Zelaya v. Holder

• Decision Date: 11 January 2012
• Docket Number: No. 10–2401.,10–2401.
• Citation: 668 F.3d 159
• Parties: Denis Javier ZELAYA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

668 F.3d 159

Denis Javier ZELAYA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–2401.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 27, 2011.Decided: Jan. 11, 2012.

ARGUED: Bryan Myerson Ward, Sutherland Asbill & Brennan, LLP, Atlanta, Georgia, for Petitioner. Kerry Ann Monaco, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Amelia T. Rudolph, Roshal L. Erskine, Sutherland Asbill & Brennan, LLP, Atlanta, Georgia, for Petitioner. Tony West, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition for review denied in part, granted in part; vacated in part and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge DAVIS and Judge FLOYD joined. Judge FLOYD wrote a separate concurring opinion in which Judge DAVIS joined.

OPINION

HAMILTON, Senior Circuit Judge:

Denis Javier Zelaya (Zelaya), a native and citizen of Honduras, petitions for review of the final order of the Board of Immigration Appeals (the BIA) affirming the denial of his claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Punishment (the CAT or CAT). We deny Zelaya's petition for review with respect to his asylum claim and his withholding of removal claim. However, we grant his petition for review with respect to his CAT claim, vacate the BIA's final order with respect to such claim, and remand for further proceedings in accordance with this opinion.

I.

A.

In order to provide the necessary context for our statement of the relevant facts and procedural history, we now set forth an overview of the legal landscape relevant to Zelaya's petition for review.

Under the Immigration and Nationality Act (the INA), the Attorney General has discretionary authority to “grant asylum to an alien ... if ... the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of [Title 8].” 8 U.S.C. § 1158(b)(1)(A). Section 1101(a)(42)(A) in turn defines the term “refugee” as “any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself ... of the protection of, that country because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group....” Id. § 1101(a)(42)(A). “The burden of proof is on the applicant [for asylum] to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A).” Id. § 1158(b)(1)(B).

Unlike in the asylum context, if an alien qualifies for withholding of removal under the INA, the Attorney General cannot remove him to his native country. Id. § 1231(b)(3)(A); Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir.2004). “Withholding of removal is available under 8 U.S.C. § 1231(b)(3) if the alien shows that it is more likely than not that h[is] life or freedom would be threatened in the country of removal because of h[is] ‘... membership in a particular social group....’ ” Gomis v. Holder, 571 F.3d 353, 359 (4th Cir.2009) (quoting 8 U.S.C. § 1231(b)(3)(A)), cert. denied, ––– U.S. ––––, 130 S.Ct. 1048, 175 L.Ed.2d 881 (2010). This is a higher burden of proof than for an asylum claim, although the facts that must be proven are the same. Camara, 378 F.3d at 367. Accordingly, an alien who cannot meet his burden of proof on an asylum claim under the INA necessarily cannot meet his burden of proof on a withholding of removal claim under the INA. Id.

The CAT, pursuant to its implementing regulations, prohibits the United States from returning any person to a country where the person has demonstrated that it is more likely than not that he will be tortured if returned to such country. United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U.N.T.S. 85, 114. For purposes of obtaining protection under the CAT in the United States, torture is defined as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

8 C.F.R. §§ 208.18(a)(1) (Department of Homeland Security regulation), 1208.18(a)(1) (Executive Office for Immigration Review regulation).¹ A public official acquiesces to torture if, “prior to the activity constituting torture, [the public official] ha[s] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.” Id. § 1208.18(a)(7). “The testimony of the applicant” for withholding of removal under the CAT, “if credible, may be sufficient to sustain the burden of proof without corroboration.” Id. § 1208.16(c)(2). ²

B.

On January 19, 2007, Zelaya entered the United States illegally at the age of sixteen. Zelaya conceded his removability as charged in his notice to appear, but sought relief from removal by seeking asylum, withholding of removal, and protection under the CAT (collectively Zelaya's asylum application). Zelaya applied for asylum and withholding of removal under the INA based upon his membership in a particular social group.³

On December 16, 2009, the immigration judge (the IJ) held an evidentiary hearing on Zelaya's asylum application. According to Zelaya's pre-hearing brief, he is entitled to asylum or withholding of removal under the INA because he has a well-founded fear of persecution on account of his membership in a particular social group consisting of young Honduran males who (1) refuse to join the Mara Salvatrucha 13 gang (MS–13), (2) have notified the authorities of MS–13's harassment tactics, and (3) have an identifiable tormentor within MS–13.

Zelaya grew up in the Honduran town of El Progresso, in the department of Yoro. Zelaya testified on his own behalf before the IJ during a hearing on his asylum application. When asked by his counsel to describe his life in El Progresso, Zelaya testified, as summarized in the IJ's written decision, that:

[H]is life was horrible. From age 11 years old until he left he was pursued by gangs. He said that there were gangs everywhere he went. The MS–13 was the name of the gang. He is afraid of the gangs. He said the gangs threatened to kill him on several occasions. He said they threatened him because he does not want to join. He began to speak about being threatened because they accused him of dating a young girl. He said they wanted him to join the gang. They would hit him and beat him when they confronted him about his lack of desire to join the gang. They threatened they would kill his brother if he did not join the gang. [Zelaya] continued to say that on one occasion they approached him in a park. They put a gun to his head and shot the gun. The gun was shot in front of his face. He said that he was bleeding. He testified that the gang member told him you are lucky I only have one bullet otherwise you would be dead. [Zelaya] said that he wanted to tell the police and he went to the police station and he filed a report. He said that the police told him that they could not help him because the gang members would hurt them as well. [Zelaya] said there was another incident when his friend Manuel called him to come out and meet him in a wooded area. He said when he arrived there he saw that Manuel was being beaten up by the gang. That Manuel's face was bruised and swollen. They hit him, meaning [Zelaya], in the stomach and threatened to kill him and his brother if he did not join the gang.

(J.A. 54–55).

Zelaya testified that all of the MS–13 gang members in his neighborhood were involved in harassing him. Although all nine would hit him, the “boss of the whole gang” in his neighborhood, named Jeffrey, would seek Zelaya out in particular. (J.A. 137). After the incident in the wooded area, Zelaya told MS–13 that he would think about joining. MS–13 then assured him that his friend Manuel would be fine.

Zelaya then went home and started thinking about coming to the United States, because he “was afraid they were going to kill [his] brother because [he] grew up with [his] brother and [his] mother.” (J.A. 145). Zelaya fled Honduras for the United States soon thereafter. According to Zelaya, sometime after he arrived in the United States, he learned through a telephone call to his grandmother back in Honduras that MS–13 had shot and killed his friend Manuel because the gang wanted to know his whereabouts.

In addition to his own testimony, Zelaya submitted numerous documents in support of his asylum application, including, inter alia: (1) a copy of a March 11, 2009, press release issued by Campbell University recounting the 1997 kidnapping and murder of the son of then Honduran President Ricardo Maduro by MS–13 in Honduras; (2) an affidavit by Zelaya in which he describes in detail, inter alia, his early life in Honduras and MS–13's violent efforts at recruiting him and his friend Manuel; (3) an affidavit by Magdaleno Rose–Avilia, Chief of Party for the Miami Project of the International Relief Development Agency and researcher of gang life in Central America, opining, inter alia, that, given the attention and threats that Zelaya drew from MS–13 communicated to...