Wake Forest Law Review

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.

Conclusion

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.

 

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By Mike Stephens

In a civil case, Zhikeng Tang v. Loretta E. Lynch, decided today, October 28, 2016, the Fourth Circuit denied petition for review of an order from the Board of Immigration Appeals (“Board”) denying requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The Court ultimately denied the Petitioner’s petition for review because substantial evidence supported the Board’s decision.

Facts and Procedural History

The Petitioner, Zhikeng Tang (“Tang”), is a native and citizen of China. In July 2009, Tang entered the United States illegally. Tang was introduced to Catholicism in 2011 and began attending a church. In 2011, Tang filed for asylum and the United States government began removal proceedings.

At a hearing before an immigration judge (“IJ”), Tang requested asylum, withholding of removal, and CAT protection based on his religious practice. Tang produced evidence of his membership in the Catholic Church and testified that his faith was genuine. Tang argued that his practice of the Catholic faith required attendance in an underground church in China and not a church sanctioned by the Chinese government. Tang claimed that removal to China would result in persecution from the Chinese government due to his participation in an underground church. In support of this argument, Tang provided the IJ with letters from his family that showed underground churches in China were persecuted. In addition, Tang also produced two State Department reports that criticized the Chinese government’s treatment of religious groups in China.

While the IJ found Tang’s testimony to be credible, the IJ rejected Tang’s asylum request. The IJ found that Tang did not provide sufficient evidence to show that Tang “faces an objectively reasonable risk of persecution on account of his Roman Catholicism.’ Additionally, because Tang’s claim for asylum failed, the IJ determined Tang had failed to meet the higher standard required for withholding of removal. Lastly, the IJ also concluded that Tang did not show sufficient evidence that his chances of torture were “more likely than not” upon removal to China.

The Board, on administrative appeal, upheld the IJ’s conclusion that Tang had failed to meet his burden for asylum or withholding of removal. The Board noted that Tang had not shown that the Chinese government knew or would gain knowledge of Tang’s faith and that Tang had not “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” In addition, the Board concluded that Tang had waived his CAT claim because he did not challenge the IJ’s ruling on this claim. Tang appealed, challenging the Board’s denial of asylum, withholding of removal, and CAT protection.

Asylum

Tang argued the Board erred in denying his request for asylum, claiming that he met his burden of proof required for showing a fear of persecution in China. Tang claims that the instances of persecution evidenced in the letters from China and the State Department reports show a “pattern or practice of persecution in China.”

The Fourth Circuit rejected Tang’s argument and upheld the Board’s denial of asylum. The Court held that Tang’s evidence was not sufficient to allow a reasonable fact-finder “to conclude that the requisite fear of persecution existed.” While the Fourth Circuit found that Tang satisfied the subjective component required for asylum, the Court determined that Tang had failed to demonstrate an objective fear of persecution.

The Court found that Tang did not meet either of the requirements to satisfy the objective component provided for within 8 C.F.R. § 1208.13(b)(2). First, the Court concluded that Tang had waived a challenge to the Board’s conclusion that he would face individual persecution from the Chinese government because he failed to raise this argument. Second, the Fourth Circuit determined that Tang did not satisfy his burden of proving “an objectively reasonable chance” of facing a pattern or practice of persecution in China. The Court noted that the two State Department reports that Tang provided showed that the Chinese government recognized the Catholic faith and also permitted practice of the faith in churches and at home. Additionally, the reports and the letters from Tang’s family only showed “random” or “isolated and sporadic” instances of harassment. Thus, because the persecution was not “thorough or systematic,” the Fourth Circuit declined to “disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution.”

Withholding of Removal

Tang also claimed the Board’s refusal to grant his application for withholding of removal was erroneous. Tang argued that the evidence he provided in support of his claim for asylum was sufficient to grant his withholding of removal.

The Fourth Circuit held that Tang did not meet the necessary burden to entitle him to a withholding of removal. The requisite burden of proof in a withholding of removal claim is that of a “clear probability,” which means “it is more likely than not that [Tang’s] life or freedom would be threatened in the country of removal.” The Fourth Circuit noted that this burden of proof “is more demanding than that of asylum” and that an applicant’s claim for withholding of removal would fail when their claim for asylum failed. Therefore, the Fourth Circuit held that Tang had failed to satisfy his burden or proof and was not entitled to a withholding of removal.

Protection Under CAT

Lastly, Tang appealed the Board’s denial of protection under CAT. Tang asserted that his evidence showed that the Chinese government’s torture of unregistered church members was “prolific in China.”

The Fourth Circuit refused to review this claim due to lack of jurisdiction. Under 8 U.S.C. § 1252(d)(1), courts can only review an order of removal once the “alien has exhausted all administrative remedies available to the alien as of right.” The Court held that Tang did not exhaust his administrative remedies because he failed to bring this issue on appeal before the Board.

Disposition

The Fourth Circuit ultimately denied Tang’s petition for review of the Board’s decision.