58 F.4th 716
3rd Cir.2023Background
- Selvin Heraldo Saban‑Cach, a Kaqchikel Mayan from Montufar, Guatemala, was repeatedly targeted by a local gang affiliated with MS‑13 because of his indigenous identity and his refusal to join. He suffered multiple assaults, including one in which he was struck with a glass bottle, stabbed, left unconscious, and bears visible scars.
- Gang threats included explicit death threats for refusing recruitment; family members were also attacked (his sister was kidnapped/raped; his father beaten); several family members later fled to the U.S.; one brother remains in hiding.
- Saban‑Cach attempted U.S. entry multiple times (2014 removals and a successful 2015 entry). In 2020 DHS reinstated a prior order and placed him in withholding‑only proceedings; he applied for withholding of removal and CAT relief.
- The IJ found Saban‑Cach credible but denied withholding and CAT relief, concluding the harms did not rise to past persecution, internal relocation was reasonable, and the government would not acquiesce to torture. The BIA affirmed, relying on (inter alia) that most incidents lacked physical injury and that the worst attack did not require professional medical care.
- The Third Circuit vacated and remanded, holding the BIA/ IJ erred as a matter of law and fact: it improperly conditioned past‑persecution findings on absence of medical treatment, failed to assess cumulative harms and threats (including age and psychological impact), overlooked nexus to indigenous status, misapplied the internal‑relocation standard, and misapplied the Myrie two‑part CAT analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution — severity | Multiple assaults, menacing death threats, youth and psychological harms cumulatively meet persecution threshold | Most incidents lacked physical injury; worst assault did not require professional medical care, so not persecution | Court: BIA erred by conditioning on medical treatment and by failing to assess cumulative effect; remand required |
| Nexus / particular social group | Membership in indigenous (Kaqchikel) group is immutable, particular, socially distinct; gang targeted him because of ethnicity and used him as "bait" | Gang targeted him for refusal to join—motivation was recruitment, not protected status | Court: IJ overlooked record evidence of ethnicity‑based targeting; BIA must reassess nexus on remand |
| Internal relocation | Relocation unreasonable: gang followed him, brother in hiding, expert evidence that indigenous targets cannot safely relocate | He lived in San Pedro for years and was able to avoid attackers; risk limited to one town | Court: substantial evidence does not support safe‑relocation finding; hiding/temporizing is not "safe" relocation; remand required |
| CAT — government acquiescence and likelihood of torture | Objective evidence and expert report show gang danger and police corruption/ acquiescence; prior complaints ignored; likely future torture | No evidence government officials personally harmed him; failure to report undermines acquiescence inference | Court: BIA/IJ failed to perform the Myrie two‑part inquiry and misapplied standards (fact/law); must reassess both prongs on remand |
Key Cases Cited
- Doe v. Attorney General, 956 F.3d 135 (3d Cir. 2020) (cannot condition past‑persecution finding on whether victim sought professional medical care)
- Nsimba v. Attorney General, 21 F.4th 244 (3d Cir. 2021) ("safely relocate" requires more than living in hiding; relocation must be safe)
- Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017) (two‑prong framework for CAT: likelihood/definition of torture; then government reaction/acquiescence)
- Quinteros v. Attorney General, 945 F.3d 772 (3d Cir. 2019) (consider all objective evidence relevant to future torture risk)
- Valdiviezo‑Galdamez v. Attorney General, 663 F.3d 582 (3d Cir. 2011) (standard for withholding of removal—clear probability of persecution)
- Herrera‑Reyes v. Attorney General, 952 F.3d 101 (3d Cir. 2020) (cumulative threats and violence can constitute persecution)
- INS v. Stevic, 467 U.S. 407 (U.S. 1984) (burden and standard for withholding of removal)
- Cardoza‑Fonseca v. INS, 480 U.S. 421 (U.S. 1987) (distinguishing asylum and withholding burdens)
- Ghanem v. Attorney General, 14 F.4th 237 (3d Cir. 2021) (agency must meaningfully consider objective and country‑condition evidence)