Brayan Guzman Orellana v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-1793

____________

BRAYAN ANTONIO GUZMAN ORELLANA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A216-282-709)

Immigration Judge: Leo A. Finston

Argued on December 10, 2019

Before: RESTREPO, ROTH and FISHER, Circuit Judges

(Opinion filed: April 17, 2020)

J. Wesley Earnhardt

Troy C. Homesley, III

Brian Maida (ARGUED)

Cravath, Swaine & Moore

825 Eighth Avenue

Worldwide Plaza

New York, NY 10019

Counsel for Petitioner

Madeline Henley

Greg D. Mack (ARGUED)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

O P I N I ON

ROTH, Circuit Judge:

After overhearing the murder of his two next-door

neighbors and facing repeated threats from local gang

members for his perceived role in assisting law enforcement,

petitioner Brayan Antonio Guzman Orellana left his home in

El Salvador and entered the United States seeking relief

2

pursuant to the Immigration and Nationality Act (INA) and the

Convention Against Torture (CAT). The Immigration Judge

(IJ) denied his application, and the Board of Immigration

Appeals (BIA) dismissed his appeal. We must now decide

three issues: (1) whether persons who publicly provide

assistance to law enforcement against major Salvadoran gangs

constitute a cognizable particular social group for purposes of

asylum and withholding of removal under the INA, (2) whether

Guzman has established that he suffered past persecution on

account of anti-gang political opinion imputed to him, and (3)

whether the BIA correctly applied the framework we

enunciated in Myrie v. Attorney General1 in denying Guzman

relief under the CAT. For the reasons that follow, we hold that

persons who publicly provide assistance against major

Salvadoran gangs do constitute a particular social group, that

Guzman has failed to meet his burden to show that imputed

anti-gang political opinion was a central reason for the

treatment he received, and that the BIA erred in its application

of Myrie to Guzman’s application. Accordingly, we will

vacate the BIA’s decision and remand this case for further

proceedings on Guzman’s petition for relief from removal.

I. BACKGROUND AND PROCEDURAL HISTORY

Guzman is a native of El Salvador. He grew up in a

neighborhood controlled by Mara Salvatrucha, a gang

commonly known as MS-13. On October 5, 2017, when

Guzman was 18 years old, his two next-door neighbors were

murdered. Earlier that night, a member of MS-13 had warned

Guzman’s family “not to speak to or call the police regarding

1

855 F.3d 509 (3d Cir. 2017).

3

whatever [they] saw or heard in the next couple of hours.”2

Shortly thereafter, Guzman overheard the murder as it took

place.

About a week later, the police visited Guzman’s

neighborhood and, in front of Guzman’s house, questioned him

about his missing neighbors. Fearing that harm would come to

him and his family if he cooperated with the police, Guzman

told them that he knew nothing. However, Teco, a former

classmate of Guzman’s and an MS-13 member who may have

been involved in the murder, witnessed Guzman talking to the

police. At the end of the conversation, the police climbed over

the wall between Guzman’s house and his neighbors’ and

discovered the neighbors’ bodies in their backyard.

A few days after Guzman was seen with the police,

Teco and four other MS-13 members ambushed and attacked

him on his way home from school. Teco made it clear that they

did so because they believed Guzman was a “snitch.”3

Guzman, bruised from the encounter, left his home the next

day to stay with his aunt who lived an hour away. A few days

later, Guzman, again on his way home from school, was pulled

into an alley by Teco and another MS-13 member named

Pelón. Pelón put a gun to Guzman’s head and told him he had

to “cooperate with the gang.”4 Guzman refused but was

ultimately let go.

After this second encounter, Guzman decided that he

was no longer safe in El Salvador due to the pervasive gang

2

Administrative Record (AR) 722–23.

3

Id. at 727.

4

Id. at 728.

4

presence there. He fled the country in November 2017 and

applied for admission when he entered the United States a

month later. The Department of Homeland Security detained

him and served him with a Notice to Appear charging him as

being removable for failing to present any valid document

required for entry.5 Guzman filed an application for asylum

and withholding of removal under the INA and for deferral or

withholding of removal under the CAT. In support of his

application for relief under the INA, he claimed that he had

suffered past persecution in El Salvador and that, if removed,

there was a clear probability that his life or freedom would be

threatened on account of his imputed membership in the

particular social group of “complaining witnesses against

major Salvadoran gangs” and his imputed anti-gang political

opinion.

In support of his application for relief under the CAT,

Guzman claimed that it is more likely than not that he would

be subject to torture or death if returned to El Salvador, citing

the fact that MS-13 members in his neighborhood knew him

and had been looking for him. His application was

supplemented by an affidavit from a licensed clinical social

worker who interviewed him about the series of events

involving the murder and diagnosed him with Post-Traumatic

Stress Disorder (PTSD).

The IJ denied Guzman’s application despite finding

Guzman to be credible. The IJ first held that Guzman was not

eligible for relief under the INA because he could not show that

he suffered past persecution or that his life or freedom would

be threatened on either ground he had asserted. According to

5

Guzman is still being detained.

5

the IJ, Guzman was not a “complaining witness” since he did

not provide any information to or file a complaint with the

police and since imputed membership in a particular social

group is insufficient for purposes of seeking relief under the

INA. In addition, the IJ stated that Guzman presented no

evidence suggesting that MS-13 deemed his actions to be an

expression of anti-gang political opinion. The IJ then held that

Guzman was also ineligible for relief under the CAT after

finding that it was not more likely than not that Guzman would

be tortured upon returning to El Salvador and that Guzman had

not established that the Salvadoran government consented to

or acquiesced in gang violence against Salvadorans.

The BIA dismissed Guzman’s appeal. With respect to

Guzman’s application for relief under the INA, it held that

“complaining witnesses against major Salvadoran gangs” do

not constitute a particular social group and that Guzman failed

to show that he was targeted by MS-13 on account of any

imputed political opinion. With respect to Guzman’s

application for relief under the CAT, the BIA affirmed the IJ’s

determination that Guzman was not likely to be subject to

torture upon removal but did not discuss whether the

Salvadoran government would consent to or acquiesce in any

torture Guzman might suffer upon removal. Guzman

petitioned this Court for review of the BIA’s final order of

removal, arguing that the BIA erred in concluding that (1) he

was not an imputed member of a particular social group, (2) he

was not persecuted on account of his political opinion, and (3)

he was not eligible for relief under the CAT.

II. DISCUSSION

We have jurisdiction over this timely petition for review

6

of a final order of removal under 8 U.S.C. §§ 1252(a)(1) and

1252(b)(1). Although our jurisdiction only extends to final

orders of removal and thus only to decisions of the BIA,6 we

also review the IJ’s decision to the extent it is adopted,

affirmed, or substantially relied upon by the BIA.7

We must resolve three issues in this appeal. The first

issue—whether persons who publicly provide assistance to law

enforcement against major Salvadoran gangs constitute a

particular social group for purposes of the INA—presents a

mixed question of law and fact. We review the BIA’s legal

conclusion as to the existence of a particular social group de

novo while reviewing its underlying factual conclusions for

substantial evidence.8 The substantial evidence standard

requires us to defer to factual findings below as long as they

are supported by reasonable, substantial, and probative

evidence on the record considered as a whole.9 However,

deference is not due “where findings and conclusions are based

on inferences or presumptions that are not reasonably

grounded in the record, viewed as a whole,” and the BIA “is

not permitted simply to ignore or misconstrue evidence.”10

The second issue—whether Guzman has established that he

suffered past persecution because of anti-gang political opinion

6

Abdulai v. Ashcroft, 239 F.3d 542, 548–49 (3d Cir. 2001).

7

Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011), as

amended (Jan. 13, 2012); Camara v. Att’y Gen., 580 F.3d 196,

201 (3d Cir. 2009), as amended (Nov. 4, 2009).

8

See S.E.R.L. v. Att’y Gen., 894 F.3d 535, 542–43 (3d Cir.

2018).

9

Garcia, 665 F.3d at 502 (internal quotation marks omitted).

10

Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir.

2010) (internal quotations omitted).

7

imputed to him—presents a factual question subject to the

substantial evidence standard.11 Finally, the third issue—

whether the BIA correctly applied Myrie to the instant case—

presents a mixed question of law and fact which we review

under the same standards as the first issue.12

A. Guzman’s Application for Relief under the INA

To be eligible for asylum under the INA, an applicant

must demonstrate refugee status by showing that he has

suffered past persecution or has a well-founded fear of future

persecution on account of his race, religion, nationality,

membership in a particular social group, or political opinion.13

A fear of future persecution is well-founded if there is a

reasonable probability that persecution will occur, and a

showing of past persecution creates a rebuttable presumption

that the fear is well-founded.14 In addition, the applicant must

establish that one of the five statutorily protected grounds “was

or will be at least one central reason” for his persecution and

11

See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481–84 (1992)

(analyzing the causal connection between political opinion and

persecution as a factual question); Cruz-Diaz v. I.N.S., 86 F.3d

330, 331–32 (4th Cir. 1996), as amended (May 29, 1996)

(same).

12

See Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010)

(“[W]e will uphold the BIA’s reversal of the IJ’s grant of CAT

relief if there is substantial evidence supporting the BIA’s

conclusion that the IJ clearly erred in finding a likelihood of

torture, or if we determine that the alleged mistreatment does

not legally constitute torture.”).

13

8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A).

14

8 C.F.R. § 1208.13(b).

8

that the harm was caused by the government or by forces that

the government is unable or unwilling to control.15 To be

eligible for withholding of removal under the INA, which is a

separate form of relief, the standard is higher still, as the

applicant must demonstrate that there is a “clear probability”

that, upon his removal, his life or freedom will be threatened

on account of one of the protected grounds.16

Addressing Guzman’s first claim that he is eligible for

asylum and withholding of removal under the INA on account

of his imputed membership in a particular social group

consisting of complaining witnesses against major Salvadoran

gangs, we conclude that remand is appropriate. To establish a

particular social group, an applicant must show that it is “(1)

composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question.”17 After our review of

the situation in El Salvador, we conclude that the group of

persons, who publicly provide assistance to law enforcement

against major Salvadoran gangs satisfies all three criteria and,

thus, constitutes a particular social group.18

15

8 U.S.C. § 1158(b)(1)(B)(i); Kibinda v. Att’y Gen., 477 F.3d

113, 119 (3d Cir. 2007).

16

Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (internal

quotation marks omitted).

17

S.E.R.L., 894 F.3d at 547; see also Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237

(BIA 2014).

18

The government urges us to apply deference under Chevron

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837

(1984), to the BIA’s determination on this question, albeit with

respect to Guzman’s formulation of the group. However,

9

A shared common immutable characteristic can be “an

innate one such as sex, color, or kinship ties, or in some

circumstances . . . a shared past experience such as former

military leadership or land ownership.”19 We held previously

in Garcia v. Attorney General that persons who have assisted

law enforcement against violent gangs that threaten

communities in Guatemala share a common, immutable

characteristic because they have the shared experience of

assisting law enforcement, which is based on past conduct that

cannot be undone and that they should not be asked to undo.20

Garcia concerned a witness who testified in court about

a gang-related murder.21 Since Guzman did not testify in court,

the BIA considered his case to be distinguishable from Garcia.

That is too narrow a reading. In our analysis, it is

indistinguishable whether someone testifies in court or

publicly provides out of court assistance to law enforcement.

In both circumstances, that person will have been visible to the

public and is likely be targeted because of his cooperation.

Chevron deference is inapplicable here because we are

deciding as a matter of law whether our precedent—and that of

other courts—forecloses relief for Guzman. See Akins v. FEC,

101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (“There is

therefore no reason for courts—the supposed experts in

analyzing judicial decisions—to defer to agency

interpretations of the Court’s opinions.”), vacated on other

grounds by FEC v. Akins, 524 U.S. 11 (1998).

19

Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),

overruled on different grounds, 19 I. & N. Dec. 439 (BIA

1987).

20

665 F.3d at 504.

21

Id. at 500.

10

In Garcia, we distinguished the witness who testified in

court and whose identity was “known to her alleged

persecutors” from “confidential informants whose aid to law

enforcement was not public.”22 Here, Guzman did not

communicate secretly with the police. His ordeal began when

he was seen in public being questioned by and talking to the

police. His identity was known to his persecutors just as it

would be if he had testified in court. The same logic that led

to our conclusion in Garcia compels us now to hold that

persons who publicly provide assistance to law enforcement

against major Salvadoran gangs similarly share a common,

immutable characteristic.

A group consisting of persons who publicly provide

assistance to law enforcement against major Salvadoran gangs

is also defined with particularity.23 Particularity requires “a

clear benchmark for determining who falls within the group”;

a proposed group must “be discrete and have definable

boundaries”—not “amorphous, overbroad, diffuse, or

22

Id. at 504 n.5.

23

The BIA in its decision addressed only the immutability and

social distinction prongs of the particular social group test.

Ordinarily, the proper course would be to remand to the BIA

to determine whether the group we now define satisfies the

particularity requirement. However, “where application of the

correct legal principles to the record could lead only to the

same conclusion, there is no need to require agency

reconsideration.” Yusupov v. Att’y Gen., 650 F.3d 968, 993 (3d

Cir. 2011) (internal quotation marks omitted). The

particularity requirement for this group we have defined

presents such a case.

11

subjective.”24 Like a group of witnesses who have testified in

court against violent gangs, a group of witnesses who have

publicly provided assistance to law enforcement against major

Salvadoran gangs “has definable boundaries and is equipped

with a benchmark for determining who falls within it”

sufficient to satisfy the particularity requirement.25

Finally, this group is socially distinct within Salvadoran

society. To be socially distinct does not mean “ocular”

visibility. “[R]ather [the group] must be perceived as a group

by society.”26 Providing assistance to law enforcement in

public, like testifying in court, “lends itself to societal

recognition,” since “all are readily aware of the group and its

members, not just those that are being provided information.”27

28 29

We thus hold that a group consisting of witnesses who

have publicly provided assistance to law enforcement against

major Salvadoran gangs meets all three criteria for being a

24

M-E-V-G-, 26 I. & N. Dec. at 239.

25

Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019).

26

M-E-V-G-, 26 I. & N. Dec. at 240.

27

See Radiowala, 930 F.3d at 583.

28

Decreto No. 1029/2006, Ley Especial para la Proteccion de

Victimas y Testigos [“Special Law for the Protection of

Victims and Witnesses”], (May 11, 2006), at p. 2, available at

https://www.asamblea.gob.sv/sites/default/files/documents/de

cretos/171117_072930683_archivo_documento_legislativo.p

df (stating that the law applies to victims, witness, or other

persons who are at risk or in danger due to their direct or

indirect intervention in the investigation of a crime).

29

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.

2013).

12

particular social group. Our analysis remains the same even

though Guzman did not actually provide information to the

Salvadoran police. Contrary to the IJ’s unsupported assertion,

asylum and withholding of removal under the INA may be

granted on the basis of imputed, not just actual, membership in

a particular social group.30

The BIA did not address several other elements of

Guzman’s application for relief under the INA—including

whether Guzman is an imputed member of the group we

described; whether the harm that Guzman has suffered in El

Salvador, or will with reasonable probability suffer, rises to the

level of persecution; whether Guzman’s imputed membership

in that group is a central reason for his persecution; whether

the Salvadoran government is unable or unwilling to control

MS-13; and whether it is clearly probable that Guzman’s life

or freedom will be threatened upon removal. We leave these

matters to the BIA on remand.31

Addressing Guzman’s second argument that he is

eligible for relief under the INA because he has been subject to

persecution and has a well-founded fear of future persecution

on account of his imputed anti-gang political opinion, the

BIA’s determination that Guzman has failed to show

persecution on account of political opinion is supported by

substantial evidence. It was not on account of his political

opinions that he was persecuted but on account of his apparent

cooperation with the police. Guzman claims that anti-gang

political opinion was attributed to him based on his perceived

cooperation with the police and refusal to join MS-13. In

30

Amanfi v. Ashcroft, 328 F.3d 719, 729–30 (3d Cir. 2003).

31

Cf. Garcia, 665 F.3d at 504.

13

determining whether an applicant was persecuted because of

an imputed political opinion, we focus on whether “the

persecutor attributed a political opinion to the victim, and acted

upon the attribution.”32 However, Guzman presents no

evidence indicating that Teco, Pelón, or the other MS-13

members who battered him did so for any reason other than his

perceived assistance to the police; nor is there evidence that

any of them believed his refusal to join MS-13 was a political

expression. In addition, neither of the two statements made to

Guzman—that Guzman was a snitch and that he needed to

collaborate with the gang—appears to be politically motivated,

suggesting that Guzman’s imputed political opinion was not a

central reason for his treatment. Because the evidence does not

compel a contrary conclusion, we are not prepared to disturb

the BIA’s ruling that Guzman failed to carry his burden.33

32

Espinosa-Cortez, 607 F.3d at 108 (internal quotation marks

omitted).

33

See Elias-Zacarias, 502 U.S. at 483 (rejecting the notion that

an applicant must provide direct proof of his or her persecutor’s

motives, but adding that “since the statute makes motive

critical, [the applicant] must provide some evidence of

[motive], direct or circumstantial”); Cruz-Diaz, 86 F.3d at 332

(holding that the applicant’s refusal to join the guerrillas in El

Salvador “does not compel the conclusion that [he] will be

subjected to persecution or other harm based on actual or

imputed opinion, any more than any other citizen of El

Salvador who participated in or refused to participate in the

activities of either the guerrillas or the army”); cf. Tilija v. Att’y

Gen., 930 F.3d 165, 169–70, 172 (3d Cir. 2019) (holding that

petitioner put forward a prima facie political asylum claim after

providing credible testimony about being attacked and

threatened for supporting a specific political party).

14

B. Guzman’s Application for Relief under the CAT

Article 3 of the CAT prohibits signatory parties to the

Convention, including the United States, from expelling,

returning, or extraditing a person to another country where

“there are substantial grounds for believing that [that person]

would be in danger of being subjected to torture.” We have

held that for an act to constitute torture, it must (1) cause severe

physical or mental pain or suffering, (2) be intentionally

inflicted, (3) be done for an illicit or proscribed purpose, (4)

occur by or at the instigation of or with the consent or

acquiescence of a public official who has custody or physical

control of the victim, and (5) not arise from lawful sanctions.34

To establish acquiescence, an applicant must demonstrate that,

prior to the activity constituting torture, a public official was

aware of it and thereafter breached his or her legal

responsibility to intervene to prevent it.35 Where the

government does not have actual knowledge of the activity

constituting torture, a petitioner may meet this standard by

showing that the government is willfully blind to it.36

In Myrie, we laid out a two-part test for both torture and

acquiescence. To determine whether a petitioner has met the

burden of establishing that it is more likely than not that he

would be tortured if removed, the IJ must ask (1) what is likely

to happen to the petitioner if removed and (2) whether what is

likely to happen amounts to torture.37 To determine whether

34

Auguste v. Ridge, 395 F.3d 123, 135 (3d Cir. 2005).

35

8 C.F.R. § 1208.18(a)(7).

36

Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007),

as amended (Mar. 6, 2007).

37

Myrie, 855 F.3d at 516.

15

the applicant has established that public officials will acquiesce

to the torture, the IJ must ask (1) how public officials will likely

act in response to the harm the petitioner fears and (2) whether

the likely response from public officials qualifies as

acquiescence.38 Whereas the first part of both inquiries is

factual, the second part of both inquiries is legal.39

In affirming the IJ’s denial of Guzman’s CAT

application, the BIA made two points in support of the IJ’s

determination that Guzman had not shown that he was likely

to be tortured upon removal. First, it noted that Teco has since

died. Second, it suggested that other gang members may not

have a continuing interest in Guzman and are unlikely to

torture him since they had twice allowed Guzman to leave.

Thus, without engaging in any acquiescence analysis, the BIA

stopped at either step one or two of the torture analysis after

concluding that nothing that amounts to torture is likely to

happen to Guzman. This conclusion is erroneous.

To reiterate, we owe no deference to factual findings

and conclusions when they are based on “inferences or

presumptions that are not reasonably grounded in the record,

viewed as a whole.”40 It is clear to us, viewing the record as a

whole, that Guzman suffered torture. Guzman’s credible

testimony indicates that members of MS-13 tracked down and

assaulted him on two separate occasions after he was seen

talking to the police. The severity of his treatment escalated as

he was held at gunpoint on the second occasion. These

encounters with MS-13 members also directly contributed to

38

Id. at 516–17.

39

Id.

40

Espinosa-Cortez, 607 F.3d at 107.

16

his PTSD diagnosis. In other words, Guzman suffered both

physical and psychological harm at the hands of MS-13,

intentionally inflicted for the purpose of silencing him or

punishing him.

It is also clear to us that Guzman is more likely than not

to suffer the same treatment if he is removed to El Salvador.

Teco was not the only one to have tracked down and assaulted

Guzman. Despite Teco’s death, there are other MS-13

members who have seen and know of Guzman. Pelón, for one,

is presumably still alive and could again put a gun to Guzman’s

head. Others may have a personal stake in the matter if they

were involved in the murder of Guzman’s neighbors. In

addition, Guzman’s claims that MS-13 members have been

looking for him are not disputed. The BIA brushes these facts

and reasonable inferences aside and suggests, in effect, that

Guzman should try his luck a third time. We disagree.

We have made clear that while the IJ and the BIA need

not discuss every piece of evidence in the record, they are

required to consider “all evidence relevant to the possibility of

future torture” and they “may not ignore evidence favorable to

the alien.”41 We emphasize that principle again today because

we are troubled by the BIA’s apparent distortion of evidence

favorable to Guzman in this case.

One final point, the government of El Salvador had

recognized that witnesses to crimes need protection and has

enacted a program to protect witnesses during the investigation

41

Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019)

(internal quotation marks omitted).

17

and trial of a case.42 Unfortunately, this program has

apparently been limited to protection during trial and has even

then been ineffective and underfunded. Witnesses are still

threatened and attacked.43 It is clear that this program is not

sufficient to provide the protection to Guzman required to

satisfy the CAT.

We will thus reverse the BIA’s determination with

respect to whether Guzman is likely to face torture upon

removal and remand this case to the BIA to determine whether

Guzman can show it is more likely than not that Salvadoran

officials will consent to or acquiesce in his torture.

III. CONCLUSION

Having concluded that the BIA erred in dismissing

Guzman’s application for relief under the INA and the CAT,

we will grant the petition for review, vacate the BIA’s removal

order, and remand this case to the BIA for further proceedings

consistent with this opinion.

42

Decreto No. 1029/2006, Ley Especial para la Proteccion de

Victimas y Testigos [Special Law for the Protection of Victims

and Witnesses], (May 11, 2006) at 2, available at

https://www.asamblea.gob.sv/sites/default/files/documents/de

cretos/171117_072930683_archivo_documento_legislativo.p

df (stating that the law applies to victims, witnesses, or other

persons who are at risk or in danger due to their direct or

indirect intervention in the investigation of a crime).

43

Immigration and Refugee Board of Canada, Issue Paper, El

Salvador: Information Gathering Mission Report, AR 402-03

(2016).

18