Zulma Zavaleta-Policiano v. Jefferson Sessions III (Gregory 9/13/2017): The Fourth Circuit held the Board of Immigration Appeals (“BIA”) abused its discretion by affirming an Immigration Judge’s (“IJ”) refusal to grant asylum to the plaintiff because the IJ ignored uncontroverted testimony that the plaintiff was being persecuted for her familial ties. The court overruled the BIA’s denial of the plaintiff’s petitions for relief from deportation and remanded for further proceedings. Full Opinion
Zulma Zavaleta-Policiano v. Jefferson Sessions III, No. 16-1231
Decided: July 26, 2017
Amended: September 13, 2017
The Fourth Circuit held the Board of Immigration Appeals (“BIA”) abused its discretion by affirming an Immigration Judge’s (“IJ”) denial of asylum to the plaintiff because the findings ignored uncontroverted testimony. The Fourth Circuit found the government’s attorneys confirmed the veracity of the plaintiff’s affidavit but that the BIA and IJ both ignored that testimony. By considering the affidavit and correctly applying precedent, the court found the plaintiff satisfied the first two elements of her asylum claim.
Zulma Zavaleta-Policiano was born in El Salvador to a wholesale business owner. After her marriage in 1998, Zavaleta-Policiano, with assistance from her father, opened her own business a few blocks from her father’s business. In the years that followed, a gang moved into the area and began demanding money from store owners. Zavaleta-Policiano’s father paid the gang to avoid any problems, but the price demanded by the gangs began to rise. When her father stopped paying, he began receiving threats against himself and his family. He ultimately decided to flee to Mexico. He urged Zavaleta-Policiano to flee with him, but she did not think she could do so because she had three children.
Once her father left, Zavaleta-Policiano began receiving threatening letters and phone calls from the gang. She was told to pay the gang or they would kidnap her daughter. For two months, Zavaleta-Policiano did not let her children leave their house. When Zavaleta-Policiano filed a complaint with the police, all they could do was recommend she leave if possible. Consequently, she fled to the United States. She and her three children entered the United States on August 27, 2012, but did so without proper inspection. All four were served with a Notice to Appear the next day and were charged as aliens present in the United States without proper admission. The family then filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). All three requests were denied by the IJ, who reasoned that Zavaleta-Policiano did not have a well-founded ground for fear of persecution because of her familial ties. After the BIA also denied her claims, Zavaleta-Policiano filed this appeal.
Upon its review of the facts at hand, the Fourth Circuit focused heavily on Zavaleta-Policiano’s affidavit, which the lower judicial officials ignored. Specifically, the court found persuasive Zavaleta-Policiano’s testimony that the gangs “threatened [her] because [her] father had left.” The court described that testimony as key evidence, and again noted the government lawyers stipulated it was credible. Likewise, the court found unpersuasive the IJ and BIA’s reliance on the letters Zavaleta-Policiano received from the gang, which did not express her familial ties as the reason for the gang’s choice to target her. The court explained, “[i]t is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”
Lastly, the court also stated the BIA misapplied the precedent set in Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015). In that case, a mother who was persecuted by a gang because she would not let her son join the gang was found to be persecuted because of her familial relationships. The BIA used that case to support their decision to deny Zavaleta-Policiano’s petitions, but the Fourth Circuit found the BIA misapplied the case and found it supported Zavaleta-Policiano’s position. The court said Hernandez-Avalos stands for the proposition that the familial relationship must simply be why the victim, and not a different person, was targeted. Because of these reasons, the court found the IJ and BIA both erred and instead held Zavaleta-Policiano’s family relationships were a central reason for her persecution.
Accordingly, the Fourth Circuit reversed the BIA’s finding that the IJ’s findings were not clearly erroneous and found Zavaleta-Policiano was persecuted on account of her familial relationships. The court remanded for further proceedings to determine if Zavaleta-Policiano and her family had satisfied the third element of their claims for relief, which the IJ had not yet decided
James David George, Jr.