Lopez-Soto v. Ashcroft

Decision Date20 September 2004
Docket NumberNo. 03-1331.,03-1331.
PartiesRutilio LOPEZ-SOTO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: James M. Sullivan, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Petitioner. Victor Matthew Lawrence, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Steven H. Goldblatt, Director, Abigail V. Carter, Supervising Attorney, Michelle Correll, Harsh Trivedi, Student Counsel, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, Civil Division, Mary Jane Candaux, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Petition denied by published opinion. Judge GREGORY wrote the majority opinion, in which Judge NIEMEYER joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

Rutilio Lopez-Soto (hereinafter "Petitioner" or "Lopez-Soto") petitions for review of the Board of Immigration Appeals' (the "BIA") order denying his asylum request and denying him relief pursuant to the Convention Against Torture. Petitioner is a native and citizen of Guatemala who entered the United States in 1999, having fled Guatemala with his cousin because the gang Mara 18 posed a threat to their lives. Previously, Mara 18 killed Petitioner's older brother, and gang members threatened to kill Lopez-Soto, his other brother and his cousin if they did not join the gang. As Petitioner and his cousin attempted to flee to the United States, his cousin was apprehended by Mexican authorities then deported to Guatemala. Shortly after the cousin returned to Guatemala, Mara 18 murdered him as well.

While it is clear that Petitioner has an objectively reasonable fear for his life if he is to return to Guatemala, the BIA's determination that Petitioner was not persecuted "on account of" his familial membership is supported by substantial evidence. Accordingly, we must deny Petitioner's asylum claim. Furthermore, we find that the BIA properly rejected Petitioner's Convention Against Torture claim. For the detailed reasons that follow, we deny the petition for review.

I.
A.

Petitioner was born in Quesada, Jutiapa, Guatemala in 1982. When he was eight-years-old, members of Mara 18 — a violent street gang formed in Los Angeles, California, but which now also has a strong presence in Honduras, El Salvador and Guatemala1 — recruited and harassed his two brothers, Edgar (then twenty-two) and Rubilio (then twenty). Both brothers had served in the Guatemalan army, and Mara 18 believed that they had military training and access to weapons. The Mara 18 threat, as is consistent with the gang's practice, was to join or die. Both brothers refused to join.

In April 1990, members of Mara 18 killed Edgar by stabbing him eighteen times at Rio de Paz, a town in Jutiapa. Witnesses to the death notified his family and identified the two killers. Petitioner's father filed a police report in May 1990, stating the names of the individuals believed to be the killers. The killers were never apprehended. Petitioner's father declined offers from Edgar's military friends to "take care" of the killers.2 After receiving letters from Mara 18 threatening his life, Rubilio fled to the United States. In his affidavit filed before the IJ in Petitioner's case, Rubilio stated: "Because of my family's continued opposition to Mara 18, gang members have targeted young male members of my family for recruitment.... Because of our continued resistance, Mara 18 has threatened and attempted to kill off the young male members of my family." J.A. 45-46¶ 5.

In January 1999, after Petitioner turned sixteen, the first incident in which Mara 18 threatened Petitioner occurred when members of the gang threatened Petitioner and his cousin, Elmer Estuardo Lopez Mejia ("Elmer") in a park. In his affidavit,3 Petitioner stated that when members of Mara 18 confronted and threatened Petitioner and Elmer in the park, the boys, fearing violence, falsely said that they were "going to think about [joining the gang]" so that the gang would let them leave the park. Id. at 16. He also stated that his "parents were terrified that if I left the house, I would be killed like Edgar." Id. During his testimony before the IJ, Petitioner recounted the park incident similarly and stated that when he told his parents about it, "they remembered what happened to my brother." Id. at 412-15.4

After this incident, the gang made continuous threats. During the summer of 1999, Mara 18 mailed the boys threatening letters at their homes. The IJ found that the letters stated the boys could either "join [Mara 18] and have everything, or refuse and you will be killed." Id. The IJ further recognized that Petitioner and his father "both feared that [Petitioner] would be killed by [Mara 18], as his brother had been killed in 1990." Id.

B.

Because of such fears, Petitioner's father and Elmer's parents arranged for the boys to flee Quesada, with the intention of fleeing Guatemala entirely. In September 1999, Petitioner and Elmer drove seven hours (roughly northeast) to the city of Puerto Barrios, Guatemala to stay with a friend of Petitioner's father while the family arranged for the boys to leave the country. The boys stayed in Puerto Barrios for approximately one month, and Petitioner did odd jobs while there to support himself. During that time in Puerto Barrios, Petitioner did not have personal trouble with Mara 18. However, while he was in Puerto Barrios, Petitioner's parents received two more threatening letters, the last one of which stated that Petitioner would be stabbed like Edgar if he did not join the gang and warned him that attempts to escape would be futile.5

On November 2, 1999, the boys left for the United States, traveling northward through Mexico. The boys attempted to avoid Mexican Immigration authorities because they feared being deported. On November 16, 1999, at a bus stop in Oaxaca, Mexico, immigration officials stopped the boys for questioning. Petitioner escaped by running, but Elmer was caught and deported. Petitioner continued onward to the United States, and he was detained by INS near the Texas border on December 22, 1999.

On January 10, 2000, while in INS custody, Petitioner spoke with his parents by phone, and they informed him that Elmer had been deported and killed by Mara 18 upon his return to Guatemala. On February 20, 2000, Mara 18 shot Elmer's younger brother Danny.

C.

On January 10, 2000, Petitioner was released from the INS children's facility in Texas into his brother Rubilio's custody. Petitioner traveled with his brother to Los Angeles where he lived. Petitioner testified that he left L.A. out of fear, because he saw people that "resembled" the Mara 18,6 and moved to Virginia to stay with another family member.

On November 8, 2000, Petitioner admitted deportability at his deportation hearing, but requested relief in the form of asylum, withholding of removal, relief under the Convention Against Torture, or, in the alternative, voluntary departure. At his hearing on April 17, 2001, the IJ heard testimony from Petitioner and Jan Perlin, an expert qualified in the affairs of the Guatemalan justice system. The IJ also accepted numerous documents, including the aforementioned affidavits as well as other affidavits, copies of official documents, reports on Guatemala and those concerning Mara 18 itself.

Although the IJ held that Petitioner was credible, Oral Decision at 4-5 (J.A. 500-01),7 and gave the documentary evidence "great weight," id. at 3-4 (J.A. 499-500), he issued an oral decision declining to grant Petitioner relief. Based on the State Department's Country Reports and Perlin's testimony, the IJ found that the Guatemalan "justice system is dysfunctional" and that while the Guatemalan government "is willing to protect its citizens from these Mar[ ]a gangs... they are unable to protect the citizens." Id. at 9 (J.A. 505). However, the IJ found that Petitioner would not suffer persecution "on account of" his membership in a particular social group, namely his family, because "there is no nexus between the killing of [Edgar] and the threats to [Petitioner] or the threats to [Petitioner's] family, and that the [Petitioner's] family in this case does not constitute a particular social group." Id. at 11 (J.A. 507). In short, the IJ found that while Petitioner had a reasonably objective fear of harm from the gang, he determined that Petitioner was being recruited and harassed because he was a teenaged male living in the area, not on account of "any family reasons." Id.8

Additionally, the IJ found that Petitioner was not entitled to protection pursuant to the Convention Against Torture because the torture feared was not government sponsored. While the IJ acknowledged Mara 18's grip on the country and law enforcement's inability to control them, the IJ concluded that Convention Against Torture protection "does not extend to persons who fear entities that the government is unable to control." Id. at 13 (J.A. 510).

On appeal, the BIA affirmed. In re Lopez-Soto, No. A77-693-585, slip op. at 1 (BIA Feb. 20, 2003) (per curiam) (J.A. 517). The BIA held that, "respondent has failed to establish that the harm he fears is on account of a protected ground. We also agree that respondent has failed to establish eligibility for relief under the Convention Against Torture because he has not shown that the government acquiesces in the torturous activities of the gang, the Mara 18." Id. This petition for review followed.

II.

Our review of a BIA asylum eligibility determination is most narrow. See ...

To continue reading

Request your trial
28 cases
  • Crespin–valladares v. Holder
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 16 Febbraio 2011
    ...one previous panel did analyze the term and held that the “family constitutes a particular social group,” see Lopez–Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir.2004) (internal quotation marks omitted), we vacated its judgment when deciding to rehear the case en banc, and the parties subseq......
  • Castillo-Arias v. U.S. Atty. Gen.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 20 Aprile 2006
    ...expressly deferring to the BIA's legal definition of "particular social group," have viewed Acosta favorably. See Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir.2004) (citing the Acosta formulation in support of including "family" within "particular social group"); Ontunez-Tursios v. As......
  • Gjerazi v. Gonzales, 04-2344.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 30 Gennaio 2006
    ...Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir.2005); De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir.2004); Lopez-Soto v. Ashcroft, 383 F.3d 228, 236 (4th Cir.2004); Girma v. INS, 283 F.3d 664, 667 (5th Cir.2002); Borja v. INS, 175 F.3d 732, 735-36 (9th Cir.1999); Chang v. INS, 119 F.......
  • Li Fang Lin v. Mukasey, 06-1456.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 20 Febbraio 2008
    ...§ 1101(a)(42)(A) (West 2005 & Supp.2007). 9. In discussing the standard of review in its brief, the Government cites Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir.2004). We note, however, that the panel decision in Lopez-Soto was vacated and thus has no precedential effect. Such a mistake i......
  • Request a trial to view additional results
2 books & journal articles
  • The Convention Against Torture and Non-refoulement in U.s. Courts
    • United States
    • Georgetown Immigration Law Journal No. 35-3, April 2021
    • 1 Aprile 2021
    ...did not acquiesce to torture by the MS-13 gang since the government had attempted to control gang violence); Lopez-Soto v. Ashcroft, 2004, 383 F.3d 228, 241 (4th Cir. 2004) (f‌inding that the Guatemalan govern-ment did not acquiesce to torture by the gang Mara 18); Samoza Garcia v. Holder, ......
  • Fair shake or an offer they can't refuse? The protection of cooperating alien witnesses under United States law.
    • United States
    • Suffolk Transnational Law Review Vol. 33 No. 2, June 2010
    • 22 Giugno 2010
    ...their legal responsibility ... to prevent such activity." 8 C.F.R. [section] 208.18(a)(7) (1999). (73.) See, e.g., Lopez-Soto v. Ashcroft, 383 F.3d 228, 241 (4th Cir. 2004) (denying CAT relief and rejecting Guatemalan officials' inability to stop gang activity as constituting willful blindn......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT