De Artiga v. Barr

• Decision Date: 10 June 2020
• Docket Number: Docket No. 17-2898-ag,August Term 2019
• Citation: 961 F.3d 586
• Parties: Patricia Xiomara MARTINEZ DE ARTIGA, Noe Antonio Artiga Martinez, Petitioners, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

961 F.3d 586

Patricia Xiomara MARTINEZ DE ARTIGA, Noe Antonio Artiga Martinez, Petitioners,

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

Docket No. 17-2898-ag

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: January 8, 2020

Decided: June 10, 2020

REBECCA R. PRESS, UnLocal, Inc., Community Immigration Legal Services, New York, NY, for Petitioners.

EVAN P. SCHULTZ, Trial Attorney (Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: KEARSE, CALABRESI, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge:

Petitioner Patricia Xiomara Martinez De Artiga is a citizen of El Salvador. Martinez seeks relief from threats to her and her children's lives by the infamous Mara Salvatrucha (MS-13) gang. She applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) and listed her son Noe Antonio Artiga Martinez as a derivative beneficiary. Martinez testified credibly concerning serious, individualized threats against her and her children. The Immigration Judge (IJ) denied CAT relief due to Martinez's prompt flight from El Salvador following the gang's threats and the fact that there had been no physical harm prior to her flight. The BIA affirmed. It was error for the IJ to penalize Martinez in this manner, and we cannot confidently predict that a remand would be futile. We therefore DENY the government's motion for summary denial, GRANT Martinez's petition for review, and REMAND the case to the BIA for further proceedings consistent with this opinion. Judge Kearse dissents in a separate opinion.

I.

In June 2014, members of MS-13 targeted Martinez's son Noe as a potential new recruit. Gang violence in El Salvador was pervasive at that time (and still is) due to the rise of two warring groups, MS-13 and Barrio-18 (B-18), both of which trace their origins to Southern California. Their tactics are brutal and well-documented. Certified Administrative Record (CAR) at 219–303.

Gang members first approached Noe, then 10 years old and in the fifth grade, outside of his school in San Bartolomé Perulapía. They asked Noe to sell drugs inside the school and to demand money from others on behalf of the gang. When Noe refused the gang members’ requests, they told him that they would kill him and his family. CAR at 113–14, 169, 176. After this initial confrontation, the gang members threatened Noe several times each week in front of his school. Id. at 176.

Around the same time, the school's principal held a meeting with parents to discuss threats against at least two other students in connection with MS-13's recruitment efforts. Police officers were stationed in front of the school for a short period as a result of the meeting. Gang members returned to the front of the school after the police left.

It was at this point that Martinez began escorting Noe to and from school in order to protect him. CAR at 122–23, 169. Martinez arranged with the principal to pick up Noe at the rear entrance of the school. She was able to avoid the gang members for a short time.

Approximately two weeks later, gang members confronted Martinez outside her home. CAR at 123–24, 169. They told Martinez that they knew she was protecting Noe and that they would kill Martinez and Noe if Noe did not join MS-13. Id. at 124, 169. One of the gang members displayed a knife. Id. at 124–25, 169.

That same day, Martinez gathered her children to discuss what had happened. CAR at 124. She decided that she would flee with Noe. They left for the United States within a week. Id. at 125. As Martinez explained before the IJ, she took the gang members’ threats seriously because she knew "the way that they punish people" and that "they always follow through with their threats." Id. at 115, 131.

Documents submitted by Martinez to the IJ include a report by the United Nations High Commissioner for Refugees (UNHCR) describing how MS-13 and B-18 target children for recruitment and punish their families for resisting. CAR at 292–93, 299. Martinez also submitted news reports attesting to the particularly high frequency of gang violence in San Bartolomé Perulapía and the surrounding area of Cuscatlán. Id. at 160–61, 198–217. Martinez provided the IJ with death certificates for two people she identified as neighbors of hers whom MS-13 had murdered. Id. at 192–96. The IJ, however, citing one of the news reports Martinez supplied, questioned whether the deceased might have been members of rival gangs. Id. at 53, 119.

Martinez and Noe arrived in the United States in July 2014 after crossing the border without inspection at or near Eagle Pass, Texas. CAR at 348, 362. Agents of the Department of Homeland Security permitted them to reunite with family members in New York.

Within months, the gang members began to harass Martinez's daughter Gabriela verbally in an attempt to determine Martinez and Noe's whereabouts. CAR at 158. The gang members’ threats included telling Gabriela that they would force her to be a "sex slave" if she refused to divulge her family members’ locations. Id.

This harassment culminated in a particularly frightening episode. In September 2016, a group of gang members blocked Gabriela's path on her way home and ordered her to accompany them to a forested area controlled by MS-13. CAR at 49, 158. They brandished knives and told Gabriela, who was pregnant at the time, that if she did not comply they would kill her and cut her child out of her body. Id.

Fortuitously, a relative of Gabriela's happened to be walking nearby. CAR at 49, 158. He called out to Gabriela and told her that her grandmother did not like her walking alone. Id. The gang members indicated to Gabriela that she should not tell anyone about the incident and permitted her to leave. Id. at 158.

That very same night, Gabriela made plans to flee El Salvador and stayed at her sister's home. She left the country the next day. CAR at 49, 158. Gabriela stated in an affidavit submitted to the IJ that she believes the MS-13 members would have raped and killed her if she had followed them to the forested area. Id. at 158.

II.

DHS served Martinez and Noe with Notices to Appear upon their arrival in the United States on July 19, 2014 and filed these notices in Immigration Court on November 21, 2014. CAR at 348–49, 362–63. Martinez applied for asylum, withholding of removal, and CAT protection on July 16, 2015, listing Noe as a derivative beneficiary. Id. at 306-14.

Appearing without counsel, Martinez admitted at a preliminary hearing on October 7, 2015, that she had entered the country without lawful authorization. CAR at 86–87. At a merits hearing on November 16, 2016, and with the assistance of counsel, Martinez testified before the IJ. Id. at 48, 103–37. She also submitted extensive documentary evidence. Id. at 151–303.

The IJ found Martinez to be credible and noted that her testimony "was detailed, plausible, internally consistent, and consistent with her documentary evidence." CAR at 49–50. The IJ added that Martinez "sufficiently corroborated her testimony, including her submission of statements from her three children and mother." Id. at 50. Nonetheless, in an unpublished decision issued on January 19, 2017, the IJ denied all forms of relief sought by Martinez.

The IJ rejected Martinez's claims for asylum and withholding, concluding that Martinez failed to demonstrate a nexus between the persecution she alleged and a protected ground. CAR at 50–52. An applicant for asylum "must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). Likewise, a person seeking withholding of removal must show that his or her "life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1231(b)(3)(A) (emphasis added). Assuming without deciding that Noe's nuclear family is a cognizable social group, the IJ concluded that MS-13 had not targeted Martinez on account of her membership in this group. CAR at 50. The IJ acknowledged that Martinez protected Noe from MS-13 "because she is Noe's mother," but determined that "it was not Respondent's status as a member of Noe's nuclear family that the gang wanted to overcome, but her interference with the gang's recruitment efforts." Id. at 50–51.

As to CAT protection, the IJ identified two sets of reasons for denying relief. First, the IJ observed that Martinez "was only threatened once before leaving El Salvador," that "[s]he was never physically harmed by MS-13," and that "Gabriela and Noe were also threatened, but not physically harmed." CAR at 53. Second, the IJ determined that Martinez failed to establish that her neighbors had been killed for interfering with MS-13's recruitment efforts. Id.

The BIA affirmed the IJ's denial of relief in a single-member decision on August 24, 2017. CAR at 2–3. The Agency agreed with the IJ that asylum and withholding were not available because "the gang's motivation was found to be to increase its ranks and not to punish the respondent because she is a member of her son's family." Id. at 2. On the issue of CAT protection, the Agency did not specify reasons for affirming beyond stating that Martinez and Noe had "not met their burden of proof." Id.

After Martinez petitioned our Court for review, the government moved for summary denial. Dkt # 1, 38. A member of our Court, sitting on the non-argument calendar panel, transferred this case to our regular argument calendar. Dkt #61. Following transfer, the government renewed its motion for summary denial. Dkt # 93.

III.

A.

We discuss Martinez's claim for CAT protection first. An applicant for CAT relief bears the "burden of proof ... to establish that it...