U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Tortured Immigrant's Asylum Claim Revived

A federal appeals court has given a Salvadoran refugee another chance at asylum in the United States, but it will depend on a technical question about when he last arrived in the country.

In his petition for asylum, Jose Linares-Urrutia said that he first escaped El Salvador during a civil war that lasted a decade. He testified that he fled because he was tortured as a member of a revolutionary student group. The Salvadoran military shot him in the leg, beat him repeatedly, applied electricity to his genitals, and threatened to kill him, he said.

Linares-Urrutia had entered the U.S. on and off over a 30-year period, twice being deported and having been convicted of several crimes. He last crossed the border from the U.S. to Canada on April 25, 2012, apparently to seek asylum in that country but Canadian authorities returned him to the U.S.

Third Time Not Sure

He filed a petition for asylum in the U.S., but it was denied. On appeal, the immigration appeals board said he qualified but waited too long to file. The U.S. Second Circuit Court of Appeals said, in Linares-Urrutia v. Sessions, not necessarily.

"Since the BIA affirmed that Linares-Urrutia had indeed established past persecution, untimeliness is the only ground on which the BIA denied the humanitarian asylum claim," the court said.

The judges decided that the appeals board did not properly evaluate the timeliness issue, and remanded the case for further proceedings. However, the court acknowledged that the regulations are not clear about the meaning of the word "arrival" and the term "last arrival."

When Is the "Last Arrival?"

"This case exemplifies the problems that will ensue absent a statutory fix," the court said. "One possible fix would be a set period of absence as a predicate to arrival, and other measures would doubtless occur to Congress."

The United Nations estimated that more than 75,000 Salvadorans were killed, and an untold number disappeared between 1979 and 1991. The Courthouse News Service, reporting on the case, said the conflict in El Salvador was overwhelmingly financed by the U.S. military regime.

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