Argued: October 31, 2013
Revised Opinion Filed: January 27, 2014
On Petition for Review of an Order of the Board of Immigration Appeals.
Maureen A. Sweeney, UNIVERSITY OF MARYLAND CAREY LAW SCHOOL, Baltimore, Maryland, for Petitioner.
Oluremi da Rocha-Afodu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Benjamin Richard Casper, UNIVERSITY OF MINNESOTA SCHOOL OF LAW, Minneapolis, Minnesota, for Amicus Supporting Petitioner.
Alison D. Yoder, Student Attorney, UNIVERSITY OF MARYLAND CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Blair T. O'Connor, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Andres C. Benach, BENACH RAGLAND L.L.P., Washington, D.C.; Katherine Evans, CASPER & EVANS, P.A., Minneapolis, Minnesota; Samuel Johnson, Student Attorney, Holden Turner, Student Attorney, Interprofessional Center For Counseling & Legal Services, UNIVERSITY OF ST. THOMAS, Minneapolis, Minnesota, for Amicus Supporting Petitioner.
Before NIEMEYER and WYNN, Circuit Judges, and Louise W. FLANAGAN, United States District Judge for the Eastern District of North Carolina, sitting by designation.
NIEMEYER, Circuit Judge:
Julio Ernesto Martinez, a citizen of El Salvador, who is subject to removal from the United States because he entered without authorization and, while in the United States, was given a judgment of probation before verdict for marijuana possession, requests that the Attorney General withhold removal under 8 U.S.C. § 1231(b)(3), which places restrictions on removal to countries where the alien's life or freedom would be threatened. He claims that as a former member of the violent Mara Salvatrucha gang ("MS-13"), he is a member of a "particular social group, " as would qualify for withholding of removal under § 1231(b)(3), and that he would be killed if sent back to El Salvador because he renounced his membership in MS-13. Based on these circumstances, he also requests relief under the Convention Against Torture ("CAT"), contending that the government of El Salvador would acquiesce in his torture at the hands of MS-13.
The immigration judge ("IJ") and the Board of Immigration Appeals ("BIA") rejected Martinez's arguments, concluding that being a "former member of a gang in El Salvador" is not an "immutable characteristic" of a particular social group that could qualify for withholding of removal, since the characteristic "result[ed] from the voluntary association with a criminal gang." The IJ and the BIA also found that Martinez's claim for relief under the CAT was not supported by sufficient evidence.
We conclude that Martinez's proposed particular social group of former MS-13 members from El Salvador is immutable for withholding of removal purposes in that the only way that Martinez could change his membership in the group would be to rejoin MS-13. We hold therefore that the BIA erred in its ruling declining -- on immutability grounds -- to recognize the particular social group of former members of MS-13 who have renounced their membership in the gang. Accordingly, we reverse that ruling on immutability and remand Martinez's application for withholding of removal to permit the BIA to consider whether Martinez's proposed social group satisfies the other requirements for withholding of removal. On ...