Francisco A. Romero Arrazabal v. Loretta E. Lynch

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-2413

FRANCISCO ALBERTO ROMERO ARRAZABAL,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals

No. A045-091-341

____________________

SUBMITTED MARCH 10, 2016 * — DECIDED MAY 4, 2016

____________________

Before WOOD, Chief Judge, and POSNER and ROVNER, Cir-

cuit Judges.

WOOD, Chief Judge. Francisco Alberto Romero Arrazabal,

a Salvadoran with ties to the Mara Salvatrucha gang, applied

for withholding of removal and relief under the U.N. Con-

* After examining the briefs and record, we have concluded that oral

argument is unnecessary. The appeal is therefore ready for disposition.

See FED. R. APP. P. 34(a)(2)(C).

2 No. 15-2413

vention Against Torture and Other Cruel, Inhuman or De-

grading Treatment or Punishment (the CAT). Arrazabal fears

that if he is returned to El Salvador, he will be persecuted by

his gang, a rival gang, or the police. An immigration judge

found his testimony incredible and denied all relief; the

Board of Immigration Appeals upheld that decision.

Arrazabal filed a timely petition for review, which we grant.

When Arrazabal first entered the United States in 1995 at

the age of 19, he was given the status of a lawful permanent

resident alien, based on the fact that his mother and sister

were naturalized citizens. Within a year, however, he had

become involved with the Los Angeles chapter of the Mara

Salvatrucha gang, known as MS-13, which has members in

both the United States and El Salvador. (It is unclear, though

immaterial at this point, when Arrazabal initially joined the

gang: he told an asylum officer that he joined in 1992 while

still in El Salvador, but he testified before the immigration

judge that he joined in 1996 after his move to the United

States.) Arrazabal’s gang association quickly led to run-ins

with the law. He was convicted and imprisoned for one year

in California for illegal gun possession, and then he wound

up back in prison for two years for possessing cocaine, a vio-

lation of his probation. While in prison he obtained several

prominent tattoos identifying him as a member of MS-13.

This criminal activity led in 2001 to the revocation of

Arrazabal’s status as a lawful permanent resident alien. He

applied at that time for asylum, but his application was de-

nied and he was removed to El Salvador. About a decade lat-

er, Arrazabal attempted to reenter the United States illegally

near Hidalgo, Texas. He failed: Border Patrol agents caught

him and charged him with being present in the United States

No. 15-2413 3

unlawfully after his removal. See 8 U.S.C. § 1326. He pleaded

guilty to that offense and received a 27-month sentence.

While his criminal case was pending, Arrazabal learned

that the 2001 removal order would be reinstated. See 8 U.S.C.

§ 1231(a)(5). At this point, he decided to seek asylum. During

a credible-fear interview, see 8 C.F.R. § 241.8(e), he told an

officer that he feared he would be killed if he were returned

to El Salvador. He wanted to quit MS-13, he explained, but

his identifying tattoos made him a target for fellow MS-13

members, for rival gangs, and for the Salvadoran police. The

asylum officer found that Arrazabal had shown a reasonable

probability that he had been tortured in his home country

during police beatings in 2008 and 2010 for being a suspect-

ed MS-13 member, and that these beatings were sufficient to

create a reasonable possibility that he would be tortured if

returned there.

Because his 2001 removal order made him ineligible for

asylum, Arrazabal then applied for withholding of removal

and CAT protection. At a hearing before an immigration

judge on his revised application, he testified that after his

removal from the United States in 2001, he had tried to earn

an honest living as a bricklayer in El Salvador. He was sty-

mied by his tattoos, which exposed him as an MS-13 mem-

ber and invited harassment from fellow gang members, who

wanted him to return to active participation in the gang and

extorted weekly $10 payments from him. Arrazabal also de-

scribed frequent harassment at the hands of the Salvadoran

police. They arrested him 30 times without cause, and twice

beat him with batons during interrogations. To corroborate

these assertions, Arrazabal submitted a number of exhibits,

including newspaper articles about gang violence in El Sal-

4 No. 15-2413

vador and letters from relatives (his mother, mother-in-law,

sister, and uncle) expressing concern that he would be mur-

dered by MS-13 if he were sent back.

The immigration judge denied Arrazabal’s application,

largely on grounds of lack of credibility. In particular, the

judge did not believe that Arrazabal had refrained entirely

from criminal activity while he was active in MS-13, that he

had been framed by U.S. police officers on two separate oc-

casions, that U.S. public defenders had represented him in-

adequately, that the immigration judge who ordered him

removed was racist, that he suffered abuse by Salvadoran

police, or that he had received death threats from his fellow

gang members.

Addressing Arrazabal’s request for withholding of re-

moval, the immigration judge found no credible evidence

that upon his return he would be likely to be harmed by MS-

13, a rival gang, or the police. The judge observed that Ar-

razabal had lived in El Salvador for years without suffering

serious harm. Moreover, the judge added, even if the evi-

dence supported a finding that he would be harmed upon

his return, Arrazabal could not show the necessary link be-

tween any such harm and a status protected by the statute

(race, religion, nationality, membership in a particular social

group, or political opinion, see 8 U.S.C. § 1231(b)(3)(B)). Al-

though former gang members can constitute a “particular

social group” for purposes of withholding of removal,

see Benitez-Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009),

and Arrazabal’s tattoos made his association quite visible,

the immigration judge thought that Arrazabal could not

show that his association with MS-13 was severed, because

No. 15-2413 5

he had not taken any outward steps to renounce his mem-

bership in the gang.

As for Arrazabal’s claim for CAT relief, the immigration

judge concluded that he had not shown that it was more

likely than not that a public official would acquiesce in his

torture. Not only, in the judge’s view, was Arrazabal’s testi-

mony about being harmed in police custody incredible, but

also it was not corroborated in any way—not by medical re-

ports, witness statements, or otherwise. The immigration

judge’s opinion drew no distinction between withholding

and deferral of removal for purposes of CAT relief, probably

because it appears on the face of the record that Arrazabal is

eligible to apply for the withholding remedy. †

Faced with these unfavorable rulings, Arrazabal request-

ed a continuance so that he could submit more evidence, in-

cluding documents showing the level of gang violence in El

Salvador and receipts confirming that his mother had sent

him money with which to pay off the gang. The immigration

judge denied the request as untimely and added that the

proposed evidence would not have changed his decision.

Arrazabal appealed to the Board of Immigration Appeals,

but it upheld the immigration judge’s determination as not

clearly erroneous.

† See Executive Office of Immigration Review Fact Sheet, “Asylum

and Withholding of Removal, Convention Against Torture Protections”

at 8, Jan. 15, 2009, available at https://www.justice.gov/sites/default/

files/eoir/legacy/2009/01/23/AsylumWithholdingCATProtections.pdf

(last visited March 21, 2016); see also Wanjiru v. Holder, 705 F.3d 258, 263–

64 (7th Cir. 2013).

6 No. 15-2413

In his petition for review Arrazabal first challenges the

immigration judge’s adverse credibility determination. He

maintains that the judge should have accepted his account of

his interactions with MS-13 and the police in El Salvador. But

our review of an immigration judge’s adverse-credibility

finding is deferential: we must uphold it so long as it is sup-

ported by substantial evidence. See Tawuo v. Lynch, 799 F.3d

725, 727 (7th Cir. 2015). The immigration judge’s conclusions

here meet that standard. Given Arrazabal’s implausible

claims about police misconduct in the United States, the

judge may have thought he had a tendency to embroider.

That in turn may have led the judge to require greater cor-

roboration that police misconduct in El Salvador threatened

Arrazabal himself. See Zeqiri v. Mukasey, 529 F.3d 364, 371

(7th Cir. 2008); Fedosseeva v. Gonzales, 492 F.3d 840, 847

(7th Cir. 2007).

Notwithstanding the adverse-credibility finding,

Arrazabal next argues, the immigration judge erred in find-

ing that there was “no credible evidence” that he would face

a clear probability of persecution if returned to El Salvador.

This point has more traction. We agree with Arrazabal that

the immigration judge overlooked key evidence. For exam-

ple, there is no sign that the judge considered an affidavit

from Arrazabal’s mother-in-law, with whom he had lived in

El Salvador. Her testimony corroborated Arrazabal’s account

of his arrest and beating by the Salvadoran police on account

of his perceived gang affiliation, and his statement that MS-

13 members threatened to murder him and his family be-

cause of his refusal to participate in the gang. The affidavit

had been read into the record by Arrazabal’s translator dur-

ing the hearing. At the time the immigration judge said that

No. 15-2413 7

he would consider its contents, but he never referred to it in

his decision.

This was not a harmless oversight: it led the immigration

judge to state, erroneously, that Arrazabal’s “claims that he

was beaten by the police are not corroborated.” The mother-

in-law’s affidavit may not have been as specific as one would

wish, but it did provide at least some corroboration for the

withholding and CAT claims. The immigration judge also

overlooked a letter from Arrazabal’s uncle expressing con-

cern that Arrazabal would be murdered by gang members if

returned to El Salvador. We express no view about the accu-

racy of these documents. The problem is that the immigra-

tion judge’s decision says nothing about them, nor does it

grapple with the views of Arrazabal’s relatives about the life-

threatening danger they believed he would face upon return.

Compounding our concerns about the immigration

judge’s analysis is his rejection of Arrazabal’s contention that

there was “no way to get out of the gang.” For this important

finding, the judge relied exclusively on a feature article that

appeared on a news website. The article touted the success

of one pilot program in San Salvador that helps former gang

members find jobs. But the immigration judge read too

much into the article. Its description of one company’s deci-

sion to hire 30 former gang members does not establish that

throughout El Salvador (a country of more than 6 million

people), all “those who truly want to leave the gang and

who are willing to actually try to leave the gang” (as the

immigration judge put it) can do so.

Even more problematic is the immigration judge’s deter-

mination that even if Arrazabal had been harassed by MS-13

members in El Salvador and could show a clear probability

8 No. 15-2413

of persecution if he were to be returned there, he still would

not qualify for withholding because he had not shown that

his persecution was because of his membership in a particu-

lar social group. The immigration judge acknowledged that

this court has held that a group comprised of “tattooed, for-

mer Salvadoran gang members” would qualify. See Benitez-

Ramos, 589 F.3d at 428–29. Nevertheless, he said that

Arrazabal’s failure to take outward steps to renounce gang

membership (meaning, perhaps, his failure to undergo the

painful and expensive process of tattoo removal) automati-

cally meant that he was an active rather than a former gang

member and thus not a member of the latter social group.

He may want to leave the gang, the immigration judge said,

but “[g]ang members who have subjectively decided to leave

are not socially distinct because only they know individually

their own thoughts.”

But the record shows that Arrazabal was not asking any-

one to read his mind, and so the immigration judge was

wrong to suggest that renunciation of membership required

Arrazabal to take more visible steps to distance himself from

the gang. Arrazabal testified that he did take objectively as-

certainable steps: he repeatedly rebuffed the efforts of MS-13

members to recruit him to commit crimes and regularly paid

extortion money to avoid harm. If we accept that testimony

as true (as the immigration judge implicitly did in this por-

tion of his analysis), there is little more Arrazabal could have

done to distance himself from the gang without putting him-

self at even more risk of reprisal.

We are also concerned about the manner in which the

immigration judge rejected Arrazabal’s claim for CAT relief.

The judge acknowledged that it was possible that Arrazabal

No. 15-2413 9

would be tortured in El Salvador with at least the acquies-

cence of the police, yet he concluded without elaboration

that Arrazabal had not met his burden of showing that result

was “more likely than not.” See 8 C.F.R. § 1208.16(c)(2–3).

But that oft-repeated phrase must be understood pragmati-

cally in the immigration context, because there is no reliable

data to show just how great an applicant’s risk of torture is.

See, e.g., Gutierrez-Rostran v. Lynch, 810 F.3d 497, 501 (7th Cir.

2016); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135–36

(7th Cir. 2015); Yi–Tu Lian v. Ashcroft, 379 F.3d 457, 461

(7th Cir. 2004). “All that can be said responsibly on the basis

of actually obtainable information is that there is, or is not, a

substantial risk that a given alien will be tortured if removed

from the United States.” Rodriguez-Molinero, 808 F.3d at

1135–36.

Given these problems, Arrazabal’s case must be remand-

ed to the Board for further proceedings. Because this is so,

we need not address the question whether the immigration

judge abused his discretion in denying Arrazabal’s request

for a continuance. Accordingly, we GRANT the petition for

review, VACATE the order of removal, and REMAND for

further proceedings consistent with this opinion.