - f ou n d ed f e a r o f f u t u r e p e r s e c u t i o n

s h ou l d h e r e t u r n , b o t h , o n t h e b a s i s o f h i s me mb er sh ip i n a

p a r t i c u l a r s o c i a l g r ou p a nd p o l i t i c a l o p i n i o n .

Respondent c l a i m s t h a t h e f e a r s t h a t h e w i l l b e p e r se c u te d

by t h e members o f h i s f o r m e r g an g , t h a t b e i n g MS -1 3, b e c a u s e h e

l e f t t h a t ga ng a nd s uc h q u i t t i n g o f a ga ng i s n o t p e r m i t t e d b y

t he g a ng . T h e r e s po n d e nt h a s s u b m i t t e d s u b s t a n t i a l am ou nt o f

backg round i n f o r m a t i o n a nd t h i s c l a i m i s c o n s i s t e n t w i t h t h a t

i n f o r m a t i o n .

The r e s p o n d e n t p o i n t e d t o a n um be r o f i n s t a n c e s w h e r e h e h a d

been t h e v i c t i m o f v i o l e nc e i n c o nn e c t i on w i t h t h e g a ng s . F i r s t ,

he w as be a t en a t t h e t i m e t h a t h e j o i n e d t h e g an g, a s p a r t o f a n

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i n i t i a t i o n r i t u a l . N e x t , h e was b ea te n when h e l e f t t h e ga n g a s

a f o r m o f p u n is h m en t o r b e ca us e t h a t i s w h a t t h e y d o wh en someone

q u i t s a g a ng . T h i r d , h e w as b e at e n, a p p r o x i m a t e l y o ne mo nt h

a f t e r h e l e f t t h e ga ng , f o r t h e same r ea so n , t h a t b e i n g t h a t h e

a tt em pt e d o r was t r y i n g t o l e av e t h e g an g. H e a l s o t e s t i f i e d

t h a t h e wa s e s s e n t i a l l y a s s a u l t e d b y t h e g an g w h i l e h e wa s a

member b y b e i n g d r u g g e d , h a v i n g d r u g s p l a c e d i n a C o c a - C o l a a n d

t he n h a v i n g a t a t t o o e m bl az on ed o n h i s s h o u l d e r w h i l e h e wa s

under t h e e f f e c t s o f t h e d r u g .

The r es po nd en t t e s t i f i e d t h a t h e was o n l y a r r e s t e d o ne t i m e

and t h a t t i m e w as w he n h e wa s a t a d i s c o w i t h f e l l o w g a ng members•

and some k i n d o f d i s t u r b an c e b r ok e o u t . H e t e s t i f i e d t h a t h e was

d e ta i ne d b y p o l i c e f o r a p p r o x i m at e l y t h r e e da y s b u t t h a t h e w as

n ot a bu s ed o r h ar me d b y t h e p o l i c e .

The G o ve r nm en t a r g u e s t h a t a g a n g me mb er o r f o r m e r g a n g

members a r e n o t p a r t i c u l a r s o c i a l g r o u ps be ca us e t h e y h a ve n o t

been s o d e f i n e d b y t h e B o a rd o f I m m i g r a t i o n A p p ea l s o r o t h e r

j u d i c i a l a u t h o r i t y . T h e Government i s c o r r e c t , o r a t l e a s t t h a t

t h i s C o u r t i s n o t aw ar e

d e p i c t e d o r c a t e g o r i z e d

r es po nd en t i n v i t e s t h i s

r e s po n d en t s f a v o r .

The Cour t

o f a n y b i n d i n g p r e c ed e nt t h a t h a s

gangs a s a p a r t i c u l a r s o c i a l g r o up . T h e

C ou rt t o m ake s u ch a r u l i n g i n t h e

g r e a t l y t r o u b l e d b y t h e c i r c um s ta n c es t h a t a r e

d e p i c t e d i n t h e b a c kg r ou n d m a t e r i a l s u b m i t t e d b y t h e r e s p on d e n t

and b y t h e r e s p o nd e n t s t es t i mo n y e h e p i c t u r e p r e s e n t e d h er e

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mass ive s o c i e t a l f a i l u r e . H o w e v e r , t h e C o u r t i s n o t s a t i s f i e d

4Se.-t h a t t h a t s o c i e t a l 4 e r i n E l S a l va do r i s p r o p e r l y a d d re ss e d

under U . S . a s y l u m l a w . A c c o r d i n g l y , t h e C o u r t d e c l i n e s t o f i n d

t h a t t h e r es p o nd e n t h as e s t a b l i s h e d t h i s a s a p a r t i c u l a r s o c i a l

g r oup .

N ex t, t h e C o u r t c o nc l u d es t h a t t h e h a r m t h a t t h e r e s po n de n t

has p r e v i o u s l y s u f f e r e d i s n o t p e r s e c u t i o n u n d er U .S . a sy l u m la w s

and i t i s n o t b ec au se o f t h e r e s p o n d e n t s me mb er sh ip i n a

p a r t i c u l a r s o c i a l g ro up :— Arri—ttTn-r--T.e.-7/_ rg.. w he th e r t h a t s o c i a l

g ro up b e d e f i n e d a s g a n g me mb er s o r f o r m e r g a n g me mb er s.

The C o u r t n o t e s t h a t t h e b a c kg r ou n d e v i d e n ce s u b m i t t e d b y

the r e sp o nd e nt i n d i c a t e s t h a t E l S a l v a d o r i s o n e o f t h e m os t

dangerous p l a c e s i n t h e w o r l d t h a t on e m i g h t b e . S o m e o f t h e

s t a t i s t i c s i n t h e r e i n d i c a t e t h a t t h e mu rd er r a t e i n E l S a l v a do r

some s e v en o r e i g h t t i m e s t h a t o f t h e m u r d er r a t e i n New Yo r k

C i t y. T h e r e i s n o q u e s t i o n , i t i s a v e r y , v e r y da n ge r o us p l a ce

f o r p eo p l e t o b e N e i t h e r i s t h e r e an y q u e s t i o n t h a t g a n g s a r e a

v er y s e r i o u s s o c i a l p r o b l em i n E l S a l v ad o r.

The C o u r t w o u l d n o t e t h a t t h e r e s p o n d e n t s b e a t i n g s w er e n o t

l i m i t e d t o a f t e r t h e t i m e t h a t h e h ad q u i t t h e ga n g. A p p a r e n t l y ,

th e i n i t i a l r i g h t i n c l u d e s b e a t i n g s . T h e r e sp on de n t was a l s o

p h y s i c a l l y ab u se d w h i l e h e wa s a member o f t h e g an g , t h a t b e i n g

t h a t h e w as dr ug g ed an d t h e n t a t t o o e d . A n d t h e n t h e r e s p on d en t

was b e a t e n a f t e r h e a t t em p t ed t o l e av e t h e g an g. S o , i t i s

o bv io us t h a t t h e r e sp e n de n t w as a bu se d, b u t i t i s n o t o b v i o us

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t h a t h e w a s a bu s ed be ca us e o f a p r o t e c t e d g r o u n d .

The r es po nd en t wa s n o t a b l e t o i d e n t i f y a p o l i t i c a l o p i n i o n

t h a t h e h e l d , e i t h e r w h i l e h e w as a c i t i z e n o f E l S a l v ad o r o r

s i n c e . H e d i d t e s t i f y t h a t h e b el on g ed t o a p o l i t i c a l p a r t y b u t

t h e s o l e p o l i t i c a l a c t i v i t i e s i n w h i ch he c l a i m e d t o h a ve en gag ed

was t o p r o v i d e w a t e r t o p a r t i c i p a n t s a t g a t h e r i n g s o f t h e

p o l i t i c a l p a r t y .

The r es p on de n t s t a t e d n o p o l i t i c a l o p i n i o n , s t a t e d n o

p o l i t i c a l ag e n da a n d i d e n t i f i e d n o o t h e r p o l i t i c a l a c t i v i t i e s .

The C o u r t a l s o c o nc l ud e s t h a t t h e r e s p o n d e n t ' s f e a r o f t h e

v i g i l a n t e , t h a t b e i n g t h e f a t h e r o f on e o f h i s v i c t i m s , i s n o t

p e r se cu t i o n e i t h e r . T h e C o u r t w ou ld n o t e t h a t t h e r e a r e a c o u p l e

o f b ac kg ro un d c as es t h a t i t w i l l c i t e a t t h e momen t .

One, M a t t e r o f R - 0 - , 2 0 1 0 . De c. 4 5 5 ( B I A 1 9 9 2 ) , i n v o l v e d a

s i t u a t i o n w he r e t h e r e was f o r c e d r e c r u i t m e n t i n t o t h e m i l i t a r y

and t h e B o a rd h e l d t h a t s u c h f o r c e d r e c r u i t m e n t w as n o t

p er se cu t i on . W h i l e t h i s i s n o t d i r e c t l y on p o i n t w i t h t h e

s i t u a t i o n t h a t we f a c e h e r e , i t i s n o t a l l t h a t f a r o f f b e ca u s e

t he r es p on d en t h e r e c l a i m s t o h a v e b ee n r e c r u i t e d i n t o t h e g an g

b u t t h e a mo un t o f f o r c e see ms t o h a ve b e en m i n i m a l a n d i t w as

b a s i c a l l y en co ur ag em en t b y a c o u s i n .

Much o f t h e t e s t i m o n y a n d much o f t h e b a c k g r o un d m a t e r i a l

r e l a t e s t o c r i m e s c o mm i t te d i n E l S a l v a d o r a mo ng s t g a ng s a n d

amongst t h e g e n e r a l p o p u l a t i o n , p a r t i c u l a r l y t h e e x t r a o r d i n a r i l y

h ig h m ur de r r a t e a n d t h e r a t e o f o t h e r c r i m e s .

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I n e f f e c t , t h e a b us e a b o u t w h i c h t h e r e s p o nd e n t h as

co mp l ai ne d t o da y w ou l d b a s i c a l l y q u a l i f y a s b e i n g t h e v i c t i m s o f

t he c r i m e . E a c h o n e o f t h e b e a t i n gs w ou l d a pp ea r t o t h e C o u r t t o

be a c r i m i n a l a s s a u l t . L i k e w i s e , i t w ou ld b e t h e f a c t t h a t t h e

r e sp o nd e nt h a v i n g b e e n dr u g g e d a n d t h e n t a t t o o e d .

The B o ar d o f I m m i g r a t i o n A p p e al s h a s h e l d t h a t c r i m i n a l

o f f e ns e s, e v e n v e r y s e r i o u s c r i m i n a l o f f e n s e s , s u c h a s k i d n a p i n g ,

does n o t a mo un t t o p e r s e c u t i o n . S e e M a t t e r o f V - T- S , 2 1 I N

D e c . 7 9 2 ( B I A 1 9 9 7 ) .

A c c o rd i n g l y, t h e C o u r t co n c l u de s t h a t t h e r e sp o n de n t h a s n o t

e s t a b l i s h ed e i t h e r t h a t h e ha s p r e v i o u s l y b ee n p e rs e cu t ed o r t h a t

he h a s a w e l l - f o u n d e d f e a r o f p e r s e c u t i o n o n a p r o t e c t e d g r o u nd ,

s ho ul d h e b e r e t u r n e d t o E l S a l v a do r . A c c o r d i n g l y , h i s

a p p l i c a t i o n f o r a sy lu m i s d e n i ed .

The b ur de n o f p r o o f t o e s t a b l i s h e l i g i b i l i t y f o r w i t h h o l d i n g

under t h e s t a t u t e i s h i g h e r t h a n t h a t r e q u i r e d t o e s t a b l i s h

e l i g i b i l i t y f o r a sy lu m. F o r a sy l um , a w e l l - f o un d ed f e a r i s a l l

t h a t i s r e q u i r e d , b u t f o r w i t h h o l d i n g , t h e r es p on d en t m us t s ho w

t h a t i t i s m or e l i k e l y t h a n n o t .

T hi s r e s p o n d e n t r e l i e s u p o n t h e same t e s t i m o n y a n d t h e sa me

e v i den ce a n d t h e same e v e n t s t o e s t a b l i s h h i s e l i g i b i l i t y f o r

w i t h h o l d i n g a s h e r e l i e d u po n i n s u p p or t o f h i s a p p l i c a t i o n f o r

asy lum.

As t h e C o u r t c on c l ud ed t h a t h i s e v i de n ce w as i n s u f f i c i e n t t o

meet t h e l o w e r s ta n d ar d , t h e C o u r t l i k e w i s e c o n c l u de s t h a t h i s

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e v i den ce i s i n s u f f i c i e n t t o m ee t t h e s t a n da r d f o r w i t h h o l d i n g o f

r emova l . A c c o r d i n g l y , t h a t a p p l i c a t i o n w i l l a l s o be d e n i e d .

Wi th r e s p e c t t o w i t h h o l d i n g o f r e m ov a l u n d e r t h e C o n ve n t i o n

a g ai n s t To r t u r e , t h e C o u r t c o nc l ud e s t h a t t h e r e sp o n de n t h a s n o t

p r e v i o u s l y b ee n t o r t u r e d a nd t h a t i n h i s t e s t i m o n y , h e d oe s n o t

f e a r p h y s i c a l ha rm , m uc h l e s s t o r t u r e , a t t h e h a nd s o f t h e p o l i c e

o r t h e g ov er nm en t o f E l S a l v a d o r . T h e r e s po n d e nt a c t u a l l y

t e s t i f i e d t h a t h e w ou l d ex p e c t t h e p o l i c e t o l e a v e h i m a l o n e

u n le s s h e c o m m i t t e d some s o r t o f o f f e n s e .

A lt ho ug h t h e C o u r t i s s y m p at h e t ic t o t h e r e s po n d en t

c i r cu ms ta nc es , t h e C o u r t wo u l d annou nce f o r t h e p a r t i e s , t h i s i s

n ot a d i s c r e t i o n a r y d e t er m i n a t i on . T h i s i s n o t a n o p t i o n f o r t h e

C ou rt t o a c t l i k e G od a nd do w h a t s r i g h t a n d e x te n ds a h e l p i n g

hand when i t f i n d s t h a t t h e l a w do e s n o t p e r m i t i t . T h e C o u r t

has n o b a s i s f o r c o n c l u d i n g t h a t t h e r e w o u ld b e a n y a dv e rs e

e x er c is e o f d i s c r e t i o n . T h i s i s p u r e l y a m a t t e r o f l e g a l

a n a l y s i s a n d t h e C o u r t c o nc l ud e s t h a t t h e r e s p o nd e n t d oe s n o t

q u a l i f y

A c co r d i n g l y, t h e f o l l o w i n g o r d e r s w i l l b e e n t e r e d ;

ORDER

The r e s p o n d e n t s a p p l i c a t i o n s f o r a s y l u m, w i t h h o l d i n g o

r em ov al , a n d p r o t e c t i o n u n d e r t h e C o nv e n t i o n a g a i n s t T o r t u r e a r e

d e n i e d .

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FURTHER ORDER

The r e s po n d e nt i s o r d e r e d re mo ve d f r o m t h e U n i t e d S t a t e s t o

E l S a l v a d o r on t h e c h ar g e c o n t a i ne d i n t h e N o t i c e t o A p p ea r.

W. WAYNE TO GN ERU.S. I q r a t i o n J

A 9 9 33.0 5 8 8 1 1 S e p t e m b e r 8 2 0 0 6

51-11

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CERTIFICATE PAGE

h er eby c e r t i f y t h a t t h e a t t a c h e d p r o c e ed i ng b e f o r e

JUDGE WAYNE STOGNER,• in t h e m a t t e r o f :

NELSON DE JESUS SANCHEZ

A 99 530 5 88

S e a t t l e , W a s h i n g t o n

i s a n a c c u r a t e , v e r b a t i m t r a n s c r i p t o f t h e c a s s e t t e t a p e a s

p r ov i de d b y t h e E x e c u t i v e O f f i c e f o r I m m i g r a t i o n R ev ie w a nd t h a t

t h i s i s t h e o r i g i n a l t r a n s c r i p t t h e r e o f f o r t h e f i l e o f t h e

E x ec u t i v e O f f i c e f o r I m m i g r a t i o n R e vi ew.

Susan A i e l l o , T r a n s

Free S t a t e R e p o r t i n g , I n c .1378 C ap e S t . C l a i r e R o adA n n ap o l is , M a r y l a n d 2 1 4 0 1 301) 261 - 19 02

O c to b e r 1 8 , 2 0 0 6

c o m p l e t io n d a t e )

By s u b m i s s i o n o f t h i s CERTIFICATE PAGE, t h e C o n t r a c t o r c e r t i f i e st h a t a S o n y D EC /T- 14 7 , 4 - c h a n n e l t r a n s c r i b e r o r e q u i v a l e n t , a sd e s c r i be d i n S e c t i o n C, p a r a g r a ph C . 3 . 3 . 2 o f t h e c o n t r a c t , w a s u se dt o t r a n s c r i b e t h e R e c o r d o f P r oc e e d i n g s h o w n i n t h e a b o v ep a r a g r a p h .



B D e c i s i o n of the Board of Immigration Appeals



epartment of JusticeExecutive Office for Immigration Review

Church, Vi r nia 22041

File: A 9 9 530 588 - Tacoma

In re: NELSON DE JESUS SANCHEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Denise Farr, Esquire

ON BEHALF OF MIS: Thomas Molloy, Assistant Chief Counsel

ORDER:

PER U M I A K The respondent, a citizen of El Salvador, has appealed the Immigration Judge'sdecision to deny his application for asylum and withholding of removal under sections 208 and

241(b)(3) of the Inunigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), and protectionunder Article 3 of the United Nations Convention Against Torture ( Convention ). The appeal willbe dismissed.

The facts o f this case are reflected in the limnigration Judge's decision. W e note thatmembership in a gang is not a protected wound, unless it can be established that it constitutes

membership in a particular social group. However, a membership in a particular social group meansmembership in a group of people all of whom share a common, immutable characteristic, that is, acharacteristic that is either beyond the power of the individual members to change, or that is so

fundamental to their identities or consciences that it should not be required to be changed. Matter

of Kasinga, 21 I&N Dec. 357 (WA 1996). S inc e gang membership is not an immutablecharacteristic, the respondent failed to establish he was a member of a particular social group. On

appeal, the respondent argues that as a former gang member, he is a member of a particular socialgroup.

Even if former membership in a gang constitutes a particular social group, we cannot find that

the respondent was persecuted or has a well-founded fear of persecution because of his formeraffiliation. Notwithstanding the brutal treatment the respondent received from gang members during

his gang initiation and membership, we cannot find that such was intended as a means o f punishinghim because he was a gang member. Rather, the purpose of the mistreatment appears to be designed

as a method of imposing discipline within the gang. In addition, we agree with the ImmigrationJudge that the respondent did not suffer persecution or establish a well-founded fear of persecution

52- 1

Decision of the Board of Immigration Appeals

Date:

00000



A99 .530 588

on account of his decision to leave the gang.

In Matter of Maldonado-Cruz, 19 l N Dec. 509 (BIA 1988), revd, 883 F.2d 788 (9th Cir.1989), we held that the threat of harm to a deserter from a guerrilla organization is part of the

military policy of that group, inherent in the nature of the organization, and a tool of discipline. Thethreat of harm to a deserter is not an act of persecution. Id. See also Zehalye v, Gonzales,453 F.3d

1182 (9th Cir. 2006) (forced conscription or punishment for evasion of military duty generally doesnot constitute persecution). We find this principle applicable to the instant case. There is noevidence in the record that the respondent fears persecution because of his former membership in

a criminal gang in El Salvador. The respondent's fear stems from his apprehension of the harm that

he may experience from the gang because of his decision to leave the gang. Such is not a basis fora grant of asylum in the United States. Zehalye v. Gonzales, supra. In addition, we cannot find thatit has been shown that a nationwide threat of harm exists to the respondent. Matter of C-A-L, 211

N Dec. 754, 757 (BIA 1997). The Immigration Judge's decision is affirmed.

Accordingly, the appeal is dismissed.

FORT BOARD

2

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C 8 C F R § 208 13

53



Department of Homeland Security

(c) Asylum officers and immigrationjudges may request specific commentsfrom the Department of State regard-ing indi vidual cases or types o f claimsunder consideration, o r such ot her i n-forma tion as they deem appropriate.

(d) Any such comments received pur-suant to paragraphs (b) and (c) of thisse ct io n s h a l l b e m a d e p a r t o f t h erecord. Unless the comment s are classi-

f ied under the app l icab le Execut iveOrder, th e ap plicant shall be providedan opportunity to review and respond

to such comments prio r t o the issuanceof any decision to deny the application.

[62 F R 10337, Mar. 6, 1997, as am ended at 64FR 8488, Feb. 19, 19991

§208.12 Relia nce on informa tion com-piled b y othe r sources.

(a) In deciding an asylum appl ica-t ion, or in deciding whether the al ienhas a credible fear of persecution ortor tur e pursuant to §208.30 of this part,or a reasonable fear of persecution ortor tur e pursuant to §208.31, the asylumoff icer may r ely o n mater ia l providedby the Department of State, the Officeof Internat ional Affairs , other Serv iceoffices, or othe r credible sources, suchas internat ional organizations, pri vate

vo luntary agenc ies , ne ws organ iza-tions, or academic institutions.

(b) Nothing in this part shall be con-strued to ent i t le the appl icant to con-duc t d i s cov e ry d i r ec ted towar d th erecords, officers, agents, o r employeesof the Service, the Department of Jus-tice, or the Department of State. Per-sons may continue to seek documentsavailable through a Freedom of Infor-mation Act (FOIA) request pursuant to8 CFR part 103.

162 FR 10337, Mar. 6, 1997, as amended at 64FR 8488, Feb. 19, 1999; 65 F R 76133, Dec. 6,20001

§208.13 E s tab l i s hing a s y l um e l i g i -bil i ty.

(a) Burden o f proof Th e burden o fproof is on the applicant fo r asylum toestablish th at he or she is a refugee asdefined in section 101(a) (V) o f the Act .The testimony of the applicant, if cred-ib le, may be suff ic ient to sustain theburden of proof witho ut corroboration.The fact t hat the appl icant previouslyestablished a credible fear of persecu-ti on fo r purposes o f section 235(b) (1) (B)

149

53-1

§208.13

of the Act does not relieve the alien of

the addit ional burden o f establ ishingeligibil i ty for asylum.

(b) E l i g ibi l i t y. T h e app l i c an t m a yqualify as a refugee either because heor she has suffered past persecuti on o rbecause he or she has a well-founded

fear of future persecution.(1) Pa st persecution. A n app l ic ant

shall be found to be a refugee on thebasis of past persecution i f the appli -cant can establ ish th at he o r she has

suffered persecution in the past i n t he

applicant s country of n ation ality or, ifstateless, in his or her country of lasthabit ual residence, on account of race,religion, nationality, membership in apa rt i cu lar s ocia l g r oup , o r po l i t i c a lopinion, and is unable or unwi l l ing t oreturn to, or avail himsel f or herself of

the protect ion of, that country owingto such persecution. A n applicant whohas been found t o have es tab l ished

such past persecution shall also be pre-sumed to have a well-founded fear of

persecution on the basis of the orig inalclaim. That presumption may be rebut-ted if an asylum officer or i mmigrat ionjudge makes one o f the f ind ings de-scr ibed i n paragraph (b)(1)( i ) o f th i s

section. I f the applicant s fear of futurepersecution is unre la ted t o th e pa s tpersecution, the appl icant bears theburden of establishing that the fear iswell-founded.

(i) Discretionary referral or denial. Ex-cept as provided in paragra ph (b) (1) (iii)of this section, an asylum officer shall,in the exercise of his or her discretion,

refer or deny, or an immigration judge,in the exercise of his or her discretion,shall deny the asylum application of analien found to be a refugee on the basisof past persecution i f any of the fo l-lowing is found b y a preponderance o fthe evidence:

(A) The re has been a fundamentalchange in circumstances such that theapplicant no longer has a well-foundedfear o f persecution in th e appl icant scountry of nat ional i ty o r , i f s tateless,in the applicant s countr y of last habit-ual residence, on account of race, reli-

gion, nationality, membership in a par-t icular social group, or pol i t i cal opin-ion; or

(B) The applicant could avoid futurepersecution by relocat ing to another



§208.13

part o f the appl icant s coun try of na-t ion al i t y or , i f s tateless, another par tof the applicant s country of last habit-ua l res idence, and under a l l the c i r -cumstances, i t woul d be reasonable to

expect the applicant to do so.(ii) Burden of proof. In cases in which

an app l icant h as demonstra ted pas tpersecution under paragraph (b )(1) o fthis section, the Service shall bear the

burden of establishing by a preponder-ance of the evidence the requirementsof paragraphs (b) (1)(i) (A) o r (B) o f thi s

section.(iii) Grant in the absence of well-found-

ed fear of persecution. An applicant de-scr ibed i n paragraph (b)(1)( i ) o f th i ssection who is not barred from a gra ntof asylum under paragraph (c) of thissection, may be granted asylum, in theexercise of the decision-maker s discre-tion, if:

(A) The applica nt has demonstratedcompell ing reasons fo r being unwi ll in gor unable to return to the count ry aris-ing out of the severity of the past per-secution; or

(B) Th e a pp l icant ha s es tab lishedthat there is a reasonable possibi l i tythat he or she may suffer other serious

harm upon removal to tha t country.(2) Well-founded fear of persecution. (i )

An app licant has a well-founded fear ofpersecution if:

(A) The applicant has a fear of perse-cution in his or her country of nation-al it y or, i f stateless, in his o r her coun-try of last habitual res idence, on ac-c ount o f r ac e, r e l i g ion , na t i ona l i t y ,m ember sh ip i n a pa r t i c u l a r s oc ia lgroup, or political opinion;

(B) There is a reasonable possibilityof suffering such persecution i f he orshe were to return to that country; and

(C) He o r she is unable o r u nwil l ingto re turn to, or avail hi mself or herself

of the protect ion of, that country be-cause of such fear.

( ii ) An app l icant does no t have awell-founded fear of persecution i f theappl icant could avoid persecution b yrelocating to another part of the appli-c an t s c o un t r y o f n a t i o n a l i t y o r , i fs ta te less , another par t o f the app l i -c an t s c oun t r y o f l as t hab i tua l r es i-dence, if under all the circumstances i t

would be reasonable t o expect the ap-pli cant to do so.

150

53-2

8 CFR Ch. I (1-1-07 Edition)

( i i i) In evaluating whether the appli-cant has sustained the burden of prov-ing that he or she has a well-foundedfear of persecution, the asylum office ror immigration judge shall not requirethe applican t to provide evidence tha tthere is a reasonable possibil i t y he o rshe would be s ingled out indiv id ual lyfor persecution if:

(A) The appl icant establ ishes thatthere is a pattern or practice in his orher country of nat ional i ty or , i f s tate-less, in his or her country of last habit-

ual residence, of persecution of a groupof persons sim ila rly situated to the ap-pli cant on account o f race, religion, na-t iona l i ty , membersh ip in a par t icu larsocial group, or political opinion; and

(B) The applica nt establishes hi s orher own inclusion in, and identi fication

with, such group of persons such th athis or her fear o f persecution upon re-turn is reasonable.

(3) Reasonableness o f inte rnal reloca-don. F o r purposes of determinationsunder paragrap hs (b)(1)(i), (b)(1)(ii), and(b) (2) o f t h i s sec t io n , ad jud ica torsshould consider, bu t are not l imi ted to

c onside ring , whe the r t h e app l i c an twould face other ser ious harm i n the

place of suggested relocation; any on-

go ing c iv i l s t r i fe w i th in the country ;administrat ive, economic, or judic ia li nf rast ructur e; geog r aph ic a l l i m i t a -t i ons ; and s oc ia l and c u l tu r a l c on -

straints, such as age, gender, health,and social and familial ties. Those fac-

tors may, or may not, be relevant, de-pending on all the circumstances of thecase, and are not necessar i ly deter-minative of whether i t would be rea-

sonable for the app licant t o relocate.(i) I n cases in wh ich th e appl icant

has not established past persecution,the applicant shall bear the burden ofestablishing that i t would not be rea-sonable for hi m or her to relocate, un-less the persecution is by a government

or is government-sponsored.(i i) I n cases in whic h th e persecutoris a government or is government-spon-sored, or the applicant has establishedpersecution in the past, it shall be pre-sumed that internal re locat ion wouldnot be reasonable, unless the Serviceestablishes by a preponderance of theevidence t h a t , u n d e r a l l t h e c i r -cumstances, i t would be reasonable forthe applicant to relocate.



Department of Homeland Security

c) Mandatory denials— 1) Applicationsfiled on or after April 1, 1997. For appli-cat ions f i led on or after Apr i l 1, 1997,an appl icant shal l not q ual i fy for asy-lum i f section 208 a) 2) o r 208 b) 2) o f

the Act applies to the applicant. If theappl icant is found to be inel ig ib le f orasylum under either section 208 a) 2) or208 b) 2) of the Act, the appl ican t shallbe considered for el ig ib i l i ty for wi th-h ol di ng o f r e m ov a l u n d e r s e c t i o n241 b) 3) o f the Act. The appl icant shalla lso be considered for e l i g ib i l i ty fo rwithh oldin g of removal under the Con-vent ion Aga ins t Tor tur e i f the app l i -cant requests such consideration o r i fthe evidence presented by the alien in-dicates that the alien may be torturedin the country of removal.

2) Appl icat ions f i led before Ap r i l 1,1997. i) A n i mmigr atio n judge or asy-lum of f icer sha l l no t g rant asy lum t oany appl icant who f i led his or her ap-p l ica tion before Apr i l 1 , 1997, i f thealien:

A) Havi ng been convicted b y a finalj u dg me n t o f a p a r t i c u l a r l y se r io u scrime i n the United States, constitutes

a danger to the communi ty;

B) Has been f i r mly resett led w ith inth e mean ing of §208.15; C) Can reasonably be regarded as a

danger to the secur i ty o f the Un i tedStates;

D) Has been convicted of an aggra-v ated fe lony , as de f i ned i n s ec t i on101 a) 43) of the Act ; or

E) Ordered, incited, assisted, o r oth-

erwise participated in the persecutionof any person on account of race, reli-gion, nationality, membership in a par-t icu lar social group, or pol i t ical opin-ion.

ii) I f the evidence indicates th at one

of the above grounds apply to the ap-

§208.14

l ieve tha t the i ndividual is a danger tothe security of the United States.

[62 FR 10337, Mar. 6, 1997, as amended at 64FR 8488, Fe b. 19, 1999; 65 F R 76133, Dec. 6,2000]

§208.14 App rov al, de nial, refe rral, o rdismissal of application,

a) B y an immigration judge. Unlessotherwise pro hibi ted i n §208.13 c), a nimmigrat ion judge may grant or denyasylum in the exercise of discretion to

an applicant who qualifies as a refugeeunder section 101 a) 42) of the Act.

b) App rova l b y a n asylum officer. I nany case wit hin the jur isdic t ion of theOff ice o f Internat ional Affairs , unlessotherwise pro hibi ted i n §208.13 c), a nasylum officer may grant, in the exer-cise of his or her discretion, asylum toan applicant who qualifies as a refugeeunder section 101 a) 42) of the Act, andwhose identity has been checked pursu-ant to se ction 208 d) 5) A) i) of the Act .

c) Denial, referral, or dismissal by anasylum of ficer . I f th e asy l um of f icerdoes not grant asylum to an applicantafter an interview conducted in accord-

ance wit h §208.9, o r if, as provided in§208.10, the applicant is deemed to have

waived his or her r ight to an interviewor an adjudicat ion by an asylum off i -c e r , the as y lum o f f i c e r s ha l l deny ,refer, or dismiss the application, as fol-lows:

1) Inadmissible o r deportable aliens.Except as provide d in paragraph c) 4)of this section, i n the case of an appli-cant who appears to be inadmissible o rdeportable under section 212 a) or 237 a)o f the A c t , the as y lum o f f i c e r s ha l lre fer the app l ica t ion to an immigra-t ion judge, together w i th the appro-pr ia te charg ing document , fo r ad ju-dication i n remova l proceedings or ,where charging documents may not beissued, shall dismiss the application).

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Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)

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