Immigration Appeals. The enclosed copies of FORM EOIR 26

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
901 NORTH STUART ST., STE.1300
ARLINGTON, VA 22203
WHITE & CASE LLP
RITCEY-DONOHUE, JOANNA M.
701 13TH STREET, N.W.
WASHINGTON, DC 20005
.Date: Sep 30, 2010
File
In the Matter of:
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
You are granted until
to submit a brief
to this office in support of your appeal.
_____ Opposing counsel is granted until
to submit a
Z
brief in opposition ___ A:06"the appeal.
, //
Enclosed is a copy of~~der~ision of the Immigration Judge.
All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
--~~~~~~+'~IL:~:~~~~~~~UL
cc: HARROLD MARC, ESQ
901 N. STUART STR. STE:708
ARLINGTON, VA 22203

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
901 North Stuart Street, Suite 1300
Arlington, VA 22203
IN THE MATTER OF: )
)
)
)
Respondent )
)
IN REMOVAL PROCEEDINGS
File No.
CHARGE:
APPLICATIONS:
Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or
"Act"), as amended, as an alien who is present in the United States without
being admitted or paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General.
Asylum, pursuant to INA § 208(a) and Withholding of Removal, pursuant to
INA § 241(b)(3).
APPEARANCES
FOR THE RESPONDENT:
Joanna M. Ritcey-Donohue, Esq.
White & Case LLP ,
701 13 th Street, N.W.
Washington, D.C. 20005
FOR THEDHS:
Marc M. Harrold, Esq.
Assistant Chief Counsel
Department of Homeland Security
901 North Stuart Street, Suite 708
Arlington, V A 22203
DECISION AND ORDER
I. BACKGROUND
The respondent is a male and a native and citizen of EI Salvador. He entered the United
States without admission or parole on or about . On the
Department of Homeland Security ("DHS" or "Government") filed a notice to appear ("NT A") with
the immigration court, charging the respondent under INA § 212(a)(6)(A)(i). The respondent has
admitted the allegations and conceded the charge of inadmissability contained in the NT A. See Exh.
2. He applies for the relief of asylum, pursuant to INA § 208(a) and withholding of removal,
pursuant to INA § 241(b)(3). For the reasons that follow, the court will grant the respondent's
application for asylum and does not reach his application for withholding of removal under the Act.
1

II. STATEMENT OF LAW
The Immigration and Nationality Act, as amended by the REAL ID Act of2005, governs this
case because the respondent initially filed Fonn 1-589 on or after May 11,2005. See Matter ofS-B-,
24 I&N Dec. 42 (BIA 2006). The respondent has the burden of proof on the applications. See 8
C.F.R. § 1208.13(a); see also INSv. Cardoza-Fonseca, 480 U.S. 421,435 (1987). In this respect,
the respondent's credibility is very important and may be detenninative. Generally, the respondent
must testify in detail, plausibly, and consistently. INA § 240(c)(4)(c). The respondent should
satisfactorily explain any material discrepancies or omissions. Id.
The court may grant an application solely on the basis of credible testimony. However, it
may also choose to require corroborating evidence where that evidence is reasonably available. The
respondent must provide corroboration to bolster an otherwise unconvincing claim. See Matter of
S-M-J-, 21 I&N Dec. 722 (BIA 1997). A respondent who does not offer such reasonably available
corroborating evidence generally should explain the failure to do so. Id. But, according to the Board
ofImmigration Appeals ("Board"), the court cannot base an adverse credibility ruling solely on the
respondent's failure to provide corroboration. Matter of L-K-, 23 I&N Dec. 677, 682 (BIA 2004).
In accordance with circuit law, even in cases where the respondent presents his claim in a
manner that prompts adverse credibility findings, the record as a whole should be evaluated to
detennine whether independent evidence establishes the respondent's claims. See Camara v.
Ashcroft, 378 F.3d 361 (4th Cir. 2004). However, the Fourth Circuit has clarified that affidavits
from friends and family are not the independent evidence on the record that Camara contemplates.
See Gandziami -Mickhou v. Gonzales, 445 F.3d 351 (4th Cir. 2006).
In making credibility detenninations, courts consider the totality of the circumstances and
all relevant factors. Courts may base a credibility detennination on the respondent's or witness's
demeanor, candor, or responsiveness, as well as the inherent plausibility of the account. INA
§ 208(b)(1 )(B)(iii).
To be eligible for asylum, the respondent must show that he is unwilling or unable to return
to EI Salvador because of persecution or an objectively reasonable fear of persecution on account
ofrace, religion, nationality, membership in a particular social group, or political opihion. 8 C.F.R.
§ 1208.13(b).
Under the regulations, if the respondent establishes past persecution, the court must presume
the respondent's future persecution unless the government proves that fundamentally changed
circumstances or a reasonably available internal relocation alternative have eliminated that
individualized fear. 8 C.F.R. § 1208. 13(b)(1 )(ii)( emphasis added). However, if the respondent does
not prove past persecution, the regulations place the burden on him to show that there is no
reasonably available internal relocation in EI Salvador unless the feared persecution is by the
government or government-sponsored. 8 C.F.R. § 1208.13(b)(1)(i).
2

A well-founded fear of persecution must be both subjectively genuine and objectively
reasonable. See Cardoza-Fonseca, 480 U.S. at 430-31. To demonstrate a subjective fear of
persecution, an applicant must demonstrate a genuine apprehension of awareness of the risk of
persecution. See Matter of Acosta, 19 I&N Dec. at 221. The objective component requires a showing
by credible, direct, and specific evidence in the record that the alien's fear of persecution is
reasonable. See De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990).
To qualify for withholding of removal under INA § 241 (b )(3), the respondent must show that
he more likely than not will be persecuted in EI Salvador on account ofrace, religion, nationality,
membership in a particular social group, or political opinion. See 8 C.F.R. § 1208.16(b).
The respondent can establish the nexus for asylum and withholding under the Act by showing
directly or indirectly that the past persecution or feared future persecution is, at least in part, on
account ofa protected ground. See Matter ofS-P-, 21 I&N Dec. 486 (BIA 1996).
A. The Respondent's Testimony
III. TESTIMONY AND EVIDENCE
The respondent is twenty- years old. He was born in EI Salvador. He came to the
United States through EI Paso, Texas on at the age of seventeen. He currently lives
with .
The respondent testified that he came to the United States because Mara 18 killed his brother,
, and then began threatening him. He said that two leaders of Mara 18,
paid other members of that gang to kill whom they suspected was a member of the rival
gang Mara Salvatrucha ("MS 13 "). is the respondent's cousin. The respondent said that they
learned who killed from a private investigator who his father hired after death.
The respondent stated that was stabbed to death See Exh. 8, Tab F.
After death, the respondent learned from his mother that was always
"making trouble" for because of girls and soccer and because he believed that was
a member of MS 13. He said that wanted to join Mara 18 but that
refused. The respondent testified that wanted to go to the United States because
he was afraid that he would be killed, but that his mother did not permit him to leave. was
fifteen years old when he was killed. The respondent said that the police did not do anything to
apprehend his brother's killers.
The respondent was eleven years old when was killed. He said that the gang began
threatening him after his brother's death. He stated that his hometown was controlled by Mara 18
but that he played soccer in an area that was controlled by MS l3. The respondent testified that
thought that he was a member of MS 13 because he entered into MS 13 territory
3

to play soccer. On cross-examination, the respondent stated that even though the Mara 18 suspected
him of belonging to MS 13, they did not kill him because they were trying to recruit him.
The respondent provided some specific examples of Mara 18 threatening him. On one
occasion, when he was fifteen years old, the respondent was with his school friends when
pulled a knife on him, demanded money and asked him to join the gang. On another
occasion, he said that
stopped him while he was riding his bicycle to the soccer
field. They accused him of belonging to MS 13 and said that ifhe refused to join Mara 18 he would
experience the same fate as his brother The respondent testified that he never reported
these threats to the police because if the gang found out that he had filed a report they would have
hurt him or his family.
The respondent said that the gang has also threatened his family. After death, the
respondent's uncle received a letter threatening to bomb his family'S house. See Exh 5, Tabs 2,3.
On cross-examination, the respondent said that members of Mara 18 gave the letter directly to his
uncle. He said that his family did not report the bomb threat to the police because the police are
corrupt and would not have done anything.
The respondent testified that he is afraid to return to EI Salvador because he believes that the
gangs will find him and "eliminate" him. He said that is still living in the same neighborhood
as his family and that Mara 18 still operates in that area. He stated that the threats to his family
stopped after he left EI Salvador. According to the respondent, the gangs operate throughout all of
EI Salvador and he would be unable to live safely in another location. He said that a friend who used
to live in returned to El Salvador and was killed six months later by Mara 18.
B. Expert Testimony of
The expert witness testified that he submitted an affidavit. See Exh. 10, Tab C. Based on his
knowledge of gangs in EI Salvador he said that the respondent's affidavit is consistent with country
conditions in EI Salvador:
He stated that from 1998-2004, gang activity and gang violence was increasing in EI Salvador
because of warfare between the rival gangs of Mara 18 and MS 13. Young men from the ages of
eleven to nineteen were often targeted for gang recruitment. He added that although the respondent
is now twenty years old, he would still be at risk of gang recruitment if returned to EI Salvador
because the average age of gang members has increased. He stated that gang recruitment has became
more selective because of increased governmental pressure on gangs and stronger ties between gangs
and drug cartels.
On cross-examination, the expert witness testified that the gangs were very territorial and that
if a gang member came into contact with a rival gang member violence generally ensued. On
redirect examination, he stated that if a gang member encountered an individual who he only
suspects of being in another gang, he might simply threaten the other individual or attempt to recruit
4

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him. He testified that if a gang has killed an individual, they will also target a family member who
would be most likely to retaliate for that death, particularly a young male who lived in the household
of the deceased individual. He explained that gangs have a "collective memory," meaning that
incidents involving individuals considered to be a gang's enemies are passed on to newer gang
members and are not forgotten even after many years.
According to the expert witness, law enforcement is unable to control the gangs in EI
Salvador. He stated that the homicide rate in EI Salvador is the highest in the Western Hemisphere
and that gang violence contributes to the high homicide rate. He opined that the Salvadoran
government is neither competent nor effective in controlling crime or protecting the general
population from crime. He said that victims of gang violence often do not report criminal incidents
to the police because they fear that the authorities will not protect them. He testified that there is
corruption within the police force and that some police officers are gang members. He stated that
more recently, reports have been made that gangs have obtained grenades and other explosives from
the police and the military in EI Salvador.
The expert witness said that the gangs extort money from individuals in gang-controlled
territories. He stated that the respondent would most likely be targeted for extortion ifhe returned
to EI Salvador. He also stated that the respondent might be a target of gang violence because of his
brother's death and his own refusal to join the gang.
He testified that based upon his experience, he believes that the respondent would be in
danger ifhe returns to EI Salvador. He said that a gang keeps informal registries of its enemies and
that individuals who were targeted by a gang and then return to that gang's territory even five to ten
years later have been killed.
C. the Respondent's Sister
The witness stated that the respondent is her brother. She said that she never knew him to
be a member of a gang. 'She came to the United States in She said that she was not in EI
Salvador when was killed. She said that she did not believe that was in a gang.
She said that her mother told her that was killed by a gang member.
The witness has returned to EI Salvador once for three weeks in She visited
grave site in EI Salvador and said that the cement marker on grave had been scratched,
a cement cross was broken, and some flowers that she had left were taken. She testified that she was
not threatened by when she returned to EI Salvador. She added that she went out only a few
times during her visit.
The witness stated that would pose a threat to the respondent's safety if he returned
to EI Salvador. She said that approximately families live in her hometown. She testified that
the respondent would be conspicuous if he returned to their hometown.
5

D. Documentary Evidence
The record includes the respondent's NTA, filed
(Exhibit 1); the
respondent's motion for change of venue, waiver of appearance, motion to withdraw, filed
(Exhibit 2); the respondent's Form 1-589, Application for Asylum and for Withholding of
Removal, filed
(Exhibit 3); country conditions reports and news articles in
support of the respondent's asylum application, with Tabs 1-29 (Group Exhibit 4); brief in support
of the respondent's asylum application, with Tabs 1-25 (Group Exhibit 5); supplemental brief and
exhibits, with Tabs A-O (Group Exhibit 6); United States Department of State Issue Paper: Youth
Gang Organizations in EI Salvador (Exhibit 7); second supplemental brief and exhibits, with Tabs
A-P (Group Exhibit 8); third supplemental brief and exhibits, with Tabs A- H, filed
(Group Exhibit 9); revised witness list (Exhibit 10); and fourth supplemental brief and exhibits, with
Tabs A-D (Group Exhibit 11).
A. Application/or Asylum
1. One-Year Deadline
IV. FINDINGS AND ANALYSIS
The respondent arrived in the United States on
See Exh. 1. He filed his
asylum application on
Although the respondent did not file his asylum
application within one year of his arrival in the United States, the court finds that extraordinary
circumstances excuse his failure to do so.
The respondent entered the United States as an unaccompanied minor and turned eighteen
on
. See Exh. 3 at 8 (explaining that the respondent's age contributed to the filing of
his asylum application after the one year deadline). This constitutes extraordinary circumstances as
defined by the regulations. See 8 C.F.R. § I208.4(a)(5)(ii) (2010). He filed his asylum application
approximately six months after turning eighteen years of age. The court finds that this was a
reasonable period of time in which to file his asylum application given his extraordinary
circumstances. See 8 C.F.R. § I208.4(a)(5). DHS does not allege that the respondent's asylum
application is time barred.
Accordingly, the court finds that the respondent has demonstrated extraordinary
circumstances excusing his failure to file his asylum application within a year of his arrival in the
United States and that he is therefore eligible to pursue asylum relief. See INA § 208(a)(2)(B), (D).
6

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2. Credibility and Corroboration
a. The Respondent
After considering the totality of the circumstances and all relevant factors, the court finds the
respondent credible. See INA § 208(b)(1)(A)(iii). The respondent's testimony was internally
consistent and consistent with the written statements contained in his asylum application and
affidavit. See Exh. 3, Group Exh. 5, Tab 1. DHS does not contest the respondent's credibility.
b. Expert Witness
The expert witness has extensive experience researching gangs in Central America generally
and El Salvador specifically. Based on this experience, the court finds his testimony regarding gang
behavior and activity in El Salvador to be credible.
c.
After considering the totality of the circumstances and all relevant factors, the court finds the
witness credible. Her testimony was internally consistent and consistent with her affidavit. See INA
§ 208(b )(1 )(A)(iii).
3. Past Persecution
The respondent claims that he suffered past persecution in El Salvador on account of his
membership in a particular social group. The court finds that the respondent has demonstrated his
membership in a particular social group, but that he has not demonstrated that the harm he suffered
in El Salvador constitutes persecution.
a. Particular Social Group
The respondent alleges that he is a member of a particular social group because of his familial
relationship to his brother, who was murdered by Mara 18. He articulates the group as
"male siblings ofthose murdered by gangs who resist active recruitment efforts by the same gang."
See The Respondent's Third Supplemental Brief in Support of the Application for Asylum and
Withholding of Removal at 12 (Jan. 8,2010).
The Fourth Circuit has recognized that in certain instances family may be a cognizable
particular social group. See Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004). The Board,
however, has held in Matter ofS-E-G-, 24 I&N Dec. 579, 583 (BIA 2008), that "family members
of Salvadoran youth who reject gang membership" does not constitute a particular social group
because the group was not sufficiently particular nor did it possess the requisite socially visibility.
The court finds that the facts and record evidence in this case distinguish it from Matter ofS-E-G-.
7

First, the respondent's proposed particular social group is sufficiently particular because it
is limited to male siblings of individuals who have been killed by the gangs and who resist gang
recruitment efforts. The expert witness testified that when a gang kills an individual they also target
a male relative of the slain individual, particularly a young male who lived in the household of the
deceased individual who they believe will be most likely to avenge the death. This differs from the
broad definition of family members that was at issue in Matter ofS-E-G-, 24 I&N Dec. at 585.
Second, the respondent's proposed particular social group is socially visible. In Matter of
S-E-G-, the Board noted that "there was little in the background evidence of record to indicate" that
the proposed particular social group at issue "would be 'perceived as a group' by society, or that
these individuals suffer from a higher incidence of crime than the rest of the population." 24 I&N
Dec. at 587. In this case, the expert witness testified that male family members of those who have
been killed by a gang, particularly young men who lived in the same household as the slain
individual, are specific targets of gang violence. There is therefore record evidence indicating that
the members of the respondent's proposed particular social group suffer from higher incidents of
gang violence than the general Salvadoran population.
Additionally, the respondent's sister testified that about families live in their hometown
in EI Salvador. It is therefore a relatively small place and it is reasonable to assume that the
respondent would be known to members of his community as sole brother. Furthermore,
one of the leaders of the local Mara 18, is the respondent's cousin. The respondent therefore
also would be known to members of Mara 18 as brother as well as an individual who
resisted their recruiting efforts.
Having shown that he is a member of a particular social group, the respondent must also
show that the harm that he suffered in EI Salvador constitutes persecution.
b. Harm Rising to the Level of Persecution
The respondent was never physically harmed by gangs in EI Salvador. He alleges, however,
that the gang's repeated threats and his young age at the time that the threats were made cumulatively
rise to the level of persecution. The respondent's affidavit indicates that he was frequently harassed
and threatened by members of Mara 18 over a period of two years. See Group Exh. 5, Tab 1 at 7.
However, in his testimony he identified two specific incidents, one in which members of Mara 18
pulled a knife on him and demanded money and another in which they told him that he would face
the same fate as if he refused to join their gang.
Persecution may be found in the absence of physical harm so long as the harm is sufficiently
severe. See Mirisawo v. Holder, 599 F.3d 391,396 (4th Cir. 2010). Although the gang's threats
were certainly frightening for the respondent, the court does not find that they were sufficiently
severe to constitute persecution. The threats made to the respondent were not imminent. Compare
Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (stating that unfulfilled threats of physical
injury do not constitute past persecution) and Hernandez-Baena v. Gonzales, 417 F .3d 720, 723 (7th
8

Cir. 2005) (stating that an unfulfilled death threat is not persecution where the threat was not of an
immediate and menacing nature) with Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005)
(finding threats of rape constituted past persecution where Respondent was tied up overnight and
soldiers threatened her with a gun and unzipped their pants in her presence).
The gang's killing of made it more reasonable for the respondent to fear that the
gang would fulfill its threats against him. See Baharon v. Holder, 588 F.3d 228,232-33 (4th Cir.
2009). However, the gang's threats cannot be considered to have been imminent given that they
occurred over a period oftwo years without the respondent ever actually being physically harmed.!
Thus, the court finds that the threats made against the respondent were not sufficiently severe or
imminent to constitute past persecution.
4. Well-Founded Fear of Future Persecution
Because the respondent has not established past persecution, he does not benefit from the
presumption of future persecution under the regulations. See 8 C.F.R. § 1208.13(b)(1).
For the reasons previously stated, the respondent has shown that he is a member of a
particular social group. See supra Part IV.A.3.a. The court finds that the respondent's testimony
demonstrates that he possesses a subjectively genuine fear of future persecution by the gangs in El
Salvador. Moreover, the record evidence establishes that his fear is objectively reasonable. See
Cardoza-Fonseca, 480 U.S. at 430-31. The respondent and his sister testified that continues
to be a member of Mara 18 and that the gang continues to operate in their hometown. The expert
witness testified that gangs have a "collective memory" and that individuals who a gang considers
to be its enemies have been killed five or even ten years upon their return to the gang's territory. The
brutal murder of with indicates that the harm that the respondent fears from Mara
18 would rise to the level of persecution. The record evidence also establishes that the violence
employed by gangs often rises to the level of persecution. See Group Exh. 11, Tab Cat 9, Tab D at
110,128-31,135-38.
DHS argues that the future persecution that the respondent fears will not be on account of
a protected ground, but rather because the gang wants to increase its membership numbers. See
DHS's Closing Argument at 5 (Sept. 15, 2010). The record evidence does not support this
contention. The expert witness's testimony indicates that the respondent would be targeted for gang
violence because he is a male relative of who has refused gang recruitment, not because the
gang is looking for recruits. The expert witness testified that although the gangs were recruiting
heavily in the 1990s and early 2000s, they have since become more selective in their recruitment
efforts.
I The presence of a weapon arguably adds immediacy to a threat to an individual's life. Although the
respondent testified that a gang member brandished a knife on the occasion that money was demanded of
him, he did not testify that the gang members presented a weapon on the occasion that they threatened his
life.
9

The record evidence also shows that the government ofEI Salvador is unable to control gang
violence. The expert witness stated that EI Salvador has the highest homicide rate in the western
hemisphere, due in part to gang violence. He also stated that the government is incompetent and
ineffective in controlling criminal activity and also struggles with corruption. These statements are
supported by documentary record evidence. See Group Exh. 11, Tab D at 196-205; Group Exh. 6,
Tab D at 10, Tab K.
Finally, the respondent has shown that he cannot reasonably avoid future persecution through
internal relocation. See 8 C.F.R. § 1208.13(b )(3)(i). Record evidence confirms the expert witness's
testimony that gangs have become increasingly sophisticated in recent years and now communicate
and work together throughout EI Salvador. See Group Exh. 11, Tab D at 98-9.
Accordingly, the court finds that the respondent has shown that he has a well-founded fear
of persecution in E Salvador on account of his membership in a particular social group.
5. Discretion
The record does not contain any egregious adverse factors warranting the discretionary denial
of asylum. See Zuh v. Mukasey, 547 F.3d 504 (4th Cir. 2008). The court will therefore grant the
respondent the relief of asylum in the exercise of its discretion.
C. Application/or Withholding 0/ Removal Under INA § 241 (b)(3)
Because the court will grant the respondent the relief of asylum it does not reach his
application for withholding of removal under the Act. Accordingly, the court enters the following
order:
ORDER
It Is Ordered that:
It Is Further Ordered that:
The respondent's application for asylum under INA
§ 208(a) be GRANTED.
The hearing scheduled for October 25,2010 be
CANCELLED.
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Immigration Judge
10