Block on Trump's Asylum Ban Upheld by Supreme Court
A federal appellate case out of the Eighth Circuit highlighted what can properly be described as a disaster situation within the state of Mexico. When the Saldana family emigrated (more like escaped) personal threats made against their lives by powerful Mexican gangs, little did they know that the immigration board in America would be splitting hairs about the proper application of the oft used Convention Against Torture.
One almost gets the impression that the circuit was quite close to reversing the lower court decision, but immigration matters are highly deferential to lower tribunals and courts.
A Denial of Asylum
Israel Felipe Lira Saldana and his family whisked out of Mexico one day and applied for asylum here in the United States, withholding of removal and relief under the widely observed Convention Against Torture (CAT). Saldana and family contended that they would be persecuted -- killed, likely -- if they were returned to Mexico because members of the infamous Matazetas gang came to believe that Saldana's wife and sister were romantically involved with a member of a rival gang. It was asserted that the Mexican government was either unable or unwilling to control the Matazetas, or indeed, any gang in Mexico.
The threats were serious. Members of the rival gang apparently went to the Salada home and demanded to know the family's whereabouts. Threats of rape and torture were directed at the Salada women and the family's grandparents went missing. The gang situation in Mexico, the petitioners' expert contended, is so bad that the Mexican government is "essentially powerless to contain" criminal organizations and that once an individual is targeted by gangs, she is marked for death.
Convention Against Torture Analysis
The immigration judge handed down a decision that the Board of Immigration Appeals would later affirm. The IJ rejected the petitioners' requests under the CAT because they had not proved that they belonged to a particular social group that warranted protection under the statute. In their petition to the IJ, the family had presented the theory that their particular group in question were "family" -- the Saladas as well as the family who had been threatened under pain of torture or death.
But the circuit could later agree with the Board. Unfortunately, such a theory could lead to a slippery slope to explode into a group too large and amorphous to entertain under the statute. There is no evidence, the circuit said, to indicate whether the Board meant "family" which could also include friends and colleagues of the rival gang. And since it was not for the circuit to decide, it could not decide in favor of the petitioners.
But the Board also analyzed the issue from the point of view from governmental persecution as well -- as was envisioned by the CAT. Earlier, the petitioners' expert had proclaimed that 40 percent of Mexico was essentially governmental no-man's land; and that the government had no control over this area or would not control gangs in these areas.
But the inability to control private actors is an "imprecise concept" that left the doors wide open for the agency to exercise its discretion. And since it appeared that Mexican documentation at least evinced an effort by the Mexican government to control the gangs, the circuit refused to reverse on plain error.
But perhaps the most eye opening was the circuit's comment regarding the expert's opinion of Mexico's state of chaos. Petitioners' expert's statements about 40 percent of the country being under the control of gangs implied -- gruesomely enough -- that the Mexican government controlled the remaining 60 percent. And because of this, internal relocation to one of these areas was a possibility.