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8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
http://slidepdf.com/reader/full/principal-brief-of-petitioner-nelson-de-jesus-sanchez-sanchez-v-holder-no 1/78
NO. 06-75797
AGENCY NO. A99 530 588
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
Jo 0
NELSON DE JESUS SANCHEZ,
Petitioner,
V.
ALBERTO GONZALES, Attorney Generalof the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
PRINCIPAL BRIEF OF PETITIONER NELSON DE JESUS SANCHEZ
ISAAC RUIZ
Pro Bono Attorney
1132 Tenth Avenue East, Suite B
Seattle, Washington 98102
Telephone: 206) 407-3520
CATHY 041 EASON, (Az RAU.S. COURT OF PEALti
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
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TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES i v
I. S T A T E M E N T OF THE ISSUES 1
JURISDICTIONAL STATEMENT 2
DETENTION STATUS 3
IV. S TAT E M E N T OF THE CASE 3
A. U . S . Entry and Detention 3
B. M a s t e r Hearing 3
C. I n d i v i d u a l Hearing 4
D. B I A Appeal 6
E. S t a y of Removal 8
V. S TA T E M E N T OF THE FACTS 9
A. M S - 1 3 in El Salvador 9
B. N e l s o n ' s Experience 1 2
1. N e l s o n joins MS-13 and is stained. 1 2
2. N e l s o n quits the MS-13 gang 1 4
3. T h e MS-13 gang reacts. 1 5
4. N e l s o n flees. 1 6
5. N e l s o n fears persecution in El Salvador. 1 7
VI. S U M M A R Y OF ARGUMENT 1 8
VII. ARGUMENT 2 2
A. S ta nd ard of Review 2 2
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1. J u d i c i a l review of legal questions is de novo. The Court owesno Chevron deference to the order below, 2 2
2. A l t h o u g h factual findings are reviewed for substantial evidence,
Nelson s testimony must be accepted as true because there was
no adverse credibility determination 2 3
B. A s y l u m and Withholding Claims Generally 2 4
C. J u d i c i a l review is limited to the issues decided by the BIA 2 5
D. T h e MA s conclusion that Nelson could not show persecution rests on
an irrelevant, misstated, and misapplied rule 2 7
1. P h y s i c a l violence and death threats are persecution 2 7
2. T h e r e is ample evidence of persecution 3 0
a. N e l s o n suffered past persecution 3 0
b. N e l s o n also has a well-founded fear of future
persecution. 3 0
3. T h e BIA committed legal error by not applying this Circuit s
definition of persecution 3 2
a. T h e BIA erroneously equated the MS-13 gang with anational army. 3 3
b. T h e BIA relied on invalid legal authority 3 6
c. I . N . S . v. Elias-Zacarias, 502 U.S. 478 (1992), does not
support the BIA s analysis 3 7
d. T h e rule invoked by the BIA is subject to important
exceptions. 3 8
4. T h e MA s conclusion that Nelson could not show persecutionshould be reversed 3 9
E. T h e BIA erred in concluding that no countrywide threat of harmexists. 4 0
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1 T h e BIA erroneously saddled Nelson with the burden of proofon this issue 4 0
2 T h e BIA did not have authority to make this determination _43
3 T h e BIA did not examine the reasonableness of internalrelocation 4 4
VIII CONCLUSION 4 7
STATEMENT OF RELATED CASES 4 8
CERTIFICATE OF COMPLIANCE 4 9
CERTIFICATE OF SERVICE 5 0
ADDENDUM 5 1
A D e c is i o n of the Immigration Judge 5 1
B D e c i s i o n of the Board of Immigration Appeals 5 2
C 8 CFR § 208 13 5 3
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Cases
Alonzo v. INS., 915 F.2d 546 (9th Cir. 1990) 1 9 , 34, 35
Arteaga v. INS., 836 F.2d 1227 (9th Cir. 1988) 3 5 , 36, 37
Avetova-Elisseva v. IN.S., 213 F.3d 1192 (9th Cir. 2000) 2 4
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) 3 4
Barraza Rivera v. 9 1 3 F.2d 1443 (9th Cir. 1990) 3 8
Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) 2 2
Castillo v. INS. , 951 F.2d 1117 (9th Cir. 1991) 3 4
Chand v. INS., 222 F.3d 1066 (9th Cir. 2000) 2 0 , 24, 29
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
T BLE OF UTHORITIES
1984) 2 3
Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005) 2 8 , 30
Elias-Zacarias v. INS., 921 F.2d 844 (9th Cir. 1990) 3 5
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) 2 3
Gonzales v. Thomas, 126 S. Ct. 1613 (2006) 2 7
Harbi v. INS., 242 F.3d 882 (9th Cir. 2001) 2 5 , 28
Hernandez-Montiel v. 2 2 5 F.3d 1084 (9th Cir. 2000) 2 7
Hayha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003) 2 8
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) 2 4
I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) 3 5 , 37, 38
I.N.S. v. Ventura, 537 U.S. 12 (2002) 2 7
In re C--- A--- 2 1 1 . N. Dec. 754 (1997) 8 , 41
iv
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Maldonado-Cruz v. Dep't of Immigration Naturalization, 883 F.2d 788 (9th Cir.
In re Maldonado-Cruz, 19 I. N. Dec. 509 (1988) (Maldonado-Cruz i)
passim
passim
In re R--- 0---, 20 I. N. Dec. 455 (1992)
Montecino v. INS., 915 F.2d 518 (9th Cir. 1990)
6
In re V--- T--- S---, 211. N. Dec. 792 (1997)
34
6
Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) 20, 29, 44
Kaveh-Haghigy v. INS., 783 F.2d 1321 (9th Cir. 1986) 19, 34, 35
Korablina v. INS., 158 F.3d 1038 (9th Cir. 1998)
26
28
Ladha v. INS., 215 F.3d 889 (9th Cir. 2000) 23, 24, 40
Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)
Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)passim
29
1989) (Maldonado-Cruz II) passim
Melkonian V. Ashcroft, 320 F.3d 1061 (9th Cir. 2002) passim
Montecino v. INS., 915 F.2d 518 (9th Cir. 1990) 28
Movsisian V. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) 34
Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) 38
Rep. o f Austria v. Altmann, 541 U.S. 677 (2004) 34
Sangha v. INS., 103 F.3d 1482 (9th Cir. 1997) 35, 36, 37
Shah v. INS., 220 F.3d 1062 (9th Cir. 2000) 26
Singh v. INS., 94 F.3d 1353 (9th Cir. 1996) 26
Singh v. lichen', 69 F.3d 375 (9th Cir. 1995) 22, 43
Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006)passim
Federal Statutes
28 U.S.C. § 41 2
8 U.S.C. § 1101 24
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8 U.S.C• § 1158 ..... . ............... ....••••••••••.• ..... • ......... ............ ••••••••••••• ................ ••••••••24
8 U.S.C. § 1231 2 5
8 U.S.C. § 1252 2
ederal Regulations
8 C.F.R. § 1003.1 p a s s i m
8 C.F.R. § 1003.3 4 0
8 C.F.R. § 1208.13 2 8
8 C.F.R. § 208.13 p a s s i m
I.N.S. Order No. 1865-97, AG Order No. 2340-2000, 65 Fed. Reg. 76121 Dec. 6,2000) 4 1
Other Source
USAID, Central America and Mexico Gang Assessment 21 2006),
www.usaid.gov/gt/docs/gangs_assessmentpdf. 1 0
vi
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I STATEM EN T OF THE ISSUES
Petitioner Nelson de Jesus Sanchez is a teenager and native of El Salvador.
He has applied for asylum and withholding of removal under the Immigration and
Nationality Act (INA). Nelson claims that if deported be will be persecuted on
account of being in a particular social group namely, children who are former
members o f the MS-13 gang in El Salvador. Nelson also claims he will be
persecuted on account of a political opinion anathema to the gang. He petitions
this Court for review of a Board of Immigration Appeals decision affirming a
deportation order entered by the Immigration Judge in this case.
The petition presents two issues:
1. Persecution. The BIA held that Nelson's beatings and threats to his li fe
cannot qualify as persecution. I t relied on the rule that conscription and
punishment for evasion of military duty generally do not rise to that level. D id the
BIA err since, under Ninth Circuit precedent, this rule applies only to individuals
who are forcibly recruited by or who desert a country's official military, not a
gang?
2. Internal Relocation. The BIA found (sua sponte and without
explanation) that no countrywide threat of persecution was shown. Yet the
controlling regulation provides that applicants with past persecution do not have to
prove that internal relocation is possible. D id the BIA err since Nelson testified of
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
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past persecution in the form of beatings and death threats and the IJ found his
testimony credible?
JURISDICTIONAL STATEMENT
1. Agency s subject-matter jurisdiction. On September 8, 2006, the IJ
issued an oral decision denying Nelson's application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). (Administrative
Record (A.R.) at 58-69.) The IJ ordered that Nelson be deported. (Id. at 68.) The
LI had subject-matter jurisdiction under 8 U.S.C. §§ 1103(g) 1158 and 8 C.F.R.
§ 1003.10. Nelson took an appeal of the Irs decision to the BIA under 8 C.F.R.
§ 1003.1. (A.R. 40-49.)
2. Finality of decision below / appellate jurisdiction. The BIA affirmed
the IF s decision on November 29, 2006. (Id . at 2-3.) As a result, the I rs
deportation order became final. Th is Court's jurisdiction rests on 8 U.S.C. § 1252.
Because the IJ completed proceedings in Tacoma, Washington, this Circuit is the
proper venue for the petition. See § 1252(b)(2); 28 U.S.C. § 41.
3. Timeliness of petition. Nelson timely filed his petition on December 27,
2006, less than thirty days from the MA's affirmance.
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DETENTION STATUS
Nelson is detained in custody of the Department of Homeland Security
(DHS) at the Northwest Detention Center in Tacoma, Washington. He has not
moved the BIA to reopen, and he has not applied to the district director for an
adjustment of status.
IV. STATEMEN T OF THE CASE
A. U . S . Entry and Detention
Nelson entered the United States at Brownsville, Texas, on April 30, 2006,
where border agents immediately detained him. (A.R. at 583, 594.) The same day,
DHS served Nelson with a notice to appear, charging that he was subject to
removal. (Id. at 603-05.) DHS transferred Nelson to Fife, Washington. (Id. at
596.) Because he is a teenager and arrived in the United States unaccompanied,
the government placed Nelson in foster care. (Id.)
B. M a s t e r Hearing
Nelson s master hearing occurred on July 5, 2006. (A.R. at 91-98, 601.) A t
the hearing, Nelson conceded he was removable as charged in the notice to appear.
(Id. at 94:7—:9.) Nelson then submitted an application for asylum, withholding of
removal, and CAT relief. (Id. at 95:1—:15, 583-93.)
3
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C I n d i v i d u a l Hearing
The parties submitted prehearing statements in advance of the individual
hearing. DHS s submission was a boilerplate review of legal standards, with a
couple of country reports attached. (A.R. at 554-82.) Nelson s prehearing
statement, by contrast, contained extensive elaboration of his claims. (See id. at
155-99.) Nelson sought relief from deportation on the following bases:
1 A s y l u m and Withholding of Removal under the INA Nelson
claimed persecution on account o f his membership in the particular
social group of children who are former members of the MS-13 gang
in El Salvador. (E.g., id. at 172-75,184-85,190-94.) Nelson also
claimed persecution on account of an actual or imputed political
opinion that he expressed in refusing to participate in the gang s
criminal activity. (E.g., id. at 178-79,190-94.)
2. C A T . Nelson claimed that he would be tortured i f deported to El
Salvador. (Id. at 196-99.)
Nelson submitted hundreds of pages of supporting declarations, statements, and
documentation. (Id. at 200-553.)
Nelson s individual hearing occurred on September 8,2006, before visiting
Immigration Judge Wayne Stogner of the New Orleans Immigration Court. ( Id. at
99-148 (transcript).) A t the close of evidence, Judge Stogner rendered an oral
4
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decision. (Id. at 58-69; see also id. at 56-57 (written order).) He found Nelson's
testimony credible. (Id. at 62.) He added:
Respondent claims that he fears that he will be
persecuted by the members of his former gang, that being
MS-13, because he left that gang and such quitting of a
gang is not permitted by the gang. The respondent has
submitted substantial amount of background informationand this claim is consistent with that information.
(Id.) Nevertheless, the LT felt that Nelson's claims were foreclosed on purely legal
grounds. (Id. at 67 ( This is purely a matter of legal analysis and the Court
concludes that the respondent does not qualify. ).) Although the picture presented
was one of massive societal failure, the LI said he was not satisfied that that
societal failure in El Salvador is properly addressed under U.S. asylum law. (Id.
at 64.) The IJ concluded that former members of the MS-13 gang in El Salvador
do not qualify as a particular social group and that the violence to which Nelson
and others like him are subjected is not persecution on account of any such group.
(Id.)
According to the LT, Nelson stated no political opinion, stated no political
agenda and identified no other political activities. (Id. at 65.) Bu t the LI did not
address Nelson's argument that the MS-13 gang imputed a political opinion upon
him (see id. at 177-78) or his argument that, under the Department of Justice's
Guidelines for Adjudicating Children's Claims, children should not be expected to
articulate political opinions with precision (see id. at 170-71). The IJ also
5
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65.)
6
concluded that vigilante violence, which Nelson fears, is not persecution. (Id. at
Finally, the LI cited several cases. (Id .) He cited In re R--- 0---, 20 I. & N.
Dec. 455 (1992), for the view that forced recruitment into the military w a s not
persecution. (A.R. at 65.) The LI thought this important to the extent an applicant
could claim persecution in being recruited into a gang (id.), but Nelson does not
make this type of claim. Next, the IJ cited In re V--- T--- S---, 211. & N. Dec. 792
(1997), in support of the point that criminal offenses, even very serious criminal
offenses, such as kidnaping, does not amount to persecution. (A.R. at 66.)
The LI ordered that Nelson be removed from the United States to El
Salvador. (Id. at 68.)
D. B I A Appeal
Nelson timely appealed the entirety of the IF s decision to the BIA on
September 29, 2006, and filed a supporting brief. (A.R. at 6-29, 40-49.) DHS
filed a three-paragraph submission. (Id. at 30-31.) On November 29, 2006, the
BIA issued an unpublished, per-curiam order by a single member. (Id . at 2-3.)
The BIA did not take issue with the IF s finding that Nelson's testimony was
credible. (See id. at 2.)
Unfortunately, the BIA left several issues in Nelson's appeal unaddressed:
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1 P a r t i c u l a r Social Group. The BIA did not decide whether Nelson,
as a teenager who is a former member of the MS-13 gang in El
Salvador, belongs to a particular social group. (See id. at 2
(discussing current but not former gang membership).)
2. P o l i t i c a l Opinion. The BIA did not decide whether Nelson showed a
protected political opinion or persecution on account of such. The
words polit ical opinion appear nowhere in the BIA' s order. (See id.
at 2-3.)
3. O n Account Of. The BIA did not decide whether any of the harm
alleged by Nelson was motivated by his social group or political
opinion. (See id.)
Instead, the Board affirmed on two grounds, including one that was not raised by
anyone below.
First, the BIA read agency and Ninth Circuit authority to preclude Nelson's
claim of persecution because of its relation to his decision to quit the MS-13 gang.
(Id. at 3.) The order provides:
In Matter of Maldonado-Cruz, 19 I&N Dec. 509
(BIA 1988), rev'd, 883 F.2d 788 (9th Cir. 1989), we heldthat the threat of harm to a deserter from a guerrilla
organization is part of the military policy of that group,
inherent in the nature of the organization, and a tool of
discipline. The threat of harm to a deserter is not an act
of persecution. Id. See also Zehatye v. Gonzales, 453
F.3d 1182 (9th Cir. 2006) (forced conscription or
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punishment for evasion of military duty generally does
not constitute persecution). W e find this principle
applicable to the instant case.
(Id.) The order did not discuss the severity of the harm inflicted on Nelson; in
concluding that the harm could not be persecution, the order put Nelson's leaving
the criminal MS-13 gang on par with deserting a national army or a guerrilla
group. (Id.)
Second, the BIA concluded, without analysis: I n addition, we cannot find
that it has been shown that a nationwide threat of harm exists to the respondent.
(Id. (citing In re C--- A--- L---, 211. & N. Dec. 754 (1997)).) Ye t DHS had never
argued that Nelson could avoid persecution by relocating internally in El Salvador.
(Id. at 30-31, 144-47, 554-56.) And the LI had not discussed or ruled on the issue
below. ( Id. at 58-69.)
E. S t a y of Removal
The IF s removal order is final. Nelson filed his petition for review on
December 27, 2006. A t the same time, he moved for a stay of removal. On
February 28, 2007, the government filed a statement of non-opposition to Nelson's
motion. A stay of removal is in effect.
Nelson recently turned eighteen. As a result, Nelson was removed from
foster care and is now in detention.
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V. STATEMENT OF THE FACTS
A. M S - 1 3 in El Salvador
El Salvador is the smallest country in Central America. (A.R. at 249.) I t is
located along the North Pacific Ocean, between Guatemala and Honduras. ( Id. at
248.) The country is plagued with maras, criminal gangs that operate with
impunity, sowing a climate of fear and bringing social devastation through
violence, loss of life and family disintegration. (Id. at 220; see also id. at 262.)
The MS-13 gang, also known as Mara-Salvatrucha, is one of the most notorious
maras. (Id. at 220.) I t is a better organized gang than most of its rivals. (Id . at
221.) Synonymous with violence, its activities include smuggling, armed
robberies, contract killings, and drugs. (Id.; see also id. at 136:23—:24 ( They kill,
steal, beat innocent people. They even rape women. ).) The MS-13 gang is bitter
enemies with the Mara 18 gang in El Salvador. ( Id. at 221.) Inter-gang violence is
common, as horrifically detailed in the administrative record. (Id. at 221, 381-86.)
It has been fifteen years since the country's bloody civil war ended.
Because of the maras, a press report observed, El Salvador's graveyards are
swelling again. (Id. at 381.) E l Salvador has the unenviable ranking as one of
the most dangerous countries in Latin America, and it is believed that forty
percent of all homicides there involve a gang member as the victim or the
perpetrator. (Id. at 262.) This takes a political and economic toll. To give an
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idea of the problem's severity, according to a recent publication by USAID, mara
violence costs El Salvador about US$1 bill ion each year, or over six percent of the
country's gross domestic product. USAID, Central America and Mexico Gang
Assessment 21 (2006), www.usaid.govigt/docs/gangs_assessment.pdf. (See also
A.R. at 265.)
Then there is the toll on El Salvador's youth. Most members of the maras
are in their teens when they are recruited into gang life. (Id. at 220.) Many have
been forced to join the gang to save the lives of their families and themselves.
(Id. at 221.) They stick out from the rest of society since they display visible and
sometimes extensive tattoos to show their membership. (Id. ; see also id. at 278
( [The maras] also provide an unparalleled sense of identity, employing a complex
system of codes and symbols, including tattoos, band gestures and even a different
alphabet )) Anyone who has enough courage to quit is considered a traitor. (Id.
at 221.) I f by chance, a member gets out of the group, he will be harassed,
threatened and possibly killed. (Id.; see also id. at 222 ( The maras in El
Salvador have a violent history and are known to harass, threaten and sometimes
kill those members who try to leave the gang. ); id. at 278 ( Members swear
unconditional allegiance; desertion is punishable with death. ))
El Salvador's governmental institutions are unable to stop mara violence.
So-called Mano Dura (Him Hand) and Super Mano Dura (Super Firm Hand)
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policies are supposed to put gang members involved in criminal activity behind
bars. (Id. at 270.) Easier said than done. The judiciary and police systems are
saturated, and there are not enough personnel in these systems to manage the
problem of gangs. (Id.) El Salvador's policies have been criticized by human-
rights advocates who take issue with certain hard-line aspects. (Id. at 222.)
Moreover, Amnesty International USA has repeatedly noted that the El
Salvadoran authorities have failed to investigate human rights abuses against
former gang members as well as those abuses perpetuated against ordinary citizens
of El Salvador. (Id .) Hard line or not, the government has proven itself unable or
unwill ing to do what is necessary to stop or control the maras. (Id. at 222, 277.)
Some observers actually believe the gangs have emerged stronger as a result. (Id.
at 277.)
Out of this desperate situation, vigilantism has emerged g roups that take
the gang problems into their own hands. Vigi lante groups are very active in El
Salvador and gang members have been a target, particularly those gang members
who have identifying tattoos. (Id. at 222.) One of the groups is Sombra Negra
(Black Shadow), which wants to extelminate the MS-13 gang. ( Id. at 406, 411.)
Its members are known as self-appointed executioners of justice. (Id.) Although
the government officially denies sponsorship, there are reports that Som bra Negra
consists of off-duty police officers and members of the military. (Id.)
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B. N e l s o n ' s Experience
The maras feed a cyclone of violence churning throughout El Salvador.
Young Nelson, then, finds himself in the eye of this storm. Shortly after being
recruited into the MS-13 gang at a very young age, Nelson stood up to the gang
and quit. The direct consequence of Nelson's courage is that he is now targeted for
revenge by MS-13 gang members. Because of his former association with MS-13
(and because he bears an MS-13 tattoo that was forcibly placed on him), Nelson is
also marked for death and violence by rival gangs and vigilante groups. I f Nelson
is deported, he will be severely harmed or killed because of who he is and what he
stands for.
1. N e l s o n joins MS-13 and is stained.
Nelson was born in El Salvador, where he lived with his mother and
siblings. (A.R. at 121:22-25.) Although he enjoyed school, he was only able to
reach the third grade. (Id. at 122:1—:6.) Like many children in El Salvador, Nelson
helped support his family by working in the fields (id. at 122:7—:10).
On December 24, 2002, at the age of thirteen, Nelson was convinced to join
the MS-13 gang. (Id. at 122:11—:16; id. at 202 ril 10-13.) Although he initially
refused, believing that the gang's criminal activities were wrong, the MS-13 gang
persisted. (Id . at 122:17-25; id. at 202 Itill 10-12.) Nelson's cousin Mercedes and
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Nelson's former friends pressured him to join. ( Id . at 202 1 1 - 1 2 ; id. at 140:25.)
According to Nelson,
They told me that it was better to join the gang because
the gang protects you if you are a member. I f you are not
a member, they follow you around, say bad things to
your family about you and beat you up until you agree to
join or else kill you. The gang members w o u l dfollow me whenever I went out of the house.
(Id. at 202 4[111; see also id. at 122:23-25.) Mercedes told Nelson
that they wouldn't stop following and threatening me i f I
didn't join the gang. He also told me that they wouldprotect me. I told him no and, at first, this was enough
but they didn't stop so eventually I joined the gang,
hoping it would be better than refusing to join.
(Id. at 202 IT 12.) Thus at that young age, and with just a third-grade education,
Nelson came to believe that he had no choice but to be in the MS-13 gang. (Id. at
201 IT 9, 202 13 . )
Nelson promptly experienced his first beating. ( Id .) In an initiation rite,
MS-13 members viciously beat Nelson for thirteen seconds. (Id. at 123:3—:10,
:13—:14; id. at 202 11 13.) Nelson was not allowed to protect himself during this
exercise. (Id. at 124:10—:12; id. at 202 1 3 . ) A gang leader informed Nelson that
he had to remain in the gang for the rest of his life. (Id. at 124:15—:17.)
Not long after that, the gang tried to persuade Nelson to get a gang tattoo.
(Id. at 204 41i 16.) This was a bad idea, and Nelson told them so.
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I told the gang that I did not want a tattoo and at first they
didn't make me have one. I told one of the gang leaders
that I didn't want to be stained, and that if my family
ever needed me, like i f anyone in my family ever needed
to go to the hospital, the tattoo could cause problems for
me and my family.
(Id.; see also id. at 125:6—:10 (discussing the problems that Nelson faced because
of the tattoo).) B ut MS-13 does not take no for an answer. About three months
into his MS-13 experience, the gang was meeting at Mercedes's house. (Id. at 204
1117.) Gang members gave Nelson a Coca-Cola. (Id.) Unbeknownst to Nelson,
this refreshment was laced with drugs. (Id.; id. at 125:4—:5.) While Nelson was
under, MS-13 branded him with a crude MS-13 tattoo on his right arm. (Id. at
204 1117.) Nelson was stained, against his will , as a member of MS-13. (Id. at
204 TT 16-17.)
2. N e l s o n quits the MS-13 gang.
Nelson believed that MS-13's activities were wrong, and he did not want to
be involved. (A.R. at 203 11 14.) Twice during his brief membership, Nelson was
forced to do things [he] didn't like to do. (Id. at 203 ifi 15; see also id. at 126:1—
:15.) The first time, an MS-13 gang leader known as Spray told Nelson to collect
money from a boy named Enis. Enis wasn't a gang member but his father had a
lot o f money. (Id. at 203 1115.) To this day Nelson does not know why Enis was
paying the MS-13 gang. (Id.) One can only imagine A second time, the MS-13
gang told Nelson and another member to break into a house when no one was
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home and take about US$37.50. (Id.) These are the only wrongs Nelson
committed, and the only reason he did them was out of fear of MS-13. (Id.; see
also id. at 126:14—:15, 136:25 to 137:11.)
In Spring 2003, just months after he joined, Nelson quit the gang.
According to Nelson, I told my friend that I wanted to leave and be told the gang
leader, Spray. I always had problems with Spray because I didn't agree with the
kinds of thing[s] the gang did. (Id. at 205 1120.) Nelson understood the stakes:
The worst thing you can do in the gang's eyes is to leave.They think it is like leaving your family. They wantevery member who joins to stay in the gang for life.They wanted me to be an MS-13 member for life but Idon't want to be. I don't like gang life and gangactivities. I don't want to be associated with them
because I want to live an honest life and be respectful
like my family taught me to be. The gang does not allowyou to live an honest life.
(Id.; see also id. at 126:18—:20 (describing Spray's reaction when Nelson quit))
3. T h e MS-13 gang reacts.
When the MS-13 gang found out that Nelson quit, some of its members
physically beat Nelson, (see A.R. at 205 1121 ( When the gang found out that I left,
two members beat me up with their fists. I was hurt and in pain. ); id. at 126:21 to
127:12), scarring him permanently (id. at 127:1—:12). Two weeks later, MS-13
gang members beat Nelson again while he was walking down the street with
friends. (Id. at 127:13—:21; id. at 20641122.) The MS-13 gang members told him
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he was a traitor for leaving the gang. (Id. at 206 1122; see also id. at 127:22 to
128:2.) Nelson recalls the attack:
The two of them hit me with their fists and because of
that I have a scar on my face and a mark on my left arm.
I was hurt badly but was too afraid to go to the hospital toget help because I didn't want to tell them what happenedto me. This was the third time I had been beaten up by
the gang.
(Id. at 206 1122; see also id. at 130:18—:24 ( i fs examination regarding injuries).)
The MS-13 gang also started to follow, chase, and harass Nelson's brother Saul.
(Id. at 206 I[[ 23.)
4. N e l s o n flees.
After the MS-13 gang beat Nelson for a second time after he left (and a third
time overall), his mother was understandably very worried about Nelson's safety.
(A.R. at 206 ill 24.) She knew that the only way he would ever be free from danger
was to leave. (Id.) A t first, Nelson's mother sent him to spend some time with an
aunt in Chapeltique, San Miguel, El Salvador. (Id.) But going to Chapeltique was
a band-aid. Nelson's mother believed that Nelson could not live there forever and
that Nelson was in danger there, too. (Id.)
Eventually, Nelson's brother Evelio, who lives in Houston, sent Nelson
US$300 so that he could flee El Salvador and come to the United States. (Id. at
207 It 25.) Nelson believed that this money would have gone far to support his
family in El Salvador, but he knew it was his only opportunity to be free from the
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effects of former MS-13 membership. (Id.) Sixteen-year-old Nelson put the cash
in his pocket and began his solo journey to the United States through El Salvador,
Guatemala, and Mexico. (Id . at 200 4 , 207 2 6 ; id. at 129:17—:20.) When he
arrived in the United States, border agents immediately detained him. ( Id at 207
11 26; id. at 130:1—:3.) A t the time, Nelson had just $20 left in his pocket. ( Id. at
594.)
5. N e l s o n fears persecution in El Salvador.
Nelson fears returning to El Salvador because the MS-13 gang will find him,
beat him, and possibly kill him no matter where he goes in the country. (A.R. at
130:4—:8; id. at 201 5 - 8 , 207-08 111128-29.)
There's no telling what they'l l do . . They've beatenme before and they will do it again because I am a traitor
to the MS-13. They might even kill me or my family.They've harassed my family and have asked my mom
where I am and I know this is because they want to findme and punish me again and again for leaving and theywon't stop until I agree to join them again.
(Id. at 207 If 28; see also id. at 20141f 5 ( If I return to El Salvador, I fear that I will
be beaten or killed by the MS-13 because I do not want to be a member of their
gang. ).) The MS-13 gang is everywhere and the government has no control over
them. (Id. at 207 It 28; id. at 142:25 to 143:1.)
Nelson also fears persecution by a rival gang. (Id. at 208 IR 29.) I am
fearful of returning to El Salvador because I am afraid that the rival gang, the 18th
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Street gang (or Mara 18) will harm or even ki ll me or members of my family
because they wil l think I am sti ll a member of the MS-13. (Id . at 20111 7.) He
fears that he will be persecuted by vigilante groups targeting current and former
gang members. (Id. at 201 1[16, 20911J 30.) I n fact, Nelson was threatened by a
vigilante while he was living in El Salvador. (Id . at 204 1 8 . )
After it became known that I was a member of the MS-13
gang, a man that lived in my neighborhood started
threatening me. His name is Jose Lazos. He is
considered to be a vigilante. He would pass by my house
with a pistol and make threats to me about being in thegang and tell me to leave the gang. He is a dangerousman and I was afraid of him.
(Id.; id. at 128:20 to 129:4.) Final ly, Nelson fears harm from government officials.
He fears that the police may hurt him or put him in jail i f they erroneously believe
that he is still a gang member. (Id . at 164; id. at 209 lj 31.) Nelson is at greater
risk of harm because his MS-13 tattoo identifies him as a target to would-be
persecutors.
VI. SU MMA RY OF ARGUMENT
Nelson does not have to convince the Court of the facts just presented. The
LI believed Nelson's testimony and detelmined that the evidence was consistent
with his claims. (A.R. at 62.) The BIA said no different. (Id. at 2-3.) The
petition also does not call upon the Court to decide the weighty questions of
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whether children who are former members of MS-13 in El Salvador are a particular
social group, whether Nelson holds a protected actual or imputed political opinion,
or whether the harm alleged is on account of' one of those things. The BIA
brushed aside these questions and instead used other grounds to dispose of
Nelson's case. I t is those grounds involving persecution and the possibility of
relocation within El Salvador t h a t are in issue. The BIA, acting in haste, ignored
this Circuit's settled precedents and DHS regulations in favor of nothing more than
overruled case authority and tortured logic. I n so doing, the BIA created multiple
layers of reversible error, as discussed below.
The BIA's first holding involves the legal meaning of persecution. The
Board held that Nelson's violent beatings and the threats to his life did not qualify
as persecution because they were triggered by Nelson's quitting the gang. A s the
legal basis for this, the Board cited the rule that forced conscription or punishment
for evasion of military duty generally does not constitute persecution. (See id. at
3.) According to Ninth Circuit precedent, however, this rule applies only to the
official militaries of legitimate governments. See Alonzo v. INS., 915 F.2d 546,
549 (9th Cir. 1990). The rule is motivated by American courts' general reluctance
to call into question the public acts of foreign sovereigns. See Kaveh-Haghigy v.
783 F.2d 1321, 1323 (9th Cir. 1986). So though valid in cases of official
military conscription and desertion, the rule does not carry over to the question
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here: whether harm by the MS-13 gang, a nongovernmental group, can qualify as
persecution. Under Ninth Circuit precedent, the answer to that question is yes.
Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004) (death threats); Chand v.
222 F.3d 1066, 1073-74 (9th Cir. 2000) (physical harm). While the BIA
did cite one of its cases, In re Maldonado-Cruz (Maldonado-Cruz /), for the (inapt)
view that punishment by guerrillas is not persecution (A.R. at 3), that case was
reversed on direct review to this Court. 19 & N. Dec. 509 (1988), rev 'd sub
nom. Maldonado-Cruz v. Dep't of Immigration & Naturalization, 883 F.2d 788
(9th Cir. 1989) (Maldonado-Cruz II). Not authoritative, Maldonado-Cruz I is also
contrary to Ninth Circuit case law limiting this rule to official national militaries.
The Court should reverse the BIA's persecution holding.
The BIA committed further error in stretching the principle involving
military punishment beyond what is appropriate even in military cases. Under
Ninth Circuit case law, a military deserter can show persecution if he is subject to
serious or disproportionate harm, Zehatye v. Gonzales, 453 F.3d 1182, 1187
(9th Cir. 2006), which Nelson has shown here. What is more, the BIA's
affirmance does not follow logically from its faulty premises. To reach its result,
the Board had to ignore uncontroverted record evidence that Nelson fears grave
harm not only from the MS-13 gang but also from rival gangs and vigilante groups.
Can the harm inflicted by those groups be seen as punishment for Nelson's
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somehow deserting the MS-13 gang? Obviously not. Those groups want to
harm Nelson because of his former association with, not his quitting, the gang.
The MA's persecution analysis is wrong all the way around.
In its second holding, the BIA concluded, [W]e cannot find that it has been
shown that a nationwide threat of harm exists to the respondent. (A.R. at 3.) But
in cases involving past persecution, like Nelson's, DHS regulations and Ninth
Circuit case law place the burden of proof on the government to prove that the
applicant could avoid future persecution by relocating to another part of the
applicant's country of nationality and that it would be reasonable to expect the
applicant to do so, 8 C.F.R. § 208.13(b)(1)(i)(B), in light of several enumerated
factors, § 208.13(b)(3). 8 C.F.R. § 208.13(b)(3)(ii). The BIA switched the burden
of proof to Nelson, running afoul of these authorities. Also, only the LI, not the
BIA, was authorized to make the internal-relocation determination in the first
place. 8 C.F.R. § 208.13(b)(1)(i); 8 C.F.R. § 1003.1(d)(3)(iv) ( [T]he Board will
not engage in factfinding in the course of deciding appeals. ). DHS never argued
the point, and the IJ never decided it. The BIA committed legal error when it made
its finding sua sponte.
The BIA also erred in failing to examine whether it would be reasonable to
expect Nelson to relocate within El Salvador. Under Ninth Circuit precedent,
reversal and remand would be necessary on that basis alone so that the agency may
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give a more careful consideration of the reasonableness factors set forth in 8
C.F.R. § 208.13(b)(3), which favor Nelson. Melkonian v. Ashcroft, 320 F.3d 1061,
1070-71 (9th Cir. 2002). I t is worth repeating, however, that the BIA had no
business even getting into this area in the first place.
This Court should grant Nelson's petition, reverse the BIA's disposition, and
remand for further proceedings.
VI I . ARGUMEN T
A. S t a n d a r d of Review
1. J u d i c i a l review of legal questions is de novo. The Courtowes no Chevron deference to the order below.
Nelson's first contention is that the BIA misapplied the law in concluding
that he could not show persecution. This is a legal question reviewed de novo.
Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir. 2005) ( Whether
particular acts constitute persecution for asylum purposes is a legal question, which
we review de novo. ). Second, Nelson contends that the BIA erroneously placed
upon him the burden of proving countrywide persecution as a requisite to asylum
eligibi lity and withholding. This, too, is a legal question reviewed de novo. Singh
v. Ilchert, 69 F.3d 375, 378 (9th Cir. 1995) (reviewing de novo the legal issue [of]
whether the BIA was correct in placing on Singh the burden of proving country-
wide persecution to be eligible for asylum and for withholding of deportation ).
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The Court owes no deference to the Board's order under Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because it
was unpublished and issued by a single member. Garcia-Quintero V. Gonzales,
455 F.3d 1006,1014 (9th Cir. 2006) (holding that the court of appeals does not
accord Chevron deference to an unpublished single-member order ). I n
addition, the Court does not explicitly apply the principles of deference to
questions already controlled by circuit precedent. Ladha v. INS., 215 F.3d 889,
896 (9th Cir. 2000).
2. A l t h o u g h factual findings are reviewed for substantial
evidence, Nelson's testimony must be accepted as true
because there was no adverse credibility determination.
The MA's order should be reversed on purely legal grounds. But to the
extent the Court reviews factual findings, a substantial-evidence test applies.
Under that test, administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. Zehatye,
453 F.3d at 1185 (quotation omitted). I n this case, however, neither the IJ nor the
BIA made an adverse credibility detelrnination, and in fact the IJ found Nelson's
testimony credible. (A.R. at 62; see id. at 2-3.) This means that the factual
assertions in Nelson's testimony must be accepted as true. Ladha, 215 F.3d at 901.
[W]hen an alien credibly testifies to certain facts, those facts are deemed true, and
the question remaining to be answered becomes whether these facts, and their
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reasonable inferences, satisfy the elements of the claim for relief. No further
corroboration is required. Id. at 900.
B A s y l u m and Withholding Claims Generally
To be eligible for asylum, a non-citizen must show that he is a refugee
under the INA. 8 U.S.C. § 1158(b)(1)(A). A refugee is
any person who is outside any country of such person's
nationality or, in the case of a person having no
nationality, is outside any country in which such person
last habitually resided, and who is unable or unwill ing to
return to, and is unable or unwilling to avail himself orherself of the protection of, that 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{.]
8 U.S.C. § 1101(a)(42)(A). I n other words, an applicant has to demonstrate that he
has a protected characteristic like membership in a particular social group or a
political opinion; that he has suffered past persecution or has a well-founded fear
of future persecution; and that the persecution is on account of his protected
characteristic. See Chand, 222 F.3d at 1073. Affmnative state action is
unnecessary if, as here, the government is unable or unwilling to control the agents
of persecution. Avetova-Elisseva v. LAT.S., 213 F.3d 1192, 1196 (9th Cir. 2000);
see supra pp. 10-11, 17. When the eligibility requirements are met, the Attorney
General has discretion to grant or deny asylum. I.N.S. v. Cardoza-Fonseca, 480
U.S. 421, 428 n.5 (1987).
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The elements for withholding of removal are basically the same as for
asylum, but the withholding statute requires a showing that the refugee's li fe or
freedom would be threatened on account of one of the five protected
characteristics. 8 U.S.C. § 1231(b)(3). Applicants for withholding are required to
meet a higher standard of proof. Al-Harbi v. INS., 242 F.3d 882,888 (9th Cir.
2001) (holding that a withholding applicant must demonstrate that it is more
likely than not that he would be subject to persecution on one of the specified
grounds (quotation omitted)). O n the other hand, withholding of removal, unlike
asylum, is mandatory if the applicant meets these requirements. Id. at 888-89.
C. J u d i c i a l review is limited to the issues decided by the MA .
The BIA did not decide several important questions, including whether
children who are former members of MS-13 in El Salvador are a particular social
group and whether Nelson held an actual or imputed political opinion. (See A.R. at
2-3.) See supra pp. 6-7. On these issues, there was no published BIA decision on
point, as the LI recognized. (A.R. at 63.) Rather than issuing one here, the BIA
shoehorned Nelson's case through its streamlined appellate procedures, which are
not used when a case requires the BIA to establish a precedent construing the
meaning of laws, regulations, or procedures. 8 C.F.R. § 1003.1(e)(6)(ii);
§ 1003.1(e)(5). Indeed, the BIA assumed that Nelson was a member of a particular
social group. (A.R. at 2-3.) I t did not even mention political opinion. ( Id .)
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The BIA only decided two points. First, it held that Nelson could not show
persecution because of Maldonado-Cruz I, 19 & N. Dec. 509 (1988), rev'd sub
nom. Maldonado-Cruz II, 883 F.2d 788 (9th Cir. 1989), and Zehatye, 453 F.3d
1182 (9th Cir. 2006). (A.R. at 3.) Second, the Board said that it could not find
that it has been shown that a nationwide threat of harm exists to the respondent.
(Id.) In its haste to affirm, the BIA erred on both points. See infra Parts VILD and
VILE.
Where the BIA conducts its own review of the record, this Court reviews the
BIA's decision and nothing more. Singh v. 9 4 F.3d 1353,1358 (9th Cir.
1996) ( Where, as here, the BIA conducts its own review of the record, we review
the BIA's decision rather than the IF s decision. ); Shah v. LN.S., 220 F.3d 1062,
1067 (9th Cir. 2000) (stating that judicial review is limited to the BIA's decision,
except to the extent that the IF s opinion is expressly adopted ). I n this case, the
BIA issued a two-page order affirming the 'Fs decision. (A.R. at 2-3.) I t
reviewed the case de novo, see 8 C.F.R. § 1003.1(d)(3)(ii) & (e)(5), and did not
expressly (or implicitly) incorporate any of the i f s legal analysis. (A.R. at 2-3.)
I f there were any doubt that the BIA reviewed the record for itself, look no further
than its conclusion that Nelson failed to show a countrywide threat of harm, a
conclusion that appeared nowhere in the IF s ruling. (Id. at 3.)
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So the only determinations subject to judicial review at this time are the two
in the MA's order. Additional errors' the LT made are not ripe for consideration
and must remanded to give the BIA a first shot at them. Gonzales v. Thomas, 126
S. Ct. 1613,1615 (2006) (per curiam) (ordering remand where the agency had not
yet decided whether a particular social group existed); I.N.S. v. Ventura, 537 U.S.
12,16 (2002) (per curiam) ( Generally speaking, a court o f appeals should remand
a case to an agency for decision of a matter that statutes place primarily in agency
hands. ).
D. T h e BIA s conclusion that Nelson could not show persecution
rests on an irrelevant, misstated, and misapplied rule.
The issue of persecution was preserved in the administrative record at pages
15-21,43-47,163-64,166-68,172, and 176-77. The MA's ruling appears in the
administrative record at page 3.
1. P h y s i c a l violence and death threats are persecution.
An applicant for asylum or withholding of removal may qualify as a
refugee either because he or she has suffered past persecution or because he or she
1 For example, the BIA has not addressed Nelson's contentions that former
MS-13 members in El Salvador are a particular social group, that he held a
protected political opinion, and that he has a well-founded fear of persecution on
account of these things. With respect to the particular-social-group issue, the
Board mentioned current, but not former, gang membership. (A.R. at 2.) Even
then, it did not apply Ninth Circuit case law defining particular social groups as
those united by a voluntary association or former association, Hernandez-Montiel
v. IRS., 225 F.3d 1084,1093 (9th Cir. 2000).
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has a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b). Regarding
past persecution, this Court has explained:
[T]he applicant can show past persecution on account of
a protected ground. Once past persecution is
demonstrated, then fear of future persecution is
presumed, and the burden shifts to the government to
show, by a preponderance of the evidence, that there has
been a fundamental change in circumstances such that
the applicant no longer has a well-founded fear of
persecution, or the applicant could avoid future
persecution by relocating to another part of the
applicant's country.
Delos° v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005) (citations and quotations
omitted). I f there is no past persecution, an applicant can still qualify for asylum if
he has a well-founded fear of future persecution. Id. at 864. A well-founded fear
must be subjectively genuine and objectively reasonable. 8 C.F.R. § 1208.13(b) &
(b)(2)(i); see also Montecino v. I.N.S., 915 F.2d 518, 520-21 (9th Cir. 1990)
(discussing the importance of the subjective component). The applicant does not
have to show a certainty of persecution or even a probability of persecution.
Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003). I n fact, even a ten
percent chance of persecution may establish a well-founded fear. Al -Harbi, 242
F.3d at 888.
The INA does not define persecution or specify acts that qualify as such.
Korablina v. INS., 158 F.3d 1038, 1043 (9th Cir. 1998). Neither do DHS
regulations. See 8 C.F.R. § 1208.13. Instead, the adjudicator is guided by case
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law. This Circuit recognizes that persecution is marked by the infliction of
suffering or harm i n a way regarded as offensive. L i v. Ashcroft, 356 F.3d
1153, 1158 (9th Cir. 2004) (en banc) (quotation omitted). Physical violence,
including beatings, amount to persecution. See, e.g., Chand, 222 F.3d at 1073
( Physical harm has consistently been treated as persecution. ). I n addition,
[t]hreats on one's life, within a context of political and social turmoil or violence,
have long been held sufficient to satisfy a petitioner's burden of showing an
objective basis for fear of persecution. Kaiser, 390 F.3d at 658. An applicant
may suffer persecution because of the cumulative effect of several incidents, no
one of which rises to the level persecution. Chand, 222 F.3d at 1074.
Special consideration is given when the applicant is a minor like Nelson.
According to the Department of Justice Guidelines for Children's Asylum Claims,
The haiin a child fears or has suffered m a y be relatively less than that of an
adult and still qualify as persecution. (A.R. at 454.) Moreover, where the
petitioner establishes that many members of his or her group are targeted for
persecution, less of an individualized showing is required to qualify for asylum,
not more. Chand, 222 F.3d at 1076.
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2. T h e r e is ample evidence of persecution.
a. N e l s o n suffered past persecution.
The administrative record contains compelling evidence o f past persecution
as defined in this Circuit. See generally supra pp. 15-18. When the MS-13 gang
found out that Nelson quit, its members violently beat him. (A.R. at 205 2 1
( When the gang found out that I left, two members beat me up with their fists. I
was hurt and in pain. ); id. at 126:21 to 127:12.) He was permanently and
physically scarred. (Id. at 127:1—:12.) A couple of weeks later, members of the
gang again beat Nelson when he was walking down the street. (Id. at 127:13—:21;
id. at 206 1122.) Their motivation, the gang members said, was that Nelson was a
traitor for leaving the gang. (Id. at 206,1 22; id. at 127:22 to 128:2.) Nelson
testified, The two of them hit me with their fists and because of that I have a scar
on my face and a mark on my left arm. I was hurt badly . . . (Id. at 2064IJ 22.)
Nelson was also threatened with death by a member of a vigilante group. (Id. at
204 If 18; see also id. at 128:20 to 129:4.)
b. N e l s o n also has a well-founded fear of future persecution.
Because Nelson showed past persecution, a well-founded fear of future
persecution is presumed. Delos°, 393 F.3d at 863-64. But even without that
presumption, the administrative record paints a compelling picture of what awaits
Nelson if he is deported. See generally supra pp. 15-18. Nelson fears more brutal
beatings and even death at the hands of MS-13 because he quit the group. (A.R. at
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130:4—:8; id. at 201 In 5-7,207-08'11128-29.) Nelson also fears that he wil l be
persecuted by the rival Mara 18 gang (id. at 201 It 7,208 1129) and vigilante groups
like Sombra Negra (id. at 204 1[118; id. at 128:20 to 129:4) because he was in MS-
13 or because they will think he is still in the gang. Nelson is in greater danger
because of the MS-13 tattoo the gang forcibly placed upon him ( Id. at 204 1 6 —
17.)
Nelson's fear is subjectively genuine. The IJ found that Nelson's testimony
was credible, and the BIA did not disagree. (Id. at 62; id. at 2-3.) Nelson's fear is
also objectively reasonable. I n support of his claims, Nelson submitted the written
statement of Joyceen Spencer Boyle, an Amnesty International USA El Salvador
Specialist. (Id. at 220-44.) Ms. Boyle later verified the statement in sworn
testimony. (See id. at 101.) Based on her knowledge of conditions in El Salvador,
Ms. Boyle opined that Nelson has a legitimate fear that he will be targeted,
harassed, intimidated and perhaps killed if he is forced to return to his homeland.
(Id. at 223.) She added:
I find the statements made in Nelson de Jesus Sanchez's
application and affidavit to be in keeping with our
knowledge of the conditions in El Salvador. Given the
human rights situation in El Salvador, and the prevailingviolence perpetrated against alleged members of the
maras, as well as Nelson de Jesus Sanchez's desire not to
return to the gang, his removal to his country of origin
would expose him to a significant risk of persecution,
torture or death. He is a member of an at-risk group who
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has experienced violence, intimidation, harassment and
serious human rights abuses.
(Id.; see also id. at 221 (stating that inter-gang violence is not uncommon ); id. at
222 ( AIUSA has repeatedly noted that the El Salvadoran authorities have failed to
investigate human rights abuses against former gang members. . .
Nelson fears grave harm if he is deported to El Salvador, and his fears are
backed up with solid objective evidence. Nelson has an open-and-shut persecution
case, even before factoring in his youth a consideration that favors Nelson
according to Department of Justice guidelines, see supra p. 29.
3. T h e BIA committed legal error by not applying this
Circuit s definition of persecution.
Although the BIA held that Nelson could not show persecution, it did not
actually examine whether the harm claimed by Nelson rose to the level of
persecution as defined in this Circuit and in the Department of Justice's Guidelines
for Children's Asylum Claims. Instead, the Board took an ill-advised shortcut. I t
rejected Nelson's arguments on persecution out of hand using a rule that controls
when a soldier is conscripted into a national army or is punished for desertion.
The BIA wrote:
In Matter of Maldonado-Cruz, 19 I&N Dec. 509
(BIA 1988), rev'd, 883 F.2d 788 (9th Cir. 1989), we held
that the threat of harm to a deserter from a guerrilla
organization is part of the military policy of that group,
inherent in the nature of the organization, and a tool of
discipline. The threat o f harm to a deserter is not an act
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of persecution. Id. See also Zehalye v. Gonzales, 453
F.3d 1182 (9th Cir. 2006) (forced conscription or
punishment for evasion of military duty generally does
not constitute persecution).
(A.R. at 3.) This led to the Board's next passage, containing its conclusion:
There is no evidence in the record that the respondent
fears persecution because of his former membership in a
criminal gang in El Salvador. The respondent's fear
stems from his apprehension of the harm he may
experience from the gang because of his decision to leave
the gang.
(Id.) This analysis is wrong for several reasons.
a. T h e BIA erroneously equated the MS-13 gang with a
national army.
To begin with, the rule cited by the BIA does not apply to nongovernmental
groups. As the BIA noted parenthetically, Zehalye states that forced conscription
or punishment for evasion of military duty generally does not constitute
persecution. 453 F.3d at 1187 (emphasis added). Zehalye says nothing about
guerrilla groups, criminal gangs, or any other nongovernmental group. The
underlying motive for the principle concerning military conscription and desertion
is American courts' general unwillingness to call into question the political
justifications of the public acts of foreign sovereigns, not some policy that groups,
governmental or not, should be able to exact retribution against those who do not
want to associate with them.
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Tracing the lineage of the rule in Zehatye leads to Kaveh-Haghigy, 783 F.2d
at 1322,2 where Iranian applicants claimed asylum because they did not want to
have to serve in the Iranian army in the war against Iraq. Laying the
groundwork for what is now recognized as the general rule for military
conscription, this Court held: We reject this claim. Absent exceptional
circumstances, it is not the place of the judiciary to evaluate the political
justifications of the actions of foreign governments. 783 F.2d at 1323 (citing
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416-37 (1964)). The Court
drew an analogy to the act-of-state doctrine, id., which provides that the courts of
one country will not question the validity of public acts (acts jure imperil)
performed by other sovereigns within their own borders, Rep. o f Austria v.
Altmann, 541 U.S. 677, 700 (2004). Obviously, this analogy does not work when
the applicant is harmed because he quit a nongovernmental group.
This means that punishment that might not be persecution when inflicted by
a country's official military is persecution when inflicted by a nongovernmental
group. I n Alonzo v. I.N.S., a case involving military conscription, this Court
2In support of the rule, Zehalye cites Movsisian v. Ashcroft, 395 F.3d 1095,
1097 (9th Cir. 2005). Movsisian itself cites Castillo v. INS., 951 F.2d 1117, 1122
(9th Cir. 1991) ( The fact that a nation forces a citizen to serve in the armed forces
along with the rest of the country's population does not amount to persecution. ),which in turn cites Kaveh-Haghigy.
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explained why the rule applies to militaries, as opposed to nongovernmental
groups:
The difference between conscription by a
nongovernmental group and the government lies in the
legitimacy of the conscriptor's actions. Because
nongovernmental groups lack legitimate authority to
conscript persons into their armies, their acts of
conscription are tantamount to kidnapping and constitute
persecution.
915 F.2d at 549 (quoting Elias-Zacarias v. INS., 921 F.2d 844, 849 (9th Cir.
1990), rev'd on other grounds, 502 U.S. 478 (1992)). Similarly, in Arteaga v.
I.N.S., a case in which the applicant was recruited by anti-government guerrillas,
the government tried to argue that the applicant's claim was actually based on a
desire to avoid military service. 836 F.2d 1227, 1232 (9th Cir. 1988),
disapproved on other grounds, Sangha v. 1 0 3 F.3d 1482, 1490 (9th Cir.
1997). The Ninth Circuit was not convinced:
This court has rejected persecution claims based on the
threat of conscription into a national army (as distinct
from punishment for conscientious objection to military
service). See Kaveh-Haghigy v. INS, 783 F.2d 1321 (9th
Cir. 1986). Whatever justification exists for
distinguishing between national military conscription and
deprivations of freedom, such justification does not apply
to actions of nongovernmental groups, which lacklegitimate authority to raise armies by conscription.
Id. This Court concluded that efforts of non-official, nongovernmental groups to
recruit and retain members do in fact constitute persecution: Forced recruitment
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by a revolutionary army is tantamount to kidnapping, and is therefore persecution.
Id.; see also Sangha, 103 F.3d at 1487.
The principle that the BIA's decision rests upon, though generally valid in
military cases, does not carry over to the question here. Nelson claims persecution
from non-official, nongovernmental groups namely, the MS-13 gang, rival
maras, and vigilante groups. This case does not involve punishment for deserting
El Salvador's military. A s a result, the crux of the BIA' s analysis was in error.
b T h e BIA relied on invalid legal authority
The BIA did not explain the leap it took when it applied the military-
conscription rule to Nelson's case. I t was apparently led astray by its 1988
decision in Maldonado-Cruz I, which held that a guerrilla group's punishment for
desertion is not persecution and is not on account of' a political opinion. 19 I. &
N. Dec. at 516. But Maldonado-Cruz I is not good law. On direct review from the
BIA's decision, this Court took a different view of the matter and reversed the
entirety of the BIA's opinion. The Ninth Circuit concluded that the applicant had
demonstrated persecution due to his political opinion of neutrality. Maldonado-
Cruz H, 883 F.2d at 793. In this case, the BIA's reliance on Maldonado-Cruz I is
mystifying, considering that the Board acknowledged its subsequent reversal.
(A.R. at 3.)
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37
c. I . N . S . v. Elias-Zacarias, 502 U.S. 478 (1992), does not
support the MA s analysis.
Admittedly, unrelated portions of two of the cases discussed above, Arteaga
and Maldonado-Cruz II, were called into question by INS. v. Elias-Zacarias, 502
U.S. 478 (1992), as this Court said in Sangha, 103 F.3d at 1490. Elias-Zacarias,
however, deals only with whether persecution is on account of' a political
opinion, not the separate issue of whether harm qualifies as persecution, 502 U.S.
at 482-83. I n Sangha, a case involving recruitment by the terrorist group BTF, the
Ninth Circuit discussed the elements of asylum and stated that an applicant must
prove several separate facts, including the fact that he has been persecuted and the
fact that the persecution is on account of a protected characteristic. 103 F.3d at
1487. Although the Court discussed Elias-Zacarias at length, i t reaffirmed
Arteaga's analysis on the discrete issue of persecution. See Sangha, 103 F.3d at
1487. Ci ting Arteaga specifically, the Court concluded, The BTF wanted to
recruit Sangha and threatened him with death. These BTF actions are sufficient to
show persecution under the Act. Id. The Court parenthetically quoted these
memorable words from Arteaga: Forced recruitment by a revolutionary army is
tantamount to kidnapping, and is therefore persecution. Id. (quoting Arteaga,
836 F.2d at 1232).
Here, the BIA did not address the on account of ' aspect of Nelson's claims
(see A.R. at 3 ( The threat of harm to a deserter is not an act of persecution. )), and
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that issue is not before the Court? On the separate issue of persecution, the Ninth
Circuit cases cited above remain good law.
d T h e rule invoked by the BIA is subject to important
exceptions
As discussed, the MA's conclusion that Nelson could not show persecution
should be reversed because the rule relied upon does not apply to nongovernmental
groups. But that is not the only reversible error in the Board's analysis. The BIA
stated that [t]he threat of harm to a deserter is not an act of persecution. (A.R. at
3.) Even in military-desertion cases, that is not always right. The rule is a general
one subject to exceptions. Zehatye, 453 F.3d at 1187 ( Moreover, forced
conscription or punishment for evasion of military duty generally does not
constitute persecution. (emphasis added)). The Zehaiye case itself involved
mere economic disadvantage, id. at 1186 (quotation omitted), and left the door
wide open for cases of serious or disproportionate punishment, id. at 1187. In
Barraza Rivera v. INS., 913 F.2d 1443, 1450 (9th Cir. 1990), for instance, an
asylum claim was allowed where a conscientious objector faced a terrifying
choice that the military forced upon him: murder others, or be murdered himself,
Zehaiye, 453 F.3d at 1187 (discussing Barraza Rivera). So although the rule the
3 When the BIA considers the issue on remand, Elias-Zacarias will not
preclude Nelson's claims. See, e.g., Orefuela v. Gonzales, 423 F.3d 666, 673 (7th
Cir. 2005) (holding that Elias-Zacarias does not apply to social-group claims).
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BIA invoked does not fit this case, this case actually fits the exception; Nelson
faces violent beatings and even death i f deported. See supra pp. 30-32.
The BIA also seemed to forget that Nelson fears harm from rival gangs and
vigilante groups, not just the MS-13 gang. This is quite an oversight because the
rule that the Board found so helpful does not logically apply to persecution
inflicted by agents other than (in the Board's mistaken view) the gang. Rival
gangs and vigilante groups do not want to punish Nelson for refusing to join or
for deserting MS-13. Those groups will persecute Nelson precisely because
Nelson did allow himself to be conscripted, i f that word can even be used in this
context.
4. T h e MA s conclusion that Nelson could not show
persecution should be reversed.
The BIA's persecution analysis was wrong all the way around. Based on its
incorrect view on the meaning of persecution, the Board concluded, There is no
evidence in the record that the respondent fears persecution because of his former
membership in a criminal gang in El Salvador. The respondent's fear stems from
his apprehension of the hann that he may experience from the gang because of his
decision to leave the gang. (A.R. at 3.) Divorced of the Board's legal errors, this
passage makes no sense because there is no difference between fear due to
former membership and apprehension of harm due to quitting.
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Nelson presented ample evidence of the harm he suffered in the past and his
fears of future harm. Because the LI found his testimony credible and the BIA did
not explicitly (or implicit ly) disagree, his testimony must be accepted as true.
Ladha, 215 F.3d at 901. That, together with the wealth of other record evidence,
compels the conclusion that Nelson has been and likely will be persecuted within
the meaning of the INA. See supra pp. 30-32. ( I t should be remembered that even
a ten percent chance of harm would be enough to fulfill Nelson's burden. See
supra p. 28.) This Court should reverse on this ground.
E T h e BIA erred in concluding that no countrywide threat of harmexists
Nelson preserved this issue before the LT in the administrative record at
pages 166, 185-86, and 195. Because the IJ made no adverse finding with respect
to this issue, Nelson was not required (and had no reason) to appeal it to the BIA.
See 8 C.F.R. § 1003.3(b) (providing that the notice of appeal to the BIA must
specifically identify the findings of fact, the conclusions of law, or both, that are
being challenged ). The government did not brief this issue before the IJ or the
BIA. The BIA's decision appears in the administrative record at page 3.
I T h e BIA erroneously saddled Nelson with the burden ofproof on this issue
The BIA's order concluded with a short, unelaborated statement: I n
addition, we cannot find that it has been shown that a nationwide threat of harm
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exists to the respondent. (A.R. at 3 (citing In re C--- A--- L---, 211. & N. Dec.
754,757 (1997)).) This effectively placed upon Nelson the burden of proving that
he could not relocate internally within El Salvador. The government never raised
the issue in its arguments before the agency, and the IJ never decided it. (See id. at
555-56 (DHS's prehearing statement); id. at 144-47 (government's closing
argument); id. at 58-69 (l l 's decision).)
Although the issues of persecution and internal relocation are legally
distinct, they have one thing in common here: in each, the BIA relied on out-of-
date, invalid legal authority leading to reversible error. The case of In re C--- A---
L--- held that an alien seeking to meet the definition of a refugee must do more
than show a well-founded fear of persecution in a particular place within a country.
He must show that the threat of persecution exists for him country-wide. 211. &
N. Dec. at 757. But after In re C--- A--- L---, the Department of Justice amended
the relevant regulations in several important ways, effectively overruling the case.
See I.N.S. Order No. 1865-97, AG Order No. 2340-2000,65 Fed. Reg. 76121
(Dec. 6,2000). Those amendments control here.
Under the regulations an applicant's ability to relocate to another part of his
native country is not a requirement for asylum eligibility when the applicant
suffered past persecution. 8 C.F.R. § 208.13(b)(3)(ii); see also Melkonian, 320
F.3d at 1069 ( An applicant need not demonstrate a country-wide threat of
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persecution in order to qualify for asylum. ). In those cases, the asylum officer or
LI may deny asylum if she finds, by a preponderance of the evidence, that [t]he
applicant could avoid future persecution by relocating to another part of the
applicant's country of nationality or, if stateless, another part of the applicant's
country of last habitual residence, and under all the circumstances, it would be
reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i)(B);
§ 208.13(b)(3)(ii). There is a presumption that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the evidence that,
under all the circumstances, it would be reasonable for the applicant to relocate.
§ 208.13(b)(3)(ii). The regulation places the burden of proof squarely on the
government, not the applicant. Id.; § 208.13(b)(1)(ii) ( In cases in which an
applicant has demonstrated past persecution under paragraph (b)(1) of this section,
the Service shall bear the burden of establishing by a preponderance of the
evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this section. ).
Nelson suffered past persecution. See supra p. 30. For this reason, the
question should not have been (as conceived by the BIA) whether the agency could
find that it has been shown that a nationwide threat of harm exists (A.R. at 3),
but whether the government proved by a preponderance of the evidence that
Nelson could avoid future persecution by relocating to another part of the
applicant's country of nationality. , and under all the circumstances, it would be
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reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i)(B). What
the BIA concluded was irrelevant. Because it effectively placed the burden of
proof on Nelson instead of the government, the Board committed reversible error.
Singh, 69 F.3d at 379 (reversing and remanding because the BIA incorrectly
placed the burden of proof on Singh to prove country-wide persecution to be
eligible for asylum ).
2 T h e BIA did not have authority to make this determination
It bears repeating that the goverment never even argued this point, and the
IJ did not address it. (See A.R. at 58-59,144-47,555-56.) The Board had no
business raising it sua sponte. Title 8 C.F.R. § 208.13 clearly defines who can
decide the internal-relocation question, and the BIA is not among them. Instead,
that authority is vested in asylum officers and Hs. § 208.13(b)(1)(i) ( [A]n asylum
officer shall, in the exercise of his or her discretion, refer or deny, or an
immigration judge, in the exercise of his or her discretion, shall deny the asylum
application . ) . The regulation that confers appellate jurisdiction on the BIA is
consistent with this. 8 C.F.R. § 1003.1(d)(3)(iv) (providing that, except for taking
administrative notice of commonly known facts, the Board wil l not engage in
factfinding in the course of deciding appeals. I f further factfinding is needed in
a particular case, the Board may remand the proceeding to the immigration judge
or, as appropriate, to the Service. ). The BIA was the first to consider internal
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relocation in Nelson's case. Because it had no authority to do so, it committed
reversible error.
3 T h e BIA did not examine the reasonableness of internal
relocation
The BIA should not have even considered this point because of the kind of
persecution in issue, because the government never raised it, and because the IJ did
not decide it. But even i f these errors could be ignored somehow, reversal would
be unavoidable because the BIA failed to consider the reasonableness of internal
relocation. Under the controlling regulation, the fact finder must determine not
just whether there is a countrywide threat of harm but whether it would be
reasonable to require the asylum applicant to relocate. 8 C.F.R.
§ 208.13(a)(1)(i)(B) (past-persecution cases); § 208.13(b)(2)(ii) (future-persecution
cases); Kaiser, 390 F.3d at 659 ( [W]e must first ask whether an applicant could
relocate safely to another part of the applicant's country of origin. I f the evidence
indicates that the applicant could relocate safely, we next ask whether it would be
reasonable to require the applicant to do so. (citations omitted)); Melkonian, 320
F.3d at 1069 ( It is not enough, however, for the IJ to find that applicants could
escape persecution by relocating internally. I t must be reasonable to expect them
to do so. ). Adjudicators cannot make this determination off the cuff. They
should consider, but are not limited to considering,
whether the applicant would face other serious harm in
the place of suggested relocation; any ongoing civil strife
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within the country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and
cultural constraints, such as age, gender, health, and
social and familial ties. Those factors may, or may not,
be relevant depending on all the circumstances of the
case, and are not necessarily determinative of whether it
would be reasonable for the applicant to relocate.
8 C F R § 208.13(b)(3); Melkonian, 320 F.3d at 1070.
In Melkonian, for example, the agency concluded that the applicant did not
qualify for asylum because he could have relocated to another part of [his native
country] without facing persecution on a statutorily-protected ground. 320 F.3d at
1069. But it did not expressly take into account the reasonableness of that
relocation. Id. at 1070. This Court reversed. Given that Melkonian established
a well-founded fear of future persecution at the hands of Abkhaz Separatists, the IJ
should have inquired whether the evidence presented by Melkonian established
that it is unreasonable to expect him to relocate to another region within Georgia.
Id. After reviewing the reasonableness factors in 8 C.F.R. § 208.13(b)(3), the
Court concluded: We need not recount that evidence in detail here, however, for
it is the job of the BIA to give it careful consideration on remand. Melkonian,
320 F.3d at 1071.
The MA's conclusion here that it could not find a nationwide threat
should be reversed under Melkonian. As in Melkonian, the BIA gave no hint that it
considered any of the reasonableness factors. (A.R. at 3.) The order does not
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
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mention reasonableness at all, much less the following specific considerations:
The threat of harm to Nelson exists throughout the country. See supra p. 17. No
matter where he goes, Nelson's MS-13 tattoo wi ll identify him as a former member
of the gang to his persecutors. See supra pp. 13-14,17-18. Ongoing civil strife
makes it extremely difficult to relocate. As the IJ observed, the picture presented
is one of massive societal failure. (A.R. at 75-76.) E l Salvador's administrative,
economic, and judicial institutions have proven incapable of stopping mara-related
violence. See supra pp. 10-11,17. Moreover, Nelson faces certain social
constraints no matter where he goes in El Salvador. He is poor. H e is also very
young and only reached the third grade while in El Salvador. See supra p. 12.
Because of the tattoo, Nelson will be denied social services. See supra pp. 13-14.
All of these factors show that it would be unreasonable to require Nelson to
relocate within El Salvador.
The BIA committed reversible error under 8 C.F.R. § 208.13(b)(3) and
Ninth Circuit case law.
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VI II . CONCLUSION
Petitioner Nelson de Jesus Sanchez respectfully requests that this Court
grant his petition for review and reverse the BIA s rulings that he could not show
persecution and that he failed to show a countrywide threat of harm. The case
should be remanded for further proceedings.
Dated: July 5, 2007.
Jit-c
Isaac Ruiz1132 Tenth Avenue East, Suite B
Seattle, Washington 98102
Telephone: (206) 407-3520
Facsimile: (866) 865-2670
E-mail: [email protected]
ATTO E Y FOR PETITIONER
NELSON DE JESUS SANCHEZ
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STATEMENT OF RELATED CASES
There are no known related cases pending in this Court
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certify that: check appropriate option s))
CERTIFICATE OF COMPLIANCE
1. Pursuant to Fed. R. App. P. 32 a) 7) C) and Ninth Circuit Rule 32-1,
the attached opening / answering / reply / cross-appeal brief is
Proportionately spaced, has a typeface of 14 points or more and
contains 11,273 words opening, answering, and the second and
third briefs filed in cross-appeals must not exceed 14,000
words; reply briefs must not exceed 7,000 words),
or is
0 Monospaced, has 10.5 or fewer characters per inch and contains
w o r d s o r l i n e s o f text opening,answering,and the second and third briefs filed in cross-appeals must not
exceed 14,000 words or 1,300 lines of text; reply briefs must
not exceed 7,000 words or 650 lines of text).
0 2. The attached brief is not subject to the type-volume limitations of Fed.
R. App. P. 32 a) 7) B) because
9 T h i s brief complies with Fed. R. App. P. 32 a) 1)— 7) and is a
principal brief of no more than 30 pages or a reply brief of no
more than 15 pages;
* T h i s brief complies with a page or size-volume limitation
established by separate court order dated a n d is
Dated: July 3, 2007.
0 Proport ionately spaced, has a typeface of 14 points ormore and contains w o r d s ,
or is
Monospaced, has 10.5 or fewer characters per inch and
contains p a g e s or w o r d s orlines of text.
49
Isaac Ruiz
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CERTIFICATE OF SERVICE
I certify that on this 5 a y of July 2007, a true and correct copy of
PRINCIPAL BRIEF OF PETITIONER NELSON DE JESUS SANCHEZ was
served, by U.S. Mail, to the following:
COUNSEL FOR ALBERTO R. GONZALES
An Nazarov, Lead Attorney
Office of Immigration LitigationCivil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin StationWashington, D.C. 20044
202) 514-4120
202) 616-9777 FAX)
e-mail: [email protected]
Isaac Ruiz
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A D e c i s i o n of the Immigration Judge
DENDUM
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UNITED STATES DEPARTMENT OF JUST ICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIG RATION COURT
N or th we st D e t e n t i o n F a c i l i t yTacoma, Wash in g t on
F i l e N o . : A 9 9 5 3 0 5 8 8 S e p t e m b e r 8 , 2 0 0 6
In t h e M a t t e r o f ))
NELSON DE JESUS SANCHEZ ) I N REMOVAL PROCEEDINGS 7,..
) v (:: : :, . )yl : - .Respondent ) • : : ,
,
CHARGE: S e c t i o n 2 1 2( a) ( ) ( A ) ( i ) - p r e s e n t w i t h o u t h a v i - 4 7 2 2been a d m i t t e d o r p a r o l e d .
APPLICATIONS: A s y l u m ;
W i t h h o l d i n g ; a n d c -7 - 4 1
W i t h h o l d i n g u n d e r t h e C o n v en t i on a g a i n s t T o r t u r e .
ON BEHALF OF RESPONDENT: O N BEHALF OF OHS:
Denise F a r r N o r a NormanDav id Wer b l o w A s s i s t a n t C h i e f C o u n s e l
ORAL DECISION OF THE IMMIGRATION JUDGE
The r e sp o n de n t i s a 1 7 - y e a r - o l d ma le , n a t i v e a n d c i t i z e n o f
E l S a l v a d o r , t o w hom w as i s s u e d a N o t i c e t o A p pe a r o n A p r i l 3 0 ,
2006. T h e r es p on d en t a d m i t t e d t h e a l l e g a t i o n s i n t h e N o t i c e t o
A ppe ar a n d c on ce de d t h e r e m o v a b i l i t y o n t h e c h a r g e s e t f o r t h
above. A c c o r d i n g l y , t h e c h a r ge was s u s t a i n e d . S e e S e c t i on
2 4 0 (c ) (1 ) (A ) o f t h e A c t . S e e a l s o Woodby v . I N S , 3 8 5 U . S. 27 6
(1966). T h e i s s u e b e f o r e t h e C o u r t c on ce rn s h i s a p p l i c a t i o n s f o r
r e l i e f f r o m r e mo va l .
1
51-1
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SUMMARY OF THE EVIDENCE PRESENTED
E x h i b i t 1 i s a c op y o f t h e N o t i c e t o A pp ea r.
E x h i b i t 2 i s a Fo rm 1- 2 13 , Re c or d o f D e p or t a b l e A l i e n .
E x h i b i t 3 i s t h e r e s p on d e n t s a p p l i c a t i o n f o r a s y l um , F o rm
1-589.
E x h i b i t 4 i s t h e D ep ar tm en t o f Ho me la nd S e c u r i t y s p r e -
h e a r i n g s t a t e me n t , i n c l u d i n g T a bs A a n d B , t h e Human R i g h t s
R e po r t a n d W o r l d F a c t b o o k .
E x h i b i t 5 i s t h e r e s p o nd e n t s p r e - h e a r i n g s t a te m e nt ,
i n c l u d i n g a l a r g e numb er o f E x h i b i t s , t o t a l i n g some 3 5 5 p a ge s .
Pages 1 1 t h r o u g h 2 0 w er e a d m i t t e d f o r i d e n t i f i c a t i o n o n l y b u t
were n o t a d m i t t e d a nd co n s id e r ed , be c a us e o f t h e l a c k o f
s i g n at u r e b y t h e p e r s on m ak in g t h e s t a t e m e n t , t h e r e s p o n d e n t s
m o t he r .
E x h i b i t 6 a r e f i v e o r s i x ph ot o gr ap hs , i t l o o k s l i k e s i z e 8
and a h a l f b y 1 1 , s h o w in g t h e r e s p o n d en t s t a t t o o a n d t h e s c a r o n
h is f a ce an d h i s l e f t a rm.
The r es po nd en t a l s o t e s t i f i e d i n s u p p o r t o f h i s c l a i m , b u t
he w a s t h e o n l y w i t n e s s .
FINDINGS OF FACT
The r es po nd en t i s a 1 7 - y e a r - o l d b o y, a n a t i v e a n d c i t i z e n o f
E l S a l v a do r . E l S a l va d o r i s o n e o f t h e m o s t d an ge ro us c o u n t r i e s
i n t h e n o r t h e r n h e m i s p h er e o f t h e w o r l d . I t i s a l s o a v e r y po o r
c o un t r y. T h e r es po nd en t , a t t h e a ge o f 1 4 , a n d a t t h e i n s t a n ce
o r i n s i s t e n c e , en co ur ag em en t o f h i s c o u s i n , j o i n e d a ga n g c a l l e d
A 9 9 5 3 0 5 8 8 2 S e p t e m b e r 8 , 2 0 0 6
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MS-13 i n E l S a l va d o r. A f t e r a p pr o x i m at e ly on e y e a r i n t h a t g an g,
he d e c i d e d t h a t h e ha d made a mi s t a k e a n d t h a t h e d i d n o t w a n t t o
be i n t h e ga ng a nd h e l e f t t h e ga ng . U p o n j o i n i n g t h e ga ng , t h e
r es pon de nt t e s t i f i e d t h a t h e w as b ea te n b y t h r e e o t h e r g an g
members w i t h t h e i r f i s t s f o r 1 3 s e c on ds . T h a t w as p a r t o f t h e
i n i t i a t i o n r i t u a l o f j o i n i n g t h e ga n g .
A f t e r t h e r e s po n de n t l e f t t h e g an g, h e w a s a g a i n b e a te n b y
gang membe rs. H e w as d i s c o v e r e d a nd b e a t en b y , I b e l i e v e , i t w as
t hr ee o r f o u r g an g members w i t h i n a f e w d ay s o f h i s l e a v i n g t h e
gang. S u b s e q u e n t l y , w i t h i n a p p r ox i ma t e l y 30 d ay s l a t e r , t h e
r e sp o nd e nt w a s a g a i n d i s c o v e r e d b y g a n g m em be rs a n d w a s a g a i n
b ea ten . T h i s t i m e , h e w as k n oc ke d t o t h e g r o u n d , w h e r e h e
i n j u r ed h i s c he ek o n t h e l e f t s i d e , u p c l o s e t o t h e e y e a n d a l s o
h is l e f t e l b ow o n t h e i n c i d e n t . B e t h i n j u r i e s l e f t s c a r s .
W hi le t h e r e sp o n de n t w as a member o f t h a t g a n g f o r o n e y e a r
p e r i od , h e w as d ru g g ed b y f e l l o w g an g members a n d t h e n t a t t o o e d
w i th t h e MS-13 t a t t o o o n h i s s h o u l d e r . H e t e s t i f i e d t h a t h e d i d
n ot w an t a t a t t o o a nd t h a t i t w as p l ac e d a g a i n s t h i s w i l l .
The r e s p o n d e n t w as un h a pp y w i t h t h e m e mb e rs h ip i n t h e g a n g
because h e s a i d t h e g an g r e q u i r e d h im t o d o b a d t h i n g s t h a t h e
d i d n o t w an t t o d o . H e g av e, a s e xam p le s, t h a t h e a nd f e l l o w
gang me mbers b r o k e i n t o a h o u s e a n d s t o l e v a l u a b l e s a n d t h e n g a v e
t he p ro ce ed s o f t h a t t h e f t t o t h e b o s s . H e g av e a s a n o t h e r
e xa mpl e w h e r e h e t o o k m on ey f r o m a n o t h e r p e r s o n , p r e s u m a b l y a
b oy, a n d g a v e t h a t mo ne y t o t h e b o s s .
A 9 9 5 3 0 5 8 8 3 S e p t e m b e r 8 , 2 0 0 6
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By t a k i n g t h e money f r o m t h e y o u n g s t e r , t h e r e s po n d en t
became t h e o b j e c t o f r e t r i b u t i o n b y t h a t c h i l d ' s f a t h e r , whom t h e
r es po nd en t a n d h i s a t t o r n e y s i n t h e h e a r i n g t o d a y h av e c a l l e d a
v i g i l a n t e . T h e r e sp on de nt t e s t i f i e d t h a t t h i s man t h r e a t e n e d t o
k i l l h im .
STATEMENT OF THE LAW
I n o r d e r t o b e e l i g i b l e f o r a sy lu m u nd e r S e c t i o n 2 08 o f t h e
A ct , t h e r e s po n de n t m us t s ho w t h a t h e i s u n a b l e o r u n w i l l i n g t o
r e t u rn t o h i s c o u n t r y b ec au se o f p e r s e c u t i o n o r a w e l l - f o u n d e d
f ea r o f p e r s e cu t io n o n a c c ou n t o f r a ce , r e l i g i o n , n a t i o n a l i t y ,
membership i n a p a r t i c u l a r s o c i a l g ro up , o r p o l i t i c a l o p i n i o n .
See S e c t i o n 1 0 1( a ) ( 4 2 ) ( A ) o f t h e I m m i g ra t i o n a n d N a t i o n a l i t y A c t .
See a l s o I N S v . C a r do z a -F o n se c a , 4 8 0 U . S . 4 2 1 ( 1 9 8 7 ) .
I n M a t t e r o f M o g ha r ra b i, 1 9 I & N D ec . 4 3 9 ( B I A 19 87 ) t h e
B oa rd o f I m m i g r a t i o n A p p ea l s a d o p t e d a r ea s o n a b l e ne s s s t a n d a r d t o
d et er mi ne w h e t he r o n e ' s f e a r o f p e r s e c u t i o n i s w e l l - f o u n d e d .
I n o r d e r t o b e e l i g i b l e f o r w i t h h o l d i ng o f r e mo va l t o a n y
c ou n tr y, t h e r e sp o n de n t m us t s ho w t h a t h i s l i f e o r f r ee do m w o ul d
be t h r e a t e n e d i n s u ch c o u n t r y o n a c co u nt o f r a c e , r e l i g i o n ,
n a t i o n a l i t y , m em b er sh ip i n a p a r t i c u l a r s o c i a l g r o up , o r
p o l i t i c a l o p i n i o n . S e e S e c t i o n 2 4 1 ( b ) ( 3 ) ( A ) .
Th is s t a t u t o r y p r o v i s i o n r e q u i r e s h i m t o d em on st ra te a
c l e a r p r o b a b i l i t y o f p e r s ec u t i o n o n o n e o f t h e f i v e g r o u nd s i n
t he A c t . I N S v . S t e v i e , 4 6 7 U . S . 4 0 7 ( 19 84 ) . T h e r e sp on de nt
must d em on st ra te t h a t ' i t i s mo re l i k e l y t h a n n o t t h a t h e w o u l d
A 9 9 5 3 0 5 8 8 4 S e p t e m b e r 8 , 2 0 0 6
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be s u b j e c t t o p e r s e cu t i o n i f r e t u r n e d t o h i s n a t i v e l a n d . T h i s
i s a m ore s t r i n g e n t s t a nd a r d t h e n t h a t r e q u i r e d f o r a s y l um .
I n o r d e r t o b e e l i g i b l e f o r A r t i c l e 3 o f t h e C on ve nt io n
a g a i ns t To r t u r e , t h e r e s po n de n t m u st e s t a b l i s h t h a t h e wo u l d b e
s ub je c t t o t o r t u r e , b y o r a t t h e i n s t i g a t i o n o f o r w i t h t h e
c on se nt o r ac qu ie sc en ce o f a p u b l i c o f f i c i a l o r p e rs o n a c t i n g i n
an o f f i c i a l c a p a c i t y . 8 C . F. R . S e c t i o n 1 2 08 . 18 ( a ) ,
ANALYSIS AND CONCLUSIONS
The f i r s t i s s u e f o r t h e C o u r t t o a d dr e ss i s t h a t o f t h e
r es po nd en t ' s c r e d i b i l i t y . T h e C o u r t a c ce p ts t h e r e s po n d en t ' s
t e st i mo n y as c r e d i b l e .
The r e s p o nd e n t c l a i m s t h a t h e h a s p r e v i o u s l y b e e n p e r s e c u t e d
as a member o f a p a r t i c u l a r s o c i a l g r o up i n E l S a l v a d o r . H e a l s o
c la im s t h a t h e ha s a w e l l - f ou n d ed f e a r o f f u t u r e p e r s e c u t i o n
s h ou l d h e r e t u r n , b o t h , o n t h e b a s i s o f h i s me mb er sh ip i n a
p a r t i c u l a r s o c i a l g r ou p a nd p o l i t i c a l o p i n i o n .
Respondent c l a i m s t h a t h e f e a r s t h a t h e w i l l b e p e r se c u te d
by t h e members o f h i s f o r m e r g an g , t h a t b e i n g MS -1 3, b e c a u s e h e
l e f t t h a t ga ng a nd s uc h q u i t t i n g o f a ga ng i s n o t p e r m i t t e d b y
t he g a ng . T h e r e s po n d e nt h a s s u b m i t t e d s u b s t a n t i a l am ou nt o f
backg round i n f o r m a t i o n a nd t h i s c l a i m i s c o n s i s t e n t w i t h t h a t
i n f o r m a t i o n .
The r e s p o n d e n t p o i n t e d t o a n um be r o f i n s t a n c e s w h e r e h e h a d
been t h e v i c t i m o f v i o l e nc e i n c o nn e c t i on w i t h t h e g a ng s . F i r s t ,
he w as be a t en a t t h e t i m e t h a t h e j o i n e d t h e g an g, a s p a r t o f a n
A 9 9 5 3 0 5 8 8 5 S e p t e m b e r 8 , 2 0 0 6
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i n i t i a t i o n r i t u a l . N e x t , h e was b ea te n when h e l e f t t h e ga n g a s
a f o r m o f p u n is h m en t o r b e ca us e t h a t i s w h a t t h e y d o wh en someone
q u i t s a g a ng . T h i r d , h e w as b e at e n, a p p r o x i m a t e l y o ne mo nt h
a f t e r h e l e f t t h e ga ng , f o r t h e same r ea so n , t h a t b e i n g t h a t h e
a tt em pt e d o r was t r y i n g t o l e av e t h e g an g. H e a l s o t e s t i f i e d
t h a t h e wa s e s s e n t i a l l y a s s a u l t e d b y t h e g an g w h i l e h e wa s a
member b y b e i n g d r u g g e d , h a v i n g d r u g s p l a c e d i n a C o c a - C o l a a n d
t he n h a v i n g a t a t t o o e m bl az on ed o n h i s s h o u l d e r w h i l e h e wa s
under t h e e f f e c t s o f t h e d r u g .
The r es po nd en t t e s t i f i e d t h a t h e was o n l y a r r e s t e d o ne t i m e
and t h a t t i m e w as w he n h e wa s a t a d i s c o w i t h f e l l o w g a ng members•
and some k i n d o f d i s t u r b an c e b r ok e o u t . H e t e s t i f i e d t h a t h e was
d e ta i ne d b y p o l i c e f o r a p p r o x i m at e l y t h r e e da y s b u t t h a t h e w as
n ot a bu s ed o r h ar me d b y t h e p o l i c e .
The G o ve r nm en t a r g u e s t h a t a g a n g me mb er o r f o r m e r g a n g
members a r e n o t p a r t i c u l a r s o c i a l g r o u ps be ca us e t h e y h a ve n o t
been s o d e f i n e d b y t h e B o a rd o f I m m i g r a t i o n A p p ea l s o r o t h e r
j u d i c i a l a u t h o r i t y . T h e Government i s c o r r e c t , o r a t l e a s t t h a t
t h i s C o u r t i s n o t aw ar e
d e p i c t e d o r c a t e g o r i z e d
r es po nd en t i n v i t e s t h i s
r e s po n d en t s f a v o r .
The Cour t
o f a n y b i n d i n g p r e c ed e nt t h a t h a s
gangs a s a p a r t i c u l a r s o c i a l g r o up . T h e
C ou rt t o m ake s u ch a r u l i n g i n t h e
g r e a t l y t r o u b l e d b y t h e c i r c um s ta n c es t h a t a r e
d e p i c t e d i n t h e b a c kg r ou n d m a t e r i a l s u b m i t t e d b y t h e r e s p on d e n t
and b y t h e r e s p o nd e n t s t es t i mo n y e h e p i c t u r e p r e s e n t e d h er e
A 9 9 5 3 0 5 8 8 6 S e p t e m b e r 8 , 2 0 0 6
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mass ive s o c i e t a l f a i l u r e . H o w e v e r , t h e C o u r t i s n o t s a t i s f i e d
4Se.-t h a t t h a t s o c i e t a l 4 e r i n E l S a l va do r i s p r o p e r l y a d d re ss e d
under U . S . a s y l u m l a w . A c c o r d i n g l y , t h e C o u r t d e c l i n e s t o f i n d
t h a t t h e r es p o nd e n t h as e s t a b l i s h e d t h i s a s a p a r t i c u l a r s o c i a l
g r oup .
N ex t, t h e C o u r t c o nc l u d es t h a t t h e h a r m t h a t t h e r e s po n de n t
has p r e v i o u s l y s u f f e r e d i s n o t p e r s e c u t i o n u n d er U .S . a sy l u m la w s
and i t i s n o t b ec au se o f t h e r e s p o n d e n t s me mb er sh ip i n a
p a r t i c u l a r s o c i a l g ro up :— Arri—ttTn-r--T.e.-7/_ rg.. w he th e r t h a t s o c i a l
g ro up b e d e f i n e d a s g a n g me mb er s o r f o r m e r g a n g me mb er s.
The C o u r t n o t e s t h a t t h e b a c kg r ou n d e v i d e n ce s u b m i t t e d b y
the r e sp o nd e nt i n d i c a t e s t h a t E l S a l v a d o r i s o n e o f t h e m os t
dangerous p l a c e s i n t h e w o r l d t h a t on e m i g h t b e . S o m e o f t h e
s t a t i s t i c s i n t h e r e i n d i c a t e t h a t t h e mu rd er r a t e i n E l S a l v a do r
some s e v en o r e i g h t t i m e s t h a t o f t h e m u r d er r a t e i n New Yo r k
C i t y. T h e r e i s n o q u e s t i o n , i t i s a v e r y , v e r y da n ge r o us p l a ce
f o r p eo p l e t o b e N e i t h e r i s t h e r e an y q u e s t i o n t h a t g a n g s a r e a
v er y s e r i o u s s o c i a l p r o b l em i n E l S a l v ad o r.
The C o u r t w o u l d n o t e t h a t t h e r e s p o n d e n t s b e a t i n g s w er e n o t
l i m i t e d t o a f t e r t h e t i m e t h a t h e h ad q u i t t h e ga n g. A p p a r e n t l y ,
th e i n i t i a l r i g h t i n c l u d e s b e a t i n g s . T h e r e sp on de n t was a l s o
p h y s i c a l l y ab u se d w h i l e h e wa s a member o f t h e g an g , t h a t b e i n g
t h a t h e w as dr ug g ed an d t h e n t a t t o o e d . A n d t h e n t h e r e s p on d en t
was b e a t e n a f t e r h e a t t em p t ed t o l e av e t h e g an g. S o , i t i s
o bv io us t h a t t h e r e sp e n de n t w as a bu se d, b u t i t i s n o t o b v i o us
A 9 9 5 3 0 5 8 8 7 S e p t e m b e r 8 , 2 0 0 6
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t h a t h e w a s a bu s ed be ca us e o f a p r o t e c t e d g r o u n d .
The r es po nd en t wa s n o t a b l e t o i d e n t i f y a p o l i t i c a l o p i n i o n
t h a t h e h e l d , e i t h e r w h i l e h e w as a c i t i z e n o f E l S a l v ad o r o r
s i n c e . H e d i d t e s t i f y t h a t h e b el on g ed t o a p o l i t i c a l p a r t y b u t
t h e s o l e p o l i t i c a l a c t i v i t i e s i n w h i ch he c l a i m e d t o h a ve en gag ed
was t o p r o v i d e w a t e r t o p a r t i c i p a n t s a t g a t h e r i n g s o f t h e
p o l i t i c a l p a r t y .
The r es p on de n t s t a t e d n o p o l i t i c a l o p i n i o n , s t a t e d n o
p o l i t i c a l ag e n da a n d i d e n t i f i e d n o o t h e r p o l i t i c a l a c t i v i t i e s .
The C o u r t a l s o c o nc l ud e s t h a t t h e r e s p o n d e n t ' s f e a r o f t h e
v i g i l a n t e , t h a t b e i n g t h e f a t h e r o f on e o f h i s v i c t i m s , i s n o t
p e r se cu t i o n e i t h e r . T h e C o u r t w ou ld n o t e t h a t t h e r e a r e a c o u p l e
o f b ac kg ro un d c as es t h a t i t w i l l c i t e a t t h e momen t .
One, M a t t e r o f R - 0 - , 2 0 1 0 . De c. 4 5 5 ( B I A 1 9 9 2 ) , i n v o l v e d a
s i t u a t i o n w he r e t h e r e was f o r c e d r e c r u i t m e n t i n t o t h e m i l i t a r y
and t h e B o a rd h e l d t h a t s u c h f o r c e d r e c r u i t m e n t w as n o t
p er se cu t i on . W h i l e t h i s i s n o t d i r e c t l y on p o i n t w i t h t h e
s i t u a t i o n t h a t we f a c e h e r e , i t i s n o t a l l t h a t f a r o f f b e ca u s e
t he r es p on d en t h e r e c l a i m s t o h a v e b ee n r e c r u i t e d i n t o t h e g an g
b u t t h e a mo un t o f f o r c e see ms t o h a ve b e en m i n i m a l a n d i t w as
b a s i c a l l y en co ur ag em en t b y a c o u s i n .
Much o f t h e t e s t i m o n y a n d much o f t h e b a c k g r o un d m a t e r i a l
r e l a t e s t o c r i m e s c o mm i t te d i n E l S a l v a d o r a mo ng s t g a ng s a n d
amongst t h e g e n e r a l p o p u l a t i o n , p a r t i c u l a r l y t h e e x t r a o r d i n a r i l y
h ig h m ur de r r a t e a n d t h e r a t e o f o t h e r c r i m e s .
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I n e f f e c t , t h e a b us e a b o u t w h i c h t h e r e s p o nd e n t h as
co mp l ai ne d t o da y w ou l d b a s i c a l l y q u a l i f y a s b e i n g t h e v i c t i m s o f
t he c r i m e . E a c h o n e o f t h e b e a t i n gs w ou l d a pp ea r t o t h e C o u r t t o
be a c r i m i n a l a s s a u l t . L i k e w i s e , i t w ou ld b e t h e f a c t t h a t t h e
r e sp o nd e nt h a v i n g b e e n dr u g g e d a n d t h e n t a t t o o e d .
The B o ar d o f I m m i g r a t i o n A p p e al s h a s h e l d t h a t c r i m i n a l
o f f e ns e s, e v e n v e r y s e r i o u s c r i m i n a l o f f e n s e s , s u c h a s k i d n a p i n g ,
does n o t a mo un t t o p e r s e c u t i o n . S e e M a t t e r o f V - T- S , 2 1 I N
D e c . 7 9 2 ( B I A 1 9 9 7 ) .
A c c o rd i n g l y, t h e C o u r t co n c l u de s t h a t t h e r e sp o n de n t h a s n o t
e s t a b l i s h ed e i t h e r t h a t h e ha s p r e v i o u s l y b ee n p e rs e cu t ed o r t h a t
he h a s a w e l l - f o u n d e d f e a r o f p e r s e c u t i o n o n a p r o t e c t e d g r o u nd ,
s ho ul d h e b e r e t u r n e d t o E l S a l v a do r . A c c o r d i n g l y , h i s
a p p l i c a t i o n f o r a sy lu m i s d e n i ed .
The b ur de n o f p r o o f t o e s t a b l i s h e l i g i b i l i t y f o r w i t h h o l d i n g
under t h e s t a t u t e i s h i g h e r t h a n t h a t r e q u i r e d t o e s t a b l i s h
e l i g i b i l i t y f o r a sy lu m. F o r a sy l um , a w e l l - f o un d ed f e a r i s a l l
t h a t i s r e q u i r e d , b u t f o r w i t h h o l d i n g , t h e r es p on d en t m us t s ho w
t h a t i t i s m or e l i k e l y t h a n n o t .
T hi s r e s p o n d e n t r e l i e s u p o n t h e same t e s t i m o n y a n d t h e sa me
e v i den ce a n d t h e same e v e n t s t o e s t a b l i s h h i s e l i g i b i l i t y f o r
w i t h h o l d i n g a s h e r e l i e d u po n i n s u p p or t o f h i s a p p l i c a t i o n f o r
asy lum.
As t h e C o u r t c on c l ud ed t h a t h i s e v i de n ce w as i n s u f f i c i e n t t o
meet t h e l o w e r s ta n d ar d , t h e C o u r t l i k e w i s e c o n c l u de s t h a t h i s
A 9 9 5 3 0 5 8 8 9 S e p t e m b e r 8 , 2 0 0 6
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e v i den ce i s i n s u f f i c i e n t t o m ee t t h e s t a n da r d f o r w i t h h o l d i n g o f
r emova l . A c c o r d i n g l y , t h a t a p p l i c a t i o n w i l l a l s o be d e n i e d .
Wi th r e s p e c t t o w i t h h o l d i n g o f r e m ov a l u n d e r t h e C o n ve n t i o n
a g ai n s t To r t u r e , t h e C o u r t c o nc l ud e s t h a t t h e r e sp o n de n t h a s n o t
p r e v i o u s l y b ee n t o r t u r e d a nd t h a t i n h i s t e s t i m o n y , h e d oe s n o t
f e a r p h y s i c a l ha rm , m uc h l e s s t o r t u r e , a t t h e h a nd s o f t h e p o l i c e
o r t h e g ov er nm en t o f E l S a l v a d o r . T h e r e s po n d e nt a c t u a l l y
t e s t i f i e d t h a t h e w ou l d ex p e c t t h e p o l i c e t o l e a v e h i m a l o n e
u n le s s h e c o m m i t t e d some s o r t o f o f f e n s e .
A lt ho ug h t h e C o u r t i s s y m p at h e t ic t o t h e r e s po n d en t
c i r cu ms ta nc es , t h e C o u r t wo u l d annou nce f o r t h e p a r t i e s , t h i s i s
n ot a d i s c r e t i o n a r y d e t er m i n a t i on . T h i s i s n o t a n o p t i o n f o r t h e
C ou rt t o a c t l i k e G od a nd do w h a t s r i g h t a n d e x te n ds a h e l p i n g
hand when i t f i n d s t h a t t h e l a w do e s n o t p e r m i t i t . T h e C o u r t
has n o b a s i s f o r c o n c l u d i n g t h a t t h e r e w o u ld b e a n y a dv e rs e
e x er c is e o f d i s c r e t i o n . T h i s i s p u r e l y a m a t t e r o f l e g a l
a n a l y s i s a n d t h e C o u r t c o nc l ud e s t h a t t h e r e s p o nd e n t d oe s n o t
q u a l i f y
A c co r d i n g l y, t h e f o l l o w i n g o r d e r s w i l l b e e n t e r e d ;
ORDER
The r e s p o n d e n t s a p p l i c a t i o n s f o r a s y l u m, w i t h h o l d i n g o
r em ov al , a n d p r o t e c t i o n u n d e r t h e C o nv e n t i o n a g a i n s t T o r t u r e a r e
d e n i e d .
A 9 9 5 3 0 5 8 8 1 0 S e p t e m b e r 8 , 2 0 0 6
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FURTHER ORDER
The r e s po n d e nt i s o r d e r e d re mo ve d f r o m t h e U n i t e d S t a t e s t o
E l S a l v a d o r on t h e c h ar g e c o n t a i ne d i n t h e N o t i c e t o A p p ea r.
W. WAYNE TO GN ERU.S. I q r a t i o n J
A 9 9 33.0 5 8 8 1 1 S e p t e m b e r 8 2 0 0 6
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CERTIFICATE PAGE
h er eby c e r t i f y t h a t t h e a t t a c h e d p r o c e ed i ng b e f o r e
JUDGE WAYNE STOGNER,• in t h e m a t t e r o f :
NELSON DE JESUS SANCHEZ
A 99 530 5 88
S e a t t l e , W a s h i n g t o n
i s a n a c c u r a t e , v e r b a t i m t r a n s c r i p t o f t h e c a s s e t t e t a p e a s
p r ov i de d b y t h e E x e c u t i v e O f f i c e f o r I m m i g r a t i o n R ev ie w a nd t h a t
t h i s i s t h e o r i g i n a l t r a n s c r i p t t h e r e o f f o r t h e f i l e o f t h e
E x ec u t i v e O f f i c e f o r I m m i g r a t i o n R e vi ew.
Susan A i e l l o , T r a n s
Free S t a t e R e p o r t i n g , I n c .1378 C ap e S t . C l a i r e R o adA n n ap o l is , M a r y l a n d 2 1 4 0 1 301) 261 - 19 02
O c to b e r 1 8 , 2 0 0 6
c o m p l e t io n d a t e )
By s u b m i s s i o n o f t h i s CERTIFICATE PAGE, t h e C o n t r a c t o r c e r t i f i e st h a t a S o n y D EC /T- 14 7 , 4 - c h a n n e l t r a n s c r i b e r o r e q u i v a l e n t , a sd e s c r i be d i n S e c t i o n C, p a r a g r a ph C . 3 . 3 . 2 o f t h e c o n t r a c t , w a s u se dt o t r a n s c r i b e t h e R e c o r d o f P r oc e e d i n g s h o w n i n t h e a b o v ep a r a g r a p h .
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
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B D e c i s i o n of the Board of Immigration Appeals
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epartment of JusticeExecutive Office for Immigration Review
Church, Vi r nia 22041
File: A 9 9 530 588 - Tacoma
In re: NELSON DE JESUS SANCHEZ
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Denise Farr, Esquire
ON BEHALF OF MIS: Thomas Molloy, Assistant Chief Counsel
ORDER:
PER U M I A K The respondent, a citizen of El Salvador, has appealed the Immigration Judge'sdecision to deny his application for asylum and withholding of removal under sections 208 and
241(b)(3) of the Inunigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), and protectionunder Article 3 of the United Nations Convention Against Torture ( Convention ). The appeal willbe dismissed.
The facts o f this case are reflected in the limnigration Judge's decision. W e note thatmembership in a gang is not a protected wound, unless it can be established that it constitutes
membership in a particular social group. However, a membership in a particular social group meansmembership in a group of people all of whom share a common, immutable characteristic, that is, acharacteristic that is either beyond the power of the individual members to change, or that is so
fundamental to their identities or consciences that it should not be required to be changed. Matter
of Kasinga, 21 I&N Dec. 357 (WA 1996). S inc e gang membership is not an immutablecharacteristic, the respondent failed to establish he was a member of a particular social group. On
appeal, the respondent argues that as a former gang member, he is a member of a particular socialgroup.
Even if former membership in a gang constitutes a particular social group, we cannot find that
the respondent was persecuted or has a well-founded fear of persecution because of his formeraffiliation. Notwithstanding the brutal treatment the respondent received from gang members during
his gang initiation and membership, we cannot find that such was intended as a means o f punishinghim because he was a gang member. Rather, the purpose of the mistreatment appears to be designed
as a method of imposing discipline within the gang. In addition, we agree with the ImmigrationJudge that the respondent did not suffer persecution or establish a well-founded fear of persecution
52- 1
Decision of the Board of Immigration Appeals
Date:
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A99 .530 588
on account of his decision to leave the gang.
In Matter of Maldonado-Cruz, 19 l N Dec. 509 (BIA 1988), revd, 883 F.2d 788 (9th Cir.1989), we held that the threat of harm to a deserter from a guerrilla organization is part of the
military policy of that group, inherent in the nature of the organization, and a tool of discipline. Thethreat of harm to a deserter is not an act of persecution. Id. See also Zehalye v, Gonzales,453 F.3d
1182 (9th Cir. 2006) (forced conscription or punishment for evasion of military duty generally doesnot constitute persecution). We find this principle applicable to the instant case. There is noevidence in the record that the respondent fears persecution because of his former membership in
a criminal gang in El Salvador. The respondent's fear stems from his apprehension of the harm that
he may experience from the gang because of his decision to leave the gang. Such is not a basis fora grant of asylum in the United States. Zehalye v. Gonzales, supra. In addition, we cannot find thatit has been shown that a nationwide threat of harm exists to the respondent. Matter of C-A-L, 211
N Dec. 754, 757 (BIA 1997). The Immigration Judge's decision is affirmed.
Accordingly, the appeal is dismissed.
FORT BOARD
2
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C 8 C F R § 208 13
53
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Department of Homeland Security
(c) Asylum officers and immigrationjudges may request specific commentsfrom the Department of State regard-ing indi vidual cases or types o f claimsunder consideration, o r such ot her i n-forma tion as they deem appropriate.
(d) Any such comments received pur-suant to paragraphs (b) and (c) of thisse ct io n s h a l l b e m a d e p a r t o f t h erecord. Unless the comment s are classi-
f ied under the app l icab le Execut iveOrder, th e ap plicant shall be providedan opportunity to review and respond
to such comments prio r t o the issuanceof any decision to deny the application.
[62 F R 10337, Mar. 6, 1997, as am ended at 64FR 8488, Feb. 19, 19991
§208.12 Relia nce on informa tion com-piled b y othe r sources.
(a) In deciding an asylum appl ica-t ion, or in deciding whether the al ienhas a credible fear of persecution ortor tur e pursuant to §208.30 of this part,or a reasonable fear of persecution ortor tur e pursuant to §208.31, the asylumoff icer may r ely o n mater ia l providedby the Department of State, the Officeof Internat ional Affairs , other Serv iceoffices, or othe r credible sources, suchas internat ional organizations, pri vate
vo luntary agenc ies , ne ws organ iza-tions, or academic institutions.
(b) Nothing in this part shall be con-strued to ent i t le the appl icant to con-duc t d i s cov e ry d i r ec ted towar d th erecords, officers, agents, o r employeesof the Service, the Department of Jus-tice, or the Department of State. Per-sons may continue to seek documentsavailable through a Freedom of Infor-mation Act (FOIA) request pursuant to8 CFR part 103.
162 FR 10337, Mar. 6, 1997, as amended at 64FR 8488, Feb. 19, 1999; 65 F R 76133, Dec. 6,20001
§208.13 E s tab l i s hing a s y l um e l i g i -bil i ty.
(a) Burden o f proof Th e burden o fproof is on the applicant fo r asylum toestablish th at he or she is a refugee asdefined in section 101(a) (V) o f the Act .The testimony of the applicant, if cred-ib le, may be suff ic ient to sustain theburden of proof witho ut corroboration.The fact t hat the appl icant previouslyestablished a credible fear of persecu-ti on fo r purposes o f section 235(b) (1) (B)
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§208.13
of the Act does not relieve the alien of
the addit ional burden o f establ ishingeligibil i ty for asylum.
(b) E l i g ibi l i t y. T h e app l i c an t m a yqualify as a refugee either because heor she has suffered past persecuti on o rbecause he or she has a well-founded
fear of future persecution.(1) Pa st persecution. A n app l ic ant
shall be found to be a refugee on thebasis of past persecution i f the appli -cant can establ ish th at he o r she has
suffered persecution in the past i n t he
applicant s country of n ation ality or, ifstateless, in his or her country of lasthabit ual residence, on account of race,religion, nationality, membership in apa rt i cu lar s ocia l g r oup , o r po l i t i c a lopinion, and is unable or unwi l l ing t oreturn to, or avail himsel f or herself of
the protect ion of, that country owingto such persecution. A n applicant whohas been found t o have es tab l ished
such past persecution shall also be pre-sumed to have a well-founded fear of
persecution on the basis of the orig inalclaim. That presumption may be rebut-ted if an asylum officer or i mmigrat ionjudge makes one o f the f ind ings de-scr ibed i n paragraph (b)(1)( i ) o f th i s
section. I f the applicant s fear of futurepersecution is unre la ted t o th e pa s tpersecution, the appl icant bears theburden of establishing that the fear iswell-founded.
(i) Discretionary referral or denial. Ex-cept as provided in paragra ph (b) (1) (iii)of this section, an asylum officer shall,in the exercise of his or her discretion,
refer or deny, or an immigration judge,in the exercise of his or her discretion,shall deny the asylum application of analien found to be a refugee on the basisof past persecution i f any of the fo l-lowing is found b y a preponderance o fthe evidence:
(A) The re has been a fundamentalchange in circumstances such that theapplicant no longer has a well-foundedfear o f persecution in th e appl icant scountry of nat ional i ty o r , i f s tateless,in the applicant s countr y of last habit-ual residence, on account of race, reli-
gion, nationality, membership in a par-t icular social group, or pol i t i cal opin-ion; or
(B) The applicant could avoid futurepersecution by relocat ing to another
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
http://slidepdf.com/reader/full/principal-brief-of-petitioner-nelson-de-jesus-sanchez-sanchez-v-holder-no 77/78
§208.13
part o f the appl icant s coun try of na-t ion al i t y or , i f s tateless, another par tof the applicant s country of last habit-ua l res idence, and under a l l the c i r -cumstances, i t woul d be reasonable to
expect the applicant to do so.(ii) Burden of proof. In cases in which
an app l icant h as demonstra ted pas tpersecution under paragraph (b )(1) o fthis section, the Service shall bear the
burden of establishing by a preponder-ance of the evidence the requirementsof paragraphs (b) (1)(i) (A) o r (B) o f thi s
section.(iii) Grant in the absence of well-found-
ed fear of persecution. An applicant de-scr ibed i n paragraph (b)(1)( i ) o f th i ssection who is not barred from a gra ntof asylum under paragraph (c) of thissection, may be granted asylum, in theexercise of the decision-maker s discre-tion, if:
(A) The applica nt has demonstratedcompell ing reasons fo r being unwi ll in gor unable to return to the count ry aris-ing out of the severity of the past per-secution; or
(B) Th e a pp l icant ha s es tab lishedthat there is a reasonable possibi l i tythat he or she may suffer other serious
harm upon removal to tha t country.(2) Well-founded fear of persecution. (i )
An app licant has a well-founded fear ofpersecution if:
(A) The applicant has a fear of perse-cution in his or her country of nation-al it y or, i f stateless, in his o r her coun-try of last habitual res idence, on ac-c ount o f r ac e, r e l i g ion , na t i ona l i t y ,m ember sh ip i n a pa r t i c u l a r s oc ia lgroup, or political opinion;
(B) There is a reasonable possibilityof suffering such persecution i f he orshe were to return to that country; and
(C) He o r she is unable o r u nwil l ingto re turn to, or avail hi mself or herself
of the protect ion of, that country be-cause of such fear.
( ii ) An app l icant does no t have awell-founded fear of persecution i f theappl icant could avoid persecution b yrelocating to another part of the appli-c an t s c o un t r y o f n a t i o n a l i t y o r , i fs ta te less , another par t o f the app l i -c an t s c oun t r y o f l as t hab i tua l r es i-dence, if under all the circumstances i t
would be reasonable t o expect the ap-pli cant to do so.
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8 CFR Ch. I (1-1-07 Edition)
( i i i) In evaluating whether the appli-cant has sustained the burden of prov-ing that he or she has a well-foundedfear of persecution, the asylum office ror immigration judge shall not requirethe applican t to provide evidence tha tthere is a reasonable possibil i t y he o rshe would be s ingled out indiv id ual lyfor persecution if:
(A) The appl icant establ ishes thatthere is a pattern or practice in his orher country of nat ional i ty or , i f s tate-less, in his or her country of last habit-
ual residence, of persecution of a groupof persons sim ila rly situated to the ap-pli cant on account o f race, religion, na-t iona l i ty , membersh ip in a par t icu larsocial group, or political opinion; and
(B) The applica nt establishes hi s orher own inclusion in, and identi fication
with, such group of persons such th athis or her fear o f persecution upon re-turn is reasonable.
(3) Reasonableness o f inte rnal reloca-don. F o r purposes of determinationsunder paragrap hs (b)(1)(i), (b)(1)(ii), and(b) (2) o f t h i s sec t io n , ad jud ica torsshould consider, bu t are not l imi ted to
c onside ring , whe the r t h e app l i c an twould face other ser ious harm i n the
place of suggested relocation; any on-
go ing c iv i l s t r i fe w i th in the country ;administrat ive, economic, or judic ia li nf rast ructur e; geog r aph ic a l l i m i t a -t i ons ; and s oc ia l and c u l tu r a l c on -
straints, such as age, gender, health,and social and familial ties. Those fac-
tors may, or may not, be relevant, de-pending on all the circumstances of thecase, and are not necessar i ly deter-minative of whether i t would be rea-
sonable for the app licant t o relocate.(i) I n cases in wh ich th e appl icant
has not established past persecution,the applicant shall bear the burden ofestablishing that i t would not be rea-sonable for hi m or her to relocate, un-less the persecution is by a government
or is government-sponsored.(i i) I n cases in whic h th e persecutoris a government or is government-spon-sored, or the applicant has establishedpersecution in the past, it shall be pre-sumed that internal re locat ion wouldnot be reasonable, unless the Serviceestablishes by a preponderance of theevidence t h a t , u n d e r a l l t h e c i r -cumstances, i t would be reasonable forthe applicant to relocate.
8/21/2019 Principal Brief of Petitioner Nelson De Jesus Sanchez, Sanchez v. Holder, No. 06-75797 (9th Cir.)
http://slidepdf.com/reader/full/principal-brief-of-petitioner-nelson-de-jesus-sanchez-sanchez-v-holder-no 78/78
Department of Homeland Security
c) Mandatory denials— 1) Applicationsfiled on or after April 1, 1997. For appli-cat ions f i led on or after Apr i l 1, 1997,an appl icant shal l not q ual i fy for asy-lum i f section 208 a) 2) o r 208 b) 2) o f
the Act applies to the applicant. If theappl icant is found to be inel ig ib le f orasylum under either section 208 a) 2) or208 b) 2) of the Act, the appl ican t shallbe considered for el ig ib i l i ty for wi th-h ol di ng o f r e m ov a l u n d e r s e c t i o n241 b) 3) o f the Act. The appl icant shalla lso be considered for e l i g ib i l i ty fo rwithh oldin g of removal under the Con-vent ion Aga ins t Tor tur e i f the app l i -cant requests such consideration o r i fthe evidence presented by the alien in-dicates that the alien may be torturedin the country of removal.
2) Appl icat ions f i led before Ap r i l 1,1997. i) A n i mmigr atio n judge or asy-lum of f icer sha l l no t g rant asy lum t oany appl icant who f i led his or her ap-p l ica tion before Apr i l 1 , 1997, i f thealien:
A) Havi ng been convicted b y a finalj u dg me n t o f a p a r t i c u l a r l y se r io u scrime i n the United States, constitutes
a danger to the communi ty;
B) Has been f i r mly resett led w ith inth e mean ing of §208.15; C) Can reasonably be regarded as a
danger to the secur i ty o f the Un i tedStates;
D) Has been convicted of an aggra-v ated fe lony , as de f i ned i n s ec t i on101 a) 43) of the Act ; or
E) Ordered, incited, assisted, o r oth-
erwise participated in the persecutionof any person on account of race, reli-gion, nationality, membership in a par-t icu lar social group, or pol i t ical opin-ion.
ii) I f the evidence indicates th at one
of the above grounds apply to the ap-
§208.14
l ieve tha t the i ndividual is a danger tothe security of the United States.
[62 FR 10337, Mar. 6, 1997, as amended at 64FR 8488, Fe b. 19, 1999; 65 F R 76133, Dec. 6,2000]
§208.14 App rov al, de nial, refe rral, o rdismissal of application,
a) B y an immigration judge. Unlessotherwise pro hibi ted i n §208.13 c), a nimmigrat ion judge may grant or denyasylum in the exercise of discretion to
an applicant who qualifies as a refugeeunder section 101 a) 42) of the Act.
b) App rova l b y a n asylum officer. I nany case wit hin the jur isdic t ion of theOff ice o f Internat ional Affairs , unlessotherwise pro hibi ted i n §208.13 c), a nasylum officer may grant, in the exer-cise of his or her discretion, asylum toan applicant who qualifies as a refugeeunder section 101 a) 42) of the Act, andwhose identity has been checked pursu-ant to se ction 208 d) 5) A) i) of the Act .
c) Denial, referral, or dismissal by anasylum of ficer . I f th e asy l um of f icerdoes not grant asylum to an applicantafter an interview conducted in accord-
ance wit h §208.9, o r if, as provided in§208.10, the applicant is deemed to have
waived his or her r ight to an interviewor an adjudicat ion by an asylum off i -c e r , the as y lum o f f i c e r s ha l l deny ,refer, or dismiss the application, as fol-lows:
1) Inadmissible o r deportable aliens.Except as provide d in paragraph c) 4)of this section, i n the case of an appli-cant who appears to be inadmissible o rdeportable under section 212 a) or 237 a)o f the A c t , the as y lum o f f i c e r s ha l lre fer the app l ica t ion to an immigra-t ion judge, together w i th the appro-pr ia te charg ing document , fo r ad ju-dication i n remova l proceedings or ,where charging documents may not beissued, shall dismiss the application).