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Decided: April 30, 2015

The Fourth Circuit vacated a final order of removal entered by the Board of Immigration Appeals and remanded the case for further proceedings.

The appeal arose out of Hernandez’s and her son’s illegal entry into the United States in 2008. Within a month, the Government initiated deportation proceedings. While Hernandez stipulated to the facts in the deportation proceeding, she sought asylum under the Immigration and Naturalization Act. At her hearing before the immigration judge, Hernandez related that she had received three death threats from the Mara 18 gang in El Salvador, two of which were directly in response to Hernandez’s refusal to allow the gang to initiate her son into its membership. After the third threat, the gang told Hernandez she had one day to turn her son over, prompting her illegal entry to the United States. She testified that seeking protection from the El Salvadoran government was not an option because it routinely arrested and then quickly released gang members who then sought retaliation. The immigration judge found Hernandez to be generally credible but denied her request for asylum. The Board of Immigration Appeals later reached the same conclusion in a separate opinion.

The Fourth Circuit summarized the requirements for asylum as follows: (1) a well-founded fear of persecution (2) on account of a protected ground under the Immigration and Naturalization Act (3) perpetrated by an organization the applicant’s home country is unable or unwilling to control. While the immigration judge and Board of Immigration Appeals found that elements two and three were lacking, the Fourth Circuit disagreed. Regarding the second element, one recognized protected ground is membership in a particular social group, which includes a nuclear family unit. Here, the court found that Hernandez’s relation to her son was the reason she was threatened, rejecting the government’s argument that the threats resulted from gang recruitment and was not related to the nuclear family. The Fourth Circuit found that the fact that the boy’s mother was threatened and not anyone else heavily supported a finding that the threats were directly because of a family relation. Additionally, regarding the third element, while the government argued that the El Salvadoran’s government imprisonment of a gang member for unrelated crimes demonstrated they were willing and able to control the threat, the Fourth Circuit noted that the record provided no evidence for what motivated the imprisonment. Hernandez testified that reporting to the police would not really be an option, and the immigration judge found her credible. This testimony, coupled with a 2011 State Department Human Rights Report for El Salvador noting that El Salvador suffered from widespread gang influence and corruption, was sufficient to satisfy the third element. Thus, the Fourth Circuit vacated the Order and remanded for proceedings consistent with its opinion.

Full Opinion

Kayla M. Porter