Salgado-Sosa v. Sessions

• Decision Date: 13 February 2018
• Docket Number: No. 16-1594,16-1594
• Citation: 882 F.3d 451
• Parties: Reynaldo SALGADO–SOSA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

882 F.3d 451

Reynaldo SALGADO–SOSA, Petitioner,

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

No. 16-1594

United States Court of Appeals, Fourth Circuit.

Argued: October 24, 2017

Decided: February 13, 2018

ARGUED: Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, for Petitioner. Anthony W. Norwood, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, Siu P. Wong, Trial Attorney, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.

Petition for review granted in part, denied in part, and remanded for further proceedings by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Floyd joined.

PAMELA HARRIS, Circuit Judge:

Reynaldo Salgado–Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS–13, which has repeatedly attacked his family for resisting extortion demands.

The agency proceedings focused on whether Salgado–Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS–13’s threats and membership in a cognizable "particular social group"—here, Salgado–Sosa’s family. The Board of Immigration Appeals found that Salgado–Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado–Sosa’s asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture.

We conclude that the Board erred in holding that Salgado–Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado–Sosa’s persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in Zambrano v. Sessions , 878 F.3d 84 (4th Cir. 2017), affects Salgado–Sosa’s argument that a statutory "changed circumstances" exception allows consideration of his untimely application.

I.

In August 2005, Salgado–Sosa entered the United States without authorization and began living with his uncle in Sterling, Virginia. In September 2010, the Department of Homeland Security served him with a notice to appear, charging him as an alien who had not been admitted or paroled in violation of section 212(a)(6)(A)(i) of the INA. Salgado–Sosa conceded removability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

At his removal hearing, Salgado–Sosa and his stepfather, Humberto Merez–Merlo, testified before the Immigration Judge ("IJ") and submitted affidavits, an expert declaration, and other documentary evidence for the court’s consideration. We begin by summarizing the testimony and evidence and then outline the legal proceedings that followed.

A.

Salgado–Sosa and his extended family were operating a small convenience store and automobile repair shop out of their family home in Tegucigalpa, Honduras, when armed members of the gang Mara Salvatrucha, known as "MS–13," began to threaten and harass them for a "war tax" in exchange for protection. Merez–Merlo, Salgado–Sosa’s stepfather, refused to pay the gang and instead paid the local police to drive by their home every few hours.

In November 2002, five armed members of MS–13 broke into the family home and held Salgado–Sosa’s parents at gunpoint. After the family attempted to fight back, MS–13 opened fire, missing Salgado–Sosa but shooting his stepfather twice. Salgado–Sosa and Merez–Merlo reported the incident to the police and later testified against several members of MS–13 at a preliminary criminal proceeding. Although at least one gang member was temporarily detained, all of the suspects were eventually released.

Shortly after the first attack, MS–13 broke into Salgado–Sosa’s auto shop and stole his tools, forcing him to shut down his business. Some weeks later, when Merez–Merlo returned from the hospital, MS–13 attacked for a third time, firing on the family home from the street. Salgado–Sosa’s family fired back, and suspect that they injured at least one member of MS–13 during the shootout.

Fearing reprisals, the family fled to Salgado–Sosa’s grandparents’ home in El Rosario, a nearby town, where they remained in hiding for approximately one year. After learning that MS–13 was gathering information on their whereabouts and planned "to kill whoever [they] were with," the family moved again, hoping to keep Salgado–Sosa’s grandparents out of harm’s way. J.A. 205.

Now in a different part of Tegucigalpa, Salgado–Sosa learned from his former neighbors that MS–13 was still searching for his family. In 2004, Salgado–Sosa’s vehicle was hit from behind, resulting in an accident that caused him severe injuries. Although there were no witnesses, his family suspects that MS–13 was involved. That same year, Merez–Merlo was robbed and assaulted by someone he recognized as a member of MS–13.

In 2005, Salgado–Sosa’s parents helped him escape to the United States. After living in Virginia and Maryland for five years, Salgado–Sosa was detained by ICE when his name appeared on an Interpol alert for car theft in Honduras—charges that were later dropped. Salgado–Sosa’s family suspects that corrupt police may have been involved in filing those charges to cause his deportation.

At the removal hearing, Salgado–Sosa testified to and presented evidence regarding the events that led to his flight from Honduras and to the United States. Noting his family’s warnings that MS–13 continues to ask about his whereabouts, he confirmed that he remains in fear of returning to Honduras. Along with other evidence of country conditions in Honduras, Salgado–Sosa submitted a declaration from Dr. Thomas J. Boerman, an expert on organized crime in Honduras. Dr. Boerman opined that based on an interview with Salgado–Sosa, his review of the evidence in this case, his knowledge of how MS–13 operates, and the deteriorating conditions in Honduras after a 2009 coup, Salgado–Sosa would be "at high risk of egregious physical harm and death if returned to Honduras." J.A. 368.

B.

After considering the evidence and hearing Salgado–Sosa’s testimony, the IJ found Salgado–Sosa generally credible, noting his demeanor and the consistency of his account with other information in the record. The IJ then addressed each of Salgado–Sosa’s claims.

First, the IJ denied Salgado–Sosa’s asylum application as untimely filed. Under the INA, aliens have one year to file for asylum after arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). Salgado–Sosa, who arrived in 2005 and applied for asylum in 2011, conceded that he filed several years after the deadline. He argued, however, that he qualifies for a statutory "changed circumstances" exception, permitting consideration of a late application if a petitioner can establish "the existence of changed circumstances which materially affect the applicant’s eligibility for asylum." 8 U.S.C. § 1158(a)(2)(D). According to Salgado–Sosa, "conditions in Honduras have deteriorated," and his concerns for his safety have increased after the 2009 coup in that country. J.A. 126. The IJ rejected that argument, holding that because attacks by MS–13 remained the basis for Salgado–Sosa’s fear of return, he had not shown a material change in circumstances.

The IJ next found that Salgado–Sosa is not entitled to withholding of removal. To qualify for withholding of removal, as the IJ explained, a petitioner must establish "a clear probability that [his] life or freedom would be threatened ... because of" one of several protected grounds, including "race, religion, nationality, membership in a particular social group, or political opinion." Mejia v. Sessions , 866 F.3d 573, 579 (4th Cir. 2017) (internal quotation marks omitted) (quoting 8 U.S.C. § 1231(b)(3)(A) ). Here, Salgado–Sosa argued that if he is deported to Honduras his life will be threatened because of membership in his family, a valid "particular social group" under Crespin–Valladares v. Holder , 632 F.3d 117, 124–26 (4th Cir. 2011).

The IJ acknowledged that under Crespin–Valladares , "family ties can provide the basis for a cognizable particular social group." J.A. 124. She went on to hold, however, that Salgado–Sosa failed to satisfy the "nexus" requirement of § 1231(b)(3)(A), requiring that the feared persecution be on account of those family ties. To meet this standard, the IJ explained, a petitioner must show that a statutorily protected ground would be "at least one central reason" for the feared persecution. J.A. 123 (quoting 8 U.S.C. § 1158(b)(1)(B)(i) ). And here, the IJ concluded, "the central reasons for [Salgado–Sosa’s] past persecution and feared persecution are that [his step]father refused to pay extortion and as revenge on the family for fighting back against the gang." J.A. 127. Neither of those gang motivations implicates a protected ground under the INA, the IJ reasoned, and it follows that Salgado–Sosa cannot establish the necessary nexus between the threatened harm and membership in his family.

Finally, the IJ denied relief under the CAT, which requires a petitioner to show that, if removed, it is "more likely than not that he or she would be tortured" with the consent or acquiescence of the government. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) ; see Turkson v. Holder , 667 F.3d 523, 526 (4th Cir. 2012). Acknowledging "serious concerns about gang violence and...