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U.S.

Department of Justice

Executive Office for Immigration Review


,
Board ofImmigration Appeals
Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church, V1rg1ma 22041

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Hoffman, Brian J. OHS/ICE Office of Chief Counsel - SOC
Southeast Immigrant Freedom Initiative 146 CCA Road, P.O.Box 248
PO Box 158 Lumpkin, GA 31815
Lumpkin, GA 31815

Name: C Q ,E A 146

Date of this notice: 11/17/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kendall Clark, Molly
Guendelsberger, John
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: E-C-Q-, AXXX XXX 146 (BIA Nov. 17, 2017)
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U.S. Department ot Ju�ice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

I
Falls Church, Virginia 22041

File: 146 - Lumpkin, GA Date:


NOV 1 7 2017
In re: E C Q

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Brian J. Hoffman, Esquire

APPLICATION: Continuance; asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Guatemala, appeals the decisions of the Immigration
Judge, dated June 8, 2017, denying his motion for a continuance; pretermitting his asylum
application as untimely; and denying his applications for withholding of removal and for protection
under the Convention Against Torture. The respondent's appeal will be sustained as to the motion
for a continuance, and the record remanded for further proceedings.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.1(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. § 1003. l (d)(3)(ii).

The Notice to Appear was filed in this case on March 29, 2017 (Exh. 1). At his first master
calendar hearing on April 17, 2017, the respondent was advised of his rights and asked if he wanted
time to find a lawyer or invoke the help of family. The respondent stated that he did not need time
and could talk for himself (Tr. at 4-6). He was given an asylum application and asked to prepare
and file it at the next master calendar hearing scheduled on May 24, 2017. He was also given a
list of legal services, and advised that he may obtain evidence from Guatemala to support his
asylum application (Tr. at 10-11).

At his second master calendar hearing on May 24, 2017, the respondent, again appearing pro
se, filed his asylum application. The Immigration Judge set his individual hearing for 2 weeks
later, on June 8, 2017. At his June 8, 2017, hearing, the respondent submitted a motion for a
continuance so that he could obtain representation by an attorney to obtain legal counsel to assist
him in collecting evidence, preparing testimony, and presenting his claim.

The Immigration Judge denied the motion for a continuance in an oral decision (U at 2-5,
June 8, 2017, Oral Decision on Motion for Continuance). The Immigration Judge stated that, ''the
respondent had the total ability" to obtain support for his application prior to the hearing, and
described the request for a continuance as a "dilatory tactic" (U at 5).

The decision to grant or deny a continuance is within the discretion of the Immigration Judge,
if good cause is shown, and that decision will not be overturned on appeal unless it appears that
the respondent was deprived of a full and fair hearing. Matter ofPerez-Andrade, 19 I&N Dec. 433

Cite as: E-C-Q-, AXXX XXX 146 (BIA Nov. 17, 2017)
..
146

(BIA 1987); 8 C.F.R. §§ 1003.29, 1240.6. See also Matter of Sibrun, 18 l&N Dec. 354, 356-57
(BIA 1983).

On de novo review, we find that the respondent was deprived of a full and fair hearing. The
respondent's second master calendar hearing was scheduled a little over one month after his first
hearing. At his second hearing, he filed his asylum application as ordered by the Immigration

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Judge. The respondent had minimal time to prepare for his individual hearing, which was
scheduled little more than 2 weeks after he filed his asylum application.

The pro se motion for a continuance listed a number of valid reasons for seeking a continuance,
including his desire to obtain representation and the need for time to obtain corroborating
documentation for his asylum application, induding documents from Guatemala. The respondent
had not requested, or received, any prior continuances. Further, there was no indication that the
respondent's motion was filed for purposes of delay.

Accordingly, we will vacate the Immigration Judge's decisions and remand the record for
further proceedings in accordance with this decision. Given our resolution of this appeal, we need
not address the other issues raised by the respondent on appeal. We decline to transfer this
proceeding to another Immigration Judge. Accordingly, the following order will be issued.

O�ER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge's June 8, 2017, decisions are vacated and the
record is remanded for further proceedings in accordance with this decision.

OR THE BOARD

2
Cite as: E-C-Q-, AXXX XXX 146 (BIA Nov. 17, 2017)
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_ ...
.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFl9E FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

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File: 146 June 8, 2017

In the Matter of

)
E C Q ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act,


as amended, in that you are an alien 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

APPLICATIONS: Section 208 of the Immigration and Nationality Act, asylum


Section 241(b )(3)(A) of the Immigration and Nationality Act,
withholding of removal Section 1208.16 of Title 8 of the Code of
Federal Regulations, withholding of removal under the Convention
Against Torture

ON BEHALF OF RESPONDENT: Pro se

ON BEHALF OF OHS: James Growlidge

ORAL DECISION OF THE IMMIGRATION JUDGE

PROCEDURAL HISTORY

Respondent is a male native and citizen of Guatemala. On March 15,

2015, the Department of Homeland Security (Department or OHS) served respondent


. .,.

with a Notice to Appear (NTA) charging him with inadmissibility under Section

212(a)(6)(A)(i) of the Act [indiscernible].

At a master calendar hearing on April 17, 2017, respondent appeared

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before the court and admitted the allegations of fact and conceded the charge of

removability. Respondent notified the court of his intent to seek asylum, withholding of

removal, and relief under the Convention Against Torture (CAT), herein after CAT. INA

Sections 208, 241(b)(3)(A); 8 C.F.R. §1208.16.

On May 24, 2017, respondent submitted his asylum application and

documentation. On June 8, 2017, the court heard testimony from the respondent.1

As the respondent has admitted and conceded the charge of removability

and because the respondent had been found removable by clear and convincing

evidence, the question before the court is whether respondent is eligible for relief of

asylum, withholding of removal, or protection under the Convention Against Torture or

post-conclusion voluntary departure.

The court has now considered arguments of both parties and the entire

record carefully. All evidence has been considered, even if not specifically discussed

further in this decision. For the reasons set below, the court will enter the following

decision.

EVIDENCE PRESENTED

DOCUMENTARY EVIDENCE

In this case, Exhibit Number 1 is the Notice to Appear. Exhibit Number 2

is respondent's 1-589 application for asylum and withholding of removal. 2

1 The respondent, on April 17, 2017, refused his right to take time to find an attorney, to speak with Catholic
Charities or his family and insisted on representing himself. Further, May 24, 2017, respondent again did not wish
to have any time to speak to an attorney, his family, Catholic Charities, or find any other help with his case.
2 The court declined to insist that the respondent sign his application, although he has been sworn to it because
the court was unsure whether the respondent knew exactly what was in his application because he could not be

146 2 June 8, 2017


Exhibit Number 2 is the respondent's asylum application. Exhibit Number

3 is the Department of Homeland Security notice of filing. Exhibit Number 4 is the

submission entitled "El Salvador, Honduras, Guatemala launch force to confront gangs."

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Exhibit Number 5 was the respondent's motion to continue today, which was denied. 3

TESTIMONIAL EVIDENCE

The following is derived from testimony given at the individual merits

hearing today, June 8, 2017.

Respondent is a native and citizen of Guatemala and he is 27 years old.

He was born in Guatemala.

Respondent's mother lives in Guatemala. His father lives in Guatemala.

His brothers live in Guatemala, three of them, and he has one sister in Guatemala.

Respondent is not married and has no children.

Aside from his parents and his siblings, respondent also has a

grandmother in Guatemala.

As to family in the United States, the respondent has three brothers in the

United States, according to him in the process, however, all of them are illegally in the

United States.

Respondent has no sisters in the United States.

Respondent does have friends in the United States.

Upon query by the court as to how much money he paid a smuggler to get

him here, respondent testified that he came alone.

When asked why he did not attempt to get a visa to visit the United States

[indiscernible] respondent answered he had no idea how to get one.

certain whether it had been read back to him. However, the court finds that his application is consistent with the
statements that he made in court today.
3 There is an oral decision on the denial of the motion to continue.

146 3 June 8, 2017


Respondent's fear is essentially of the MS-13 gang.

Respondent testified in fear of the 18th Street gang.

Respondent testified that the gang wanted to "recruit me."

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Respondent testified that the gang wanted him to join and that when he

refused, they would threaten him with blades or knives.

Respondent testified that the gangs continued to threaten to kill him and

his brothers and parents. That started in the year 2003 and continued for four years

until 2007, after which he fled to the United States in 2008.

Upon query as to whether or not he reported to the police, respondent

testified he tried three times to report to the police, but there's no protection from the

gangs by going to the police in Guatemala. Respondent believes the police are

involved with the gangs and the police corruption is so great that they will tell the gangs

about any reporting and the gangs will beat up the respondent.

Upon query by the court, the respondent answered the following

questions. If he was ever arrested by the government or a government agent of

Guatemala. The answer as no.

As to whether he was ever jailed or detained by an agent of the

government of Guatemala, his answer was no. As to whether he was ever charged with

any malfeasance or taken to a court of law, his answer was no. As to the question if he

was ever sentenced by a judge or taken to a judge in Guatemala, his answer was no.

The respondent testified the police will never help him, the gang has

gotten bigger of the years, and that he is afraid of the Mara 18.

Respondent fears return because his brother has been threatened. "They

will threaten and kill me," according to the respondent. The respondent was in the

United States for nine years before he filed for asylum.

146 4 June 8, 2017


When queried as to why he was in the United States for nine years before

he filed for asylum and why he late-filed, respondent answered that first because he had

no job, second because no one told him about it, third because he was afraid if he went

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to the government, he would return to Guatemala, and fourth, because he didn't know.

Upon further inquiry, the respondent testified that he did know that his

brother had an attorney, and it is true that he had an attorney for his bond hearing this

morning, and it was further true that he had an attorney in the courtroom with his sister­

4
in-law observing the proceedings.

The respondent testified that his brother, Lucas, was granted asylum for

the same reasons that respondent was asking. He said that he came to the United

States because there's no corruption in the United States and in his country, there is

total corruption.

Respondent testified that in the United States, he feels safe because there

are laws in this country.

Respondent testified that he has a fear because he has death threats

against him, that corruption exists in his country, that he is fearful for his life and does

not wish to return. He testified that he does not wish to return to that kind of life, fearing

death, and he will never feel safe over there.

It is noted that respondent was turned around at the border by Customs

Border Patrol agents in 2008 and given a voluntary return after he told them that he was

a citizen of Mexico, so they returned him to Mexico. The respondent was slow to

answer why he said he was a citizen of Mexico, although it is a reasonable deduction

4 It is clear to the court that the respondent and his family are aware of attorneys and do know how to get one if
they wish. Furthermore, the attorney from this morning, the respondent had every opportunity to work with the
attorney from his bond hearing this morning to have that attorney represent him, or even better, to have the
attorney who was sitting in the courtroom observing his case and counseling the respondent and his sister-in-law.
That same attorney never filed an E-28 and did make no effort to represent the respondent.

146 5 June 8, 2017


from the evidence from years of watching people from different countries claim that they

are from Mexico because it makes it easier for them to cross the border back into the

United States without a long distance travel.

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Finally, the respondent's only answer was that there were a lot of drugs,

corruption, hitmen, and corruption in Mexico. Respondent told the court that he always

wanted to work and do the right thing and not get involved with criminals, that he is a

good person, and that he is law-abiding.

Also testifying today is respondent's sister-in-law, Misty Churunel. She is

a United States citizen by birth and she's married to the respondent's brother. She has

been married to the respondent's brother for three years and informs the court that they

are working on an unlawful presence waiver.

Respondent's sister-in-law has never been !go Guatemala.

Respondent's sister says respondent has a very good family relationship

and is very supported by the family. She testified that his family all came here because

there were gangs trying to recruit them and he had a brother who was killed.

Respondent's sister-in-law testified that respondent's family has very little

education, they got picked on and beat up, and therefore, they tried to leave a bad

situation.

She further testified that Lucas does have asylum.

Respondent's sister-in-law testified respondent had no resources when he

entered the United States in 2008. Respondent's brother has a lawyer since 2014 or

'15 and the respondent and his family have now met lawyers can be gotten.

CREDIBILITY

Respondent's application for asylum was filed after May 11, 2005, thus the

Immigration and Nationality Act, as amended by the REAL ID Act of 2005, Public Law

146 6 June 8, 2017


Number 109-13, 119 stat 231 (2005), governs this case.

The court need not go into the details of the law on credibility, as the court

has found that there is an internal consistency between the applicant's written and oral

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statements and finds that he is a credible person.

Even though the court finds that respondent is credible, he still must

demonstrate eligibility for the relief he seeks. A finding of credible testimony is not

dispositive as to whether asylum should be granted. Rather, the specific content of the

testimony and any other relevant evidence is also considered. See Matter of E-P-, 21

l&N Dec. 860, 862 (BIA 1997).

ASYLUM

Any individual who is physically present in the United States, irrespective

of status, may receive asylum in the exercise of discretion, provided he or she timely

files an application and qualifies as a refugee within the meaning of Section

101(a)(42)(A) of the INA. See INA Section 208.

An alien requesting asylum bears the evidentiary burden of proof and

persuasion in connection with an asylum application. INA Section 208(b)(1)(B)(i); 8

C.F.R. §1208.13; Matter of S-M-J-, 21 l&N Dec. 722 (BIA 1997); Matter of S-P-, 21 l&N

Dec. 486 (BIA 1996).

An applicant who's a refugee within the meaning of Section 101(a)(42)(A)

of the Act, if he is unwilling or unable to return to his or her home country because of

persecution of a well-founded fear of persecution on account of race, religion,

nationality, political opinion, or membership in a particular social group.

THE ONE-YEAR BAR

An asylum applicant must demonstrate by clear and convincing evidence

that he filed the application for asylum within one year of his arrival in the United States

146 7 June 8, 2017


or to the satisfaction of the immigration judge. that he qualifies for an exception to the

one-year deadline. 8 C.F.R. §1208.4(a)(2)(i)(a)-(b). The one-year period is calculated

from the respondent's last arrival to the United States or April 1, 1997, whichever is

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later. 8 C.F.R. §1208.4(a)(2)(ii).

Changed circumstances include, but are not limited to, one, changes in

the applicant's country of nationality; two, changes in the applicant's eligibility for

asylum, including changes in applicable U.S. law and activities the applicant becomes

involved in outside the country of feared persecution that place an applicant at risk; or

three, determination of a relationship that qualifies the applicant as dependent on

another pending asylum, including attainment of the age of 21.

Extraordinary circumstances include, but are not limited to, one, serious

illness or mental or physical disability, including effects-of persecution; two, legal

disability; three, ineffective assistance of counsel; four, the applicant maintained

temporary protected status, lawful immigrant or non-immigrant status, or was given

parole until a reasonable period before filing of the application; five, the applicant filed

an application before the one-year deadline, but that application was rejected by the

service as not properly filed and was returned to applicant for corrections and was re­

filed within a reasonable period thereafter; six, the death or serious illness or incapacity

of an applicant's legal representative or a member of the applicant's immediate family.

In this case, the burden of proof is on the applicant to establish to the

satisfaction of the court that the circumstances were not intentionally created by him or

her through his or her own actions or inaction and that those circumstances were

directly related to his failure to file the application within the one-year period and the

delay was reasonable under the circumstances.

Respondent entered the United States in 2008.

146 8 June 8, 2017


Respondent did not file his a�ylum application until 2017.

Respondent's reasons is that he did not know.

Therefore, respondent did not file his application for asylum within one

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year of arrival to the United States. Because respondent has not provided sufficient or

any evidence that would allow him to fall under the exception to the one-year filing

deadline, the court finds that respondent's application for asylum is barred as untimely

filed. INA Section 208(b)(2)(D).

PAST PERSECUTION

Past persecution can establish a claim to asylum. 8 C.F.R. §1208.13(b).

Persecution is the infliction of suffering or harm upon an individual to punish him or her

for possessing a belief or characteristic a persecutor seeks to overcome. Matter of

Acosta, 19 l&N Dec. 211, 223 (BIA 1985), overruled on other grounds by Matter of

Mogharrabi, 19 l&N Dec. 439 (BIA 1987), and has been characterized as an extreme

concept. Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000).

Persecution does not encompass all treatment that society regards as

unfair, unjust, or even unlawful and unconstitutional. Matter of V-T-S-, 21 l&N Dec. 792,

798 (BIA 1997), quoting Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993); nor does

persecution encompass a few isolated incidents of harassment or intimidation.

Sepulveda v. U.S. Attorney General, 401 F.3d 1226, 1231 (11th Cir. 2005).

Instead, the respondent must show that these threats are accompanied by

physical punishment, infliction of harm, or serious deprivation of liberty. Gonzalez, 212

F.3d at 1355.

Although verbal harassment and intimidation alone are not persecution,

when considered cumulatively with other threats and attacks over a period of time, they

may amount to a finding of past persecution. Mejia v. U.S. Attorney General, 498 F.3d

146 9 June 8, 2017


1253, 1255-57 (11th Cir. 2007).

Mere harassing threats or menacing phone calls do not amount to

persecution. Sepulveda v. U.S. Attorney General, 401 F.3d 1226 (11th Cir. 2005); Silva

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v. Attorney General, 448 F.3d 1229 (11th Cir. 2006).

Respondent did not establish past persecution under the 11th Circuit law.

As in this case, where the court has found that there has been no past

persecution, the respondent has not established that he is entitled to the presumption

that he has a well-founded fear of future persecution in Guatemala based on the same

claim.

Even if an applicant fails to demonstrate past persecution, he or she may

still establish eligibility for asylum based upon proof of a well-founded fear of future

persecution. 8 C.F.R. §1208.13(b)(2).

However, that applicant is to prove a well-founded fear of future

persecution by demonstrating a subjectively genuinely and objectively reasonable fear

of persecution that is on account of a protected ground. Silva v. U.S. Attorney General,

448 F.3d at 1236; Sanchez-Jimenez v. U.S. Attorney General, 492 F.3d at 1232; 8

C.F.R. §1208.13(b)(2)(i).

The subjective component may be satisfied by the applicant's credible

testimony that he or she genuinely fears persecution. Sanchez-Jimenez v. U.S.

Attorney General, 492 F.3d at 1232, citing Najjar v. Ashcroft, 257 F.3d at 1289.

The objective prong may be satisfied by the applicant establishing that he

or she has a good reason to fear future persecution. Ruiz v. U.S. Attorney General, 440

F.3d 1247, 1257 (11th Cir. 2006).

In light of the Form 1-589 and his credible testimony, the court has found

that as he has not establish a credible fear of persecution in Guatemala, he has failed

146 10 June 8, 2017


also to establish the subjective component o{ a credible fear. And, even assuming

arguendo that he had established the subjective component, respondent has not

demonstrated that he has an objectively reasonable fear of persecution that is on

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account of a protected ground..

In this case, in the respondent's asylum application, Exhibit Number 2,

respondent has checked the boxes for race, membership in a particular social group,

and Torture Convention. The respondent made a passing reference to his ethnicity

when discussing whether or not he went to report to the police. And he stated that they

would not respond to him because of his ethnicity. Aside from that one statement,

there's not one centile of evidence before the court to that the respondent has suffered

in any way because of his particular ethnicity in Guatemala. Therefore, he has fatally

failed to establish past persecution or a fear of future persecution on the basis of race.

Furthermore, as to membership in a particular social group, there has

been no specific, clearly articulated definition for membership in the particular social

group to which the respondent belongs. However, as this is not unusual with a pro se

respondent, the court shall sua sponte attempt to define membership in a particular

social group for the respondent.

The court believes that the respondent is claiming membership in a

particular social group, that social group being single men in Guatemala who have been

threatened by the 18 gang over a number of years and who do not believe they can get

protection from the police.5

The court notes further that the respondent has failed to carry his burden

of proof on membership in a particular social group.

MEMBERSHIP IN A PARTICULAR SOCIAL GROUP

5 The court believes, based on its experience, that this is essentially the respondent's claim.

146 11 June 8, 2017


The starting point in defining the phrase "particular social group" is set

forth in Matter of Acosta, 19 l&N Dec. 211 (BIA 1985) (rejecting a claimed social group

of Salvadoran taxi drivers because their occupation was not beyond their power to

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change or so fundamental that change ought not be required), modified on other

grounds by Matter of Mogharrabi, 19 l&N Dec. 439 (BIA 1987).

Members of a particular social group must share a common immutable

characteristic, which may be an innate one such as sex, color, or kinship ties, or a

shared experience such as former military leadership or land ownership, but it must be

one that the members of the group either cannot change or should not be required to

change because it is fundamental to their individual identities or consciousness. Matter

of Acosta, 19 l&N Dec. 211 (BIA 1985), modified on other grounds by Matter of

Moqharrabi, 19 l&N Dec. 439 (BIA 1987); Castillo-Arias v. U.S. Attorney General, 446

F.3d 1190 (11th Cir. 2006), holding that the BIA's Acosta formulation of particular social

group is applicable to the 11th Circuit.

The common immutable characteristic must be fundamental to the

members' individual identities or consciousness.

However, the particular social group category is not a catch-all for people

who allege persecution but do not fit into other protected grounds. Castillo-Arias, 446

F.3d at 1198. Social groups must have sufficient social visibility to be entitled to

protection.

In this case, the law in the 11th Circuit makes clear that fear of gangs is

not grounds for asylum in the United States.

Membership in a particular social group requires that the group have

sufficiently well-defined boundaries particularity requirement. Matter of A-T-, 24 l&N

Dec. 296 (BIA 2007); Matter of S-E-G-, 24 l&N Dec. 579 (BIA 2008), finding that

146 12 June 8, 2017


Salvadoran youth who refused gang recruitrnent failed the particularity requirement

because there was no evidence in the record to show that gang members limit

recruitment efforts to male children who fit their description or to do so in order to punish

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them for their characteristics, citing Matter of A-M-E- & J-G-U-, 24 l&N Dec. 69 (BIA

2007).

Finally, members of a particular social group must possess a recognized

level of social visibility sufficient to allow members of the society to readily identify or

perceive those with the characteristic in question as members of the claimed particular

social group. Matter of E-A-G-, 24 l&N Dec. 591 (BIA 2008), noting that the focus is on

the existence and visibility of the group in society in question and on the importance of

pertinent group characteristics to members of the group. See also Matter of S-E-G-, 24

l&N Dec. 579, 584-588 (BIA 2008), holding that the shared characteristic of the group

should be recognizable by others in the community and the group would be recognized

as a distinct class of persons.

To be socially distinct, the group need not be seen by or ocularly visible to

society. Rather, the group need only to be perceived, considered, or recognized by

society as sharing the particular characteristic to the group. However, the respondent

has failed on the social distinction because the claimed group would be too large to be

socially distinct. Furthermore, respondent's persecutors do not recognize the

respondent as a member of a particular social group, they simply recognize him as

someone who is not gang member and who they would like to recruit.

UNFULFILLED THREATS

Unfulfilled threats must be of a highly imminent and menacing nature in

order to constitute persecution. Li v. Attorney General, 400 F.3d 157, 164 (3rd Cir.

2005). Unfulfilled threats, even death threats, constitute persecution in only a small

146 13 June 8, 2017


category of cases, and only when the threats. are so menacing as to cause significant

actual harm or suffering. Although it is quite clear that some of the things respondent

was threatened with, such as blades and knife threats and threats to kill him, they are

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not based on race, religion, nationality, political opinion, or membership in a particular

social group.

GANG MEMBERSHIP AND MEMBERS OF PARTICULAR SOCIAL GROUP

The Board has long held that people who refuse gang recruitment for

personal, religious, or moral reasons do not constitute a social group. Matter of S-E-G-,

24 l&N Dec. 579, 588 (BIA 2008). Similarly, the Board has held that persons perceived

to be affiliated with gangs cannot be a recognized social group, as it is inconsistent with

the principles underlying the bars to asylum and withholding of removal based on

criminal behavior. Matter of E-A-G-, 24 l&N Dec. 591, 594 (BIA 2008), indicating that

persons resistant to gang membership lack social visibility; see also Matter of C-A-, 23

l&N Dec. 951, 959-61 (BIA 2006).

Even if the court were to accept respondent's account regard the gang's

activities, respondent has not suffered past persecution on a protected ground. For

one, the gang violence plaguing Guatemala is widespread and does not significantly

target respondent or is family. Rather, it is civil strife affecting the country at large,

which does not constitute persecution on account of a protected ground. Matter of

Rodriquez-Majena, 19 l&N Dec. 811 (BIA 1988), Matter of Sanchez-Escobar, 19 l&N

Dec. 276 (BIA 1985).

, The court notes that the evidence presented by respondent does not

demonstrate a clear probability that respondent has been or would be tortured by or at

the acquiescence or with the consent or acquiescence of a public official as required.

Respondent's asserted fear of persecution is from gangs, although he believes that

146 14 June 8, 2017


public officials will not assist him.

The respondent is unable to win his case on that claim based on the fact

that there is ongoing evidence of the government's attempts to deal with the gang

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problems in Guatemala.

In short, respondent's fear of return to Guatemala is based on generalized

gang violence that does not establish prima facie eligibility for asylum. Resistance to

gang membership based on personal, moral, or religious opposition and family

members of such persons do not constitute particular social groups, as gang violence

affects all segments of the population. Prevalent gang violence does not establish a

well-founded fear of persecution on account of a protected ground. INS v. Elias­

Zacarias, 502 U.S. 578 (1992); INS v. Stevie, 467 U.S. 407 (1984); Matter of S-E-G-, 24

l&N Dec. 579, 587-88 (BIA 2008); Matter of J-D-M- & S-M-, 24 l&N Dec. 208 (BIA

2007).

Victims of gang violence and unwilling gang recruits do not establish a

particular social group. Matter of E-A-G-, 24 l&N Dec. 591 (BIA 2008), Matter of S-E-G­

, 24 l&N Dec. 579, 588 (BIA 2008).

It would appear that the respondent is claiming that he has been

persecuted by the 18 gang on account of his imputed anti-gang opinion or his

membership in a particular social group. In this case, the court is sua sponte assuming

that means young males who are actively recruited by gangs and the gangs want to be

gang members.

Respondent's claim fails on that as number one, the respondent is not

eligible for asylum, as previously stated. Respondent has failed to carry his burden of

proof on past persecution and future persecution, and therefore the court will move

forward to withholding of removal.

146 15 June 8, 2017


WITHHOLDING OF REMOVAL

Withholding of removal, in contrast to asylum, confers only the right not to

be deported to a particular country, rather than the right to remain in the United States.

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INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). To establish eligibility for withholding of

removal, an applicant must show that there is a clear probability of persecution in the

country designated for his or her removal on account of his or her race, religion,

nationality, political opinion, or membership in a particular social group. Such a showing

requires that an applicant establish that it is more likely than not that he or she would be

subject to persecution if returned to the country from he or she seeks withholding of

removal. While a respondent need not show conclusively what the motive for the

persecution would be or that the persecutor would be motivated solely by a protected

ground, the applicant must produce evidence from which it is reasonable to conclude

that the harm would be motivated at least in part by an actual or imputed ground. Najjar

v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001), INS v. Stevie, 467 U.S. 407 (1984);

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Elias-Zacarias, 502 U.S. 478

(1992); Matter of S-A-, 22 l&N Dec. 1328 (BIA 2000); Matter of S-B-, 22 l&N Dec. 1306

(BIA 2000); Matter of S-P-, 21 l&N Dec. 486 (BIA 1996).

As the court has found the respondent has failed to satisfy the well­

founded fear standard for asylum, it therefore follows that he's failed to satisfy the more

stringent clear probability standard for withholding of removal. Accordingly, the court

will deny respondent's application for withholding of removal under Section 241(b)(3) of

the Act.

CONVENTION AGAINST TORTURE

An applicant for protection under the CAT bears the burden of proving that

it is more likely than not that he will be tortured if removed to the proposed country of

146 16 June 8, 2017


removal. 8 C.F.R. §1208.16(c)(2). To be eligible for relief under the CAT, a respondent

must show that it is more likely than not that he or she will be tortured if removed to the

country designated for removal. 8 C.F.R. §1208.16(c)(2). Torture is defined as the

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intentional infliction of severe pain or suffering upon a person to obtain a confession,

punish him or her, intimidate or coerce him or her, or for any reason based on

discrimination of any kind. 8 C.F.R. §1208.18(a)(1).

A respondent is not required to demonstrate he or she would be tortured

on account of a particular belief or immutable characteristic. However, respondent must

show that it is more likely than not that he will be singled out for torture by a public

official acting in his or official capacity or at the instigation of or with the acquiescence of

such officials. In this case, respondent claimed that the police are so corrupt in his

country that they belong to the gangs and that he cannot get relief from the police.

However, respondent has failed to establish this fact by stringing together a series of

suppositions to show that torture is more likely than not to occur in the future if he is

returned because Exhibit Number 4 clearly establishes that the governments of El

Salvador, Honduras, and Guatemala have joined together and launched their forces to

confront the gangs. These countries have launched a new force aimed at combatting

criminal gangs and drug traffickers. According to the three Central American nations,

they have a plan which includes intelligence sharing and speedier extradition of

detainees. The presidents have said they would join and run coordinated security

operations. Honduras, El Salvador, and Guatemala comprise one of the world's most

dangerous regions, according to the United Nations. However, although this has

prompted a mass exodus of Central Americans trying to enter the United States illegally

each year, it is also a fact that a government does not have to be 100 percent

successful in their efforts to eradicate the gangs. The fact that they are trying is

146 17 June 8, 2017


sufficient to the cause. And in this case, the joining of the leaders of three nations to

eradicate gang violence is clear evidence that the governments, although they have not

been 100 percent successful, are trying with their best efforts to control their military,

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their police, and to control whether the gangs shall take over their countries.

Further, Exhibit Number 4 also shows that the United States special forces

are helping to fight Honduras street gangs, which will be helping Guatemala and El

Salvador in the efforts, and that in El Salvador, according to the Kali [phonetic] and the

FBI, the investigators and prosecutors have joined forces to go after the MS-13.

The court understands the desire of the respondent and his various family

members to be good citizens in the United States. However, the respondent has failed

to carry his burden of proof. The respondent's fear is based on gang members who

want to recruit him to be part of their gang. They are uninterested in his race, religion,

nationality, political opinion, or membership in a particular social group. They care only

about getting another gang member to do their dirty work.

POST-CONCLUSION VOLUNTARY DEPARTURE

At the beginning of this case, the respondent was given a brief opportunity

to speak with his family member and with the attorney who was supporting her during

this time. The respondent declined the court's offer of pre-conclusion voluntary

departure that was offered as a necessity to protect his due process rights to know of all

of the available forms of relief for which he was entitled.

Respondent knowingly and voluntarily and with the help of those who

were with him in the courtroom declined pre-conclusion voluntary departure.

As is the habit of this court, the court will sua sponte consider post­

conclusion voluntary departure for the respondent.

The requirements for post-conclusion voluntary departure are clear.

146 18 June 8, 2017


At the conclusion of removal proceedings, the court may grant post­

conclusion voluntary departure in lieu of removal. INA 240B(b). The respondent bears

the burden to establish both that he's eligible for relief and that he merits a favorable

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exercise of discretion. Matter of Gamboa, 14 l&N Dec. 244 (BIA 1972); Matter of

Argulis, 22 l&N Dec. 811 (BIA 1999).

To establish eligibility, the respondent must prove that one, he has been

physically present in the United States for at least one year immediately preceding the

service of the INA; two, is and has been a person of good moral character for at least

five years immediately preceding his application for voluntary departure; three, is not

removable under Section 237(a)(2)(A)(iii) or Section 237(a)(4); and four, has

established by clear and convincing evidence that he has the means to depart the

United States and intends to do so.

It is this last that the respondent has failed to carry. There is no evidence

before this court that the respondent has the means to depart the United States or that

he intends to do so. And as such, the court must deny its sua sponte consideration of

post-conclusion voluntary departure.

Accordingly, the court enters the following orders.

ORDERS OF THE IMMIGRATION JUDGE

It is hereby ordered that the respondent's applications for asylum under

Section 208 of the Act, withholding of removal under Section 241(b)(3) of the Act, and

relief under the Convention Against Torture under Section 1208.16 of Title 8 of the code

of federal regulation are herein denied.

It is herein further ordered that the court's consideration of post-conclusion

voluntary departure shall be denied because the respondent is statutorily ineligible for

such relief.

146 19 June 8, 2017


It is hereby further ordered that the respondent be removed from the

United States to Guatemala on the charge contained in the Notice to Appear.

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Please see the next page for electronic

signature
SAUNDRA D. ARRINGTON DEMPSEY
Immigration Judge

146 20 June 8, 2017


/Isl/

Immigration Judge SAUNDRA D. ARRINGTON

arringts on August 10, 2017 at 1:39 PM GMT

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146 21 June 8, 2017