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Media Alerts - Martinez v. Holder - Fourth Circuit
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February 20, 2014
  Martinez v. Holder - Fourth Circuit
Headline: Trying to Fight Deportation? Leave your Gang First!

Area of Law: Immigration Law

Issue Presented: Whether being a former gang member constitutes an "immutable characteristic" for purposes of a "particular social group," one possible method to stop removal proceedings, under 8 U.S.C. § 1231 (b)(3)(B).

Brief Summary: Julio Martinez, an undocumented immigrant and former MS-13 gang member, was caught driving with marijuana. Thereafter, removal proceedings were brought against him, but ultimately languished. When Martinez was pulled over again for a traffic offense, the Department of Homeland Security reopened the removal proceedings and charged Martinez with possessing a controlled substance. Martinez sought but was denied relief from removal in the immigration court as well as before the Board of Immigration Appeals. He then sought review in the Fourth Circuit.

The United States Court of Appeals for the Fourth Circuit granted as well as denied in part the petition for review and remanded the case for further proceedings. Per 8 U.S.C. § 1231 (b)(3)(B), an alien may not be removed if, among other reasons, they hold "membership in a particular social group." The Fourth Circuit held that Martinez's status as a former gang member constituted the sort of "immutable characteristic" necessary for purposes of membership in a "particular social group."

Extended Summary: Julio Martinez was a citizen of El Salvador. At age 12, he joined a group of friends, some of whom were in Mara Salvatrucha, ("MS-13,") a transnational criminal gang. Martinez's group was then "incorporated" into the larger MS-13 gang structure. Martinez agreed to MS-13 initiation, and was initiated. At age 16, however, Martinez attempted to leave MS-13. This attempt was met with MS-13's violent backlash. MS-13 members tried to kill Martinez three times. At age 20, Martinez unlawfully moved to the United States. In March 2006, Martinez was stopped while driving his friend's car and the police subsequently found marijuana in the dashboard. Martinez pled to the possession and received probation before judgment. The Department of Homeland Security then started removal proceedings but canceled them because Martinez agreed to be a confidential informant. In May 2011, Martinez was stopped for a second traffic offense. The Department of Homeland Security then reopened the removal proceedings.

During removal proceedings, Martinez argued that based on his fear of bodily harm at the hands of MS-13 members, he should be eligible for relief under U.S. law (8 U.S.C. § 1231(b)(3)) for being a former gang member. Specifically, Martinez argued that his status as a former gang member qualified him as a member of a "particular social group" who was entitled to relief from removal. Martinez also asked for relief in the form of temporary protected status, the Convention Against Torture ("CAT") protection, and voluntary deportation. The immigration judge ("IJ") found Martinez credible but denied all forms of relief except voluntary deportation. On review, the Board of Immigration Appeals, ("BIA") determined that Martinez' former gang membership did not entitle him to relief as a member of a "particular social group." The BIA believed Martinez's former membership did not qualify as a "common immutable characteristic," an element required for a "particular social group" finding. In the BIA's view because the "characteristic resulted from the voluntary association with a criminal gang" it did not qualify. The BIA also determined that Martinez failed to show that the Salvadoran government would acquiesce in his torture and therefore found he was not eligible for CAT protection.

The United States Court of Appeals for the Fourth Circuit granted as well as denied in part the petition for review and remanded the case for further proceedings. The court first noted that Martinez' former MS-13 membership met the element of "immutable characteristic," for determining whether he fell within a "particular social group." Regarding deportation, according to 8 U.S.C. § 1231 (b)(3)(B), an alien may not be removed "f the Attorney General decides that the alien's life or freedom would be threatened in part because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."

To qualify for membership in a particular social group, one must meet three requirements: (1) its members share common immutable characteristics; (2) the common characteristics give its members social visibility; and (3) the group is defined with sufficient particularity to delimit its membership. With regard to "immutable characteristics," the court noted that such characteristics must be ones which members cannot change or should not be required to change because they are fundamental to their individual identities or consciences. The court also noted the four exceptions to the entire removal statute.

The Fourth Circuit first detailed that being a former gang member was an immutable characteristic in much the same way as being a former military leader, being a former member of a violent political group and being a former child soldier. The Fourth Circuit then noted that it would be undesirable to interpret the Immigration & Nationality Act ("INA") statute in a way that would force individuals to rejoin gangs to avoid persecution. Moreover, although Martinez' behavior was anti-social, Congress explicitly stated in 8 U.S.C. § 1231 (b)(3)(B) the four types of anti-social behavior that will result in removal. The court then noted the distinction between current and former gang membership. Martinez, was not a current member; he had repudiated his membership. Moreover, because the gang was marked by violence and criminality, this repudiation was a critical aspect of Martinez' conscience that he should not be forced to change. The court was careful to note, however, that current gang membership is not an immutable characteristic.

The Sixth Circuit has agreed with the Fourth Circuit regarding status as a former gang member being an "immutable characteristic." The First Circuit, in contrast, has disagreed.

Regarding social visibility, the second element, the court "explicitly declined to determine whether the social visibility criterion is a reasonable interpretation of the INA." Moreover, the court detailed that even if this element was valid, the BIA did not consider the issue at all, and the BIA did not offer a supporting explanation for why Martinez social group did not meet this element.

Finally, for the third element, "particularity," the court remanded this issue but still noted that the Seventh Circuit has distinguished between the particularity of inactive and former gang members. Regarding CAT protection, the court reasoned that Martinez failed to show that the government would acquiesce. Moreover, Martinez never made a report to the government, and the government has made attempts to reduce/control gang activity. The court determined that the BIA's decision to deny relief under CAT protection was correct.

For the full text of his opinion, please visit http://www.ca4.uscourts.gov/Op...ublished/122424.P.pdf

Panel: Judges Niemeyer and Wynn; and District Judge Flanagan, sitting by designation.

Date of Issued Opinion: 01/23/2014

Docket Number: No. 12-2424

Case Alert Author: Aaron D. Parker

Counsel: Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Oluremi da Rocha-Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Benjamin Richard Casper, UNIVERSITY OF MINNESOTA SCHOOL OF LAW, Minneapolis, Minnesota, for Amicus Supporting Petitioner. On Brief: Alison D. Yoder, Student Attorney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Andres C. Benach, BENACH RAGLAND L.L.P., Washington, D.C.; Katherine Evans, CASPER & EVANS, P.A., Minneapolis, Minnesota; Samuel Johnson, Student Attorney, Holden Turner, Student Attorney, Interprofessional Center For Counseling & Legal Services, UNIVERSITY OF ST. THOMAS, Minneapolis, Minnesota, for Amicus Supporting Petitioner.

Author of Opinion: Niemeyer, J.

Case Alert Circuit Supervisor: Renée Hutchins

    Posted By: Renee Hutchins @ 02/20/2014 12:31 PM     4th Circuit  

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