Francisco A. Romero Arrazabal v. Loretta E. Lynch

822 F.3d 961, 2016 U.S. App. LEXIS 8162, 2016 WL 2641790
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 4, 2016
Docket15-2413
StatusPublished
Cited by9 cases

This text of 822 F.3d 961 (Francisco A. Romero Arrazabal v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francisco A. Romero Arrazabal v. Loretta E. Lynch, 822 F.3d 961, 2016 U.S. App. LEXIS 8162, 2016 WL 2641790 (7th Cir. 2016).

Opinion

WOOD, Chief Judge.

Francisco Alberto Romero Arrazabal, a Salvadoran with ties to the Mara Salva-trucha gang, applied for withholding of removal and relief under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT). Arrazabal fears that if he is returned to El Salvador, he *963 will be persecuted by his gang, a rival gang, or the police. An immigration judge found his testimony incredible and denied all relief; the Board of Immigration Appeals upheld that decision. Arra-zabal filed a timely petition for review, which we grant.

When Arrazabal first entered the United States in 1995 at the age of 19, he was given the status of a lawful permanent resident alien, based on the fact that his mother and sister were naturalized citizens. Within a year, however, he had become involved with the Los Angeles chapter of the Mara Salvatrucha gang, known as MS-13, which has members in both the United States and El Salvador. (It is unclear, though immaterial at this point, when Arrazabal initially joined the gang: he told an asylum officer that he joined in 1992 while still in El Salvador, but he testified before the immigration judge that he joined in 1996 after his move to the United States.) Arrazabal’s gang association quickly led to run-ins with the law. He was convicted and imprisoned for one year in California for illegal gun possession, and then he wound up back in prison for two years for possessing cocaine, a violation of his probation. While in prison he obtained several prominent tattoos identifying him as a member of MS-13.

This criminal activity led in 2001 to the revocation of Arrazabal’s status as a lawful permanent resident alien. He applied at that time for asylum, but his application was denied and he was removed to El Salvador. About a decade later, Arrazabal attempted to reenter the United States illegally near Hidalgo, Texas. He failed: Border Patrol agents caught him and charged him with being present in the United States unlawfully after his removal. See 8 U.S.C. § 1326. He pleaded guilty to that offense and. received a 27-month sentence.

While his criminal case was pending, Arrazabal learned that the 2001 removal order would be reinstated. See 8 U.S.C. § 1231(a)(5). At this point, he decided to seek asylum. During a credible-fear interview, see 8 C.F.R. § 241.8(e), he told an officer that he feared he would be killed if he were returned to El Salvador. He wanted to quit MS-13, he explained, but his identifying tattoos made him a target for fellow MS-13 members, for rival gangs, and for the Salvadoran police. The asylum officer found that Arrazabal had shown a reasonable probability that he had been tortured in his home country during police beatings in 2008 and 2010 for being a suspected MS-13 member, and that these beatings were sufficient to create a reasonable possibility that he would be tortured if returned there.

Because his 2001 removal order made him ineligible for asylum, Arrazabal then applied for withholding of removal and CAT protection. At a hearing before an immigration judge on his revised application, he testified that after his removal from the United States in 2001, he had tried to earn an honest living as a bricklayer in El Salvador. He was stymied by his tattoos, which exposed him as an MS-13 member and invited harassment from fellow gang members, who wanted him to return to active participation in the gang and extorted weekly $10 payments from him. Arrazabal also described frequent harassment at the hands of the Salvadoran police. They arrested him 30 times without cause, and twice beat him with batons during interrogations. To corroborate these assertions, Arrazabal submitted a number of exhibits, including newspaper articles about gang violence in El Salvador and letters from relatives (his mother, mother-in-law, sister, and uncle) expressing concern that he would be murdered by MS-13 if he were sent back.

*964 The immigration judge denied Arraza-bal’s application, largely on grounds of lack of credibility. In particular, the judge did not believe that Arrazabal had refrained entirely from criminal activity while he was active in MS-13, that he had been framed by U.S. police officers on two separate occasions, that U.S. public defenders had represented him inadequately, that the immigration judge who ordered him removed was racist, that he suffered abuse by Salvadoran police, or that he had received death threats from his fellow gang members.

Addressing Arrazabal’s request for withholding of removal, the immigration judge found no credible evidence that upon his return he would be likely to be harmed by MS-13, a rival gang, or the police. The judge observed that Arrazabal had lived in El Salvador for years without suffering serious harm. Moreover, the judge added, even if the evidence supported a finding that he would be harmed upon his return, Arrazabal could not show the necessary link between any such harm and a status protected by the statute (race, religion, nationality, membership in a particular social group, or political opinion, see 8 U.S.C. § 1231(b)(3)(B)). Although former gang members can constitute a “particular social group” for purposes of withholding of removal, see Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir.2009), and Arraza-bal’s tattoos madé his association quite visible, the immigration judge thought that Arrazabal could not show that his association with MS-13 was severed, because he had not taken any outward steps to renounce his membership in the gang.

As for ArrazabaPs claim for CAT relief, the immigration judge concluded that he had not shown that it was more likely than not that a public official would acquiesce in his torture. Not only, in the judge’s view, was Arrazabal’s testimony about being harmed in police custody incredible, but also it was not corroborated in any way— not by medical reports, witness statements, or otherwise. The immigration judge’s opinion drew no distinction between withholding and deferral of removal for purposes of CAT relief, probably because it appears on the face of the record that Arrazabal is eligible to apply for the withholding remedy.

Faced with these unfavorable rulings, Arrazabal requested a continuance so that he could submit more evidence, including documents showing the level of gang violence in El Salvador and receipts confirming that his mother had sent him money with which to pay off the gang. The immigration judge denied the request as untimely and added that the proposed evidence would not have changed his decision. Arrazabal appealed to the Board of Immigration Appeals, but it upheld the immigration judge’s determination as not clearly erroneous.

In his petition for review Arraza-bal first challenges the immigration judge’s adverse credibility determination. He maintains that the judge should have accepted his account of his interactions with MS-13 and the police in El Salvador.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Francisco Romero Arrazabal v. William P. Barr
929 F.3d 451 (Seventh Circuit, 2019)
Rivera v. Lynch
845 F.3d 864 (Seventh Circuit, 2017)
Jose Rivera v. Loretta Lynch
Seventh Circuit, 2017
Freddy Jose Arguelles v. U.S. Attorney General
661 F. App'x 694 (Eleventh Circuit, 2016)
Fuller v. Lynch
833 F.3d 866 (Seventh Circuit, 2016)
Trice v. Hulick
558 F. Supp. 2d 818 (N.D. Illinois, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
822 F.3d 961, 2016 U.S. App. LEXIS 8162, 2016 WL 2641790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francisco-a-romero-arrazabal-v-loretta-e-lynch-ca7-2016.