Chevez v. Garland

• Decision Date: 15 April 2022
• Docket Number: 20-1576
• Parties: Miguel Angel IBARRA CHEVEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

31 F.4th 279

Miguel Angel IBARRA CHEVEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1576

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2021

Decided: April 15, 2022

ARGUED: Maya Rose Tsukazaki, Jeremy Padow, AMERICAN UNIVERSITY, Washington, D.C., for Petitioner. Shahrzad Baghai, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jayesh Maneklal Rathod, Khatia Mikadze, William Mogtader, Angélicca C. Telles, Immigrant Justice Clinic, AMERICAN UNIVERSITY, Washington, D.C., for Petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Greg D. Mack, Senior Litigation Counsel, Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before RICHARDSON and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Petition for Review denied by published opinion. Senior Judge Traxler wrote the opinion in which Judge Richardson and Judge Rushing joined.

TRAXLER, Senior Circuit Judge:

Miguel Angel Ibarra Chevez (Ibarra) petitions for review of the final order of the Board of Immigration Appeals (BIA) denying his application for protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) found that Ibarra was not credible and that he had failed to show that it was more likely than not he would be tortured if returned to his native country of El Salvador. We deny the petition.

I.

A.

Ibarra is a native and citizen of El Salvador. In February 2013, he entered the United States without authorization. In August 2014, he was arrested in Fairfax, Virginia. In September 2014, the Department of Homeland Security (DHS) filed a Notice to Appear charging Ibarra with removability under 8 U.S.C. § 1182(a)(6)(A)(i). Ibarra admitted the charge and was found removable. With the assistance of counsel, Ibarra requested withholding of removal under the CAT, claiming that it is more likely than not he will be tortured by the MS-13 gang, the police, or anti-gang vigilante groups if he is deported to El Salvador.¹

On December 11, 2018, the IJ held an evidentiary hearing. The substance of Ibarra's testimony was as follows. In June 2011, when he was 15 years old, Ibarra went to stay with his older brother Rene in or near San Salvador during a school vacation. During Ibarra's visit, Rene drove him to a nearby grocery store. While Ibarra was inside, Rene was shot and killed. Ibarra ran outside when he heard the gunshots. Ibarra believes the assailants were men who loitered around a nearby house that displayed MS-13 gang initials. Two witnesses confirmed his suspicions about the assailants, and these witnesses were killed two days later. The police investigated Rene's murder and took Ibarra back to Rene's house. Rene's wife told Ibarra that Rene was killed because he had not paid a monthly rent demanded by MS-13. Ibarra stayed in San Salvador for another month to help his sister-in-law and then returned to his parents' home in Usulután, El Salvador. He does not claim that he was threatened or harmed by the MS-13 gang while he remained in San Salvador.

Ibarra testified that MS-13 gang members in Usulután tried to recruit him into joining the gang over the next two months. When he refused, they assaulted him twice and told him they would kill his parents if he told anyone. They also told him that he would meet the same fate as Rene if he continued to refuse to join. Ibarra testified that his sister and brother received messages that Ibarra would be killed if he did not leave Usulután within three days, so he stopped attending school. He mostly stayed home but would leave to visit family members. Approximately a year and a half later, Ibarra left Usulután for the United States. By this time, he was 17 years old. He does not claim that he was threatened or harmed by the MS-13 gang while he remained in Usulután.

In February 2013, Ibarra left Usulután and unlawfully entered the United States. From there he made his way to northern Virginia where he had family members. In April 2014, a little over a year after he arrived in the United States, Ibarra was caught up in an altercation between two groups outside a restaurant in Virginia, during which he was accidentally stabbed by an MS-13 gang member named Wilber Hernandez. Ibarra knew Wilber, and he knew Wilber was MS-13. Ibarra gave Wilber's name and telephone number to the police. Wilber pled guilty to two counts of unlawful wounding. In November 2016, Wilber was deported to his home country of Honduras.

While in the United States, Ibarra acquired several non-gang tattoos. Ibarra testified that he "investigated" and "researched" his tattoos ahead of time "so [he] wouldn't have any problems with the gangs." A.R. 305. However, Ibarra stated that some people in the United States believe he is a gang member because he has tattoos and friends who are in gangs. But he denied that he is a member of a gang and denied having ever been involved in gang activity.

In support of his testimony regarding his alleged experiences in El Salvador, Ibarra submitted Rene's death certificate and his sister Rosibel's written declaration. Rosibel stated that she was also 15 years old when Rene was killed and that she and her brother Fernando received calls and texts from unknown persons threatening to kill Ibarra if he did not disappear. At the direction of the police, she and Fernando changed their phone numbers so the gang could no longer contact them.

The DHS submitted copies of Ibarra's criminal history in the United States. This included a March 2017 incident in which Ibarra was identified—by the victim and a police officer who had investigated the 2014 stabbing—as the person who sent threatening audio and video recordings on Facebook to a Salvadoran woman who had witnessed a MS-13 gang murder. These threats included "pictures of [Ibarra] with the El Salvador tattoo on his back, posing with MS hand signs, [and] other MS symbols with guns and ammunition," A.R. 734. There was also a record of a December 2017 incident during which Ibarra pulled a Ka-Bar knife on a security guard who was escorting him out of a restaurant after he became aggressive and combative. The security guard stated that Ibarra threatened that he would return the next day "with his Gang friends and hurt lots of people." A.R. 740.

Ibarra's request for CAT relief is based on his claimed fear that he will be tortured by the MS-13 gang if deported to El Salvador because of Rene's murder and his refusal to join the gang in 2011, and because the gang might learn of his cooperation with the police in Virginia in 2014. Ibarra also claims that he fears he will be tortured by the El Salvador police and vigilante groups because they might mistakenly believe he is a member of a gang because he has tattoos and a criminal history in the United States. In support, Ibarra presented the testimony and declaration of Ellen Moodie, Ph. D.; a declaration of Tommie Sue Montgomery, Ph. D.; documentary evidence of country conditions; and a translation of Salvadoran Decree 717, which was passed by the government in 2017 as a means of identifying, tracking, and, in some cases, detaining deportees with suspected gang ties.

At the hearing, Dr. Moodie was offered as an expert in country conditions in El Salvador, but not "necessarily specifically about" Ibarra. A.R. 345. Her testimony was based upon "the situation in El Salvador and what happens to people ... in similar situations to" Ibarra. Id. On this basis, Dr. Moodie testified that Ibarra was at significant risk of torture by MS-13 because of his brother's murder and his refusal to join the gang in 2011. Dr. Moodie also testified that it was "possible that [the] MS-13 members in the United States ... will find out that [Ibarra] was a police informant and relay that news to the MS-13 in El Salvador." A.R. 474. In addition, Dr. Moodie felt that law enforcement officials would likely "be suspicious of him, due to his tattoos and status as a deportee who has a police record in" the United States, id. , although she acknowledged at the hearing that she was not aware of any examples of the United States government informing the Salvadoran government about a deportee's gang status. She testified that under current anti-gang initiatives, young men who are suspected of being gang members are very possibly going to be "focused on," "harassed," and perhaps "arrested just looking like a gang member." A.R. 349. Finally, Dr. Moodie testified that vigilante squads, which are sometimes "composed of police officers as well, you know, people who feel like the government had not done anything to stop the rise of gangs," have been "known to have been arrested for killing people... just for people being suspected gang members." Id. Dr. Montgomery agreed, also based on Ibarra's written declaration and generalized country conditions, that Ibarra would face a significant risk of torture if deported. However, Dr. Montgomery assumed that the MS-13 gang in Virginia was unaware of Ibarra's cooperation in 2014 because his family in El Salvador would have already been threatened. Dr. Montgomery also reviewed photographs of Ibarra's tattoos and agreed that they are not gang related.

The documentary evidence of country conditions, which include State Department and Congressional Research Service reports, generally discuss gang violence and police corruption in El Salvador, as well as El Salvador's efforts to address these issues. The latter also speaks to the criminal records of deportees, stating that DHS "does not provide a complete criminal record for deportees," but "may provide some information regarding an individual's criminal history when specifying why the individual was removed from the United States." A.R. 713-14. DHS "does not indicate gang affiliation unless gang affiliation is the primary reason why the individual is being deported." A.R. 714....