Francisco Javier Arriza-Escoba v. US Atty Gen

Filing

MANDATE ISSUED, filed.

Francisco Javier Arriza-Escoba v. US Atty Gen

Doc. 0 Att. 1

Case: 09-3193

Document: 003110238359

Page: 1

Date Filed: 08/03/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3193 ___________ F R A N C IS C O JAVIER ARRIZA-ESCOBAR, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A099-677-083) I m m ig r a tio n Judge: Honorable Eugene Pugliese _______________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 26, 2010 B e f o re : SLOVITER, JORDAN and GREENBERG, Circuit Judges (O p in io n Filed: June 1, 2010 ) _________ OPINION _________ P E R CURIAM F r a n c is c o Javier Arriza-Escobar petitions for review of the Board of Immigration A p p e a ls ' ("BIA") final order of removal. We will grant the petition.

Dockets.Justia.com

Case: 09-3193

Document: 003110238359

Page: 2

Date Filed: 08/03/2010

I. A rriz a -E s c o b a r is a citizen of El Salvador who concedes that he is present in the U n ite d States without admission or parole and is removable on that basis. See 8 U.S.C. § 1 1 8 2 (a )(6 )(A )(i). He seeks asylum, statutory withholding of removal, and relief under the C o n v e n tio n Against Torture ("CAT") on the grounds that members of a criminal o rg a n iz a tio n called Mara Salvatrucha, or MS-13, threatened to kill him and his brother b e c a u s e their father is a police sergeant who investigates gang violence. Arriza-Escobar testified before the Immigration Judge ("IJ") and offered b a c k g ro u n d evidence regarding MS-13. The IJ assumed that his testimony was credible, b u t denied relief and ordered his removal to El Salvador. Arriza-Escobar appealed to the B IA . He also filed a motion to remand on the grounds that his father was convicted of the h o m ic id e of gang members, a conviction he attributes to a "corrupt" judiciary he believes w ill also target him. By order issued June 30, 2009, the BIA denied Arriza-Escobar's m o tio n to remand and dismissed his appeal. Arriza-Escobar petitions for review.1

Arriza-Escobar raises no issue regarding the BIA's denial of his motion to remand, and in s te a d challenges only its dismissal of his appeal. We have jurisdiction to review that ru lin g pursuant to 8 U.S.C. § 1252(a)(1). "Because the BIA issued its own decision, we re v ie w that decision, and not that of the IJ." Sheriff v. Att'y Gen., 587 F.3d 584, 588 (3d C ir. 2009). We review the factual findings deferentially for substantial evidence, and m a y reverse only if "`a reasonable adjudicator would be compelled to conclude to the c o n tra ry,'" but "`that deference is expressly conditioned on support in the record[.]'" Toure v. Att'y Gen., 443 F.3d 310, 316 (3d Cir. 2006) (citations omitted). 2

1

Case: 09-3193

Document: 003110238359

Page: 3

Date Filed: 08/03/2010

II. A r riz a -E sc o b a r's principal challenge is to the BIA's denial of his claims f o r asylum and withholding of removal. Those claims required him to show (1) a wellf o u n d e d fear of persecution (for asylum) or a likelihood of persecution (for withholding) (2 ) on account of a statutorily protected ground 2 (3) by the government or forces that it is u n a b le or unwilling to control. See Toure, 443 F.3d at 316-17 (citation omitted). A s h o w in g of past persecution gives rise to a rebuttable presumption of a well-founded fear o f future persecution. See id. at 317. A rriz a -E s c o b a r challenges the denial of these claims on two grounds. First, he a rg u e s that the BIA erred in concluding that he has not suffered past persecution. We d is a g re e . Arriza-Escobar testified that two men who identified themselves as MS-13 m e m b e r s approached him and his brother, told them they knew who their father was, p u sh e d them against a wall, pointed a gun at them and told them they were going to kill them . (A.R. 162-63.) Because there were people around, however, the MS-13 members to ld them to leave and threatened to kill them if they saw them again. (A.R. 164.) The B I A concluded that this incident did not rise to the level of persecution because it was a "o n e-tim e occurrence" and Arriza-Escobar was not harmed. (BIA Dec. at 1-2; A.R. 2-3.) While this incident no doubt was traumatic, we agree that it was not so extreme as to rise

Escobar claims to belong to a "particular social group" comprising family members of p o lic e officers combating gang violence in El Salvador, but the BIA did not decide that is s u e . 3

2

Case: 09-3193

Document: 003110238359

Page: 4

Date Filed: 08/03/2010

to the level of persecution. See Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 341 (3d Cir. 2 0 0 8 ) ("`[W]e have limited the types of threats constituting persecution to only a small c a te g o ry of cases, and only when the threats are so menacing as to cause significant actual su ff ering or harm.'") (citation omitted). S e c o n d , Arriza-Escobar challenges the BIA's ruling that he did not establish a w ell-fo u n d ed fear of future persecution. We find this challenge persuasive. The BIA's e n t ir e analysis of this claim reads: "Even if [Arriza-Escobar's] family constitutes a p a rtic u la r social group, there is no evidence that other family members are being th re a te n e d or harmed. Indeed, [his] brother has been able to remain in El Salvador w ith o u t further incident." (BIA Dec. at 3; A.R. 3.) As Arriza-Escobar argues, the BIA's re a s o n s for denying this claim are not properly grounded in the record. It is not true that there is "no evidence" that other family members are being th re a te n e d or harmed. Arriza-Escobar, whom the IJ assumed to be credible, testified that h is uncle was threatened with harm. While Arriza-Escobar's testimony is not entirely c lea r, he appears to have testified that assailants targeted his uncle by shooting at his h o u s e but wounded a worker instead because his uncle was not home. (A.R. 173.) The B IA did not acknowledge this evidence, and we may not evaluate it in the first instance. See INS v. Ventura, 537 U.S. 12, 16, (2002). In addition, the BIA erred in mechanically relying on the apparent lack of harm to A rriz a -E sc o b a r's brother. We have recognized that an alien's claim can be undercut if

4

Case: 09-3193

Document: 003110238359

Page: 5

Date Filed: 08/03/2010

f a m ily members remain without harm, but "we do not agree that this principle has any ap p lica tio n where, as here, a petitioner testifies that the similarly-situated family members a re in hiding." Toure, 443 F.3d at 319. Arriza-Escobar testified that his brother is "in h id in g for the same fear" in El Salvador. (A.R. 180.) He also testified that "he fear they c a n kill him but he's in different places. In San Miguel and other places where, he moves a ro u n d where there are no gang roots." (A.R. 181.) Thus, the BIA should have addressed A rriz a -E s c o b a r's explanation for the apparent lack of harm to his brother instead of m e c h a n ica lly relying on it.3 A c c o rd in g ly, we will grant the petition for review and remand for further c o n sid e ra tio n of Arriza-Escobar's asylum claim. Because the BIA rested its denial of his w ith h o ld in g claim solely on its denial of his asylum claim, we will remand for further c o n sid e ra tio n of that claim as well. We express no opinion on whether Arriza-Escobar in f a ct showed a well-founded fear or likelihood of persecution, or on any of the issues that th e BIA did not reach.4

"Of course, if hiding means relocation to another part of the country, this may be re le v a n t to showing that petitioner could reasonably avoid persecution by relocating w ith in the country. . . . The [BIA], however, never made any finding on this issue." Toure, 443 F.3d at 319 n.3 (citation omitted). We reject Arriza-Escobar's challenge to the denial of his CAT claim. The BIA conc lu d e d that Arriza-Escobar presented no evidence that the El Salvadoran government w o u ld torture him or consent or acquiesce to his torture on return. Arriza-Escobar argues th a t he presented sufficient evidence to show that the El Salvadoran government would be " w illf u lly blind" to torture by MS-13. See Gomez-Zuluaga, 527 F.3d at 350. ArrizaE s c o b a r, however, has cited no evidence of record that MS-13 will torture him and no e v id e n c e compelling the conclusion that the government would be willfully blind to any s u c h torture. 5
4

3