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Melendez Saravia v. Attorney General United States of America

United States Court of Appeals, Third Circuit

October 1, 2018

ALEJANDRO MISAEL MELENDEZ SARAVIA, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued: June 13, 2018

          On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A204-490-174)

          Gregory Bischoping [ARGUED] University of Pennsylvania Law School Stuart T. Steinberg Thomas J. Miller Derek J. Brader Dechert LLP Counsel for Petitioner.

          Sabatino F. Leo [ARGUED] Chad A. Readler Anthony P. Nicastro U.S. Department of Justice Civil Division Counsel for Respondent.

          Before: CHAGARES, GREENBERG and FUENTES, Circuit Judges

          OPINION

          FUENTES, Circuit Judge.

         This case concerns the Board of Immigration Appeals' failure to follow precedent set forth by this Court.[1]

         Alejandro Misael Melendez Saravia ("Saravia") petitions for review of the Board's decision affirming the Immigration Judge's denial of his application for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and relief under the Convention Against Torture.[2] Before the Immigration Judge, Saravia argued that he had a well-founded fear of persecution on the basis of his membership in a particular social group. The Immigration Judge found Saravia to be credible, but determined that Saravia failed to corroborate his claim. The Board affirmed the Immigration Judge's decision, and this petition followed.

         In Chukwu v. Attorney General, [3] we held that an Immigration Judge must "give the applicant notice of what corroboration will be expected and an opportunity to present an explanation if the applicant cannot produce such corroboration."[4] Despite the Board's subsequent contrary decision, [5] we remind Immigration Judges in our Circuit that they must follow the requirements of Chukwu. We will vacate and remand.

         I. Facts

         Saravia is a native and citizen of El Salvador. In about 1996, when Saravia was five, his mother left for the United States for economic reasons. After this, he lived with his father.

         A. Saravia's Encounters with MS-13

         In 2005, members of MS-13 began trying to recruit Saravia into the gang. He refused, and they beat and threatened him. Before the Immigration Judge, Saravia testified that they kicked him and hit him with fists, but that the injuries were not severe enough for him to go to the hospital. Saravia testified that the gang members threatened Saravia with the murder of his family if he told his father and his father reported the gang to the police. Saravia also testified that after the gang discovered that his mother lived in the United States, they demanded money from him. The gang issued Saravia an ultimatum: either join the gang or pay $15, 000. He testified that gang members continued threatening him, leading his father to send Saravia and Saravia's younger sister to live with their mother in Paterson, New Jersey. He entered the United States without inspection sometime in 2006.

         Saravia testified that in March of 2011, his cousin, Juan Ramon Hernandez Melendez, was killed in El Salvador by members of MS-13. He testified that Juan was a police officer and that MS-13 had asked Juan for firearms and killed him when he refused. Saravia also testified that eight months after his cousin was killed, members of MS-13 in El Salvador kidnapped another of his cousins, Francisco Hernandez, and brutally tortured him for information about Saravia and Saravia's father. Hernandez was released in December 2011, but then murdered by MS-13 gang members two days later, according to Saravia.

         Saravia also testified that he fears returning to El Salvador because a property inherited by his mother has been occupied and seized by MS-13 after his mother, via a cousin of Saravia's in El Salvador, began renting the property to a woman apparently affiliated with MS-13. Saravia testified that MS-13 uses the house for meetings and to torture people, and that he fears that if he returns to El Salvador, the government will assume he is linked to the gang.

         In August 2015, MS-13 gang members attacked Saravia's father. He was hospitalized for five days. During his recovery, MS-13 gang members called Saravia's half-brother and threatened to kill Saravia's father and his family if he reported the beating to police. According to Saravia, they added that they would kill Saravia if they found him in El Salvador. Saravia's half-brother then fled to the United States.

         B. Saravia's Arrest and the Telephone Threats

         In April 2015, Saravia was arrested in New Jersey and charged with aggravated assault, simple assault on a law enforcement officer, resisting arrest by physical force or violence, aggravated assault with a deadly weapon, unlawful possession of a firearm, and unlawful possession of a weapon. These charges, according to Saravia, arose from a domestic misunderstanding and police officers' decision to hit and handcuff him.

         Saravia testified that, while he was in police custody, MS-13 gang members called his mother and threatened to kill him if he returned to El Salvador. They stated that they knew he was in police custody and that he was going to be deported back to El Salvador. In May 2015, Saravia entered into a pre-trial intervention program. The charges against him were to be dismissed after a one-year term of probation. However, during his probation, Saravia was arrested for driving under the influence.

         C. Removal Proceedings Against Saravia

         The Department of Homeland Security commenced removal proceedings against Saravia by filing a Notice to Appear with the Immigration Court in Elizabeth, New Jersey. In March 2016, Saravia conceded inadmissibility as charged and all factual allegations in the Notice to Appear. Thereafter, Saravia submitted Form I-859, applying for asylum and withholding of removal.

         Saravia testified before the Immigration Judge on November 15, 2016. In the course of Saravia's testimony, the Immigration Judge asked several questions regarding corroboration:

JUDGE TO MR. MELENDEZ-SARAVIA
According to your earlier testimony, you stated that a gang member phoned your mother here in the United States while you were incarcerated by the State of New Jersey.
MR. MELENDEZ-SARAVIA TO JUDGE
Yes, I was - when I was detained in 2015.
JUDGE TO MR. MELENDEZ-SARAVIA
Okay. Now - and your mother lives here in the State of New Jersey now, is that right?
MR. MELENDEZ-SARAVIA TO JUDGE
Yes, she lives in Patterson [sic].
JUDGE TO MR. MELENDEZ-SARAVIA
Why hasn't she come here to testify about this threat, this recent threat against you?
MR. MELENDEZ-SARAVIA TO JUDGE
Yes, my mom is in the waiting area. They never told us that they needed her to do that type of declaration.
JUDGE TO MS. AL-QALDA [Melendez Saravia's counsel]
Counsel, do we have a statement from the mother attesting to that element of the claim? I'm not aware of one in the record.
MS. AL-QALDA TO JUDGE
I'm not aware of one in the record, Your Honor, as well.
JUDGE TO MS. AL-QALDA
All right.
JUDGE TO MR. MELENDEZ-SARAVIA
You also have a half-brother in the United States, right, who recently came to ...

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