529 F. App'x 444
6th Cir.2013Background
- Torres-Vaquerano, born 1984 in Usulután, El Salvador, grew up during the Salvadoran civil war.
- Guerrillas killed his relatives and threatened his family in 1989, including murder of his father and three cousins, and threats to him and his mother.
- His mother fled to Guatemala with him; they lived there from 1992 to 2006 while undocumented.
- He fled Guatemala in 2006 due to death threats and entered the United States, where he was placed in removal proceedings after an NTA issued in July 2007.
- In 2008 he applied for asylum, withholding of removal, and protection under CAT, admitting removability.
- The IJ denied all relief, finding past persecution not proven to be on account of a protected ground, and noted no voluntary departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether past persecution on a protected ground was shown | Torres-Vaquerano argues a protected-ground nexus via kinship to military uncles is shown by family affidavits. | The government argues no nexus to a protected ground; past harm occurred without a demonstrable protected-ground motive. | Remand to address humanitarian asylum and nexus issues |
| Whether the presumption of future persecution applies after past persecution is shown | Past persecution creates a presumption that future harm would occur; the government did not rebut this properly. | The Government bears burden to rebut the presumption with change in circumstances or relocation, which was not properly considered. | Remand for full consideration of the presumption and rebuttal |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (motive evidence required, not necessarily direct proof)
- Klawitter v. I.N.S., 970 F.2d 149 (6th Cir. 1992) (discusses nexus requirements for persecution claims)
- Bonilla-Morales v. Holder, 607 F.3d 1132 (6th Cir. 2010) (relevant to nexus and protected-ground analysis)
- Matter of C-T-L-, 25 I. & N. Dec. 341 (BIA 2010) (defines central reason standard for withholding)
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (remand to agency for resolution of issues proper disposition)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (reaffirmed substantial-evidence standard and nexus concepts)