Menijar v. Lynch

• Decision Date: 28 December 2015
• Docket Number: No. 15–3081.,15–3081.
• Citation: 812 F.3d 491
• Parties: Jose Adolfo ZALDANA MENIJAR, Petitioner, v. Loretta E. LYNCH, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

812 F.3d 491

Jose Adolfo ZALDANA MENIJAR, Petitioner,

v.Loretta E. LYNCH, U.S. Attorney General, Respondent.

No. 15–3081.

United States Court of Appeals, Sixth Circuit.

Dec. 28, 2015.^*

ON BRIEF:Charles T. Busse, Balian & Busse, PLC, Rochester Hills, Michigan, for Petitioner. Sarah Byrd, United States Department of Justice, Washington, D.C., for Respondent.

Before: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Jose Adolfo Zaldana Menijar petitions for review of an order of the Board of Immigration Appeals affirming the Immigration Judge's denial of his applications for withholding of removal and protection under the Convention Against Torture. Zaldana contends that the Board and Immigration Judge erred in finding that Zaldana: (1) failed to establish a "particular social group" within the meaning of the Immigration and Nationality Act; (2) failed to establish a nexus between his purported group and his fears of persecution; and (3) failed to establish that the Salvadoran government acquiesced or was willfully blind to the violent actions of Mara 18 gang members. For the reasons discussed below, we deny Zaldana's petition for review.

I

Petitioner Jose Adolfo Zaldana Menijar ("Zaldana") is a citizen of El Salvador.¹ A.R. 3. Zaldana testified that he entered the United States without legal authorization in either 2005 or 2006. A.R. 143. After his conviction for possession of cocaine, A.R. 219–20, DHS initiated removal proceedings and Zaldana was granted voluntary departure on June 11, 2009. A.R. 47. Zaldana did not depart voluntarily and was forcibly removed in September or October of 2009. A.R. 51. Zaldana illegally reentered the United States in March of 2010, was apprehended by DHS shortly thereafter, and then issued a notice of intent to reinstate his prior removal order. A.R. 48. On June 18, 2014, an asylum officer found Zaldana had a "reasonable fear" of persecution in El Salvador and referred him to the Immigration Judge for an individual merits hearing. A.R. 360–63. Before the Immigration Judge, Zaldana sought withholding of removal and protection under the Convention Against Torture ("CAT"). Zaldana claimed that if he were removed to El Salvador, he would be harmed on account of his membership in a particular social group, defined as "El Salvadoran male youth, who were forced to actively participate in violent gang activities for the majority of their youth and who refused to comply with demands to show their loyalty through increasing violence" or, alternatively, "active and long-term former gang members." A.R. 3.

Testimony Evidence at Zaldana's Hearing. Zaldana testified that he feared returning to El Salvador because the Mara 18 gang would kill him based upon his status as a former gang member who refused to participate in the gang's increasingly violent activities. A.R. 162. Zaldana explained his forced recruitment into the gang, beginning when he was seven years old and culminating at twelve with his "conversion" into a member after the gang beat him up, threatened him, and told him that if he said anything, they would either kill him or a family member or "they would cut out his tongue." A.R. 51. Zaldana testified that he was a gang member for four or five years, during which time Zaldana was continually threatened and forced to do things "he did not like to do" including transporting drugs, extorting money, and being forced to watch the gang torture and murder his friend. A.R. 142, 144, 149. Zaldana claims he did not go to the police because he believed they could not protect him—instead, he decided to seek refuge by leaving El Salvador. A.R. 152.

After entering the United States for the first time in 2005 or 2006, Zaldana was forcibly removed to El Salvador in September or October of 2009. In November of that year, the gang re-integrated Zaldana, punishing his infidelity by giving him a "14"—where "14 members of the gang beat[ ] you for 14 minutes." A.R. 154. He testified that the gang spared his life only because he "was a kid and I didn't know what to do, but now I am a man." A.R. 154. After his re-integration, Zaldana claimed he was "again their toy.... Any minute that they wanted me to do something they [came] and pick[ed] me up." A.R. 156. Zaldana was again forced to steal, extort money, and transport drugs. A.R. 156. The gang then required Zaldana to prove his loyalty by physically assaulting his neighbor. A.R. 156. After Zaldana refused, the gang beat him again because "he was going bad," threatened his family, and extorted $3,000 from him. A.R. 158. Zaldana's brother-in-law went to the police as a result of this extortion. A.R. 159. The police apparently filed a report and said they would resolve the extortion issue, but Zaldana claims he "never saw results, the opposite" and received another gang beating a week or two later. A.R. 159. In March 2010, Zaldana again left El Salvador and entered the United States. A.R. 145–46.

Other witnesses testified before the Immigration Judge on Zaldana's behalf. Father Christopher Talbot, a Roman Catholic Priest who was familiar with Zaldana through his brother Luis, corroborated much of Zaldana's testimony regarding the brutality of gang violence in El Salvador. A.R. 107–26. Father Talbot stated that he believes all Salvadorans are at risk of gang violence, but noted that the likelihood of harm "depend[s] on the individual circumstance of each person." A.R. 122. Zaldana's nephew, Ulises Zaldivar, also testified on his behalf. A.R. 127–39. Zaldivar testified that in El Salvador he was perpetually afraid of the gangs and took steps to avoid being forcibly recruited, such as spending a significant amount of time at church and "mov [ing] from one family member to another family member so [the gangs] couldn't control [me]." A.R. 135. In addition to the oral testimony before the Immigration Judge, Zaldana presented significant documentary evidence including the 2012 U.S. Department of State Country Report on Human Rights Practices for El Salvador, A.R. 274–302 (to illustrate gang persecution of former members), and the U.S. Department of State 2013 Crime and Safety Report for El Salvador, A.R. 304–16 (as evidence of governmental acquiescence in the gangs' torture of Salvadoran citizens).

The Immigration Judge's Decision. On October 17, 2014, the Immigration Judge denied Zaldana's applications for withholding of removal and protection under the CAT, even though he found Zaldana and the other witnesses' testimony to be credible. A.R. 47–67. Regarding the application for withholding of removal, the Immigration Judge found insufficient evidence to establish that Zaldana's fears were on account of his membership in a particular social group. A.R. 62–63. Specifically, the Immigration Judge compared the facts of Zaldana's case to Matter of W–G–R–, 26 I. & N. Dec. 208 (BIA 2014), a decision where the Board held that the former Mara 18 gang members in El Salvador who had renounced gang membership did not constitute a particular social group because Salvadoran society did not view them as socially distinct. A.R. 62–64. The Immigration Judge thoroughly analyzed W–G–R– and, properly recognizing that it did not purport to establish a blanket rule regarding whether former gang membership could be socially distinct, looked to Zaldana's individual circumstances to determine that his social group also lacked the requisite social distinction. A.R. 64. The Immigration Judge also found that Zaldana's documentary evidence failed to show that Salvadoran society considered former gang members as a distinct social group. A.R. 63. Further, the Immigration Judge concluded that Zaldana was unable to establish a "nexus" between a protected ground under the Immigration and Nationality Act ("INA") and his fear of gang persecution on account of his status as a former long-term gang member. A.R. 63. Instead, the Immigration Judge found the gang members' desire to "enforce their warped code of conduct and to punish any perceived infidelity [to the gang]" as an equally plausible explanation for Zaldana's fear. A.R. 63. Finally, the Immigration Judge found Zaldana ineligible for withholding of removal under the CAT as the Salvadoran government's inability to control the gangs did not constitute governmental acquiescence in torture, especially as "the government of El Salvador is attempting to take steps and actions to deal with police corruption" and combat gang violence. A.R. 66.

The Board's Decision. Zaldana appealed to the Board of Immigration Appeals ("Board"), arguing that the Immigration Judge improperly relied on Matter of W–G–R–, which he asserted was distinguishable because his gang membership was longer and his participation in the gang more serious than that of the applicant in W–G–R– . A.R. 18–21. The Board affirmed the Immigration Judge, adopting much of the Immigration Judge's reasoning, but wrote separately to emphasize why the agency denied withholding of removal and protection under the CAT. A.R. 3–4. With respect to Zaldana's application for withholding of removal, the Board agreed with the Immigration Judge that Zaldana's purported social group—"El Salvadoran male youth, who were forced to actively participate in violent gang activities for the majority of their youth and who refused to comply with demands to show their loyalty through increasing violence," or "active and long-term former gang members"—lacked the requisite social distinction within Salvadoran society. A.R. 3. The Board noted that, although Zaldana's evidence did "reflect that widespread gang violence is a serious problem in El Salvador," general conditions of crime and other societal afflictions do not afford protection under asylum and refugee laws. A.R. 3–4. The Board also affirmed the Immigration Judge's conclusion that Zaldana failed to establish a nexus between the harm he feared and his purported social group. A.R. 3.

The Board then affirmed the Immigration Judge's finding...