Chavez v. Garland

51 F.4th 424

Rommel Alexander CHAVEZ, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

No. 21-1267

United States Court of Appeals, First Circuit.

October 21, 2022

SangYeob Kim, with whom Gilles Bissonnette, Caroline Meade, American Civil Liberties Union of New Hampshire, and New Hampshire Immigrants' Rights Project were on brief, for petitioner.

Susan Bennett Green, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian M. Boynton, Acting Assistant Attorney General, Civil Division, and Linda S. Wernery, Assistant Director, were on brief, for respondent.

Anna R. Welch, Clinical Professor, Camrin M. Rivera, Student Attorney, Emily L. Gorrivan, Student Attorney, and Cumberland Legal Aid Clinic, University of Maine School of Law on brief for amicus curiae Immigration Law Professors.

Before Gelpí, Lipez, and Howard, Circuit Judges.

HOWARD, Circuit Judge.

Rommel Alexander Chavez, a citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for withholding of removal under the Immigration and Nationality Act ("INA") and for protection under the Convention Against Torture ("CAT"). For the following reasons, we grant the petition in part, vacate the decision of the BIA in part, and remand to the BIA for further proceedings consistent with this opinion.

I.

A.

Rommel Alexander Chavez is a 45-year-old Salvadoran citizen who has lived in the United States since 1997, with the exception of a two-month period in 2012. The IJ found him credible, and the BIA did not disturb that finding. Cf. Kalubi v. Ashcroft, 364 F.3d 1134, 1141-42 (9th Cir. 2004) ("[A]bsent an adverse credibility determination, testimony must be accepted as true ...."). Accordingly, "we accept as true [ ] [his] testimony about the historical facts." See Palma-Mazariegos v. Gonzales, 428 F.3d 30, 33 (1st Cir. 2005).

While Chavez was growing up in El Salvador, he and his family had several violent encounters with the police. In 1978 or 1979, when Chavez was two or three years old, his eldest brother, Oscar, broke a curfew to go see his girlfriend. In the process, he ran into the police and was shot and killed by them. Chavez also had a violent encounter with the police in 1991 or 1992, when he was 15 or 16 years old. A group of police officers stopped him on the street and started searching him in an aggressive manner, hitting him at one point with a weapon. He had a bike with him, and they asked him where the papers for it were.¹ He told them that they were at his house, but they nevertheless started trying to take the bike away from him. He tried to grab it from their hands, but they wouldn't stop, and eventually, he began to run away toward his house. Just before he reached his house an officer shot him in his buttocks. When his brother Omar came out of the house to see what was going on, an officer shot Omar, too. Omar still requires the use of a colostomy bag because of that injury.

As a result of that encounter, Chavez was sent to jail for about seven months for "resisting arrest." After his release, he continued to be stopped and beaten up by the police. When he was 12 or 13, he had gotten a tattoo that later came to be associated with a rival gang of MS-13, Mara 18. He testified that although the police "never said anything [to him] about [his] tattoo," because of it, they "simply believed that [he and his friends] were gang members."²

At some point during his teenage years, members of MS-13 began to "insinuat[e]" to Chavez that he should go to their meetings, but he never did. As he explains it, he was always "against" them, and used to erase their graffiti. On one occasion, he drew a Mara 18 symbol over MS-13's symbols. The next day, they found out that he was the one who drew it, showed up to his house, and beat him up, fracturing one of his ribs.

Chavez was also threatened by MS-13 on another occasion. He had told the victim of a robbery that El Churro, a member of MS-13, was the perpetrator, and the victim had proceeded to press charges. At some point, Chavez also told the police that El Churro was the perpetrator. El Churro learned that Chavez had told the victim it was he who did it, and, through another member of MS-13, sent a message to Chavez that, as paraphrased by Chavez, "[Chavez] had [better] take care of [himself] because [El Churro] was going to do something [otherwise]." Chavez took that to mean that El Churro was probably going to "kill [Chavez] or something else, something bad." It appears that Chavez left for the United States shortly thereafter. As he explains it, "[he] was not about to stick around, waiting for" El Churro to act on his threat.

From 1997 until 2012, Chavez lived in the United States. During that period, members of MS-13 killed Mauricio, one of his friends who lived in El Salvador, because Mauricio had refused to pay them rent. And in 2009, members of MS-13 killed Chavez's nephew "supposedly [because] he had some tattoos" and MS-13 therefore "pinn[ed] him as belonging to [a different] gang."

In 2011, Chavez was placed in removal proceedings. He applied for asylum, but his application was denied, and he was removed to El Salvador in May 2012.

On the day he returned to El Salvador, someone came to his house and fired a weapon into the air, which he took to be a "message" to make him "afraid." In addition, after his return, MS-13 murdered his neighbor, Javier, and Javier's dad, Jesus, because they had intervened while MS-13 was stealing some livestock. Chavez testified that he believes that MS-13 associates him with the victims of those murders, as well as with his murdered nephew and friend Mauricio.

On another occasion during his time in El Salvador, he had a conversation with a member of MS-13 who had been beaten up by other members quite badly. Chavez told him that he "shouldn't get involved with them" and that "he could get himself killed." At some point during that conversation, an "entire group" of members of MS-13 showed up, and their "boss" warned Chavez "not [to] mess with them." Chavez speculated that the boss might have said that because "they thought [that Chavez] was advising that guy from the gang -- giving him advice to get out of it." The next day, the MS-13 member who had been beaten up came to Chavez's house with a weapon and "star[ed] at [his] house [ ] as if he was going to shoot." Chavez speculated that he may have done that because of "the scolding [Chavez] gave him in front of his boss" and that it was "possible" that his boss sent him to Chavez's house for that reason.

Sometime after that incident, MS-13 told Chavez that they wanted to "investigate" him and "check out [his] tattoos." At that point, Chavez decided to leave his town to go to Miraflores, another town in El Salvador where his mother and brother lived. Two weeks later -- about two months after he had arrived in El Salvador -- thinking that MS-13 was going to "kill[ ]" him, he returned to the United States.

B.

In March 2020, Chavez was placed in withholding-only proceedings. On July 7, 2020, he applied for statutory withholding of removal under the INA and protection under the CAT.

As relevant here, Chavez sought withholding of removal on account of his imputed membership in Mara 18, and his imputed or actual anti-MS-13 political opinion. He alleged that he feared persecution from the police and from MS-13 as to the first ground, and persecution from MS-13 as to the second ground. He also sought protection under the CAT.

The IJ held hearings in the matter at which Chavez and Dr. Lawrence Ladutke, an expert witness on El Salvador, testified. The IJ denied Chavez's application, and ordered him removed. Chavez appealed that decision, and the BIA dismissed his appeal in a written decision of its own. This petition for review followed.

II.

The BIA issued its own decision on Chavez's claims, thus we review that final agency decision. See Reynoso v. Holder, 711 F.3d 199, 205 (1st Cir. 2013). Nevertheless, to the extent that the BIA deferred to or adopted the IJ's reasoning, we review those portions of the IJ's decision. Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir. 2008).

We review the agency's findings of fact under the "substantial evidence" standard. Id. (quotations omitted). Under that standard, the agency's determination "must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4) ). "To reverse ... we must find that the evidence not only supports [a contrary] conclusion, but compels it ...." Id. at 481 n.1, 112 S.Ct. 812.

III.

Chavez first contends that the BIA's finding that he has not established eligibility for withholding of removal is not supported by substantial evidence. "Withholding of removal is available if ‘[an] alien's life or freedom would be threatened in the destination country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.’ " Heng v. Gonzales, 493 F.3d 46, 47-48 (1st Cir. 2007) (quoting Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005) ); see also 8 U.S.C. § 1231(b)(3)(A).

"The ‘threat to life or freedom’ under withholding of removal is ‘identical’ to ‘persecution’ under asylum, [but] the burden placed on the petitioner is higher." Wiratama v. Mukasey, 538 F.3d 1, 3 (1st Cir. 2008). To qualify for withholding, a petitioner "must demonstrate either that [he] has suffered past persecution on account of a protected ground (thus creating a rebuttable presumption that [he] may suffer future persecution) or that it is more likely than not that [he] will be persecuted on account of a protected ground if sent to the destination country." Id. at 4 (quoting Heng, 493 F.3d at 48 ) (alterations in original).

A.

Chavez first challenges the agency's...