http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/29/13-73967.pdf
Quiroz Parada v. Sessions, 9th Cir., 08-29-18, Published
COURT STAFF SUMMARY:
The panel granted Moris Alfredo Quiroz Parada’s petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.
The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother’s assassination, the murder of his neighbor as a result of Quiroz Parada’s own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.
Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family’s government and military service. The panel noted that it was immaterial that the
FMLN’s attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.
The panel held that substantial evidence did not support the agency’s determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN’s rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.
The panel concluded that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief because it ignored pertinent evidence in the record and erred by construing the “government acquiescence” standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.
The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada’s removal.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,* District Judge.
* The Honorable Timothy J. Savage, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION BY: Judge Paez
KEY QUOTES FROM OPINION:
Quiroz Parada applied for asylum5 and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s “leftist wing” form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if “they murder people, or behave badly.”6
5 Because Quiroz Parada applied for asylum prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the one-year bar for asylum applications does not apply.See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).
6 Regrettably, as with many critical pieces of his testimony, Quiroz Parada’s explanation for why he does not believe in the Salvadoran government’s ability or willingness to prosecute former FMLN members who murder or otherwise attack their former enemies is transcribed as “[indiscernible] and [indiscernible].”
Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.
The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.
Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the “police do[] not help, and they even get killed,” and warned that if he were to come back to the country, “history would repeat itself.” Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she “snitched on the barrio” and warned her that if she failed to leave the area by a particular date, her “daughters will suffer the consequences.” His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s home region, and how the rampant violence has forced many families to flee.
The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada’s asylum claim “may be a lost cause.” Nonetheless, despite the IJ’s significant skepticism, he allowed Quiroz Parada’s attorney to present Quiroz Parada’s case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada’s requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.7 The IJ then determined that Quiroz Parada had not shown past persecution, but further concluded that even if he had, DHS had rebutted the presumption with evidence of changed country conditions. The IJ also found that Quiroz Parada had not shown an independent well-founded fear of future persecution. Because the IJ determined that Quiroz Parada had not established eligibility for asylum through either past persecution or a well-founded fear of future persecution, Quiroz Parada necessarily failed to meet the higher bar required to obtain withholding of removal. The IJ also rejected Quiroz Parada’s claim for CAT relief.
7 Although the REAL ID Act governs Quiroz Parada’s claim for cancellation of removal, it does not govern his claims currently on appeal, which were filed prior to May 11, 2005. See Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010).
Quiroz Parada appealed the IJ’s decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ’s determinations on Quiroz Parada’s asylum, withholding, and CAT claims, including the IJ’s alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.
. . . .
As an initial matter, we reject the government’s contention that we lack jurisdiction to consider Quiroz Parada’s CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we have jurisdiction to review the claim.
The agency’s first error was its failure to consider all relevant evidence. CAT’s implementing regulations require the agency to consider “all evidence relevant to the possibility of future torture,” and we have repeatedly reversed where the agency has failed to do so.See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase [that the agency has considered all of the evidence] does not suffice, and the decision cannot stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to consider [relevant evidence] constitutes reversible error.”). Relevant evidence includes the petitioner’s testimony and country conditions evidence. See Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible testimony “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).
Here, the relevant evidence included Quiroz Parada’s credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada’s CAT claim, stating:
Based on the respondent’s testimony and the evidence in the record, the Court finds that the respondent has not shown that he is “more likely than not” to be tortured if he is removed to El Salvador. In addition, to be eligible for CAT relief, the respondent must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306, 1311 (BIA 2000), disagreed with on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003). “Article 3 of the Convention Against Torture does not
extend protection to persons fearing entities that a government is unable to control.” Id.at 1312. The respondent has not alleged that he fears torture inflicted by any governmental entities in El Salvador, nor by any other entity with the acquiescence of any government official. Thus, he has not established eligibility for CAT relief.
This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government “acquiescence[d]” in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis—as the IJ himself found in a section of his decision summarizing the country conditions evidence:
[P]rotection of human rights was undermined by widespread violent crime, rampant judicial and police corruption, intimidation by the ubiquitous violent street gangs, and violence against witnesses. Criminal gangs are a serious, widespread, and pervasive socio-economic challenge to the security, stability, and welfare of El Salvador. Indeed, gangs are blamed for the bulk of crimes and murders in El Salvador. While the government’s fight against the gangs has met with some success in areas, El Salvador remains an exceptionally violent country because of the pervasive gang violence.
Although arbitrary arrest, prolonged detention, and torture are prohibited in El Salvador, Salvadoran security forces apparently continue to participate in such practices on a regular basis. Conditions in detention are degrading and extremely dangerous. Many officials throughout all levels of government engage in corruption with impunity despite a recent increased emphasis on enforcement.
Thus, while the IJ did “consider” the country conditions reports, the significant and material disconnect between the IJ’s quoted observations and his conclusions regarding Quiroz Parada’s CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him.See Cole, 659 F.3d at 771–72 (explaining that indications of the agency’s failure to properly consider all of the relevant evidence “include misstating the record and failing to mention highly probative or potentially dispositive evidence”).
The agency’s second error was its overly narrow construction of the “acquiescence” standard. In a similar case, we reversed and remanded where the agency “erred by construing ‘government acquiescence’ too narrowly,” noting that “acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003)). In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA’s determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.
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- The BIA’s and IJ’s fundamental errors included:
- Failing to follow their regulations requiring them to consider all the evidence;
- Incorrectly finding no “past persecution;”
- Incorrectly applying the regulatory presumption of future persecution;
- Incorrectly denying asylum and withholding of removal;
- Applying an incorrect standard for CAT protection;
- Incorrectly analyzing country conditions for CAT.
- Wow, what did the BIA and the IJ get right here other than the name and “A#?”
- Contrary to the “Sessions myth” about “dirty attorneys” and respondents “gaming the system,” this case presents the perhaps extreme, but certainly not atypical, example where “the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so.”
- The respondent, “by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims.”
- Moreover, once the hearing finally took place, it was fairly obvious from the IJ’s negative pre-hearing comments that he had already “prejudged’ the case against the respondent.
- The court also notes how the phenomenon I call “Aimless Docket Reshuffling” (“ADR”) by the Government, which Sessions has shoved into overdrive, fuels “our previously-expressed concern that ‘constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a “Zeno’s Paradox” where final resolution of the case would never be reached.’”Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration omitted).”
- The grossly under-studied phenomenon of “ADR” by the DHS and EOIR/DOJ also requires the respondent and his or her often pro bono attorney to constantly update the record and the evidence to deal with changing conditions, while the DHS often takes the lackadaisical approach they did here, apparently counting on the IJ or the BIA to “fill in the gaps” necessary to “get to a denial of the facially grantable claim.”
- Here’s the court’s accurate statement of both the CAT standard for acquiescence and the current conditions in El Salvador:
“In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771″
- Compare the above with Sessions’s completely disingenuous description of both the standard for “unwilling or unable to protect” — certainly “acquiescence” would meet or exceed “unwilling or unable to protect” — and the beyond deplorable country conditions in El Salvador in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
- This case also illustrates how in the “haste makes waste” world of EOIR, transcripts are often missing or garble testimony critical to the respondent’s case.
Unfortunately, this case is but an example of the deep, ugly hidden truth about our Immigration Courts. Even before Session’s White Nationalist restrictionist moves against asylum seekers, the Immigration Courts were mistreating too many asylum seekers, particularly those from the Northern Triangle fleeing life-threatening violence. Well prepared claims were often shunted to the end of the docket by ADR at both the courts and the DHS Asylum offices. They are often replaced by “prioritized” claims in detention settings or in other unnecessarily rushed situations where individuals have not had adequate time to obtain competent counsel and to prepare the necessary documentation to win a claim.
That’s compounded by the fact that even in the past, statements of politicos within Administrations of both parties and the generally negative tenor of BIA precedents on asylum for the Northern Triangle have encouraged some willing Immigration Judges to either prejudge the cases or give them “short shrift” to discourage such claims in the future and to act as a “deterrent,” as well as to jack up the number of “case completions” by cutting corners. This was happening in some Immigration Courts and on some BIA panels even before Sessions took over.
Certainly, the message from Sessions has been overtly anti-asylum, anti-Hispanic, anti-female, anti-family, anti-Due-Process, anti-scholarship, and anti-deliberation. In essence: “Just rubber stamp ’em, deny ’em, and move ’em out as fast as you can if you want to keep your job. And, don’t forget that your job involves ‘partnership’ with the DHS prosecutors.”
Obviously, our Immigration Court systems had some deep-seated Due Process problems with anti-asylum, anti-Northern Triangle attitudes, as well as fundamentally incorrect views of the asylum law and regulations, by some Immigration Judges and BIA Appellate Immigration judges even prior to Sessions’s advent. That’s one of the key reasons why gross discrepancies in approval-denial rates in similar cases among Immigration Judges and among BIA “panels” (which often can be nothing more than a single Appellate Judge) had no reasonable explanation even during the Obama Administration.
Sessions has made all of this immeasurably worse! Rather than fostering an attitude of judicial independence, courtesy, fairness, respect for both parties, Due Process, and the generous consideration of asylum claims mandated by the Supremes in Cardoza-Fonseca and at least mouthed by the BIA in Matter of Mogharrabi, Sessions has come up with ways of forcing the already broken Immigration Court system to take on even more cases, cut even more corners, and spew forth even more incorrect and unfair decisions, particularly in the area of asylum.
He has shown a simply horrible, outright hostility to working cooperatively with the individual Immigration Judges, the NAIJ, the private bar, the pro bono community, the NGO’s, and the academic community, along with the DHS, to develop methods of improving Due Process, fairness, and timeliness in the asylum adjudication system. Perhaps even worse, by reducing the status of judges to “denial officers,” and upping the stress levels to incredible heights, he’s also made the U.S. Immigration Judge and the BIA Appellate Immigration Judge jobs far less appealing to well-qualified individuals who would fairly, efficiently, correctly, and professionally adjudicate asylum claims. Such individuals also likely would have some of the “creative, yet practical” “think outside the box” approaches necessary to deal with the backlog in a timely manner without compromising Due Process. It’s painfully obvious that the Sessions and the other politicos now futilely trying to micromanage the Immigration Court system are devoid of any such insights.
Frankly, this is the type of case that probably could have been granted back in 1994 when it was first filed. Even by the time it finally got to Immigration Court, it appears to be the type of well-documented, clearly grantable case that could have been set for a “short block hearing” with the understanding that if certain aspects of the respondent’s background and experiences were verified under oath, the DHS would not oppose a grant of asylum.
Instead, this case has been “hanging around” the system for more than 24 years, and still hasn’t been finally resolved! More seriously, after taking five years on the docket to get to the merits hearing, both the IJ and the BIA clearly got it wrong!
The mess that currently exists in the Immigration Court and asylum systems is primarily the product of years of such abuse and mismanagement by a politically-driven adjudication system, aided and abetted by Congressional inaction and failure to provide adequate funding. Cutting more corners, pushing overwhelmed judges to turn out more cases in less time, and punishing asylum applicants by taking away their children, detaining them in substandard conditions, denying them reasonable access to counsel, denying them fairness, Due Process, and the life-saving protection to which many of them are entitled clearly isn’t the answer.
We need regime change (along with an attitude and culture change among some Immigration Judges and among some BIA panels)!
PWS
09-05-18