NO. 06-75797 AGENCY NO.

A99 530 588

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Jo 0
NELSON DE JESUS SANCHEZ, Petitioner, V. ALBERTO GONZALES, Attorney General of the United States, Respondent. ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
CATHY 041 EASON, (Az RA' U.S. COURT OF PEALti

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

TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES I. S T A T E M E N T OF THE ISSUES JURISDICTIONAL STATEMENT DETENTION STATUS IV. S TAT E M E N T OF THE CASE A. U . S . Entry and Detention B. M a s t e r Hearing C. I n d i v i d u a l Hearing D. B I A Appeal E. S t a y of Removal V. S T A T E M E N T OF THE FACTS A. M S - 1 3 in El Salvador B. N e l s o n ' s Experience 1 1 1 1 1 6 1 8 2 2 2 7 5 4 9 2 2 6 8 9 3 4 3 3 3 i 1 2 v

1. N e l s o n joins MS-13 and is "stained." 2. N e l s o n quits the MS-13 gang 3. T h e MS-13 gang reacts. 4. N e l s o n flees.

5. N e l s o n fears persecution in El Salvador. VI. S U M M A R Y OF ARGUMENT VII. A R G U M E N T A. S t a n d a r d of Review 2 1

1. J u d i c i a l review of legal questions is de novo. The Court owes no 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 2 5

C. J u d i c i a l review is limited to the issues decided by the BIA

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. T h e r e is ample evidence of persecution a. N e l s o n suffered past persecution 3 3 2 0 0 7

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 a national 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 persecution should be reversed 3 9 E. T h e BIA erred in concluding that no countrywide threat of harm exists. 4 0

1. T h e BIA erroneously saddled Nelson with the burden of proof on 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 internal relocation 4 4 VIII. CONCLUSION STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM 5 5 1 5 5 3 1 2 4 0 4 4 7 8 9

A. D e c i s i o n of the Immigration Judge

B. D e c i s i o n of the Board of Immigration Appeals C. 8 CFR. 208.13 5

TABLE OF AUTHORITIES Cases Alonzo v. INS., 915 F.2d 546 (9th Cir. 1990) Arteaga v. INS., 836 F.2d 1227 (9th Cir. 1988) 1 3 9 5 2 3 3 2 3 2 0 , 4 24, 29 8 2 , , 4 4 34, 35 36, 37

Avetova-Elisseva v. IN.S., 213 F.3d 1192 (9th Cir. 2000) Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964) Barraza Rivera v. 9 1 3 F.2d 1443 (9th Cir. 1990)

Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005) Castillo v. INS., 951 F.2d 1117 (9th Cir. 1991) Chand v. INS., 222 F.3d 1066 (9th Cir. 2000)

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 1984) 2 3 Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005) Elias-Zacarias v. INS., 921 F.2d 844 (9th Cir. 1990) Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) Gonzales v. Thomas, 126 S. Ct. 1613 (2006) Harbi v. INS., 242 F.3d 882 (9th Cir. 2001) Hernandez-Montiel v. 2 2 5 2 2 5 2 2 2 3 2 8 5 7 , 41 , 8 4 37, 38 2 3 2 7 , 7 28 8 , 5 3 30

F.3d 1084 (9th Cir. 2000)

Hayha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003) I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) I.N.S. v. Ventura, 537 U.S. 12 (2002) In re C--- A--- 2 1 1 . & N. Dec. 754 (1997)

iv

In re Maldonado-Cruz, 19 I. & N. Dec. 509 (1988) (Maldonado-Cruz i) In re R--- 0---, 20 I. & N. Dec. 455 (1992) In re V--- T--- S---, 211. & N. Dec. 792 (1997) Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) Kaveh-Haghigy v. INS., 783 F.2d 1321 (9th Cir. 1986) Korablina v. INS., 158 F.3d 1038 (9th Cir. 1998) Ladha v. INS., 215 F.3d 889 (9th Cir. 2000) Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004)

passim 6 6 20, 29, 44 19, 34, 35 28 23, 24, 40 29

Maldonado-Cruz v. Dep't of Immigration & Naturalization, 883 F.2d 788 (9th Cir. 1989) (Maldonado-Cruz II) passim Melkonian V. Ashcroft, 320 F.3d 1061 (9th Cir. 2002) Montecino v. INS., 915 F.2d 518 (9th Cir. 1990) Movsisian V. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) Rep. o f Austria v. Altmann, 541 U.S. 677 (2004) Sangha v. INS., 103 F.3d 1482 (9th Cir. 1997) Shah v. INS., 220 F.3d 1062 (9th Cir. 2000) Singh v. INS., 94 F.3d 1353 (9th Cir. 1996) Singh v. lichen', 69 F.3d 375 (9th Cir. 1995) Zehatye v. Gonzales, 453 F.3d 1182 (9th Cir. 2006) Federal Statutes 28 U.S.C. 41 8 U.S.C. 1101 2 24 passim 28 34 38 34 35, 36, 37 26 26 22, 43 passim

8 U.S.C 1158 ..... . ............... ..... ..... ......... ............ ................ 24 8 U.S.C. 1231 8 U.S.C. 1252 Federal Regulations 8 C.F.R. 1003.1 8 C.F.R. 1003.3 8 C.F.R. 1208.13 8 C.F.R. 208.13 p a p a 4 2 s s s s 0 8 i m i m 2 2 5

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

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I. S TAT E M E N 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" n a m e l y, children who are former members of 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 life 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 i d 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. Ye t the controlling regulation provides that applicants with past persecution do not have to prove that internal relocation is possible. D i d the BIA err since Nelson testified of

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 I r s 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.) A s a result, the I r s deportation order became final. This 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.

DETENTION STATUS Nelson is detained in custody of the Department of Homeland Security (DHS) at the Northwest Detention Center in Tacoma, Washington. H e has not moved the BIA to reopen, and he has not applied to the district director for an adjustment of status.

IV. S TAT E M E N 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.)

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 of 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 if 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

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 information and 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.) But 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

concluded that vigilante violence, which Nelson fears, is not persecution. (Id. at 65.) 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.) D H S 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:

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 "political 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 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 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 7

punishment for evasion of military duty generally does not constitute persecution). We 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.) A n d 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. A s a result, Nelson was removed from foster care and is now in detention.

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.) It 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

idea of the problem's severity, according to a recent publication by USAID, mara violence costs El Salvador about US$1 billion 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)

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 humanrights 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 unwilling 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 groups that take the gang problems into their own hands. "Vigilante 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 d follow 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 if I didn't join the gang. He also told me that they would protect 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 1 3 . ) Nelson promptly experienced his first beating. (Id.) I n 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 if 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).) But 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 of 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 14

4-1

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 want every member who joins to stay in the gang for life. They wanted me to be an MS-13 member for life but I don't want to be. I don't like gang life and gang activities. 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 allow you 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). Tw o 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 to get help because I didn't want to tell them what happened to 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 f s 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 16

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. ( I d 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'll do . . They've beaten me 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 find me and punish me again and again for leaving and they won'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 kill me or members of my family because they will think I am still 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 the gang and tell me to leave the gang. He is a dangerous man and I was afraid of him. (Id.; id. at 128:20 to 129:4.) Finally, Nelson fears harm from government officials. He fears that the police may hurt him or put him in jail if 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. SUMMARY 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

18

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

19

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

20

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

21

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.

VII. A R G U M E N 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 Court owes 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 eligibility 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 countrywide persecution to be eligible for asylum and for withholding of deportation").

22

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

reasonable inferences, satisfy the elements of the claim for relief. N o 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 unwilling to return to, and is unable or unwilling to avail himself or herself 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 "life 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.)

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.) I n 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 of 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). 27

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 28

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. " A n 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 of 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 30

130:4:8; id. at 201 In 5-7,207-08'11128-29.) Nelson also fears that he will 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 MS13 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 ( I d . 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 prevailing violence 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

31

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 of 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. A s 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

In 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. 34

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 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 lack legitimate 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 F.3d 1482, 1490 (9th Cir.

35

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 militaryconscription 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." MaldonadoCruz H, 883 F.2d at 793. I n 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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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, it reaffirmed Arteaga's analysis on the discrete issue of persecution. See Sangha, 103 F.3d at 1487. Citing 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 37

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. I n 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). 38

BIA invoked does not fit this case, this case actually fits the exception; Nelson faces violent beatings and even death if 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," if 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.

39

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 implicitly) 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 harm exists. 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 of proof 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

40

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 (ll's decision).) Although the issues of persecution and internal relocation are legally distinct, they have one thing in common here: i n each, the BIA relied on out-ofdate, 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

41

persecution in order to qualify for asylum."). I n 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

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 will 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

43

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. B u t even if 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 44

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. A f t e r reviewing the reasonableness factors in 8 C.F.R. 208.13(b)(3), the Court concluded: " W e 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. A s in Melkonian, the BIA gave no hint that it considered any of the reasonableness factors. (A.R. at 3.) The order does not

mention reasonableness at all, much less the following specific considerations: The threat of harm to Nelson exists throughout the country. See supra p. 17. N o matter where he goes, Nelson's MS-13 tattoo will 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. A s the IJ observed, "the picture presented" is one "of massive societal failure." (A.R. at 75-76.) El 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. He 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.

VIII. 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 Ruiz 1132 Tenth Avenue East, Suite B Seattle, Washington 98102 Telephone: (206) 407-3520 Facsimile: ( 8 6 6 ) 865-2670 E-mail: i m i z @ r u i z l a w o ff i c e . c o m ATTO E Y FOR PETITIONER NELSON DE JESUS SANCHEZ

47

STATEMENT OF RELATED CASES There are no known related cases pending in this Court.

CERTIFICATE OF COMPLIANCE certify that: (check appropriate option(s))

E3 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

E3

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 M o n o s p a c e d , 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 0 Proportionately spaced, has a typeface of 14 points or more 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 or lines of text. Dated: July 3, 2007. is

Isaac Ruiz 49

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 Litigation Civil Division U.S. Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 (202) 514-4120 (202) 616-9777 (FAX) e-mail: Ari.Nazarov@usdoj.gov

Isaac Ruiz

50

DENDUM A. D e c i s i o n of the Immigration Judge

51

UNITED STATES DEPARTMENT O F JUSTICE EXECUTIVE O F F I C E FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Northwest Detention F a c i l i t y Tacoma, W a s h i n g t o n File No.: A 99 530 588 ) ) NELSON D E JESUS SANCHEZ Respondent CHARGE: ) ) ) I N REMOVAL PROCEEDINGS 7,.. v ' (::::, . ) cyl : , . , : : , S e p t e m b e r 8, 2006

In t h e M a t t e r o f

S e c t i o n 212(a) ( ) ( A ) ( i ) - present without havi - 4 7 2 2 been a d m i t t e d o r p a r o l e d .

APPLICATIONS: A s y l u m ; Withholding; and 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 e n t i o n a g a i n s t To r t u r e . ON BEHALF O F RESPONDENT: Denise F a r r David Werblow N A s o s i O r s t N a a n BEHALF OF OHS: Norman t C h i e f Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE The r e s p o n d e n t i s a 1 7 - y e a r - o l d m a l e , 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 whom w a s i s s u e d a N o t i c e t o A p p e a r o n A p r i l 3 0 , 2006. T h e r e s p o n d e n 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 Appear a n d conceded 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 g e was s u s t a i n e d . S e e S e c t i o n 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 . 2 7 6 (1966). T h e i s s u e before t h e Court concerns h i s a p p l i c a t i o n s f o r

r e l i e f from removal.

51-1

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SUMMARY O F THE EVIDENCE PRESENTED E x h i b i t 1 i s a c o p y o f t h e N o t i c e t o A p p e a r. E x h i b i t 2 i s a Form 1-213, Record o f D e p o r t a b l e A l i e n . Exhibit 3 i s t h e respondent's a p p l i c a t i o n f o r asylum, Form

1-589.
E x h i b i t 4 i s t h e Department o f Homeland S e c u r i t y ' s p r e h e a r i n g s t a t e m e n t , i n c l u d i n g Ta b s A a n d B , t h e Human R i g h t s Report a n d World Factbook. Exhibit 5 i s the respondent's pre-hearing statement, i n c l u d i n g a l a r g e number o f E x h i b i t s , t o t a l i n g some 3 5 5 p a g e s . Pages 1 1 t h r o u g h 2 0 w e r 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 n d c o n s i d e r e d , b e c a u s e o f t h e l a c k o f signature b y t h e person making t h e statement, t h e respondent's m o t h e r. E x h i b i t 6 are f i v e o r s i x photographs, 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 i n g t h e r e s p o n d e n t ' s t a t t o o a n d t h e s c a r o n

his f a c e and h i s l e f t arm.

The r e s p o n d e n 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 e s p o n d e n 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 El S a l v a d o r. E l Salvador i s one o f t h e most dangerous c o u n t r i e s I t i s also a very poor

in t h e n o r t h e r n hemisphere o f t h e w o r l d .

c o u n t r y. T h e r e s p o n d e n t , a t t h e a g e o f 1 4 , a n d a t t h e i n s t a n c e or i n s i s t e n c e , encouragement o f h i s c o u s i n , j o i n e d a gang c a l l e d 2 S e p t e m b e r 8, 2006

A 99 530 588

51-2

MS-13 i n E l S a l v a d o r . A f t e r a p p r o x i m a t e l y o n e y e a r i n t h a t g a n g , he d e c i d e d t h a t h e h a d made a m i 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 g a n g a n d h e l e f t t h e g a n g . U p o n j o i n i n g t h e g a n g , t h e respondent t e s t i f i e d t h a t he was beaten b y t h r e e o t h e r gang members w i t h t h e i r f i s t s f o r 1 3 s e c o n d s . T h a t w a s 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 gang. A f t e r t h e respondent l e f t t h e gang, h e was a g a i n beaten b y gang m e m b e r s . H e w a s d i s c o v e r e d a n d b e a t e n b y , I b e l i e v e , i t w a s t h r e e o r f o u r g a n g members w i t h i n a f e w d a y 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 o x i m a t e l y 3 0 d a y s l a t e r , t h e r e s p o n d e n t w a s a g a i n d i s c o v e r e d b y g a n g members a n d was a g a i n beaten. T h i s t i m e , h e was knocked t o t h e g r o u n d , w h e r e h e injured h i s cheek on the l e f t side, u p close t o t h e eye and also his l e f t elbow on 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 h i l e t h e r e s p o n d e n t w a s 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 o d , h e w a s d r u g g e d b y f e l l o w gang members a n d t h e n t a t t o o e d w i t h 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 he d i d

not want a t a t t o o and t h a t i t was p l a c 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 a s u n h a p p y w i t h t h e m e m b e r s h i p i n t h e g a n g because h e s a i d t h e g a n g r e q u i r e d h i m t o d o b a d t h i n g s t h a t h e did n o t want t o do. H e gave, a s examples, t h a t h e and f e l l o w gang m e m b e r s 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 the proceeds o f t h a t t h e f t t o t h e " b o s s . " H e gave a s a n o t h e r example w h e r e h e t o o k m o n e y 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 o y, a n d g a v e t h a t m o n e y t o t h e b o s s .

A 99 530 588

8, 2006

51-3 000060

By t a k i n g t h e m o n e y f r o m t h e y o u n g s t e r , t h e r e s p o n d e n 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 , w h o m t h e respondent 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 have c a l l e d a v i g i l a n t e . T h e r e s p o n d e n t 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 him. STATEMENT O F THE LAW In o r d e r t o b e e l i g i b l e f o r asylum under S e c t i o n 208 o f t h e Act, t h e respondent must show 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 r n t o h i s c o u n t r y because 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 fear o f persecution on account o f race, 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 r o u p , 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 r a 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 d o z a - F o n s e c a , 4 8 0 U . S . 4 2 1 ( 1 9 8 7 ) . In M a t t e r o f Mogharrabi, 1 9 I&N Dec. 4 3 9 ( B I A 1987) t h e Board o f I m m i g r a t i o n A p p e a l s a d o p t e d a r e a s o n a b l e n e s s s t a n d a r d t o determine whether 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 . " In o r d e r t o be e l i g i b l e f o r withholding o f removal t o any c o u n t r y, t h e r e s p o n d e n t m u s t s h o w t h a t h i s " l i f e o r f r e e d o m w o u l d be t h r e a t e n e d i n s u c h c o u n t r y o n a c c o u n t 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, membership i n a p a r t i c u l a r s o c i a l group, o r political opinion." S e e Section 241(b)(3)(A). This 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 demonstrate a "clear p r o b a b i l i t y o f persecution on one o f t h e f i v e grounds i n the A c t . " I N S v . S t e v i e , 4 6 7 U.S. 407 (1984). T h e respondent

must d e m o n s t r a t e t h a t ' i t i s m o r e 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 99 530 588

8, 2006

51-4

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be s u b j e c t t o p e r s e c u 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 more s t r i n g e n t s t a n d a r d t h e n t h a t r e q u i r e d f o r asylum. In o r d e r t o be e l i g i b l e f o r A r t i c l e 3 o f t h e Convention a g a i n s t To r t u r e , t h e r e s p o n d e n t m u s t e s t a b l i s h t h a t h e w o u l d b e subject t o t o r t u r e , " b y o r a t the i n s t i g a t i o n o f o r with the consent o r acquiescence o f a p u b l i c o f f i c i a l o r person 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 0 8 . 1 8 ( 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 d r e s s i s t h a t o f t h e respondent's c r e d i b i l i t y. T h e Court accepts t h e respondent's testimony as c r e d i b l e . The r e s p o n d 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 u p i n E l S a l v a d o r . H e a l s o claims t h a t he has a well-founded f e a r o f f u t u r e persecution should he 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 membership i n a p a r t i c u l a r s o c i a l group and p o l i t i c a l opinion. 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 s e c u t e d by t h e members o f h i s f o r m e r g a n g , t h a t b e i n g M S - 1 3 , b e c a u s e h e l e f t t h a t gang and such q u i t t i n g o f a gang i s n o t p e r m i t t e d by the gang. T h e respondent has s u b m i t t e d s u b s t a n t i a l amount o f background i n f o r m a t i o n a n d 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 information. The r e s p o n d e n t p o i n t e d t o a n u m b e 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 n c e i n c o n n e c t i o n w i t h t h e g a n g s . F i r s t , he w a s b e a t e n 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 a n g , a s p a r t o f a n A 99 530 588 5 S e p t e m b e r 8, 2006

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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 e a t e n when h e l e f t t h e g a n g a s a f o r m o f p u n i s h m e n t o r b e c a u s e t h a t i s w h a t t h e y d o w h e n someone q u i t s a gang. T h i r d , h e was beaten, a p p r o x i m a t e l y o n e month a f t e r h e l e f t t h e g a n g , f o r t h e same r e a s o n , t h a t b e i n g t h a t h e attempted o r was t r y i n g t o l e a v e t h e gang. H e a l s o t e s t i f i e d t h a t h e was 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 gang w h i l e h e was 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 then h a v i n g a t a t t o o emblazoned o n h i s s h o u l d e r w h i l e h e was under t h e e f f e c t s o f t h e d r u g . The r e s p o n d e n t t e s t i f i e d t h a t h e w a s o n l y a r r e s t e d o n e t i m e and t h a t t i m e w a s w h e n h e w a s a t a d i s c o w i t h f e l l o w g a n g members and s o m e k i n d o f d i s t u r b a n c e b r o k e o u t . H e t e s t i f i e d t h a t h e w a s d e t a i n e d b y p o l i c e f o r a p p r o x i m a t e l y t h r e e d a y s b u t t h a t h e was not abused o r harmed b y t h e p o l i c e . The G o v e r n m e n t a r g u e s t h a t a g a n g member 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 p s b e c a u s e t h e y h a v e n o t been s o d e f i n e d b y t h e B o a r d o f I m m i g r a t i o n A p p e a 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 aware of any b i n d i n g precedent t h a t has d e p i c t e d o r c a t e g o r i z e d gangs a s a p a r t i c u l a r s o c i a l g r o u p . T h e respondent i n v i t e s t h i s respondent's f a v o r. The C o u r t greatly troubled by the circumstances t h a t are C o u r t t o make s u c h a r u l i n g i n t h e

depicted i n t h e background m a t e r i a l submitted by t h e respondent and b y t h e r e s p o n d e n t ' s t e s t i m o n y e h e p i c t u r e p r e s e n t e d h e r e A 99 530 588 6 S e p t e m b e r 8, 2006

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massive 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.-' that t h a t s o c i e t a l 4 e r i n E l Salvador i s p r o p e r l y addressed 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 that the respondent has established t h i s as a p a r t i c u l a r s o c i a l group. Next, t h e C o u r t concludes t h a t t h e harm t h a t t h e respondent 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 e r U . S . a s y l u m l a w s and i t i s n o t b e c a u s e o f t h e r e s p o n d e n t ' s m e m b e r s h i p i n a p a r t i c u l a r s o c i a l g r o u p : ArrittTn-r--T.e.-7/_'rg.. w h e t h e r t h a t s o c i a l g r o u p b e d e f i n e d a s g a n g members o r f o r m e r g a n g m e m b e r s . The C o u r t n o t e s t h a t t h e b a c k g r o u n d e v i d e n c e s u b m i t t e d b y the r e s p o n d e n t 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 one o f t h e most dangerous p l a c e s i n t h e w o r l d t h a t o n 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 murder r a t e i n E l Salvador some s e v e n 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 e r r a t e i n New Y o 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 for people t o be N e i t h e r i s a v e r y, v e r y dangerous p l a c e

i s t h e r e any question t h a t gangs a r e a

very s e r i o u s s o c i a l p r o b l e m i n E l S a l v a d 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 e r 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 he had q u i t t h e gang. A p p a r e n t l y, the 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 s p o n d e n t was a l s o p h y s i c a l l y a b u s e d w h i l e h e w a s a member o f t h e g a n g , t h a t b e i n g that he was drugged and t h e n t a t t o o e d . A n d then t h e respondent was b e a t e n a f t e r h e a t t e m p t e d t o l e a v e t h e g a n g . S o , i t is

obvious t h a t t h e r e s p e n d e n t was abused, b u t i t i s n o t o b v i o u s A 99 530 588 7 S e p t e m b e r 8, 2006

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t h a t he was abused because o f a p r o t e c t e d ground. The r e s p o n d e n t w a 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 was a c i t i z e n o f E l S a l v a d o r o r since. H e d i d t e s t i f y t h a t he belonged t o a p o l i t i c a l p a r t y b u t the 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 c h h e c l a i m e d t o have engaged 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 e s p o n d e 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 agenda and 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 n c l u d 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 being t h e f a t h e r o f one o f h i s v i c t i m s , i s n o t persecution e i t h e r. T h e Court would note t h a t t h e r e a r e a couple o f background cases t h a t i t w i l l c i t e a t t h e moment. One, M a t t e r o f R - 0 - , 2 0 1 0 . D e 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 where 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 r d 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 a s n o t persecution. 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 because

the respondent h e r e c l a i m s t o have been r e c r u i t e d i n t o t h e gang b u t t h e amount o f f o r c e seems t o have b e e n m i n i m a l a n d i t was b a s i c a l l y encouragement 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 m u c h o f t h e b a c k g r o u n d m a t e r i a l relates t o crimes committed i n E l Salvador amongst gangs 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 high murder r a t e and t h e r a t e o f o t h e r c r i m e s .

A 99 530 588

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In e f f e c t , t h e abuse a b o u t which t h e respondent has complained t o d a y w o u l d b a s i c a l l y q u a l i f y as b e i n g t h e v i c t i m s o f the crime. E a c h one o f the beatings would appear t o t h e Court 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 would be t h e f a c t t h a t t h e

respondent h a v i n g been drugged and t h e n t a t t o o e d . The B o a r d o f I m m i g r a t i o n A p p e a l s h a s h e l d t h a t c r i m i n a l offenses, e v e n v e r y serious c r i m i n a l offenses, s u c h as kidnaping, does n o t a m o u n 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 Dec. 7 9 2 ( B I A 1 9 9 7 ) . A c c o r d i n g l y, t h e C o u r t c o n c l u d e s t h a t t h e r e s p o n d e n t h a s n o t established e i t h e r t h a t he has p r e v i o u s l y been persecuted 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 n d , should he b e r e t u r n e d t o E l S a l v a d o r. A c c o r d i n g l y , h i s application f o r asylum i s denied. The b u r d e 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 asylum. F o r asylum, a well-founded 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 respondent must show t h a t i t i s more l i k e l y t h a n n o t . T h i 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 same e v i d e n c e 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 as h e r e l i e d upon i n s u p p o r t o f h i s a p p l i c a t i o n f o r asylum. As t h e C o u r t c o n c l u d e d t h a t h i s e v i d e n c e w a s i n s u f f i c i e n t t o meet t h e l o w e r s t a n d a r d , t h e C o u r t l i k e w i s e c o n c l u d e s t h a t h i s , 2 1 I&N

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evidence i s i n s u f f i c i e n t t o meet t h e s t a n d a r d f o r w i t h h o l d i n g o f removal. 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 b e d e n i e d . With 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 o v a l u n d e r t h e C o n v e n t i o n a g a i n s t To r t u r e , t h e C o u r t c o n c l u d e s t h a t t h e r e s p o n d e n t h a s n o t p r e v i o u s l y been t o r t u r e d and t h a t i n h i s t e s t i m o n y, h e does n o t fear p h y s i c a l harm, much l e s s t o r t u r e , a t t h e hands o f t h e p o l i c e or t h e government o f E l S a l v a d o r. T h e respondent a c t u a l l y t e s t i f i e d t h a t he would expect the police t o leave him alone u n l e 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 . Although t h e C o u r t i s s y m p a t h e t i c t o t h e respondent circumstances, t h e C o u r t w o u l d announce f o r t h e p a r t i e s , t h i s i s not a d i s c r e t i o n a r y determination. T h i s i s n o t a n o p t i o n f o r t h e Court t o a c t l i k e God and do w h a t ' s r i g h t a n d e x t e n d s 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 d o 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 l d b e a n y a d v e r s e exercise 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 matter o f l e g a l analysis a n d t h e Court concludes t h a t t h e respondent does n o t qualify A c c o 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 removal, a n d p r o t e c t i o n u n d e r t h e C o n v e n t i o n a g a i n s t To r t u r e a r e denied.

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FURTHER ORDER The r e s p o n d e n t i s o r d e r e d r e m o v e d f r o m t h e U n i t e d S t a t e s t o El S a l v a d o r o n t h e c h a r g e c o n t a i n e d i n t h e N o t i c e t o A p p e a r.

W. WAYNE TO G N E R U.S. I q r a t i o n J

A 9 9 33.0 5 8 8

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CERTIFICATE PAGE

hereby 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 e d i n g b e f o r e JUDGE WAYNE S TO G N E R , i n t h e m a t t e r o f : NELSON DE JESUS SANCHEZ A 9 9 530 588 S e a t t l e , Washington is a n accurate, verbatim transcript o f the cassette tape as

provided b y t h e Executive O f f i c e f o r Immigration Review and t h a t this i s the original transcript thereof f o r the f i l e o f the

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 e v i e w.

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 a p e S t . C l a i r e R o a d Annapolis, Maryland 2 1 4 0 1 (301) 2 6 1 - 1 9 0 2 October 1 8 , 2 0 0 6 (completion date)

By s u b m i s s i o n o f t h i s C E RT I F I C AT E PAGE, t h e C o n t r a c t o r c e r t i f i e s t h a t a S o n y D E C / T- 1 4 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 s d e s c r i b e d i n S e c t i o n C, p a r a g r a p h C . 3 . 3 . 2 o f t h e c o n t r a c t , w a s used to t r a n s c r i b e t h e Record o f Proceeding shown i n t h e above paragraph.

B. D e c i s i o n of the Board of Immigration Appeals

Department of Justice
Executive Office for Immigration Review Church, Vir nia 22041

Decision of the Board of Immigration Appeals

File: A 9 9 530 588 - Tacoma In re: NELSON DE JESUS SANCHEZ IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Denise Farr, Esquire

Date:

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's decision 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 protection under Article 3 of the United Nations Convention Against Torture ("Convention"). The appeal will be dismissed. The facts o f this case are reflected in the limnigration Judge's decision. W e note that membership 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 means membership in a group of people all of whom share a common, immutable characteristic, that is, a characteristic 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). Since gang membership is not an immutable characteristic, 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 social group. 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 former affiliation. 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 punishing him 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 Immigration Judge that the respondent did not suffer persecution or establish a well-founded fear of persecution

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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. The threat 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 does not constitute persecution). W e find this principle applicable to the instant case. 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 that he may experience from the gang because of his decision to leave the gang. Such is not a basis for a grant of asylum in the United States. Zehalye v. Gonzales, supra. In addition, we cannot find that it 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 B O A R D

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C. 8 C.F.R. 208.13

53

Department of Homeland Security

(c) A s y l u m officers a n d i m m i g r a t i o n judges m a y request specific comments f r o m t h e Department o f State regarding individual cases o r types o f claims under consideration, o r such o t h e r i n formation as they deem appropriate. (d) A n y such comments received pursuant t o paragraphs (b) a n d (c) o f this section s h a l l b e m a d e p a r t o f t h e record. Unless the comments are classified u n d e r t h e a p p l i c a b l e E x e c u t i v e Order, t h e a p p l i c a n t s h a l l be provided an o p p o r t u n i t y t o review and respond to such comments prior to the issuance of any decision to deny the application.
[62 F R 10337, M a r. 6, 1997, as amended a t 64 FR 8488, Feb. 19, 19991

208.13
of the A c t does n o t relieve the alien o f the a d d i t i o n a l b u r d e n o f establishing e l i g i b i l i t y for asylum. (b) E l i g i b i l i t y. T h e a p p l i c a n t m a y qualify as a refugee e i t h e r because he or she has suffered past persecution o r because h e o r she has a well-founded fear of future persecution. (1) P a s t persecution. A n a p p l i c a n t shall be found t o be a refugee o n t h e basis o f past persecution i f t h e applicant can establish t h a t h e o r she has suffered persecution i n t h e past i n t h e applicant's country of n a t i o n a l i t y or, i f stateless, i n his o r her c o u n t r y o f last habitual residence, on account o f race, religion, n a t i o n a l i t y, membership i n a particular social g r o u p , o r p o l i t i c a l opinion, and i s unable o r u n w i l l i n g t o return to, o r avail h i m s e l f or herself of the p r o t e c t i o n of, t h a t c o u n t r y o w i n g to such persecution. A n applicant who has b e e n f o u n d t o h a v e established such past persecution shall also be presumed t o have a well-founded f e a r o f persecution on the basis o f the original claim. T h a t presumption may be rebutted i f an asylum officer o r i m m i g r a t i o n judge m a k e s o n e o f t h e f i n d i n g s d e scribed i n paragraph (b)(1)(i) o f t h i s section. I f the applicant's fear of future persecution i s u n r e l a t e d t o t h e p a s t persecution, t h e a p p l i c a n t b e a r s t h e burden o f establishing t h a t t h e fear is well-founded. (i) Discretionary referral or denial. Except as provided i n paragraph (b) (1) (iii) of this section, an asylum officer shall, in t h e exercise o f his o r her discretion, refer or deny, or an i m m i g r a t i o n judge, in the exercise o f his o r her discretion, shall deny the asylum application o f an alien found to be a refugee on the basis of past persecution i f a n y o f t h e f o l lowing is found b y a preponderance o f the evidence: (A) T h e r e h a s b e e n a f u n d a m e n t a l change i n circumstances such t h a t the applicant no longer has a well-founded fear o f persecution i n t h e applicant's country o f n a t i o n a l i t y o r, i f stateless, in the applicant's country o f last habitual residence, on account o f race, r e l i gion, n a t i o n a l i t y, membership i n a part i c u l a r social group, o r p o l i t i c a l opinion; o r (B) T h e applicant could avoid f u t u r e persecution b y r e l o c a t i n g t o a n o t h e r

208.12 R e l i a n c e o n i n f o r m a t i o n compiled by other sources. (a) I n d e c i d i n g a n a s y l u m application, o r i n deciding whether t h e a l i e n has a credible f e a r o f persecution o r t o r t u r e pursuant t o 208.30 o f this part, or a reasonable f e a r o f persecution o r t o r t u r e pursuant t o 208.31, t h e asylum officer m a y r e l y o n m a t e r i a l provided by t h e Department o f State, the Office o f International A ff a i r s , o t h e r Service offices, o r other credible sources, such as i n t e r n a t i o n a l organizations, p r i v a t e voluntary agencies, n e w s organizations, or academic institutions. (b) Nothing in t h i s part shall be construed t o e n t i t l e t h e applicant t o conduct d i s c o v e r y d i r e c t e d t o w a r d t h e records, officers, agents, o r employees of the Service, t h e Department o f Justice, o r the Department o f State. Persons m a y continue t o seek documents available t h r o u g h a Freedom o f Information A c t (FOIA) request pursuant t o 8 CFR part 103.
162 FR 10337, M a r. 6, 1997, as amended a t 64 FR 8488, Feb. 19, 1999; 65 F R 76133, Dec. 6 , 20001

208.13 E s t a b l i s h i n g a s y l u m e l i g i bility. (a) Burden o f proof T h e b u r d e n o f proof is on the applicant for asylum t o establish t h a t he o r she i s a refugee as defined i n section 101(a) (V) o f the A c t . The testimony of the applicant, i f credible, m a y be s u ff i c i e n t t o sustain t h e burden o f proof w i t h o u t corroboration. The f a c t t h a t t h e applicant previously established a credible f e a r o f persecut i o n for purposes o f section 235(b) (1) (B)

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208.13
p a r t o f the applicant's c o u n t r y o f nat i o n a l i t y o r, i f stateless, a n o t h e r p a r t of the applicant's c o u n t r y of last habitual residence, a n d u n d e r a l l t h e c i r cumstances, i t would be reasonable t o expect the applicant to do so. (ii) Burden o f proof. I n cases i n which an a p p l i c a n t h a s d e m o n s t r a t e d p a s t persecution u n d e r paragraph (b)(1) o f t h i s section, t h e Service shall bear the burden o f establishing b y a preponderance o f the evidence t h e requirements of paragraphs (b) (1)(i) (A) o r (B) o f this section. (iii) Grant in the absence o f well-founded fear o f persecution. A n applicant described i n paragraph (b)(1)(i) o f t h i s section who is n o t barred f r o m a grant of asylum under paragraph (c) o f t h i s section, m a y be granted asylum, i n the exercise o f the decision-maker's discretion, if: (A) T h e a p p l i c a n t has demonstrated compelling reasons f o r being u n w i l l i n g or unable t o return to the c o u n t r y arising o u t o f the severity o f the past persecution; or (B) T h e a p p l i c a n t h a s established t h a t t h e r e i s a reasonable p o s s i b i l i t y t h a t he o r she m a y suffer other serious h a r m upon removal to t h a t country. (2) Well-founded fear o f persecution. (i) An applicant has a well-founded fear of persecution if: (A) The applicant has a fear o f persecution i n his o r her c o u n t r y o f nationa l i t y or, i f stateless, i n his or her count r y o f l a s t h a b i t u a l residence, o n account o f race, 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 group, o r political opinion; (B) There i s a reasonable p o s s i b i l i t y of suffering such persecution i f he o r she were t o return to t h a t country; and (C) H e o r she i s unable o r u n w i l l i n g to r e t u r n to, or avail h i m s e l f or herself of t h e protection of, t h a t c o u n t r y because o f such fear. (ii) A n a p p l i c a n t d o e s n o t h a v e a well-founded fear o f persecution i f the applicant c o u l d a v o i d persecution b y relocating to another part o f the applicant's c o u n t r y o f n a t i o n a l i t y o r , i f stateless, a n o t h e r p a r t o f t h e a p p l i cant's c o u n t r y o f l a s t h a b i t u a l r e s i dence, i f under all the circumstances i t would be reasonable t o expect t h e applicant to do so.

8 CFR Ch. I (1-1-07 Edition)

(iii) I n evaluating whether the applicant has sustained the burden o f proving t h a t he o r she has a well-founded fear o f persecution, t h e asylum officer or i m m i g r a t i o n judge shall n o t require the applicant t o provide evidence t h a t there i s a reasonable p o s s i b i l i t y he o r she w o u l d b e singled o u t i n d i v i d u a l l y f o r persecution if: (A) T h e a p p l i c a n t establishes t h a t there is a pattern o r practice i n his o r her c o u n t r y o f n a t i o n a l i t y or, i f stateless, i n his or her country o f last habitual residence, o f persecution o f a group of persons s i m i l a r l y situated to t h e app l i c a n t on account of race, religion, nat i o n a l i t y, membership i n a p a r t i c u l a r social group, or political opinion; and (B) T h e a p p l i c a n t establishes h i s o r her own inclusion in, and identification w i t h , such group o f persons such t h a t his o r h e r fear o f persecution upon ret u r n is reasonable. (3) Reasonableness o f internal relocadon. F o r purposes o f d e t e r m i n a t i o n s under paragraphs (b)(1)(i), (b)(1)(ii), and (b) (2) o f t h i s s e c t i o n , a d j u d i c a t o r s should consider, b u t are n o t l i m i t e d t o considering, w h e t h e r t h e a p p l i c a n t would face o t h e r serious h a r m i n t h e place o f suggested relocation; a n y ongoing c i v i l s t r i f e w i t h i n t h e c o u n t r y ; administrative, economic, o r j u d i c i a l infrastructure; g e o g r a p h i c a l l i m i t a tions; a n d s o c i a l a n d c u l t u r a l c o n straints, s u c h a s age, gender, h e a l t h , and social and f a m i l i a l ties. Those factors m a y, o r m a y not, be relevant, depending on all the circumstances o f the case, a n d a r e n o t necessarily d e t e r minative o f whether i t w o u l d b e r e a sonable for the applicant to relocate. (i) I n cases i n w h i c h t h e a p p l i c a n t has n o t established p a s t persecution, the applicant shall bear t h e burden o f establishing t h a t i t would n o t be reasonable f o r h i m o r her t o relocate, u n less t h e persecution is by a government or is government-sponsored. (ii) I n cases i n which t h e persecutor is a government or is government-sponsored, o r t h e applicant has established persecution i n the past, i t shall be presumed t h a t i n t e r n a l r e l o c a t i o n w o u l d n o t b e reasonable, unless t h e Service establishes b y a preponderance o f t h e evidence t h a t , u n d e r a l l t h e c i r cumstances, i t would be reasonable f o r the applicant to relocate.

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(c) Mandatory denials(1) Applications filed on o r after April 1, 1997. F o r applications f i l e d o n o r a f t e r A p r i l 1, 1997, an applicant shall n o t q u a l i f y f o r asyl u m i f section 208(a)(2) o r 208(b)(2) o f the A c t applies t o the applicant. I f the applicant i s found t o be i n e l i g i b l e f o r asylum under either section 208(a)(2) or 208(b) (2) o f the Act, t h e applicant shall be considered f o r e l i g i b i l i t y f o r w i t h holding o f r e m o v a l u n d e r s e c t i o n 241(b)(3) o f the Act. The applicant shall also b e considered f o r 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 o f removal under t h e Convention A g a i n s t To r t u r e i f t h e a p p l i cant requests such consideration o r i f the evidence presented b y the alien indicates t h a t the alien m a y be t o r t u r e d i n the country of removal. (2) Applications f i l e d before A p r i l 1, 1997. ( i ) A n i m m i g r a t i o n judge o r asyl u m o ff i c e r s h a l l n o t g r a n t a s y l u m t o any applicant who f i l e d h i s o r h e r app l i c a t i o n before A p r i l 1 , 1997, i f t h e alien: (A) H a v i n g been convicted b y a f i n a l judgment o f a p a r t i c u l a r l y serious crime i n the United States, constitutes a danger to the community; (B) H a s been f i r m l y r e s e t t l e d w i t h i n the meaning of 208.15; (C) C a n reasonably be regarded as a danger t o t h e s e c u r i t y o f t h e U n i t e d States; (D) H a s been convicted o f an aggravated f e l o n y, a s d e f i n e d i n s e c t i o n 101(a)(43) o f the Act; or (E) Ordered, incited, assisted, o r otherwise participated i n t h e persecution o f any person on account o f race, r e l i gion, n a t i o n a l i t y, membership i n a part i c u l a r social group, o r p o l i t i c a l opinion. (ii) I f the evidence indicates t h a t one o f t h e above grounds a p p l y t o t h e applicant, he or she shall have the burden o f p r o v i n g b y a preponderance o f t h e evidence t h a t he or she did n o t so act. (F) I s d e s c r i b e d w i t h i n s e c t i o n 212(a)(3)(B)(i)(I),(H), and (III) o f the A c t as i t existed p r i o r t o A p r i l 1, 1997, and as amended b y t h e A n t i - t e r r o r i s t a n d Effective D e a t h P e n a l t y A c t o f 1996 (AEDPA), unless i t is determined t h a t there are no reasonable grounds t o be-

208.14
lieve t h a t the individual is a danger t o the security of the United States.
[62 F R 10337, M a r. 6, 1997, as amended a t 64 FR 8488, F e b . 19, 1999; 65 F R 76133, Dec. 6 , 2000]

208.14 A p p r o v a l , d e n i a l , r e f e r r a l , o r dismissal of application, (a) B y a n immigration judge. U n l e s s otherwise p r o h i b i t e d i n 208.13(c), a n i m m i g r a t i o n judge m a y g r a n t o r d e n y asylum i n the exercise o f discretion t o an applicant who qualifies as a refugee under section 101(a)(42) o f the Act. (b) A p p r o v a l b y a n asylum officer. I n any case w i t h i n t h e j u r i s d i c t i o n o f the Office o f I n t e r n a t i o n a l A ff a i r s , unless otherwise p r o h i b i t e d i n 208.13(c), a n asylum officer m a y grant, i n t h e exercise o f his o r her discretion, a s y l u m t o an applicant who qualifies as a refugee under section 101(a)(42) o f the A c t , a n d whose i d e n t i t y has been checked pursuant to section 208(d)(5)(A)(i) o f the A c t . (c) Denial, referral, o r dismissal b y an asylum officer. I f t h e a s y l u m o f f i c e r does n o t g r a n t asylum t o an applicant after an interview conducted in accordance w i t h 208.9, o r i f , as provided i n 208.10, the applicant is deemed to have waived his o r her r i g h t t o an i n t e r v i e w or a n a d j u d i c a t i o n b y a n a s y l u m o ff i cer, t h e a s y l u m o f f i c e r s h a l l d e n y, refer, o r dismiss the application, as follows: (1) Inadmissible o r deportable aliens. Except as provided i n paragraph (c)(4) of this section, i n t h e case o f an applicant who appears t o be inadmissible o r deportable under section 212(a) o r 237(a) of t h e A c t , t h e a s y l u m o ff i c e r s h a l l refer t h e a p p l i c a t i o n t o a n i m m i g r a tion j u d g e , t o g e t h e r w i t h t h e a p p r o priate c h a r g i n g d o c u m e n t , f o r a d j u dication i n r e m o v a l proceedings ( o r , where charging documents m a y n o t be issued, shall dismiss the application). (2) Alien in valid status. I n the case o f an applicant who i s m a i n t a i n i n g v a l i d immigrant, n o n i m m i g r a n t , o r T e m porary P r o t e c t e d S t a t u s a t t h e t i m e the a p p l i c a t i o n i s decided, t h e a s y l u m officer s h a l l d e n y t h e a p p l i c a t i o n f o r asylum. (3) Alien with valid parole. I f an applicant has been paroled i n t o t h e U n i t e d States a n d t h e parole has n o t expired or been t e r m i n a t e d b y the Service, t h e

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