Francisco A. Romero Arrazabal v. Loretta E. Lynch
822 F.3d 961
| 7th Cir. | 2016Background
- Francisco Alberto Romero Arrazabal, a Salvadoran with MS-13 ties, sought withholding of removal and CAT protection after being apprehended in the U.S. following a prior 2001 removal.
- He had a criminal record in the U.S., tattoos identifying him as MS-13, and claimed harassment, beatings, and threats from MS-13, rival gangs, and Salvadoran police after his 2001 return to El Salvador.
- An asylum officer found a reasonable possibility of past torture; Arrazabal then pursued withholding of removal and CAT relief (asylum unavailable due to prior removal).
- At a hearing, the immigration judge found Arrazabal not credible, denied withholding and CAT relief for lack of corroboration and for failing to show membership in a protected social group, and denied a continuance to submit additional evidence.
- The BIA affirmed. Arrazabal petitioned for review in the Seventh Circuit, which granted the petition and remanded for further proceedings.
Issues
| Issue | Arrazabal's Argument | Government's Argument | Held |
|---|---|---|---|
| Adverse credibility determination | IJ erred; testimony about gang threats and police abuse was credible | IJ's credibility finding is supported by inconsistencies and implausible claims | Court: IJ's adverse-credibility finding is supported by substantial evidence and is entitled to deference |
| Withholding of removal — likelihood of persecution | Evidence (tattoos, past beatings, letters, news) shows he faces clear probability of persecution | IJ: lived in El Salvador years without serious harm; evidence insufficient | Court: IJ overlooked corroborating evidence (mother-in-law affidavit, uncle's letter) and misweighed country- and case-specific evidence; remand required |
| Particular social group (former, tattooed gang members) | "Tattooed, former Salvadoran gang members" fits particular social group; he took objective steps to avoid gang activity | IJ: lacking outward renunciation (e.g., tattoo removal), he remains active and not in the protected group | Court: IJ erred in requiring tattoo removal or similar outward acts; objective, ascertainable steps taken to distance himself can suffice; remand required |
| CAT relief — likelihood of torture with state acquiescence | Police likely to acquiesce; past beatings and country conditions support more-likely-than-not risk | IJ: testimony not credible and insufficient corroboration to meet >50% likelihood standard | Court: IJ’s conclusion that risk was not more-likely-than-not was conclusory; factual gaps and failure to consider corroboration require remand |
Key Cases Cited
- Benitez-Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (recognizes former gang members can constitute a particular social group)
- Tawuo v. Lynch, 799 F.3d 725 (7th Cir. 2015) (standard for reviewing adverse-credibility findings: substantial-evidence deference)
- Zeqiri v. Mukasey, 529 F.3d 364 (7th Cir. 2008) (corroboration may be required when credibility is at issue)
- Fedosseeva v. Gonzales, 492 F.3d 840 (7th Cir. 2007) (discusses need for corroboration where testimony is questionable)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013) (distinguishes asylum, withholding, and CAT frameworks)
- Gutierrez-Rostran v. Lynch, 810 F.3d 497 (7th Cir. 2016) (practical approach to assessing "more likely than not" torture risk)
- Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir. 2015) (explains limitations on quantifying torture risk; use of substantial-risk standard)
- Yi–Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004) (addresses proof standards for withholding/CAT and country-condition evidence)