By: Evan Reid and Ashley Collette
On February 13, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion in Salgado-Sosa v. Sessions, a highly anticipated immigration case. With the increase in Honduran nationals claiming persecution and seeking asylum in the United States, this case will likely have a far-reaching impact on the broader immigration conversation.
Facts and Procedural History
Reynaldo Salgado-Sosa is a native and citizen of Honduras who entered the United States without inspection in August 2005. In September 2010, Salgado-Sosa was charged with violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) and became subject to removal. Salgado-Sosa conceded removability but applied for asylum, withholding of removal, and protection under the Convention Against Torture.
Salgado-Sosa feared that if he returned to Honduras he would be persecuted at the hands of a violent gang, Mara Salvatrucha (“MS-13”). MS-13 gang members have repeatedly attacked Salgado-Sosa’s family for failing to pay them to protect the family’s convenience store and automobile repair shop in Tegucigalpa, Honduras. Salgado-Sosa’s family attempted to fight back and contacted the police in order to have the gang members arrested. However, all of the suspected gang members were eventually released without charges.
At Salgado-Sosa’s removal hearing, both Salgado-Sosa and his stepfather presented testimony and evidence regarding the events that led to his fleeing Honduras for the United States. Salgado-Sosa noted that his family warned him that MS-13 continues to question his whereabouts, which causes him to remain in fear of returning to Honduras.
Even though the immigration judge (“IJ”) found Salgado-Sosa’s claims of fear credible, the IJ denied his asylum application as untimely filed because under the INA, individuals applying for asylum must file their application within one year of arriving in the United States. Salgado-Sosa argued that he qualified for a statutory “changed circumstances” exception. The IJ rejected that argument, finding that because the attacks by MS-13 remained the basis for Salgado-Sosa’s fear of return, he had not shown a material change in circumstances.
The IJ also found that Salgado-Sosa was not entitled to withholding of removal because he did not establish a clear probability that his life would be threatened because of one of several protected grounds. While family can be considered a cognizable particular social group, the IJ noted that Salgado-Sosa did not satisfy the “nexus” requirement that he feared persecution on account of those family ties.
The IJ also denied relief to Salgado-Sosa under the Convention Against Torture as it requires the finding that if Salgado-Sosa was removed then he would more likely than not be tortured.
Salgado-Sosa appealed the decision to a one-member panel of the Board of Immigration Appeals (“Board”), which affirmed the IJ’s findings and dismissed Salgado-Sosa’s appeal. The focus of the proceedings before the Board was on whether Salgado-Sosa was able to show that MS-13’s threats were related to his membership in a cognizable “particular social group.” The Board found that Salgado-Sosa had not established the required nexus between his membership in a particular social group and MS-13’s threats and thus denied his request for withholding of removal. Separately, the Board denied Salgado-Sosa’s asylum application as it was untimely and there was insufficient evidence to justify protection under the Convention Against Torture.
Salgado-Sosa petitioned the United States Court of Appeals for the Fourth Circuit to review the Board’s decision. The primary issues on appeal were Salgado-Sosa’s application for asylum and withholding of removal.
Timeliness of Application for Asylum and Withholding of Removal
The appeal reviewed both the Board’s decision as well as the IJ’s opinion because the Board affirmed the IJ’s decision with an opinion of its own. In reviewing the decisions, the court noted that while there are some differences between asylum and withholding of removal, the core condition of eligibility is the same: “that there be a nexus between threatened persecution and a protected status.”
The court concluded that the IJ and the Board erred in finding that Salgado-Sosa had not met the nexus requirement because one of the main reasons for Salgado-Sosa’s persecution by MS-13 was based on his membership in his family, which is a protected social group under the INA. The court looked to ample evidence that corroborated the centrality of family ties to the fear of persecution. Specifically, “Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably ‘why [he], and not another person, was threatened’ by MS-13.” Accordingly, the court vacated the denial of withholding of removal and remanded for further proceedings on this particular claim.
Turning to the asylum claim, the United States Court of Appeals for the Fourth Circuit stated that while the court “generally lack[s] jurisdiction to review discretionary determinations that an asylum application failed to establish changed circumstances,” it does have jurisdiction when the appeal presents a constitutional question of law. However, the question of law at issue here was not raised before the IJ and thus the Board did not reach the claim and Salgado-Sosa did not exhaust his administrative remedies. While this would normally end the inquiry, in light of the court’s recent decision in Zambrano v. Sessions the court remanded the asylum claim separately for consideration.
This opinion highlights the complexities in immigration issues and the role that semantics play in determining those issues. With immigration matters a top priority for the Executive Branch, more opinions wading through the INA are sure to follow.