U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pilce, Swte 2000
Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Howard, Theodore Augustus OHS/ICE Office of Chief Counsel - WAS
Wiley Rein LLP 1901 S. Bell Street, Suite 900
1776 K Street, NW Arlington, VA 22202
Washington, DC 20006

Name: H -C ,C A 702

Date of this notice: 5/4/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

lJ'
(.
J . J

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Kelly, Edward F.
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: C-A-H-C-, AXXX XXX 702 (BIA May 4, 2017)

..

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 702 - Arlington, VA Date:

MAY - 4 iJ17
In re: C A H -C

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Theodore A. Howard, Esquire1

ON BEHALF OF OHS: Nicholas J. Bolzman

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] -

Present without being admitted or paroled

APPLICATION: Asylum, withholding of removal, Convention Against Torture

The respondent, a native and citizen of Honduras, appeals the Immigration Judge's
August 21, 2016, decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). See sections 208(b)(1)(A) and
241(b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. 1158(b)( l )(A),
123l(b)(3)(A); 8 C.F.R. 1208.16(c), 1208.18. The Department of Homeland Security
("OHS") opposes the appeal. The appeal will be sustained.

We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including questions of law, judgment and discretion. 8 C.F.R. 1003.1(d)(3)(ii).

The respondent's request for relief and protection is based on a claim that he was and will be
persecuted by gang members in Honduras (I.J. at 2). The respondent claims that when he was
approximately 12 years old his mother kicked him out of the house and he was forced to live on
the streets (I.J. at 2). He was taken in and cared for by a group of older boys, who were also
homeless (I.J. at 2). The respondent later learned that these individuals were gang members
(I.J. at 2). In exchange for the care that he received, the respondent performed favors for the
boys like buying food and sodas (I.J. at 2). After a while, the respondent was asked to perform
other, more involved, tasks like alerting them when police were nearby and delivering packages
for them (I.J. at 2). The respondent later learned that the packages contained marijuana and
money from extortion activities (I.J. at 2-3).

1 We acknowledge the efforts of the additional attorneys listed on the respondent's brief, as well
as the brief of amici curiae.

Cite as: C-A-H-C-, AXXX XXX 702 (BIA May 4, 2017)

 702
,

Out of concern about the illegality of the group's activities and the increasing realization that
the individuals were gang members, or involved in gang activity, the respondent tried to escape
(I.J. at 3). However, the gang members found him and upon his return, they beat him "severely"
to teach him a "lesson" (I.J. at 3). When he was 17 years old, the respondent escaped the gang
and fled to the United States after he was asked to carry out a murder and refused (I.J. at 3). The
respondent asserts that he never committed an act of violence for the gang and was never directly

Immigrant & Refugee Appellate Center, LLC | www.irac.net

involved in drug dealing or extortion (I.J. at 2-3).

The respondent was arrested once during his time working with the gang, along with four
other individuals, on their way to deliver extortion money (I.J. at 3, Exh. 3, Tab A). He was
interrogated, beaten by police officers, and ultimately placed in a juvenile detention facility
(I.J. at 3, Exh. 3, Tab A). The respondent claims that he was never convicted or sentenced for
committing a crime in Honduras (Resp. Br. at 18).

The Inunigration Judge found the respondent credible and found that he had sufficiently
corroborated his claim, but found the respondent statutorily ineligible for asylum and
withholding of removal under sections 208(b)(2)(A)(iii) and 24l(b)(3)(B)(iii) of the Act, and
also barred from withholding of removal under the CAT, 8 C.F.R. 1208.16(d)(2), because there
were "'serious reasons for believing that he committed a serious nonpolitical crime' outside of
the United States" (I.J. at 7 (citing the aforementioned statutory and regulatory provisions)). He
reasoned that "the respondent's participation in the drug trade by making deliveries and his role
in the extortion scheme" were the crimes underpinning the bar and that the context and
relationship to gang activities made the crimes particularly serious (I.J. at 7). The Inunigration
Judge acknowledged the respondent's young age and the pressures he endured from the gang,
but found that he was precluded from taking such factors into consideration in analyzing whether
a serious nonpolitical crime had been committed (l.J. at 7). The Immigration Judge did not
address the merits of the respondent's request for asylum and withholding of removal under the
Act, but denied the respondent's request for CAT protection on the merits (l.J. at 8-11).

On appeal, the respondent argues that the Inunigration Judge erred by not considering his
young age and the duress he experienced when analyzing the serious nonpolitical crime question
because both of these factors render the activities he engaged in non-criminal, or at least lessen
the severity of the offense (Resp. Br. at 14-22). The respondent also argues that the Inunigration
Judge erred in finding that the actual activities the respondent engaged in were sufficient to
invoke the serious nonpolitical crime bar, because he did not directly engage in the drug trade or
extortion efforts and never resorted to violence (Resp. Br. at 17-20).2

2 The respondent and the OHS have each raised arguments related whether the Federal Juvenile
Delinquency Act ("FJDA"), 18 U.S.C. 5031-5042, should be used to determine whether the
respondent's activities in Honduras constitute a crime (Resp. Br. at 14-15 (citing Matter of
Devison, 22 I&N Dec. 1362, 1365-66 (BIA 2000); OHS Br. at 3-5; Resp. Reply Br. at 2-10).
Because we have resolved this matter on the bases articulated below, we need not address the
applicability of the FIDA to resolve this matter. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
("As a general rule courts and agencies are not required to make findings on issues the decision
of which is unnecessary to the results they reach.").

Cite as: C-A-H-C-, AXXX XXX 702 (BIA May 4, 2017)

 702

Upon de novo review, we disagree with the Immigration Judge that the circumstances and
evidence presented in this particular case demonstrate that there are serious reasons for believing
that the respondent committed a serious non-political crime. As an initial matter, there is no
evidence that the respondent was ever charged with or convicted of a crime associated with these
activities. See sections 208(b)(2)(A)(iii) (explaining that the serious nonpolitical crime bar
requires that there be "serious reasons for believing that the alien committed a . . . crime,"); and

Immigrant & Refugee Appellate Center, LLC | www.irac.net

24l(b)(3)(B)(iii) of the Act (same); 8 C.F.R. 1208.16(d)(2) (same); see also Matter of Devison,
supra, at 1365 (explaining the Board's history of acknowledging that ''juvenile delinquency
proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that
findings of juvenile delinquency are not convictions for immigration purposes").

Furthermore, the facts presented here do not present the requisite level of seriousness to invoke
the bar. See Matter of Ballester-Garcia, 17 I&N Dec. 592, 595 (BIA 1980) (explaining that, in
the serious non-political crime context, "we look to the facts, as we have found them to be accurate,
to determine whether there are serious reasons to consider that the crime committed was a 'serious'
one" and listing appropriate factors for consideration). In this case, as a twelve-year-old, homeless
child, the respondent was deceived into serving the gang's interest in menial ways. He did not
choose to participate in the gang's other, more serious activities and indeed actively avoided
participating in those activities when asked. He made unusual efforts to extract himself from the
gang, declined to cooperate with their requests at great risk to his own safety, and successfully
removed himself from the situation as soon as possible. Under these circumstances, we conclude
that the serious non-political crime bar does not apply. Id.; cf Matter of Urbina-Mejia v. Holder,
597 F.3d 360 (6th Cir. 2010) (applying the serious nonpolitical crime bar to a juvenile who was an
active member of the MS-18 and assisted the gang's extortion activities by using a baseball bat to
intimidate victims, carrying a handgun, and sharing in the proceeds of the gang's unlawful
conduct); see also Efe v. Ashcroft, 293 F.3d. 899 (5th Cir. 2002) (applying the bar to a respondent
who fatally stabbed a police officer and who had not fully established he was a juvenile at the time
of the conduct).3

Therefore, we will remand the record to the hnmigration Judge to continue processing the
respondent's application for relief and protection. 4 In remanding this matter, we express no
opinion as the respondent's eligibility for asylum, withholding of removal, or protection under the
CAT; or the ultimate outcome of these proceedings.

3 We cite to these cases, where the serious non-political crime bar was applied to apparent
juveniles to highlight the less serious nature of the facts presented here. Furthermore, we note that
these matters do not arise within jurisdiction of the present matter and are not therefore not binding
precedent. See Matter of U Singh, 25 I&N Dec. 670, 672 (BIA 2012) ("We apply the law of the
circuit in cases arising in that jurisdiction, but we are not bound by a decision of a court of appeals
in a different circuit.")

4 We do not address the Immigration Judge's alternative holding that the respondent is ineligible
for protection under the CAT on the merits of his claim because, on remand, the hnmigration Judge
could determine that the respondent is eligible for asylum or withholding of removal, thus
rendering the CAT determination moot. See INS v. Bagamasbad, supra, at 25.

Cite as: C-A-H-C-, AXXX XXX 702 (BIA May 4, 2017)

 702

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings on the respondent's

Immigrant & Refugee Appellate Center, LLC | www.irac.net

applications for relief and the entry of a new decision.

Cite as: C-A-H-C-, AXXX XXX 702 (BIA May 4, 2017)

 i.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1901 S. BELL STREET, SUITE 200
ARLINGTON, VA 22202

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Wiley Rein LLP
Howard, Theodore Augustus
1776 K Street, NW
Washington, DC 20006

IN THE MATTER OF FILE A 702 DATE: Aug 22, 2016

H - , C A

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B (c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240 (c) (6),
8 U.S.C. SECTION 1229a (c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
1901 S. BELL STREET, SUITE 200
ARLINGTON, VA 22202

OTHER:

FF
CC: KAREN DONOSO STEVENS
1901 S. BELL, 9TH FLOOR
ARLINGTON, VA, 22202
 I '

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
1901 South Bell Street, Suite 200
Arlington, VA 22202

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS
)
H -C C A ) File No.: A - 702
)
Respondent. )
- )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

("INA" or "Act"), as an alien present in the U.S. without admission
or parole.

APPLICATIONS: Asylum, pursuant to INA 208;

Withholding of Removal, pursuant to INA 24l(b)(3); and
Protection under the United Nations Convention Against Torture
and other forms of Cruel, Inhuman or Degrading Treatment or
Punishment ("CAT'), pursuant to 8 C.F.R. 1208.16-18 (2016).

APPEARANCES

ON BEHALF OF THE RESPONDENT: ON BEHALF OF OHS:

Theodore A. Howard, Esq. Karen Donoso Stevens
Charles C. Lemley, Esq. U.S. Department of Homeland Security
Pro Bono Counsel 1901 South Bell Street, Suite 900
Wiley Rein LLP Arlington, VA 22202
1776 K Street NW
Washington, DC 20006

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The respondent is an eighteen-year-old native and citizen of Honduras who entered the
United States without inspection on or around April 27, 2015. See Exh. 1.

On April 29, 2015, the Department of Homeland Security ("OHS") issued a Notice to
Appear ("NTA''), charging the respondent with removability pursuant to INA
2 12(a)(6)(A)(i), as an alien present without admission or parole. Exh. 1.

1
 ' .

On November 19, 2015, the respondent, through counsel, admitted the allegations
contained in the NTA, and conceded the charge of removability under INA 212(a)(6)(A)(i).
Based on these admissions, the Court sustained the charge by clear and convincing evidence. See
INA 240(c)(l )(A).

As relief from removal, the respondent applies for asylum, withholding of removal under

Immigrant & Refugee Appellate Center, LLC | www.irac.net

the Act, and protection under the Convention Against Torture. On March 18, 2016, the
respondent filed an Application for Asylum and Withholding of Removal (Form 1-589) and
amended his 1-589 on April 21, 2016. Exh. 2. On June 21, 2016, the Court heard testimony in
support of the respondent's applications for relief. For the reasons that follow, the Court denies
the respondent's applications for asylum and withholding of removal under the Act and denies
his application for protection under the CAT.

II. EVIDENCE

A. Testimonial Evidence

a. Testimony of the respondent

The respondent was born in Tegucigalpa, where he grew up in a neighborhood called

Cerro Grande with his mother. The respondent's mother often mistreated him, insulted and
argued with him. The arguments escalated until she threatened to kill the respondent, at which
point he left home when he was twelve years old. He sometimes stayed with friends and
otherwise lived on the street. He attended school for eight years but stopped attending because he
had financial problems.

While he was living on the streets, the respondent spent time with older boys in his
neighborhood who helped him, bought him food, clothes and anything else he needed. The boys
were nice to him and the respondent did not initially have reason to believe they were gang
members. They first .asked him for simple favors, sending him to buy food and soda. A few
months later, they gave him a cell phone and asked him to act as a lookout and alert them when
police were nearby. The boys sought to avoid the police because they were selling marijuana.
The respondent served as a lookout for approximately two weeks before he was given different
assignments. He never personally sold drugs. The respondent believed he was performing these
tasks in exchange for the basic necessities he received. The respondent eventually discovered that
the boys were members of the MS-13 gang after he noticed one of them had been "talking too
much about gangs." The respondent felt worried after he discovered the boys were in a gang, but
he did not feel that he could decline to perform the tasks they assigned him.

After serving as a lookout, the gang members instructed the respondent to obtain
packages from a woman and deliver them to the older boys. The respondent discovered that the
packages contained marijuana. The respondent felt that the gang was forcing him, rather than
asking him, to perform this task because he did not believe that he had a choice. He made three
or four deliveries of marijuana packages. The gang gave him fifty dollars in addition to food and
drinks. The respondent did not consider this a payment for the tasks he performed, but rather a
"gift" that he accepted because he needed money.

2
 ' .

The gang next instructed the respondent to carry money for them, approximately ten
thousand lempiras at a time one to three times a month. He later discovered that the money was
proceeds from the gang's extortion of taxis. The respondent was not directly involved in the
extortion himself.

The respondent's concern about the illegality of these activities made him decide to leave

Immigrant & Refugee Appellate Center, LLC | www.irac.net

his neighborhood, but he was unable to do so until he found the opportunity. He eventually left
the city, traveled to Intibuca, Esperanza where his grandparents lived, and disposed of the phone
the gang had given him because he did not want the gang to track him. The respondent did not
tell his grandparents why he was visiting them, but they did not detect anything out of the norm
because he used to previously visit them for a week or months at a time. He stayed with his
grandparents for approximately one week because he received a call from the gang on his new
phone. He had not given his new number to anyone except his closest friends. The older boys
who called him asked him why he was not answering his phone and was failing to "report to"
them. The respondent told them he had left to care for his grandparents who were ill. The
respondent returned to the city because he did not want the gang to follow him and hurt his
grandparents because of him.

When the respondent returned to the city, the gang interrogated him, asking why he had
left with the cell phone without asking for permission to leave. Six gang members pushed the
respondent to the ground and beat him "severely." They told him they were beating him as a
"lesson" because he was supposed to tell them where he would be on any given day.

One week after his return to the city, the respondent was arrested in the company of four
individuals: two boys who were in the gang and two others who were armed. They were on the
way to deliver extortion money; the respondent was carrying some of the money on his person.
The people who stopped the group were in civilian clothes who were undercover police officers.
The police interrogated all four and beat the respondent before bringing him to a juvenile
detention center. The detention center was a dangerous setting because there were also "rival
gang members" in the same facility. The respondent was housed separately from the rival gang
members. The respondent spoke with his mother while he was detained. She cried and told him
that gang members threatened to decapitate her and that "it was all [the respondent's] fault." The
respondent believes the gang members threatened his mother because they thought he would ''tell
on them" to the police.

The respondent had been detained for six months before he was released during an
incident that compromised the security of the detention center. The "rival gang members" started
banging on doors and opened the locks; they were trying to kill the respondent and other MS-13
members. The guards were unable to exert control over the situation and opened the doors to
allow the respondent and five others to escape those who were chasing them.

The five individuals who escaped with the respondent brought the respondent to the gang
members who were waiting in the city. The gang members interrogated the group of escapees to
determine whether they had obtained release from detention by informing on the gang. Satisfied
that the group had not informed on the gang, the gang members gave them food and clothes and

3
told the respondent he should "prepare for the following week." The respondent did not know at
the time what they meant.

The next week, the respondent was instructed to go to a meeting location with a backpack
where he would meet with other gang members, some of whom he recognized. At the meeting,
the gang members gave an order for the respondent to kill someone within one day and told him

Immigrant & Refugee Appellate Center, LLC | www.irac.net

that there was a gun in the backpack for him to use. They instructed him to take a taxi to his
destination. The respondent did not say anything at the meeting because the others around him
were armed. The gang members did not tell him the consequences of not complying with the
order, but he knew implicitly that the consequences were torture, disappearance and death.

The respondent did not carry out the order to kill the designated individual. He first went
to a river and threw the gun into it. Next, he took a different taxi than the one he was instructed
to take, to ensure that the gang would not follow him. He went to Santa Barbara where his
godmother lived. He did not have any contact with gang members in Santa Barbara. He stayed
there for less than week before traveling to stay with his grandparents for less than one month.
He left both locations because he did not want to endanger his godmother and grandparents by
his proximity. He then decided to come to the U.S. where his uncle lived.

The respondent was seventeen years old when he traveled alone to the U.S. He was
apprehended by immigration officials when he arrived in the country. He spoke with his mother
while he was in detention and explained why he felt he had to run away. She told him she had no
son and that she would change her phone number. The respondent lost communication with his
mother in October.

The respondent fears returning to Honduras because there is "a lot of corruption" and he
believes the authorities will transfer him to the custody of gang members who will torture and
kill him because he disobeyed an order. The respondent was never recruited to be a member of
MS-13 and did not consider himself a member throughout the time he spent assisting the gang,
between one and a half and two years.

b. Testimony of the respondent's expert witness, Dr. Thomas Boerman

Dr. Boerm.an testified consistently with his written declaration. See Exh. 3, Tab D. His
testimony is summarized to the extent it elaborates on his declaration.

th
The predominant street gangs in Honduras, MS-13 and the 18 Street gang, are
"ubiquitous" in the lower and lower-middle class sectors of the country. Their activities range
from opportunistic crime to sophisticated operations. Their overarching agenda is to shape the
sociopolitical climate in Honduras and extend their impunity to operate criminally. Their
objective is to gain control of territory, criminal markets and the population using terror and
violence.

The government's efforts to combat gang violence have been different with respect to
higher-level organized crime and street gangs. The government has focused on militarized law
enforcement operations rather than addressing root causes of the problem through prevention,

4
 -

rehabilitation and social re-insertion of gang members. The extensive scope of corruption among
all levels of government prevents the success of anti-gang efforts. The population fears seeking
police assistance because of corruption.

There is a significant difference between youth who are recruited into gangs to become
gang members and "Wlprotected youth coerced to associate with gangs" as the respondent had

Immigrant & Refugee Appellate Center, LLC | www.irac.net

been. Gang members receive benefits such as friendship, protection, money and shelter, whereas
the youth coerced into servitude to the gang do not.

The respondent is at the highest risk of harm from MS-13 gang members who would
subject the respondent to lethal reprisal for disobeying the gang. The respondent is also at a risk
of harm, such as arbitrary detention, physical abuse and potential disappearance and murder,
from the Honduran national police because he was previously arrested and likely has a record as
a gang member because of that arrest and detention.

Dr. Baerman identifies one possible reason the respondent was ordered to kill someone,
even though he was not formally a member of the gang: to "tie him to the gang and minimize the
likelihood that he would act as a cooperating witness against them." The respondent's
subsequent defiance of the order will be perceived as a challenge to the gang and the respondent
will be perceived as a liability to the gang. Dr. Boerman considers it "implausible" that the police
would be able or willing to assist the respondent if he is subject to harm by MS-13.

The respondent would also have difficulty relocating outside Tegucigalpa to avoid . the
MS-13 members he disobeyed, because he would be recognized immediately as a newcomer
wherever he tries to relocate; the gangs, police and local residents would investigate him and
confront him about who he is and to whom he is connected. While the respondent may be safe in
"upper-middle class" neighborhoods, this would not be a viable option for him.

B. Documentary Evidence

In addition to the testimonial evidence summarized above, the record contains the
following documentary evidence: NTA, dated April 29, 2015 (Exhibit I); the respondent's
Application and amended Application for Asylum and Withholding of Removal (Form 1-589)
(Exhibit 2); the respondent's submission of evidence including the respondent's declaration,
expert declaration of Dr. Baerman and country conditions reports, with tabs A-F (Exhibit 3); and
DHS' filing of country conditions evidence, with tabs A-0 (Exhibit 4).

III. LAW & ANALYSIS

A. Credibility and Corroboration

The amendments to the INA imposed by the REAL ID Act of 2005 govern cases in
which the applicant filed Form 1-589 on or after May 11, 2005. See Matter ofS-B-, 24 I&N Dec.
42 (BIA 2006). The applicant has the burden of proof on all applications for relief. INA
240(c)(4)(A). Generally, the applicant must testify in detail, plausibly, and consistently. INA
208(b)(l)(B)(iii). The applicant should satisfactorily explain any material discrepancies or

5
omissions. Id. In making a credibility determination, the Court will consider the totality of the
circumstances and all relevant factors. See INA 208(b)( l )(B)(iii); Matter of J-Y-C-, 24 l&N
Dec. 260 (BIA 2007). The Court may base a credibility determination on the applicant's
demeanor and the inherent plausibility of the account. Matter ofA-H-, 23 l&N Dec. 774, 786-87
{AG 2005). The Court may also consider the consistency between written and oral statements
(whenever made, whether or not under oath, and considering the circumstances under which such

Immigrant & Refugee Appellate Center, LLC | www.irac.net

statements were made), the internal consistency of each such statement with other evidence in
the record (including Department of State Country Reports), and any inaccuracies or falsehoods
in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant's claim. INA 208(b)(l )(B)(iii).

The applicant's own testimony, without corroborating evidence, may be sufficient proof
if that testimony is believable, consistent, and sufficiently detailed to provide a plausible and
coherent account of the basis for his fear of persecution. 8 C.F.R. 1208.13(a); 1208.16(b);
Matter of Mogharrabi, l 9 l&N Dec. 439 (BIA 1987). However, an applicant should provide
documentary support for material facts that are central to his claim and easily subject to
verification, such as evidence of his place of birth, evidence of publicly held office, or
documentation of medical treatment. Matter of S-M-J-, 21 l&N Dec. 722, 725 (BIA 1997).

The Court finds that the respondent's testimony was credible and consistent with the
written declarations in the record regarding the reasons for his fear of return to Honduras. See
Exh. 2 (Form 1-589); Exh. 3, Tab A (declaration). He provided candid and forthcoming
testimony regarding his encounter of and association with MS-13 gang members in Honduras.
His expert witness likewise testified credibly and consistently with his written declaration. See
Exh. 3, Tab D. The respondent sufficiently corroborated his testimony, particularly with respect
to country conditions evidence regarding pervasive gang violence and law enforcement
challenges in Honduras. See Exh. 3, Tabs B-F.

B. Asylum and Withholding of Removal

An applicant for asylum must show that he is either unwilling or unable to return to his
country of nationality because he has suffered past persecution or because he has an objectively
reasonable fear of future persecution, and that race, religion, nationality, membership in a
particular social group, or political opinion was or will be at least one central reason for the
applicant's persecution. INA 101(a)(42)(A), 208(b)( l )(B)(i); 8 C.F.R. 1208.13.

Section 241(b )(3) of the INA is a mandatory provision requiring the Court to withhold
removal of an individual upon proof that his life or freedom would be threatened in the country
of removal on account of a protected ground. INS v. Stevie, 467 U.S. 407, 429-30 (1984); INS v.

Cardoza-Fonseca, 480 U.S. 421, 423 (1987); see also 8 C.F.R. 1208.16(b). To be eligible for
withholding of removal, an applicant must establish that either ( 1) he has experienced past
persecution on account of his race, religion, nationality, membership in a particular social group,
or political opinion, or (2) it is "more likely than not" that his life or freedom would be
threatened in the future on account of one of those same grounds. 8 C.F.R. l 208. l 6(b)(1)-(2).

6
 An applicant is ineligible for asylum and withholding of removal (under both INA and
the CAT) if "there are serious reasons for believing" that he committed a serious nonpolitical
crime outside of the United States prior to his arrival in the United States. INA
208(b)(2)(A)(iii); 24l(b)(3)(B)(iii); 8 C.F.R. 1208.16(d)(2). The Court need not determine
whether the applicant actually committed a serious nonpolitical crime. Rather, it is "enough to
find that there are serious reasons for considering that he has committed such a crime." Matter

Immigrant & Refugee Appellate Center, LLC | www.irac.net

of Ballester-Garcia, 17 l&N Dec. 592, 595 (BIA 1980) (internal quotation marks omitted).
"Serious reasons for believing" is equivalent to probable cause. Matter ofE-A-, 21 l&N Dec. 1,
3 (BIA 2012).

In the present case, the Court finds there are serious reasons for believing the respondent
has committed a serious nonpolitical crime during his association with MS-13 in Honduras. The
respondent testified that he helped MS-13 members avoid the police while they were engaged in
the drug trade by serving as a lookout for two weeks. He then carried packages of marijuana for
the gang members on three or four occasions. Finally, he carried money for the gang between
one to three times a month, which he learned was proceeds from the gang's extortion of taxis.
A lthough he testified that he only carried the money and did not demand the extortion payments
himself, he nonetheless played an integral part in the operation by delivering the proceeds.
Further, the respondent admitted he was arrested-and detained for six months-in the company
of four individuals, including two MS-13 members and two armed individuals, while carrying
proceeds from the gang's extortion operations. The respondent testified that he was carryin g
some of the money on his person when he was arrested. The Court finds the respondent's
participation in the drug trade by making deliveries and his role in the extortion scheme to b e
serious nonpolitical crimes. Th e context of the extortion scheme i s particularly weighty, a s the
extortion was not an isolated individual crime, but rather part of a larger criminal scheme by the
notoriously violent MS-13 gang, which creates a substantial risk of violence upon
noncompliance. See E-A-, 26 l&N Dec. at 9 n.3 ("It is relevant in assessing the serious criminal
nature of these offenses that they are not simply minor property offenses but, instead, involve a
1
substantial risk of violence and harm to persons."); 2016 OSAC Report (reporting that "[g}angs
are not reluctant to use violence and specialize in murder-for-hire, carjacking, extortion, and
other violent street crime); Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015) ("Extortion itself can
constitute persecution, even if the targeted individual will be physically harmed only upon failure
to pay.").

The Court acknowledges the mitigating factors the respondent has presented in his
testimony, such as his young age at the time of these offenses, his lack of parental guidance and
home which made the gang essentially his surrogate family, and the implicit threat underlying
the gang's requests for "favors" or instructions. While the Court sympathizes that the respondent
may have felt he had no choice but to participate in the gang's criminal operations until
confronted with an order he could not bring himself to cany out, the focus of the serious
nonpolitical crime analysis is the nature of the crimes. The respondent's participation in drug
trade and extortion schemes were serious crimes, made especially serious in context of the
capacity and inclination of the MS-13 for violence as its enforcement mechanism. See Exh. 3,

1
.The Court takes administrative notice of the 2016 State Dep't, OSAC Crime and Safety Report for Honduras
pursuant to 8 C.F.R. 1 003. l(dX3)(iv), available at
https://www .osac.gov/pages/ContentReportDetails.aspx?cid= 19281 [hereafter OSAC Report].

Tab D 15 (describing the gangs' criminal activities including its use of violence); Exh. 3, Tab E
at 1 (reporting that local gangs "survive economically by extorting local residents through the
'war tax"' and that "nonpayment of this tax has violent and even deadly consequences"). The
Court finds, therefore, that there are serious reasons for believing the respondent committed at
least one serious nonpolitical crime in Honduras. Accordingly, the Court concludes the
respondent is barred from asylum and withholding of removal. See INA 208(b)(2)(A)(iii)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

(asylum); INA 241(b)(3)(B)(iii)(withholding under the INA); 8 C.F.R. 1208.16(d)(2)
(withholding under the CAT).

C. Protection under the Convention Against Torture

An applicant for protection under Article 3 of the CAT bears the burden of proving it is
more likely than not he will be subject to torture if removed to the proposed country of removal.
See 8 C.F.R. 1208.16-.18. Torture is defined as "any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted'' to (I) obtain information or a confession,
(2) punish, or (3) intimidate or coerce the victim or a third party. 8 C.F.R. 1208.18(a)(l).
Torture is "an extreme form of cruel and inhuman treatment" that does not encompass "lesser
fonns of cruel, inhuman or degrading treatment or punishment." 8 C.F.R. 1208.18(a)(2). To
constitute "torture," an act must intentionally cause severe physical or mental pain or suffering;
be intentionally inflicted for a proscribed purpose; be inflicted "by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity." 8
C.F.R. 1208.18(a). An applicant who is subject to the provisions for mandatory denial of
withholding of removal, such as commission of a serious nonpolitical crime as in the
respondent's case, shall be granted deferral of removal to the country where he is more likely
than not to be tortured. See 8 C.F.R. 1208.17(a).

CAT protection does not require a showing that the respondent would be tortured on
account of a particular ground. Matter of S-V-, 22 l&N Dec. 1306, 1311 (BIA 2000). The
torture, however, must be inflicted by or with the acquiescence of the applicant's government.
Id.; 8 C.F.R. 1208.18(a)(l). Acquiescence requires that a public official have prior awareness
of the activity and "thereafter breach his or her legal responsibility to intervene to prevent such
activity." 8 C.F.R. 1208.18(a)(7). The respondent must also demonstrate that each step in the
chain of events that would lead to his torture is more likely than not to occur. Matter ofJ-F-F-,
23 l&N Dec. 912 (AG 2006).

The respondent claims it is more likely than not that he will be tortured in Honduras by
(1) the MS-13 gang after he disobeyed an order to kill someone and left the gang without
pennission, or (2) by the police because of his past recorded association with, if not membership
in, MS-13. To determine whether it is more likely than not an applicant will be subject to torture,
the Court considers all relevant evidence, including: (1) evidence of past torture inflicted upon
the respondent; (2) evidence that the respondent could relocate to a part of Honduras where he is
not likely to experience torture; (3) evidence of gross, flagrant, or mass violations of human
rights within Honduras; and (4) other relevant information concerning country conditions in
Honduras. See 8 C.F.R. 1208.16(c)(3), 1208. l7(a).

Torture by MS-13. The respondent fears that the MS-13 gang will torture or kill him
because he previously left them without permission and refused to comply with their order to kill

8
 r . .

someone. The Court considers the respondent's prior treatment by the gang on the occasions
when he was suspected of disobeying the gang, such as when he left to stay with his
grandparents without notifying the gang and when he was prematurely released from a detention
facility, as well as country conditions evidence regarding the treatment of gang members or
associates in the respondent's particular circumstances.

Although the gang never formally recruited or initiated the respondent as a member of the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

gang, they treated him as an associate, instructing him to participate in their criminal operations
and providing him with some of the benefits of membership such as food and protection in
exchange. They also expected him to "report to" them, keep them apprised of his location at all
times and to seek permission before he left the neighborhood. The respondent testified that when
he failed to report to them and left the neighborhood to stay with his grandparents, the gang
located him through his new phone number and beat him "severely" as a "lesson." When the
respondent was detained in a juvenile detention center after his arrest for extortion, he learned
that the gang located and directly threatened to kill his mother to prevent him from informing on
the gang to the police. Therefore, the evidence of the respondent's personal interactions with the
gang is consistent with MS-13's treatment of gang members who are at risk of leaving the gang
without permission. See Exh. 3, Tab D 152 (Dr. Boerman noting that the gang forces associates
to "engage in increasingly serious criminal activity, including murder, in order to make
them .. . less likely to cooperate with law enforcement in any investigation of the gang"); see also
Martinez v. Holder, 740 F.3d 902, 907 (4th Cir. 2014) (discussing the "green light" process
where MS-13 executes members "attempting to leave MS-13").

The respondent has since terminated his communication with the gang and directly
disobeyed an order to kill someone, which the respondent interpreted as a test of his loyalty to
the gang. See Exh. 3, Tab A 121. As the respondent and his expert witness testified, the ordinary
consequence of such actions by a gang associate is death. However, even if the respondent had
shown that he is more likely than not to be tortured or killed by the gang members in
Tegucigalpa upon encountering them, he has not shown that each step leading to such an
eventuality is more likely than not to occur. The likelihood of torture by MS-13 is mitigated by
the evidence that he does not have overt indicia of gang membership such as gang tattoos that
would make him conspicuous in a given community and evidence that he could relocate to a part
of Honduras where he is not likely to experience torture, as he had done previously when he left
the gang to stay with his godmother in Santa Barbara. While the gang was able to contact him at
his grandparents' house after the respondent gave his phone number to some of his closest
friends, he testified that he did not have contact with the gang in Santa Barbara, which is over
2
five hours away from Cerro Grande, Tegucigalpa.

Moreover, he has not shown that a public official would acquiesce to his claimed torture
by MS-13. The record has significant evidence of law enforcement challenges in Honduras, as
well as reports of incidence of police corruption that resulted in mistreatment and extrajudicial
killings of gang members by the security forces. See Exh. 3, Tab B 1100 (reporting that
adolescents who "match stereotypical characteristics associated with a certain physical
appearance and social status" as gang members "receive abusive and discriminatory treatment by

2 Pursuant to 8 C.F.R. l003. l(d)(3)(iv), the Court takes administrative notice of the geographical distance between
Cerro Grande and Santa Barbara. See Google Maps; https://goo.gl/mapsNhZrcYmRVwr

9
State agents"); Exh. 3, Tab C at 1 (State Department reporting that "unlawful and arbitrary
killings and other criminal activities by members of the security forces" were among the "most
serious human rights problems" in Honduras in 2015); Exh. 3, Tab D 162-63 (Dr. Boerman
discussing "'social cleansing' groups engaged in extrajudicial of known and suspected gang
members"). Dr. Boerman testified that the respondent is likely included in police records as a
previously-detained MS-13 associate. While the overall trend of police hostility towards gang

Immigrant & Refugee Appellate Center, LLC | www.irac.net

associates, institutional corruption and the respondent's possible identification as a gang-affiliate
in Honduras places him at some risk of harm by police, the respondent's personal experience
with the police rebuts his claim of government acquiescence in his torture by MS-13. Even when
he was arrested in the company of MS-13 members, and for a crime characteristic of MS-13, the
police separated the respondent and his associates from rival gang members at the facility to
ensure their safety. The guards at the facility later released the respondent and his associates from
the facility when the rival gang members had imminent access to the respondent and other MS-
13 members, such that the public officials enabled the escape of. gang members from their
facility when they could no longer personally guarantee their safety from other gang members.
While it may be more difficult to police intra-gang disputes as the one in which the respondent is
involved, the evidence does not sufficiently support the respondent's fear that the police will
bring him to the gangs "because they get paid to do that." Exh. 3, Tab A 129. Against a backdrop
of difficult law enforcement and security conditions and corruption in Honduras, it may be that
the police are unable or unwilling to protect perceived or actual gang members from intra-gang
violence. However, this is not sufficient to show acquiescence in torture under the CAT. For the
foregoing reasons, the respondent has not shown that he is more likely than not to be tortured by
the MS-13 with at least the willful blindness of a public official in Honduras. See Suarez
Valenzue/a v. Holder, 714 F.3d 241, 245 (4th Cir. 2013) (applying the ''willful blindness"
standard, by which "government officials acquiesce to torture when they have actual knowledge
of or turn a blind eye to torture").

Torture by police. For the same reasons that the respondent has not shown acquiescence
of the police in his claimed torture by MS-13, the evidence does not show that it is more likely
than not that he will be tortured by the police in Honduras. Country conditions evidence shows
an overall trend of mistreatment of suspected and known gang members. For instance, Honduras
has applied its illicit association law to individuals who look like gang members and who
congregate in certain neighborhoods. See Exh. 3, Tab F at 2-3. This law has led to the arrests and
prolonged detentions of suspected gang members. Id. There have been reports of mistreatment
and harsh conditions in detention and prisons. See e.g. Exh. 3, Tab C at 5 (State Department
reporting that "[p]rison conditions were harsh and life threatening due to extensive gang-related
violence, and inability of the government to control criminal activity in the prisons"). The
evidence also reflects incidents of corruption that the government is attempting to combat. See
Exh. 3, Tab B 13 (identifying as a contributing factor to insecurity the "illegitimate use of force"
by the National Police, the Military Police and the Army, "in some cases in complicity with
organized crime"); Exh. 3, Tab C at 1 (State Department reporting that "corruption, intimidation,
and the poor functioning of the justice system contributed to widespread impunity"). Against this
backdrop of institutional shortcomings, the government of Honduras ''took some steps to
prosecute and punish officials who committed abuses," including members of the security forces.
See Exh. 3, Tab C at 1. The respondent was associated with the MS-13 gang members in
Tegucigalpa, where he may be in the police records as a gang associate based on his arrest for

10
 . r . .

extortion in the company of MS-13 members. As the State Department reports, the special
prosecutor for human rights and the national police's General Directorate for the Investigation
and Evaluation of the Police Career undertook a "surprise joint investigation" in September 2015
of the five police stations in Tegucigalpa. See Exh. 3, Tab C at 5.While investigations of reported
abuses and anti-corruption proposals of the government may not wholly eliminate the likelihood
that a police officer may regard the respondent as a suspected gang member and subject him to

Immigrant & Refugee Appellate Center, LLC | www.irac.net

mistreatment, this is a likelihood affecting virtually every youth in certain neighborhoods with
gang presence, rather than an individualized risk of torture. See Exh. 3, Tab B I 00 (reporting
that as part of the general atmosphere of violence that pervades the country" the gangs have a
presence and control over neighborhoods "especially in urban populations"); Exh. 3, Tab Fat 2-3
(noting that, according to USAID's assessment, the police and military have arrested ''thousands
of suspected gang members, often en masse" using an amended article of the Penal Code known
as the "Anti-gang Law"). The evidence of the generalized risk Honduran youth in neighborhoods
with gang presence face is insufficient to meet the respondent's b urden to show he is more likely
than not to be tortured by the police. The Court finds probative the respondent's prior experience
with the police, who initially mistreated him by beating him upon his arr est but subsequently
undertook measures to ensure his safety in detention, segregating him from rival gang members
and releasing him when they could not prevent rival gang members had imminent access to him
inside the facility. The respondent does not have gang tattoos and having previously disobeyed
the gang after repeated attempts to distance himself from them, he does not appear to intend to
return to gang activity: factors which also decrease the likelihood that he will attract the attention
of the security forces in Honduras. Based on the foregoing, the Court finds that the respondent
has not met his burden to show the requisite likelihood of torture by the security forces in
Honduras. Therefore, the Court denies his application under the CAT.

IV. CONCLUSION

The Court denies the respondent's applications for asylum and withholding of removal
under the Act and the CAT. He is ineligible for asylum and withholding of removal because the
Court finds serious reason to believe he committed a serious nonpolitical crime outside the
United States prior to his entry. INA 24l(b)(3)(B)(iii); 8 C. FR
. . 1208.16(d)(2); 17(a). The
respondent has not shown a clear probability of torture in Honduras either by the police or by the
MS-13 gang with the acquiescence of a public official. Therefore, the Court will also deny the
respondent's application for deferral of removal under the Convention Against Torture. 8 C.FR
. .
1208.16-18.

Accordingly, the Court enters the following orders.

ORDERS

It Is Ordered that: the Respondent be REMOVED from the U.S. to

Honduras.

11
. .
. .

It Is Further Ordered that: the Respondent's application for asyluni under INA
208 be DENIED.

It Is Further Ordered that: the Respondent's application for withholding of

removal under JNA 24l(b)(3) be DENIED.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

It Is Further Ordered that: the Respondent's application for protection under
the CAT be DENIED.

Date Thomas G. Snow

United States Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due at the Board of Immigration Appeals on or before thirty (30) calendar days from the date
of service of this decision.

12