Escamilla v. Holder
| Decision Date | 09 March 2012 |
| Docket Number | No. 11-9510,11-9510 |
| Parties | RIVALDO ALEJANDRO BELTRAN ESCAMILLA, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review of a Final Order of
the Board of Immigration Appeals)
ORDER AND JUDGMENT*Before BRISCOE, Chief Judge, EBEL and LUCERO, Circuit Judges.
Rivaldo Alejandro Beltran Escamilla (Escamilla) seeks review of a Board of Immigration Appeals (BIA) decision denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). We have jurisdiction for limited review under the Immigration and Nationality Act (INA) § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), and we deny Escamilla's petition for review.
For asylum and withholding purposes, Escamilla argued he is a member of four particular social groups: 1) Salvadoran men believed to be gang members of a rival gang;2) Salvadoran men with prior gang associations who have resisted gang membership and bettered their lives; 3) Salvadoran men who are family members of well-known, high-ranking gang members; and 4) Salvadoran men who are HIV positive. On appeal, Escamilla acknowledged at oral argument that our intervening ruling in Rivera Barrientos v. Holder forecloses the second proposed social group. 658 F.3d 1222, 1234 (10th Cir. 2011) (). Escamilla also seeks review of the BIA's denial of his applications for asylum and withholding of removal based on his claims of past and future persecution due to his political opinion.
In this case, we conclude that Escamilla's first proposed social group, Salvadoran men believed to be gang members of a rival gang, fails for lack of visibility. We then assume, without deciding, that Salvadoran men who are family members of well-known, high-ranking gang members and Salvadoran men who are HIV positive qualify as particular social groups, but hold that Escamilla cannot claim asylum or withholding from removal based on his membership in these groups because he fails to show that membership in either group resulted in his past persecution or in his well founded fear of future persecution. We next determine that he has not been subjected to persecution based on his political opinion and that he does not have a well founded fear of future persecution based on his political opinion, again denying him asylum and withholding-from-removal eligibility. Finally, because he cannot show that it is more likely than notthat he would be tortured if removed to El Salvador, we determine that Escamilla is ineligible for protection under the CAT.
Escamilla presents detailed information on the tragic gang violence in El Salvador, the government's effort to combat the gang violence, the status of HIV-positive men in El Salvador, and his own personal background.1 Although Escamilla is not and has never been a gang member, his life in El Salvador intertwines with the two prominent Salvadoran gangs, Mara Salvatrucha ("MS-13") and the 18th Street gang ("Mara 18" or "M-18"). The Salvadoran government has made reducing the power and influence of gangs a high priority, with very limited success. Gang recruitment focuses on young men, often as young as nine or ten. While most gang membership is not coerced, gangs are recruiting with increasingly violent methods, including harassment, physical abuse, and murder, either of the targeted youth or his or her family. See, e.g., Barrientos, 658 F.3d at 1225-26 (). Gangs significantly affect most of the Salvadoran population.
Escamilla faced gang violence beginning at age nine, when MS-13 members beathim because he refused to join. Beginning at age nine or ten, he lived on the streets for three years, where he was often recruited and beaten by both MS-13 and M-18. While living on the street, he was shot twice by people wearing police uniforms, although Escamilla was not sure if they were actually police or merely gang members in police uniforms. Escamilla suggests that many of his problems with gangs stem from his uncle's extensive involvement in M-18. His uncle is currently serving a jail sentence for "murder, extortion, and forced recruitment of young men into the ranks of the Mara 18 gang." Certified Administrative Record (CAR) at 568. While living on the street, Escamilla faced pressure from both gangs. As he put it, Id. at 569.
As a young adult, Escamilla was beaten, robbed, and threatened with death by MS-13 during an attack when returning from work, and he often faced "[h]ard looks and threats" from MS-13. Id. at 572. At the time, he was also dating a woman who was part of the Mara 18 gang, resulting in additional attacks by MS-13. MS-13 later killed his girlfriend and mutilated her body.
Later, Escamilla worked in a coffee field, and while working there he inadvertently disrupted an MS-13 plan to rape a woman. MS-13 members sought to kill Escamilla after the foiled rape, but because Escamilla was not working on the day they came for him, they ultimately killed another man in the coffee fields. M-18 also attacked Escamillaseveral times: he was carjacked by M-18 members, including one wearing a police badge, chased by an M-18 member carrying a machete, and finally shot at by M-18 members.
After the last shooting attempt, Escamilla left El Salvador. He traveled up through Central America, eventually entering the United States in 2006. He later moved to Jackson, Wyoming, where he began living with Rhea Brough, a United States citizen, in March 2007. He was diagnosed with HIV in July 2007. His condition does not yet require medication, but he does receive medical checkups with blood tests to monitor his condition every three or four months. Escamilla married Brough on April 25, 2009.
In addition to the evidence related to Salvadoran gang activity, Escamilla presented testimony from an expert witness, Mr. Omar Banos, who described conditions in El Salvador that might impact an HIV-positive man. Banos described societal discrimination, stigma, and occasional violence inflicted on HIV-positive men, and noted that an HIV-positive man would likely be considered homosexual, which would expose him to additional discrimination. He also noted that El Salvador has laws prohibiting discrimination against HIV-positive individuals, although the laws do not appear to be widely enforced. Banos discussed access to HIV medications in El Salvador, noting that although the government had an all-access policy for anyone needing HIV drugs, only roughly half of people needing the drugs actually received them.
The United States Department of Homeland Security initiated removal proceedings against Escamilla by issuing him a Notice to Appear in March 2007.Escamilla admitted deportability for entering the United States illegally, without inspection, admission, or parole, and an immigration judge (IJ) found him removable. Seeking to avoid deportation to El Salvador, Escamilla applied for asylum, withholding of removal,2 and protection under the CAT.3 In his application for asylum and withholding of removal, Escamilla claimed membership in four particular social groups:
He also claimed refugee status based on past persecution and a well founded fear of future persecution due to his political opinion. Finally, Escamilla sought to avoid deportation by seeking protection under the CAT, which does not require membership in a particular social group.
The IJ relied on BIA precedent in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), and Matter of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008), to determine that the first three social groups identified by Escamilla lacked sufficient particularity and social visibility to serve as particular social groups for asylum or withholding of removal purposes. The IJ concluded that the fourth social group identified by Escamilla, Salvadoran men who are HIV positive, can constitute a particular social group for immigration purposes. But, the IJ went on to conclude that there was no reasonable possibility that Escamilla would be harmed due to his membership in this group if he were forced to return to El Salvador, thereby foreclosing the possibility of asylum for Escamilla based on his membership in any of the social groups he listed. The IJ also concluded that it was not more likely than not that he would be harmed due to his membership in the group of HIV positive males if he were forced to return to El Salvador. As a result, Escamilla was ineligible for withholding of removal based on membership in a particular social group.
The IJ also rejected Escamilla's application for asylum or withholding of removal based on persecution due to Escamilla's political opinion. The IJ relied on Matter of S-E-G- and Matter of E-A-G- (both citing INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992)) for the proposition that gangs generally target individuals for recruitment to fill their ranks, and not based on the individual's belief or opinion, even if that opinion is in opposition to the gang. The IJ concluded that, because Escamilla was not targeted for his beliefs, Escamilla could not claim asylum or...
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