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Lagos v. Barr

United States Court of Appeals, Fourth Circuit

June 14, 2019

SINDY MARILU ALVAREZ LAGOS; K.D.A.A., Petitioners,
v.
WILLIAM P. BARR, Attorney General, Respondent.

          Argued: March 19, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals.

         ARGUED:

          Martine Elizabeth Cicconi, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Petitioners.

          Paul Fiorino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Steven H. Schulman, David M. Coleman, Washington, D.C., Lauren Connell, Kate Powers, AKIN GUMP STRAUSS HAUER & FELD LLP, New York, New York, for Petitioners.

          Joseph H. Hunt, Assistant Attorney General, Rebekah Nahas, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.

          PAMELA HARRIS, CIRCUIT JUDGE

         Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.

         Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos's claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government's request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos's claims correctly.

         We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency's disposition of other elements of Alvarez Lagos's claims. For the reasons given below, we reverse the agency's determination with respect to the "nexus" requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency's analysis of the "protected ground" requirement for the same forms of relief, and in the agency's treatment of Alvarez Lagos's claim under the Convention Against Torture.

         I.

         In August of 2014, shortly after her daughter's eighth birthday, Sindy Marilu Alvarez Lagos and her daughter entered the United States without authorization. The Department of Homeland Security soon served them with a notice to appear, charging them with removability on the ground that they were present in the United States without valid entry documents, see 8 U.S.C. § 1182(a)(7)(A)(i)(I). Alvarez Lagos conceded their removability, but applied for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), and for protection under the Convention Against Torture ("CAT").

         We begin by summarizing the testimony and evidence that Alvarez Lagos presented at her removal hearing and then outline the protracted legal proceedings that followed.

         A.

         According to the evidence presented by Alvarez Lagos, she and her daughter lived in Tegucigalpa, Honduras before they fled to the United States. For several years, they lived in the city's Fuerzas Unidas neighborhood with Alvarez Lagos's husband. But in October of 2012, Alvarez Lagos and her husband separated, and she and her daughter moved to a different neighborhood to live with her brother and sister-in-law. That neighborhood - Altos del Divino Paraíso - is effectively controlled by the Barrio 18 gang: The gang monitors who enters and exits the neighborhood, controls when residents can worship, collects taxes from residents, and kills individuals who disobey its commands.

         In April of 2014, approximately 18 months after Alvarez Lagos separated from her husband, she was approached for the first time by Barrio 18, when a gang member known as "Chuta" accosted her as she walked alone in her neighborhood. Chuta asked Alvarez Lagos where her daughter was, and demanded that she pay him 2, 000 lempiras (approximately $100 at the time). When Alvarez Lagos told Chuta that she did not have the money, Chuta called her a "whore," flashed a gun, and warned her of the consequences if she did not pay. Fearing that she and her daughter would be killed, Alvarez Lagos requested help from her family to gather the sum Chuta demanded. When she eventually delivered it to him, he praised her for being "obedient" and reminded her "what happens to women who don't obey." A.R. 561.

         Approximately one month later, in May of 2014, Chuta again approached Alvarez Lagos while she was walking alone in the neighborhood and demanded that she pay him - this time, 10, 000 lempiras (approximately $475 at the time). When Alvarez Lagos again told him that she could not afford to pay, he threatened to kidnap her daughter from school, and said he would "do whatever he [wanted]" to her daughter before killing her in front of Alvarez Lagos. A.R. 305. He would then "do whatever he please[d]" to Alvarez Lagos before killing her, too. Id. As a final warning, he reminded Alvarez Lagos of "what [the gang] do[es] to women," id., which Alvarez Lagos, based on her knowledge of Barrio 18's crimes against women, understood to mean that she would be gang raped and her genitals mutilated if she did not pay.

         Alvarez Lagos never reported her encounters with Chuta to the police because she feared that the police in her neighborhood were working with Barrio 18. Indeed, Chuta had confirmed as much when he threatened her, warning her that if she went to the police he would "kill [her] faster, because [the gang] [would] find out." A.R. 319. Instead, when she realized that she would not be able to meet Chuta's demands, Alvarez Lagos fled to the United States to save herself and her daughter.

         At her removal hearing, Alvarez Lagos testified to the events that led to her flight to the United States from Honduras. She confirmed that she fears she and her daughter will be raped, tortured, and killed if returned to Honduras, noting that Barrio 18 members have continued to ask her family about her whereabouts since she fled. She also called Dr. Thomas J. Boerman, an expert on gangs in Honduras, to testify. Dr. Boerman opined that without husbands to protect them in Honduras's patriarchal society, unmarried women are especially vulnerable to gang attack, and that Barrio 18 targeted Alvarez Lagos because of her status as an unprotected female. Compounding the problem, he testified, Barrio 18 would view Alvarez Lagos's failure to comply with Chuta's demands as political opposition. As a result, Dr. Boerman concluded, Alvarez Lagos and her daughter would be "at high risk of egregious physical harm and death if returned to Honduras." A.R. 602.

         Alvarez Lagos also submitted voluminous documentary evidence, including a declaration from Dr. Max Manwaring, a retired professor of military strategy at the U.S. Army War College. In his declaration, Dr. Manwaring confirmed that Alvarez Lagos was at greater risk of gang violence because of her status as a single mother and that the gang would view any refusal to give in to its extortionate demands as a form of political disobedience.

         B.

         Based on that evidence, the agency issued three decisions - one from an immigration judge ("IJ") and two from the Board of Immigration Appeals ("the Board" or "BIA") - each denying Alvarez Lagos's claims. Alvarez Lagos argues that those decisions suffer from significant flaws. And notably, the government does not defend those decisions, admitting that the agency has yet to analyze Alvarez Lagos's claims correctly. The only dispute here is over the appropriate remedy: whether we should hold that the agency erred in reaching its conclusions, or, as the government urges, remand the case without addressing the agency's errors to allow the agency a fourth opportunity to consider Alvarez Lagos's ...


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