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Persecution targeting family prevents removal.

Byline: Rebecca M. Lightle

Petitioner Reynaldo Salgado-Sosa, a native citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. According to testimony found credible by the Immigration Judge, Salgado-Sosa and his family operated two small businesses out of their family home in Tegucigalpa, Honduras. Armed members of the gang Mara Salvatrucha, known as MS-13, began to harass them for a war tax in exchange for protection. Salgado-Sosas stepfather, Humberto Merez-Merlo, refused to pay. In 2002, five armed MS-13 members broke into the family home and held Salgado-Sosas parents at gunpoint. After the family fought back, MS-13 opened fire and shot Merez-Merlo twice. The family reported the incident to the police and testified against several MS-13 members, but all of the suspects were eventually released. Shortly after the first attack, MS-13 broke into Salgado-Sosas shop and stole his auto-repair 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. The family fired back and suspect that they injured at least one MS-13 member. Fearing reprisals, the family fled and stayed in hiding with other relatives for approximately a year. When they heard that MS-13 was seeking their whereabouts and planning to kill whoever was sheltering them, the family fled again. In 2004, Salgado-Sosas vehicle was hit from behind, causing him severe injuries. There were no witnesses to the auto collision, but the family suspects 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-Sosas parents helped him escape to the U.S. He entered without authorization and lived with his uncle in Virginia. In 20, the U.S. Department of Homeland Security charged him under the Immigration & Nationality Act. Salgado-Sosa conceded removability but applied for asylum, withholding of removal, and CAT protection. At the removal hearing, Salgado-Sosa testified that his family still warns that MS-13 continues to ask about his whereabouts and, therefore, he remains in fear of returning to Honduras. Salgado-Sosa also offered the expert opinion of Dr. Thomas J. Boerman, who opined that Salgado-Sosa would be at high risk of physical harm and death if returned to Honduras, in part because of the deteriorating conditions in Honduras after a 2009 coup. The IJ determined that Salgado-Sosas asylum application was untimely filed, that he was not entitled to withholding of removal, and that he did not prove that he was entitled to relief under the CAT. The Board of Immigration Appeals affirmed these findings. Salgado-Sosa timely petitioned this court for review. Social-groupnexus The primary issues on appeal involve Salgado-Sosas applications for asylum and withholding of removal, both based on his claim of persecution on account of membership in a particular social group. Under this courts decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), it is clear that Salgado-Sosas family qualifies as a particular social group under U.S.C. 11(a)(42)(A) and 1231(b)(3)(A). The only question is whether Salgado-Sosa has shown the requisite nexus between his family membership and his persecution by MS-13, or whether, as the government argues, MS-13 is motivated by financial gain and revenge alone. This court is compelled to conclude that the IJ and the BIA erred in finding that Salgado-Sosa has not shown that his kinship ties are at least one central reason for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa on account of his connection to his family. Salgado-Sosa testified that MS-13 attacked him because of his stepfathers conflict with the gang, not his own. Merez-Merlo similarly testified that his own refusal to give MS-13 what they wanted led the gang to repeatedly threaten to kill his wife and son. In corroboration, the familys long-time neighbor averred that MS-13 targeted Salgado-Sosa because he defended his stepfather from the gang members when they assaulted the family. The IJ did not doubt the credibility of any of this evidence. Second, that Salgado-Sosas anticipated harm is on account of membership in his family follows from the IJs own factual findings, adopted by the BIA, that the central reasons for Salgado-Sosas feared persecution are his stepfathers refusal to pay the gang and revenge on the family for resisting MS-13s extortion. That finding compels the conclusion that Salgado-Sosas kinship ties are a central reason for the harm he fears. Similar to the courts analysis in Hernandez-Avalos v. Lynch, 74 F.3d 944 (4th Cir. 2015), there is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather and whether he was threatened because MS-13 sought revenge on him for his stepfathers act. However characterized, Salgado-Sosas relationship to his stepfather and to his family is indisputably why MS-13 threatened him, and not another person. Thus, the IJ and BIA erred by focusing narrowly on the immediate trigger for MS-13s assaults (greed or revenge) at the expense of Salgado-Sosas relationship to his family, which were the very relationships that prompted the asserted persecution. Third, the BIAs decision improperly focused on whether Salgado-Sosas family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa himself was. As this court has explained before, it does not follow that if Salgado-Sosas family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his family ties. Once the right question is asked, the record admits of only one answer: Whatever MS-13s motives for targeting Salgado-Sosas family, Salgado-Sosa himself was targeted because of his membership in that family. 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. Because the IJ and BIA relied exclusively on an erroneous determination as to nexus in denying withholding of removal, the court vacates that denial and remands for further proceedings. Changedcircumstances On appeal, Salgado-Sosa argues that, despite his untimely asylum claim, he qualifies for an exception under U.S.C. 115(a)(2)(D) based on changed circumstances. The BIA declined to reach this argument because it was not raised before the IJ as a ground for overcoming the time bar. This court is jurisdictionally barred from reviewing such unexhausted claims. Ordinarily, this would end the inquiry. But after briefing and argument in this case, this court decided Zambrano v. Sessions, 7 F.3d 4 (4th Cir. 2017). There, the court considered whether the intensification of a pre-existing threat of persecution qualifies as a changed circumstance for purposes of invoking the exception. The court held that it does and, therefore, the BIA in that case had applied the wrong legal standard by failing to consider new facts that provide additional support for a pre-existing asylum claim. In this case, Salgado-Sosa invoked 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 governments ability to control MS-13. In light of Zambrano, failure to consider Salgado-Sosas intensification argument and associated evidence would constitute error. Because neither the parties nor the BIA has had an opportunity to address whether and to what extent Zambrano affects Salgado-Sosas changed-circumstances claim, remand to the agency is proper. Petition granted in part, denied in part, and remanded for further proceedings. Salgado-Sosa v. Sessions, Case No. 16-1594, Feb. 13, 201; 4th Cir. (Harris); BIA. Alfred Lincoln Robertson Jr. for Petitioner; Anthony W. Norwood for Respondent. VLW No. 01-2-024, 16 pp.

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Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Feb 19, 2018
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