Quintero v. Garland

Decision Date26 May 2021
Docket NumberNo. 19-1904,19-1904
Citation998 F.3d 612
Parties Miguel Angel Arevalo QUINTERO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. Retired Immigration Judges and Former Members of The Board of Immigration Appeals, Amicus Supporting Petitioner.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Susan Baker Manning, MORGAN LEWIS & BOCKIUS, LLP, Washington, D.C., for Petitioner. Jenny Chong Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Patrick A. Harvey, Clara Kollm, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Jonathan Robbins, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Steven H. Schulman, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Amici Retired IJs and Former Members of the Board of Immigration Appeals.

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Petition for review granted and remand awarded by published opinion. Judge Wynn wrote the opinion, in which Judge Floyd joined. Judge Motz wrote an opinion concurring in the judgment.

WYNN, Circuit Judge:

Petitioner Miguel Angel Arevalo Quintero seeks review of the Board of Immigration Appeals’ final order affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. His petition alleges that the immigration judge and the Board of Immigration Appeals made several legal errors in their consideration of his claims for withholding of removal and Convention Against Torture relief.1 This case also presents an important question of first impression in our Circuit: whether immigration judges have a legal duty to develop the record.

For the reasons set forth below, we hold that they do. Accordingly, we grant the petition for review, vacate the denial of Petitioner's application for withholding of removal and protection under the Convention Against Torture, and remand for further proceedings consistent with this opinion.

I.
A.

Petitioner was born in 1994 in El Salvador, a country long plagued by rampant gang violence and instability. Salvadoran gangs "exercise extraordinary levels of social control over the population ... [,] principally through the use of threats and violence to create a pervasive atmosphere of fear." A.R. 215.2 These gangs actively recruit young men and boys in their territories, and those who resist recruitment are generally seen as challenging the gang's authority and often suffer violence or even death as a result.3 The two major gangs in El Salvador are MS-13 and Barrio-18.4

In September 2012, Petitioner, then a teenager, joined MS-13.5 Within a few months of joining MS-13, he realized he had made a mistake, as the gang made him collect extortion money and deliver drugs. Feeling that he "just couldn't take it anymore," Petitioner decided to leave the gang. A.R. 171.

But when Petitioner told the gang about his intent to leave, MS-13 members called him to an isolated place, beat him, and threatened to kill him. They told him that he could not leave the gang and warned that if he tried to do so, he would "get burned." A.R. 172. Shortly after this incident, Petitioner received a threatening phone call from a gang member who was in prison and who warned that Petitioner and his family would be in danger if he left the gang.

Fearing for his life, Petitioner continued to pick up extortion money for MS-13 from time to time, but he remained committed to leaving the gang. Realizing that leaving El Salvador was "the only way to flee from th[e] [gang]," A.R. 168, he left the country in June 2013 and arrived in the United States soon afterward.

But MS-13's threats continued. For example, gang members in El Salvador sent him a menacing Facebook message asking where he was and warning him, "we take some time, but we don't forget." A.R. 174. Due to the "death threats" he had received from MS-13—both in El Salvador and in the U.S.—Petitioner feared that the gang would murder him if he were to return to El Salvador. A.R. 168. And for good reason. In 2015, MS-13 members shot, dismembered, and beheaded Petitioner's cousin, José Ramiro, in front of Ramiro's mother and 11-year-old sister because Ramiro tried to leave the gang.

In the U.S., Petitioner supported himself by working construction jobs. But at some point in 2017, he became homeless. So when he met three young people who offered him shelter in a vacant apartment in Prince George's County, Maryland, he agreed to stay with them. Petitioner did not disclose his past involvement with MS-13 to his roommates because he was afraid of being located by the gang. And he wore long-sleeved shirts to cover his gang tattoos.

On July 24, 2017, Prince George's County police arrested Petitioner and the three other unauthorized occupants in the apartment. While searching Petitioner, the officers saw his gang tattoos and referred him to the county Gang Unit. Later that day, Immigration and Customs Enforcement officers took Petitioner into custody. He has remained in immigration detention ever since.

B.

On July 25, 2017, the Department of Homeland Security issued a Notice to Appear and initiated removal proceedings against Petitioner. Over the next few months, Petitioner appeared pro se at several master calendar hearings before an immigration judge, admitting removability and expressing his fear of returning to El Salvador. He also filed a handwritten, self-completed Form I-589 (Application for Asylum and for Withholding of Removal).

On his Form I-589, Petitioner indicated that he sought asylum and withholding of removal based on his membership in a particular social group, as well as protection under the Convention Against Torture. On the form, he described fearing return to El Salvador because he believed MS-13 would kill him for leaving the gang. He also noted that the gang had already killed his cousin for the same reason and that MS-13 would kill anyone who deserted it.

On December 13, 2017, Petitioner appeared pro se before an immigration judge for an individual hearing on his I-589 application. In his testimony, he expressed fear that MS-13 would kill him for leaving the gang if he were to return to El Salvador. He recounted his brief involvement in the gang, the beating and death threats he had received upon communicating his desire to leave MS-13, his decision to flee to the U.S., and the menacing Facebook message he received from MS-13. Petitioner explained that MS-13 saw him as a deserter since he told them he wanted to leave and then fled El Salvador shortly afterward. He stated: "I'm [a] person that has left, fleeing them ... [and] that's something that they don't allow." A.R. 184. Petitioner testified that the gang was "going to murder [him] if [he went] back to El Salvador" because they had "already threatened" him along "with [his murdered] cousin." A.R. 175. He further stated: "[T]hey're always going to find me. They're always going to know me, and they're going to murder me because they don't forgive." A.R. 176. In support of his I-589 application, Petitioner also submitted extensive country-conditions evidence concerning gang violence in El Salvador.

On December 14, 2017, the immigration judge issued a written decision denying all of Petitioner's applications for relief. Notably, the immigration judge found Petitioner's testimony that he had left MS-13 and was no longer part of the gang to be not credible and stated that the "adverse credibility determination ... necessarily call[ed] into question all aspects of [his] claim." A.R. 136. The immigration judge further explained that she found no reliable evidence in the record supporting Petitioner's eligibility for asylum or withholding of removal. But the immigration judge's decision contained no discussion of any particular social groups, other than a passing observation in a footnote that "[e]ven if some of [Petitioner's] testimony were taken as credible," being "threatened while still a gang member for indicating he wanted to leave ... would not constitute a statutorily protected ground." Id.

The immigration judge also denied Convention Against Torture relief, concluding that Petitioner had failed to demonstrate that he would more likely than not be tortured in El Salvador "with the consent or acquiescence of the government." Id. Accordingly, the immigration judge ordered that Petitioner be removed to El Salvador.

Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals, again proceeding pro se . In an unpublished, nonprecedential opinion, the Board of Immigration Appeals affirmed the immigration judge's decision. Petitioner then sought this Court's review.

The Government moved to remand the case so that the Board of Immigration Appeals could consider the impact, if any, of its intervening decision in Matter of W-Y-C- & H-O-B- , 27 I. & N. Dec. 189 (BIA 2018). We granted the motion to remand.

On remand, the Board of Immigration Appeals again affirmed the immigration judge's denial of all requested relief and dismissed Petitioner's appeal in an unpublished, nonprecedential decision. The Board of Immigration Appeals also denied Petitioner's motion to remand the case to the immigration judge. Petitioner timely appealed to this Court and filed an emergency motion for stay of removal. We granted the motion and stayed his removal pending disposition of the present petition.

II.

This Court has jurisdiction to review "final orders of removal." 8 U.S.C. § 1252(a)(1). "Where, as here, [the Board of Immigration Appeals’] decision has adopted and supplemented an [immigration judge's] decision, we are obliged to review both rulings." Tassi v. Holder , 660 F.3d 710, 719 (4th Cir. 2011). We review factual findings under the substantial evidence standard, treating them as "conclusive unless the evidence was such that any reasonable adjudicator...

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