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Media Alerts - Zavaleta-Policiano v. Sessions -- Fourth Circuit
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October 30, 2017
  Zavaleta-Policiano v. Sessions -- Fourth Circuit
All in the Family: Threats to Family Business a Potential Basis for Asylum

Areas of Law: Immigration Law, Asylum Law

Issue Presented: Whether a business owner from El Salvador who sought asylum under 8 U.S.C. § 1101(a)(42)(A) established persecution on account of a familial relationship when MS-13, an international criminal gang, targeted her after her father fled the country.

Brief Summary: In a published opinion, the United States Court of Appeals for the Fourth Circuit held that the Board of Immigration Appeals abused its discretion when it held that a business owner from El Salvador was not persecuted on account of a familial relationship, despite evidence of her family's business, the prominence of her family in the region, and threats she began receiving immediately after her father fled the country. The Fourth Circuit found that Petitioner's familial relationship was at least one central reason for her persecution. Because of this, Petitioner had met at least two of the three requirements for asylum under 8 U.S.C. § 1101(a)(42)(A). The Fourth Circuit remanded the case to the Board of Immigration Appeals for a determination on the final factor.

Extended Summary: On August 27, 2012, Petitioner Zulma Savaleta- Policiano entered the United States through Texas. The next day she and her three children were served with a Notice to Appear pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner filed for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In support of these pleadings, Petitioner filed two notes she had received from members of MS-13, and a sworn affidavit.

In the affidavit, Petitioner stated that she was from a town in La Libertad and her father owned a wholesale store bearing the family name. Because of this her family was well-known in the region. Her father helped her open a convenience store after she was married and the convenience store was associated with her father's store. MS-13 infiltrated the town and began extorting her father for ever increasing amounts of cash. Petitioner's father eventually fled to Mexico. Immediately after he left, Petitioner began receiving threats from MS-13, both through telephone calls and notes. After being extorted for several months, Petitioner went to the police, who told her to watch out for her kids and to leave if she could.

Petitioner cited persecution related to three protected rights as a basis for asylum: (1) her familial relationship, (2) membership in the business-owning class in El Salvador, and (3) political opinion. At a hearing before an Immigration Judge (IJ), the Government stipulated to the credibility of Petitioner's affidavit and argued only that the facts alleged did not establish that she fell within a protected class. The IJ rejected the political opinion basis and the business-owning class basis. As to the rejection of Policiano's persecution claim based on her status as a business owner, the IJ reasoned that it was not a special group and if it was there was still no nexus between her membership in the group and the threats. The IJ also found that she was not threatened or harassed because of her relationship to her father. The IJ further denied her CAT claim. The Board of Immigration Appeals (BIA) affirmed the IJ's decision.

To be eligible for asylum, Petitioner had to prove that (1) she had suffered past persecution or "has a well-founded fear of persecution; (2) on account of a protected ground; (3) by an organization that the Salvadoran government is unable or unwilling to control." Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). The Fourth Circuit was bound to affirm the BIA unless its ruling was "manifestly contrary to law and an abuse of discretion." Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011).

The Fourth Circuit rejected the IJ and BIA conclusions that Petitioner had not been persecuted on account of her membership in the Policiano family. Persecution, the court held, occurs "'on account of' a protected ground if that ground serves as 'at least one central reason for'" the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). The protected ground need not be the central reason, but must be more than "incidental, tangential, superficial, or subordinate." Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). The Fourth Circuit found the BIA abused its discretion in upholding the IJ's factual finding. The court found the IJ and BIA relied too heavily on MS-13's "articulated purpose" for targeting Petitioner, as stated in the notes given to Petitioner. In addition, the IJ and BIA's reliance on the number of individuals targeted by MS-13 was "beside the point" in evaluating an individual claim. The court further found the IJ and BIA failed to appreciate or address critical, unchallenged evidence in the record. In particular, the record showed that Petitioner's father was threatened and fled; immediately thereafter the Petitioner was threatened; and soon thereafter Petitioner's daughter was threatened. Given these facts, the court found Petitioner's relationship with her father was "at least one central reason" for the persecution.

Because the IJ and BIA had not made a factual finding as to whether the persecution was by a group the Salvadoran government could not or would not control, the Fourth Circuit remanded for a finding on that issue. It noted that efforts to reach out to police are highly probative with regard to this requirement. The court also remanded for a factual finding on the Convention Against Torture claim.

To read the full opinion, click here.

Panel: Chief Judge Gregory, Circuit Judge Wilkinson, and Senior Circuit Judge Davis

Argument Date: 03/23/2017

Date of Issued Opinion: 07/26/17, Amended 09/13/17

Docket Number: 16-1231

Decided: Reversed in part, vacated in part, and remanded for further proceedings by published opinion.

Case Alert Author: Jennifer Smith, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioners. Michael Christopher Heyse, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Author of Opinion: Chief Judge Gregory

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/30/2017 11:08 AM     4th Circuit  

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