ALEMAN-BELLOSO V. GARLAND, No. 23-114 (9th Cir. 2024)
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The petitioner, Jose Ernesto Aleman-Belloso, a native and citizen of El Salvador, sought review of a decision by the Board of Immigration Appeals (BIA) that upheld an Immigration Judge's (IJ) denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Aleman, an influential lay minister in his church, was approached by members of the FMLN, a political party in El Salvador, to use his influence to garner support for the party. After refusing their proposition, Aleman was attacked by masked gunmen who threatened him and demanded he leave town. Aleman fled to the United States shortly after.
The IJ found Aleman’s testimony credible and acknowledged that he was tortured by the FMLN. However, the IJ concluded that Aleman failed to establish a nexus between the harm he suffered and any protected grounds, thus denying his claims for asylum and withholding of removal. The IJ also denied CAT relief, finding it unlikely that Aleman would be tortured again in the future. The BIA affirmed the IJ's decision, agreeing that Aleman did not demonstrate a sufficient nexus between the persecution and his religious beliefs, political opinion, or membership in a particular social group.
The United States Court of Appeals for the Ninth Circuit reviewed the case and found that the BIA erred in its conclusions. The court held that substantial evidence did not support the BIA’s finding of no nexus between the persecution Aleman suffered and his political opinion or membership in a particular social group. The court noted that Aleman’s refusal to support the FMLN was a political opinion and that the FMLN attacked him because of this opinion. Additionally, the court found that the BIA mischaracterized Aleman’s proposed social group and improperly rejected it as circularly defined. The court also concluded that the BIA failed to consider probative evidence regarding government involvement in Aleman’s past torture and the FMLN’s continued power in El Salvador.
The Ninth Circuit granted Aleman’s petition for review, remanding the case to the BIA for further proceedings consistent with its opinion. The court instructed the BIA to reconsider Aleman’s claims for asylum, withholding of removal, and CAT relief, taking into account the correct characterization of his social group and the evidence of government involvement in his persecution.
Court Description: Immigration Granting Jose Ernesto Aleman-Belloso’s petition for review of the Board of Immigration Appeals’ decision upholding the denial of asylum and related relief, and remanding, the panel held that the Board erred in concluding that Aleman failed to establish a nexus between any persecution and his political opinion, erred by mischaracterizing his proposed social group, and improperly ignored probative evidence regarding government involvement in or acquiescence to any torture in El Salvador.
The panel agreed with the Board that Aleman failed to demonstrate a nexus between any harm and his religious belief. However, the panel concluded that there was not substantial evidence to support the Board’s finding of no nexus between the persecution Aleman suffered and his political opinion and membership in a particular social group. The panel held that the record compelled the conclusion that Aleman held two political opinions. First, he believed it was wrong to use his role as a church leader to convince church members to support the FMLN—one of El Salvador’s primary political parties. And second, he thought that the FMLN was “ruining the country.” The record also compelled the conclusion that the FMLN attacked Aleman because of his political-opinion-based refusal to use his role in the church to influence El Salvadoran politics. The panel concluded that in rejecting Aleman’s social group, the Agency erred in two important ways. First, the Agency mischaracterized Aleman’s particular social group as consisting of “being a church leader who was persecuted because of his refusal to support the FMLN,” where Aleman consistently characterized his proposed group as being comprised of “influential church leaders.” Second, the Agency’s mischaracterization of Aleman’s social group led it to reject the group as “circularly defined and thus impermissible.” The panel explained that under longstanding principles, a group may be deemed impermissibly “circular” if, after conducting the proper case- by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. Here, the actual group that Aleman asserted to the Agency—influential church leaders—was not defined by reference to the harm he suffered, let alone exclusively by the harm suffered. The panel remanded for the Board to determine whether influential El Salvadoran lay ministers qualify as a particular social group. The panel also remanded for the Board to address in the first instance the Salvadoran government’s involvement in, or its inability or unwillingness to control, any persecution.
The panel concluded that in denying CAT protection, the Agency erred by failing to consider probative evidence regarding government involvement in or acquiescence to Aleman’s past torture. Because the Agency drew the unsupported conclusion that Aleman’s past torture was not carried out with government acquiescence, and failed to consider, in its risk-of-future-torture analysis, record evidence regarding the FMLN’s continued power in El Salvador, the panel remanded for the Agency to reconsider Aleman’s CAT claim.
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