Martinez v. Holder, No. 12-2424

Decided: January 27, 2014

The Fourth Circuit partially granted Julio Ernesto Martinez’s (“Martinez”) Petition for Review, finding that a group consisting of former MS-13 gang members constitutes a “particular social group” within the meaning of 8 U.S.C. § 1231(b)(3).

Martinez was born in San Miguel, El Salvador, in 1980. In 2000, he unlawfully entered the United States. When Martinez was stopped for a traffic offense in May 2011, the Department of Homeland Security initiated removal proceedings against Martinez. Martinez conceded that he was subject to removal, but sought relief on the ground that his life would be endangered should he return to El Salvador. At the hearing before the Immigration Judge (“IJ”), Martinez testified that his stepfather died when he was 12 and that soon after he befriended a group of older boys who had also lost family members. He later learned that some of the boys who had recruited him into this group were also associated with MS-13. After several members of MS-13 were deported from the United States and arrived in Martinez’s neighborhood, Martinez’s group was then “incorporated” into the larger MS-13 gang structure. This was, to some extent, involuntary. Upon being told that he had no option, Martinez, who was now 15, agreed to undergo MS-13’s initiation rite of a beating that lasts 13 seconds. Thereafter, the deportees killed the original leaders of Martinez’s group of friends and became the new gang leaders. They ordered him to get tattoos signifying his allegiance to MS-13. He did. They also ordered him to extort money from members of the community. He refused. Because of this, he was beaten on a weekly basis. Although he admitted to participating in one beating of another gang member, Martinez testified that thereafter he refused to join in those disciplinary beatings, which consequently subjected him to further beatings.

MS-13 held weekly meetings for its members. Martinez attended most of those meetings. When he did not attend, he was beaten. At the meetings, members were informed as to who had the “green light,” which indicated that the member was to be executed. A principal reason for receiving the “green light” was attempting to leave MS-13. Indeed, two of Martinez’s friends who attempted to leave the gang were killed. By the time Martinez turned 16, he became tired of the beatings and wished to leave MS-13. When he made this known, gang members beat him and stabbed him, leaving him for dead. Martinez survived, however, and, after leaving the hospital, went to live with a cousin about an hour south of San Miguel. Two months later, MS-13 members found him and shot at him from a car. Martinez was hospitalized again for several weeks. After recovering, Martinez went into hiding again. However, MS-13 members found him once more. This time, Martinez was able to escape without injury. Soon after, he fled to the United States and entered illegally. He believes that if he were to return to El Salvador, MS-13 members would kill him. Even while in the United States, he claims that he has refrained from going places where he might meet an MS-13 member, such as Spanish nightclubs.

Based on his fear of bodily harm at the hands of MS-13, Martinez sought several forms of relief from removal. He argued that under 8 U.S.C. § 1231(b)(3), he was eligible for withholding of removal because his life was threatened on account of his membership in the particular social group of former gang members from El Salvador. He also argued that he qualified for protection under the Convention Against Torture (“CAT”) because the Salvadoran government would acquiesce in his torture should he be removed. Finally, he applied for temporary protected status and, as an alternative, he requested voluntary departure. Following a hearing, the IJ found Martinez credible but nonetheless denied him all relief except his application for voluntary departure. The Board of Immigration Appeals (“BIA”) also rejected Martinez’s request for relief. This appeal followed.

On appeal, the Fourth Circuit first addressed Martinez’s challenge to the BIA’s determination that, for purposes of Section 1231(b)(3), “former members of a gang in El Salvador” are not a “particular social group” as that term is used in the statute, because members of the group do not have “a common, immutable characteristic where that characteristic results from voluntary association with a criminal gang.” Without applying Chevron deference, the court held that the BIA erred as a matter of law in its interpretation of the phrase “particular social group” by holding that former gang membership is not an immutable characteristic of a particular social group for purposes of the statute. In so holding, the Court distinguished between current and former gang members, finding that former MS-13 members shared an immutable characteristic. Next, the Court rejected Martinez’s contention that the BIA erred in rejecting his claim for protection under CAT, finding that the IJ and the BIA reviewed the relevant evidence before them in concluding that Martinez failed to make the necessary showing to warrant CAT protection. Thus, Martinez’s Petition for Review was granted in part, denied in part, and remanded for further proceedings.

Full Opinion

-W. Ryan Nichols

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