Cordova v. Holder

• Decision Date: 18 July 2014
• Docket Number: No. 13–1597.,13–1597.
• Citation: 759 F.3d 332
• Parties: Wildon Manfredo Aquino CORDOVA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

759 F.3d 332

Wildon Manfredo Aquino CORDOVA, Petitioner,

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

No. 13–1597.

United States Court of Appeals,Fourth Circuit.

Argued: May 13, 2014.

Decided: July 18, 2014.

ARGUED:Linda Anna Dominguez, L.A. Dominguez Law, LLC, Baltimore, Maryland, for Petitioner. Anna Emily Nelson, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Assistant Attorney General, Melissa Neiman–Kelting, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, AGEE, and THACKER, Circuit Judges.

Petition for review granted and case remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge THACKER joined. Judge AGEE wrote a dissenting opinion.

DIANA GRIBBON MOTZ, Circuit Judge:

Wildon Manfredo Aquino Cordova (“Aquino”), a native and citizen of El Salvador, petitions for review of the final order of the Board of Immigration Appeals (“BIA”). For the reasons that follow, we grant Aquino's petition for review and remand the case to the BIA for further proceedings.

I.

In July 2010, Aquino entered the United States without inspection. Four months later, the Government served him with a Notice to Appear, charging him as an alien present in the United States without admission or parole pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Aquino conceded removability but sought protection through asylum, withholding of removal, and the Convention Against Torture. Following a hearing, the IJ issued an oral opinion denying Aquino's application for all relief, which the BIA affirmed. We set forth below the relevant evidence concerning Aquino's asylum application and then the procedural history of the case.

A.

Aquino testified before the Immigration Judge (“IJ”) as follows. He first entered the United States illegally in May 2004, at the age of sixteen, and returned to El Salvador in February 2008 pursuant to an award of voluntary departure. Between his 2008 return to El Salvador and his reentry into the United States in July 2010, gangs in El Salvador attacked Aquino four times.

In February 2008, shortly after his return to El Salvador, five members of the violent Mara Salvatrucha gang (“MS–13”) accosted Aquino in his front yard. When Aquino attempted to flee to his house, the men tripped him, kicked him in the head and mouth, and beat him with a baseball bat. They threatened to kill Aquino if he did not join them or pay for their protection. He reported the incident to the police, but the police did nothing in response, telling him simply to stay inside of his house. He continued to receive threats from MS–13 members on a regular basis following this incident.

In September 2009, a member of the Mara 18 gang, a rival to MS–13, flashed a gun at Aquino and told him that he would die if he did not join Mara 18. Another Mara 18 gang member appeared, and the two men chased Aquino, shouting that he would die and allegedly shooting at him as he ran away. Aquino again reported this incident to the police, to no avail.

On May 12, 2010, Aquino unexpectedly encountered his cousin, Jorge Vidal, who, like Aquino, had recently returned from the United States. Vidal told Aquino that he feared for his life, but before he could explain why, two members of MS–13 approached him and Aquino, shouting, “[T]oday you will die.” Aquino maintains that the gang members shot at him and his cousin as they ran away. Aquino and Vidal found safety in a field, where Vidal told Aquino that Aquino was now in danger because he had been seen with Vidal. Vidal explained that he had joined Mara 18 and that MS–13 wanted to kill him for his involvement in the death of an MS–13 member. The MS–13 members eventually caught up with Vidal and Aquino. One gang member tried to choke Aquino, and Aquino escaped by hitting him in the stomach and fleeing the scene. After this attack, Aquino feared that MS–13 would kill him because of his kinship ties to Vidal, a member of Mara 18.

The final incident occurred eight days later. Aquino heard gun shots coming from the front of his house, and, peering out the window, he saw four members of MS–13 facing his home. He contends that he recognized two of them as the men who had pursued him and Vidal the week before. The men shouted, “[W]e know who you and your cousin [are]. We belong to the MS–13 gang, and now you are going to die.” The men tried to open the locked door of Aquino's home, and, when unsuccessful, kicked and damaged the gate. They continued to yell threats and began shooting. The shooting assertedly lasted for approximately an hour. Aquino hid on the floor during the shooting. The gang members eventually left, but vowed to return until they killed Aquino. After this incident, Aquino resolved to flee El Salvador and return to the United States. Six weeks later, on July 2, 2010, while Aquino was en route to the United States, an MS–13 member shot and killed his cousin Vidal.

After the final two incidents, Aquino feared that he would be murdered if he remained in El Salvador. He explained that “[s]ince my cousin was killed and he was in a gang, [the MS–13] thought that somehow I belonged to a gang, too, which is not true.” He believed that he would be targeted if he returned “because the villages are very small. Everybody knows everybody else.” Aquino explained that the police would not be able to protect him and so he would not be safe anywhere in El Salvador. Although he could live with his father in San Salvador, he believed that he would be in even greater danger there. Aquino swore that he has never belonged to a gang and did not wish to join one. He also testified that he was engaged to Karina Cruz, a United States citizen, that she was pregnant with his child, and that they planned to marry soon. ¹

Aquino presented documentary evidence consistent with his account. This evidence included statements from Heidi Reely (his cousin living in the United States), Cruz (his thenfiancée), his mother, his sister, Vidal's mother, and a copy of Vidal's death certificate and coroner's report.

In addition, Aquino offered a report from the United States Agency for International Development, which stated that gangs in El Salvador dominate certain territories due to corruption. The report noted that “[t]he judiciary and police systems are saturated, and there are not enough personnel in these systems to manage the problem of gangs,” and it identified San Salvador, where Aquino's father lived, as one of the “most violent departments in the country.” Another report prepared by the Harvard Law School International Human Rights Clinic stated that individuals are often perceived as gang members simply because they are “young and male” or because they “live[ ] in a neighborhood known to be the territory of a certain gang.” The report explained that:

The police rarely, if ever, provide protection to presumed ... gang members.... By contrast, the police themselves generally view these individuals as enemies rather than citizens whose rights they should protect. Indeed, [police] officers are thought to be complicit in the targeted killings and abuse of numerous members of this population.

Aquino also included the Department of State Human Rights Report on El Salvador, which describes how police there are at times complicit in gang activities.

At the end of the hearing, Aquino's counsel explained that Aquino was claiming membership in a “particular social group,” for purposes of 8 U.S.C. § 1101(a)(42)(A), based on kinship ties to gang members, given that members of MS–13 had seen and associated Aquino with his cousin Vidal, who was a member of Mara 18.

B.

The IJ found Aquino's testimony “credible in part and not credible in part.” The court found credible Aquino's testimony that gang members harassed and beat him. But the IJ did not credit two aspects of Aquino's testimony. First, the IJ found it “highly implausible” that gang members shot at Aquino three times at close range, given that he suffered no wound. Second, the IJ did not credit Aquino's testimony that, during the final incident at his home, he recognized two of the four men from the earlier incident with his cousin. The IJ reasoned that Aquino would not have been able to recognize these men because, at the time they were shooting and yelling that they were going to kill him, “he [wa]s lying on the floor.”

The IJ characterized Aquino's proposed social group as “a person who is from El Salvador who came to the United States[,] returned to El Salvador and had problems with a gang, and the police did not help.” This, the IJ concluded, did not qualify as a “particular social group” for purposes of 8 U.S.C. § 1101(a)(42)(A). The IJ found that Aquino had not suffered past persecution, and that Aquino's fear of future persecution, “although real,” did not amount to “fear based on a reasonable probability of future persecution.” The IJ then denied Aquino's application for asylum, withholding of removal, and protection under the CAT, and ordered Aquino removed to El Salvador.

Aquino appealed the IJ's ruling to the BIA. With his appeal, Aquino submitted additional documentary evidence that he maintained was previously unavailable. These documents included evidence that one of his uncles, like his cousin, had been a member of Mara 18 and had been murdered by MS–13 in 2007.

The BIA dismissed Aquino's appeal in a three-page opinion. At the outset, the BIA noted that Aquino waived any claim for protection under the Convention Against Torture by failing to raise that claim on appeal.² The BIA then affirmed the IJ's denial of asylum and withholding of removal. The BIA concluded that it “agree[d] with the Immigration Judge that [Aquino's] purported social group of family members of persons who have been killed by rival gang members, as well as being threatened themselves for refusing to join a gang[ ], is not a cognizable social group.”...