Documenti di Didattica
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Department of Justice
Name: P , S S A -854
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Greer, Anne J.
Pauley, Roger
Userteam: Docket
APPEAL
The respondent appeals the Immigration Judge's July 8, 2016, decision denying his
applications for cancellation of removal under section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. 1229b(b) (2012), and withholding of removal under section 241(b)(3) of the Act,
8 U.S.C. 1231(b)(3).1 The appeal will be sustained 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 a previous decision in this case, the first Immigration Judge found the respondent ineligible
for cancellation of removal under section 240A(b) of the Act based on his 2006 conviction for the
offense of domestic violence - third offense in violation of Michigan Compiled Laws section
750.81(4) (IJ at 3-4). 2 Specifically, the Immigration Judge found the conviction to be for a crime
of domestic violence under section 237(a)(2)(E)(i) of the Act, 8 U.S.C. 1227(a)(2)(E)(i),
rendering the respondent statutorily ineligible under section 240A(b)( l )(C) of the Act (U at 3-4).
On appeal, the respondent argues the Immigration Judge erred in finding his conviction to be for
a crime of domestic violence under section 237(a)(2)(E)(i) without an explanation or analysis for
her conclusion. See Respondent's Brief at 6-9. We agree. See 8 C.F.R. 1003. l (d)(3)(ii) (de
novo review).
The version of section 750.81(4) in effect at the time of the respondent's conviction provided,
in pertinent part:
I The first Immigration Judge issued her decision finding the respondent ineligible for cancellation
of removal on September 30, 2014, and all references and citations herein to the Immigration
Judge's decision relate to the September 30, 2014, decision unless otherwise stated. Following
the issuance of that decision, the proceedings were continued, and the second Immigration Judge
issued her decision denying the respondent's applications for withholding of removal under the
Act and under the Convention Against Torture, 8 C.F.R. 1208.16-.18 (2016), on July 8, 2016.
The respondent does not appeal the Immigration Judge's denial of his application for protection
under the Convention Against Torture. Therefore, we deem that issue waived. However, the
respondent does appeal the Immigration Judge's denials of cancellation of removal and
withholding of removal under the Act.
2 The respondent does not dispute that he was convicted under subsection (4) of the statute.
See Mich. Comp. Laws 750.81(4) (2002). An assault is an attempt to commit a battery or an
unlawful act that would cause a reasonable person to fear or apprehend an immediate battery. See
People v. Fordham, 346 N.W.2d 899 (Mich. Ct. App. 1984), rev'd on other grounds, 347 N.W.2d
702 (Mich. 1984). An assault may be committed without actually touching the person of the one
assaulted. See People v. Carlson, 125 N.W. 361 (Mich. 1910). Battery is defined as "an
intentional, unconsented and harmful or offensive touching of the person of another, or of
something closely connected with the person." People v. Starks, 701 N.W.2d 136, 140 (Mich.
2005) (internal citations omitted).
The Immigration Judge rendered her decision without citing or referring to the Supreme
Court's decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), or Johnson v. United
States, 559 U.S. 133 (2010), or the United States Court of Appeals for the Sixth Circuit's decision
in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), which were all decided prior to her
decision and which all govern, along with other subsequent cases, whether the respondent's
conviction is for a crime of violence (U at 3-4). Subsequent to the Immigration Judge's decision,
the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016), wherein it clarified
the divisibility analysis it set forth in Descamps. Thus, we now consider whether the respondent's
offense is a crime of domestic violence under the applicable Supreme Court and Sixth Circuit
precedent decisions.
In this regard, we first note that, subsequent to the Immigration Judge's decision, the Sixth
Circuit, where this case arises, held_that the crime of violence definition in 18 U.S.C. 16(b) is
unconstitutional. See Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016). Therefore, in order for the
respondent's offense to constitute a crime of violence, it must fit within the definition set forth in
18 U.S.C. 16(a), which provides, in relevant part, that an offense is a crime of violence if it"has
as an element the use, attempted use, or threatened use of physical force against the person or
property of another." See id. In Johnson, the Supreme Court held that the "physical force"
threatened, attempted or actualized under section 16 must be violent force; that is, "force capable
of causing pain or injury to another person." Johnson v. United States, 559 U.S. at 140 (emphasis
added); see also Matter ofGuzman-Polanco, 26 l&N Dec. 713 (BIA 2016), clarified by Matter of
Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016); Matter of Velasquez, 25 l&N Dec. 278 (BIA
2010).
The Sixth Circuit has held, under Johnson, that the requirement of physical harm in a statute
which otherwise lacks a"stand-alone" element of physical force necessarily requires proof that the
perpetrator used violent force, i.e., force capable of causing physical pain or injury to another
person, and not mere unwanted touching, which would be incapable of causing such physical pain
or injury. See United States v. Anderson, 695 F.3d at 399-401; see also United States v. Barnett,
540 F. App'x 532, 537 (6th Cir. 2013); Guzman-Polanco, 26 I&N D. 806 (clarifying Board's
2
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
854
first decision in Matter ofGuzman-Polanco and stating that the Board will follow applicable circuit
precedent on issue of force necessary for crime of violence).
In its decision in Mathis, the Supreme Court applied the categorical approach to a state burglary
statute that contained alternative means to satisfy one of its elements. In doing so, Mathis provided
helpful guidance for determining whether a predicate statute of conviction is divisible. A statute
Under the categorical approach, we examine solely whether the state statute defining the crime
of conviction categorically fits within the generic federal definition of a corresponding aggravated
felony. See id.; see also United States v. Ritchey, 840 F.3d at 317-18. We must compare the
elements of the statute forming the basis of the defendant's conviction with the elements of the
generic crime, and a conviction under the state statute will only constitute a conviction for the
generic offense if the statute's elements are the same as, or narrower than, those of the generic
offense. See Mathis v. United States, 136 S. Ct. at 2249. If the statute can be violated by an act
that does not fit within the generic offense, then the statute cannot qualify as an aggravated felony
under the categorical approach, and this is true even if the actual conduct of the defendant fell
within the generic crime. See id. The difficulty, however, lies in ascertaining whether the state
statute contains alternative means or elements. In addressing this question, the Court in Mathis
determined that state law should be consulted. See id. at 2250. Specifically, we may consider
state court rulings, the face of the statute, the statute's structure, and "if state law fails to provide
clear answers," the record of prior conviction. Id. at 2256-57 & n.7.
The elements of the respondent's offense under Michigan Compiled Laws section 780.81(4)
are that: (1) the defendant [assaulted/assaulted and battered],3 and (2) at the time, the victim was
the defendant's spouse or former spouse, had a child in common with the defendant, was a
resident/former resident of the same household as the defendant or had a dating or prior dating
relationship with the defendant. See Michigan Model Criminal Jury Instructions, Chapter 17
Assault 17.2a -Domestic Assault (2016). The statute does not have a "stand-alone" element of
physical force. Further, because neither assault nor battery, as defmed by Michigan, requires an
actual injury or physical pain to the victim (indeed, an assault may be accomplished without
touching the victim and a battery may be accomplished by merely touching something "closely"
connected to the victim), the statute does not require the necessary violent physical force to be a
crime of violence under section 16(a). See United States v. Anderson, 695 F.3d at 399-401.
3 According to the jury instructions, the State may charge either or both assault or assault and
battery, as warranted by the evidence. However, we need not consider whether this renders the
statute divisible inasmuch as we conclude that the entirety of the statute falls outside the definition
of a crime of violence under section 16(a).
3
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
854
In her decision, the Immigration Judge found that the respondent's conviction for a crime of
domestic violence renders him ineligible for cancellation ofremoval under section 240A(b)(l)(C)
of the Act as an offense described in section 237(a)(2 ) of the Act. Because we find that the
respondent's conviction is not for a crime of violence, it does not render him ineligible for
cancellation of removal, as found by the Immigration Judge (U at 34
- ). Thus, a remand is
necessary for further proceedings regarding the respondent's application for cancellation of
ORDER: The appeal is sustained in part, and the record is remanded to the Immigration Judge
for further proceedings consistent with this opinion and for entry ofa new decision.
4
Cite as: S-S-P, AXXX XXX 854 (BIA Aug. 4, 2017)
)
JNITEil ... TATES DEPARTMENT OF JUSTICE
EA CUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DETROIT, MICHIGAN
I. PROCEDURAL HISTORY
Salvador. He was issued a Notice to Appear ("NTA") on November 14, 2008. See Exh. 1. The
against respondent by filing his NT A with the Detroit Immigration Court on November 26, 2008.
Id At a subsequent master calendar hearing, respondent admitted the allegations in the NT A and
conceded removability. Therefore, removability was established by the requisite clear and
convincing evidence. The Court designated El Salvador as the country of removal, should such
1
) J
Respondent filed two applications for relief. He filed a Form I-589, Application for
Asylum and for Withholding of Removal, and a Form EOIR-42B, Application for Cancellation
of Removal and Adjustment of Status for Certain Nonpermanent Residents [hereinafter "42B
Guilloty on September 20, 2014, because of respondent's prior criminal conviction for domestic
'
violence. Respondent also conceded that he was not eligible for asylum (as he came to the
United States in 1997), and thus proceeded under an application for withholding of removal
under the Act, and for protection under the Convention Against Torture.
Court admitted into the record Exhibits 1 through 14. The first ten exhibits were marked and
identified in IJ Guilloty's decision on September 20, 2014. The remaining exhibits consist of
respondent's document list, dated September 23, 2015; respondent's amendments to his 428
application and asylum application; respondent's witness list; and respondent's additional
supporting document list, dated June 16, 2016. While some of the exhibits were submitted
primarily in support of respondent's 428 application, the Court found a substantial overlap and
admitted all documents submitted by respondent. The Government did not object. The Court
also heard the testimony of respondent and one witness, which is summarized below. The Court
notes that it has considered all admitted evidence in its entirety, regardless of whether it is
1 This case was originally heard by IJ Guilloty. Pursuant to 8 C.F.R. 1240.l(b), the undersigned IJ has
2
)
A. TESTIMONY OF RESPONDENT
Respondent testified that he was born in El Salvador on December 28, 1971. He started
living with his wife, , in 1990 or 1991. They married in 1997 after they came to the
25 years-old. Their two oldest children were born in El Salvador, while their four youngest
Respondent testified that he left El Salvador because of the gangs. Respondent became a
member of the El Salvadoran Anny in 1988, and reached the position of sergeant by 1997. As a
sergeant, respondent had access to uniforms, boots, arms, and ammunition. In 1996, some gang
members who had themselves been in the army started asking respondent to supply them with
uniform, boots, arms, and ammunition. They also wanted him to train gang members. These
gang members acted at the behest of gang bosses that respondent knew only by their nicknames:
Becha, Tigre, and Mano. Respondent stalled but ultimately supplied the gangs with two
uniforms and two pairs of boots, through a window of a building at the base. Respondent was
Because he believed that the gang would continue to press him for assistance, or to join
the gang, respondent and his wife decided to leave for the United States. They left about a
month later, only after gang members repeatedly tried to contact him. Respondent was never
physically harmed by the gangs, and he has had no contact with the gangs since that time. He
testified that his sister was contacted by the gangs on four occasions, when they sought
Respondent is afraid to return to El Salvador because the gangs will kill him. He does
not think that the gang members who approached him twenty years ago still pose a threat.
3
) _j
However, the gang members in El Salvador have only become more powerful and they know
when people return from the United States. He will have to pay extortion to them or he will be
killed. Respondent reported the gang members to the police, but he is not aware of them doing
the military would not believe him and would not do anything to assist him.
8. TESTIMONY OF
Respondent's wife, , testified that she and her husband left El Salvador
because of his problems with the gangs. She has temporary protected status in the United States.
She was not aware that respondent contacted the police, and believes that he will be killed if he
returns. They lived in a small town in El Salvador and everyone will know that respondent had
Respondent filed his application for relief after May 11, 2005, thus the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in scattered sections of 8 U.S.C.) applies. See
Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). Under the REAL ID Act, an alien applying for
relief from removal bears the burden of proof to demonstrate he or she satisfies the applicable
eligibility requirements and warrants a favorable exercise of discretion. INA 240(c)(4)(A); see
also Matter ofAlmanza-Arenas, 24 I&N Dec. 771 (BIA 2009). An applicant's testimony alone
may be sufficient to sustain his or her burden of proof if it is credible, detailed, and persuasive.
However, if the Court determines that corroborative evidence should be provided, the
applicant must provide it unless such evidence is not reasonably available. INA
4
J
208(b)(l)(B)(ii), 240(c)(4)(B). Where the Court finds that an applicant has not provided
reasonably available corroborating evidence to establish his or her claim, the Court should
consider the applicant's explanation for the absence of such evidence, but need not identify the
Dec. 516, 516 (BIA 2015); see also Gaye v. Lynch, 788 F.3d 519, 530 (6th Cir. 2015) ("[F]ederal
law does not entitle illegal aliens to notice from the Immigration Court as to what sort of
evidence the alien must produce to carry his burden."). Moreover, the Court is not required to
grant respondent a continuance to obtain such evidence. L-A-C-, 26 l&N Dec. at 516.
circumstances and all relevant factors. Matter of J-Y-C-, 24 I&N Dec. 260, 262 (BIA 2007).
Those factors include, but are not limited to: the applicant's demeanor, candor, and
responsiveness; the inherent plausibility of the applicant's account; the consistency between
written and oral statements; the internal consistency of each such statement; the consistency of
such statements with other evidence of record; and, any inaccuracies or falsehoods in such
statements, whether or not such inaccuracy or falsehood goes to the heart of the applicant's
claim. Id; INA 208(b)( l )(B)(iii), 240(c)(4)(C); see also El-Moussa v. Holder, 569 F.3d 250,
256 (6th Cir. 2009). The same credibility standard applies to applications for asylum,
withholding of removal under the Act, and protection under the Torture Convention. Slyusar v.
Holder, 740 F.3d 1068, 1074 (6th Cir. 2014) (citing El-Moussa, 569 F.3d at 256). An adverse
credibility determination is generally "fatal to claims for asylum and relief from removal." Id.
(citing Perlaska v. Holder, 361 F. App'x 655, 661 & n.6 (6th Cir. 2010)).
5
B. WITHHOLDING OF REMOVAL UNDER THE ACT
An alien seeking withholding of removal under INA 24l(b)(3) must establish a "clear
probability" that his or her life or freedom would be threatened in the country directed for
group, or political opinion. INS v. Stevie, 467 U.S. 407, 429-30 (1984); Pilica v. Ashcroft, 388
F.3d 941, 951 (6th Cir. 2004). "Clear probability" means it is more likely than not that the
applicant would be subject to persecution on account of one or more of the enumerated grounds.
Id.; Matter ofC-T-L-, 25 l&N Dec. 341, 343 (BIA 2010). Withholding of removal is mandatory
if the respondent meets his or her burden of proof. See 8 C.F.R. 1208.14(a), 1208.16(d)(l).
One or more of the five enwnerated grounds must be "at least one central reason" for the
persecution. C-T-L-, 25 I&N Dec. at 348. An applicant who establishes past persecution
because of one of the protected grounds is entitled to a presumption that "the applicant's life or
freedom would be threatened in the future." 8 C.F.R. 1208.16(b)(l). The Government can
rebut this presumption by proving by a preponderance of the evidence that there has been a
fundamental change in circwnstances such that the applicant's life or freedom would no longer
be threatened or the applicant could reasonably avoid a future threat by relocating to another part
of the country of removal. Id. If the applicant has not suffered past persecution, he or she can
still establish a future threat of persecution if there is a pattern or practice of persecution against
a group of persons similarly situated to the applicant on account of an enumerated ground, and
the applicant has shown his or her "inclusion in and identification with" such group. 8 C.F.R.
1208. l6(b)(2).
6
1. Persecution
overcome. See Acosta, 19 l&N Dec. at 222. Persecution requires more than a few isolated
infliction of harm, or significant deprivation of liberty. Mikhailevitch v. INS, 146 F.3d 384, 390
(6th Cir. 1998). Although persecution does not include every treatment regarded as offensive,
Holder, 615 FJd 696, 700 (6th Cir. 2010). Actions that might be indicia of persecution include:
property, surveillance, beatings, [and] torture." Gilaj v. Gonzalez, 408 F.3d 275, 285 (6th Cir.
Persecution does not, however, "encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional." Lumaj v. Gonzales, 462 F.3d 574, 577 (6th
Cir. 2006) (citations omitted); see also Ly v. Holder, 421 F. App'x 575, 577 (6th Cir. 2011)
physical abuse - do not compel a finding of persecution." (citations omitted)); Ali v. Ashcroft,
366 F.3d 407, 410 (6th Cir. 2004) ("[P]ersecution is an extreme concept that does not include
every sort of treatment our society regards as offensive." (citation omitted)). Moreover, an
individual's ability to remain in his or her home country after the alleged events of persecution
without further incident suggests that the situation was not grave enough to constitute
persecution. See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006).
7
J
The test for persecution "has both an objective and subjective component." Perkovic v.
INS, 33 F.3d 615, 620 (6th Cir. 1994). An asylum applicant must prove that his or her fear is
both "subjectively genuine and objectively reasonable." Matter of H-M-, 20 l&N Dec. 683, 688
The subjective component focuses on the applicant's own testimony and credibility. Akhtar v.
Gonzales, 406 F.3d 399, 404 (6th Cir. 2005). To prove his or her fear is objectively reasonable,
An alien who establishes that he or she suffered past persecution within the meaning of
the Act shall be presumed to have a well-founded fear of future persecution. 8 C.F.R.
1208.13(b)(l). The IJ must make a specific finding as to whether an applicant has established
past persecution. Matter of D-1-M-, 24 l&N Dec. 448, 451 (BIA 2008). This presumption can
be rebutted by a preponderance of the evidence if the Government establishes either that: (1)
since the time the persecution occurred, conditions in the applicant's country have changed to
such an extent that the applicant no longer has a well-founded fear of persecution if he were to
return; or (2) the applicant could avoid future persecution by relocating to another part of his or
To carry its burden regarding changed conditions, the Government must show that the
changed conditions obviate "the risk to life or freedom related to the original claim," or original
8
....)
2
statutory ground. Matter of A-T- (A-T- 1), 24 I&N Dec. 617, 623 (AG 2008). To carry its
burden regarding relocation, the Goverrunent must show that the alien can relocate to a specific
area of the country where the risk of persecution falls below the well-founded fear level, and that
the alien does not have to provide evidence that he or she will be singled out individually for
persecution if the alien is able to establish that there is a pattern or practice in his or her home
one or more of the five enumerated grounds and that he or she is included in and identifies with
such groups. 8 C.F.R. 1208.13(b)(2)(iii). However, respondent's fear must not be limited to a
particular place within his or her country; he or she "must show that the threat of persecution
exists for him [or her] country-wide." Matter of C-A-L-, 21 I&N Dec. 754, 757 (BIA 1997)
(citations omitted); see also Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006) ("[Respondent]
must show that [he or she has] a well-founded fear of persecution throughout the entire country."
particular social group "must initially identify the particular social group or groups in which
membership is claimed." See A-T- 1, 24 l&N Dec. at 623 n.7 (citing 8 C.F.R. 1208.16(b)); see
also A-T- 2, 25 l&N Dec. 4, 10 (BIA 2009) (citing A-T- 1, 24 I&N Dec. at 623 n.7, and
2 The future harm a respondent fears need not take the exact same form "as the hann [)he ... suffered in the
past." A-T- I, 24 I&N Dec. at 622. Similarly, the "specific agent of the future persecution need not ... be identical
to the specific agent" who inflicted the past persecution. Matter ofA-T-(A-T- 2), 25 I&N Dec. 4, 9 n.4 (BIA 2009).
9
instructing applicant to "includ[e] the exact delineation of any particular social group(s) to which
she claims to belong" on remand). A "particular social group" is a "group of persons all of
whom share a common, immutable characteristic.'' Acosta, 19 I&N Dec. at 233; see also
group [] must be one that the members of the group either cannot change, or should not be
Acosta, 19 I&N Dec. at 233. It may be an innate characteristic "such as sex, color, or kinship
ties," or it may be "a shared past experience such as former military leadership or land
ownership." Id
Two key characteristics of a particular social group are "particularity and social
visibility." Al-Ghorbani, 585 F.3d at 994 (citing Matter ofS-E-G-, 24 I&N Dec. 579, 582 (BIA
2008)). "Particularity" concerns "whether the proposed group can accurately be described in a
manner sufficiently distinct that the group would be recognized, in the society in question, as a
discrete class of persons." S-E-G-, 24 I&N Dec. at 584. "Social visibility" requires that "the
shared characteristic of the group should generally be recognizable by others in the community."
Id. at 586. Because literal "visibility" (meaning omnipresent ocular or on-sight visibility) of the
group is not required to demonstrate social visibility, the Board recently relabeled this element
"social distinction." See Matter of W-R-G-, 26 I&N Dec. 208, 211-12 (BIA 2014). Perceptions
of the group are measured by the view of the relevant society, not solely by the perception of the
applicant's persecutors. Id. at 217-18. The Board emphasized that an applicant for asylum or
withholding must demonstrate that the group is: (1) composed of members who share a common
immutable characteristic; (2) defined with particularity; and (3) socially distinct within the
10
C. PROTECTION UNDER THE TORTURE CONVENTION
An applicant for withholding of removal under the Convention Against Torture bears the
burden of proving it is "more likely than not" that he or she would be tortured if removed to the
22 l&N Dec. 1306, 1311 (BIA 2000); 8 C.F.R. 1208.16(c)(2). In assessing whether the
applicant has satisfied his or her burden of proof, the Court must consider all evidence relevant
to the possibility of future torture, including, but not limited to: (1) evidence of past torture
inflicted upon the applicant; (2) evidence that the a pplicant could relocate to a part of the country
of removal where he or she is not likely to be tortured; (3) evidence o f gross, flagrant, or mass
violations of human rights within the country of removal; and (4) other relevant information of
"Torture" is defined as "any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person." 8 C.F.R. 1208.lS(a)(l). Torture does not refer
to general violence; rather, the referenced activity must be the very torture that the applicant
claims to fear. S-V-, 22 l&N Dec. at 1313. Additionally, "the existence of a consistent pattern of
gross, flagrant, or mass violations of human rights in a particular country does not .. . constitute
a sufficient ground for determining that a particular person would be in danger of being
subjected to torture upon his or her return to that country." Id. (citation omitted); see also
Palma-Campos v. Holder, 606 F. App'x 284 (6th Cir. 2015). The Sixth Circuit requires that an
alien demonstrate a "particularized threat of torture" for withholding of removal under the
Torture Convention. Almuhtaseb, 453 F.3d 743; see also Castellano-Chacon v. INS, 341 F. 3d
533, 551-52 (6th Cir. 2003) ("8 C.F.R. 20 8.16(c)(4) focuses on the particularized threat of
torture, rather than any other form of persecution, should the alien return to the country at issue,
11
although the torture must be inflicted, instigated, consented to, or acquiesced in, by state
actors.").
The severe pain or suffering must be inflicted on the applicant for such purposes as: (1)
for an act he or she or a third person committed or is suspected of having been committed; (3)
intimidating or coercing him or her or a third person; or (4) for any reason based on
discrimination of any kind. 8 C.F.R. 1208.18( a)( 1). In order to constitute "torture," the "act
must be directed against a person in the offender's custody or physical control." 8 C.F.R.
1208.18(a)(6); see also Matter of J-E-, 23 I&N Dec. 291, 299 (BIA 2002). Torture is an
"extreme form of cruel and inhuman treatment" and does not include pain or suffering arising
include sanctions that defeat the object and purpose of the Torture Convention. 8 C.F.R.
1208.18(a)(3).
Finally, the pain or suffering must be inflicted "by or at the instigation of or with the
C.F.R. 1208.18(a)(l). "Acquiescence" requires that the public official have prior awareness of
the activity and thereafter breach his or her legal responsibility to intervene to prevent such
activity. 8 C.F.R. 1208.18(a)(7); see also Ali, 237 F.3d at 597. Acquiescence includes the
"willful blindness" of the public official to the activity. Amir v. Gonzales, 467 F.3d 921, 927
(6th Cir. 2006). However, a government's inability to control private parties does not equate to
12
IV. DISCUSSION AND ANALYSIS
The Court denies respondenes applications for withholding of removal under the Act and
protection under the Torture. Convention. The Court finds that respondent failed to present
respondent failed to allege a cognizable particular social group under the Act and consequently,
did not meet his burden of proof for withholding of removal under the Act. Respondent
similarly failed to present any evidence to support his claim for protection under the Torture
Convention.
The Court does not find the testimony of the respondent to be credible because it was
implausible or differed with other evidence in the record on significant points. First, respondent
testified that he left El Salvador one month after he was discharged from the army in 1996.
However, in his applications for relief, he indicated that he left El Salvador in June 1997. He
also indicated in his asylum application, Exh. 2, Tab A at 29, that he hid at his uncle's home for
Respondent also claimed that he did not tell anyone in the army about the threat that the
gang posed because no one would believe him or do anything. Yet, the army summarily
dismissed him upon finding out that he had given uniforms to the gang members, which is
implausible if the army was unwilling to take action regarding the gangs. Finally, respondent
testified that his sister received four inquiries from the gang members about his whereabouts in
the United States in the two years after he left El Salvador. However, the documentary evidence
contradicts his claim. His sister submitted a statement indicating that she was contacted by the
gang twice in 2008, rather than the four times that respondent alleged. Exh. 5, Tab E.
13
8. WITHHOLDING OF REMOVAL UNDER THE ACT
The Court denies respondent's application for withholding of removal under INA
24I(b)(3). Respondent testified that he is afraid to return to El Salvador because of the gangs.
his attorney identified his particular social group as a person who fled the gangs who is returning
to El Salvador after many years in the United States. The Government argues that respondent
did not present credible testimony, and that his testimony did not support a link between his fear
and a protected ground. According to the Government, this case is no different from other
decisions by the Board, where returnees from the United States were not accorded protected
status.
The Court finds that the case law does not support respondent's argument that he is a
member of a particular social group. The Sixth Circuit Court of Appeals, in whose jurisdiction
this case arises, has held that "being perceived as having money as a result of living in the United
States is not a group membership recognized by the INA." Saucedo-Solis v. Holder, 556 F.
App'x 471 (6th Cir. 2014). In that case, similar to this case, the respondent argued that he
would be kidnapped by the Zetas gang because he would be presumed to have money based on
his lengthy residence in the United States, and he would ultimately be killed because he did not
have the money to pay the ransom. See generally id. Similarly, in Cristobal-Leon v. Holder,
510 F. App'x 397 (6th Cir. 2013), the Sixth Circuit held that the particular social group identified
by the respondent, namely, "Guatemalans who have lived in the United States and are perceived
to have accumulated wealth," is too general and amorphous to qualify as a particular social
group.
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Here, regardless of whether respondent is characterized as being from the United States
or being a member of any group that is perceived to have money, such a characterization is not a
cognizable social group within the meaning of the Act. It is simply not a group that is perceived
Furthermore, the evidence presented does not establish a nexus between the gang violence in El
Salvador and the status of respondent. A nexus between the persecution and the membership in
a protected group must be established by the respondent, and he has failed to do so. See Cruz
,
Ibarra v. Lynch, 632 F. App x 824 (6th Cir. 2015).
Other similar claims have been rejected by the both Sixth Circuit and the Board of
,,
Immigration Appeals ("BIA" or "Board ). In Matter of A-M-E & J-G-U, 24 l&N 69 (BIA
,
2007), the Board held that the respondents status as affluent Guatemalans who were subject to
class hatred by gangs did not constitute a particular social group to support an application for
asylum. Moreover, fear of general, widespread violence in a country that affects the entire
population does not support a claim for asylum. See generally Matter of Sanchez and Escobar,
Therefore, the Court finds that respondent is not eligible for withholding because he
canno t establish membership in a cognizable particular social group that is protected under the
Act. Moreover, respondent cannot show a nexus between the unfortunate violence in El
Salvador and the status of returning deportees from the United States. Therefore, the Court
Respondent also seeks protection under the Convention Against Torture. As noted
above, the Court finds that respondent is not credible. Respondent's entire basis for relief
15
concerns his purported interactions with gang members, and his testimony differed on these
material aspects. Therefore, the Court denies his application for protection under the Torture
Convention as a matter of discretion. Alternatively, the Court denies his application on the
establishing that he would be tortured by government officials or with their consent if removed
to El Salvador. He presented no evidence that he has ever been arrested, detained, or abused by
El Salvadoran officials, nor did he present evidence sufficient to establish that the criminals,
gangs or cartels operate at the behest of the El Salvadoran officials or with their acquiescence.
Respondent simply did not demonstrate that it was more likely than not that he would be tortured
upon his return to El Salvador, so his application for protection must also be denied.
V.ORDERS
July 8, 2016
Date
Appeal Due Date: August 8, 2016
16