648 F. App'x 78
2d Cir.2016Background:
- Petitioners (Ambar Margarita Zelaya de Ceron and family), Salvadoran nationals, sought asylum, withholding of removal, and CAT relief based on gang (MS) violence.
- IJ denied relief; BIA affirmed the denial solely on the ground that Salvadoran police were able and willing to control the gang threat.
- Petitioners presented credible testimony and country condition reports indicating police incapacity, corruption, and insufficient resources to control gangs.
- The agency relied on two local newspaper articles and a police report-taking instance to conclude police effectiveness.
- The Second Circuit reviewed the BIA decision (modifying the IJ’s social-group determination out of the review) and granted the petition for review, remanding to the BIA.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports the agency’s finding that Salvadoran police are able/willing to control MS gang violence | Zelaya de Ceron: record (testimony + country reports) shows police lack capacity/willingness; agency cherry-picked benign excerpts | Government: newspaper articles and the fact that reports could be filed show police can and do respond | Court: Agency’s reliance on the cited articles and the isolated report-taking is insufficient; country reports and testimony undermine the agency finding — remand required |
| Whether the BIA properly addressed cognizability of the proposed social group | Zelaya de Ceron: BIA failed to decide whether a cognizable social group exists, making the agency’s decision incomplete | Government: (implicit) BIA did not need to address because it found government control dispositive | Court: BIA failed to address the social-group question; remand for consideration of that issue |
Key Cases Cited
- Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005) (governing standard when reviewing IJ decision as modified by BIA)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009) (standard of review for BIA factual findings)
- Rizal v. Gonzales, 442 F.3d 84 (2d Cir. 2006) (persecution can occur where government is unable or unwilling to control persecutors)
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005) (agency should consider country condition reports and may not ignore them when they undercut its findings)