PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1793
____________
BRAYAN ANTONIO GUZMAN ORELLANA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A216-282-709)
Immigration Judge: Leo A. Finston
Argued on December 10, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges
(Opinion filed: April 17, 2020)
J. Wesley Earnhardt
Troy C. Homesley, III
Brian Maida (ARGUED)
Cravath, Swaine & Moore
825 Eighth Avenue
Worldwide Plaza
New York, NY 10019
Counsel for Petitioner
Madeline Henley
Greg D. Mack (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I ON
ROTH, Circuit Judge:
After overhearing the murder of his two next-door
neighbors and facing repeated threats from local gang
members for his perceived role in assisting law enforcement,
petitioner Brayan Antonio Guzman Orellana left his home in
El Salvador and entered the United States seeking relief
2
pursuant to the Immigration and Nationality Act (INA) and the
Convention Against Torture (CAT). The Immigration Judge
(IJ) denied his application, and the Board of Immigration
Appeals (BIA) dismissed his appeal. We must now decide
three issues: (1) whether persons who publicly provide
assistance to law enforcement against major Salvadoran gangs
constitute a cognizable particular social group for purposes of
asylum and withholding of removal under the INA, (2) whether
Guzman has established that he suffered past persecution on
account of anti-gang political opinion imputed to him, and (3)
whether the BIA correctly applied the framework we
enunciated in Myrie v. Attorney General1 in denying Guzman
relief under the CAT. For the reasons that follow, we hold that
persons who publicly provide assistance against major
Salvadoran gangs do constitute a particular social group, that
Guzman has failed to meet his burden to show that imputed
anti-gang political opinion was a central reason for the
treatment he received, and that the BIA erred in its application
of Myrie to Guzman’s application. Accordingly, we will
vacate the BIA’s decision and remand this case for further
proceedings on Guzman’s petition for relief from removal.
I. BACKGROUND AND PROCEDURAL HISTORY
Guzman is a native of El Salvador. He grew up in a
neighborhood controlled by Mara Salvatrucha, a gang
commonly known as MS-13. On October 5, 2017, when
Guzman was 18 years old, his two next-door neighbors were
murdered. Earlier that night, a member of MS-13 had warned
Guzman’s family “not to speak to or call the police regarding
1
855 F.3d 509 (3d Cir. 2017).
3
whatever [they] saw or heard in the next couple of hours.”2
Shortly thereafter, Guzman overheard the murder as it took
place.
About a week later, the police visited Guzman’s
neighborhood and, in front of Guzman’s house, questioned him
about his missing neighbors. Fearing that harm would come to
him and his family if he cooperated with the police, Guzman
told them that he knew nothing. However, Teco, a former
classmate of Guzman’s and an MS-13 member who may have
been involved in the murder, witnessed Guzman talking to the
police. At the end of the conversation, the police climbed over
the wall between Guzman’s house and his neighbors’ and
discovered the neighbors’ bodies in their backyard.
A few days after Guzman was seen with the police,
Teco and four other MS-13 members ambushed and attacked
him on his way home from school. Teco made it clear that they
did so because they believed Guzman was a “snitch.”3
Guzman, bruised from the encounter, left his home the next
day to stay with his aunt who lived an hour away. A few days
later, Guzman, again on his way home from school, was pulled
into an alley by Teco and another MS-13 member named
Pelón. Pelón put a gun to Guzman’s head and told him he had
to “cooperate with the gang.”4 Guzman refused but was
ultimately let go.
After this second encounter, Guzman decided that he
was no longer safe in El Salvador due to the pervasive gang
2
Administrative Record (AR) 722–23.
3
Id. at 727.
4
Id. at 728.
4
presence there. He fled the country in November 2017 and
applied for admission when he entered the United States a
month later. The Department of Homeland Security detained
him and served him with a Notice to Appear charging him as
being removable for failing to present any valid document
required for entry.5 Guzman filed an application for asylum
and withholding of removal under the INA and for deferral or
withholding of removal under the CAT. In support of his
application for relief under the INA, he claimed that he had
suffered past persecution in El Salvador and that, if removed,
there was a clear probability that his life or freedom would be
threatened on account of his imputed membership in the
particular social group of “complaining witnesses against
major Salvadoran gangs” and his imputed anti-gang political
opinion.
In support of his application for relief under the CAT,
Guzman claimed that it is more likely than not that he would
be subject to torture or death if returned to El Salvador, citing
the fact that MS-13 members in his neighborhood knew him
and had been looking for him. His application was
supplemented by an affidavit from a licensed clinical social
worker who interviewed him about the series of events
involving the murder and diagnosed him with Post-Traumatic
Stress Disorder (PTSD).
The IJ denied Guzman’s application despite finding
Guzman to be credible. The IJ first held that Guzman was not
eligible for relief under the INA because he could not show that
he suffered past persecution or that his life or freedom would
be threatened on either ground he had asserted. According to
5
Guzman is still being detained.
5
the IJ, Guzman was not a “complaining witness” since he did
not provide any information to or file a complaint with the
police and since imputed membership in a particular social
group is insufficient for purposes of seeking relief under the
INA. In addition, the IJ stated that Guzman presented no
evidence suggesting that MS-13 deemed his actions to be an
expression of anti-gang political opinion. The IJ then held that
Guzman was also ineligible for relief under the CAT after
finding that it was not more likely than not that Guzman would
be tortured upon returning to El Salvador and that Guzman had
not established that the Salvadoran government consented to
or acquiesced in gang violence against Salvadorans.
The BIA dismissed Guzman’s appeal. With respect to
Guzman’s application for relief under the INA, it held that
“complaining witnesses against major Salvadoran gangs” do
not constitute a particular social group and that Guzman failed
to show that he was targeted by MS-13 on account of any
imputed political opinion. With respect to Guzman’s
application for relief under the CAT, the BIA affirmed the IJ’s
determination that Guzman was not likely to be subject to
torture upon removal but did not discuss whether the
Salvadoran government would consent to or acquiesce in any
torture Guzman might suffer upon removal. Guzman
petitioned this Court for review of the BIA’s final order of
removal, arguing that the BIA erred in concluding that (1) he
was not an imputed member of a particular social group, (2) he
was not persecuted on account of his political opinion, and (3)
he was not eligible for relief under the CAT.
II. DISCUSSION
We have jurisdiction over this timely petition for review
6
of a final order of removal under 8 U.S.C. §§ 1252(a)(1) and
1252(b)(1). Although our jurisdiction only extends to final
orders of removal and thus only to decisions of the BIA,6 we
also review the IJ’s decision to the extent it is adopted,
affirmed, or substantially relied upon by the BIA.7
We must resolve three issues in this appeal. The first
issue—whether persons who publicly provide assistance to law
enforcement against major Salvadoran gangs constitute a
particular social group for purposes of the INA—presents a
mixed question of law and fact. We review the BIA’s legal
conclusion as to the existence of a particular social group de
novo while reviewing its underlying factual conclusions for
substantial evidence.8 The substantial evidence standard
requires us to defer to factual findings below as long as they
are supported by reasonable, substantial, and probative
evidence on the record considered as a whole.9 However,
deference is not due “where findings and conclusions are based
on inferences or presumptions that are not reasonably
grounded in the record, viewed as a whole,” and the BIA “is
not permitted simply to ignore or misconstrue evidence.”10
The second issue—whether Guzman has established that he
suffered past persecution because of anti-gang political opinion
6
Abdulai v. Ashcroft, 239 F.3d 542, 548–49 (3d Cir. 2001).
7
Garcia v. Att’y Gen., 665 F.3d 496, 502 (3d Cir. 2011), as
amended (Jan. 13, 2012); Camara v. Att’y Gen., 580 F.3d 196,
201 (3d Cir. 2009), as amended (Nov. 4, 2009).
8
See S.E.R.L. v. Att’y Gen., 894 F.3d 535, 542–43 (3d Cir.
2018).
9
Garcia, 665 F.3d at 502 (internal quotation marks omitted).
10
Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir.
2010) (internal quotations omitted).
7
imputed to him—presents a factual question subject to the
substantial evidence standard.11 Finally, the third issue—
whether the BIA correctly applied Myrie to the instant case—
presents a mixed question of law and fact which we review
under the same standards as the first issue.12
A. Guzman’s Application for Relief under the INA
To be eligible for asylum under the INA, an applicant
must demonstrate refugee status by showing that he has
suffered past persecution or has a well-founded fear of future
persecution on account of his race, religion, nationality,
membership in a particular social group, or political opinion.13
A fear of future persecution is well-founded if there is a
reasonable probability that persecution will occur, and a
showing of past persecution creates a rebuttable presumption
that the fear is well-founded.14 In addition, the applicant must
establish that one of the five statutorily protected grounds “was
or will be at least one central reason” for his persecution and
11
See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481–84 (1992)
(analyzing the causal connection between political opinion and
persecution as a factual question); Cruz-Diaz v. I.N.S., 86 F.3d
330, 331–32 (4th Cir. 1996), as amended (May 29, 1996)
(same).
12
See Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010)
(“[W]e will uphold the BIA’s reversal of the IJ’s grant of CAT
relief if there is substantial evidence supporting the BIA’s
conclusion that the IJ clearly erred in finding a likelihood of
torture, or if we determine that the alleged mistreatment does
not legally constitute torture.”).
13
8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A).
14
8 C.F.R. § 1208.13(b).
8
that the harm was caused by the government or by forces that
the government is unable or unwilling to control.15 To be
eligible for withholding of removal under the INA, which is a
separate form of relief, the standard is higher still, as the
applicant must demonstrate that there is a “clear probability”
that, upon his removal, his life or freedom will be threatened
on account of one of the protected grounds.16
Addressing Guzman’s first claim that he is eligible for
asylum and withholding of removal under the INA on account
of his imputed membership in a particular social group
consisting of complaining witnesses against major Salvadoran
gangs, we conclude that remand is appropriate. To establish a
particular social group, an applicant must show that it is “(1)
composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.”17 After our review of
the situation in El Salvador, we conclude that the group of
persons, who publicly provide assistance to law enforcement
against major Salvadoran gangs satisfies all three criteria and,
thus, constitutes a particular social group.18
15
8 U.S.C. § 1158(b)(1)(B)(i); Kibinda v. Att’y Gen., 477 F.3d
113, 119 (3d Cir. 2007).
16
Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (internal
quotation marks omitted).
17
S.E.R.L., 894 F.3d at 547; see also Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237
(BIA 2014).
18
The government urges us to apply deference under Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984), to the BIA’s determination on this question, albeit with
respect to Guzman’s formulation of the group. However,
9
A shared common immutable characteristic can be “an
innate one such as sex, color, or kinship ties, or in some
circumstances . . . a shared past experience such as former
military leadership or land ownership.”19 We held previously
in Garcia v. Attorney General that persons who have assisted
law enforcement against violent gangs that threaten
communities in Guatemala share a common, immutable
characteristic because they have the shared experience of
assisting law enforcement, which is based on past conduct that
cannot be undone and that they should not be asked to undo.20
Garcia concerned a witness who testified in court about
a gang-related murder.21 Since Guzman did not testify in court,
the BIA considered his case to be distinguishable from Garcia.
That is too narrow a reading. In our analysis, it is
indistinguishable whether someone testifies in court or
publicly provides out of court assistance to law enforcement.
In both circumstances, that person will have been visible to the
public and is likely be targeted because of his cooperation.
Chevron deference is inapplicable here because we are
deciding as a matter of law whether our precedent—and that of
other courts—forecloses relief for Guzman. See Akins v. FEC,
101 F.3d 731, 740 (D.C. Cir. 1996) (en banc) (“There is
therefore no reason for courts—the supposed experts in
analyzing judicial decisions—to defer to agency
interpretations of the Court’s opinions.”), vacated on other
grounds by FEC v. Akins, 524 U.S. 11 (1998).
19
Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
overruled on different grounds, 19 I. & N. Dec. 439 (BIA
1987).
20
665 F.3d at 504.
21
Id. at 500.
10
In Garcia, we distinguished the witness who testified in
court and whose identity was “known to her alleged
persecutors” from “confidential informants whose aid to law
enforcement was not public.”22 Here, Guzman did not
communicate secretly with the police. His ordeal began when
he was seen in public being questioned by and talking to the
police. His identity was known to his persecutors just as it
would be if he had testified in court. The same logic that led
to our conclusion in Garcia compels us now to hold that
persons who publicly provide assistance to law enforcement
against major Salvadoran gangs similarly share a common,
immutable characteristic.
A group consisting of persons who publicly provide
assistance to law enforcement against major Salvadoran gangs
is also defined with particularity.23 Particularity requires “a
clear benchmark for determining who falls within the group”;
a proposed group must “be discrete and have definable
boundaries”—not “amorphous, overbroad, diffuse, or
22
Id. at 504 n.5.
23
The BIA in its decision addressed only the immutability and
social distinction prongs of the particular social group test.
Ordinarily, the proper course would be to remand to the BIA
to determine whether the group we now define satisfies the
particularity requirement. However, “where application of the
correct legal principles to the record could lead only to the
same conclusion, there is no need to require agency
reconsideration.” Yusupov v. Att’y Gen., 650 F.3d 968, 993 (3d
Cir. 2011) (internal quotation marks omitted). The
particularity requirement for this group we have defined
presents such a case.
11
subjective.”24 Like a group of witnesses who have testified in
court against violent gangs, a group of witnesses who have
publicly provided assistance to law enforcement against major
Salvadoran gangs “has definable boundaries and is equipped
with a benchmark for determining who falls within it”
sufficient to satisfy the particularity requirement.25
Finally, this group is socially distinct within Salvadoran
society. To be socially distinct does not mean “ocular”
visibility. “[R]ather [the group] must be perceived as a group
by society.”26 Providing assistance to law enforcement in
public, like testifying in court, “lends itself to societal
recognition,” since “all are readily aware of the group and its
members, not just those that are being provided information.”27
28 29
We thus hold that a group consisting of witnesses who
have publicly provided assistance to law enforcement against
major Salvadoran gangs meets all three criteria for being a
24
M-E-V-G-, 26 I. & N. Dec. at 239.
25
Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019).
26
M-E-V-G-, 26 I. & N. Dec. at 240.
27
See Radiowala, 930 F.3d at 583.
28
Decreto No. 1029/2006, Ley Especial para la Proteccion de
Victimas y Testigos [“Special Law for the Protection of
Victims and Witnesses”], (May 11, 2006), at p. 2, available at
https://www.asamblea.gob.sv/sites/default/files/documents/de
cretos/171117_072930683_archivo_documento_legislativo.p
df (stating that the law applies to victims, witness, or other
persons who are at risk or in danger due to their direct or
indirect intervention in the investigation of a crime).
29
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.
2013).
12
particular social group. Our analysis remains the same even
though Guzman did not actually provide information to the
Salvadoran police. Contrary to the IJ’s unsupported assertion,
asylum and withholding of removal under the INA may be
granted on the basis of imputed, not just actual, membership in
a particular social group.30
The BIA did not address several other elements of
Guzman’s application for relief under the INA—including
whether Guzman is an imputed member of the group we
described; whether the harm that Guzman has suffered in El
Salvador, or will with reasonable probability suffer, rises to the
level of persecution; whether Guzman’s imputed membership
in that group is a central reason for his persecution; whether
the Salvadoran government is unable or unwilling to control
MS-13; and whether it is clearly probable that Guzman’s life
or freedom will be threatened upon removal. We leave these
matters to the BIA on remand.31
Addressing Guzman’s second argument that he is
eligible for relief under the INA because he has been subject to
persecution and has a well-founded fear of future persecution
on account of his imputed anti-gang political opinion, the
BIA’s determination that Guzman has failed to show
persecution on account of political opinion is supported by
substantial evidence. It was not on account of his political
opinions that he was persecuted but on account of his apparent
cooperation with the police. Guzman claims that anti-gang
political opinion was attributed to him based on his perceived
cooperation with the police and refusal to join MS-13. In
30
Amanfi v. Ashcroft, 328 F.3d 719, 729–30 (3d Cir. 2003).
31
Cf. Garcia, 665 F.3d at 504.
13
determining whether an applicant was persecuted because of
an imputed political opinion, we focus on whether “the
persecutor attributed a political opinion to the victim, and acted
upon the attribution.”32 However, Guzman presents no
evidence indicating that Teco, Pelón, or the other MS-13
members who battered him did so for any reason other than his
perceived assistance to the police; nor is there evidence that
any of them believed his refusal to join MS-13 was a political
expression. In addition, neither of the two statements made to
Guzman—that Guzman was a snitch and that he needed to
collaborate with the gang—appears to be politically motivated,
suggesting that Guzman’s imputed political opinion was not a
central reason for his treatment. Because the evidence does not
compel a contrary conclusion, we are not prepared to disturb
the BIA’s ruling that Guzman failed to carry his burden.33
32
Espinosa-Cortez, 607 F.3d at 108 (internal quotation marks
omitted).
33
See Elias-Zacarias, 502 U.S. at 483 (rejecting the notion that
an applicant must provide direct proof of his or her persecutor’s
motives, but adding that “since the statute makes motive
critical, [the applicant] must provide some evidence of
[motive], direct or circumstantial”); Cruz-Diaz, 86 F.3d at 332
(holding that the applicant’s refusal to join the guerrillas in El
Salvador “does not compel the conclusion that [he] will be
subjected to persecution or other harm based on actual or
imputed opinion, any more than any other citizen of El
Salvador who participated in or refused to participate in the
activities of either the guerrillas or the army”); cf. Tilija v. Att’y
Gen., 930 F.3d 165, 169–70, 172 (3d Cir. 2019) (holding that
petitioner put forward a prima facie political asylum claim after
providing credible testimony about being attacked and
threatened for supporting a specific political party).
14
B. Guzman’s Application for Relief under the CAT
Article 3 of the CAT prohibits signatory parties to the
Convention, including the United States, from expelling,
returning, or extraditing a person to another country where
“there are substantial grounds for believing that [that person]
would be in danger of being subjected to torture.” We have
held that for an act to constitute torture, it must (1) cause severe
physical or mental pain or suffering, (2) be intentionally
inflicted, (3) be done for an illicit or proscribed purpose, (4)
occur by or at the instigation of or with the consent or
acquiescence of a public official who has custody or physical
control of the victim, and (5) not arise from lawful sanctions.34
To establish acquiescence, an applicant must demonstrate that,
prior to the activity constituting torture, a public official was
aware of it and thereafter breached his or her legal
responsibility to intervene to prevent it.35 Where the
government does not have actual knowledge of the activity
constituting torture, a petitioner may meet this standard by
showing that the government is willfully blind to it.36
In Myrie, we laid out a two-part test for both torture and
acquiescence. To determine whether a petitioner has met the
burden of establishing that it is more likely than not that he
would be tortured if removed, the IJ must ask (1) what is likely
to happen to the petitioner if removed and (2) whether what is
likely to happen amounts to torture.37 To determine whether
34
Auguste v. Ridge, 395 F.3d 123, 135 (3d Cir. 2005).
35
8 C.F.R. § 1208.18(a)(7).
36
Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007),
as amended (Mar. 6, 2007).
37
Myrie, 855 F.3d at 516.
15
the applicant has established that public officials will acquiesce
to the torture, the IJ must ask (1) how public officials will likely
act in response to the harm the petitioner fears and (2) whether
the likely response from public officials qualifies as
acquiescence.38 Whereas the first part of both inquiries is
factual, the second part of both inquiries is legal.39
In affirming the IJ’s denial of Guzman’s CAT
application, the BIA made two points in support of the IJ’s
determination that Guzman had not shown that he was likely
to be tortured upon removal. First, it noted that Teco has since
died. Second, it suggested that other gang members may not
have a continuing interest in Guzman and are unlikely to
torture him since they had twice allowed Guzman to leave.
Thus, without engaging in any acquiescence analysis, the BIA
stopped at either step one or two of the torture analysis after
concluding that nothing that amounts to torture is likely to
happen to Guzman. This conclusion is erroneous.
To reiterate, we owe no deference to factual findings
and conclusions when they are based on “inferences or
presumptions that are not reasonably grounded in the record,
viewed as a whole.”40 It is clear to us, viewing the record as a
whole, that Guzman suffered torture. Guzman’s credible
testimony indicates that members of MS-13 tracked down and
assaulted him on two separate occasions after he was seen
talking to the police. The severity of his treatment escalated as
he was held at gunpoint on the second occasion. These
encounters with MS-13 members also directly contributed to
38
Id. at 516–17.
39
Id.
40
Espinosa-Cortez, 607 F.3d at 107.
16
his PTSD diagnosis. In other words, Guzman suffered both
physical and psychological harm at the hands of MS-13,
intentionally inflicted for the purpose of silencing him or
punishing him.
It is also clear to us that Guzman is more likely than not
to suffer the same treatment if he is removed to El Salvador.
Teco was not the only one to have tracked down and assaulted
Guzman. Despite Teco’s death, there are other MS-13
members who have seen and know of Guzman. Pelón, for one,
is presumably still alive and could again put a gun to Guzman’s
head. Others may have a personal stake in the matter if they
were involved in the murder of Guzman’s neighbors. In
addition, Guzman’s claims that MS-13 members have been
looking for him are not disputed. The BIA brushes these facts
and reasonable inferences aside and suggests, in effect, that
Guzman should try his luck a third time. We disagree.
We have made clear that while the IJ and the BIA need
not discuss every piece of evidence in the record, they are
required to consider “all evidence relevant to the possibility of
future torture” and they “may not ignore evidence favorable to
the alien.”41 We emphasize that principle again today because
we are troubled by the BIA’s apparent distortion of evidence
favorable to Guzman in this case.
One final point, the government of El Salvador had
recognized that witnesses to crimes need protection and has
enacted a program to protect witnesses during the investigation
41
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019)
(internal quotation marks omitted).
17
and trial of a case.42 Unfortunately, this program has
apparently been limited to protection during trial and has even
then been ineffective and underfunded. Witnesses are still
threatened and attacked.43 It is clear that this program is not
sufficient to provide the protection to Guzman required to
satisfy the CAT.
We will thus reverse the BIA’s determination with
respect to whether Guzman is likely to face torture upon
removal and remand this case to the BIA to determine whether
Guzman can show it is more likely than not that Salvadoran
officials will consent to or acquiesce in his torture.
III. CONCLUSION
Having concluded that the BIA erred in dismissing
Guzman’s application for relief under the INA and the CAT,
we will grant the petition for review, vacate the BIA’s removal
order, and remand this case to the BIA for further proceedings
consistent with this opinion.
42
Decreto No. 1029/2006, Ley Especial para la Proteccion de
Victimas y Testigos [Special Law for the Protection of Victims
and Witnesses], (May 11, 2006) at 2, available at
https://www.asamblea.gob.sv/sites/default/files/documents/de
cretos/171117_072930683_archivo_documento_legislativo.p
df (stating that the law applies to victims, witnesses, or other
persons who are at risk or in danger due to their direct or
indirect intervention in the investigation of a crime).
43
Immigration and Refugee Board of Canada, Issue Paper, El
Salvador: Information Gathering Mission Report, AR 402-03
(2016).
18