Parada v. Sessions

• Citation: 902 F.3d 901
• Decision Date: 29 August 2018
• Docket Number: No. 13-73967,13-73967
• Parties: Moris Alfredo Quiroz PARADA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

902 F.3d 901

Moris Alfredo Quiroz PARADA, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 13-73967

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 14, 2017, San Francisco, California

Filed August 29, 2018

Christopher J. Stender (argued), Federal Immigration Counselors AZ PC, Phoenix, Arizona, for Petitioner.

Janette L. Allen (argued) and Laura Halliday Hickein, Trial Attorneys; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-513

Before: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,^* District Judge.

PAEZ, Circuit Judge:

Moris Alfredo Quiroz Parada fled his native El Salvador in 1991 at the age of seventeen after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional (FMLN) guerillas. Twenty-four years after he first applied for asylum, Quiroz Parada petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We conclude that the record compels a finding of past persecution, and that substantial evidence does not support the agency’s determination that the government successfully rebutted the presumption of future persecution. We also conclude that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief. Accordingly, we grant the petition and hold that Quiroz Parada is eligible for asylum and entitled to withholding of removal, and remand for reconsideration of his CAT claim.

I.

A.

Quiroz Parada, a native and citizen of El Salvador, entered the United States without authorization on May 25, 1991 at the age of seventeen. Quiroz Parada has continuously resided in the United States for the last twenty-seven years, and currently lives in Arizona with his wife and three children, the latter of whom are United States citizens. He is the sole provider for his family.

During the Salvadoran civil war of the 1980s and early 1990s, Quiroz Parada and his family were subjected to threats, home invasions, beatings, and killings by FMLN guerillas.¹ Quiroz Parada’s family was targeted largely because of his brother’s military service during the civil war, and potentially also because of his father’s work as an assistant marshal, a role akin to a sheriff. The FMLN apparently found out about the Quiroz Paradas’ government connections because some of the family’s neighbors were relatives of the guerillas.

In June 1989, FMLN guerillas sought out and murdered Quiroz Parada’s brother while he was on leave from the military. Following his brother’s assassination, FMLN guerrillas broke into the Quiroz Parada family home on at least three occasions. The guerillas sought to kill other members of the Quiroz Parada family, and, on one occasion, to kidnap Quiroz Parada with the apparent intent to forcibly conscript him.

The Quiroz Paradas knew the guerillas were specifically targeting their family largely because the FMLN guerillas would begin calling out their family’s name upon entering the Quiroz Paradas’ village. Although the FMLN’s announcements were terrifying, they at least gave the family enough time to hide in the family’s well and thus avoid harm during the first several invasions. On another occasion, however, the family did not hear the guerillas approaching in time to hide before the guerillas broke into their home. Quiroz Parada attempted to flee, but was struck by the guerillas, tied up, carried out of his home, and beaten; the guerillas apparently intended to forcibly conscript him. He was only able to escape because the army suddenly arrived at his village, which caused the guerillas to flee—but not before they beat Quiroz Parada, causing him to lose consciousness. Quiroz Parada testified that his family realized after this attack that they were being targeted because of his brother’s military service.²

The FMLN guerillas’ targeting of the Quiroz Parada family also led to collateral consequences for those around the family. On one occasion, a different group of FMLN guerillas than had committed the previous home invasions mistakenly entered the home of the Quiroz Paradas’ neighbors instead. The guerillas kidnapped the neighbor’s sons and, upon discovering they had kidnapped the wrong family’s sons, returned and murdered the mother in anger over their mistake.³

Quiroz Parada fled to the United States in 1991 after these incidents, but his family members who remained in El Salvador continued to suffer harm even after the end of the civil war. In 2000, his father received a death threat from a former FMLN guerilla’s son, who had become a Mara Salvatrucha (MS) gang member in the intervening years. This familial transition from FMLN guerilla to MS member was apparently common; Quiroz Parada’s family members have told him that many sons of former FMLN guerillas are now part of the MS gang. These FMLN descendants have long memories: the MS member who threatened Quiroz Parada’s father told him "You are going to die. Because your family was in the military and killed someone from my family. And one way or another you will die." Quiroz Parada’s father was killed five years later in a suspicious hit-and-run, which Quiroz Parada believes to have been carried out by the MS member who threatened his father or one of his associates. The threats did not end with his father’s death, either: Quiroz Parada’s mother was forced to flee their family home after receiving threats from MS gang members whose fathers were FMLN guerillas.

Quiroz Parada’s family members have warned him not to return to El Salvador because "history will repeat itself"—meaning that Quiroz Parada will face kidnapping or death at the hands of the MS gang members who are descendants of FMLN guerillas. As of Quiroz Parada’s hearing before an immigration judge (IJ) in 2012, all of his siblings had fled El Salvador.⁴

B.

Quiroz Parada applied for asylum⁵ and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s "leftist wing" form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if "they murder people, or behave badly."⁶

Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.

The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.

Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the "police do[ ] not help, and they even get killed," and warned that if he were to come back to the country, "history would repeat itself." Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she "snitched on the barrio" and warned her that if she failed to leave the area by a particular date, her "daughters will suffer the consequences." His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed...