Jose Torres-Vaquerano v. Eric Holder, Jr.

Filing

OPINION filed : the petition for review is GRANTED, : and the case is REMANDED to the BIA for proceedings consistent with this opinion, decision not for publication. John M. Rogers, Circuit Judge, separate concurring opinion; Helene N. White, Authoring Circuit Judge and Arthur L. Alarcon, Circuit Judge., Ninth Circuit

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0583n.06
No. 12-3355

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Jun 18, 2013

JOSÉ ANGEL TORRES-VAQUERANO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE BOARD OF
IMMIGRATION APPEALS

Before: ROGERS, WHITE, and ALARCÓN,* Circuit Judges.
HELENE N. WHITE, Circuit Judge. José Angel Torres-Vaquerano petitions for review
of the Board of Immigration Appeals (BIA) affirmance of the Immigration Judge’s (IJ) decision
denying his application for withholding of removal and humanitarian relief. The IJ and BIA both
found that Torres-Vaquerano presented no evidence that the undisputed past persecution, the torture
and murder of his father and three cousins and death threats to him and his mother, was on account
of his nuclear family’s blood relation to two members of the Salvadoran military. Because that
finding was unsupported by substantial evidence and we conclude that any reasonable adjudicator
would be compelled to conclude to the contrary, we GRANT the petition for review and REMAND
to the BIA.

*

The Honorable Arthur Alarcón, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.

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I.
Torres-Vaquerano was born in 1984 in Usulután, El Salvador, during the 12-year civil war
(1980-1992) between the Salvadoran military and guerrilla groups comprising the Frente Farabundo
Martí para la Liberación Nacional (FMLN). Described as “one of the most devastating armed
conflicts in Latin America,” the Salvadoran civil war resulted in more than 75,000 deaths.1
There is no dispute that in June 1989, when Torres-Vaquerano was 4 years old, guerrillas
appeared at his family’s home searching for two of his uncles who were members of the Salvadoran
military. The uncles were not there. The guerrillas shot and killed a cousin that lived with TorresVaquerano’s family and said they would return for the uncles. Three nights later, the guerrillas
returned to Torres-Vaquerano’s home. The uncles were not there, having fled to the United States.
The guerrillas tortured and killed Torres-Vaquerano’s father in his mother’s presence, and beat and
killed two other male cousins. The guerrillas told Torres-Vaquerano’s mother that she had two
nights to turn in her brothers or they would kill her and her young son. She fled with TorresVaquerano and has not returned to El Salvador.
Torres-Vaquerano lived with his mother in Guatemala, both undocumented, from 1992 until
2006, when he fled to the United States under death threats from Guatemalan police.
Torres-Vaquerano entered the United States in April 2006 without being admitted or paroled.
A Notice to Appear (NTA) served on July 3, 2007 charged with him removal. In February 2008 he
filed an application for asylum and withholding of removal, and for protection under the Convention

1

Admin. R. 304/ USAID April 2006 report, Central America and Mexico Gang Assessment,
Annex 1: El Salvador Profile.
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Against Torture (CAT).

Torres-Vaquerano admitted the NTA’s allegations and conceded

removability.
Torres-Vaquerano’s mother remains in Guatemala, and his only sibling, a sister, has
temporary protected status (TPS) in the United States, as do his uncles. Torres-Vaquerano has no
family or friends in El Salvador.
II. IJ’s Decision
Following a December 3, 2009 merits hearing, the IJ found Torres-Vaquerano credible and
“a good person.” The IJ determined that the question whether the past persecution was on account
of a protected ground was a close one, but denied all requested relief:
Respondent’s . . . family was basically attacked and wiped out. His father
was murdered, he was going to be murdered, his mother and he fled the country when
he was only 7 years old. If that is persecution, then that would be past persecution.
Having shown past persecution, respondent would be entitled to humanitarian asylum
. . . unless it could be shown that there is no likelihood of harm, even on another
basis . . . .
[I]t is not clear that what the guerillas did to his father was persecution under the Act.
They murdered his father as part of the civil war in Guatemala, they did not
necessarily murder the father because they had anything against him. In fact, they
did not have anything against him, other than they thought he was sheltering his
brothers, who apparently they considered either to be opponents of the guerillas or
that they were hoping to recruit. Therefore, what happened to his father, as I read
Elias-Zacarias2 supra, would not be persecution under the Act. It certainly would be
terrorism; it is murder; it is horrible; but there does not appear to be any factor for
which that would be persecution. Therefore, under that analysis what happened to
respondent’s father and family, although horrible, would not be persecution for one
of the factors under the Act . . . . . .
Therefore respondent cannot qualify for asylum or withholding even for

2

INS v. Elias-Zacarias, 502 U.S. 478 (1992).
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humanitarian reasons.
....
Respondent is a good person and is eminently deserving of discretionary
relief. Unfortunately, he has not applied for voluntary departure.
Admin. R. 60-65/IJ oral decision 12/3/09 (emphasis added).
III. Appeal to the BIA
Torres-Vaquerano argued to the BIA that he established past persecution on account of a
protected ground, that he was thus entitled to a presumption of future persecution, and that the
Government had not rebutted that presumption. As he had before the IJ, Torres-Vaquerano
requested humanitarian asylum relief.3 See Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (even if
there is little likelihood of future persecution asylum should be granted where past persecution was
so severe that returning alien to his native country would be inhumane.); Klawitter v. I.N.S., 970 F.2d
149, 153 (6th Cir. 1992).
The BIA reviewed de novo the IJ’s decision and dismissed Torres-Vaquerano’s appeal,
holding that the IJ correctly determined that Torres-Vaquerano’s asylum application was untimely
and that he did not establish extraordinary circumstances to excuse the late filing, and that he did not
meet his burden of establishing eligibility for withholding of removal or CAT protection.
We agree with the [IJ] that the respondent did not meet his burden of proof to
establish that he was persecuted . . . . in El Salvador by guerillas . . . The [IJ]
properly determined that the respondent failed to meet his burden of establishing a
nexus between any past or feared harm and one of the grounds enumerated in the Act.
Sections 101(a)(42), 208(b)(1)(B)(I) of the Act. The respondent did not prove that
his membership in a particular social group was or will be at least one central reason
for the harm suffered in the past or feared in the future by guerillas or criminal gang

3

Admin. R. at 16.
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members, upon return to El Salvador. See 8 C.F.R. §1003.1(d)(3)(ii); BonillaMorales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010); Matter of C-T-L, 25 I&N
Dec. 341 (BIA 2010). The record reflects that guerillas beat, tortured or murdered
family members in El Salvador because they sought the location of two uncles who
were members of the military and fled to the United States. The record contains no
evidence that guerillas were or are motivated by the respondent’s membership in his
nuclear family.
....
As the respondent did not show that he was persecuted in the past, he is not
entitled to the presumption that his life or freedom would be threatened in the future
in El Salvador by criminal gangs or guerillas on account of his membership in a
particular social group. See 8 C.F.R. § 1208.16(b)(1)(I).
Admin. R. 3-5 (emphasis added). The BIA did not address Torres-Vaquerano’s argument for
humanitarian asylum. Id. at 5 (“Because we have decided the appeal on the preceding basis, it is not
necessary to address the respondent’s remaining contentions on appeal.”)

IV.
Torres-Vaquerano challenges the denial of his application for withholding of removal and
for humanitarian asylum relief. Pet’r Br. 17-19.
We review the IJ’s opinion in conjunction with the BIA’s additional discussion.
Cruz–Samayoa v. Holder, 607 F.3d 1145, 1149 (6th Cir. 2010) (citation omitted). We review
questions of law de novo and must affirm factual findings if supported by substantial evidence.
Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). We will not reverse factual findings unless
any reasonable adjudicator would be compelled to conclude to the contrary. Khalili v. Holder, 557
F.3d 429, 435 (6th Cir. 2009).
“An applicant for withholding of removal must demonstrate that . . . membership in a
particular social group . . . was . . . ‘at least one central reason’ for the claimed persecution.” Matter
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of C-T-L-, 25 I&N Dec. 341, 348 (BIA 2010). If the applicant demonstrates past persecution on
account of a protected ground
[t]he regulations governing the withholding of removal under the INA provide, much
like those governing asylum, that . . . it shall be presumed that the applicant’s life or
freedom would be threatened in the future in the country of removal on the basis of
the original claim. 8 C.F.R. § 208.16(b)(1)(i).
Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006) (footnote omitted).
A.
Citing INS v. Elias-Zacarias, 502 U.S. 478 (1992), the IJ concluded that Torres-Vaquerano’s
father’s murder did not constitute past persecution on account of a protected ground, apparently
interpreting that case as requiring direct proof of the persecutor-guerrillas’ motives. The BIA
similarly found that there was no record evidence that the guerrillas were motivated by TorresVaquerano’s nuclear family’s relation to two uncles who were members of the Salvadoran military,
but did not rely on Elias-Zacarias.
With due respect to the IJ, Elias-Zacarias held that a respondent must provide either direct
or circumstantial evidence of a persecutor’s motive. 502 U.S. at 483–84 (holding that a respondent
need not provide “direct proof of his persecutors’ motives, . . . [b]ut since the statute makes motive
critical, he must provide some evidence of it, direct or circumstantial) (emphasis in original); see also
Matter of C-T-L-, 25 I&N Dec. at 348 (“The respondent has not produced ‘evidence, either direct
or circumstantial, from which it is reasonable to believe that [any] harm … would be motivated
[even] in part by an actual or imputed protected ground.’” (quoting Matter of J-B-N- & S-M-, 24 I&N
Dec. at 21 (internal citation omitted, bracketing in original))).

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Torres-Vaquerano presented undisputed circumstantial evidence of the guerrillas’ motives
for torturing and murdering his father and three cousins in his mother’s sworn affidavit, which stated
(in translation):
I, CORINA VAQUERANO AMAYA, of forty eight years of age, single, occupation
of domestic relations, my Nationality is Salvadoran, and I currently reside in
Guatemala,
I HEREBY UNDER OATH DECLARE THE FOLLOWING:
I am a female sad and worried because the problem that my son is in and that
I am residing in a country that is not my country of orgin [sic], reason being that on
the 30th day of June 1989, the Guerrillas came to our home looking for my brothers
that were in the Military and because they (Gurellias [sic]) did not find them they
murdered my nephew and they said that they would return for my brothers, but my
brothers could not be present because they had fled to the United States, three nights
later they came to our house again knocking on the door and because my brothers
were not there they tortured my husband, and my other nephews that were there were
taken outside, beaten and killed, they told me I had two more nights to turn my
brothers over to them or they would kill me and my son then a young child, I carried
him in my arms without knowing where to go because for me everything had come
to an end, without being able to give the boys a proper burial, this is how I came to
Guatemala, with out [sic] money, begging and with out a place to sleep with my
young son, years went by with[out] any communication with my family that was iin
[sic] the United States, my family believed I was dead, I am still afraid . . . I am afraid
for my son’s life if he were to return to El Salvador, because the murders [sic] of his
father would think he had returned for vengance [sic] for the death of his father and
that of my family. I ask mercy from the Judge that is attending the case of my son
that God illuminate his heart and he sees the destiny of me and my son is to be far
from my country . . . .
Admin. R. 151/sworn affidavit.
Corina Vaquerano, sister of the two members of the Salvadoran military, attested under oath
to the guerrillas’ statements, and to her husband’s and nephews’ torture and murder for their failure
to produce two close relatives who were in the military. She attested to the guerrillas’ death threats

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against her and the young Torres-Vaquerano should she fail to turn her brothers over to them. Her
affidavit coupled with Torres-Vaquerano’s other filings and testimony provided strong circumstantial
evidence that a central reason the guerrillas tortured and murdered Torres-Vaquerano’s father and
male cousins, and threatened to kill him and his mother, was on account of their blood relation to
the uncles in the Salvadoran military. We conclude that the IJ and BIA’s factual findings in this
regard were unsupported by substantial evidence and that any reasonable adjudicator would be
compelled to conclude to the contrary. Khalili, 557 F.3d at 435.
B.
If a petitioner is determined to have suffered past persecution on account of a protected
ground, “it shall be presumed that the applicant’s life or freedom would be threatened in the future
in the country of removal on the basis of the original claim.” 8 C.F.R. § 208.16(b)(1)(I). The
Government then bears the burden of establishing by a preponderance of the evidence either that
“[t]here has been a fundamental change in circumstances such that the applicant’s life or freedom
would not be threatened on account of any of the five grounds . . . upon the applicant’s removal to
that country,”or that “[t]he applicant could avoid a future threat to his . . . life or freedom by
relocating to another part of the proposed country of removal and, under all the circumstances, it
would be reasonable to expect the applicant to do so.” Stserba v. Holder, 646 F.3d 964, 975–76 (6th
Cir. 2011) (emphasis added); 8 C.F.R. § 208.16(b)(1)(i) and (ii).
The IJ and BIA did not accord Torres-Vaquerano the presumption of future persecution to
which he is entitled. And, although the IJ commented that circumstances had changed in El Salvador
since Torres-Vaquerano’s childhood, and alluded to relocation, neither the IJ or BIA considered
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whether the Government (which advanced no argument and presented no evidence on either issue,
Admin. R. at 113-18, 121) had rebutted the presumption of future persecution.
We respectfully disagree with our concurring colleague’s observation that Torres-Vaquerano
did not allege that he will be persecuted in the future on the basis of his original claim. TorresVaquerano’s asylum application addendum stated that he fears that if he returns to El Salvador those
that persecuted his family “will think that I have returned for revenge and kill me.” Admin R. 138.
In addition, Torres-Vaquerano’s mother’s sworn affidavit, submitted with his I-589 application for
asylum, as well as for the merits hearing, states that she is afraid for her son’s life should he return
to El Salvador “because the murder[ers] of his father would think he had returned for vengeance for
the death of his father and that of my family.” Admin R. 150-51.
Regarding humanitarian asylum, the IJ concluded that Torres-Vaquerano was ineligible for
because he did not establish a nexus between the past persecution and kinship ties to the Salvadoranmilitary- member uncles. The BIA agreed, and did not address humanitarian asylum.
Under these circumstances, it is for the BIA to address these matters in the first instance. INS
v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (observing that “[a] court of appeals is not generally
empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own
conclusions . . . Rather, the proper course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.”) (internal citations and quotations omitted); Stserba v.
Holder, 646 F.3d 964, 975–76 (6th Cir. 2011) (remand is proper where the BIA “failed to consider
a legal issue central to resolution of the petitioner’s claims.”); Mapouya v. Gonzales, 487 F.3d 396,
405 (6th Cir. 2007) (same).
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Accordingly, we REMAND to the BIA for proceedings consistent with this opinion.

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ROGERS, J., concurring. While reversal appears procedurally proper, it leads to a somewhat
anomalous result. Our decision represents a limited procedural holding that is unlikely to change
the result in this case. Although on remand, the BIA must “presume[] that the applicant’s life or
freedom would be threatened in the future in the country of removal on the basis of the original
claim,” 8 C.F.R. § 208.16(b)(1)(I), not even Torres alleges that he will be persecuted on the basis
of his original claim—kinship ties. Even if he were to benefit from the presumption that a finding
of past persecution would afford him, that presumption would not affect the legal conclusion that
he has not alleged a protected ground as the basis for the future harm he fears.
Torres did not argue in the administrative proceedings that the future harm he fears in El
Salvador is related to the kinship ties that led to his persecution as a child. Moreover, the
Immigration Judge (IJ) acknowledged that the unstable, warlike conditions present in El Salvador
at the time Torres and his mother fled the country are no longer present. A.R. at 62. Instead, Torres
argued that his status as a young man in El Salvador (and perhaps one who is known to have returned
from the United States) would make him a target for gang recruitment and/or harassment. A.R. at
60–61. This circuit’s precedent supports the BIA’s and the IJ’s conclusions that this status does not
amount to a legally cognizable “protected group” for purposes of withholding of removal. See, e.g.,
Vindel v. Holder, No. 11-3994, 2012 WL 5382942, at *2 (6th Cir. Nov. 5, 2012); Esteban v. Holder,
478 F. App’x 301, 303 (6th Cir. 2012); see also Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008).

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