U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

French, Tamara A OHS/ICE Office of Chief Counsel - DET
Law Office of Tamara French 333 Mt. Elliott St., Rm. 204
4632 Second Ave Detroit, Ml 48207
Detroit, Ml 48201

Name: P , S S A -854

Date of this notice: 8/4/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Wendtland, Linda S.
Greer, Anne J.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)

U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls cliurch, Vkginia 22041

File: 854 - Detroit, MI Date:

AUG - 4 2017
In re: S S P

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Tamara A. French, Esquire

APPLICATION: Cancellation of removal; withholding of removal

The respondent appeals the Immigration Judge's July 8, 2016, decision denying his
applications for cancellation of removal under section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. 1229b(b) (2012), and withholding of removal under section 241(b)(3) of the Act,
8 U.S.C. 1231(b)(3).1 The appeal will be sustained in part, and the record will be remanded to
the Immigration Judge for further proceedings consistent with this opinion and for entry of a new
decision.

In a previous decision in this case, the first Immigration Judge found the respondent ineligible
for cancellation of removal under section 240A(b) of the Act based on his 2006 conviction for the
offense of domestic violence - third offense in violation of Michigan Compiled Laws section
750.81(4) (IJ at 3-4). 2 Specifically, the Immigration Judge found the conviction to be for a crime
of domestic violence under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. 1227(a)(2)(E)(i),
rendering the respondent statutorily ineligible under section 240A(b)( l )(C) of the Act (U at 3-4).
On appeal, the respondent argues the Immigration Judge erred in finding his conviction to be for
a crime of domestic violence under section 237(a)(2)(E)(i) without an explanation or analysis for
her conclusion. See Respondent's Brief at 6-9. We agree. See 8 C.F.R. 1003. l (d)(3)(ii) (de
novo review).

The version of section 750.81(4) in effect at the time of the respondent's conviction provided,
in pertinent part:

I The first Immigration Judge issued her decision finding the respondent ineligible for cancellation

of removal on September 30, 2014, and all references and citations herein to the Immigration
Judge's decision relate to the September 30, 2014, decision unless otherwise stated. Following
the issuance of that decision, the proceedings were continued, and the second Immigration Judge
issued her decision denying the respondent's applications for withholding of removal under the
Act and under the Convention Against Torture, 8 C.F.R. 1208.16-.18 (2016), on July 8, 2016.
The respondent does not appeal the Immigration Judge's denial of his application for protection
under the Convention Against Torture. Therefore, we deem that issue waived. However, the
respondent does appeal the Immigration Judge's denials of cancellation of removal and
withholding of removal under the Act.

2 The respondent does not dispute that he was convicted under subsection (4) of the statute.

Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)

 854

An individual who commits an assault or an assault and battery in violation of

subsection (2), and who has 2 or more previous convictions for assaulting or
assaulting and battering his or her spouse or former spouse, an individual with
whom he or she has or has had a dating relationship, an individual with whom he
or she has had a child in common, or a resident or former resident of his or her

Immigrant & Refugee Appellate Center, LLC | www.irac.net

household . . . is guilty of a felony . . . .

See Mich. Comp. Laws 750.81(4) (2002). An assault is an attempt to commit a battery or an
unlawful act that would cause a reasonable person to fear or apprehend an immediate battery. See
People v. Fordham, 346 N.W.2d 899 (Mich. Ct. App. 1984), rev'd on other grounds, 347 N.W.2d
702 (Mich. 1984). An assault may be committed without actually touching the person of the one
assaulted. See People v. Carlson, 125 N.W. 361 (Mich. 1910). Battery is defined as "an
intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person." People v. Starks, 701 N.W.2d 136, 140 (Mich.
2005) (internal citations omitted).

The Immigration Judge rendered her decision without citing or referring to the Supreme
Court's decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), or Johnson v. United
States, 559 U.S. 133 (2010), or the United States Court of Appeals for the Sixth Circuit's decision
in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which were all decided prior to her
decision and which all govern, along with other subsequent cases, whether the respondent's
conviction is for a crime of violence (U at 3-4). Subsequent to the Immigration Judge's decision,
the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016), wherein it clarified
the divisibility analysis it set forth in Descamps. Thus, we now consider whether the respondent's
offense is a crime of domestic violence under the applicable Supreme Court and Sixth Circuit
precedent decisions.

In this regard, we first note that, subsequent to the Immigration Judge's decision, the Sixth
Circuit, where this case arises, held_that the crime of violence definition in 18 U.S.C. 16(b) is
unconstitutional. See Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016). Therefore, in order for the
respondent's offense to constitute a crime of violence, it must fit within the definition set forth in
18 U.S.C. 16(a), which provides, in relevant part, that an offense is a crime of violence if it"has
as an element the use, attempted use, or threatened use of physical force against the person or
property of another." See id. In Johnson, the Supreme Court held that the "physical force"
threatened, attempted or actualized under section 16 must be violent force; that is, "force capable
of causing pain or injury to another person." Johnson v. United States, 559 U.S. at 140 (emphasis
added); see also Matter ofGuzman-Polanco, 26 l&N Dec. 713 (BIA 2016), clarified by Matter of
Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016); Matter of Velasquez, 25 l&N Dec. 278 (BIA
2010).

The Sixth Circuit has held, under Johnson, that the requirement of physical harm in a statute
which otherwise lacks a"stand-alone" element of physical force necessarily requires proof that the
perpetrator used violent force, i.e., force capable of causing physical pain or injury to another
person, and not mere unwanted touching, which would be incapable of causing such physical pain
or injury. See United States v. Anderson, 695 F.3d at 399-401; see also United States v. Barnett,
540 F. App'x 532, 537 (6th Cir. 2013); Guzman-Polanco, 26 I&N D. 806 (clarifying Board's

2
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
 854

first decision in Matter ofGuzman-Polanco and stating that the Board will follow applicable circuit
precedent on issue of force necessary for crime of violence).

In its decision in Mathis, the Supreme Court applied the categorical approach to a state burglary
statute that contained alternative means to satisfy one of its elements. In doing so, Mathis provided
helpful guidance for determining whether a predicate statute of conviction is divisible. A statute

Immigrant & Refugee Appellate Center, LLC | www.irac.net

that outlines only various means of committing the predicate offense is not divisible, whereas a
statute that sets forth alternative elements of each offense is divisible. See Mathis v. United States,
136 S. Ct at 2256 (emphasis added); see also United States v. Ritchey, 840 F.3d 310, 317-18 (6th
Cir. 2016) (applying Mathis). Further, a state statute is indivisible when it contains a single set of
elements that are not set forth in the alternative. See United States v. Ritchey, 840 F.3d at 317-18.
Such a statute remains indivisible even if it "enumerates various factual means of committing a
single element." See Mathis v. United States, 136 S. Ct. at 2249.

Under the categorical approach, we examine solely whether the state statute defining the crime
of conviction categorically fits within the generic federal definition of a corresponding aggravated
felony. See id.; see also United States v. Ritchey, 840 F.3d at 317-18. We must compare the
elements of the statute forming the basis of the defendant's conviction with the elements of the
generic crime, and a conviction under the state statute will only constitute a conviction for the
generic offense if the statute's elements are the same as, or narrower than, those of the generic
offense. See Mathis v. United States, 136 S. Ct. at 2249. If the statute can be violated by an act
that does not fit within the generic offense, then the statute cannot qualify as an aggravated felony
under the categorical approach, and this is true even if the actual conduct of the defendant fell
within the generic crime. See id. The difficulty, however, lies in ascertaining whether the state
statute contains alternative means or elements. In addressing this question, the Court in Mathis
determined that state law should be consulted. See id. at 2250. Specifically, we may consider
state court rulings, the face of the statute, the statute's structure, and "if state law fails to provide
clear answers," the record of prior conviction. Id. at 2256-57 & n.7.

The elements of the respondent's offense under Michigan Compiled Laws section 780.81(4)
are that: (1) the defendant [assaulted/assaulted and battered],3 and (2) at the time, the victim was
the defendant's spouse or former spouse, had a child in common with the defendant, was a
resident/former resident of the same household as the defendant or had a dating or prior dating
relationship with the defendant. See Michigan Model Criminal Jury Instructions, Chapter 17
Assault 17.2a -Domestic Assault (2016). The statute does not have a "stand-alone" element of
physical force. Further, because neither assault nor battery, as defmed by Michigan, requires an
actual injury or physical pain to the victim (indeed, an assault may be accomplished without
touching the victim and a battery may be accomplished by merely touching something "closely"
connected to the victim), the statute does not require the necessary violent physical force to be a
crime of violence under section 16(a). See United States v. Anderson, 695 F.3d at 399-401.

3 According to the jury instructions, the State may charge either or both assault or assault and
battery, as warranted by the evidence. However, we need not consider whether this renders the
statute divisible inasmuch as we conclude that the entirety of the statute falls outside the definition
of a crime of violence under section 16(a).

3
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
 854

In her decision, the Immigration Judge found that the respondent's conviction for a crime of
domestic violence renders him ineligible for cancellation ofremoval under section 240A(b)(l)(C)
of the Act as an offense described in section 237(a)(2 ) of the Act. Because we find that the
respondent's conviction is not for a crime of violence, it does not render him ineligible for
cancellation of removal, as found by the Immigration Judge (U at 34
- ). Thus, a remand is
necessary for further proceedings regarding the respondent's application for cancellation of

Immigrant & Refugee Appellate Center, LLC | www.irac.net

removal. We find it unnecessary to consider at this time the Immigration Judge's decision denying
the respondent's application for withholding of removal under the Act.

Accordingly, the following order will be entered:

ORDER: The appeal is sustained in part, and the record is remanded to the Immigration Judge
for further proceedings consistent with this opinion and for entry ofa new decision.

d FOR THE BOARD

4
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
 )

JNITEil ... TATES DEPARTMENT OF JUSTICE
EA CUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN

File No.: A -854 ) July 8, 2016

Immigrant & Refugee Appellate Center, LLC | www.irac.net

)
In the Matter of: )
P ,S S ) In Removal Proceedings
)
Respondent )

Charge: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or

"Act"), as amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney General.

Applications: Withholding of Removal under the Act; Withholding of Removal

under the Convention Against Torture ("CAT" or "Torture Convention").

ON BEHALF OF RESPONDENT ON BEHALF OF THE GOVERNMENT

Tamara A. French Jason Ritter, Assistant Chief Counsel
4632 Second Ave Department of Homeland Security
Detroit, MI 48201 Immigration and Customs Enforcement
333 Mt. Elliott, Second Floor
Detroit, MI 48207

DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Respondent, S S P , is a 44 year-old male who is a native and citizen of El

Salvador. He was issued a Notice to Appear ("NTA") on November 14, 2008. See Exh. 1. The

Department of Homeland Security ("OHS" or "Government") commenced removal proceedings

against respondent by filing his NT A with the Detroit Immigration Court on November 26, 2008.

Id At a subsequent master calendar hearing, respondent admitted the allegations in the NT A and

conceded removability. Therefore, removability was established by the requisite clear and

convincing evidence. The Court designated El Salvador as the country of removal, should such

action become necessary.

1
 ) J

Respondent filed two applications for relief. He filed a Form I-589, Application for

Asylum and for Withholding of Removal, and a Form EOIR-42B, Application for Cancellation

of Removal and Adjustment of Status for Certain Nonpermanent Residents [hereinafter "42B

Immigrant & Refugee Appellate Center, LLC | www.irac.net

application'l His 428 application was pretermitted by Immigration Judge ("Ir) Crimilda

Guilloty on September 20, 2014, because of respondent's prior criminal conviction for domestic

'
violence. Respondent also conceded that he was not eligible for asylum (as he came to the

United States in 1997), and thus proceeded under an application for withholding of removal

under the Act, and for protection under the Convention Against Torture.

II. EVIDENCE OF RECORD

The record of proceedings is comprised of documentary and testimonial evidence. The

Court admitted into the record Exhibits 1 through 14. The first ten exhibits were marked and

identified in IJ Guilloty's decision on September 20, 2014. The remaining exhibits consist of

respondent's document list, dated September 23, 2015; respondent's amendments to his 428

application and asylum application; respondent's witness list; and respondent's additional

supporting document list, dated June 16, 2016. While some of the exhibits were submitted

primarily in support of respondent's 428 application, the Court found a substantial overlap and

admitted all documents submitted by respondent. The Government did not object. The Court

also heard the testimony of respondent and one witness, which is summarized below. The Court

notes that it has considered all admitted evidence in its entirety, regardless of whether it is

specifically mentioned further in the text of the instant decision.

1 This case was originally heard by IJ Guilloty. Pursuant to 8 C.F.R. 1240.l(b), the undersigned IJ has

reviewed and become familiar with the entire record.

2
 )

A. TESTIMONY OF RESPONDENT

Respondent testified that he was born in El Salvador on December 28, 1971. He started

living with his wife, , in 1990 or 1991. They married in 1997 after they came to the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

United States together. Respondent and his wife have six children, who range in age from six to

25 years-old. Their two oldest children were born in El Salvador, while their four youngest

children were born in the United States.

Respondent testified that he left El Salvador because of the gangs. Respondent became a

member of the El Salvadoran Anny in 1988, and reached the position of sergeant by 1997. As a

sergeant, respondent had access to uniforms, boots, arms, and ammunition. In 1996, some gang

members who had themselves been in the army started asking respondent to supply them with

uniform, boots, arms, and ammunition. They also wanted him to train gang members. These

gang members acted at the behest of gang bosses that respondent knew only by their nicknames:

Becha, Tigre, and Mano. Respondent stalled but ultimately supplied the gangs with two

uniforms and two pairs of boots, through a window of a building at the base. Respondent was

caught doing this and was kicked out of the army.

Because he believed that the gang would continue to press him for assistance, or to join

the gang, respondent and his wife decided to leave for the United States. They left about a

month later, only after gang members repeatedly tried to contact him. Respondent was never

physically harmed by the gangs, and he has had no contact with the gangs since that time. He

testified that his sister was contacted by the gangs on four occasions, when they sought

information about his phone number or location in the United States.

Respondent is afraid to return to El Salvador because the gangs will kill him. He does

not think that the gang members who approached him twenty years ago still pose a threat.

3
 ) _j

However, the gang members in El Salvador have only become more powerful and they know

when people return from the United States. He will have to pay extortion to them or he will be

killed. Respondent reported the gang members to the police, but he is not aware of them doing

Immigrant & Refugee Appellate Center, LLC | www.irac.net

anything about the complaint. He did not report them to the military because of his belief that

the military would not believe him and would not do anything to assist him.

8. TESTIMONY OF

Respondent's wife, , testified that she and her husband left El Salvador

because of his problems with the gangs. She has temporary protected status in the United States.

She was not aware that respondent contacted the police, and believes that he will be killed if he

returns. They lived in a small town in El Salvador and everyone will know that respondent had

been living in the United States.

III. LEGAL STANDARDS

A. CREDIBILITY AND CORROBORATION

Respondent filed his application for relief after May 11, 2005, thus the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in scattered sections of 8 U.S.C.) applies. See

Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). Under the REAL ID Act, an alien applying for

relief from removal bears the burden of proof to demonstrate he or she satisfies the applicable

eligibility requirements and warrants a favorable exercise of discretion. INA 240(c)(4)(A); see

also Matter ofAlmanza-Arenas, 24 I&N Dec. 771 (BIA 2009). An applicant's testimony alone

may be sufficient to sustain his or her burden of proof if it is credible, detailed, and persuasive.

INA 208(b)(l)(B)(ii); see also 8 C.F.R. 1208.13(a), 1208.16(b).

However, if the Court determines that corroborative evidence should be provided, the

applicant must provide it unless such evidence is not reasonably available. INA

4
 J

208(b)(l)(B)(ii), 240(c)(4)(B). Where the Court finds that an applicant has not provided

reasonably available corroborating evidence to establish his or her claim, the Court should

consider the applicant's explanation for the absence of such evidence, but need not identify the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

specific evidence necessary to meet the applicant's burden of proof. Matter of L-A-C-, 26 l&N

Dec. 516, 516 (BIA 2015); see also Gaye v. Lynch, 788 F.3d 519, 530 (6th Cir. 2015) ("[F]ederal

law does not entitle illegal aliens to notice from the Immigration Court as to what sort of

evidence the alien must produce to carry his burden."). Moreover, the Court is not required to

grant respondent a continuance to obtain such evidence. L-A-C-, 26 l&N Dec. at 516.

In making a credibility determination, the Court considers the totality of the

circumstances and all relevant factors. Matter of J-Y-C-, 24 I&N Dec. 260, 262 (BIA 2007).

Those factors include, but are not limited to: the applicant's demeanor, candor, and

responsiveness; the inherent plausibility of the applicant's account; the consistency between

written and oral statements; the internal consistency of each such statement; the consistency of

such statements with other evidence of record; and, any inaccuracies or falsehoods in such

statements, whether or not such inaccuracy or falsehood goes to the heart of the applicant's

claim. Id; INA 208(b)( l )(B)(iii), 240(c)(4)(C); see also El-Moussa v. Holder, 569 F.3d 250,

256 (6th Cir. 2009). The same credibility standard applies to applications for asylum,

withholding of removal under the Act, and protection under the Torture Convention. Slyusar v.

Holder, 740 F.3d 1068, 1074 (6th Cir. 2014) (citing El-Moussa, 569 F.3d at 256). An adverse

credibility determination is generally "fatal to claims for asylum and relief from removal." Id.

(citing Perlaska v. Holder, 361 F. App'x 655, 661 & n.6 (6th Cir. 2010)).

5
B. WITHHOLDING OF REMOVAL UNDER THE ACT

An alien seeking withholding of removal under INA 24l(b)(3) must establish a "clear

probability" that his or her life or freedom would be threatened in the country directed for

Immigrant & Refugee Appellate Center, LLC | www.irac.net

removal on account of his or her race, religion, nationality, membership in a particular social

group, or political opinion. INS v. Stevie, 467 U.S. 407, 429-30 (1984); Pilica v. Ashcroft, 388

F.3d 941, 951 (6th Cir. 2004). "Clear probability" means it is more likely than not that the

applicant would be subject to persecution on account of one or more of the enumerated grounds.

Id.; Matter ofC-T-L-, 25 l&N Dec. 341, 343 (BIA 2010). Withholding of removal is mandatory

if the respondent meets his or her burden of proof. See 8 C.F.R. 1208.14(a), 1208.16(d)(l).

One or more of the five enwnerated grounds must be "at least one central reason" for the

persecution. C-T-L-, 25 I&N Dec. at 348. An applicant who establishes past persecution

because of one of the protected grounds is entitled to a presumption that "the applicant's life or

freedom would be threatened in the future." 8 C.F.R. 1208.16(b)(l). The Government can

rebut this presumption by proving by a preponderance of the evidence that there has been a

fundamental change in circwnstances such that the applicant's life or freedom would no longer

be threatened or the applicant could reasonably avoid a future threat by relocating to another part

of the country of removal. Id. If the applicant has not suffered past persecution, he or she can

still establish a future threat of persecution if there is a pattern or practice of persecution against

a group of persons similarly situated to the applicant on account of an enumerated ground, and

the applicant has shown his or her "inclusion in and identification with" such group. 8 C.F.R.

1208. l6(b)(2).

6
 1. Persecution

"Persecution" is defined as unjust harm or suffering inflicted upon an individual by the

government of a country, or by persons the government is unable or unwilling to control, in order

Immigrant & Refugee Appellate Center, LLC | www.irac.net

to punish him for possessing a belief or characteristic the persecutor finds offensive and seeks to

overcome. See Acosta, 19 l&N Dec. at 222. Persecution requires more than a few isolated

incidents of verbal harassment or intimidation, unaccompanied by any physical punishment,

infliction of harm, or significant deprivation of liberty. Mikhailevitch v. INS, 146 F.3d 384, 390

(6th Cir. 1998). Although persecution does not include every treatment regarded as offensive,

"physical abuse is not an absolute prerequisite to a finding of persecution." Japarkulova v.

Holder, 615 FJd 696, 700 (6th Cir. 2010). Actions that might be indicia of persecution include:

"detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of

property, surveillance, beatings, [and] torture." Gilaj v. Gonzalez, 408 F.3d 275, 285 (6th Cir.

2005) (citations omitted).

Persecution does not, however, "encompass all treatment that our society regards as

unfair, unjust, or even unlawful or unconstitutional." Lumaj v. Gonzales, 462 F.3d 574, 577 (6th

Cir. 2006) (citations omitted); see also Ly v. Holder, 421 F. App'x 575, 577 (6th Cir. 2011)

("[I]solated periods of imprisonment - even those accompanied by allegations of threats and

physical abuse - do not compel a finding of persecution." (citations omitted)); Ali v. Ashcroft,

366 F.3d 407, 410 (6th Cir. 2004) ("[P]ersecution is an extreme concept that does not include

every sort of treatment our society regards as offensive." (citation omitted)). Moreover, an

individual's ability to remain in his or her home country after the alleged events of persecution

without further incident suggests that the situation was not grave enough to constitute

persecution. See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006).

7
 J

The test for persecution "has both an objective and subjective component." Perkovic v.

INS, 33 F.3d 615, 620 (6th Cir. 1994). An asylum applicant must prove that his or her fear is

both "subjectively genuine and objectively reasonable." Matter of H-M-, 20 l&N Dec. 683, 688

Immigrant & Refugee Appellate Center, LLC | www.irac.net

(BIA 1993) (citations omitted); see also Yousif v. INS, 794 F.2d 236, 243-44 (6th Cir. 1986).

The subjective component focuses on the applicant's own testimony and credibility. Akhtar v.

Gonzales, 406 F.3d 399, 404 (6th Cir. 2005). To prove his or her fear is objectively reasonable,

an applicant must establish that:

( 1) [he or she] possesses a belief or characteristic a persecutor seeks to

overcome by means of punishment of some sort; (2) the persecutor is already
aware, or could [] become aware, that [he or she] possesses this belief or
characteristic; (3) the persecutor has the capability of punishing [him or her]; and
(4) the persecutor has the inclination to punish [him or her].

Mogharrabi, 19 l&N Dec. at 446 (citing Acosta, 19 l&N Dec. at 212).

An alien who establishes that he or she suffered past persecution within the meaning of

the Act shall be presumed to have a well-founded fear of future persecution. 8 C.F.R.

1208.13(b)(l). The IJ must make a specific finding as to whether an applicant has established

past persecution. Matter of D-1-M-, 24 l&N Dec. 448, 451 (BIA 2008). This presumption can

be rebutted by a preponderance of the evidence if the Government establishes either that: (1)

since the time the persecution occurred, conditions in the applicant's country have changed to

such an extent that the applicant no longer has a well-founded fear of persecution if he were to

return; or (2) the applicant could avoid future persecution by relocating to another part of his or

her country. 8 C.F.R. 1208.13(b)(l)(i)-(ii).

To carry its burden regarding changed conditions, the Government must show that the

changed conditions obviate "the risk to life or freedom related to the original claim," or original

8
 ....)

2
statutory ground. Matter of A-T- (A-T- 1), 24 I&N Dec. 617, 623 (AG 2008). To carry its

burden regarding relocation, the Goverrunent must show that the alien can relocate to a specific

area of the country where the risk of persecution falls below the well-founded fear level, and that

Immigrant & Refugee Appellate Center, LLC | www.irac.net

such relocation is reasonable under the circumstances. See Matter of M-Z-M-R-, 26 I&N Dec.

28, 32-36 (BIA 2012); 8 C.F.R. 1208.13(b)(3).

If an applicant fails to establish past persecution, he or she must establish a well-founded

fear of future persecution. 8 C.F.R. 1208.13(b)(l). In evaluating a claim of future persecution,

the alien does not have to provide evidence that he or she will be singled out individually for

persecution if the alien is able to establish that there is a pattern or practice in his or her home

country of persecuting groups of persons similarly situated to himself or herself on account of

one or more of the five enumerated grounds and that he or she is included in and identifies with

such groups. 8 C.F.R. 1208.13(b)(2)(iii). However, respondent's fear must not be limited to a

particular place within his or her country; he or she "must show that the threat of persecution

exists for him [or her] country-wide." Matter of C-A-L-, 21 I&N Dec. 754, 757 (BIA 1997)

(citations omitted); see also Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006) ("[Respondent]

must show that [he or she has] a well-founded fear of persecution throughout the entire country."

(emphasis in original) (citations omitted)).

2. Particular Social Group

An applicant who claims to fear persecution on account of his or her membership in a

particular social group "must initially identify the particular social group or groups in which

membership is claimed." See A-T- 1, 24 l&N Dec. at 623 n.7 (citing 8 C.F.R. 1208.16(b)); see

also A-T- 2, 25 l&N Dec. 4, 10 (BIA 2009) (citing A-T- 1, 24 I&N Dec. at 623 n.7, and

2 The future harm a respondent fears need not take the exact same form "as the hann [)he ... suffered in the

past." A-T- I, 24 I&N Dec. at 622. Similarly, the "specific agent of the future persecution need not ... be identical
to the specific agent" who inflicted the past persecution. Matter ofA-T-(A-T- 2), 25 I&N Dec. 4, 9 n.4 (BIA 2009).

9
instructing applicant to "includ[e] the exact delineation of any particular social group(s) to which

she claims to belong" on remand). A "particular social group" is a "group of persons all of

whom share a common, immutable characteristic.'' Acosta, 19 I&N Dec. at 233; see also

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Al-Ghorbani v. Holder, 585 F.3d 980, 994 (6th Cir. 2009). The characteristic "that defines the

group [] must be one that the members of the group either cannot change, or should not be

required to change because it is fundamental to their individual identities or consciences."

Acosta, 19 I&N Dec. at 233. It may be an innate characteristic "such as sex, color, or kinship

ties," or it may be "a shared past experience such as former military leadership or land

ownership." Id

Two key characteristics of a particular social group are "particularity and social

visibility." Al-Ghorbani, 585 F.3d at 994 (citing Matter ofS-E-G-, 24 I&N Dec. 579, 582 (BIA

2008)). "Particularity" concerns "whether the proposed group can accurately be described in a

manner sufficiently distinct that the group would be recognized, in the society in question, as a

discrete class of persons." S-E-G-, 24 I&N Dec. at 584. "Social visibility" requires that "the

shared characteristic of the group should generally be recognizable by others in the community."

Id. at 586. Because literal "visibility" (meaning omnipresent ocular or on-sight visibility) of the

group is not required to demonstrate social visibility, the Board recently relabeled this element

"social distinction." See Matter of W-R-G-, 26 I&N Dec. 208, 211-12 (BIA 2014). Perceptions

of the group are measured by the view of the relevant society, not solely by the perception of the

applicant's persecutors. Id. at 217-18. The Board emphasized that an applicant for asylum or

withholding must demonstrate that the group is: (1) composed of members who share a common

immutable characteristic; (2) defined with particularity; and (3) socially distinct within the

society in question. Matter ofM-E-V-G-, 26 l&N Dec. 227 (BIA 2014 ).

10
C. PROTECTION UNDER THE TORTURE CONVENTION

An applicant for withholding of removal under the Convention Against Torture bears the

burden of proving it is "more likely than not" that he or she would be tortured if removed to the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

proposed country of removal. See Ali v. Reno, 237 FJd 591, 596 (6th Cir. 2001); Matter ofS-V-,

22 l&N Dec. 1306, 1311 (BIA 2000); 8 C.F.R. 1208.16(c)(2). In assessing whether the

applicant has satisfied his or her burden of proof, the Court must consider all evidence relevant

to the possibility of future torture, including, but not limited to: (1) evidence of past torture

inflicted upon the applicant; (2) evidence that the a pplicant could relocate to a part of the country

of removal where he or she is not likely to be tortured; (3) evidence o f gross, flagrant, or mass

violations of human rights within the country of removal; and (4) other relevant information of

conditions in the country of removal. 8 C.F.R. 1208.16(c)(3).

"Torture" is defined as "any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person." 8 C.F.R. 1208.lS(a)(l). Torture does not refer

to general violence; rather, the referenced activity must be the very torture that the applicant

claims to fear. S-V-, 22 l&N Dec. at 1313. Additionally, "the existence of a consistent pattern of

gross, flagrant, or mass violations of human rights in a particular country does not .. . constitute

a sufficient ground for determining that a particular person would be in danger of being

subjected to torture upon his or her return to that country." Id. (citation omitted); see also

Palma-Campos v. Holder, 606 F. App'x 284 (6th Cir. 2015). The Sixth Circuit requires that an

alien demonstrate a "particularized threat of torture" for withholding of removal under the

Torture Convention. Almuhtaseb, 453 F.3d 743; see also Castellano-Chacon v. INS, 341 F. 3d

533, 551-52 (6th Cir. 2003) ("8 C.F.R. 20 8.16(c)(4) focuses on the particularized threat of

torture, rather than any other form of persecution, should the alien return to the country at issue,

11
although the torture must be inflicted, instigated, consented to, or acquiesced in, by state

actors.").

The severe pain or suffering must be inflicted on the applicant for such purposes as: (1)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

obtaining information or a confession from him or her or a third person; (2) punishing him or her

for an act he or she or a third person committed or is suspected of having been committed; (3)

intimidating or coercing him or her or a third person; or (4) for any reason based on

discrimination of any kind. 8 C.F.R. 1208.18( a)( 1). In order to constitute "torture," the "act

must be directed against a person in the offender's custody or physical control." 8 C.F.R.

1208.18(a)(6); see also Matter of J-E-, 23 I&N Dec. 291, 299 (BIA 2002). Torture is an

"extreme form of cruel and inhuman treatment" and does not include pain or suffering arising

from imposition of lawful sanctions. 8 C.F.R. 1208.18(a)(2)-(3). Lawful sanctions do not

include sanctions that defeat the object and purpose of the Torture Convention. 8 C.F.R.

1208.18(a)(3).

Finally, the pain or suffering must be inflicted "by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity." 8

C.F.R. 1208.18(a)(l). "Acquiescence" requires that the public official have prior awareness of

the activity and thereafter breach his or her legal responsibility to intervene to prevent such

activity. 8 C.F.R. 1208.18(a)(7); see also Ali, 237 F.3d at 597. Acquiescence includes the

"willful blindness" of the public official to the activity. Amir v. Gonzales, 467 F.3d 921, 927

(6th Cir. 2006). However, a government's inability to control private parties does not equate to

willful blindness. See Ali, 237 F.3d at 597-98.

12
 IV. DISCUSSION AND ANALYSIS

The Court denies respondenes applications for withholding of removal under the Act and

protection under the Torture. Convention. The Court finds that respondent failed to present

Immigrant & Refugee Appellate Center, LLC | www.irac.net

credible testimony regarding his alleged past persecution in El Salvador. Additionally,

respondent failed to allege a cognizable particular social group under the Act and consequently,

did not meet his burden of proof for withholding of removal under the Act. Respondent

similarly failed to present any evidence to support his claim for protection under the Torture

Convention.

A. CREDIBILITY AND CORROBORATION

The Court does not find the testimony of the respondent to be credible because it was

implausible or differed with other evidence in the record on significant points. First, respondent

testified that he left El Salvador one month after he was discharged from the army in 1996.

However, in his applications for relief, he indicated that he left El Salvador in June 1997. He

also indicated in his asylum application, Exh. 2, Tab A at 29, that he hid at his uncle's home for

six months before leaving for the United States.

Respondent also claimed that he did not tell anyone in the army about the threat that the

gang posed because no one would believe him or do anything. Yet, the army summarily

dismissed him upon finding out that he had given uniforms to the gang members, which is

implausible if the army was unwilling to take action regarding the gangs. Finally, respondent

testified that his sister received four inquiries from the gang members about his whereabouts in

the United States in the two years after he left El Salvador. However, the documentary evidence

contradicts his claim. His sister submitted a statement indicating that she was contacted by the

gang twice in 2008, rather than the four times that respondent alleged. Exh. 5, Tab E.

13
8. WITHHOLDING OF REMOVAL UNDER THE ACT

The Court denies respondent's application for withholding of removal under INA

24I(b)(3). Respondent testified that he is afraid to return to El Salvador because of the gangs.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

While he admits that he does not fear the gang members who threatened him twenty years ago,

his attorney identified his particular social group as a person who fled the gangs who is returning

to El Salvador after many years in the United States. The Government argues that respondent

did not present credible testimony, and that his testimony did not support a link between his fear

and a protected ground. According to the Government, this case is no different from other

decisions by the Board, where returnees from the United States were not accorded protected

status.

The Court finds that the case law does not support respondent's argument that he is a

member of a particular social group. The Sixth Circuit Court of Appeals, in whose jurisdiction

this case arises, has held that "being perceived as having money as a result of living in the United

States is not a group membership recognized by the INA." Saucedo-Solis v. Holder, 556 F.

App'x 471 (6th Cir. 2014). In that case, similar to this case, the respondent argued that he

would be kidnapped by the Zetas gang because he would be presumed to have money based on

his lengthy residence in the United States, and he would ultimately be killed because he did not

have the money to pay the ransom. See generally id. Similarly, in Cristobal-Leon v. Holder,

510 F. App'x 397 (6th Cir. 2013), the Sixth Circuit held that the particular social group identified

by the respondent, namely, "Guatemalans who have lived in the United States and are perceived

to have accumulated wealth," is too general and amorphous to qualify as a particular social

group.

14


Here, regardless of whether respondent is characterized as being from the United States

or being a member of any group that is perceived to have money, such a characterization is not a

cognizable social group within the meaning of the Act. It is simply not a group that is perceived

Immigrant & Refugee Appellate Center, LLC | www.irac.net

as a group by the society in the country that respondent has left, in this case, El Salvador.

Furthermore, the evidence presented does not establish a nexus between the gang violence in El

Salvador and the status of respondent. A nexus between the persecution and the membership in

a protected group must be established by the respondent, and he has failed to do so. See Cruz

,
Ibarra v. Lynch, 632 F. App x 824 (6th Cir. 2015).

Other similar claims have been rejected by the both Sixth Circuit and the Board of

,,
Immigration Appeals ("BIA" or "Board ). In Matter of A-M-E & J-G-U, 24 l&N 69 (BIA
,
2007), the Board held that the respondents status as affluent Guatemalans who were subject to

class hatred by gangs did not constitute a particular social group to support an application for

asylum. Moreover, fear of general, widespread violence in a country that affects the entire

population does not support a claim for asylum. See generally Matter of Sanchez and Escobar,

19 I&N Dec. 276 (BIA 1985).

Therefore, the Court finds that respondent is not eligible for withholding because he

canno t establish membership in a cognizable particular social group that is protected under the

Act. Moreover, respondent cannot show a nexus between the unfortunate violence in El

Salvador and the status of returning deportees from the United States. Therefore, the Court

denies his application for withholding of removal under the Act.

C. PROTECTION UNDER THE TORTURE CONVENTION

Respondent also seeks protection under the Convention Against Torture. As noted

above, the Court finds that respondent is not credible. Respondent's entire basis for relief

15

concerns his purported interactions with gang members, and his testimony differed on these

material aspects. Therefore, the Court denies his application for protection under the Torture

Convention as a matter of discretion. Alternatively, the Court denies his application on the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

merits because respondent has not met his burden of proof. Respondent bears the burden of

establishing that he would be tortured by government officials or with their consent if removed

to El Salvador. He presented no evidence that he has ever been arrested, detained, or abused by

El Salvadoran officials, nor did he present evidence sufficient to establish that the criminals,

gangs or cartels operate at the behest of the El Salvadoran officials or with their acquiescence.

Respondent simply did not demonstrate that it was more likely than not that he would be tortured

upon his return to El Salvador, so his application for protection must also be denied.

V.ORDERS

IT IS HEREBY ORDERED that respondenCs application for withholding of removal

under the Act is DENIED.

IT IS FURTHER ORDERED that respondent's application for protection under the

Convention Against Torture is DENIED.

IT IS FURTHER ORDERED that respondent be removed to EL SALVADOR based

upon the charge of removability contained in his NTA.

July 8, 2016
Date
Appeal Due Date: August 8, 2016

16