632 F.3d 117 (4th Cir. 2011), 09-1423, Crespin-Valladares v. Holder

Docket Nº:09-1423.
Citation:632 F.3d 117
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:Orlando CRESPIN-VALLADARES; Sandra Yanira Melgar-Melgar; S.E.C.M.; S.O.C.M., Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
Attorney:Jennifer Loraine Swize, Jones Day, Washington, D.C., for Petitioners. Carol Federighi, United States Department of Justice, Washington, D.C., for Respondent. Walter D. Kelley, Jr., Tara Lynn R. Zurawski, Jason B. Taub, Jones Day, Washington, D.C.; Jonathan A. Muenkel, Jones Day, New York, NY, for...
Judge Panel:Before MOTZ, KING, and GREGORY, Circuit Judges. Petition for review granted and case remanded for further proceedings by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge GREGORY joined.
Case Date:February 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 117

632 F.3d 117 (4th Cir. 2011)

Orlando CRESPIN-VALLADARES; Sandra Yanira Melgar-Melgar; S.E.C.M.; S.O.C.M., Petitioners,

v.

Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1423.

United States Court of Appeals, Fourth Circuit.

February 16, 2011

Argued: Dec. 8, 2010.

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[Copyrighted Material Omitted]

Page 119

ARGUED:

Jennifer Loraine Swize, Jones Day, Washington, D.C., for Petitioners.

Carol Federighi, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

Walter D. Kelley, Jr., Tara Lynn R. Zurawski, Jason B. Taub, Jones Day, Washington, D.C.; Jonathan A. Muenkel, Jones Day, New York, NY, for Petitioners.

Tony West, Assistant Attorney General, Margaret Perry, Senior Litigation Counsel, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Petition for review granted and case remanded for further proceedings by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Orlando Crespin-Valladares and his wife and children (" the Crespins" ), citizens of El Salvador, petition for review of a final order of removal entered by the Board of Immigration Appeals (BIA). Crespin argues that he and his family deserve asylum because he fears persecution in El Salvador on account of his family ties. An immigration judge (IJ) accepted this argument and granted the Crespins' asylum application, but the BIA vacated and ordered their removal. For the reasons that follow, we grant the Crespins' petition for review and remand to the BIA.

I.

The Crespins seek asylum because of events arising from the murder of Crespin's cousin in El Salvador. We detail those events as Crespin described them in

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his testimony, an account that the IJ found credible and that the BIA did not dispute. We then outline the legal proceedings that followed.

A.

In January of 2004, in Crespin's hometown of Sonsonate, El Salvador, four members of the Mara Salvatrucha 13 gang (" MS-13" ) fatally shot Crespin's cousin. Crespin heard the shots as he was walking towards his uncle's house, and he witnessed four MS-13 members fleeing the scene. After arriving at his uncle's house, Crespin described the four men to the police; his description matched the one provided by Crespin's uncle, who had witnessed the murder.

Two weeks later, another shooting occurred in Sonsonate, and the police connected it to the murder of Crespin's cousin. They summoned Crespin and his uncle to the police station, where Crespin saw two of his cousin's four attackers, whom the police had arrested, sitting on a bench inside. The two gang members watched Crespin and his uncle enter a detective's office, at which point Crespin informed the detective that he recognized both attackers. Crespin and his uncle then agreed to testify against the two men.

Shortly thereafter, MS-13 members began threatening Crespin and his uncle. As the murder trial approached, gang members " repeatedly" told Crespin's uncle that they would kill him if he continued cooperating with the police. On one occasion, a gang member held a gun to the uncle's head and pulled the trigger twice, although an apparent malfunction prevented it from firing. The prosecutor subsequently provided the uncle 24-hour police protection. While he was under this protection, MS-13 members threatened his wife. He nonetheless testified as the prosecution's primary eyewitness, and a court convicted both defendants. The other two assailants were not apprehended. The police withdrew the uncle's protection upon the trial's completion, and the same day he fled the country.

MS-13 similarly threatened Crespin on three occasions. Because he did not witness the murder, however, he received no police protection. The first threat came soon after his encounter with his cousin's attackers at the police station; gang members slipped a note under his door declaring that he would be " next" if he persisted in his cooperation with the police. Upon finding the note, Crespin and his family fled Sonsonate for a relative's home in San Salvador. When Crespin returned to Sonsonate the next month to collect his mail, inside his house he found another note proclaiming that the gang would kill him if he " went to court." Finally, as Crespin drove through Sonsonate later that month, he encountered one of his cousin's killers, who shouted that " you need to shut up or we are going to kill you."

Afraid, Crespin planned his family's escape to the United States. To that end, he left his children with an uncle in San Salvador and, in May or June 2004, traveled with his wife to the United States on tourist visas. They returned to El Salvador after about two months to collect their children and make arrangements for the family's relocation to the United States. On December 26, 2004, United States border patrol agents apprehended the Crespins as they entered the United States.

B.

At the removal hearing, the Crespins conceded their removability but applied for asylum. In particular, Crespin claimed that he harbored a well-founded fear of persecution because of his membership in a social group " consisting of family members

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of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses." Crespin and his wife testified to the facts outlined above. In addition, they provided the written testimony of Luz Nagle, a law professor and former Colombian judge, who explained that MS-13 has murdered government witnesses in the past and that gang members often intimidate their enemies by attacking those enemies' families. Professor Nagle also explained that recent government efforts to control gang violence in El Salvador remain ineffective. Finally, Crespin submitted various news articles and governmental reports analyzing Salvadoran gang violence.

After considering this evidence, the IJ made several relevant findings. First, he found that the Crespins' proposed social group of " family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" qualified as a " particular social group" under the Immigration and Nationality Act (INA). Second, the IJ determined that Crespin had demonstrated a sincere and objectively reasonable fear that he would suffer persecution were he to return to El Salvador. Third, the IJ concluded that the Salvadoran government's attempts to control gang violence had failed. Fourth, the IJ found that " [a]t least one central reason why the gang members targeted [Crespin] was because of his uncle's cooperation with the Salvadoran government" and that the persecution of Crespin was therefore on account of his membership in a particular social group.

Accordingly, on July 10, 2007, the IJ granted Crespin's asylum application, as well as the derivative applications of his wife and children. The Government appealed to the BIA.

C.

Almost two years later, on March 12, 2009, the BIA vacated the IJ's grant of asylum and ordered the Crespins' removal. It identified two reasons for doing so.1 First, the BIA stated that " ‘ those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses' does not qualify as a particular social group." Second, it concluded that Crespin faced no well-founded fear of persecution, reasoning that Crespin suffered " mere threats and harassment" that failed to give rise to anything more than a " generalized fear of harm."

On April 9, 2009, the Crespins appealed to this Court. Four days later, they filed a motion to reconsider with the BIA. The BIA denied that motion on November 24, 2009, and in so doing, provided additional justifications for the denial of the Crespins' asylum application. Specifically, the BIA opined that Crespin had not demonstrated a nexus between his asserted persecution and his proposed social group. It also concluded that, because " the Salvadoran government has focused law enforcement efforts on suppressing gang violence," the Crespins had failed to demonstrate that the government was " unable or unwilling to protect them from MS-13." Accordingly, the BIA reaffirmed its prior decision and denied the Crespins' motion to stay removal. The Crespins did not petition for review of this order.

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The Government then moved this Court to remand the Crespins' appeal of the original removal order to the BIA so that the BIA could clarify the interaction between that order and its order denying reconsideration.2 We denied the Government's motion.

II.

We first address the parties' preliminary arguments. The Government, echoing the assertions made in its motion to remand, urges us to remand or dismiss the Crespins' petition for lack of jurisdiction. In contrast, the Crespins contend that we have jurisdiction to review the BIA's removal order, but only on the grounds set out in the original order. We reject both arguments.

A.

The INA grants aliens the right to petition for judicial review of a " final order of removal," 8 U.S. C. § 1252(a)(1), which the statute defines in relevant part as " a determination by the [BIA] affirming" an order " concluding that the alien is deportable or ordering deportation." §§ 1101(a)(47)(B)(i), (A). Should a petitioner also seek review of a motion to reconsider, that review " shall be consolidated with the review of the order" itself. § 1252(b)(6). In cases involving a removal order and a motion to reconsider, the statute thus " contemplates two petitions for review and directs the courts to consolidate the matters." Stone v. INS, 514 U.S. 386, 394, 115 S.Ct....

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