Julio Martinez v. Eric Holder, Jr.
740 F.3d 902
| 4th Cir. | 2014Background
- Julio Ernesto Martinez, a Salvadoran national who entered the U.S. unlawfully in 2000, sought withholding of removal and CAT protection after being placed in removal proceedings following a 2007 probation-before-judgment plea for marijuana possession.
- Martinez testified he joined MS-13 as a teenager under coercive circumstances, was beaten and tattooed, renounced the gang at 16, was violently attacked and shot multiple times by MS-13, and subsequently fled to the U.S.
- He claimed a fear of being killed if returned to El Salvador because he is a former MS-13 member who renounced the gang, and he argued the Salvadoran government would acquiesce in his torture (CAT claim).
- The IJ found Martinez credible but denied withholding and CAT relief (granting only voluntary departure); the BIA affirmed in a single-member nonprecedential opinion, holding that "former members of a gang in El Salvador" are not a particular social group because the status resulted from voluntary association with a criminal gang, and that CAT relief was unsupported.
- The Fourth Circuit reviewed the BIA’s legal conclusions de novo (without Chevron deference because the BIA opinion was single-member and nonprecedential) and focused on whether former gang membership is an immutable characteristic for § 1231(b)(3) withholding purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "former members of MS-13 from El Salvador" qualifies as a "particular social group" under 8 U.S.C. § 1231(b)(3) (immutability) | Martinez: former gang membership is immutable because the only way to change status would be to rejoin MS-13, which would violate conscience | Govt/BIA: former gang membership stems from voluntary criminal association and thus cannot be an immutable protected characteristic | Court: Reversed BIA. Former MS-13 membership (after renunciation) is immutable; BIA erred as a matter of law and must reassess other elements on remand |
| Whether current gang membership can constitute a particular social group | Martinez: n/a (he is a former member) | Govt/BIA: current gang membership not protected because membership is changeable and tied to criminality | Court: Agreed with BIA; current gang membership does not qualify |
| Whether BIA properly relied on In re McMullen to deny protection | Martinez: McMullen is distinguishable because McMullen remained a PIRA member and accepted internal risks; Martinez renounced MS-13 and is targeted for apostasy | BIA: internal-discipline analogy justified denial | Court: McMullen inapplicable; distinguishing facts required protection of former-members group |
| Whether CAT relief was improperly denied for failure to show state acquiescence | Martinez: police in El Salvador will acquiesce/turn a blind eye to gang violence and he feared reporting attacks | Govt/BIA: Martinez never reported attacks; country reports show El Salvador taking steps against gangs; no acquiescence shown | Court: Affirmed denial of CAT relief — IJ and BIA adequately considered evidence |
Key Cases Cited
- Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) (procedural scope of appellate review of BIA orders)
- Li Fang Lin v. Mukasey, 517 F.3d 685 (4th Cir. 2008) (deference principles for BIA legal determinations)
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (agency interpretive authority and Chevron framework)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (Chevron deference doctrine)
- Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009) (holding former gang membership can be immutable)
- Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. 2007) (distinguishing protection for current gang members and denying relief for violent gang affiliates)
- Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) (recognizing former membership/past experience as basis for particular social group)