W.G.A., Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-4193
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 18, 2018 — DECIDED AUGUST 21, 2018
Petition for Review of an Order of the Board of Immigration Appeals. No. Axxx-xxx-xxx.
Before SYKES and HAMILTON, Circuit Judges, and LEE, District
HAMILTON, Circuit Judge. In 2015, tattooed members of the Mara 18 gang held a gun to petitioner W.G.A.’s head and threatened to kill him.1 The Mara 18—also known as the “Calle 18,” “Barrio 18,” or “Eighteenth Street” gang—is one of the two main gangs operating in El Salvador. Together with their rivals, MS-13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes. The gangs have orchestrated labor strikes, brokered a now-defunct truce with the government, and plotted to bomb government buildings. They brag about influencing elections and controlling political campaigns within their territories. They extort millions of dollars from local businesses through threats of violence, and they are largely responsible for El Salvador’s homicide rate—one of the highest in the world.2 Two days after the Mara 18 threatened W.G.A., he fled to the United States.
The Department of Homeland Security apprehended W.G.A. for illegally entering the United States and
I. Factual & Procedural Background
W.G.A. is a citizen of El Salvador who arrived in the United States in January 2016. The immigration judge found W.G.A. credible, and the Board of Immigration Appeals affirmed that finding. We use W.G.A.’s testimony and the immigration judge’s findings to provide the factual context in this case.
W.G.A. grew up in a small farming community of about 170 families. In 2013, the Mara 18 gang began operating in his rural community. By 2015 there were about 20 local gang members. The gang engaged in their usual activities: extorting la renta, or “rent,” from local businesses, recruiting young men as new members, and “disappearing” (as a transitive verb) those who refused to join.
One day in 2014, petitioner’s younger brother S.R.P. failed to return home from
A few months later, the family learned that S.R.P. had been arrested. Petitioner’s mother attended a court proceeding, where she saw that S.R.P. had a gang tattoo on his hand. S.R.P. remained in prison until November 2015 when, on the day of his release, he called W.G.A. to say that he did not want to be a part of the gang anymore. S.R.P. said he could not come home for fear of what the gang would do, but he did not tell W.G.A. where he was going. W.G.A. assumed that his brother headed toward Guatemala.
The next day, a man called W.G.A. from a private number. The man told W.G.A. to “be careful” and that “they’re looking for you,” and hung up without identifying himself. The following day—two days after S.R.P. left prison—four tattooed gang members approached W.G.A. at his house. They asked him where his brother was. When W.G.A. responded that he did not know, one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: “if you don’t [hand] over your brother, you’re going to die here.”3 The men told W.G.A. that he had four days to comply or they would kill him. They also told him that they would kill him and his family if anyone spoke to the police.
Fearing for his life, W.G.A. fled two days later. He traveled through Guatemala and Mexico to the United States. Since W.G.A. left El Salvador, gang members have repeatedly threatened his family—over the phone and in person—to demand his and his brother’s whereabouts. Petitioner’s mother was so frightened by the threats that she arranged for her other teenage son, J.R.P., to go into hiding.
In January 2016, W.G.A. entered the United States through Texas without valid entry documents. The Department of Homeland Security initiated removal proceedings against him. See
The immigration judge concluded that W.G.A. did not qualify for any of his asserted grounds of relief and ordered removal. W.G.A. appealed to the Board of Immigration Appeals, which agreed with the immigration judge and dismissed W.G.A.’s appeal. The immigration judge’s order of removal became final, see
II. Scope of Review
It is helpful to start by clarifying the scope of our review. The answer depends on whether the Board’s order is independent of or supplemented the immigration judge’s decision. See Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004). When the Board issues an independent opinion that replaces the immigration judge’s reasoning with its own, our review is limited to the Board’s opinion. Jabateh v. Lynch, 845 F.3d 332, 337 (7th Cir. 2017), citing Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011). Our review is broader when the Board relies on the immigration judge’s findings and supplements that opinion “with additional observations.” Sarhan, 658 F.3d at 653. In those cases, we review the immigration judge’s findings as supplemented by the Board’s. Id., citing Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007). In a footnote, W.G.A. states that our review is limited to the Board’s opinion. The Attorney General argues that the Board’s order was supplementary to the immigration judge’s decision. We agree with the Attorney General’s reading and see no reason in this case to narrow our review.
III. Asylum and Withholding of Removal
To qualify for asylum, W.G.A. must show that he is “unable or unwilling to return” to El Salvador “because of persecution or a well-founded fear of persecution.”
W.G.A. has shown past persecution. He testified, and the immigration judge credited his testimony, that the Mara 18 threatened his life at gunpoint. That point is not in dispute in this case. The Board found that the threat amounted to persecution. See Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005) (“A death threat, especially one that is accompanied by an attacker pressing a gun to the victim’s head, is a serious factor supporting a finding of persecution.“), citing Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997), and Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995).
The first disputed issue is whether the persecution was motivated by a reason covered by the asylum statutes. W.G.A. contends that the gang was motivated by his membership in one of two particular social groups: (1) members of his nu-clear family or (2) family members of tattooed
A. General Remand
We first address the Attorney General’s request for a general remand. The Attorney General made no substantive arguments related to asylum or withholding of removal in this appeal. Instead, he requests that we remand to the Board for reconsideration without engaging in any review ourselves.
In some past cases, we have allowed the Attorney General to seek a remand without confessing error so that the Board can reconsider asylum decisions “in light of the emerging case law.” Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006). In some cases where we have accommodated these requests, we have been disappointed: the Board has disregarded the Attorney General’s stated reasons for remand. See, e.g. Reyes-Mendez v. Lynch, 629 Fed. App’x 757, 761 (7th Cir. 2015) (criticizing Board for repeating “its social-group analysis word for word” after the Attorney General requested general remand for Board to reconsider social-group analysis); see also Marin-Rodriguez v. Holder, 612 F.3d 591, 595–96 (7th Cir. 2010) (rejecting Attorney General’s request for a general remand for Board to reconsider merits, when Board’s position was that it did not have jurisdiction to consider merits). In light of these cases, we will grant a general remand only when there is a persuasive reason to do so, at least where, as here, the request is opposed by the petitioner.
The Attorney General offers two reasons for a general remand. First, he requests that the Board have a chance to reconsider whether “family members of tattooed former Salvadoran gang members” is cognizable in light of circuit and Board precedents that predate this case. The Attorney General does not explain why the Board needs a second chance to apply case law that was available when it decided W.G.A.’s appeal, and we decline to remand on that basis.
Second, the Attorney General seeks a remand to permit the Board to consider Matter of L-E-A-, 27 I. & N. Dec. 40 (BIA 2017) (requiring petitioner to demonstrate that family relationship is at least one central reason for persecution). The Board issued L-E-A- after it dismissed W.G.A.’s appeal, and the Attorney General argues that L-E-A- provides “critical guidance” for cases that involve “family-based particular social groups.” But L-E-A- did not establish a new rule. As the government agreed at oral argument, L-E-A- applied the same analysis that the Board has followed since at least 2007. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–16 (BIA 2007) (interpreting the “one central reason” requirement for asylum). In this case, the immigration judge applied the already-established rules summarized in L-E-A- and found that social-group membership was not a central motivation for the Mara 18. We decline to remand on this basis as well.
B. Cognizable Social Group
The first substantive question is whether W.G.A. is a member of a particular social group within the meaning of the Immigration and Nationality Act,
In Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled, in part, on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987), the Board interpreted “membership in a particular social group” to mean “an individual who is a member of a group of persons all of whom share a common, immutable characteristic.” The Board defined “immutable characteristic” to mean a characteristic “that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be changed.” Id. “Particular social group” is an ambiguous phrase, and we have deferred to the Board’s interpretation in Acosta. Cece, 733 F.3d at 669, citing Lwin v. INS, 144 F.3d 505, 511 (7th Cir. 1998).
In the decades since Acosta, the Board has added social distinction (also called social visibility) and particularity as two requirements in addition to the immutable-characteristic test. See, e.g., In re C-A-, 23 I. & N. Dec. 951, 957, 959 (BIA 2006). These two requirements are at issue here. W.G.A. proposed two social groups as the basis for asylum and withholding of removal: (1) members of his nuclear family; and (2) family members of tattooed former Salvadoran gang members. The Board and immigration judge accepted the first but rejected the second as overbroad and not “a socially distinct group within El Salvador.”
W.G.A. correctly points out that we have not yet accorded Chevron deference to the Board’s interpretation that includes social distinction and particularity. He also cites several cases in which we have disapproved—sometimes strongly—of these two requirements. See, e.g., N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014) (“[I]t would be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid claims merely because too many have valid claims.“); Gatimi v. Holder, 578 F.3d 611, 615–617 (7th Cir. 2009) (rejecting social distinction because “it makes no sense” given examples of previously recognized particular social groups). Those cases, however, either predate or fail to address intervening Board opinions that engage in statutory interpretation and explain the Board’s reasoning. See Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014); see also Gatimi, 578 F.3d at 615 (rejecting social distinction and particularity in part because Board failed to explain its reasoning “in this or any other case“). Whether the Board’s particularity and social distinction requirements are entitled to Chevron deference remains an open question in this circuit.4
C. Nexus to Persecution
Next, W.G.A. challenges the Board’s finding that he was not persecuted “on account of” his membership in his family. Whether W.G.A. met this burden is a question of fact that we review for substantial evidence. Martinez-Buendia v. Holder, 616 F.3d 711, 715 (7th Cir. 2010), citing Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006). We may reverse “only if we determine that the evidence compels a different result.” Cece, 733 F.3d at 675–76, quoting FH-T v. Holder, 723 F.3d 833, 838 (7th Cir. 2013); see also
To be eligible for asylum, W.G.A. must show that he was persecuted “on account of” his social-group membership.
To start, in W.G.A.’s case, the Board stated the wrong legal standard for withholding of removal. Confusingly, the Board reasoned that because “the respondent did not establish the lower burden of proof applicable to asylum, he necessarily did not establish his eligibility for withholding of removal, which carries a higher burden of proof.” This is not quite correct. Withholding of removal carries a higher burden on two questions: the severity of the harm the applicant faces (persecution versus threat to life or freedom) and the likelihood that the applicant will be harmed (well-founded fear versus clear probability). See Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 218 (BIA 2010) (reasoning that applicant who failed to show fear of persecution necessarily had not shown a threat to life or freedom); Toptchev v. INS, 295 F.3d 714, 720 (7th Cir. 2002) (reasoning that applicant who failed to show a well-founded fear necessarily had not shown clear probability). The nexus requirement, however, is the same for both asylum and withholding of removal. At least, that’s the position the Board has taken in other cases. See, e.g., Matter of C-T-L-, 25 I. & N. Dec. 341, 343 (BIA 2010).5 Because W.G.A. does not argue that different standards should govern the two claims, we apply the “one central reason” standard throughout our analysis.
To start, the timing of the persecution demonstrates that W.G.A.’s family relationship with his brother caused the gang to target W.G.A. The gang members threatened W.G.A. at gunpoint just two days after S.R.P. said he was defecting. The immigration judge and Board doubted whether S.R.P. had actually defected, but that detail is unimportant. What matters is that the gang was looking for S.R.P., likely because they believed he had defected. What’s more, the gang’s own words reveal their motivation. When the gang held a gun to W.G.A.’s head, they demanded that W.G.A. reveal his brother’s location. And when the gang warned W.G.A. not to notify the police, they threatened to kill his entire family.
W.G.A. also provided examples from his community as circumstantial evidence of the gang’s motivation. See Martinez-Buendia, 616 F.3d at 715 (applicant can prove motivation by direct or circumstantial evidence), citing INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). W.G.A. testified that when a young man he knew reported a robbery to the police, gang members “disappeared” him and his father in retaliation. W.G.A.’s mother submitted an affidavit that described a young woman in the community who refused requests to become a “gang member’s woman.” In response, the gang disappeared her and her brother. These anecdotes are analogous to W.G.A.’s situation: S.R.P. crossed the gang, and they retaliated by targeting his nuclear family.
Country reports and news articles corroborate this testimony. A report by the U.S. Department of State says that “the families of gang members often face the same risks of being killed or disappearing as the gang members themselves.” R. 290. The United Nations also reports that family members can “also be a target for attacks and assassination by gangs, sometimes even after the person who was initially targeted by the gang in question has fled or has already been killed.” R. 368. One news article describes a woman who went into hiding after the gang accused her husband of talking to police. R. 477–78. Another describes a man who rescued his daughter after gang members abducted and raped her. As retribution, the gang shot and killed the man’s wife. R. 463. These reports are only a few examples. We see nothing in the record that calls into question W.G.A.’s claim that he was targeted because of his family membership.
Despite the extensive record, the Board adopted the immigration judge’s conclusion that W.G.A. had not shown a sufficient nexus because other family members continue to live in El Salvador unharmed. This is factually inaccurate. W.G.A., his mother, and his sister described how the gang continued to target the family. W.G.A.’s mother reported that she had received at least four threatening phone calls from “angry,” yelling gang members and that the calls continued until she threw her cell-phone chip away. W.G.A.’s
The immigration judge also relied on W.G.A.’s testimony that the gang has a personal vendetta against him. But that testimony does not actually support the immigration judge’s finding. On cross-examination, the government’s lawyer asked W.G.A. if the “gangs just have a ... personal vendetta against you.” W.G.A. responded affirmatively. But this question does not contradict the overwhelming record evidence that the gang targeted W.G.A. because of his familial relationship to S.R.P. The government did not ask W.G.A. why the gang had a personal vendetta against him, and the most plausible answer is because he is related to S.R.P. The record suggests only one other potential motive for the persecution. W.G.A. testified that, in 2014, members of the gang asked him to do favors for the gang and he refused. Even if W.G.A.’s refusal to help the gang in 2014 influenced the gang’s decision to target him in 2015, that one fact does not undermine the overwhelming evidence showing that W.G.A.’s familial ties were one central reason for his persecution.
Finally, the immigration judge also improperly stressed that W.G.A.’s parents and seven siblings remain in El Salvador. This is true, although the family is so fearful that they sent their other teenage son, J.R.P., into hiding. This is not evidence of a safe family. Additionally, the fact that some family members have not relocated within El Salvador has little force in light of the rest of the record. Country reports describe how relocation is difficult and often dangerous: the choice is between remaining in the Mara 18’s territory and risking retribution, or relocating to the rival gang’s territory and being killed by them. A United Nations report estimates that 600,000 to 700,000 Salvadorans—or 10% of the population—are affiliated with the gangs and act as lookouts in the gangs’ territories. R. 338. The record describes various incidents when gangs killed non-members who had crossed gang boundaries for innocent reasons like visiting a family member or walking to school. R. 338, 470, 547. And W.G.A. testified about a community member who went to work at a business in MS-13 territory and who, upon arrival, was asked to identify himself and where he came from. When he revealed that he lived in Mara 18 territory, the questioner told him he would be killed if he entered MS-13 territory again. Once again, W.G.A.’s testimony corroborates the indirect evidence in the record. It means little, therefore, that W.G.A.’s family has not sought to move elsewhere to avoid threats.
IV. Convention Against Torture
As a third ground for relief, W.G.A. seeks to defer removal under Article 3 of the Convention Against Torture.
W.G.A. argues that a remand is necessary because the Board and immigration judge applied the wrong legal standard and ignored key evidence. We agree. Neither the immigration judge nor the Board considered W.G.A.’s key evidence that he would likely be tortured in El Salvador. The agency must consider “all evidence relevant to the possibility of future torture,”
The Board also applied the wrong legal standard when it found that W.G.A. had not shown government acquiescence. The Board stated that W.G.A. had “not indicated that there was any involvement of a public official” in “any of the threats directed” at him. W.G.A. does not need to show that a public official was involved directly. Sarhan, 658 F.3d at 657–58. Perhaps for this reason, the immigration judge and Board ignored key evidence on this point too. They did not address the extensive record that describes how corruption, judges’ refusal to protect witness anonymity, and the police’s fear of reprisal all allow gangs to act with a high degree of impunity. And when the agency found that the police arrested S.R.P. twice for gang activity—and therefore do not acquiesce to any torture—the agency failed to consider the evidence that gang members continue to operate from within prisons. For these reasons, we also remand W.G.A.’s claim for deferred removal under the Convention Against Torture.
Conclusion
We remand to the Board for further proceedings consistent with this opinion. On remand, the Board must also consider two issues that we do not discuss. First, the Board must consider the immigration judge’s finding that W.G.A. would be able to relocate within El Salvador. Because the immigration judge incorrectly found that W.G.A. had not been persecuted in the past, the judge applied the wrong burden on the question of relocation. See
We therefore GRANT the petition for review and REMAND the case to the agency for further proceedings consistent with this opinion.