In this case, Petitioner fears torture and death inflicted by the MS-13 gang if he is removed to El Salvador. In his immigration case, Petitioner presented an expert and other country conditions evidence explaining in detail MS-13’s social and political status in El Salvador. Further, Petitioner—despite MS-13’s immense power—courageously took on MS-13 in El Salvador. Petitioner’s acts against MS-13 were not trivial. While many Salvadorans in similar conditions of poverty and helplessness have succumbed to MS-13’s power, Petitioner openly refused to do so—and instead openly challenged MS-13—out of a deeply held belief that MS-13 engages in dreadful behavior. Due to these actions, the expert opined that Petitioner “is lucky that he was not killed for challenging [MS-13] in this manner.” The expert also explained how MS-13 viewed Petitioner’s actions as a challenge to its authority and goals.
The Board of Immigration Appeals (BIA) and Immigration Judge (IJ), in denying Petitioner relief against removal to El Salvador, did not address any of this evidence in the record. As explained in our brief, the IJ must, at a minimum, explain the reasons behind the factual findings if the findings are not consistent with an expert’s opinion. This is critical for immigration proceedings to be meaningful. However, the IJ failed to do so in assessing Petitioner’s political opinion claim in this case; indeed, the IJ neither questioned nor gave reduced weight to the expert evidence in this case. Rather, the IJ simply ignored this expert and country conditions evidence and solely relied on Petitioner’s testimony to conclude that his actions and how MS-13 perceived his actions were apolitical. In sum, as argued in this case, the BIA wrongfully dismissed Petitioner’s plea for protection by ignoring the uncontradicted evidence in the record, including the testimony of a country conditions expert.
We filed our brief on August 1, 2021, and oral argument was held on December 7, 2021.
On October 21, 2022, the First Circuit partially granted this petition for review. The Court held that “we are compelled to reject as impermissible [the BIA’s 2008 Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008)] holding that a group made up of those who are incorrectly perceived to be members of a gang is categorically barred from recognition as a particular social group under the INA.” The Court noted that “the reasons for finding that actual members of a gang are barred from recognition [in seeking asylum] simply ‘do not apply’ to those incorrectly perceived to be gang members.”