Francisco A. Romero Arrazabal v. Loretta E. Lynch , 822 F.3d 961 ( 2016 )

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.