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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

Rmlll- M

Name:
Riders:202-078-993

Date of this notice: 9/16/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

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Sincerely,

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Cole, Patricia A.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit


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OHS/ICE Office of Chief Counsel - CHL


5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Yanez, Jessica L.
Yanez Immigration Law
2007 Boulevard Street, Suite C
Greensboro, NC 27407

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review


Falls Church, Virginia 22041

Files:

992 - Charlotte, NC
993

SEP l 6 2015

In re:
IN REMOVAL PROCEEDINGS
APPEAL

ON BEHALF OF RESPONDENTS: Jessica L. Yanez, Esquire


ON BEHALF OF DHS:

Susan Leeker
Assistant Chief Counsel

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (both respondents)

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondents appeal the Immigration Judge's May 18, 2015, decision denying their
applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the
Immigration and Nationality Act, 8 U.S.C. 1158 and 1231(b)(3), and for protection under the
Convention Against Torture, 8 C.F.R. 1208.16-.18 (2015). 1 The appeal will be sustained in
part, dismissed in part, and the record will be remanded to the Immigration Judge for further
proceedings consistent with this opinion and for entry of a new decision.
In his decision, the Immigration Judge concluded that the respondent did not meet her burden
in establishing a sufficient "nexus" between her experiences in El Salvador with the MS-13 and
a statutorily protected ground under the Act, e.g., membership in a particular social group
(I.J. at 10). Specifically, the respondent claims fear in returning to El Salvador based on death
threats she experienced after she assisted her 14-year-old daughter, who was at the time living
with her grandparents, in reporting and pursuing a criminal case against a gang member for her
rape and kidnapping (I.J. at 8). According to the Immigration Judge, the respondent's claim, "in
total," establishes only ''acts of criminal violence perpetrated by private actors" (I.J. at 9). Based
on his findings, the Immigration Judge denied the respondent's application for asylum and
withholding of removal under the Act.
1

The respondents are a mother, the lead respondent, and her minor child, a derivative of her
mother's application for relief. All further references to the respondent refer solely to the lead
respondent unless otherwise specified.

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---ommllllll

Date:

992 et a!.

In its decision, the Fourth Circuit first concluded that that "membership in a nuclear family
qualifies as a protected ground for asylum purposes."2 See id. at 949 (internal citations omitted).
The Court further found that "[t]o prove that persecution took place on account of family ties, an
asylum applicant 'need not show that his family ties provide 'the central reason or even
a dominant central reason' for his persecution, [but] he must demonstrate that these ties are more
than 'an incidental, tangential, superficial, or subordinate reason' for his persecution."' See id.
(citing Crespin-Vallardes v. Holder, 632 F.3d 117 (4th Cir. 2011)). Under these circumstances,
we cannot agree with the Immigration Judge's finding that the respondent did not establish
a sufficient nexus for her claim based on her familial relationship to her daughter because she did
not show that she had the "same level of parental authority over [her daughter] as the alien had
over her son" in Hernandez-Avalos (I.J. at 9).
Indeed, as in Hernandez-Avalos, the respondent's relationship in this case to her daughter is
why she, and not another person, was threatened with death, and the gang members' threats
toward her were an attempt to leverage her authority to control her daughter's activities and to
not report or criminally pursue the kidnap and rape. The Immigration Judge's conclusion that
the threats were directed at the respondent as random acts of "criminal violence perpetrated by
private actors" and not because she is the mother of the girl that reported her rape by a gang
member to police draws a meaningless distinction between the facts in this case and those in
Hernandez-Avalos. See also Cordova v. Holder, 759 F.3d 332 (4th Cir.2014) (finding Board had
not properly considered alien's evidence that the later threats he received, after refusal to be
recruited by a gang, were motivated by retaliation for his cousin and uncle's membership in a
rival gang and thereby motivated by his membership in his particular family). Further, as to the
requirement that the respondent demonstrate past persecution, the Fourth Circuit has expressly
held that ''the threat of death qualifies as persecution." See Crespin-Valladares v. Holder, supra,
at 126; see also Hernandez-Avalos, supra, at 949.
Inasmuch as we find the respondent has established harm rising to the level of past
persecution "on account of' a protected ground based on her claim, we find it necessary to
2

In his decision, the Immigration Judge assumed ''without deciding" that the respondent
established her membership in a particular social group by virtue of her familial relationship to
her daughter (I.J. at 8).

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Contrary to the Immigration Judge's decision, we find that the respondent's circumstances
are not meaningfully distinguishable from those considered in the Fourth Circuit's recent
decision in Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015), and that, based on her
claim, she has established past persecution on the basis of her membership in a particular social
group, specifically her nuclear family (1.J. at 9). In Hernandez-Avalos, the Fourth Circuit, where
this case arises, found that the alien established past persecution on account of her membership
in a particular social group based on her claim that members of the Mara-18 gang murdered her
husband's cousin and then made death threats against her to keep her from reporting their
involvement in that crime. See id. at 947. Following a series of death threats against her own
person, members of the gang came to the alien's home and tried to forcibly recruit her
12-year-old son into the gang. See id. When the alien refused, she was told by gang members
that she had 1 day to turn over her son or she would be killed. See id.

992 et al.

Accordingly, the respondents' appeal of the Immigration Judge's denial of their applications
for asylum and withholding of removal under the Act will be sustained, the remainder of the
appeal will be dismissed, and the record will be remanded to the Immifation Judge for further
proceedings consistent with this opinion and for entry of a new decision.
ORDER: The respondents' appeal of the Immigration Judge's denial of their applications for
asylum and withholding of removal under the Act is sustained, the remainder of the appeal is
dismissed, and the record is remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry ofa new decision.

In this regard, we note that the evidence indicates the offending gang member was arrested by
police but released because of lack of evidence inasmuch as the respondent's daughter did not
have a medical exam after the rape and had already separately fled to the United States after the
gang member was arrested. Further, the record also indicates that the offending gang member is
now dead and that his mother and sister, also gang members, now blame the respondent for his
death among other things.
4

We note that the minor respondent is only a derivative for purposes of the lead respondent's
application for asylum under section 208 of the Act and not for purposes of withholding of
removal under section 241(b)(3) of the Act.
3

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remand the record to the Immigration Judge to consider whether the respondent has established
the government of El Salvador was or is unwilling or unable to control the activities of the gangs
in that country and, if so, whether the Department of Homeland Security has rebutted any
presumption of a well-founded fear of future persecution for purposes of the respondent's
eligibility for asylum and withholding of removal under the Act.3 However, we also find that the
Immigration Judge's decision denying the respondent's application for protection under the
Convention Against Torture based on her failure to show that the El Salvadoran government is
likely to acquiesce in her torture based on her claim is sufficiently supported by the record
(I.J. at 10-12). See Suarez-Valenzuela v. Holder, 114 F.3d 241, 248 (4th Cir. 2013) (affirming
Board's decision that alien did not establish government acquiescence to gangs in El Salvador);
Lizama v. Holder, 629 F.3d. 440 (4th Cir. 2011) (affirming Board decision finding alien failed to
establish it was more likely than not he would be tortured ifhe were removed to El Salvador, as
required under the Convention Against Torture; although evidence indicated pervasive crime and
gang violence in El Salvador, no evidence showed that gangs in El Salvador had the approval or
acquiescence of the government ofEl Salvador).