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Parada v. Sessions

United States Court of Appeals, Ninth Circuit

August 29, 2018

Moris Alfredo Quiroz Parada, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted November 14, 2017 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A072-525-513

          Christopher J. Stender (argued), Federal Immigration Counselors AZ PC, Phoenix, Arizona, for Petitioner.

          Janette L. Allen (argued) and Laura Halliday Hickein, Trial Attorneys; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel granted Moris Alfredo Quiroz Parada's petition for review of the Board of Immigration Appeals' denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.

         The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother's assassination, the murder of his neighbor as a result of Quiroz Parada's own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.

         Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family's government and military service. The panel noted that it was immaterial that the FMLN's attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.

         The panel held that substantial evidence did not support the agency's determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN's rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government's human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.

         The panel concluded that the agency erred as a matter of law in denying Quiroz Parada's application for CAT relief because it ignored pertinent evidence in the record and erred by construing the "government acquiescence" standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.

         The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada's removal.

          OPINION

          PAEZ, CIRCUIT JUDGE:

         Moris Alfredo Quiroz Parada fled his native El Salvador in 1991 at the age of seventeen after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional (FMLN) guerillas. Twenty-four years after he first applied for asylum, Quiroz Parada petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We conclude that the record compels a finding of past persecution, and that substantial evidence does not support the agency's determination that the government successfully rebutted the presumption of future persecution. We also conclude that the agency erred as a matter of law in denying Quiroz Parada's application for CAT relief. Accordingly, we grant the petition and hold that Quiroz Parada is eligible for asylum and entitled to withholding of removal, and remand for reconsideration of his CAT claim.

         I.

         A.

         Quiroz Parada, a native and citizen of El Salvador, entered the United States without authorization on May 25, 1991 at the age of seventeen. Quiroz Parada has continuously resided in the United States for the last twenty-seven years, and currently lives in Arizona with his wife and three children, the latter of whom are United States citizens. He is the sole provider for his family.

         During the Salvadoran civil war of the 1980s and early 1990s, Quiroz Parada and his family were subjected to threats, home invasions, beatings, and killings by FMLN guerillas.[1] Quiroz Parada's family was targeted largely because of his brother's military service during the civil war, and potentially also because of his father's work as an assistant marshal, a role akin to a sheriff. The FMLN apparently found out about the Quiroz Paradas' government connections because some of the family's neighbors were relatives of the guerillas.

         In June 1989, FMLN guerillas sought out and murdered Quiroz Parada's brother while he was on leave from the military. Following his brother's assassination, FMLN guerrillas broke into the Quiroz Parada family home on at least three occasions. The guerillas sought to kill other members of the Quiroz Parada family, and, on one occasion, to kidnap Quiroz Parada with the apparent intent to forcibly conscript him.

         The Quiroz Paradas knew the guerillas were specifically targeting their family largely because the FMLN guerillas would begin calling out their family's name upon entering the Quiroz Paradas' village. Although the FMLN's announcements were terrifying, they at least gave the family enough time to hide in the family's well and thus avoid harm during the first several invasions. On another occasion, however, the family did not hear the guerillas approaching in time to hide before the guerillas broke into their home. Quiroz Parada attempted to flee, but was struck by the guerillas, tied up, carried out of his home, and beaten; the guerillas apparently intended to forcibly conscript him. He was only able to escape because the army suddenly arrived at his village, which caused the guerillas to flee-but not before they beat Quiroz Parada, causing him to lose consciousness. Quiroz Parada testified that his family realized after this attack that they were being targeted because of his brother's military service.[2]

         The FMLN guerillas' targeting of the Quiroz Parada family also led to collateral consequences for those around the family. On one occasion, a different group of FMLN guerillas than had committed the previous home invasions mistakenly entered the home of the Quiroz Paradas' neighbors instead. The guerillas kidnapped the neighbor's sons and, upon discovering they had kidnapped the wrong family's sons, returned and murdered the mother in anger over their mistake.[3]

         Quiroz Parada fled to the United States in 1991 after these incidents, but his family members who remained in El Salvador continued to suffer harm even after the end of the civil war. In 2000, his father received a death threat from a former FMLN guerilla's son, who had become a Mara Salvatrucha (MS) gang member in the intervening years. This familial transition from FMLN guerilla to MS member was apparently common; Quiroz Parada's family members have told him that many sons of former FMLN guerillas are now part of the MS gang. These FMLN descendants have long memories: the MS member who threatened Quiroz Parada's father told him "You are going to die. Because your family was in the military and killed someone from my family. And one way or another you will die." Quiroz Parada's father was killed five years later in a suspicious hit-and-run, which Quiroz Parada believes to have been carried out by the MS member who threatened his father or one of his associates. The threats did not end with his father's death, either: Quiroz Parada's mother was forced to flee their family home after receiving threats from MS gang members whose fathers were FMLN guerillas.

         Quiroz Parada's family members have warned him not to return to El Salvador because "history will repeat itself"- meaning that Quiroz Parada will face kidnapping or death at the hands of the MS gang members who are descendants of FMLN guerillas. As of Quiroz Parada's hearing before an immigration judge (IJ) in 2012, all of his siblings had fled El Salvador.[4]

         B.

         Quiroz Parada applied for asylum[5] and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself-despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN's "leftist wing" form of democracy and that he would feel compelled to speak out against the FMLN-run government's ...


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