Martinez v. Holder

• Decision Date: 27 January 2014
• Docket Number: No. 12–2424.,12–2424.
• Citation: 740 F.3d 902
• Parties: Julio Ernesto MARTINEZ, a/k/a Julio Martinez, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. American Immigration Lawyers Association, Amicus Supporting Petitioner.
• Court: U.S. Court of Appeals — Fourth Circuit

740 F.3d 902

Julio Ernesto MARTINEZ, a/k/a Julio Martinez, Petitioner,

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

American Immigration Lawyers Association, Amicus Supporting Petitioner.

No. 12–2424.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 31, 2013.

Decided: Jan. 23, 2014.

Opinion Revised: Jan. 27, 2014.

ARGUED:Maureen A. Sweeney, University of Maryland Carey Law School, Baltimore, Maryland, for Petitioner. Oluremi da Rocha–Afodu, United States Department of Justice, Washington, D.C., for Respondent. Benjamin Richard Casper, University of Minnesota School of Law, Minneapolis, Minnesota, for Amicus Curiae. ON BRIEF: Alison D. Yoder, Student Attorney, University of Maryland Carey School of Law, Baltimore, Maryland, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. Andres C. Benach, Benach Ragland L.L.P., Washington, D.C.; Katherine Evans, Casper & Evans, P.A., Minneapolis, Minnesota; Samuel Johnson, Student Attorney, Holden Turner, Student Attorney, Interprofessional Center For Counseling & Legal Services, University of St. Thomas, Minneapolis, Minnesota, for Amicus Curiae.

Before NIEMEYER and WYNN, Circuit Judges, and LOUISE W. FLANAGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

Petition granted in part and denied in part and case remanded for further proceedings by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WYNN and Judge FLANAGAN joined.

NIEMEYER, Circuit Judge.

Julio Ernesto Martinez, a citizen of El Salvador, who is subject to removal from the United States because he entered without authorization and, while in the United States, was given a judgment of probation before verdict for marijuana possession, requests that the Attorney General withhold removal under 8 U.S.C. § 1231(b)(3), which places restrictions on removal to countries where the alien's life or freedom would be threatened. He claims that as a former member of the violent Mara Salvatrucha gang (“MS–13”), he is a member of a “particular social group,” as would qualify for withholding of removal under § 1231(b)(3), and that he would be killed if sent back to El Salvador because he renounced his membership in MS–13. Based on these circumstances, he also requests relief under the Convention Against Torture (“CAT”), contending that the government of El Salvador would acquiesce in his torture at the hands of MS–13.

The immigration judge (“IJ”) and the Board of Immigration Appeals (“BIA”) rejected Martinez's arguments, concluding that being a “former member[ ] of a gang in El Salvador” is not an “immutable characteristic” of a particular social group that could qualify for withholding of removal, since the characteristic “result[ed] from the voluntary association with a criminal gang.” The IJ and the BIA also found that Martinez's claim for relief under the CAT was not supported by sufficient evidence.

We conclude that Martinez's proposed particular social group of former MS–13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS–13. We hold therefore that the BIA erred in its ruling declining—on immutability grounds—to recognize the particular social group of former members of MS–13 who have renounced their membership in the gang. Accordingly, we reverse that ruling on immutability and remand Martinez's application for withholding of removal to permit the BIA to consider whether Martinez's proposed social group satisfies the other requirements for withholding of removal. On Martinez's application for protection under the CAT, we affirm. Despite Martinez's claim to the contrary, we conclude that the IJ and the BIA sufficiently considered the relevant evidence.

I

Martinez was born in San Miguel, El Salvador, in 1980 and lived there until he entered the United States unlawfully in 2000.

In March 2006, when Martinez was stopped while driving his friend's car with a malfunctioning brake light, the police found a marijuana blunt in a dashboard compartment of the car. Although Martinez denied any connection with the marijuana, he pleaded to probation before judgment in December 2007.

Even before Martinez's marijuana charge was resolved, the Department of Homeland Security had initiated removal proceedings against him based on his illegal entry. It subsequently closed the proceedings because Martinez agreed to serve as a confidential informant, assisting the FBI in making controlled purchases of drugs and fake green cards. When Martinez was stopped again in May 2011 for a traffic offense, the Department of Homeland Security recalendared the removal proceedings, concluding that Martinez was “no longer useful as a confidential informant.” In the reopened proceedings, the government added a charge that Martinez was subject to removal as an alien convicted of a controlled substance offense. Martinez conceded that he was subject to removal, but he sought relief from removal on the ground that his life would be endangered should he be returned to El Salvador.

At the hearing before the IJ, Martinez testified that his stepfather died when he was 12 years old and that, at the age of 14, he befriended a group of older boys who had also lost family members. The group went to parties, drank, and smoked marijuana together. Martinez later learned, however, that some of the boys who had recruited him into this group were also associated with MS–13, although the group itself had no association with that gang. This status changed, however, when several members of MS–13 were deported from the United States and arrived in Martinez's neighborhood. Martinez's group was then “incorporated” into the larger MS–13 gang structure, which, to some extent, was involuntary. Martinez testified that the new MS–13 arrivals informed him and his friends that they were “already ... part of MS–13” and that they had no option but to join the gang. Martinez, who was now 15, agreed to undergo MS–13's initiation rite of a beating that lasts 13 seconds.

Soon after Martinez's induction into MS–13, the deportees killed the original leaders of Martinez's group of friends and became the gang's new leaders. They ordered Martinez to get tattoos signifying his allegiance to MS–13, which he did. They also ordered him to extort money from members of the community, which he refused to do. Because of his disobedience, the leaders of the gang beat Martinez on a weekly basis. Martinez testified that he never “committed any crimes for the gang,” although he conceded that he did participate once in the beating of a fellow gang member for failing to follow orders. Thereafter, however, he also refused to join in those disciplinary beatings, which consequently subjected him to further beatings.

MS–13 held weekly meetings for members in the local community and monthly general meetings, which were attended by thousands of members from across El Salvador. Martinez attended most of these meetings, and he was beaten when he did not attend. At the meetings, the leaders would discuss who was part of the gang and who was not. They also informed the membership as to who had the “green light,” which indicated that the member was to be executed. A principal reason for receiving the green light was attempting to leave MS–13. Indeed, two of Martinez's friends who attempted to leave the gang were killed.

By the time Martinez reached the age of 16, he became “tired of [the] beatings” that he had been receiving for refusing to obey the leaders, and he decided to leave MS–13. Accordingly, he stopped attending its meetings. Several weeks later, he encountered his local group leader, “Psycho,” who asked him where he had been. When Martinez told Psycho that he wanted to leave the gang, Psycho responded that there was “only one way to get out,” implying by death. When Martinez nonetheless insisted that he was quitting, gang members beat him and stabbed him, leaving him for dead. Martinez survived, however, and, after leaving the hospital, went to live with a cousin in Intipucá, which is about an hour's drive south of San Miguel.

In Intipucá, Martinez covered his tattoos and left his house only to go to work. Two months later, however, MS–13 members found him and shot at him from a car. Multiple bullet fragments struck Martinez, and he was again hospitalized for several weeks. After recovering, Martinez went into hiding with friends and family members.

MS–13 members once again found Martinez and once again shot at him. This time he managed to escape without injury. Martinez left El Salvador to come to the United States in 2000, entering without permission. He believes that if he were to return to El Salvador, MS–13 members would kill him. Indeed, he claims that while he has been in the United States, he has refrained from going places where he might meet an MS–13 member, such as Spanish nightclubs.

Based on his fear of bodily harm at the hands of MS–13, Martinez sought several forms of relief from removal. He argued that under 8 U.S.C. § 1231(b)(3), he was eligible for withholding of removal because his life was threatened on account of his membership in the particular social group of former gang members from El Salvador. He also argued that he qualified for protection under the CAT because the Salvadoran government would acquiesce in his torture should he be removed. In addition, he applied for temporary protected status. Finally, as an alternative, he requested voluntary departure.

Following a hearing, the IJ found Martinez credible but nonetheless denied him all relief except for his application for voluntary departure. On appeal, the BIA, in a single-member opinion, also rejected Martinez's request for relief. With respect...