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Viewing entries tagged
gang violence
In an unpublished decision, the Ninth Circuit determined that a woman who was persecuted by gang members in Guatemala because she reported their criminal acts to the police may qualify for asylum or withholding of removal under the Court's decisions in Henriquez-Rivas v. Holder and Piric-Boc v. Holder.
The full text of Ramirez-Ruano v. Sessions can be found here:
https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/03/21/13-71765.pdf
The Fifth Circuit determined that "former informants," or people who report criminal activity the police, are not a cognizable social group for asylum and withholding of removal purposes. The Court found that the proposed group lacked social distinction and particularity.
The full text of Hernandez-De La Cruz v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60730-CV0.pdf
The Eighth Circuit rejected the asylum claim from an applicant who was threatened with harm by the MS-13 gang because his cousin was a member of a rival gang. Members of MS-13 shot his cousin in front of his home and warned him never to return. The Immigration Judge granted asylum on a family-based social group (male, gang-aged family members of his cousin Oscar). The Board of Immigration Appeals reversed, and the Eighth Circuit affirmed, noting that "an alien’s membership in a family that experienced gang violence lacks the visibility and particularity required to constitute a social group under the statute."
The full text of Aguinada-Lopez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/16/02/151095P.pdf
In an unpublished decision, the Third Circuit remanded an application for protection under the Convention Against Torture, based on fear that Mexican gangs would target a returning deportee with family members in the United States. The applicant presented evidence from an expert witness that the Mexican government is unable to control gangs. The Board of Immigration Appeals concluded that the Mexican government was making attempts to weed out corrupt officials and train its military and law enforcement not to engage in acts of torture, and thus, that it would not acquiesce in the torture of the applicant.
On appeal, the Third Circuit concluded that the Board had not considered "the possibility that, even though the Mexican government attempted to protect its citizens, it could still acquiesce to torture due to its inability to actually protect its citizens from torture. There is no indication that the agency considered evidence, such as Dr. Boerman’s report, indicating that the Mexican government could not control Los Zetas or the corrupt officials who are involved in kidnappings and torture. Rather, the agency seemed to assume that as long as the Mexican government tried to help its citizens, then it could not be found to have acquiesced." An excellent reminder that the desire to protect is not the same thing as the ability to do so.
The full text of Torres-Escalantes v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/144663np.pdf
Vladimir Ernesto Ortega Oliva joined the MS-13 gang, but after witnessing the extreme violence of gang life, decided to become more involved with his church and become an "inactive" gang member. MS-13 would allow members who became active in the church to become inactive, but still required them to pay "la renta" to support the gang's activities. Oliva paid this extortion fee for 7 or 8 years, but eventually stopped paying. MS-13 members beat him severely and threatened to kill him if he didn't begin paying again.
Oliva applied for asylum, arguing that his life would be threatened because of his membership in one of two particular social groups: (1) “Salvadorans who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and (2) “Salvadorans who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission, for moral and religious reasons.” The Board of Immigration Appeals determined that "Oliva’s fear of persecution was not on account of his becoming an inactive gang member, but because of 'his specific conduct of violating the [gang’s] rules'—namely refusing to pay rent."
On appeal, the Fourth Circuit held that "[t]his was an overly restrictive view of Oliva’s case. A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent." The court also determined that extortion can qualify as persecution, even if the victim will only be physically harmed if he stops paying the extortion fee.
The full text of Oliva v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141780.P.pdf
Martinez filed an untimely motion to reopen his removal proceedings alleging changed country conditions in his home country of Guatemala. He based his fear of returning to Guatemala based on the targeting of members of his church youth group, and provided evidence that a friend had been murdered in Guatemala since his last hearing. However, the Board of Immigration Appeals denied his motion to reopen, noting that Martinez had not established that his murdered friend was a member of youth group or that his death was otherwise related to Martinez's asylum claim. The Eighth Circuit affirmed, finding that the friend's murder was simply indicative of violent conditions in Guatemala that already existed at the time of Martinez's merits hearing. For similar reasons, the Eighth Circuit affirmed the Board of Immigration Appeals' denial of Martinez's motion to reconsideration of the denial of his motion to reopen.
The full text of Martinez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/05/141213P.pdf
Maydai Hernandez-Avalos was a Salvadoran woman. In 2007, her husband's cousin, Augustin, was murdered by members of the Mara 18 gang. She identified the body at the medical forensic lab. After Augustin's funeral, heavily armed gang members came to Hernandez's home and threatened to kill her if she identified Augustin's murderers to the police.
A few months later, five members of the Mara 18 gang came to her home and told her that it was time for her 12-year-old son Kevin to join the gang. When Hernandez refused, the gang members put a gun to her and threatened to kill her if she opposed Kevin's membership in the gang. On a third occasion, members of the Mara 18 again pointed a gun at Hernandez and threatened to kill her if she did not allow Kevin to join the gang within one day. Hernandez testified that she did not report these threats to the police because gang members often learn the identity of those who report them and then retaliate against those individuals.
The Immigration Judge denied Hernandez's application for asylum, finding that she had not demonstrated that she would suffer harm on account of a protected ground or that the Salvadoran government was unable or unwilling to protect her. The Board of Immigration Appeals affirmed this decision.
The Fourth Circuit reversed, finding that Hernandez was threatened on account of her membership in the particular social group comprised of her nuclear family. "Hernandez’s relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18, and the gang members’ demands leveraged her maternal authority to control her son’s activities. The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts." The court rejected the Government's argument that Hernandez was persecuted because she interfered with the gang's recruitment activities. "Because any reasonable adjudicator would be compelled to conclude that Hernandez’s maternal relationship to her son is at least one central reason for two of the threats she received, we hold that the BIA’s conclusion that these threats were not made 'on account of' her membership in her nuclear family is manifestly contrary to law and an abuse of discretion."
With regard to the issue of government protection, the court noted that "Hernandez, whom the IJ found to be a credible witness, provided abundant evidence that the authorities would not have been responsive to such a report. Hernandez’s affidavit, in combination with the other evidence presented in this case, suggests that the police in her neighborhood may be subject to gang influence."
The full text of Hernandez-Avalos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/141331.P.pdf
In another depressing episode in the saga of gang-related asylum cases, the Eighth Circuit today determined that victims of gang violence, and those who refuse to join gangs, are not members of particular social groups. The court noted that this group lacks visibility and particularity. Though the petitioner tried to argue that he would also be persecuted on account of his Mam ethnicity, the court determined that it had no jurisdiction over this claim which had not been administratively exhausted.
The full text of Chilel v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/03/141936P.pdf
