De Rivas v. Sessions, 080818 FED8, 17-1123

Docket Nº:17-1123
Opinion Judge:COLLOTON, CIRCUIT JUDGE
Party Name:Sandra Maritza Pena De Rivas; Maria Santana Mejia-Pena; Brittany Pamela Mejia-Pena, Petitioners, v. Jefferson B. Sessions, III, Attorney General of the United States, Respondent.
Judge Panel:Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
Case Date:August 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Sandra Maritza Pena De Rivas; Maria Santana Mejia-Pena; Brittany Pamela Mejia-Pena, Petitioners,

v.

Jefferson B. Sessions, III, Attorney General of the United States, Respondent.

No. 17-1123

United States Court of Appeals, Eighth Circuit

August 8, 2018

Submitted: February 15, 2018

Petition for Review of an Order of the Board of Immigration Appeals

Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges. [*]

COLLOTON, CIRCUIT JUDGE

Sandra Maritza Pena de Rivas ("Rivas") and her two minor children, Brittany Pamela Mejia-Pena and Maria Santana Mejia-Pena, petition for review of an order of the Board of Immigration Appeals. The Board denied their applications for asylum, withholding of removal, and relief under the Convention Against Torture. With respect to Rivas's petition, we conclude that there was no legal error and that substantial evidence supports the Board's decision, so we deny the petition. As to the children, however, the record shows that they presented independent applications, but the Board failed to decide the applications separately from their mother's. We therefore grant the petitions filed by the children and remand their cases for further consideration.

I.

There is no challenge to the factual findings of the immigration judge, so we report the facts accordingly. Rivas and her daughters are citizens of El Salvador. In September 2013, Rivas witnessed a member of the El Salvadoran gang called the M-18 shoot her brother Carlos outside of her parents' home after Carlos refused to join the gang. The gang member pointed his gun at Rivas and told her to be careful about what she said.

Rivas helped her brother inside the home, where Brittany and Maria witnessed his injuries. Rivas's partner Juan then drove Carlos, Rivas, and Rivas's mother to the hospital. To obtain medical care for Carlos, a police officer at the hospital required Rivas to answer questions about the shooting, and Rivas complied. After Carlos received medical treatment, Rivas and Juan took Carlos to see a relative who could offer additional medical care. Thereafter, Carlos went into hiding.

When members of the M-18 could not find Carlos, they began to question and threaten Juan and Rivas. Gang members stopped Juan on his way home to ask where to find Carlos, but Juan denied knowing Carlos's whereabouts. Juan fled to Mexico in October 2013.

Three days after Juan left the country, two men from the M-18 approached Rivas in a store to ask where Carlos was hiding; Rivas told them she did not know. About a week later, female gang members visited Rivas at Juan's grandparents' home to inform her that Saul Pineda, the leader of the M-18 and Rivas's relative, wanted to speak with her. The women escorted Rivas to a nearby field where the M-18 frequently beats or kills people, and handed Rivas a cellular phone so that she could talk to Pineda. Pineda asked for Carlos's location, but Rivas refused to tell him. When Rivas did not disclose Carlos's whereabouts, the women beat her and left her in the field.

Rivas and her children then fled to her sister's house, located in a different city of El Salvador. Pineda called the house in March 2014 to speak to Rivas, this time offering her protection from the gang in exchange for her visiting him in jail and having sex with him. Rivas refused, left El Salvador with her children, and joined Juan in Mexico.

Rivas and her children entered the United States in December 2014. They were arrested at the border and detained pending deportation. In January 2015, the Department of Homeland Security commenced removal proceedings.

Rivas, Brittany, and Maria applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Although Rivas's counsel initially represented that the children would file as derivative beneficiaries of Rivas's application, all three aliens ultimately filed independent applications. Rivas also named her daughters as derivative beneficiaries on her application for...

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