W.G.A. v. Sessions

• Decision Date: 21 August 2018
• Docket Number: No. 16-4193,16-4193
• Citation: 900 F.3d 957
• Parties: W.G.A., Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

900 F.3d 957

W.G.A., Petitioner,

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

No. 16-4193

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2018

Decided August 21, 2018

Rehearing Denied October 22, 2018

Lisa Katharine Koop, Attorney, Ashley Huebner, Attorney, National Immigrant Justice Center, Chicago, IL, Neil H. Conrad, Attorney, Kathleen Erin Garvey, Attorney, John M. Skakun, III, Attorney, Sidley Austin LLP, Chicago, IL, for Petitioner.

Elizabeth Fitzgerald-Sambou, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Monique Sherman, Attorney, Cooley LLP, Palo Alto, CA, for Amici Curiae Catholic Legal Immigration Network, Law School Immigration Clinic Directors.

Before Sykes and Hamilton, Circuit Judges, and Lee, District Judge.^*

Hamilton, Circuit Judge.

In 2015, tattooed members of the Mara 18 gang held a gun to petitioner W.G.A.’s head and threatened to kill him.¹ The Mara 18—also known as the "Calle 18," "Barrio 18," or "Eighteenth Street" gang—is one of the two main gangs operating in El Salvador. Together with their rivals, MS-13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes. The gangs have orchestrated labor strikes, brokered a now-defunct truce with the government, and plotted to bomb government buildings. They brag about influencing elections and controlling political campaigns within their territories. They extort millions of dollars from local businesses through threats of violence, and they are largely responsible for El Salvador’s homicide rate—one of the highest in the world.² Two days after the Mara 18 threatened W.G.A., he fled to the United States.

The Department of Homeland Security apprehended W.G.A. for illegally entering the United States and began removal proceedings against him. W.G.A. applied for asylum, statutory withholding of removal, and deferral of removal under Article 3 of the Convention Against Torture, arguing that the Mara 18 gang would kill him if he returned to El Salvador. The immigration judge denied his applications and ordered removal. The Board of Immigration Appeals dismissed W.G.A.’s appeal, and he petitions this court for review. We grant W.G.A.’s petition for review and remand to the Board for further proceedings consistent with this opinion.

I. Factual & Procedural Background

W.G.A. is a citizen of El Salvador who arrived in the United States in January 2016. The immigration judge found W.G.A. credible, and the Board of Immigration Appeals affirmed that finding. We use W.G.A.’s testimony and the immigration judge’s findings to provide the factual context in this case.

W.G.A. grew up in a small farming community of about 170 families. In 2013, the Mara 18 gang began operating in his rural community. By 2015 there were about 20 local gang members. The gang engaged in their usual activities: extorting la renta , or "rent," from local businesses, recruiting young men as new members, and "disappearing" (as a transitive verb) those who refused to join.

One day in 2014, petitioner’s younger brother S.R.P. failed to return home from a trip to the store. Petitioner and his mother searched for S.R.P. When they could not find him, they guessed that the gang had forcibly recruited him. About two months later, S.R.P. called petitioner. He was crying and said that he did not know where he was and could not talk long because the gang might kill him. S.R.P. then hung up abruptly. Petitioner told his mother of the call, but neither contacted the police because they felt it would be useless. They had seen others in their community seek help from the police without success. Others had disappeared after reporting crimes to police.

A few months later, the family learned that S.R.P. had been arrested. Petitioner’s mother attended a court proceeding, where she saw that S.R.P. had a gang tattoo on his hand. S.R.P. remained in prison until November 2015 when, on the day of his release, he called W.G.A. to say that he did not want to be a part of the gang anymore. S.R.P. said he could not come home for fear of what the gang would do, but he did not tell W.G.A. where he was going. W.G.A. assumed that his brother headed toward Guatemala.

The next day, a man called W.G.A. from a private number. The man told W.G.A. to "be careful" and that "they’re looking for you," and hung up without identifying himself. The following day—two days after S.R.P. left prison—four tattooed gang members approached W.G.A. at his house. They asked him where his brother was. When W.G.A. responded that he did not know, one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: "if you don’t [hand] over your brother, you’re going to die here."³ The men told W.G.A. that he had four days to comply or they would kill him. They also told him that they would kill him and his family if anyone spoke to the police.

Fearing for his life, W.G.A. fled two days later. He traveled through Guatemala and Mexico to the United States. Since W.G.A. left El Salvador, gang members have repeatedly threatened his family—over the phone and in person—to demand his and his brother’s whereabouts. Petitioner’s mother was so frightened by the threats that she arranged for her other teenage son, J.R.P., to go into hiding.

In January 2016, W.G.A. entered the United States through Texas without valid entry documents. The Department of Homeland Security initiated removal proceedings against him. See 8 C.F.R. § 1239.1. W.G.A. conceded that he was removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). He then applied for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), and deferral of removal under Article 3 of the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18.

The immigration judge concluded that W.G.A. did not qualify for any of his asserted grounds of relief and ordered removal. W.G.A. appealed to the Board of Immigration Appeals, which agreed with the immigration judge and dismissed W.G.A.’s appeal. The immigration judge’s order of removal became final, see 8 C.F.R. § 1241.1(a), and W.G.A. petitioned for review in this court, see 8 U.S.C. § 1252(a)(1), (b)(1). While W.G.A.’s appeal was pending before the Board, DHS wrongfully removed him to El Salvador. See 8 C.F.R. § 1003.6(a) (staying execution of immigration decisions while appeal is pending). This removal did not affect the Board’s or our jurisdiction.

Matter of Diaz-Garcia , 25 I. & N. Dec. 794 (BIA 2012) ; Marin-Rodriguez v. Holder , 612 F.3d 591, 593–94 (7th Cir.2010). We ordered briefing on whether we had the authority to order DHS to permit W.G.A. to return to the United States while his appeal was pending. Rather than litigate the issue further, the government agreed to facilitate W.G.A.’s return. The parties have successfully returned W.G.A. to the United States, where he remains detained.

II. Scope of Review

It is helpful to start by clarifying the scope of our review. The answer depends on whether the Board’s order is independent of or supplemented the immigration judge’s decision. See Liu v. Ashcroft , 380 F.3d 307, 311 (7th Cir.2004). When the Board issues an independent opinion that replaces the immigration judge’s reasoning with its own, our review is limited to the Board’s opinion. Jabateh v. Lynch , 845 F.3d 332, 337 (7th Cir.2017), citing Sarhan v. Holder , 658 F.3d 649, 653 (7th Cir.2011). Our review is broader when the Board relies on the immigration judge’s findings and supplements that opinion "with additional observations." Sarhan , 658 F.3d at 653. In those cases, we review the immigration judge’s findings as supplemented by the Board’s. Id. , citing Mema v. Gonzales , 474 F.3d 412, 416 (7th Cir.2007). In a footnote, W.G.A. states that our review is limited to the Board’s opinion. The Attorney General argues that the Board’s order was supplementary to the immigration judge’s decision. We agree with the Attorney General’s reading and see no reason in this case to narrow our review.

III. Asylum and Withholding of Removal

To qualify for asylum, W.G.A. must show that he is "unable or unwilling to return" to El Salvador "because of persecution or a well-founded fear of persecution." 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). The persecution must be "on account of" one of five protected grounds: "race, religion, nationality, membership in a particular social group, or political opinion." § 1101(a)(42)(A). If W.G.A. proves that he was persecuted in the past because of one or more of the protected grounds, he is presumed to have a well-founded fear of future persecution on the same grounds. 8 C.F.R. § 1208.13(b)(1). The Attorney General can rebut that presumption by showing that country conditions have changed or that W.G.A. can safely relocate to another part of El Salvador. § 1208.13(b)(1), (b)(1)(i). Withholding of removal is similar. The Attorney General must withhold removal of W.G.A. if his "life or freedom would be threatened in" El Salvador because of one of the same five protected grounds. 8 U.S.C. § 1231(b)(3)(A). If he shows past persecution, W.G.A. is again entitled to a rebuttable presumption that his life or freedom would be threatened. 8 C.F.R. § 1208.16(b)(1)(i).

W.G.A. has shown past persecution. He testified, and the immigration judge credited his testimony, that the Mara 18 threatened his life at gunpoint. That point is not in dispute in this case. The Board found that the threat amounted to persecution. See Nakibuka v. Gonzales , 421 F.3d 473, 477 (7th Cir.2005) ("A death threat, especially one that is accompanied by an attacker pressing a gun to the victim’s head, is a serious factor supporting a finding...