Hererra-Elias v. Garland, No. 22-3565 (8th Cir. 2024)
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Hector Herrera-Elias, a Honduran citizen, entered the United States unlawfully and was charged with removability. In response, he petitioned for asylum, withholding of removal, and relief under the Convention Against Torture, claiming he feared persecution and torture in Honduras due to his involvement with the MS-13 gang and his sexual orientation. An Immigration Judge (IJ) found him ineligible for asylum due to an untimely application, and deemed him barred from asylum and withholding of removal due to his having committed a serious nonpolitical crime (transporting firearms and drugs for criminal organizations in Honduras). The IJ also found that Herrera-Elias failed to prove that he would likely face torture if returned to Honduras.
Upon appeal, the Board of Immigration Appeals (BIA) upheld the IJ's decision, concluding that Herrera-Elias knowingly participated in serious criminal activity and that no duress exception applied to the serious nonpolitical crime bar. One panel member dissented, arguing that Herrera-Elias's age and limited involvement in gang operations should not constitute a serious nonpolitical crime.
On further appeal, the United States Court of Appeals for the Eighth Circuit affirmed the BIA's judgment. The court found substantial evidence supporting the IJ’s and BIA’s findings regarding Herrera-Elias's involvement in serious nonpolitical crime. Additionally, the court rejected Herrera-Elias's attempt to introduce a duress exception to the serious nonpolitical crime bar, noting that the elements of this bar and the persecutor bar (where the duress exception has been debated) are different, and that Herrera-Elias did not explain how duress is relevant to this specific bar.
Court Description: [Loken, Author, with Erickson and Grasz, Circuit Judges] Petition for Review - Immigration. During his immigration proceedings petitioner admitted he transported guns and drugs for MS-13 on multiple occasions, and the agency did not err in concluding he had committed a serious nonpolitical crime outside the U.S. before the arrived in this country and that he was, therefore, ineligible for withholding of removal; the record was adequate to support this conclusion; the agency did not err in rejecting the vague, unsupported "duress" argument petitioner presented to the agency.
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