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Romero Arrazabal v. Barr

United States Court of Appeals, Seventh Circuit

July 3, 2019

Francisco Alberto Romero Arrazabal, Petitioner,
v.
William P. Barr, Attorney General of the United States, Respondent.[*]

          Argued April 3, 2019

          Petition for Review of an Order of the Board of Immigration Appeals. No. A045-091-341

          Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         This matter is before this court for a second time on Francisco Arrazabal's pending requests for withholding of removal and protection under the Convention Against Torture ("CAT"). Arrazabal contends that he faces the likelihood of continued persecution and torture in his native El Salvador as someone who has renounced his membership in the notorious Mara Salvatrucha gang, more commonly known as MS-13. Two years ago, we remanded the matter to the Board of Immigration Appeals (the "Board" or "BIA") for further proceedings after concluding that both the Immigration Judge ("IJ") and the Board, in rejecting Arrazabal's claims, had overlooked certain evidence that on its face corroborated Arrazabal's account. Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016). The case returns to us now following a second hearing before an IJ, to whom additional evidence was presented, and another round of review before the Board, which again resulted in the denial of Arrazabal's requests for relief. Because the IJ and the Board mischaracterized certain evidence and yet again ignored the corroborative aspects of the evidence, we conclude that we must remand for further proceedings for a second time.

         I.

         Arrazabal was born in El Salvador and admitted to this country as a lawful permanent resident in 1995, at the age of 19. His mother and sister live in the United States and are now American citizens. After disagreements caused his mother to evict him from her Los Angeles home in 1996, he became homeless. Shortly thereafter, he was recruited into the MS-13 gang (which he says offered him shelter and food), [1] had a number of run-ins with the law, and was eventually convicted on firearms and drug charges. While incarcerated, he had himself tattooed on his chest, fingers, arms, head, and back to signal his affiliation with MS-13. His criminal record resulted in a revocation of his status as a lawful permanent resident of this country. His subsequent request for asylum was denied, and he was ordered removed to El Salvador in 2001.

         Arrazabal alleges that he renounced his gang membership upon his return to El Salvador, repeatedly rebuffed the efforts of local MS-13 gang members to involve him in gang activities, and as a result suffered violence at the hands of MS-13 (which opposes his efforts to leave it), a rival gang (who think he is active in MS-13), and the police (who likewise believe he is still an active gang member). He represents that he was arrested without cause on roughly 30 occasions and was jailed for extended periods in 2008 and 2010 pursuant to arrests for suspected involvement with gang extortion. While interrogating him pursuant to the latter two arrests, police officers allegedly struck him with their hands and batons and burned him with cigarettes; he also avers that he was beaten by gang members during his subsequent incarceration. In both instances, he was eventually released from custody after his mother made payments to two different lawyers-$5, 000 on the first occasion, and $2, 500 on the second. (Although the details of his release are unclear, there are suggestions in the record and the briefing that the money was used to bribe the authorities.) When he was not in jail, Arrazabal used funds sent by his mother every month to pay MS-13 $10 a week in order to be left alone. The payments of "rent" worked for a time, but eventually the threats, harassment, and beatings by gang members resumed (and according to Arrazabal's mother, there came a time when she no longer was able to send him money for this purpose when she became ill). He was pistol-whipped on one occasion; rocks with threatening messages were thrown through the windows of his mother-in-law's home, where he was living; and on one occasion in 2012, masked intruders entered the home, threatened his mother-in-law, and struck her in the chest with a gun.

         Eventually, Arrazabal fled El Salvador and returned to the U.S. illegally. He was arrested in 2012 for unlawful reentry and spent 27 months in federal prison. He applied again for asylum, and in 2014, an asylum officer preliminarily determined that he had a reasonable fear of being tortured if returned to El Salvador. Because Arrazabal's 2001 removal order disqualified him from seeking asylum, he instead sought withholding of removal and CAT protection, alleging based on his past experiences that he was likely, if returned to El Salvador, to face persecution as a member of a social group comprising former MS-13 gang members. An IJ conducted a hearing on those claims, at which Arrazabal appeared pro se and testified in his own behalf; but upon consideration of the evidence Arrazabal presented, the IJ denied him relief. The IJ found, inter alia, that Arrazabal's testimony regarding his experiences in El Salvador was not credible to the extent it was uncorroborated by other evidence (A.R. 1078-79, 1080, 1081); that he did not qualify as a member of a particular social group because he had not adequately proved that he was, in fact, a former rather than a current gang member (A.R. 1080); that he had not taken sufficient outward steps (including, for example, the removal of his tattoos) to disassociate himself from the gang (A.R. 1080); and that, because he had not presented credible evidence in support of his allegations of past persecution, he had not shown that he would face persecution or torture if returned to El Salvador (A.R. 1080, 1081-82). The BIA dismissed his appeal, concluding that "[i]n the absence of credible testimony, [Arrazabal] did not establish his eligibility for withholding of removal under the Act, as the documentary evidence he submitted did not independently and credibly establish his claim of persecution on account of a protected ground enumerated in the Act in El Salvador," and that his claim for CAT protection likewise failed for want of sufficient proof. A.R. 766.

         This court granted review and returned the case to the Board. We declined Arrazabal's invitation to overturn the IJ's determination that he was not a credible witness, reasoning that it was supported by substantial evidence. 822 F.3d at 964-65. Nonetheless, we identified certain problems with the IJ's decision that warranted a remand. We noted first that the IJ, in stating that Arrazabal's account of his travails in El Salvador was not corroborated, had overlooked key evidence, including an affidavit from Arrazabal's former mother-in-law (with whom he had lived in El Salvador), who corroborated Arrazabal's account of being arrested and beaten by police on account of his perceived gang affiliation, and the threats on his life from MS-13. 822 F.3d at 965. Likewise, the IJ had not mentioned a letter from Arrazabal's uncle expressing concern that Arrazabal would be murdered by gang members if returned to El Salvador. Id. We went on to criticize the IJ's analysis as to whether Arrazabal qualified as a member of a particular social group for purposes of withholding of removal. As the IJ himself had acknowledged, we had previously held that a tattooed former gang member could qualify as a member of a particular social group. Id. at 965 (citing Benitez Ramos v. Holder, 589 F.3d 426, 428-29 (7th Cir. 2009)). The IJ had nonetheless faulted Arrazabal for not having taken sufficient overt measures to disassociate himself from MS-13 and for instead invoking his own subjective intent to distance himself from the gang. But this was not an accurate recounting of Arrazabal's evidence on this point. Arrazabal had testified that he had repeatedly rebuffed the gang's efforts to involve him in its criminal activities and had made regular extortion payments to avoid harm by the gang. Id. at 966. "If we accept that testimony as true (as the immigration judge implicitly did in this portion of his analysis), there is little more that Arrazabal could have done to distance himself from the gang without putting himself at even more risk of reprisal." Id. Third, the court expressed concern about how the IJ had handled the CAT claim. The IJ had acknowledged the possibility that Arrazabal might be tortured by MS-13 with the acquiescence of the police, yet had nonetheless denied his claim on the ground that he had not shown such torture was "more likely than not" to occur. "But that oft-repeated phrase must be understood pragmatically in the immigration context, because there is no reliable data to show just how great an applicant's risk of torture is." Id. (collecting cases). "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." Id. (quoting Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015)).

         When the case returned to the Board, the Board, at the government's request, remanded the matter to a different IJ in order to conduct another hearing on Arrazabal's claims. Arrazabal again represented himself. He submitted a new statement to the court in advance of the hearing but did not testify. Arrazabal's mother, Anna, and his sister, Karen, both testified at the hearing. Because they live in the United States, their testimony regarding events and conditions in El Salvador was, to a significant degree, based on their conversations with persons still living in that country, including Arrazabal's former (common-law) wife and mother-in-law. Based on such second-hand information, for example, Karen generally corroborated the state of affairs with gangs and police in El Salvador and represented that MS-13 had threatened Arrazabal. Anna, likewise relying on information supplied by her son and his former wife and mother-in-law, described the situation confronting her son in El Salvador, including the 2012 incident in which gang members had come to his (former mother-in-law's) home looking for him; she also confirmed that he had been arrested and incarcerated twice, and was beaten by gang members during his 2010 incarceration. In addition, Anna testified, inter alia, that she had sent her son $70 per month in support, from which he took $10 per week to pay MS-13 in order to be left alone. Arrazabal also submitted three sworn letters from family members and acquaintances in El Salvador corroborating the threats, beatings, and arrests. He also submitted news articles and other materials about the general situation in El Salvador.

         After considering the record as supplemented by this new evidence, the IJ again denied Arrazabal's claims for relief. The judge in the first instance declined to revisit her predecessor's finding that the testimony of Arrazabal himself at the first hearing was not credible. A.R. 100. Accordingly, she focused on whether the other evidence Arrazabal presented corroborated his allegations that he had been persecuted on account of his status as a former member of the MS-13 gang.

         The IJ accorded the two pieces of evidence this court said were overlooked in the first decision-the letters from his former mother-in-law and his uncle -"little evidentiary weight." A.R. 101. Although the letter from Arrazabal's former mother-in-law indicated that Arrazabal had been beaten at the hands of the police, "it does not describe any specific instances of harm, comment on the frequency of the beatings, or state if she witnessed any beatings." A.R. 101. The letter also did not say anything about the two arrests that led to Arrazabal's incarceration, was "vague" as to any threats made by MS-13, and said nothing about the alleged incident in 2012 when gang members had broken into her home looking for Arrazabal and struck her with a gun. A.R. 101-02. Finally, given that Arrazabal's mother and sister had said they were in regular contact with his former mother-in-law, it was not clear to the judge why she had not provided the court with a more current and specific account. A.R. 102. As for the letter from Arrazabal's uncle, that letter (like the former mother-in-law's letter) was now more than two years old, was unsworn, did not disclose whether the uncle was living in the United States or El Salvador, and while stating generally that the gang was looking for Arrazabal, provided neither details nor the basis for the uncle's knowledge in this respect. A.R. 102.

         The IJ also concluded that the additional evidence submitted in the second hearing did not sufficiently corroborate Arrazabal's story. As a general matter, the testimonies of Arrazabal's mother and sister had limited value to the extent they were based on second-hand information provided to them by Arrazabal's former wife and mother-in-law. A.R. 103. The IJ also viewed Anna's testimony as inconsistent with her son's account to the extent she gave different dates than he had for the two arrests that resulted in lengthy periods of incarceration; and she had testified to only giving him $70 a month, not the $7, 500 Arrazabal had said was used to procure his release from jail. A.R. 104. Moreover, the IJ understood Anna to have testified that Arrazabal was in no way unique in having to pay extortion or "rent" money to MS-13: "In fact, Anna said everyone in El Salvador has to pay rent to avoid harm." A.R. 104. Karen, for her part, had spoken to only one specific threat her brother had received (when a rock was thrown through the window of his former mother-in-law's house), but again, she lacked personal knowledge of this incident. A.R. 104.

         Finally, as relevant here, the IJ discounted the value of the three new letters Arrazabal had submitted from persons living in El Salvador. She noted that the letters "use nearly identical phrases, sentence composition, and formatting to each other which gives these letters indicia of unreliability." A.R. 103. The letters had all been translated from Spanish to English by Arrazabal's sister, which the judge noted might account for some of the similarities. The judge also acknowledged that one of the letters contained a detail regarding an assault on Arrazabal that was missing from the other letters. But the IJ noted that all three letters were similar to the letter ...


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