Francisco Romero Arrazabal v. William P. Barr , 929 F.3d 451 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2969
FRANCISCO ALBERTO ROMERO
ARRAZABAL,
Petitioner,
v.
WILLIAM P. BARR, Attorney General
of the United States,*
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A045-091-341
ARGUED APRIL 3, 2019 — DECIDED JULY 3, 2019
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
Judges.
*
We substitute William P. Barr, the current Attorney General of the United
States, as the Respondent in this action. See Fed. R. App. P. 43(c)(2).
2 No. 17-2969
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
No. 17-2969 3
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 interrogat-
ing 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 in-
stances, 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
1
There are some conflicting statements from Arrazabal in the record
suggesting that he may have joined MS-13 when he was 14 years old and
still living in El Salvador.
4 No. 17-2969
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 deter-
mined 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);
No. 17-2969 5
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 persecu-
tion, 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
6 No. 17-2969
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 none-
theless 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
No. 17-2969 7
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
8 No. 17-2969
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 corrobo-
rated 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
No. 17-2969 9
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 submit-
ted 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 incarcera-
tion; 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
10 No. 17-2969
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 from
Arrazabal’s former mother-in-law which this court had singled
out in its decision, and apparently deemed them to be of little
weight for the same reasons. A.R. 103.
The IJ summed up as follows:
Because the letters are unreliable and vague, because
the applicant did not provide current corroborative
evidence that was reasonably obtainable, and be-
cause the remand testimony does not corroborate
the applicant’s claims, the Court finds the applicant
has not provided sufficient corroboration to carry
his burden of proof under the REAL ID Act. Further,
because the same incredible and insufficiently
corroborated testimony forms the basis of the appli-
cant’s request for protection under CAT, the Court
also denies the applicant’s request for protection
under CAT.
A.R. 105. The BIA affirmed the IJ’s decision in an order
tracking and adopting the IJ’s rationale in all material respects.
A.R. 2–5.
Arrazabal again appealed to this court. We denied his
motion for a stay of removal pending a resolution of the
appeal, and Arrazabal was again removed to El Salvador in
No. 17-2969 11
February 2018, shortly after the initial merits briefs were filed.2
After reviewing Arrazabal’s pro se brief, the Attorney General’s
brief, and the appellate record, we appointed counsel to
represent Arrazabal and had the case re-briefed and argued.
II.
To succeed on his claim for withholding of removal,
Arrazabal must establish a clear probability that his life or
freedom will be threatened in El Salvador due to his member-
ship in a particular social group. 8 U.S.C. § 1231(b)(3)(A);
Lozano-Zuniga v. Lynch, 832 F.3d 822, 826–27 (7th Cir. 2016). As
we noted in our prior decision, a tattooed, former Salvadoran
gang member can qualify as a member of a particular social
group for this purpose. 822 F.3d at 965 (citing Benitez Ramos,
589 F.3d at 428–29). One way for an individual to establish that
his membership in a given social group is likely to result in a
threat to his life or freedom is to show that he has experienced
persecution in the past owing to that very status. 8 C.F.R.
§ 1208.16(b)(1); Ishitiaq v. Holder, 578 F.3d 712, 717 (7th Cir.
2009). We have described persecution as “punishment or the
infliction of harm for political, religious, or other reasons that
this country does not recognize as legitimate.” Toptchev v.
I.N.S., 295 F.3d 714, 720 (7th Cir. 2002) (quoting Begzatowski v.
I.N.S., 278 F.3d 665, 669 (7th Cir. 2002)). Persecution entails
more than simple harassment but includes such actions as
“detention, arrest, interrogation, prosecution, imprisonment,
illegal searches, confiscation of property, surveillance, beatings,
2
His removal, of course, does not render moot his challenge to the removal
order. Singh v. Holder, 720 F.3d 635, 638 (7th Cir. 2013) (citing Hor v.
Gonzales, 421 F.3d 497, 498 (7th Cir. 2005)).
12 No. 17-2969
or torture.” Id. (cleaned up); see also Bolante v. Mukasey, 539 F.3d
790, 794 (7th Cir. 2008) (persecution also includes behavior that
threatens death, imprisonment, or the infliction of substantial
harm or suffering). Evidence that one’s status as a former gang
member will more likely than not result in a threat to his life or
freedom will suffice to establish the “clear probability” that
withholding of removal requires. Lozano-Zuniga, 832 F.3d at
827 (citing Musa v. Lynch, 813 F.3d 1019, 1023 (7th Cir. 2016)).
In order to claim protection under the CAT, Arrazabal must
prove that it is more likely than not that he will be subject to
torture as a result of his removal to El Salvador. Lozano-Zuniga,
832 F.3d at 830. Torture is defined as the intentional infliction
of severe pain or suffering (physical or mental) for purposes of
intimidation, coercion, punishment, or discrimination, which
takes place at the instigation or with the acquiescence of a
public official. See 8 C.F.R. §§ 208.18(a)(1), 1208.18(a); Fuller v.
Whitaker, 914 F.3d 514, 516 n.3 (7th Cir. 2019); Lozano-Zuniga,
832 F.3d at 830. Proof of “a substantial risk that a given alien
will be tortured if removed from the United States” will suffice
to satisfy the more-likely-than-not standard. Arrazabal, 822 F.3d
at 966 (quoting Rodriguez-Molinero v. Lynch, supra, 808 F.3d at
1135–36). An alien need not establish that the torture is due to
his membership in a particular social group in order to claim
the protections of the CAT. See Rapheal v. Mukasey, 533 F.3d
521, 525 (7th Cir. 2008) (quoting Pavlyk v. Gonzales, 469 F.3d
1082, 1090 (7th Cir. 2006)).
Arrazabal has alleged that although he once was a member
of the MS-13 gang, he is no longer affiliated with that gang;
that he has rebuffed the gang’s overtures to him in El Salvador;
No. 17-2969 13
that he has been watched, harassed, threatened, and subjected
to physical violence by gang members as a result; that a rival
gang has attacked him believing that he is still active with MS-
13; that the police likewise regard him as a member of MS-13
and have arrested, beaten, and jailed him without cause on that
basis; and that the jailings have in turn exposed him to more
violence at the hands of gang members (in which the authori-
ties have acquiesced). If Arrazabal’s account is true, then he has
presented plausible claims for withholding of removal and
protection under the CAT.
But of course, the first IJ to hear Arrazabal’s case found that
his testimony was not credible (a finding we determined was
supported by substantial evidence), and the second IJ declined
to disturb that assessment. The adverse credibility finding does
not by itself doom Arrazabal’s claims, but it does render
corroboration from other witnesses and documents essential to
the success of his case. See Xiang v. Lynch, 845 F.3d 306, 309 (7th
Cir. 2017) (citing Lin v. Ashcroft, 385 F.3d 748, 751 (7th Cir.
2004)). Only by presenting evidence that persuasively corrobo-
rates the material aspects of his testimony can Arrazabal hope
to prevail on his claims.
That is why in the prior appeal we remanded this case to
the Board: the IJ and the Board had both overlooked certain
evidence which on its face supported Arrazabal’s account as to
what has happened to him and what is likely to happen if he
remains in El Salvador. On remand, the IJ and the Board found
the two pieces of evidence we had highlighted in our decision
insufficient to meaningfully corroborate Arrazabal’s account.
They were within their rights to do so: they considered the
evidence and articulated logical reasons to discount the
14 No. 17-2969
corroborative value of the letters submitted by Arrazabal’s
uncle and former mother-in-law. But in recounting and
evaluating the additional evidence Arrazabal presented at the
second hearing, the IJ and the Board committed the very same
sorts of errors that led to our prior decision to remand the case.
As Arrazabal points out, the IJ, seconded by the Board,
overlooked certain significant corroborative aspects of the
evidence he presented.
We are satisfied that Arrazabal did not waive these points,
as the government contends that he did. Arrazabal, of course,
was pro se before both the IJ and the Board. His brief to the
Board reflects many of the problems that typify pro se plead-
ings: poor writing, lack of focus, repetition, a reliance on
narrative without citation to the record, distraction with
irrelevant matters, and so on. The brief nonetheless does argue
that the IJ made mistakes, that she overlooked evidence
corroborating his account, and that her decision on the whole
was not supported by substantial evidence. A.R. 64, 66, 68, 69,
74, 75. (A “motion to reconsider evidence” filed the same day
as his brief to the Board makes essentially the same points. A.R.
6–8.) Collectively, these assertions amount to the semblance of
an argument that the IJ did not fully and fairly consider the
corroborative aspects of the evidence Arrazabal presented and
placed the BIA on notice of the need to examine that evidence.
See Hamdan v. Mukasey, 528 F.3d 986, 990–91 (7th Cir. 2008).
Our own decision remanding the matter to the Board had
made clear that it was the Board’s duty to examine carefully
each piece of evidence that Arrazabal had submitted to assess
its corroborative value; that decision itself established an
agenda for the Board in addition to the particular points
No. 17-2969 15
Arrazabal attempted to make in his (second) appeal to the
Board. Indeed, the Board’s order, to the extent it recounted
each of the points the IJ had made in rejecting Arrazabal’s
claims and endorsed the IJ’s findings, indicates that the Board
had undertaken a comprehensive review of the record in
response to Arrazabal’s appeal. Under these circumstances, we
do not agree that Arrazabal’s failure to point out specific
discrepancies between the evidence and the IJ’s summary and
characterization of the evidence resulted in a waiver of the
right to raise those discrepancies here. The Board plainly
understood that our prior decision charged it with the obliga-
tion to examine Arrazabal’s evidence conscientiously and to
consider the extent which it did or did not corroborate his
factual account. Having reviewed, recounted, and endorsed
the IJ’s rationale in all material respects, any errors made by
the IJ in recounting and assessing the degree of corroboration
the evidence lent to Arrazabal’s allegations are fair game here.
Having now reviewed the record as supplemented by the
second hearing before the IJ, we find that there are several
respects in which the documents and testimony presented to
the IJ corroborated certain material aspects of Arrazabal’s
story, and yet the IJ and the Board failed to recognize those
corroborative aspects.
This is particularly the case with the testimony provided by
Arrazabal’s mother, Anna. Anna was an important witness
because, by her account as well as that of her son, it was she
who provided a total of $7,500 for him to get out of jail in El
Salvador on two occasions and who also sent him $70 each
month, which he used in part to make the $10 weekly extortion
payments to MS-13. Anna obviously had personal knowledge
16 No. 17-2969
of these payments and thus was able to corroborate
Arrazabal’s story in these respects. In the original round of
proceedings before the first IJ, Anna submitted a letter dated
August 19, 2014 to the court in lieu of testifying (A.R. 768)3; in
the proceedings conducted on remand before the second IJ, she
submitted a second letter dated August 22, 2016 (A.R. 541), and
she also gave testimony over the course of two days, the first
in person and the second by video. The second IJ’s decision
understandably focused on Anna’s in-court testimony. As we
have noted, the IJ discounted that testimony insofar as it
concerned the conditions in El Salvador and what had hap-
pened to her son there because it was based not on her per-
sonal knowledge but rather what she had been told by others,
including Arrazabal’s former mother-in-law. That is a fair
point, subject to the qualifications we note below. But there
were certain matters as to which Anna had personal knowl-
edge, including the money she had sent to (or on behalf of) her
son and for what purposes. And as to these matters, the IJ
failed to take into account her new letter, dated August 22,
2016, which was in the record.
For example, the IJ stated that Anna’s testimony failed to
corroborate her son’s averment that she had made payments
of $2,500 and $5,000 to lawyers in order to secure his release
from prison. A.R. 104. It is true enough that Anna did not
testify about this point: she was never asked. (Arrazabal asked
only two questions of his mother; the bulk of the questioning
3
In the first round, she also submitted another letter to the court dated
June 17, 2014, but that letter simply urged that her son be released from
custody pending a hearing on the merits of his case. A.R. 1210.
No. 17-2969 17
was undertaken by the judge and the government’s counsel.)
She did, in response to questioning by the government, state
that she had submitted multiple letters to the court on her son’s
behalf. A.R. 211–12. But no one questioned her about the
contents of those letters. Anna’s letter dated August 22, 2016
(prior to the second hearing) specifically corroborated
Arrazabal’s representations that he (or rather, his mother) was
forced to pay a total of $7,500 to two lawyers in order to get
out of jail: the letter represents that she sent payments of $5,000
and $2,500 to the two lawyers (whom she identifies by name),
and obviously this was a fact that was within her personal
knowledge. A.R. 541. This is an important point of corrobora-
tion, both as to the fact of Arrazabal’s imprisonment and how
he managed to obtain his release. Recall that some of the
physical abuse Arrazabal alleges he experienced at the hands
of gang members and Salvadoran police took place when he
was arrested, interrogated, and then incarcerated on these two
occasions, so the fact and circumstances of his arrests and
incarceration were material to his claims. Not only did the IJ
and the government fail to ask her about the letter—as the IJ
acknowledged (A.R. 104 n.6)—but the letter was never
addressed in the IJ’s decision. It was the IJ’s apparent failure to
review her letter that led her to state that Anna’s testimony did
not sufficiently corroborate her son as to the payments to the
lawyers. A.R. 104.
The IJ, of course, was not compelled to credit Anna’s letter
or to deem its corroboration (if credited) sufficient, alone or
together with the other evidence, to carry the day on the merits
of Arrazabal’s claims for relief. But the IJ was required to
recognize the corroborative aspects of Anna’s letter as well as
18 No. 17-2969
her testimony to the court and to take that corroboration into
account in assessing the weight of the evidence. The judge’s
failure to do so was a material omission.
Moreover, although Anna’s testimony did conflict in part
with Arrazabal’s own account as to the dates of his incarcera-
tion in El Salvador, as the IJ pointed out (A.R. 104), it also
corroborated his testimony in part. Arrazabal represented that
he had been imprisoned in 2008 and 2010. The IJ understood
his mother to have testified he was imprisoned in 2011 and
2012. A.R. 96, 104. In fact, Anna, who was questioned repeat-
edly on the dates her son was in jail, said he was incarcerated
in both 2010 and 2011. A.R. 204, 205, 206, 235, 236, 237, 245. Her
dates obviously do not correspond perfectly with Arrazabal’s
dates, but they do corroborate his testimony that he was jailed
for a period of time in 2010. (And, again, given that she was
sending money to her son to help him get out of jail, she would
have reason to know when he was incarcerated.) Moreover, it
was during the 2010 incarceration, which Anna believed to
have been the first of his two incarcerations, that Anna recalled
her son losing a molar and suffering an oral infection as a
result of a beating by gang members. A.R. 237–38, 239. This
corresponds with her son’s statement that he suffered a
cracked molar as a result of a jailhouse beating during his first
incarceration. A.R. 705. The judge did not acknowledge these
corroborating consistencies in their accounts, and this was a
significant oversight.
Nor, finally, did Anna’s testimony equate the danger that
her son faced as a former gang member with the dangers
encountered by the general citizenry in El Salvador, as the IJ
believed. A.R. 96–97, 104. See Lozano-Zuniga v. Lynch, supra, 832
No. 17-2969 19
F.3d at 828–29 (fears of generalized harms in alien’s home
country insufficient to support relief) (collecting cases). In
examining Anna, both the IJ and the government’s counsel
attempted to elicit from her a concession that any citizen, not
just a former gang member, might find himself forced to pay
“rent” to MS-13 in order to avoid harassment. A.R. 207–08,
242–43. To place her answers in full context and to show why
we think the IJ mischaracterized those answers, we recount the
relevant portions of her testimony here. The following colloquy
took place between the IJ and Anna, who testified through an
interpreter:
JUDGE: Now, do people who are not gang members
have to pay extortion money for protections?
ANNA: Yeah. Yes. The people who have businesses,
they have to pay the rent to gang members.
JUDGE: So, your son basically had to pay the same
extortion money other people had to pay. Is that
correct?
ANNA: Yes. He had to pay so he wouldn’t be
harmed or they wouldn’t harm his children.
A.R. 207–08. And here is the follow-up questioning on this
point by the government’s counsel:
COUNSEL: And you—I believe you told the
judge—because I wrote this down—you said your
son is like everyone else. He had to pay like every-
one else to avoid being harmed or having his kids
harmed. Is that what you said, ma’am?
20 No. 17-2969
ANNA: Yes. In fact, I did pay this amount because
I did not want them to harass him anymore, because
he already has a family. He already has children.
And with him dead, who’s going to take care of the
children?
COUNSEL: So, basically, your son is not unique
when he was in El Salvador, paying off the gangs or
paying off the police. Everyone else there is paying
rent to somebody to live safely. Correct?
ANNA: Well, as a matter of fact, they would pres-
sure more the people who own businesses. But in his
case, he did not want to join the gang, and that is
why, you know, he was paying the rent. …
A.R. 242–43. Looking carefully at Anna’s testimony, the most
that she acknowledged was that some business owners might
be forced to pay money to the gang just as her son had. A.R.
208, 243. When the IJ asked her if there were people other than
(former) gang members who had to pay rent to the gang, Anna
acknowledged that some business owners had to make
extortion payments; she did not affirm that any other citizen
might have to make such payments. When the government’s
counsel later suggested that Anna had told the judge that
“everyone else” had to pay rent to the gang and asked her if
that was correct, Anna in response said “yes” and immediately
explained that it was necessary for her son to pay extortion
money in order to avoid harassment. A.R. 243. When counsel
followed up to again ask if her son was like “everyone else” in
that respect, she told counsel, as she had the judge, that it was
business owners who likewise were forced to pay off the gang.
No. 17-2969 21
A. 243. Only by focusing on her initial “yes” to counsel and
ignoring what followed (and what she had told the judge
earlier) could one read into her testimony a sweeping conces-
sion that her son’s plight vis-à-vis the gang was no different
from that of anyone else in El Salvador. And that is not a fair
reading of her testimony. By reading into her testimony a
broad concession that any El Salvadoran might be forced to
pay monetary tribute to the gang, the IJ was able to downplay
the unique nature of the danger that Arrazabal alleges he has
faced due to his status as a former gang member. The balance
of Anna’s testimony is consistent with Arrazabal’s position that
it is his membership in a particular social group—former MS-
13 gang member—that accounts for the harassment, threats,
beatings, and incarceration he has experienced. Anna repeat-
edly emphasized that Arrazabal was forced to pay weekly rent
to MS-13 because of his status as a former gang member. A.R.
207, 243. Thus, contrary to the IJ’s construction of her testi-
mony, Anna did corroborate that her son faces a particular risk
of harm. Again, this was a serious error on the IJ’s part.
More broadly, the IJ also discounted much of Anna’s
testimony as constituting or deriving from hearsay. Because
she lives in the United States, it is true that in certain respects
her testimony was based upon what she has been told by
Arrazabal and his former wife and mother-in-law. On the other
hand, the substantial sums of money she sent Arrazabal to help
him get out of jail and to pay MS-13 protection money to avoid
harm when he was out of jail are, as indicated above, within
her personal knowledge. Moreover, her testimony still corrob-
orates Arrazabal’s account to the extent it is consistent with his
own version of events and that of other witnesses. Hearsay is,
22 No. 17-2969
after all, admissible in immigration proceedings so long as it is
reliable. Vidinski v. Lynch, 840 F.3d 912, 917 (7th Cir. 2016);
Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010); Duad v.
United States, 556 F.3d 592, 596 (7th Cir. 2009). Certainly her
testimony may be entitled to reduced weight to the extent it
derives from what she has been told rather than what she has
personally witnessed, but her testimony cannot be dismissed
altogether on this basis.
The IJ signaled that she was disinclined to give significant
weight to what corroboration there was to be found in the
letters, affidavits, and testimony from Arrazabal’s relatives and
friends because this evidence was supplied by “interested
parties.” A.R. 101 (discounting the letters from Arrazabal’s
former mother-in-law and uncle on this basis). It is true that
they are interested, but this will also be true in many asylum
and CAT cases, as it is the petitioner’s friends and relatives
who are most likely to know what the petitioner has experi-
enced. A particular witness may or may not be credible, and
his or her relationship with the petitioner certainly factors into
that determination, but to summarily discredit his testimony
solely because he or she has a connection with the petitioner
would not be appropriate. Cf. Payne v. Pauley, 337 F.3d 767,
771–73 (7th Cir. 2003) (noting that although most affidavits
submitted in litigation typically are self-serving, their self-
serving character alone does not mean they can be disregarded
in determining whether a party’s version of the facts has any
evidentiary support).
We note, finally, that there is one additional piece of
evidence—specifically, a sworn letter submitted by Dinora
Elizabeth Franco—related by marriage to Arrazabal’s former
No. 17-2969 23
mother-in-law—that likewise corroborates certain aspects of
Arrazabal’s story. Franco’s statement was one of three sworn
statements that the IJ discounted because they were all
similarly worded. A.R. 103. It is true that the bulk of these
statements contain a great deal of identical language, and we
do not fault the IJ for taking that similarity into consideration
in assessing the weight to be accorded that evidence. What the
IJ at first acknowledged but then proceeded to ignore, how-
ever, is a passage in Franco’s statement that was unique to her
statement and which described an incident in which Arrazabal
was pistol-whipped by gang members and in which she treated
his injuries so that he did not have to travel to a hospital for
that purpose and risk further harassment by the gang while en
route. A.R. 298. Again, taken at face value, this short passage
on its face corroborates an important piece of Arrazabal’s
story—being physically attacked by MS-13 gang mem-
bers—and Franco’s statement is, in contrast to others, both
specific and based on her personal knowledge. Again, the IJ
and the Board are not compelled to accept Franco’s statement
as true or to give it any particular weight. In contrast with
other witnesses, Franco is not related to Arrazabal, although
she evidently is a family friend. But the IJ and the BIA must at
a minimum acknowledge the corroboration her statement
contains and consider it accordingly.
These sorts of oversights and mistakes in the analysis of the
IJ and the Board convince us that a second remand is neces-
sary. To be clear, it is for the IJ and the Board to weigh the
evidence and to decide whether Arrazabal has met his burden
with respect to withholding of removal and relief under the
CAT. For that reason, we reject Arrazabal’s suggestion that we
24 No. 17-2969
may simply reverse the Board and remand with directions to
grant him relief. But the IJ and the Board must in the first
instance take fair notice of the corroboration found in the
evidence Arrazabal has submitted and take that corroboration
into account in evaluating his claims. And they must not only
take each piece of evidence in isolation, but they must consider
the sum total of the evidence in deciding whether Arrazabal
has met his burden. See Hanaj v. Gonzales, 446 F.3d 694, 700 (7th
Cir. 2006).
III.
For the reasons set forth in this opinion, we GRANT
Arrazabal’s petition for review and REMAND this matter to
the BIA for further proceedings consistent with this opinion.
We thank appointed counsel for their vigorous advocacy on
Arrazabal’s behalf.