No. 12-9585

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOB S. RAMIREZ-CANENGUEZ and

GEOVANNY A. RAMIREZ-

CANENGUEZ,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY

GENERAL

Respondent.

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PETITIONERS’ OPENING

BRIEF

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PETITION FOR REVIEW OF THE DECISION OF THE BOARD OF IMMIGRATION

APPEALS, DATED SEPTEMBER 24, 2012

A 200-696-531

A 200-696-530

Edward L. Carter, Utah Bar #9871

J. Christopher Keen, Utah Bar # 9510

KEEN LAW OFFICES, LLC

491 S. Orem Blvd.

Orem, UT 84058

Phone: (801) 374-5336

Fax: (801) 374-0047

ATTORNEYS FOR PETITIONERS

ORAL ARGUMENT NOT REQUESTED

Pursuant to In re Electronic Submission of Documents and Conversion to Electronic

Case Filing, General Order No.95-01 (March 18, 2009), Petitioner’s Counsel hereby

states that the Attachments filed with this Opening Brief are included in both written

form and scanned PDF format.

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TABLE OF CONTENTS

page no.

TABLE OF AUTHORITIES ........................................................................................... -iii-

STATEMENT OF RELATED CASES ............................................................................ -v-

STATEMENT OF JURISDICTION ................................................................................ -1-

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ...................... -1-

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .................................... -1-

STATEMENT OF THE CASE ......................................................................................... -2-

STATEMENT OF THE FACTS ...................................................................................... -2-

SUMMARY OF THE ARGUMENT ............................................................................. -16-

ARGUMENT .................................................................................................................. -17-

POINT I ............................................................................................................... -17-

THE PETITION FOR REVIEW SHOULD BE GRANTED AND THE

CASE REMANDED BECAUSE BOTH THE IJ AND BIA FAILED TO

ADDRESS AND DECIDE ON THE CLAIMS FOR WITHHOLDING OF

REMOVAL AND RELIEF UNDER THE CONVENTION AGAINST

TORTURE

1. Standard of Review ....................................................................... -17-

2. The IJ and BIA Did Not Even Consider, Let Alone Decide, Whether

the Ramirezes Were Correct That They Were Entitled to Withholding

and Relief Under CAT ................................................................... -17-

POINT II .............................................................................................................. -20-

THE IJ ERRED IN DENYING ASYLUM, AN ISSUE THE BIA DID NOT

EVEN ADDRESS

1. Standard of Review ....................................................................... -20-

2. Job and Geovanny Have a Credible Fear of Persecution, Based on

ii

Past Persecution, on Account of Their Membership in the Particular

Social Group of Those Individuals in El Salvador Who Are

Committed to Education and Refuse to Leave School to Join

Criminal Gangs .............................................................................. -21-

POINT III ............................................................................................................. -26-

THE IJ AND BIA ERRED IN DENYING THE RAMIREZES’ REQUEST

FOR CONTINUANCE

CONCLUSION AND PRECISE RELIEF SOUGHT .................................................... -29-

CERTIFICATE OF SERVICE ....................................................................................... -30-

CERTIFICATION OF DIGITAL SUBMISSIONS ....................................................... -30-

ATTACHMENTS…………………… ........................................................................... -31-

ATTACHMENT I – BIA AND IJ DECISIONS

ATTACHMENT II – Stephen Dark, “Homeland Insecurity,” Salt Lake City

Weekly, January 2013

iii

TABLE OF AUTHORITIES

CASES

Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005) ................................................. 22

Hayrapetyan v. Mukasey, 534 F.3d 1330 (10th Cir. 2008) ............................. 18, 19, 21, 22

Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008) .............................. …27

INS v. Orlando Ventura, 537 U.S. 12 (2002) .................................................................... 18

Ismaeil v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008) .............................................. 20

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) ......................................................... 23, 24

Matter of A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007) ...................................... 23, 24, 25

Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) .................................................................. 25

Matter of Fefe, 20 I&N Dec. 116 (BIA 1989) ............................................................. 14, 26

Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988) ............................................................. 25

Matter of H-, 21 I&N Dec. 337 (BIA 1996) ...................................................................... 25

Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) ................................................... …26, 27

Matter of Luviano-Rodriguez, 21 I&N Dec. 235 (BIA 1996) .………………...…...…….27

Matter of E-A-G-, 24 I&N Dec. 501 (BIA 2008) ............................................ 11, 12, 14, 25

Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008) ............................................. 11, 12, 14, 25

Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983) ............................................................... 14

Matter of V-T-S, 21 I&N Dec. 792 (BIA 1997) ................................................................. 25

Michelson v. INS, 897 F.2d 465 (10th Cir. 1990) .............................................................. 17

Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005)………...…….. .. .17, 18, 19, 21, 22, 23

Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005) ....................................................... 18

iv

Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. 2007) .................................................... 19

Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) .............................................. 21

Woodby v. INS, 385 U.S. 276 (1966)………………………………………................17, 20

STATUTES

8 U.S.C. § 1101(a)(42)(A)………………………………………...………….. ................ 21

8 U.S.C. § 1158(a)………………………………………...………….. ............................ 21

8 U.S.C. § 1158(b)(1)(B)(ii)………………………………………...………….. ............. 21

8 U.S.C. § 1231(b)(3)………………………………………...……..………………….…19

8 U.S.C. § 1231(b)(3)(A)....………………………………...………………………….…19

8 U.S.C. §§ 1252(a) and 1252(b)………………………………………...………….. ........ 1

ENABLING LAW

INA §240B(a) ………………………………………...………….. ................................. .14

INA §240B(b) ……………………………………………… ……......……...…………..14

REGULATIONS

8 C.F.R. §§ 1003.1(b)(3) and 1240.15………………………………………...…………...1

8 C.F.R. §§ 1003.29………………………………………...………….. ......................... .26

8 C.F.R. § 1208.13(b) …………………………………………...……...……………...…21

8 C.F.R. § 1208.13(b)(1)(i)(A) ………………………………………...………….. ........ 22

8 C.F.R. § 1208.13(b)(1)(i)(B) ………………………………………...………….. ........ 22

v

OTHER

Stephen Dark, “Homeland Insecurity,” Salt Lake City Weekly, January 2013.. ......... 6-7, 8

STATEMENT OF RELATED CASES

Counsel for Petitioner is not aware of any prior appeals or related cases in this

Circuit involving the particular issues raised in this matter.

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STATEMENT OF JURISDICTION

The Board of Immigration Appeals (“BIA”) had jurisdiction to review the decision

of the Immigration Judge (“IJ”) pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. The

BIA’s final order was entered on September 24, 2012 (Certified Administrative Record

[“AR”] 1-3).

Job Samuel Ramirez-Canenguez and Geovanny Alexander Ramirez-Canenguez

(“Messrs. Ramirez”) filed a timely Petition for Review with this Court. This Court has

jurisdiction to review the order of the BIA pursuant to 8 U.S.C. §§ 1252(a) and 1252(b).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

The following statutes and regulations are relevant to this appeal and are

reproduced verbatim in the Brief or in the Attachments: None.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Did the BIA and IJ err in failing to address the requests for withholding of

removal and relief under the Convention Against Torture by Messrs. Ramirez when their

eligibility for it was a critical issue before the Immigration Judge and on appeal to the

BIA?

2. Did the BIA err in failing to address the request for asylum by Messrs.

Ramirez that had been cursorily denied by the IJ?

3. Did the BIA err in failing to correct the IJ’s erroneous conclusion that

Messrs. Ramirez were not entitled to a continuance given that their attorney had only been

hired just before the hearing?

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STATEMENT OF THE CASE

This is a petition for review in which Messrs. Ramirez seek review of a September

24, 2012 order and final decision of the BIA (AR 1-3). The IJ and BIA erred in

concluding that Messrs. Ramirez should be deported from the United States because,

according to the agency, they were not entitled to asylum or, in the alternative, a

continuance before the IJ so their newly hired attorney could prepare to make the case for

their asylum eligibility. The IJ ignored the request for a continuance even in light of the

fact that it was justified by good cause. The BIA failed to correct the IJ’s erroneous

application of law in this regard. Meanwhile, both the IJ and BIA completely ignored the

requests for withholding and relief under CAT. The BIA also ignored the Ramirezes’

requests for asylum, even though the Ramirezes had submitted valid applications and

justifications. The BIA did not even consider the asylum claim in its order. Messrs.

Ramirez now seek to have this petition for review granted so their case can be remanded

to the agency for proper consideration of their requests.

STATEMENT OF THE FACTS

Job and Geovanny Ramirez are natives of El Salvador who entered the United

States in approximately May 2010. Job Ramirez was born in 1994 and is now a senior at

Bear River High School in Garland, Utah. Geovanny Ramirez was born in 1996 and is

now a sophomore at Bear River High School in Garland, Utah. In El Salvador both boys

were subjected to threats and harassment by rival gangs “Mara Salvatrucha” (known as

“MS-13”) and “18th

Street Gang” (known as “M-18”). Members of these gangs tried to

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use force to get the Ramirezes to join the gangs. The Ramirezes fled El Salvador in April

2010 and traveled through Guatemala and Mexico before arriving in the United States in

early May 2010. They were apprehended by Border Patrol agents in Arizona and put in

deportation proceedings. They have been living with their mother, Ana, and their siblings

in Tremonton, Utah, since that time.

Persecution in El Salvador

From 2000 to 2008, both Job and Geovanny attended a private school called

Instituto Noe Canjura in the Ciudad Obrera, Apopa, section of San Salvador. (AR 211,

266). Both boys excelled in school and enjoyed pursuing their studies vigorously. In fact,

the entire Ramirez family was known in San Salvador for their commitment to education.

That commitment was a primary reason that the boys’ mother, Ana, emigrated to the

United States and later brought her children to be with her in Tremonton, Utah. The

Ramirezes’ commitment to pursuing educational opportunities caught the attention of a

journalist for the Salt Lake City Weekly publication, which ran a long article in January

2013 about the Ramirezes and their desires to educate themselves. (See Attachment II).

Although Job and Geovanny were extremely successful in their studies at the elite

private school Instituto Noe Canjura in San Salvador, and although their family

commitment to education included earning and paying the necessary private-school tuition

fees, Job and Geovanny in 2009 were forced to leave the private school system because

they had become identified as among San Salvador’s wealthy and elite educated citizens.

This made them a target for members of the MS-13 gang, in particular, because those

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gang members believed that a family that paid private-school tuition would have money

for stealing or extorting. The parents of Job and Geovanny began to fear for their sons’

safety, and in fact Job and Geovanny began receiving unpleasant and even physically

violent recruitment visits from gang members of MS-13.

In an effort to escape notice of the gang members, Job and Geovanny left the

private school and enrolled in public school. In 2009 Job and Geovanny enrolled in

Centro Escolar Vicente Acosta, a public school in the Calle Principal section of Apopa,

San Salvador. In 2010 they studied for several months, before leaving for the United

States, in the Instituto Nacional de Apopa, another public school in San Salvador.

Beginning in about 2007 and continuing until they left El Salvador in 2010, Job and

Geovanny were targeted by MS-13 gang members specifically because Job and Geovanny

excelled in school, and the gang members wanted Job and Geovanny to join their criminal

organization in order to further its operations.

Job and Geovanny were told by members of MS-13 that Job and Geovanny would

initially be involved in gathering money from members of the local community in

exchange for “security” and “protection” to be provided by the MS-13 gang. Community

members who did not pay would be harmed or killed. In fact, one of Job’s friends who

refused to join the gang was killed by the MS-13 community right in the streets of his own

neighborhood. In addition, two girls in Job’s community were raped and brutally

murdered before their bodies were hacked into pieces by members of the MS-13 gang.

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This action was in retaliation for one of the girls refusing to become the girlfriend of a

gang member.

Job and Geovanny Ramirez became aware that when members of the MS-13 gang

were conducting illegal activities, the police in San Salvador would not respond to

emergency calls for assistance from law-abiding members of the community. In fact, Job

and Geovanny learned that police officers would regularly get drunk with gang members.

Both Job and Geovanny were told by gang members that Job and Geovanny should no

longer attend school but should concentrate full-time on gang activities. However, Job

and Geovanny refused to join the gang because they did not want to leave school and their

studies in order to join a criminal enterprise. At one point, the gang persecution of Job

and Geovanny became so bad that they refused to leave their house and they missed

approximately two weeks of school. But both of them wanted to continue their studies

and so they eventually realized that they had to leave San Salvador. They fled across the

border to Guatemala and then Mexico before crossing into the United States.

Job and Geovanny Pursue Educational Goals in Utah

When found by Border Patrol agents in the United States, the Ramirezes were

walking with seven other individuals from El Salvador. The record left by the Border

Patrol agents who found the Ramirezes and issued them Notices to Appear does not

indicate that the agents questioned the Ramirezes about their credible fear of persecution

by gang members in El Salvador or any other conditions that would support a grant of

asylum. The IJ later acknowledged “there was no credible fear interview that was

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accomplished” by the Border Patrol agents. (AR 138). The Ramirezes, however, did

indicate at the border that they feared returning to El Salvador. (AR 144). In fact, the

Ramirezes said at that time that their family members had had past run-ins with gang

members in El Salvador. Their own father had been kidnapped and their uncle was

persecuted and forced to go into hiding. (AR 144). The Ramirezes themselves were

forced into hiding for two weeks, a fact that was known to their schoolteachers. (AR 144-

145).

Once they arrived in the United States, the Ramirezes were temporarily placed with

an “Esparanza” program in Arizona that housed them and cared for them before they

could join their mother and siblings in Tremonton, Utah. Job and Geovanny began

attending classes at Bear River High School in Garland, Utah. Both of them are

successful in their studies at Bear River High and are on track for graduation. Job is

scheduled to graduate in May 2013 and Geovanny is scheduled to graduate in May 2015.

They have received several commendations from teachers and school counselors and have

been encouraged to pursue higher education after high school graduation.

Job has been recognized in his community because he “learned English to the point

he helps other students, has won an achievement award and earned a glowing

recommendation from Bear River High School vice principal Chad Kirby, who writes that

since Job arrived in Utah, he ‘has worked hard to get everything accomplished so he is on

pace to graduate . . . . He has a tremendous future ahead of him and I would hope that we

would allow him to reach his full potential.’” (Stephen Dark, “Homeland Insecurity,” Salt

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Lake City Weekly, January 2013—copy is included at Attachment II and quotation above

is found at page 13).

Job is currently applying to colleges and seeking scholarships. He is interested in

attending Utah State University in Logan, Utah, to study journalism. He currently has an

excellent high school grade-point average of 3.6 on a scale of 4.0. In less than three years

in the United States, he has learned English and adapted to a new culture. He enjoys his

studies and performs well in school. He has friends at Bear River High School who

complain about school and say they just want to be finished, but he does not understand

that mindset since he enjoys school and knows it will allow him to have a brighter future.

Geovanny also is doing well in school and is on track to graduate with his classmates in

just over two more years. Both Job and Geovanny are extremely grateful they chose to

leave El Salvador and continue their schooling in the United States rather than stay in their

native country and be forced into leaving school and participating in illegal and violent

gang activities.

Both Ramirezes fear that if they return to El Salvador, they will be persecuted,

harmed, tortured or even killed. They fear that the gang members will again target them

because of their commitment to education and desire to attend school. The gang members

know that Job and Geovanny have gone to the United States to pursue education free from

influence of the MS-13 gang members. If Job and Geovanny return to El Salvador, they

will likely be singled out for persecution and harm, and the MS-13 gang members will

force them to give up their educational pursuits and dreams.

8

Even in the face of this likelihood, Job and Geovanny remain focused on their

schooling at Bear River High School. Their mother, Ana, is obviously distraught at the

prospect of being again separated from her sons and seeing them forced into gang

activities, or persecuted, tortured or killed, in El Salvador. Notwithstanding this, Ana

remains committed to her children’s education and tells Job and Geovanny that, even in

the face of deportation and the likely resulting physical harm or death, “You have to

study, until the very last day.” (Stephen Dark, “Homeland Insecurity,” Salt Lake City

Weekly, January 2013—copy is included at Attachment II and quotation above is found at

page 14).

Ramirezes Make Their Asylum Claim

A Park City, Utah attorney named Scott Poston assisted the Ramirezes in preparing

and filing asylum applications in October 2010. In his application, Job stated the

following basis for seeking asylum and withholding of removal:

I am a student and I like going to school. To get there I have to walk. On

my way to and from school the gang members harass me, they call me

names and threaten me. They tell me I need to join the gang or else I will be

sorry and end up the way others have—beaten and sometimes killed. I don’t

want to join the MS-13 gang and I have told them but mostly I try and avoid

any members. It is really scary and intimidating. I am small and don’t like

to fight. The reason the threats happened was because I am young boy, they

try to get us to join now, also because I go to school, they don’t like us to go

to school. (AR 212).

Further, Job expressed the fear that he would be subjected to torture if he returned

to his home country. (AR 213). He said this would include “[h]arassment, threats, being

beaten or shot by the MS-13 gang members.” (AR 213). He noted that he had been

9

threatened and harassed in the past, and he had a cousin who was shot at by gang members

“for standing up for himself.” (AR 213). Geovanny also sought asylum, withholding of

removal and relief under the Convention Against Torture (CAT) based on similar claims

as Job. (AR 267-268).

The Ramirezes’ claims are substantiated by information in the U.S. State

Department’s Country Report for El Salvador. For example, the State Department noted

the influence of gang members within prisons and the judicial system. (AR 176). The

State Department also noted the large number of incidents of misconduct or illegal

behavior by police in El Salvador. (AR 177). The State Department called the problem of

criminal gang organizations in El Salvador “a serious and pervasive socio-economic

challenge to the security, stability and welfare of El Salvador. . . .” (AR 200). The State

Department is well aware of the activities of, and rivalry between, MS-13 and the 18th

Street Gang in El Salvador. (AR 201).

Significantly, the U.S. State Department has identified lack of educational

opportunities as one of the factors contributing to the growth of gangs in El Salvador.

(AR 201). Further, the U.S. government recognized that many of the victims of these

gangs are able to pursue asylum claims in the United States, in part because of the

impotence of El Salvador’s law enforcement mechanism to control the gangs. (AR 202).

Mr. Poston ceased to represent the Ramirezes in January 2011, just two months

before a scheduled merits hearing before the Immigration Judge who would consider their

applications for asylum, withholding and relief under CAT. The Ramirezes next believed

10

they would be represented by attorneys from the Catholic Legal Immigration Network,

headquartered in Washington, D.C. However, in a letter dated March 2, 2011, attorneys

from the Catholic Legal Immigration Network wrote to the Ramirezes to inform them that

that office was “closing your case” because “you live outside of the geographic area that

we serve.” (AR 171). In reality, however, Ana was led to believe that the Catholic Legal

Immigration Network dropped her sons’ cases when attorneys at that organization learned

that Ana and her family attend an Evangelical church and are not Catholics.

New counsel, German T. Flores, was retained less than a week before the

scheduled March 15, 2011 hearing before the IJ. Upon his retention by the Ramirezes,

Mr. Flores immediately made contact with the Immigration Court to inform the IJ of the

situation. Mr. Flores clearly and repeatedly informed the IJ that he was unfamiliar with

the facts of the case and that, due to the short time frame between his retention and the

merits hearing, there was a need for a continuance. Mr. Flores had never appeared before

the IJ on the instant matter before the March 15, 2011 hearing, and Mr. Flores’ entry of

appearance is dated March 9, 2011.

Angry and Unreasonable IJ Denies Continuance Under Wrong Legal Standard and

Scoffs at Claims for Asylum, While Completely Ignoring Claims for Withholding

and Relief Under CAT

At the outset of the March 15, 2011 hearing, Mr. Flores told the IJ, “So I think we

would like to request a continuance in the case. I’ll be taking the case, so—but there’s no

way I can have the individual hearing today because I’m not prepared at all with the case.”

(AR 134). Counsel also informed the IJ that he needed to make requests under the federal

11

Freedom of Information Act to obtain information relevant to the Ramirezes eligibility for

asylum. (AR 136). Counsel informed the IJ that he did not even have copies of all the

relevant documentation, including the Form I-213. (AR 136-137). Counsel told the IJ

that he and his clients needed more time to fully explain the evidence for their eligibility

for asylum. (AR 141).

Despite all of the efforts by counsel to help the IJ understand that there was good

cause for the continuance, the IJ impatiently tried to rush the proceedings and force

counsel and the Ramirezes into participating in the hearing immediately, even though the

IJ knew that counsel and the Ramirezes were not prepared. For example, the IJ pressed

counsel by saying, “Well, I’ll give you whatever time you need today to read [the asylum

applications], as well as to give you an I-213 if you wanted to look at it.” (AR 140).

Within just a few short minutes, however, the IJ’s promise to give counsel “whatever time

you need” had changed to “Why don’t I give 15 minutes, and then we’ll go back on the

record.” (AR 142).

The IJ did not explain how counsel was supposed to fully prepare an asylum case

in 15 minutes. Instead, in all his anxiousness, the IJ immediately began proceeding with

an examination of the facts and law surrounding the asylum application. The IJ began

questioning counsel for the Ramirezes about two cases decided by the Board of

Immigration Appeals—Matter of E-A-G-, 24 I&N Dec. 501 (BIA 2008) and Matter of S-

E-G-, 24 I&N Dec. 579 (BIA 2008). (AR 145). The IJ began pontificating about the lack

of nexus in the case of the Ramirezes and the similarities between the Ramirezes’ situation

12

and that of the aliens in Matter of E-A-G- and Matter of S-E-G-. The absurdness of the

IJ’s efforts to rush the hearing along was not left unchallenged by counsel, who once again

emphasized that a continuance was necessary In order to “completely put the facts

together, and put a package together to show that they have past persecution, and they

have a well-founded fear of persecution in the future.” (AR 146).

In the face of counsel’s request for a continuance, the IJ merely proceeded in his

own stated views of the Ramirezes’ case, even though no facts or evidence had actually

been presented yet. The IJ said that “their case is not unique. I mean, it, it really isn’t.

There are many of thousands of kids that are in their position in Central and South

America, and you know this better than I, in Honduras—” (AR 147). The IJ assumed he

knew the facts of the Ramirezes’ asylum claim when in fact the Ramirezes had never had

the opportunity to present those facts. Still, the IJ already had concluded in his mind that

the Ramirezes’ case was “very much similar” to other cases where asylum was not

granted. (AR 148). Counsel for the Ramirezes once again emphasized that “this is a

skeleton application that was put together” and that the Ramirezes “deserve a day in

Court.” (AR 149). Counsel tried to explain that, given a continuance, the Ramirezes

would put together evidence from “school teachers, employers and—” (AR 149). At that

point, though, the IJ cut off counsel and so counsel was unable even to explain where the

evidence would come from and of what it would consist. Instead, the IJ demonstrated he

already had his mind made up by stating that there still might lack evidence of nexus, even

before the IJ knew what the evidence was and from whom it would come.

13

Counsel for the Ramirezes clearly told the IJ that the Ramirezes were not ready to

testify about the basis for asylum and that they needed more time to prepare, given that he

only had been hired by them less than a week earlier. (AR 151). But the IJ only cared

about one thing—getting the case over with as soon as possible, regardless of whether the

correct outcome was reached. In fact, the IJ repeatedly demonstrated his impatience and

even anger: “I know. Today is the date set for the trial. I’m happy to have the trial. The

motion to continue is denied.” (AR 154).

Counsel for the Ramirezes also informed the IJ that the 15 or 20 minutes he had

spent with the Ramirezes discussing the case was the most amount of time they had been

given to discuss their facts and evidence with Mr. Poston or attorneys from the Catholic

Legal Immigration Network. (AR 155, 158). In light of this, the IJ got hung up on the

idea that counsel was attempting to make a claim for ineffective assistance of counsel,

even though counsel made clear that was not the case. (AR 160). By focusing on the

ineffective assistance issue, the IJ allowed himself to become distracted from the issue that

really mattered—whether good cause had been shown for a continuance.

Throughout the balance of the hearing, the IJ continued to demonstrate his

impatience and his desire simply to have the whole thing over with and have the

Ramirezes deported apparently so he could keep his calendar moving. He seemed to have

the case prejudged when he spoke with the Ramirezes’ mother and stepfather, who were

present in the courtroom. (AR 162, 165). Because the Ramirezes were not prepared to

14

testify, the IJ pointed to Matter of Fefe, 20 I&N Dec. 116 (BIA 1989) as supporting his

decision to deny the asylum applications. (AR 168).

In his oral decision, the IJ again indicated that it would not have mattered to him

whether the full facts of the case had been presented or not since he already had made up

his mind that the Ramirezes would be denied in their asylum applications. (AR 50). The

IJ cited in support Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983) (AR 54). The IJ said he

believed the Ramirezes’ case and Matter of Sibrun were “[v]ery similar.” (AR 54).

However, the IJ failed to note the significant substantive differences between Matter of

Sibrun and the situation of the Ramirezes. Not only did the IJ deny the request for

continuance, but based on Matter of S-E-G- and Matter of E-A-G-, the IJ denied the

applications for asylum. Although counsel for the Ramirezes had made clear the he did

not even have time to discover the relevant facts of the case, the IJ nonetheless faulted

counsel and the Ramirezes for allegedly failing to produce “additional evidence which

they seek to event [sic] is probative, noncumulative and significantly favorable to him.”

(AR 58).

Finally, the IJ stated, “The Court will not adjudicate the respondents’ asylum

application on its merits, except to say that their application must be denied because they

cannot meet their burden of proof for refusal to present evidence in support of the

application.” (AR 63). The IJ then denied pre-conclusionary voluntary departure under

Immigration and Nationality Act (hereinafter “INA”) § 240B(a) and said they were not

eligible for post-conclusionary voluntary departure under INA §240B(b) because they

15

were not present in the United States for one year preceding service of the Notice to

Appear. (AR 64).

However, the IJ never even reached a conclusion with respect to the Ramirezes’

applications for withholding of removal or eligibility for relief under the Convention

Against Torture. In fact, the IJ never even mentioned those claims, despite the fact that

Job and Geovanny had stated on their applications that they would likely be tortured in El

Salvador and would be beaten or shot. (AR 213).

BIA Perpetuates IJ Error on Continuance and Fails to Address Asylum,

Withholding or CAT

On September 24, 2012, the Board of Immigration Appeals issued its order

affirming the IJ decision. The BIA stated that the IJ was correct in concluding that a

continuance was not warranted. (AR 3). While the BIA referred to the discussion before

the IJ about “nexus to an enumerated ground” on which asylum may be granted (AR 3),

the BIA never actually concluded that the IJ was correct in denying the Ramirezes’

asylum claims. The BIA also did not even mention the claims for withholding of removal

or relief under the Convention Against Torture.

16

SUMMARY OF THE ARGUMENT

The Petition for Review should be granted and the case remanded. First, the IJ and

the BIA erred in completely ignoring the claims by Messrs. Ramirez that they would be

tortured in El Salvador and therefore should be entitled to withholding of removal or relief

under the Convention Against Torture. The failure of the IJ and BIA even to address

these issues is inexplicable and indefensible. Second, the IJ cursorily and erroneously

denied the asylum claims by Job and Geovanny, and the BIA did not even address the

asylum claims at all. The IJ made no finding that Job and Geovanny were not credible,

and in their applications Job and Geovanny had provided evidence that they were entitled

to asylum on the grounds of persecution based on their membership in the particular social

group of those who are committed to education and refuse to leave their schooling in order

to participate in criminal gang enterprises. Third, the IJ erred in failing to grant the

motion for continuance when in fact good cause had been shown because counsel for the

Ramirezes had been hired only a few days before the hearing and had not been given

sufficient time to prepare. Good cause also included the fact that another attorney had

recently withdrawn from the case and the Catholic Legal Immigration Network attorneys

had dropped the Ramirezes because they are Evangelicals and not Catholics.

.

17

ARGUMENT

I. THE PETITION FOR REVIEW SHOULD BE GRANTED AND THE CASE

REMANDED BECAUSE BOTH THE IJ AND BIA FAILED TO ADDRESS

AND DECIDE ON THE CLAIMS FOR WITHHOLDING OF REMOVAL

AND RELIEF UNDER THE CONVENTION AGAINST TORTURE.

1. Standard of Review

The burden of proof is on Mr. Holder to show by “clear, unequivocal, and

convincing evidence that the facts alleged as grounds for deportation are true.” Woodby v.

INS, 385 U.S. 276, 286 (1966). See also Michelson v. INS, 897 F.2d 465 (10th Cir. 1990).

In considering petitions for review of removal orders this Court generally reviews legal

conclusions de novo and factual determinations under a substantial evidence standard. See

Niang v. Gonzalez, 422 F.3d 1187, 1196 (10th Cir. 2005).

2. The IJ and BIA Did Not Even Consider, Let Alone Decide, Whether the

Ramirezes Were Correct That They Were Entitled to Withholding and Relief Under

CAT

The order of the Board of Immigration Appeals, like the IJ’s order, utterly lacks

consideration and analysis of the contention by Job and Geovanny that they would be

tortured in El Salvador and therefore merited withholding of removal or relief under CAT.

Although the IJ and BIA completely ignored it, Job and Geovanny did assert that they

would be tortured, beaten or shot and so—separate and apart from their asylum claims—

they should be granted withholding or relief under CAT. (AR 213). The fact that the IJ

and BIA did not even consider or address the Ramirezes’ arguments about withholding

and CAT means that Messrs. Ramirez were deprived of any meaningful opportunity to be

heard, and that is exactly this Court’s definition of a violation of procedural due process in

18

an immigration administrative proceeding. Schroeck v. Gonzales, 429 F.3d 947, 952 (10th

Cir. 2005) (defining due process violation as situation in which a petitioner does “not have

an opportunity to present his case”).

In the Tenth Circuit, failure by the BIA to address a primary contention raised by

an asylum applicant who points to error by the IJ requires the petition for review to be

granted. See Hayrapetyan v. Mukasey, 534 F.3d 1330, 1335 (10th Cir. 2008) (“[W]hen

the BIA fails to address an argument raised by an applicant, the proper course is to

‘remand if the ground appears to have any substance.’”) (quoting Niang, 422 F.3d at

1197). In Niang, for example, the BIA utterly failed to consider or address an asylum

applicant’s claim that she suffered female genital mutilation on account of her

membership in a particular Senegalese tribe. Niang, 422 F.3d at 1197, 1201. Because the

IJ and BIA had failed to adequately consider and resolve that claim, this Court remanded

the case so the appropriate administrative consideration could take place. In Niang, this

Court stated, “Decisions should be made in the first instance by the BIA. And when it has

failed to address a ground raised by an applicant in support of her claim, we should

ordinarily not reverse on that ground but should instead remand if the ground appears to

have any substance.” Id. at 1197 (citing INS v. Orlando Ventura, 537 U.S. 12 (2002)).

The case of Messrs. Ramirez should be remanded to the BIA because the BIA, like

the IJ, abjectly failed to address a central issue in the case—namely, whether Messrs.

Ramirez were correct that they were entitled to withholding and relief under CAT. In line

19

with this Court’s precedents in Niang and Hayrapetyan, this failure by the BIA merits and

requires remand.

In addition to their claims for asylum, Messrs. Ramirez were entitled to

withholding or restriction on removal under 8 U.S.C. § 1231(b)(3). Withholding of

removal to a particular country should be granted where “the Attorney General decides

that the alien’s life or freedom would be threatened in that country because of the alien’s

race, religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A). Aliens must establish “a clear probability of persecution” in

order to gain restriction on removal under the INA. Hayrapetyan, 534 F.3d at 1336

(citation omitted). Neither the IJ nor the BIA ruled on the Ramirezes’ eligibility for

withholding.

Further, Messrs. Ramirez asserted eligibility for protection under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (CAT). Protection under CAT should be

granted “if the alien can prove it is more likely than not that he or she would be tortured if

removed to a particular country. . . . An alien petitioning under the CAT need not show

that the torture would be on account of a statutorily protected ground, only that the

persecution would be so severe that it would rise to the level of torture.” Hayrapetyan,

534 F.3d at 1336 (quotations and citations omitted). See also Sidabutar v. Gonzales, 503

F.3d 1116, 1125 (10th Cir. 2007) (“To receive the protections of the CAT, an alien must

demonstrate that it “is more likely than not that he will be subject to torture by a public

20

official, or at the instigation or with the acquiescence of such an official.”) (quotation and

citation omitted). Unlike asylum, CAT protection does not involve discretion on the part

of the administrative agency; it is mandatory if the seeker qualifies. See Ismaeil v.

Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008).

The failure of the IJ and BIA to address eligibility for CAT relief was particularly

egregious because there was uncontroverted evidence, in the form of the statements by Job

and Geovanny on their applications, that they would be tortured, beaten or shot. The

government never disputed that in the hearing before the IJ nor before the BIA. And even

if the Ramirezes’ were deemed not eligible for asylum for lack of nexus with a statutorily

protected ground, they would still be entitled to CAT relief. This Court should grant the

petition for review and remand the case to the BIA for consideration, in the first instance,

of the Ramirezes’ eligibility for withholding and CAT relief.

II. THE IJ ERRED IN DENYING ASYLUM, AN ISSUE THE BIA DID NOT

EVEN ADDRESS.

1. Standard of Review

The burden remains on Mr. Holder to show by “clear, unequivocal, and convincing

evidence that the facts alleged as grounds for deportation are true.” Woodby, 385 U.S. at

286. The Court should apply a de novo standard of review to the legal question of

whether the BIA erroneously concluded Mr. Esparza was convicted of an aggravated

felony crime as defined in the INA.

21

2. Job and Geovanny Have a Credible Fear of Persecution, Based on Past

Persecution, on Account of Their Membership in the Particular Social Group of

Those Individuals in El Salvador Who Are Committed to Education and Refuse to

Leave School to Join Criminal Gangs.

The U.S. Code allows individuals such as Messrs. Ramirez to apply for asylum. 8

U.S.C. § 1158(a). Asylum should be granted where the seeker is a refugee in that he or

she “is unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The U.S. Code also establishes

that “[t]he testimony of the applicant may be sufficient to sustain the applicant’s burden

without corroboration.” 8 U.S.C. § 1158(b)(1)(B)(ii).

This Court has defined persecution in the asylum context:

Although persecution is not defined in the INA, we have held that a finding

of persecution requires the infliction of suffering or harm upon those who

differ (in race, religion, or political opinion) in a way regarded as offensive

and must entail more than just restrictions or threats to life and liberty. Such

persecution may be inflicted by the government itself, or by a non-

governmental group that the government is unwilling or unable to control.

Hayrapetyan, 534 F.3d at 1335 (quoting Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th

Cir. 2004) (internal quotations and citations omitted)).

This Court has further noted that the relevant portion of the Code of Federal

Regulations, 8 C.F.R. § 1208.13(b), “provides two ways of achieving refugee status: one

based on past persecution and the other based on a well-founded fear of future

persecution.” Niang, 422 F.3d at 1194. This Court stated in Niang that “[a]n applicant

22

shall be found to be a refugee on the basis of past persecution if the applicant can establish

that he or she has suffered persecution in the past in the applicant’s country of nationality

[on one of the forbidden grounds] ..., and is unable or unwilling to return to, or avail

himself or herself of the protection of, that country owing to such persecution.” Id.

(emphasis and changes in Niang).

This Court more recently has pointed out a third way to meet the refugee definition:

“by showing past persecution so severe that it supports an unwillingness to return to the

country where the persecution occurred.” Hayrapetyan, 534 F.3d at 1335 (citing Chaib v.

Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005)). For an individual who establishes past

persecution, there exists a presumption of “a well-founded fear of persecution on the basis

of the original claim,” but “[t]hat presumption may be rebutted if an ... immigration judge

[finds by a preponderance of the evidence that] ... [t]here has been a fundamental change

in circumstances such that the applicant no longer has a well-founded fear of persecution

in the applicant's country of nationality. . . .” 8 C.F.R. § 1208.13(b)(1)(i)(A).

In the case of Messrs. Ramirez, the Department of Homeland Security did not even

attempt to undertake the effort to show that country conditions have changed since Job

and Geovanny were persecuted there. Nor did the Department of Homeland Security even

attempt to make a showing that Job and Geovanny could “avoid future persecution by

relocating to another part of the . . . country of nationality.” 8 C.F.R. §

1208.13(b)(1)(i)(B). Hence, the unrebutted showing of past persecution by Messrs.

Ramirez, as illustrated in their applications filed with the Immigration Court, stands as

23

conclusive evidence that Job and Geovanny have a well-founded fear of future persecution

if returned to the country of El Salvador.

This Court has deferred to the BIA’s interpretation of the phrase “membership in a

particular social group.” Niang, 422 F.3d at 1196-1200. Hence it is fully appropriate here

to discuss the BIA precedents interpreting and applying that term. The BIA has for some

time maintained that one’s membership in a particular social group hinged on

identification of an immutable characteristic shared with other group members. See

Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985). In other words, the sine qua non of

refugee status as a particular social group member was that individuals were “unable by

their own actions, or as a matter of conscience should not be required, to avoid

persecution.” Id. at 233.

In Matter of A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007), the Board stated that

social group status should be determined by examining (1) social visibility and (2)

particularity. The social visibility factor measures whether a given society perceives

members of a particular social group to be more likely targets of persecution as a result of

their membership in that group. Id. at 75 (stating that members of a particular social

group “are exposed to more violence and human rights violations than other segments of

society.”) Meanwhile, particularity refers to the degree to which a certain group of

individuals is determinate or distinguishable. Id. at 76. A group whose identifying

characteristic is amorphous, “and not just at the margins,” may not qualify under the INA

as a particular social group. Id.

24

Under this test for membership in a particular social group, Messrs. Ramirez

qualify for asylum. Their reputation as individuals committed to education who would not

forego their schooling in order to join a criminal gang is an immutable characteristic of all

their family members and certain other related individuals. This reputation and

identification of Messrs. Ramirez as committed scholars will not go away in the eyes of

their persecutors, especially if Job and Geovanny return to El Salvador now after having

spent the last three years studying in the United States. Their unshakable lifelong

commitment to education is an immutable characteristic that he is “unable by [his] own

actions, or as a matter of conscience should not be required, to [change in order to] avoid

persecution.” Matter of Acosta, 19 I&N Dec. at 233.

Under the Board’s definition in Matter of A-M-E & J-G-U, it is even more clear

that Messrs. Ramirez are members of a particular social group targeted for persecution.

Clearly, the group of individuals committed to pursuing education at all costs is high-

profile and highly recognizable. Members of this group are socially visible in that they

“are exposed to more violence and human rights violations than other segments of

society.” Matter of A-M-E & J-G-U, 24 I&N Dec. at 75.

Likewise, Messrs. Ramirez and others committed to education satisfy the

particularity requirement of the social group test in Matter of A-M-E & J-G-U. The group

of hard-core education devotees is easily determinable by virtue of their conduct and

speech. The determination of whether one attends school, studies hard, gets good grades

and refuses to leave school for gangs is not at all “subjective, inchoate or variable.”

25

Matter of A-M-E & J-G-U, 24 I&N Dec. at 76. Rather, it is a straightforward matter to

identify the relatively small number of individuals such as Job and Geovanny.

In these ways, then, this case differs from Matter of C-A-, 23 I&N Dec. 951 (BIA

2006), in which a group of Colombian noncriminal informants about Cali drug cartel

activities were found not to constitute a particular social group. In that case, the Board

concluded that “the very nature of the conduct at issue” with respect to confidential

informants “is generally out of the public view.” Matter of C-A-, 23 I&N Dec. at 960.

But the case of Messrs. Ramirez is different. They are recognizable on the street as they

walk to school and rebuff gang recruitment efforts. Hence their membership in this pro-

education and anti-gang group is similar to other groups the BIA has determined to be

particular social groups under the INA. See, e.g., Matter of V-T-S, 21 I&N Dec. 792 (BIA

1997) (Filipinos of mixed ancestry); Matter of H-, 21 I&N Dec. 337 (BIA 1996) (Somali

subclan); Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988) (El Salvadoran national

police).

Although he purported to discuss Matter of S-E-G- and Matter of E-A-G-, the IJ

never actually allowed Messrs. Ramirez to present their evidence that would establish

eligibility for asylum due to past persecution, and well-founded fear of future persecution,

on account of their membership in a particular social group. Instead, the IJ cursorily

concluded (without viewing or hearing the evidence) that anything Job and Geovanny

would present to him would not be “probative, noncumulative and, most importantly,

‘significantly favorable’ to them.” (AR 58). But the IJ gave no valid basis or explanation

26

for how he knew this to be the case, since he would not allow the evidence to be

presented. Once the petition for review is granted and the case remanded, Job and

Geovanny can finally be given an opportunity, for the first time, to present their full

evidence.

Although the IJ pointed to Matter of Fefe, this seems to be a smokescreen since it

was the behavior of the IJ that resulted in Job and Geovanny not testifying about their

asylum applications. As has been articulated, the IJ promised Job and Geovanny and their

counsel all the time they needed, but then soon after he said they only had 15 minutes to

prepare an entire asylum case. (AR 142). This behavior by the IJ is so egregious as to

render the rule in Matter of Fefe inapplicable. The IJ seemed to care only about clearing

his docket of unwanted cases and so he made prejudgments about this case without ever

allowing all the evidence to be presented. The IJ cannot be allowed to prevent Job and

Geovanny from testifying and then deny their applications because they failed to testify.

The boys will happily testify before the IJ on remand.

III. THE IJ AND BIA ERRED IN DENYING THE RAMIREZES’ REQUEST

FOR CONTINUANCE.

The IJ and BIA erred in denying the Ramirezes’ request for continuance. The

Attorney General has mandated in 8 C.F.R. § 1003.29, “The Immigration Judge may grant

a motion for continuance for good cause shown.” The Board in Matter of Hashmi, 24

I&N Dec. 785 (BIA 2009) reviewed a case in which an IJ denied a fifth continuance

request in order to meet “case completion goals” imposed on him by the Department of

Justice. 24 I&N Dec. at 786. The Board affirmed the IJ’s denial of the continuance

27

request, but the U.S. Court of Appeals for the Third Circuit granted a petition for review

and remanded the case to the Board. See Hashmi v. Attorney General of U.S., 531 F.3d

256 (3d Cir. 2008).

In the case of Messrs. Ramirez, however, the IJ and BIA did not follow the Board’s

instructions in Matter of Hashmi. Instead, the IJ seemed to adopt something akin to a due

process inquiry from Matter of Luviano-Rodriguez, 21 I&N Dec. 235 (BIA 1996). In

doing so, the IJ has become confused and committed a fatal legal error. In Matter of

Luviano, the Board considered a case in which an individual sought a continuance in order

to have a criminal conviction expunged. The Board did not state, as the IJ apparently

believed in the case of Messrs. Ramirez, that an IJ considering a continuance request

should require the proponent to show a denial of due process. Instead, the Board stated

something very different, “The decision to grant or deny a continuance is within the

discretion of the Immigration Judge, if good cause is shown, and that decision will not be

overturned on appeal unless it appears that the respondent was deprived of a full and fair

hearing.” 21 I&N Dec. at 237.

In other words, the Board set forth the legal standard—good cause. Then the Board

stated that, after the legal standard of good cause was met, the IJ could exercise discretion

and that the IJ’s discretionary determination would not be reversed by this Board unless a

violation of due process had occurred. This is a very familiar pattern in the administrative

adjudication of immigration matters: An IJ is required to apply legal standards established

by Congress, the Attorney General and the federal courts, and there is no discretion with

28

the IJ in setting or applying that legal standard; however, once the threshold legal standard

has been met, then the IJ is authorized to exercise some discretion as long as there is no

abuse of that discretion in the form of a due process violation for which prejudice is

shown. The IJ should have been very familiar with the pattern and the interaction between

legal standards and discretion, but obviously he was not and he committed an error that

required the Board to reverse and remand. But the Board again merely parroted the IJ’s

erroneous approach and conclusion.

What the IJ did in the case of Messrs. Ramirez is to confuse the legal standard—

good cause—with the discretion he could exercise (in line with due process) only after a

determination of whether the good cause hurdle had been cleared. The IJ seemed to cast

off the good cause standard and instead simply required Job and Geovanny to show that

their due process rights were violated, a much more difficult showing and one that should

not have been employed. Instead, the IJ should have made a full inquiry about whether

good cause was shown. Only then could the IJ exercise discretion and expect, if he did so

within the bounds of due process, deference from the Board. The BIA should have

corrected this.

The Ramirezes did in fact show good cause for his continuance request. Job and

Geovanny simply requested more time so their attorney could be prepared. This was after

being dropped by the Catholic Legal Immigration Network potentially due to religious

discrimination, and after seeing Mr. Poston, their prior attorney, withdraw from the case.

29

All of this means there was good cause for Mr. Flores to be given more than 15 minutes,

or even a few days, to prepare the asylum case and other requests for relief.

CONCLUSION AND PRECISE RELIEF SOUGHT

The IJ and BIA erred in not considering withholding and CAT relief. The IJ erred

in denying asylum, and the BIA erred in failing to address that issue. The IJ and BIA

erred in failing to grant a continuance for good cause.

Accordingly, based on the foregoing, the Petition for Review should be granted.

The order of the BIA should be reversed and the matter remanded with instructions for the

BIA to grant the Ramirezes’ request that the IJ properly adjudicate the withholding, CAT

and asylum claims.

RESPECTFULLY DATED this 25th day of January, 2013.

Attorney for Petitioner

By /s/ Edward L. Carter

EDWARD L. CARTER

30

CERTIFICATE OF SERVICE

I hereby declare that I served a copy of the foregoing Petitioner's Opening Brief, by

the CM/ECF system, this 25th day of January, 2013, to:

Julia J. Tyler

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Attorney for Respondent

I also certify that identical copies of these written materials have been provided to

above-named counsel in digital form via electronic mail to Julia.Tyler@usdoj.gov.

/s/ Edward L. Carter

CERTIFICATION OF DIGITAL SUBMISSIONS

I hereby certify that all required privacy redactions have been made and that

Petitioner’s Opening Brief and Attachments submitted in Digital Form and as scanned

PDFs are exact copies of the written documents filed with the Clerk. I also certify that

these digital submissions have been scanned with Symantec Endpoint Protection version

11.0.6200.754 and are free of viruses.

/s/ Edward L. Carter