Confirming that people who publicly assist law enforcement in El Salvador are part of a Particular Social Group when applying for asylum. In the same decision, the court affirmed, again, that the Board of Immigration Appeals (“BIA”) and immigration judges (“IJs”) must consider all favorable facts to an immigrants application for relief from removal under the Convention Against Torture (“CAT”). This is the latest in a string of several decisions from the Third Circuit correcting the BIA’s failure to properly apply the law to the facts and its failure to consider facts favorable to the applicant.

In Guzman-Orellan, Mr. Guzman-Orellan applied for asylum, withholding of removal and relief under the CAT during removal proceedings before the Immigration Court in Newark, New Jersey. Mr. Guzman-Orellan is a citizen and native of El Salvador, where he overhead the murder of two people at his neighbor’s house. The police questioned Mr. Guzman-Orellan in public, outside his front door, and shortly thereafter discovered the bodies of the two murdered neighbors. Members of MS-13 who had committed the murders twice found Mr. Guzman-Orellan while he was in hiding and threatened him. The second time, they used a gun to do so. The IJ found he was not a member of a particular social group (“PSG”), which is essential in order for an asylum applicant to be granted asylum. The IJ also denied relief under the CAT finding Mr. Guzman-Orellan was not likely to be tortured if returned to El Salvador. The BIA affirmed these findings and also denied relief. The Third Circuit held these findings were error and remanded the case for further findings after the Third Circuit corrected the mistakes.

This case is a major win for Mr. Guzman-Orellan who will have his case reconsidered by the IJ and the BIA, but it is also a major win for other such persons seeking similar relief who can rely on the Third Circuit’s findings in this case to strengthen their cases. One major point of clarity is that public witnesses are not required to testify in court. It is now clear that a person who is interviewed by police in the public eye, whether in court or not, and whether that person later testifies or not, is a public witness so long as other people saw or heard the witness speak to police.

Another important point, one that is not explicitly stated in the Third Circuit opinion, but which logically flows from it, is that while this case specifically discussed public witnesses in El Salvador, it should apply to public witness in any country where such witnesses would be endangered. Since gangs, organized crime and political violence are rampant in many countries worldwide including many South American countries such as Honduras, Mexico and Guatemala, as well as India, Pakistan, Nigeria and many others, the Third Circuit’s findings will be applicable to people from those countries, also.

Regarding the CAT claim, the Third Circuit held that even though the person most familiar with Guzman-Orellan had died, since other gang members knew of his status, he was still likely to be tortured if returned to El Salvador. The Third Circuit held it was reversible mistake for the BIA to ignore these facts. Further, the Third Circuit held that while El Salvador had implemented programs to protect witnesses during trial, the limitations of such programs – specifically that they only applied during trial, were underfunded, and often ineffective – these programs did not make it less likely that Mr. Guzman-Orellan would be tortured if returned to El Salvador.

Unfortunately, the need to litigate cases all the way to the federal courts of appeal is necessary in many cases where immigration judges and the BIA misapply the law to the facts of a case and refuse to acknowledge facts favorable to the applicant. For those applying for such relief, it is essential to have an immigration attorney’s representation from the beginning of a case because the record established at the initial hearing is what the courts of appeal will rely on to make their decisions.

If you, or someone you know, is in removal proceedings before an immigration court or planning to apply for asylum, contact the Jersey City, New Jersey, Law Office of Eric M. Mark for assistance.

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