Hernandez-Chacon v. Barr

• Decision Date: 23 January 2020
• Docket Number: August Term 2019,Docket No. 17-3903-ag
• Citation: 948 F.3d 94
• Parties: Rosario Del Carmen HERNANDEZ-CHACON, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

948 F.3d 94

Rosario Del Carmen HERNANDEZ-CHACON, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 17-3903-ag

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: September 10, 2019

Decided: January 23, 2020

HEATHER YVONNE AXFORD, Central American Legal Assistance, Brooklyn, New York, for Petitioner.

CARMEL A. MORGAN, Trial Attorney (Shelley R. Goad, Assistant Director, Office of Immigration Litigation, on the brief), for Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: Wesley, Chin, and Bianco, Circuit Judges.

Chin, Circuit Judge:

Petitioner Rosario Del Carmen Hernandez-Chacon ("Hernandez-Chacon"), a citizen of El Salvador, seeks review of a decision of the Board of Immigration Appeals (the "BIA") dismissing her appeal from a decision of an immigration judge (the "IJ") granting her protection under the Convention Against Torture ("CAT") but denying her application for asylum. Although she has been granted CAT relief, Hernandez-Chacon continues to pursue her asylum claim because asylum would provide her with broader relief, including permanent residence and a path to citizenship. See 8 U.S.C. § 1159.

While in El Salvador, Hernandez-Chacon was attacked twice by members of a gang. The first attack involved a man who attempted to rape her in her home. The second attack involved the same man, along with two other men, who attempted to rape her while she was walking with her daughters. Hernandez-Chacon contends that she is entitled to asylum because if she is returned to El Salvador she will be persecuted based on her membership in a particular social group -- Salvadoran women who have resisted the sexual advances of a gang member -- and political opinion -- resistance to the norm of female subordination to male dominance that pervades El Salvador. The agency rejected both claims for asylum.

While we agree that Hernandez-Chacon failed to establish her asylum claim based on membership in a particular social group, we conclude that the agency did not adequately consider her political opinion claim. Accordingly, we grant the petition for review with respect to her political opinion claim and remand for further proceedings.

STATEMENT OF THE CASE

A. The Facts¹

In 2013, Hernandez-Chacon, who was then twenty-nine years old, was living with her two daughters, who were three and twelve years old, in Chalatenango, El Salvador. Her "partner," Oscar Valdez, was not present, as he was living and working in the United States.² One night in late August or early September, while Hernandez-Chacon and her daughters were home alone, a man whom she did not know entered an open hallway of the house, where she was washing dishes. He was drunk and said he wanted to have sex with her. When she told him no, he grabbed her and tried to force himself on her. She managed to escape and ran to an interior room, locking herself inside. He eventually left. As Hernandez-Chacon would later testify, she said "no" to the man even though she knew that "resisting his advances would put [her] in danger." Cert. Adm. Rec. at 193. She resisted, she explained, "because I have every right to." Id . She did not report the attack to the police because she did not believe the police would do anything.

Three days later, Hernandez-Chacon was attacked by the man again. She was walking with her two daughters when three men wearing masks suddenly came out of a nearby cemetery. One of them said to her that "since [she] didn’t want to do this with him in a good way, it was going to happen in a bad way." Id . at 186. She recognized his voice as that of the man who had attacked her a few days earlier. Another of the men had a tattoo on his arm, the symbol of the Mara Salvatrucha ("MS") gang. They grabbed her and pulled her into the cemetery, leaving her daughters on the street. As the men "started to take [her] by force," she began to scream. Id . at 187. She could hear her older daughter screaming as well. As Hernandez-Chacon continued to shout and resist, they spit on her and beat her with a piece of metal. She lost consciousness. She eventually woke up in a clinic; three people had interceded in response to her daughter’s cries for help, and had taken her to the clinic. Hernandez-Chacon was treated for a broken collarbone and received pain medication. She was eventually transferred by ambulance to a hospital. A medical certification shows that Hernandez-Chacon was treated at the hospital on September 2, 2013, for a fracture of the right clavicle.

When Hernandez-Chacon returned home from the hospital, she found a note under her door, from her attackers, warning that if she went to the police, "they were going to kidnap her [daughter] and that they were going to rape her and kill her and pull out her tongue." Id . at 190. Again, she did not go to the police because she believed the police would not help her. After the attack, she did not leave her house very often, and never alone, as she was afraid the gang members "would do something to me and my daughters." Id . at 191-92.

After the attacks, Hernandez-Chacon and her partner spoke by telephone and they agreed that she would leave El Salvador and join him in the United States as soon as they were able to put together sufficient resources for her to join him. In May 2014, Hernandez-Chacon and her younger daughter Gladis, who was then almost four years old, left El Salvador, traveling through Guatemala and Mexico, reaching the United States in June 2014. She left her thirteen-year old daughter, Maria, in El Salvador because she only had enough money to bring one of the girls, and her sister-in-law had agreed to take care of Maria.

On June 15, 2014, Hernandez-Chacon and Gladis entered the United States without inspection and were apprehended at the border; they were served with a Notice to Appear for removal proceedings and were released from custody. They applied for asylum, withholding of removal, and CAT relief. As Hernandez-Chacon explained in the application, she was attacked by three men who attempted to rape her and broke her collarbone in the process, in retaliation for her resisting an earlier attempt to rape her. She explained that she believed that if she returned to her home country she would be raped or killed by members of the MS gang because she had twice resisted their attempts to rape her. She later elaborated: "I believe that if I go back to El Salvador, the gang members who twice tried to rape me and broke my collar bone, will not let me live if they see me again. They punished me brutally after the first time I resisted the sexual advances of one of them and this time will be even worse." Id . at 254.

B. The IJ Decision

Before the IJ, Hernandez-Chacon argued that she was eligible for asylum based on her membership in a particular social group and her political opinion. Regarding her social group claim, Hernandez-Chacon alleged that she was persecuted for being a member of the group of either (1) "Salvadoran women who have rejected the sexual advances of a gang member" or (2) "Salvadoran women who are viewed as property." Id. at 151. She also argued that she was persecuted for her feminist political opinion, and specifically her resistance to male domination in Salvadoran society.

On October 19, 2016, the IJ issued a decision granting Hernandez-Chacon relief under CAT but denying her asylum claim. The IJ found Hernandez-Chacon to be "a credible witness." Id . at 150. The IJ held that Hernandez-Chacon met her burden of proving that the Salvadoran government would not be able to protect her from gang members if she were to return to El Salvador and it was more likely than not that she would be tortured if she returned home. The IJ found that the record supported Hernandez-Chacon’s claim that there was "widespread corruption and a number of human rights problems in El Salvador." Id . at 155. The IJ also found that she presented documentary evidence supporting her claim of suffering a major medical event, including the beating by the three men, the attempted rapes, and the broken collarbone, as well as the threats to kill her and her daughter if she reported the incidents to the police. On that basis, the IJ granted her request for withholding of removal under Article 3 of CAT. The IJ also granted her daughter Gladis’s application for asylum.

Nonetheless, the IJ rejected Hernandez-Chacon’s asylum claims. The IJ found that the proposed social groups -- (1) Salvadoran women who have rejected the sexual advances of a gang member and (2) Salvadoran women who are viewed as property -- had not been recognized by the BIA as being protected social groups. The IJ also rejected Hernandez-Chacon’s political opinion claim, concluding: "In this case [Hernandez-Chacon] did not advance a political opinion. I find that she simply chose not to be the victim and chose to resist being a victim of a criminal act." Id . at 154.

In her decision, the IJ reviewed relevant country conditions in El Salvador, including the prevalence of violence against women and "the dreadful practice of El Salvador’s justice system to favor aggressors and assassins and to punish victims of gender violence." Id . at 147. The IJ relied on the declaration of Aracely Bautista Bayona, a lawyer and human rights specialist, who described "the plight of women in El Salvador," id .,³ and recounted the following:

One of "the most entrenched characteristics of Salvadoran society is machismo, a system of patriarchal gender biases which subject women to the will of men. Salvadorans are taught from early childhood that women are subordinate." Id . Salvadoran society "accepts and tolerates men who violently punish women for violating these gender rules or disobeying male relatives." Id . Indeed, in El Salvador, "femicide remain[s] widespread." Id . at 148; see also U.S. Dep’t of State, Bureau of Democracy, H. R. and Labor, Country Reports on...