Jonathan Ayala Leiva v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: January 7, 2022
• Docket: 20-2919
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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

4 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

5 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 at

517–18 (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.

7 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.