Jonathan Ayala Leiva v. Attorney General United States ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2919
___________
JONATHAN AYALA LEIVA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A215-665-131)
Immigration Judge: Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 20, 2021
Before: GREENAWAY, JR., KRAUSE and BIBAS, Circuit Judges
(Opinion filed: January 7, 2022)
____________________________________
___________
OPINION*
___________
PER CURIAM
Jonathan Ayala Leiva, acting pro se, petitions for review of his final order of removal.
We will grant the petition.
I.
Ayala Leiva is a citizen of El Salvador who entered the United States illegally in 2011.
In 2019, the Government charged him as removable on that basis. Through counsel, Ayala
Leiva conceded the charge but applied for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). He claimed to fear persecution and torture in El
Salvador on the basis of gang violence directed toward him and his family.
Ayala Leiva and his mother, Myrna Leiva, appeared at a hearing before an Immigration
Judge (“IJ”). Ayala Leiva testified that, when he was around six or seven years old, he was
present when two gang members (“maras”) raped his sister, Jessica. See A.R. 115; see also
A.R. at 188–89 (Jessica’s sworn account of the incident). He knew the men by their nick-
names, “Chickee” and “Goata.” A.R. 117. Ayala Leiva stated that the maras put a gun to
his head and threatened to kill him unless he left the scene.1
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
The agency found that the gang members held a gun to Ayala Leiva’s head during his
sister’s attack. See IJ Op. at 3 (“The respondent testified that . . . on the same day that his
sister was raped, they held a gun to his head and then told the respondent to leave the area.”)
& BIA Op. at 1 (“The respondent testified that . . . gang members raped his sister and held
a gun to the respondent’s head.”). However, Ayala Leiva, who testified through an
2
Myrna reported the incident to the police, who arrested the men responsible. Neither
Ayala Leiva nor Myrna knows whether the men arrested for Jessica’s assault were con-
victed or for how long they were incarcerated. After the arrests, the gang members discov-
ered Myrna’s cell phone number and email address and repeatedly threatened to kill her
and the children unless she paid them $12,000 for the release of the arrested assailants.
The maras also stalked Myrna and the children. Myrna never reported the threats to the
police because the maras told her that if she did, they would kill her children. To escape,
Myrna moved the family to a friend’s house and then to a motel in El Salvador. However,
the gang discovered their new locations. Myrna then took the children to Guatemala before
fleeing to the United States. Ayala Leiva was nine or ten years old when they entered the
United States.
Ayala Leiva fears that, if he is deported, the gang members will seek reprisal against
him for the family’s reporting of Jessica’s rape. He testified that there is no part of El
Salvador where the maras do not have an established presence, and that the police do not
provide reliable protection to the public. On the basis of this evidence, Ayala Leiva ap-
plied for asylum and withholding of removal on account of his membership in various
interpreter, stated that the gun was held to his sister’s head in response to the question
whether he was ever “personally attacked” by the maras. A.R. 115. But in his appeal to
the Board of Immigration Appeals (“BIA”), Ayala Leiva stated that he had had a gun
pointed to his head, see A.R. 11 (“The members put a gun to Respondent’s head on the
same day his sister was raped and told him to leave the scene.”), and other record evidence
affirms that he was personally held at gunpoint, see, e.g., Psych. Eval., A.R. 203 (“Accord-
ing to Ms. Leiva, at the age of 10, [Jonathan] was with his sister when a gang member
pointed a gun at them and sent Jonathan home.”). In any event, the record is unambiguous
regarding Ayala Leiva’s presence at the scene when the maras assaulted Jessica and threat-
ened to kill him.
3
particular social groups, including “Salvadorians from San Salvador displaced from their
homes by the maras.” A.R. 175. He also sought protection under the CAT on the ground
that gang members would torture him and that the Salvadoran government would
acquiesce.
The IJ found Ayala Leiva to be generally credible, and determined that he had suffi-
ciently corroborated his claims, but denied his applications for relief. The IJ concluded
that Ayala Leiva had failed to prove that he suffered past persecution or that he likely faces
future persecution on account of a particular social group as required for his applications
for asylum and withholding. As relevant here, the IJ determined that Ayala Leiva had
failed to state a cognizable particular social group or a sufficient nexus between his mem-
bership in his proposed social groups and the harm he fears upon removal. The IJ also
concluded that Ayala Leiva had failed to prove that he suffered past torture or that he likely
faces future torture as required for his claim under the CAT.
Ayala Leiva appealed to the BIA, which affirmed and adopted the IJ’s legal determina-
tions and found no clear error in the IJ’s factual findings. Ayala Leiva petitioned for re-
view.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA affirmed and
adopted the IJ’s opinion, we review both the IJ’s and BIA’s opinions. See Ordonez-Teva-
lan v. Att’y Gen. of U.S., 837 F.3d 331, 340–41 (3d Cir. 2016). We review de novo the
agency’s legal determinations, including its application of law to facts. See Herrera-Reyes
v. Att’y Gen. of U.S., 952 F.3d 101, 106 (3d Cir. 2020). We review the agency’s findings
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of fact for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Espinosa-Cortez v. Att’y
Gen. of U.S., 607 F.3d 101, 106 (3d Cir. 2010).
III.
We will grant Ayala Leiva’s petition because (1) the agency’s analysis of his asylum
and withholding of removal claims should be reevaluated in light of the Attorney General’s
recent decision in Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), and (2) the agency
failed to consider salient evidence in denying Ayala Leiva’s CAT claim.
First, the agency denied asylum and withholding because Ayala Leiva failed to state
a cognizable particular social group or establish a sufficient nexus between his proposed
social groups and the harm he fears upon removal. In addressing both issues, the BIA
relied in part on Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). That decision has since
been vacated. In recent guidance, the Attorney General vacated the prior version of A-B-
because, among other things, the previous decision “could be read to create a strong pre-
sumption against asylum claims based on private conduct,” including gang violence, and
thus threatened “to create confusion and discourage careful case-by-case adjudication of
asylum claims.” 28 I. & N. Dec. at 309.
In this case, the BIA expressly relied on the presumption-like language that led the
Attorney General to vacate the prior A-B- decision. See BIA Op. at 2 (citing the previous
version of A-B- for the propositions that “social groups defined by their vulnerability to
private criminal activity likely lack the required particularity” to be cognizable and that
“claims by aliens pertaining to . . . gang violence perpetrated by non-governmental actors
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will not qualify for asylum”). The Government has not acknowledged that reliance or
otherwise addressed A-B- in its brief.
While Ayala Leiva’s proposed social groups could still be deemed to be non-cog-
nizable or lacking a nexus to his alleged future harm under the new guidance, the agency
did not reach any conclusion under the standards now articulated by the Attorney General,
thus leaving this Court without a decision under the governing framework. Thus, we will
remand for the BIA to reevaluate Ayala Leiva’s claims in light of the Attorney General’s
recent determination. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)
(“The reviewing court is not generally empowered to conduct a de novo inquiry into the
matter being reviewed and to reach its own conclusions based on such an inquiry.”).2
Second, the agency erred in evaluating Ayala Leiva’s CAT claim. When evaluating a
CAT claim, there are two prongs that the agency must address. “First, the agency must
determine whether an applicant has met the burden of establishing that it is more likely
than not [the petitioner] would be tortured if removed. Second, the agency asks whether
public officials will acquiesce in the likely treatment.” Quinteros v. Att’y Gen. of U.S.,
2
We are also troubled by the BIA’s conclusion that Ayala Leiva’s “general apprehension
of being a victim of gang violence or recruitment does not provide a basis for asylum or
withholding of removal.” BIA Op. at 3. This assertion mischaracterizes and understates
the record evidence. See Chavarria v. Gonzalez, 446 F.3d 508, 517–18 (3d Cir. 2006).
Rather than a “general apprehension” of gang violence, Ayala Leiva’s fear of returning to
El Salvador is based on credible and corroborated evidence of specific past harms to Ayala
Leiva and his family, including the maras’ repeated death threats and attempted extortion
in retaliation for reporting the rape of Ayala Leiva’s sister by known gang members to the
police. On remand, should the BIA reach the question of whether Ayala Leiva has shown
past persecution or a likelihood of future persecution, it should consider Ayala Leiva’s
specific claims and the specific evidence that supports those claims.
6
945 F.3d 772, 786 (3d Cir. 2019) (internal quotation marks and citation omitted). Here,
the agency erred regarding both prongs.
As to the first prong, the agency failed to acknowledge credible and corroborated
evidence that was favorable to Ayala Leiva in evaluating whether he is likely to face torture
in the future. See Kang v. Att’y Gen. of U.S., 611 F.3d 157, 164 (3d Cir. 2010) (“The BIA
may not ignore evidence in the record that favors the petitioner.”); Chavarria, 446 F.3d at517–18 (noting that the agency’s findings are not supported by substantial evidence where
it mischaracterizes or understates record evidence). The BIA merely stated that Ayala
Leiva “did not submit evidence that he was tortured in the past.” BIA Op. at 3. This bare
statement ignores the record evidence that, as a young child, gang members pointed a gun
to Ayala Leiva’s head and threatened to kill him if he did not leave the scene of his sister’s
rape. The BIA also failed to acknowledge the evidence that gang members sent Ayala
Leiva’s family repeated death threats until they fled El Salvador. The IJ offered little more,
concluding that “nothing in the record indicates that [the] respondent suffered severe phys-
ical or mental pain or suffering under the rigorous Auguste standard.” IJ Op. at 11 (citing
Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005)).
The agency’s failure to consider these relevant facts prevented it from making the req-
uisite legal determination as to whether Ayala Leiva is likely to be tortured upon removal
to El Salvador. See Myrie v. Att’y Gen. U.S., 855 F.3d 509, 516 (3d Cir. 2017); see also
Kang, 611 F.3d at 164 (explaining that whether the legal definition of torture has been
satisfied is a question of law that the BIA must review de novo). Thus, we will remand for
the BIA to address Ayala Leiva’s evidence as to that issue.
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The agency’s analysis of the second prong was also flawed: it failed to consider all the
relevant evidence. This prong asks “how public officials will likely act in response to the
harm the petitioner fears” and “whether the likely response from public officials qualifies
as acquiescence.” Myrie, 855 F.3d at 516.
The BIA found it improbable that the Salvadorian government would acquiesce in tor-
ture because it is “actively attempting to combat” the gangs. But the BIA did not consider
countervailing evidence. BIA Op. at 3. Thus, it did not acknowledge that the police had
previously failed to stop the gang harassing Ayala Leiva’s family. When the family re-
ported the gang members’ attack on Ayala’s sister to the police, the police did not protect
them. Instead, the gang retaliated with death threats and extortion attempts. Plus, the
agency failed to acknowledge Ayala Leiva’s testimony that the police normally “don’t do
anything” to prevent gang violence. A.R. 114−15.
This evidence is relevant to acquiescence. As we said in Quinteros, one factor in the
analysis is whether the government is “capable of preventing … harm” to its citizens. 945
F.3d at 788. Although this is “not dispositive of whether a government acquiesced in tor-
ture,” it is relevant. Id. (citation omitted). So the agency should have considered whether
El Salvador’s previous failure to protect Ayala Leiva indicates that it would fail again if he
returned. We will remand to let it analyze all the facts.
For these reasons, we will grant Ayala Leiva’s petition for review, vacate the BIA’s
decision, and remand the matter for further proceedings in accordance with this opinion.
8