News from the Courts

Posted on: August 27th, 2018
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Court of Appeals Denies Murder Witness’ Purported Social Group

On December 12, 2011, Henry Oswaldo Miranda, a native and citizen of El Salvador, was charged by the Department of Homeland Security (DHS) with removal, as an alien present in the United States without having been admitted or paroled. Though Miranda acknowledged the factual allegations put forth by DHS and conceded removability, he requested withholding of removal. He testified before an Immigration Judge that his reason for leaving El Salvador in 2008 stemmed from threats he received from gang members in addition to the overall impoverishment of the country. He testified that on one night in 2007, as a taxi driver in Quezaltepeque, El Salvador, three MS-13 gang members stopped him, demanding a ride to a nearby town. Two of the members sat in the back of the taxi, while the third member, a teenage boy, sat in the front. While en route, one of the gang members in the back seat brandished a firearm, shooting the boy in the front seat three times in the head. The boy then fell from the vehicle, and the gang member pointed the gun at Miranda, ordering him to stop the car. The members got out of the car, shooting the boy in the face 6 times, telling him, “You got this because you were talking.” Miranda took this to mean that the shooting was the result of the boy speaking ill of MS-13. Fleeing the scene, one of the gang members told Miranda, “You haven’t seen any of this. If you tell anyone about this, I am going to come back and kill you.” Miranda, a well-known taxi driver and union member, described the incident to the owner of the taxi company, who did not report the incident to law enforcement.

One month following the incident, Miranda was shopping at a local market, when he saw an MS-13 member, who made Miranda feel threatened when he told Miranda, “They are looking for you. They are looking for you.” Miranda interpreted the message to mean either the MS-13 gang wanted him dead or the victim’s family, who Miranda believed held ties with the gang, wanted him dead. Miranda found out through his half-sister that the victim’s mother discovered that Miranda was the driver of the taxi in which her son was shot, and the family said that if Miranda did not inform the authorities of the incident, “he was going to have to pay the consequences.” After this, Miranda stopped working and stayed at his mother’s house. Several weeks after the shooting, his mother received threatening phone calls. The Immigration Judge found Miranda to be credible, admitting into evidence the country report for El Salvador and news articles pertaining to crime perpetrated against taxi drivers and to gang violence in El Salvador.

Miranda’s argument supporting his entitlement to withholding of removal was based on the motivation of the threats against him being his membership in the particular social group of “former taxi drivers who have witnessed a gang murder.” The IJ agreed with this claim, deciding the group’s social distinctness to be predicated upon Miranda’s testimony that he was a well-known taxi driver and union member and the news articles which indicated that Salvadorian taxi drivers are at risk of extortion or other crime. The Immigration Judge also concluded that the threats made by the gang members and the victim’s family together with the overall circumstances of the murder witnessed by Miranda constituted past persecution. The IJ decided that the established persecution previously mentioned coupled with the threats Miranda’s mother received amounted to a well-founded fear of future persecution, a decision which the Department of Homeland Security appealed. The Board of Immigration Appeals sustained this appeal, determining that the proposed particular social group was not cognizable and that Miranda had not suffered past persecution. The Board reversed the grant of withholding of removal and ordering Miranda removed to El Salvador.

While Miranda asserted that the Board erred in applying a de novo standard of review to the factual findings of the Immigration Judge instead of reviewing them for clear error, the government asserted that the Board accepted the factual findings of the Immigration Judge and properly reviewed de novo whether those facts adhered to the definition of “particular social group” or rose to the level of “persecution.”

The Court of Appeals concluded that the Board correctly reviewed the IJ’s historical and predictive fact-finding for clear error, and that the de novo review was the proper method of review for the underlying facts’ adherence to the legal definition of “particular social group.” The Court also agreed with the Board’s conclusion that Miranda’s proposed social group was not socially distinct, due to a lack of evidence supporting his claim that “former taxi drivers from Quezaltepeque who have witnessed a gang murder” are perceived as a separate and distinct social group within Salvadorian society. Though the Court of Appeals acknowledged that Miranda himself witnessed a gang murder, it found that he failed to provide adequate evidence which suggests shared characteristics between former taxi drivers are perceived as a distinct social group or that they are perceived as a social group in any capacity. The Court asserted that while his presentation of taxi drivers’ risk of extortion was valid, that risk did not necessarily extend to former taxi drivers. Furthermore, Miranda’s witness of a gang murder alone did not place him within a distinct social group, since he did not testify against any gang members, as precedential decisions have required.

Miranda’s failure to establish his membership within a cognizable social group rendered him unable to demonstrate that any persecution in the past or future would be on account of a protected ground. Therefore, the Court did not reach the question as to whether the Board properly applied its standard of review to the Immigration Judge’s conclusion that the threats Miranda faced and the harm he suffered constituted persecution, so the Court denied the petition for review.

For more information, view the full case.

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District Court Judge Denies Trump’s Proposed Dismissal of Immigration Protections Case

U.S. District Judge Denise Casper denied an attempt by the Trump Administration to dismiss a lawsuit which alleged a racial motivation to the administration’s ending of special provisions protecting Haitian, Salvadoran, and Honduran immigrants from deportation. Judge Casper denied one of the relief requests from the group, but allowed all other claims to move forward, after concluding that the immigrants had plausible constitutional claims. Judge Casper’s decision ensures the case blocking the administration’s termination of temporary protected status for the thousands of individuals from the three countries previously can move forward, as well as ensuring that Trump will remain a defendant, after denying the administration’s request that he be removed.

Temporary protected status benefits individuals from countries who experience extreme hardships, such as armed conflicts or natural disasters. Since a 2010 earthquake, TPS has been renewed for Haitian nationals, while the same benefits have existed for El Salvadorans since 2001 earthquakes devastated the country, and for Hondurans since Hurricane Mitch devastated the country in 1999. In its defense, the Trump administration claims that the conditions which originally warranted the benefit no longer exist, and the program, by its nature was not intended for the continuous extensions involved with these specific countries.

For more information, view the full article from the AP.

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