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Erica Espinosa* NON-DETAINED Victor H. Gonzalez* Maureen Sweeney, Esq

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Erica Espinosa* NON-DETAINED Victor H. Gonzalez* Maureen Sweeney, Esq Erica Espinosa* NON-DETAINED Victor H. Gonzalez* Maureen Sweeney, Esq. University of Maryland, School of Law Clinic Law Office, Suite 360 500 West Baltimore Street Baltimore, MD 21201 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND ____________________________________ ) In the Matter of: ) ) [Respondent] ) File No.: [A-Number] ) ) In Removal Proceedings ) ___________________________________ ) Immigration Judge Kessler Next Hearing: March 31, 2015, at 8:00 a.m. RESPONDENT’S BRIEF IN SUPPORT OF APPLICATIONS FOR WITHHOLDING OF REMOVAL *Practicing pursuant to 8 C.F.R. S. 292.1(a)(2), 8 C.F.R. S. 1291.1(a)(2), and Maryland Rule 16 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND ____________________________________ ) In the Matter of: ) ) [Respondent] ) File No.: [A-Number] ) ) In Removal Proceedings ) ___________________________________ ) RESPONDENT’S BRIEF IN SUPPORT OF APPLICATIONS FOR WITHHOLDING OF REMOVAL STATEMENT OF CASE [Respondent] is a native and citizen of El Salvador who fled his country and entered the United States without inspection in July 2000. He was placed in removal proceedings on the ba- sis of a Notice to Appear dated August 23, 2007, and charged with being inadmissible as an alien present without prior inspection or admission, pursuant to 8 U.S.C. § 1182(a)(6)(A)(I). Exh. 4, Tab K, I-213, p. 74. Removal proceedings were later administratively closed on April 23, 2008, at the request of the government when the Department of Homeland Security (“DHS”) granted [Respondent] public interest parole status on the grounds that he was assisting the government as an informant. Exh. 4, Tab K, I-213, p. 74. When DHS decided that [Respondent] was “no longer useful as a confidential inform- ant,” DHS moved to recalendar proceedings, and proceedings were recalendared in September 2011. Id. At that time, DHS lodged an additional charge of inadmissibility against [Respond- 2 ent], on the basis of his 2007 probation before judgment disposition for possession of a marijua- na blunt.1 Tab R, Statement of Charges at 140. On December 23, 2011, [Respondent] admitted the charges and conceded removability. He requested relief in the form of withholding of removal under 8 U.S.C. §1231(b)(3) and under the Convention Against Torture (CAT), de novo review of his earlier application for Temporary Protected Status (TPS), and, in the alternative, voluntary departure. Following an individual hearing on April 17, 2012, the Immigration Judge (IJ) issued her decision on April 23, 2012, denying TPS and withholding of removal under both 8 U.S.C. § 1231(b)(3) and the Convention Against Torture, and granting voluntary departure. (I.J. decision at 14). [Respondent] timely appealed that decision to the BIA, and on October 24, 2012, the Board dismissed his appeal on the grounds that he had failed to establish eligibility for withholding of removal under either 8 U.S.C. § 1231(b)(3) or the CAT. BIA Decision at 1. [Respondent] timely petitioned for review at the Fourth Circuit, and on January 23, 2014, the Fourth Circuit held that former MS-13 mem- bers share a common immutable characteristic that can serve as the basis for withholding of re- moval. The Fourth Circuit remanded the case to BIA for further proceedings to determine [Re- spondent’s] eligibility for withholding of removal. Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014). The BIA on May 21, 2014 remanded the case to the Immigration Judge for consideration 1 Probation before judgment is not a conviction under Maryland State law, but meets the defini- tion of conviction under 8 U.S.C. §1101(a)(48)(A). E.g. Jones v. Baltimore City Police Dep’t, 606 A.2d 214, 216-17 (Md. 1991) (stating that the disposition of probation before judgment is not a conviction). By lodging this criminal charge of inadmissibility, DHS subjected [Respond- ent] to mandatory detention pursuant to 8 U.S.C. § 1226(c)(1)(A). It is worth noting that [Re- spondent’s] offense, as a conviction for possession of 30 grams or less of marijuana, is not a ground of removability under 8 U.S.C. 1227, but only a ground of inadmissibility. 8 U.S.C. § 1227(a)(2)(A)(B)(i). 3 in light of Matter of M-E-V-G- and Matter of W-G-R. [Respondent] is scheduled for a merits hearing on March 31, 2015. [Respondent] is seeking withholding of removal under section 241(b)(3) of the INA and in the alternative withholding under the Convention Against Torture (CAT). STATEMENT OF FACTS I. [Respondent’s] Personal Facts At age 12, [Respondent], a native of San Miguel, El Salvador, lost his stepfather, the only father figure he ever had. Exh. 3, I-589 Affidavit 3,4. After his stepfather died, [Respondent’s] family struggled to make ends meet. “We were so poor that my mother had to turn off the lights and the water. Sometimes, we didn’t have food to eat, and my mother sold her clothes to get us something to eat.” Exhibit B, Affidavit of [Respondent’s Sister], at 6; see also Exhibit C, Affi- davit of [Respondent’s Sister], at 10. [Respondent] became friends with a group of young men when he was about 14, many of whom were 18-25 years old. (Transcript [hereinafter Tr.] 41); Exh. 3, I-589 Affidavit, 4. Many of the other group members had lost family members and [Re- spondent] felt a connection with them. Id. As [Respondent] explained: At that time, I had lost my stepfather. He was like my father because he raised me since I was little, and, and that was pretty much the same with the, the other members of the group. They had gone through the same situation [indiscernible] lost a family member, and we felt like we were part of a family. (Tr. 41). According to [Respondent], “[W]hen I joined … we were a group of brothers, that we were watching for each other, taking care for each other.” (Tr. 50). The group would hang out and drink, play games, and go to parties together. (Tr. 42). The group was not affiliated with any larger gang and did not have a name. (Tr. 41). When [Respondent] was about 15 years old, deportees from the United States began to arrive in El Salvador. The deportees met with [Respondent’s] group and told them that they were 4 part of the larger Mara Salvatrucha gang known as MS-13. (Tr.41-42). They told them that they were already part of MS-13 and had no choice but to be initiated into MS-13. Id. They had an initiation ritual called “The 13 Seconds” - a beating that lasted for 13 seconds. (Tr. 43). From the moment he was beaten, [Respondent] was officially considered a member of MS-13. Exh.3, I-589 Affidavit 5, 6. As more deportees arrived, new gang rules were gradually instituted and new demands were made on [Respondent] and other members. Exh. 3, I-589 Affidavit, 7. After initiation, [Respondent] and the others had to get MS-13 tattoos. (Tr. 43). The gang leaders demanded that all MS-13 members extort people to get money. (Tr. 50). [Respondent] refused to do this, as the potential victims were members of the community whom he had known his entire life, and he felt the actions were morally wrong. Exh.3, I-589 Affidavit, 8; Exh.4, Tab A, Resp. Suppl. Affi- davit, 5. The deportees would also kill people. (Tr. 51). [Respondent] did not like this and re- fused to get involved. (Tr. 71). Every time he refused to do what he was ordered, other gang members beat him. (Tr. 50-51); Exh.4, Tab A, Resp. Suppl. Aff., 5. This happened approximate- ly two or three times a month, because [Respondent] repeatedly refused to participate in extort- ing money or hurting anyone in the community. (Tr. 50-51); Exh. 3, I-589 Affidavit, 5. The local gang had weekly neighborhood meetings and larger monthly meetings with the broader gang from around the entire country of El Salvador. (Tr. 46); Exh. 7, Resp. Suppl. Aff., 4. At these meetings, gang leaders talked about “who was in the gang and who was not in the gang.” (Tr. 45). When a member left, gang members felt that “the other gangs were laughing at them and … they were not going to permit one of their members to leave them.” I-589 Affida- vit, AR 565. As a result, the MS-13 leaders gave gang members the “green light” to kill anyone who tried to leave the gang. (Tr. 46). The MS-13 leaders gave all of the gang members physical 5 descriptions of the individuals who had the “green light,” and told the gang members where they lived or worked, so that gang members who did not know them could kill those individuals if they saw them. (Tr. 46-47). It was commonly understood that death was the only way to leave the gang. Exh.7, Resp. Suppl. Aff., 8. All members who tried to leave were treated the same way. Two of [Respondent’s] friends, nicknamed El Payaso and La Pantera (“the Panther”) tried to leave the gang and were killed as a result. (Tr. 51); Exh. 4, Tab A, Resp. Suppl. Aff., 6. Shortly after this, [Respondent] decided to leave the gang as well; he stopped going to the gang meetings, apologized to his family for worrying them and putting them in danger, and began at- tending church. (Tr. 52); Exh.4, Tab A, Resp. Suppl. Affl, 7. After this, he went to stay outside of San Miguel with his grandmother to try and protect himself.
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