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Yanez, Jessica L. Yanez Immigration Law 2007 Boulevard Street, Suite C Greensboro, NC 27407

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212

Name: Rmlll-� M­Riders:202-078-993

Date of this notice: 9/16/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members: Pauley, Roger Cole, Patricia A. O'Herron, Margaret M

Sincerely,

DOYl.ltL c t1/lA)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files: 992 - Charlotte, NC Date: 993

In re:�� ---ommllllll�

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Jessica L. Yanez, Esquire

ON BEHALF OF DHS: Susan Leeker Assistant Chief Counsel

CHARGE:

SEP l 6 2015

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -Present without being admitted or paroled (both respondents)

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondents appeal the Immigration Judge's May 18, 2015, decision denying their applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16-.18 (2015). 1 The appeal will be sustained in part, dismissed in part, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

In his decision, the Immigration Judge concluded that the respondent did not meet her burden in establishing a sufficient "nexus" between her experiences in El Salvador with the MS-13 and a statutorily protected ground under the Act, e.g., membership in a particular social group (I.J. at 10). Specifically, the respondent claims fear in returning to El Salvador based on death threats she experienced after she assisted her 14-year-old daughter, who was at the time living with her grandparents, in reporting and pursuing a criminal case against a gang member for her rape and kidnapping (I.J. at 8). According to the Immigration Judge, the respondent's claim, "in total," establishes only ''acts of criminal violence perpetrated by private actors" (I.J. at 9). Based on his findings, the Immigration Judge denied the respondent's application for asylum and withholding of removal under the Act.

1 The respondents are a mother, the lead respondent, and her minor child, a derivative of her mother's application for relief. All further references to the respondent refer solely to the lead respondent unless otherwise specified.

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�992 et a!.

Contrary to the Immigration Judge's decision, we find that the respondent's circumstances are not meaningfully distinguishable from those considered in the Fourth Circuit's recent decision in Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015), and that, based on her claim, she has established past persecution on the basis of her membership in a particular social group, specifically her nuclear family (1.J. at 9). In Hernandez-Avalos, the Fourth Circuit, where this case arises, found that the alien established past persecution on account of her membership in a particular social group based on her claim that members of the Mara-18 gang murdered her husband's cousin and then made death threats against her to keep her from reporting their involvement in that crime. See id. at 947. Following a series of death threats against her own person, members of the gang came to the alien's home and tried to forcibly recruit her 12-year-old son into the gang. See id. When the alien refused, she was told by gang members that she had 1 day to turn over her son or she would be killed. See id.

In its decision, the Fourth Circuit first concluded that that "membership in a nuclear family qualifies as a protected ground for asylum purposes."2 See id. at 949 (internal citations omitted). The Court further found that "[t]o prove that persecution took place on account of family ties, an asylum applicant 'need not show that his family ties provide 'the central reason or even a dominant central reason' for his persecution, [but] he must demonstrate that these ties are more than 'an incidental, tangential, superficial, or subordinate reason' for his persecution."' See id. (citing Crespin-Vallardes v. Holder, 632 F.3d 117 (4th Cir. 2011)). Under these circumstances, we cannot agree with the Immigration Judge's finding that the respondent did not establish a sufficient nexus for her claim based on her familial relationship to her daughter because she did not show that she had the "same level of parental authority over [her daughter] as the alien had over her son" in Hernandez-Avalos (I.J. at 9).

Indeed, as in Hernandez-Avalos, the respondent's relationship in this case to her daughter is why she, and not another person, was threatened with death, and the gang members' threats toward her were an attempt to leverage her authority to control her daughter's activities and to not report or criminally pursue the kidnap and rape. The Immigration Judge's conclusion that the threats were directed at the respondent as random acts of "criminal violence perpetrated by private actors" and not because she is the mother of the girl that reported her rape by a gang member to police draws a meaningless distinction between the facts in this case and those in Hernandez-Avalos. See also Cordova v. Holder, 759 F.3d 332 (4th Cir.2014) (finding Board had not properly considered alien's evidence that the later threats he received, after refusal to be recruited by a gang, were motivated by retaliation for his cousin and uncle's membership in a rival gang and thereby motivated by his membership in his particular family). Further, as to the requirement that the respondent demonstrate past persecution, the Fourth Circuit has expressly held that ''the threat of death qualifies as persecution." See Crespin-Valladares v. Holder, supra, at 126; see also Hernandez-Avalos, supra, at 949.

Inasmuch as we find the respondent has established harm rising to the level of past persecution "on account of' a protected ground based on her claim, we find it necessary to

2 In his decision, the Immigration Judge assumed ''without deciding" that the respondent established her membership in a particular social group by virtue of her familial relationship to her daughter (I.J. at 8).

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remand the record to the Immigration Judge to consider whether the respondent has established the government of El Salvador was or is unwilling or unable to control the activities of the gangs in that country and, if so, whether the Department of Homeland Security has rebutted any presumption of a well-founded fear of future persecution for purposes of the respondent's eligibility for asylum and withholding of removal under the Act. 3 However, we also find that the Immigration Judge's decision denying the respondent's application for protection under the Convention Against Torture based on her failure to show that the El Salvadoran government is likely to acquiesce in her torture based on her claim is sufficiently supported by the record (I.J. at 10-12). See Suarez-Valenzuela v. Holder, 114 F.3d 241, 248 (4th Cir. 2013) (affirming Board's decision that alien did not establish government acquiescence to gangs in El Salvador); Lizama v. Holder, 629 F.3d. 440 (4th Cir. 2011) (affirming Board decision finding alien failed to establish it was more likely than not he would be tortured ifhe were removed to El Salvador, as required under the Convention Against Torture; although evidence indicated pervasive crime and gang violence in El Salvador, no evidence showed that gangs in El Salvador had the approval or acquiescence of the government of El Salvador).

Accordingly, the respondents' appeal of the Immigration Judge's denial of their applications for asylum and withholding of removal under the Act will be sustained, the remainder of the appeal will be dismissed, and the record will be remanded to the Immif ation Judge for further proceedings consistent with this opinion and for entry of a new decision.

ORDER: The respondents' appeal of the Immigration Judge's denial of their applications for asylum and withholding of removal under the Act is sustained, the remainder of the appeal is dismissed, and the record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

3 In this regard, we note that the evidence indicates the offending gang member was arrested by police but released because of lack of evidence inasmuch as the respondent's daughter did not have a medical exam after the rape and had already separately fled to the United States after the gang member was arrested. Further, the record also indicates that the offending gang member is now dead and that his mother and sister, also gang members, now blame the respondent for his death among other things.

4 We note that the minor respondent is only a derivative for purposes of the lead respondent's application for asylum under section 208 of the Act and not for purposes of withholding of removal under section 241 (b )(3) of the Act.

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