NESTOR ARAMIZ PEREZ-TRUJILLO v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL
No. 11-1481, No. 17-1586
United States Court of Appeals For the First Circuit
June 28, 2021
PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS
* Pursuant to
Gregory Romanovsky and SangYeob Kim, with whom Gilles Bissonnette, Romanovsky Law Offices, and American Civil Liberties Union of New Hampshire were on brief, for petitioner.
Jonathan Robbins, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Nancy Kelly and John Willshire-Carrera on brief for Greаter Boston Legal Services, amicus curiae.
Deirdre M. Giblin on brief for Massachusetts Law Reform Institute, amicus curiae.
I.
Perez-Trujillo is a native of El Salvador who came to the United States on May 17, 2007, when he was thirteen years old. He was apprehended close to the U.S. border by immigration authorities and, on May 19, 2007, was issued a Notice to Appear for removal proceedings.
Perez-Trujillo timely filed on May 6 of the following year an application for asylum,
Testifying at his removal proceedings in Boston, Massachusetts, on April 16, 2009, Perez-Trujillo stated, among other things, that he had endured several violent encounters in El Salvador with members of the gang MS-13. He testified that gang members had, through violent beatings, forced him to join their ranks; that, when he resisted their orders, gang members responded with further violence; that gang members came looking for him after they heard he had spoken to the poliсe; and that, as he made plans to leave the country and even after he came to the United States, gang members continued to search for him. He also testified that he feared that he would be killed by members of the gang if he returned to El Salvador. To further support his arguments in support of asylum, withholding of removal, and protection under
The immigration judge ordered Perez-Trujillo‘s removal after denying his application for asylum as well as his request for withholding of removal and protection under the CAT. Perez-Trujillo appealed that ruling to the BIA, and the BIA upheld the order of removal in Aрril 2011. Perez-Trujillo thereafter filed a petition for review from that decision in this Court. We heard oral argument in September 2012.
While Perez-Trujillo was challenging his removal on the grounds just described, he also filed a petition for a “special immigrant” visa. See
On March 23, 2016, a new immigration judge granted Perez-Trujillo‘s application for adjustment of status, finding that, after balancing “all of the negative and positive factors” in his case, “the scale tip[ped] in [his] favor.” The government then appealed that ruling to the BIA, which reversed it on May 12, 2017. The BIA concluded that Perez-Trujillo had “not shown sufficient equities to overcome his criminal history.” Perez-Trujillo filed a petition for review of the BIA‘s ruling in our Court on June 6, 2017.
Several years later, on May 6, 2020, new counsel was appointed to represent Perez-Trujillo on а pro bono basis. We consolidated the 2011 and 2017 petitions and ordered supplemental briefing on the issues presented in both. Before us now, then, are both the 2011 petition for review, which concerns the BIA‘s ruling affirming the denial of Perez-Trujillo‘s applications for asylum, withholding of removal, and CAT relief; and the 2017
II.
With respect to Perez-Trujillo‘s 2011 petition for review, we first consider his challenge to the BIA‘s affirmance of the immigration judge‘s denial of his asylum and withholding of removal claims. We then take up his challenge in that petition for review to the BIA‘s affirmance of the immigration judge‘s denial of his CAT claim. As we will explain, we find that there is no merit to any of these challenges.
A.
To be eligible for asylum, Perez-Trujillo “must show that [he] is unwilling or unable to return to [his] country because of ‘persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.‘” Pojoy-De León v. Barr, 984 F.3d 11, 16 (1st Cir. 2020) (quoting Diaz Ortiz v. Barr, 959 F.3d 10, 16 (1st Cir. 2020)). Perez-Trujillo initially applied for asylum based on both “political opinion” and “membership in a particular social group.” See
Perez-Trujillo argues that the BIA‘s ruling affirming the immigration judge‘s denial of his application for asylum cannot stand because the BIA both treated him as having sought asylum based on his membership in a “particular social group” defined as “witnesses who openly reported . . . gang activity to the police” and then erred in holding that such a group is not a legally cognizable one. In so arguing, Perez-Trujillo contends that it is of no moment that he did not actually assert to the BIA, or the immigration judge, that he was a member of a particular social group so defined. All that matters, he asserts, is that the BIA mistakenly proceeded on a different understanding of the characteristics of the “particular social group” in which he was claiming to have been a member and then wrongly ruled based on that mistaken understanding that such a group is not a “particular social group” at all.
Perez-Trujillo premises this aspect of his challenge on the fact that the BIA stated in its opinion that he “indicated that he believes that he was targeted by the gangs for recruitment because he informed on an MS-13 member,” and then pointed out that the immigration judge, “[b]y way of analogy, . . . noted that the First Circuit has held that informants to the United States government working against a drug smuggling ring[] lacked social
A proposed “particular social group” must satisfy three requirements to qualify as one: immutability, particularity, and visibility. See De Pena-Paniagua v. Barr, 957 F.3d 88, 95-96 (1st Cir. 2020). The “immutability” requirement is satisfied if the members of the group “share a common immutable characteristic.” Id. at 96 (quoting Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir. 2015)). “Particularity” requires that the group have “definable boundaries” and that it not be “amorphous, overbroad, diffuse or subjective.” Ramírez-Pérez v. Barr, 934 F.3d 47, 51 (1st Cir. 2019) (quoting Paiz-Morales, 795 F.3d at 244). Finally, the “visibility” requirement is met if members of the group are “socially distinct within the society in question,” De Pena-Paniagua, 957 F.3d at 96 (quoting Paiz-Morales, 795 F.3d at 244), which means the group is “external[ly] perce[ived] . . . within a
The government urges us to uphold the BIA‘s ruling affirming the immigration judge‘s denial of Perez-Trujillo‘s claim of asylum based on his membership in this claimed “particular social group” based on our prior decision in Larios v. Holder, 608 F.3d 105 (1st Cir. 2010). There, we denied the petitioner‘s claim that “young Guatemalan men recruited by gang members who resist such recruitment” constitute a valid particular social group. Id. at 108. We explained that a particular social group “must be generally recognized in the community as a cohesive group” and that the petitioner there “ha[d] ‘failed to provide even a scintilla of evidence to this effect.‘” Id. at 109 (quoting Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010)). The government contends that Larios supports the BIA‘s ruling, given that it, too, relies on a finding that the evidence did not suffice to show that the claimed “particular social group” possessed the requisite “social visibility.”
Reviewing de novo, see Aguilar-De Guillen v. Sessions, 902 F.3d 28, 33 (1st Cir. 2018), we agree with the government that Perez-Trujillo‘s case is not appreciably stronger than the petitioner‘s in Larios. Perez-Trujillo does identify evidence in the record that indicates that he personally was known within El Salvador to have been a former member of the gang and to have
Thus, because Perez-Trujillo has not shown that his proposed grouр is “generally recognized in the community as a cohesive group,” Larios, 608 F.3d at 109 (quoting Mendez-Barrera, 602 F.3d at 26), we must deny his 2011 petition for review as to his application for asylum. And, that being so, we must also deny his petition with respect to his application for withholding of removal. See Thile v. Garland, 991 F.3d 328, 336 (1st Cir. 2021).
B.
We next consider Perez-Trujillo‘s challenge to the BIA‘s affirmance of the immigration judge‘s denial of his application for CAT protection. To prevail on his CAT claim, Perez-Trujillo was required to show by a preponderance of the evidence that, if returned to El Salvador, “he would be subject to torture ‘by or with the acquiescence of a government official.‘” Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st Cir. 2014) (quoting Nako v. Holder, 611 F.3d 45, 50 (1st Cir. 2010)). Acquiescence includes willful blindness. See Ramírez-Pérez, 934 F.3d at 52. We review the BIA‘S denial of his claim under a two-tiered standard, determining whether factual findings are supported by substantial evidence and
The BIA did not take issue with Perez-Trujillo‘s contention that he would suffer harm sufficiently severe to constitute torture if he were to return to El Salvador, and the record contains ample evidence from which the BIA could so find. In addition to his own testimony about the beatings he endured in El Salvador at the hands of gang members and the threats to which they have subjected him since he left that country, Perez-Trujillo introduced country reports indicating that former gang members in general face a heightened risk of encountering violence.
For example, one report, from the International Human Rights Clinic at Harvard Law School, states that “whereas in thе past it [had been] difficult, but feasible, for a gang member to
Perez-Trujillo also submitted another report, from the Immigration and Refugee Board of Canada. It summarizes a study that found that “a new [MS-13] recruit becomes a full-fledged member by ‘teaching a lesson’ to a member trying to dissociate from the gang” and quotes a young man who, when initiated into MS-13 at age thirteen, was tоld that “[t]he only way out is death.” He submitted as well an article from the Financial Times that stated that “desertion [from MS-13] is punishable with death.”
Perez-Trujillo challenges this conclusion in part based on an affidavit that he submitted to the immigration judge. It describes an incident in which MS-13 members allegedly beat him and forced him to board a bus and demand money from the driver; the police came; Perez-Trujillo was arrested; he tried to explain to the police why he had been on the bus; the police “called [him] a liar and said [he] was a member of the MS-13“; and the police continued to accuse him of lying, threatened him, and jailed him even after he denied he was a member of that gang.
This affidavit, however, does not provide a basis for our overturning the BIA‘s finding as to acquiescence. The BIA could have аccepted the affidavit as credible and still reasonably
Perez-Trujillo separately attempts to support his challenge to the BIA‘s acquiescence ruling by pointing to testimony that he provided in his immigration proceedings that there were other instances in which Salvadoran officers accused him of being a gang member despite his protestations to the contrary. But, it does not follow from skepticism by the officers of Perez-Trujillo‘s insistence that he did not belong to MS-13 that law enforcement in El Salvador is likely to turn a blind eye if MS-13 members attempt to torture him.
Perez-Trujillo next points to evidence in the record concerning an incident in which he provided the Salvadoran authorities with information about the location of an MS-13 member who had left a threatening voicemail on his phone following his forcible initiation. Perez-Trujillo emphasizes that the authorities neither prosecuted the mеmber nor arrested any other MS-13 members based on his tip. However, even where “efforts at
We are similarly unpersuaded by Perez-Trujillo‘s contention that the evidence of the country conditions that he submitted compels us to overturn the BIA‘S ruling as to acquiescence. He highlights the Harvard report described above, which states that gangs like MS-13 “are operating with growing sophistication and impunity in El Salvador,” that gangs are responsible for close to one in five homicides in El Salvador, and that the police forces “abandon their posts and disappear when
Nor are we persuaded by his assertion in his supplemental briefing to us that the reports that he submitted — at least when viewed in combination with the other record evidence on which he relies that we have described above — compel a conclusion as to governmental acquiescence contrary to the one that the BIA reached. The bulk of the evidence on which he relies concerns official tolerance of violence against gang members, rather than of violence against former gang members like himself. Cf. Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) (explaining, in the
Finally, we are not persuaded by Perez-Trujillo‘s argument that the BIA incorrectly applied the willful blindness standard in resolving this claim. Perez-Trujillo argues that the BIA‘s statement that “difficulty controlling gangs is not the same as acquiescing in gang activities” suggests that the BIA concluded that “if the national-level government is making any effort to control the gang activities,” a CAT applicant cannot establish acquiescence. But, in context, it is clear that the agency‘s statement about evidence regarding the government‘s “difficulty controlling gangs” was just a description of a subset of the
III.
Having found no merit to any of the challenges that Perez-Trujillo advances in his 2011 petition for review in support of his asylum, withholding of removal, and CAT claims, we now turn to the 2017 petition. Here, Perez-Trujillo challenges the denial of his application for adjustment of status.
Perez-Trujillo argues that the BIA committed legal error in two respects in overruling the immigration judge to deny his application for adjustment of status. First, he contends that the BIA failed to consider the hardship that he would suffer if he were forced to return to El Salvаdor, which he argues is a “mandatory factor” that the BIA must consider under its precedent. Second, he argues that the BIA applied the incorrect standard of review to the immigration judge‘s factual determinations.
The government responds first by contending that we lack jurisdiction to review Perez-Trujillo‘s claims. Because we reject that contention, we then move on to address its merits-based arguments for upholding the BIA‘s ruling. As we will explain, here, too, we are not fully persuaded by them.
A BIA decision denying adjustment of status is a discretionary determination. See
The government argues that although Perez-Trujillo “purports to raise legal claims, it is apparent that he is actually attempting to challenge the way the agency weighed the various factors.” But, Perez-Trujillo‘s first argument in his 2017 petition is that the BIA‘s past precedent in Matter of Arai, 13 I. & N. Dec. 494 (B.I.A. 1970), requires the agency to consider the hardship an individual will suffer if denied adjustment of status and that it failed to do so here. And, an argument that the BIA has “departed from its settled course of adjudication” in the process of making a discretionary determination is a type of legal challenge that we have previously reviewed. See Thompson v. Barr, 959 F.3d 476, 490 (1st Cir. 2020). We thus see no basis for concluding that Perez-Trujillo‘s first argument is not a legal one
B.
Turning to the merits, then, we must determine whether Perez-Trujillo is right in arguing not only that, in light of Matter of Arai, the BIA was required to consider in an individualized manner the hardship that he might suffer if he were required to return to El Salvador but also that the BIA then failed to undertake such consideration in reversing the immigration judge‘s grant of his application for adjustment of status.6 Notably, in responding to this contention, the government takes no issue with Perez-Trujillo‘s contention that Matter of Arai required the BIA to consider individualized hardship in his case.
The government is right that the BIA did account for Perez-Trujillo‘s family ties to the United States and lack of any to El Salvador, his other ties to this country that would be severed if he were removed there, as well as what the government describes as the “potential problems of returning to a country with a high level of crime and violence.” So, this is not a case in which the BIA failed to consider hardship at all in determining that the equities failed to support an application for adjustment of status.
But, we do not understand Perez-Trujillo to contend merely that the BIA erred as a matter of law because it failed to engage in any hardship inquiry. We understand him to be arguing that it erred as a matter of law because it ignored altogether a particularly salient aspect of the hardship showing that he was trying to make — namely, that he in particular was at risk of suffering severe physical harm in El Salvador by virtue of being a former gang member if he were to be removed to that country.
The government develops no argument that such a failure would not constitute a legal error, insofar as Matter of Arai mandates an individualized hardship inquiry. Nor, as we have
With the possible exception of the portion of the BIA‘s opinion that references the “level of crime and violence” in El Salvador, nothing in that opinion indicates that the BIA considered any of the evidence that Perez-Trujillo submitted in support of that critical aspect of his attempt to show hardship in defending the immigration judge‘s grant of his adjustment of status application based on the equities. Rather, at least if we set that portion aside for the moment, the opinion merely shows that other aspects of Perez-Trujillo‘s hardship case were considered.
The government did contend for the first time at oral argument that the BIA‘s express acknowledgment in its opinion that the immigration judge had considered that Perez-Trujillo‘s “return to El Salvador will be particularly dangerous given the level of crime and violence in that country,” (emphasis added), is best understood as an assessment by it of the dangers that Perez-Trujillo in particular faces upon his return to that country. And, the government went on to suggest, the BIA thus should be read to have considered the evidence at issue and merely failed to give it the weight that Perez-Trujillo would wish.
In consequence, we cannot agree with the government that the BIA gave any consideration in connection with its hardship inquiry to whether El Salvador would be dangerous for Perez-Trujillo in particular, given the special risk that he faces of being severely harmed due to his past gang membership. And that failure is especially concerning given that, as we have explained, the record contains substantial evidence to that effect, including not only evidence concerning the lengths to which the gang that he testified he had been forced to join while in El Salvador had gone to pursue him even after he had left that country but also the country reports’ representations concerning the risks of harm that former gang members face from the gangs they have left. Indeed, we note in this regard that DHS has granted Perez-Trujillo a
To be sure, the government is right that we have no jurisdiction to re-weigh the evidence of hardship. But, a re-weighing could only occur if there had been a weighing of that evidence in the first place. And, here, we conclude that there was no weighing of that evidence at all. We thus reject the government‘s argument that the BIA, in overturning the immigration judge‘s ruling granting Perez-Trujillo adjustment of status, did consider hardship as he contends that it was required to do under Matter of Arai. And, as the government offers no argument as to how the BIA‘s ruling may be sustained notwithstanding that failure on its part, we must vacate and remand it for further consideration. See, e.g., Mukamusoni v. Ashcroft, 390 F.3d 110, 120 (1st Cir. 2004) (finding that “[t]he BIA committed errors of law and misapplied the law by,” among other things, “focusing narrowly on only parts of the record that supported its decision“); see also Aldana-Ramos, 757 F.3d at 18-19, 18 n.7 (remanding where
IV.
Perez-Trujillo‘s 2011 petition is denied, but his 2017 petition is granted. We thus vacate the BIA‘s 2017 decision overturning the ruling by the immigration judge granting him adjustment of status and remand it to the agency for further proceedings.