Reynaldo Salgado-Sosa v. Jefferson Sessions III
Opinion
Reynaldo Salgado-Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS-13, which has repeatedly attacked his family for resisting extortion demands.
The agency proceedings focused on whether Salgado-Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS-13's threats and membership in a cognizable "particular social group"-here, Salgado-Sosa's family. The Board of Immigration Appeals found that Salgado-Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado-Sosa's asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture.
We conclude that the Board erred in holding that Salgado-Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado-Sosa's persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in
Zambrano v. Sessions
,
I.
In August 2005, Salgado-Sosa entered the United States without authorization and began living with his uncle in Sterling, *454 Virginia. In September 2010, the Department of Homeland Security served him with a notice to appear, charging him as an alien who had not been admitted or paroled in violation of section 212(a)(6)(A)(i) of the INA. Salgado-Sosa conceded removability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").
At his removal hearing, Salgado-Sosa and his stepfather, Humberto Merez-Merlo, testified before the Immigration Judge ("IJ") and submitted affidavits, an expert declaration, and other documentary evidence for the court's consideration. We begin by summarizing the testimony and evidence and then outline the legal proceedings that followed.
A.
Salgado-Sosa and his extended family were operating a small convenience store and automobile repair shop out of their family home in Tegucigalpa, Honduras, when armed members of the gang Mara Salvatrucha, known as "MS-13," began to threaten and harass them for a "war tax" in exchange for protection. Merez-Merlo, Salgado-Sosa's stepfather, refused to pay the gang and instead paid the local police to drive by their home every few hours.
In November 2002, five armed members of MS-13 broke into the family home and held Salgado-Sosa's parents at gunpoint. After the family attempted to fight back, MS-13 opened fire, missing Salgado-Sosa but shooting his stepfather twice. Salgado-Sosa and Merez-Merlo reported the incident to the police and later testified against several members of MS-13 at a preliminary criminal proceeding. Although at least one gang member was temporarily detained, all of the suspects were eventually released.
Shortly after the first attack, MS-13 broke into Salgado-Sosa's auto shop and stole his tools, forcing him to shut down his business. Some weeks later, when Merez-Merlo returned from the hospital, MS-13 attacked for a third time, firing on the family home from the street. Salgado-Sosa's family fired back, and suspect that they injured at least one member of MS-13 during the shootout.
Fearing reprisals, the family fled to Salgado-Sosa's grandparents' home in El Rosario, a nearby town, where they remained in hiding for approximately one year. After learning that MS-13 was gathering information on their whereabouts and planned "to kill whoever [they] were with," the family moved again, hoping to keep Salgado-Sosa's grandparents out of harm's way. J.A. 205.
Now in a different part of Tegucigalpa, Salgado-Sosa learned from his former neighbors that MS-13 was still searching for his family. In 2004, Salgado-Sosa's vehicle was hit from behind, resulting in an accident that caused him severe injuries. Although there were no witnesses, his family suspects that MS-13 was involved. That same year, Merez-Merlo was robbed and assaulted by someone he recognized as a member of MS-13.
In 2005, Salgado-Sosa's parents helped him escape to the United States. After living in Virginia and Maryland for five years, Salgado-Sosa was detained by ICE when his name appeared on an Interpol alert for car theft in Honduras-charges that were later dropped. Salgado-Sosa's family suspects that corrupt police may have been involved in filing those charges to cause his deportation.
At the removal hearing, Salgado-Sosa testified to and presented evidence regarding the events that led to his flight from Honduras and to the United States. Noting his family's warnings that MS-13 continues to ask about his whereabouts, he *455 confirmed that he remains in fear of returning to Honduras. Along with other evidence of country conditions in Honduras, Salgado-Sosa submitted a declaration from Dr. Thomas J. Boerman, an expert on organized crime in Honduras. Dr. Boerman opined that based on an interview with Salgado-Sosa, his review of the evidence in this case, his knowledge of how MS-13 operates, and the deteriorating conditions in Honduras after a 2009 coup, Salgado-Sosa would be "at high risk of egregious physical harm and death if returned to Honduras." J.A. 368.
B.
After considering the evidence and hearing Salgado-Sosa's testimony, the IJ found Salgado-Sosa generally credible, noting his demeanor and the consistency of his account with other information in the record. The IJ then addressed each of Salgado-Sosa's claims.
First, the IJ denied Salgado-Sosa's asylum application as untimely filed. Under the INA, aliens have one year to file for asylum after arriving in the United States.
The IJ next found that Salgado-Sosa is not entitled to withholding of removal. To qualify for withholding of removal, as the IJ explained, a petitioner must establish "a clear probability that [his] life or freedom would be threatened ... because of" one of several protected grounds, including "race, religion, nationality, membership in a particular social group, or political opinion."
Mejia v. Sessions
,
The IJ acknowledged that under
Crespin-Valladares
, "family ties can provide the basis for a cognizable particular social group." J.A. 124. She went on to hold, however, that Salgado-Sosa failed to satisfy the "nexus" requirement of § 1231(b)(3)(A), requiring that the feared persecution be
on account of
those family ties. To meet this standard, the IJ explained, a petitioner must show that a statutorily protected ground would be "at least one central reason" for the feared persecution. J.A. 123 (quoting
*456
Finally, the IJ denied relief under the CAT, which requires a petitioner to show that, if removed, it is "more likely than not that he or she would be tortured" with the consent or acquiescence of the government.
A one-member panel of the Board of Immigration Appeals ("BIA" or "Board") dismissed Salgado-Sosa's appeal and affirmed the IJ's findings. The BIA agreed with the IJ that Salgado-Sosa failed to qualify for the changed circumstances exception based on the argument he had presented to the IJ. The Board noted that Salgado-Sosa was raising for the first time on appeal an additional argument: that our 2011 decision in Crespin-Valladares , recognizing family as a protected social group under the INA, itself constitutes a "changed circumstance" allowing consideration of a late-filed asylum application. But because that argument had not been presented to the IJ, it was not properly before the Board, and the Board declined to address it.
The BIA then affirmed the IJ's denial of withholding of removal, agreeing that Salgado-Sosa had failed to establish a sufficient nexus between the threatened harm and membership in his family. Echoing the IJ, the BIA focused on MS-13's apparent reasons for targeting Salgado-Sosa's stepfather and family, and found that "[e]vidence ... that the perpetrators were motivated by financial gain or personal vendettas, in the absence of evidence to suggest other motivations, will not support a finding of persecution within the meaning of the [INA]." J.A. 5-6. Finally, the BIA found no reason to disturb the IJ's determination that Salgado-Sosa had failed to establish grounds for CAT protection.
Salgado-Sosa timely petitioned this court for review.
II.
When, as here, the BIA affirms the IJ's decision with an opinion of its own, we review both decisions.
Ai Hua Chen v. Holder
,
The primary issues on appeal involve Salgado-Sosa's applications for asylum and withholding of removal. Both asylum and withholding of removal are based on an applicant's showing of persecution, or, more specifically, persecution on account of a statutorily protected status, a list that includes "membership in a particular social group" as well as race, religion, nationality, and political opinion.
See
We first address whether Salgado-Sosa meets this nexus requirement, and then whether he can qualify for the "changed circumstances" exception that would allow consideration of his late-filed asylum application. 1
A.
Salgado-Sosa argues that he successfully established the required nexus between persecution and a protected ground because "at least one central reason" for the harm he faces is membership in a social group consisting of his family.
See
For three reasons, we are "compelled to conclude,"
see
Hernandez-Avalos
,
Second, that Salgado-Sosa's anticipated harm is on account of membership in his family follows from the IJ's own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa's feared persecution are his stepfather's refusal to pay the gang and revenge on the family for resisting MS-13's extortion. See J.A. 5-6, 126-27. On a proper reading of the nexus requirement and our cases applying it, that finding compels the conclusion that Salgado-Sosa's kinship ties are a central reason for the harm he fears.
Our decision in
Hernandez-Avalos v. Lynch
is instructive. There, the petitioner applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang.
The same logic applies here. There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather.
See
Hernandez-Avalos
,
Third and finally, the BIA's decision improperly focused on whether Salgado-Sosa's
family
was persecuted on account of a protected ground, rather than on whether
Salgado-Sosa
was persecuted because of a protected ground-here, his relationship to his family. The critical fact, for the BIA, was that the motive for the attacks on Salgado-Sosa's family was "financial gain or personal vendettas," neither of which is itself a protected ground under the INA. J.A. 6. But as we have explained before, it does not follow that if Salgado-Sosa's family members were not
*459
targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family.
Cordova v. Holder
,
For all these reasons, it is clear that Salgado-Sosa has shown the required nexus between anticipated persecution and membership in a particular social group consisting of his family. Specifically, Salgado-Sosa has demonstrated that "at least one central reason" for the harm he faces is his connection to his stepfather and family.
See
B.
As discussed above, Salgado-Sosa's asylum application was denied not on the merits, but because it was filed outside the one-year statutory deadline. On appeal, Salgado-Sosa separately challenges that determination, arguing that he qualifies for the "changed circumstances" exception that would allow consideration of his late-filed application.
See
As the government notes, we generally lack jurisdiction to review discretionary determinations that an asylum applicant failed to establish changed circumstances.
See
There is a separate reason, however, that we may not address that argument here. The BIA declined to reach Salgado-Sosa's argument because it was not raised before the IJ as a ground for overcoming the time bar. When the BIA does not reach a claim because it was not presented to the IJ, a petitioner has failed to exhaust his administrative remedies.
See
Massis v. Mukasey
,
Ordinarily, this would end our inquiry. But after briefing and argument in this case, we decided
Zambrano v. Sessions
,
In this case, as the IJ explained, Salgado-Sosa argued that "he qualifies for the changed circumstances exception because conditions in Honduras have deteriorated," pointing to the 2009 coup in that country as the source of "increased concerns" about the government's ability to control MS-13 and protect Salgado-Sosa from harm. J.A. 126. The IJ rejected that argument, reasoning that the underlying source of Salgado-Sosa's fear-gang attacks on him and his family-had not changed, and the Board affirmed without further analysis.
Because the IJ and BIA conducted their proceedings before
Zambrano
, they would have had no reason to depart from what was then agency policy and consider Salgado-Sosa's "intensification" argument and any supporting evidence. In light of
Zambrano
, however, the failure to consider such a claim and associated evidence would constitute error.
III.
For the foregoing reasons, we grant in part Salgado-Sosa's petition for review with respect to his eligibility for asylum and withholding of removal, deny in part with respect to his claim under the CAT, and remand the case to the BIA for further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS
Salgado-Sosa also challenges the denial of protection under the CAT. Here the standard requires that an applicant show both that it is "more likely than not" that he or she will be tortured if removed to the country in question and also that this torture will occur at the hands of public officials or with the government's consent or acquiescence.
See
Turkson
,
As before the IJ and Board, Salgado-Sosa's argument in this court emphasizes evidence that he and his family were targeted because of his stepfather's testimony against MS-13. But both on appeal and before the agency, Salgado-Sosa also has argued more generally that he fears persecution based on his membership in a "particular social[ ] group, as defined by
Crespin-Valladares v. Holder
,
Reference
- Full Case Name
- Reynaldo SALGADO-SOSA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
- Cited By
- 51 cases
- Status
- Published