929 F.3d 451
7th Cir.2019Background
- Francisco Arrazabal, a former MS-13 member and lawful permanent resident, was ordered removed in 2001 after criminal convictions; he returned to El Salvador, renounced gang membership, suffered arrests, beatings, threats, extortion, and later reentered the U.S. illegally and was removed again in 2018.
- Arrazabal sought withholding of removal and CAT protection, claiming persecution and torture in El Salvador because he is a former MS-13 member who tried to disassociate.
- At the first hearing an IJ found Arrazabal not credible; the BIA affirmed; the Seventh Circuit remanded, noting overlooked corroborating evidence (e.g., letters from a former mother-in-law and an uncle) and errors in evaluating social-group membership and CAT risk.
- On remand before a new IJ, Arrazabal proceeded pro se, submitted additional letters and testimony from his mother and sister, but did not testify; the IJ again discounted the corroboration as vague, inconsistent, or unreliable and denied withholding and CAT relief; the BIA affirmed.
- The Seventh Circuit reviewed the second decision, concluded the IJ and BIA again mischaracterized or ignored material corroboration (notably the mother’s sworn letter about payments to secure releases and a witness’s sworn account of a pistol-whipping), and remanded a second time for proper consideration of the corroborative evidence and the record as a whole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arrazabal is a member of a particular social group (tattooed/former MS-13 member) qualifying for withholding | Arrazabal: tattoos and past MS-13 affiliation plus efforts to disassociate make him a protected social-group member and subject to persecution | Gov: Insufficient proof he is a former (vs. current) member; inadequate outward disassociation; testimony not credible | Court: A tattooed former gang member can be a protected group; IJ erred by discounting reasonable steps to disassociate and ignoring corroboration; remand required for reconsideration |
| Whether record corroborates Arrazabal’s allegations of past persecution (arrests, beatings, threats, extortion payments) | Arrazabal: letters, mother’s sworn letter and testimony, sister’s testimony, and third-party statements corroborate key events (payments, jailings, beatings, threats) | Gov: Evidence is vague, hearsay, similarly worded, from interested parties, inconsistent on dates and amounts—insufficient under REAL ID Act | Court: IJ/BIA overlooked and mischaracterized corroborative aspects (e.g., mother's sworn letter about $7,500 payments, Franco’s unique pistol-whipping account); must consider these and the totality on remand |
| Whether Arrazabal established substantial risk/more-likely-than-not torture for CAT | Arrazabal: past abuse by police and gangs, and police acquiescence, create substantial risk of torture | Gov: Insufficient credible evidence showing torture/acquiescence is more likely than not | Court: Standard is “substantial risk”; because corroboration was improperly discounted, the IJ/BIA must reassess CAT risk on remand rather than deny summarily |
| Whether prior adverse credibility finding required exclusion of all other corroborating evidence | Arrazabal: Even with adverse credibility, non-credible testimony can be corroborated by documents/witnesses and warrant relief | Gov: Adverse credibility undermines the case; remaining evidence insufficient | Held: Adverse credibility does not automatically defeat claims; corroboration becomes essential and must be fairly evaluated—errors in that evaluation require remand |
Key Cases Cited
- Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016) (remand for overlooked corroborative evidence and guidance on social-group and CAT analysis)
- Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (a tattooed former gang member may constitute a particular social group)
- Lozano-Zuniga v. Lynch, 832 F.3d 822 (7th Cir. 2016) (withholding standard: clear probability of persecution)
- Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir. 2015) (articulating "substantial risk" formulation for CAT standard)
- Musa v. Lynch, 813 F.3d 1019 (7th Cir. 2016) (evidence of past persecution can show future risk)
- Ishitiaq v. Holder, 578 F.3d 712 (7th Cir. 2009) (corroboration required when credibility is adverse)
- Toptchev v. I.N.S., 295 F.3d 714 (7th Cir. 2002) (definition and examples of persecution)