Serrano-Alberto v. Attorney General

859 F.3d 208 (3rd Cir. 2017)

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Nature of the Case

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Facts

P is a widely acclaimed professional soccer player. P fled to the United States from his native country of El Salvador to escape violence at the hands of the notorious Mara Salvatrucha gang, commonly known as MS13. Suspected gang members shot his brother, Edwin, leaving him paralyzed. The following year, according to SP, the MS13 gang began to extort him for cash under threat of death. P made six payments that fall, and in November of 2008, he rejected the gang's persistent demands and communicated that he would no longer comply. Two weeks later, three suspected gang members shot P, his nephew, and a neighbor outside of P's mother's house, killing the neighbor and leaving P and his nephew hospitalized and in serious condition. The police refused to take a report because P did not know the names of the people who shot him. P never heard from the police again. P twice attempted to flee the country but he was returned both times by Mexican authorities. Between late 2009 and May 2012, P was imprisoned in El Salvador on extortion charges of which he was ultimately absolved. While P was imprisoned, the gang shot another one of his brothers when that brother refused to divulge P's whereabouts. Immediately following his release from prison in 2012, P was targeted in yet another shooting-once again in his mother's neighborhood-by unknown assailants on a motorcycle. P moved multiple times to evade detection. His mother called and warned that gang members were continuing to pursue him with the intention of killing him. After observing what he believed to be gang members in his new neighborhood P fled to the United States. After crossing into Texas, P was apprehended and detained. P applied for asylum, withholding of removal, and protection under the CAT, contending he feared persecution by gangs based on his membership in an unspecified particular social group (PSG). During his hearing, the IJ was confrontational, dismissive, and hostile, interrupting and belittling P's testimony, time and again cutting off his answers to questions, and nitpicking immaterial inconsistencies in his account. P consistently asserted facts that on their face offered strong support for his claims for relief. P's attempts to convey those facts were undercut by the IJ's hostile and impatient attitude, repeated interruptions and castigations, constrictions on relevant responses, and inexplicable focus on irrelevant details. From the outset, the IJ took an argumentative tone and expressed exasperation. Her first exchange with P was a contentious one, precipitated by P's misunderstanding of a question she asked regarding his I-589 application. The IJ asked whether P wished to make any corrections to his application, and he responded by attempting to verify the packet included a letter he had submitted from one of his brothers. The IJ reacted by immediately admonishing him to 'Please answer my questions. I am having problems today. No one wants to answer my questions.' The IJ incorrectly believed P had been convicted of extortion in El Salvador, apparently having overlooked the evidence he submitted of his acquittal. She was unaware of Serrano-Alberto's career as a professional soccer player, going so far as to chide him for identifying his occupation as 'playing football' and rejoining, 'Did you work, sir? Please answer my question. We'll get to everything, sir. Did you work in El Salvador?' The IJ curtailed P's ability to explain himself or finish his answers, she repeatedly steered P away from matters directly relevant to his eligibility for relief, focusing instead on inconsequential details and inconsistencies that were easily reconcilable with P's narrative. The day after the hearing, the IJ issued an oral decision denying P's application for relief and ordering his removal to El Salvador. She found 'there is no objective evidence whatsoever that the gang members were targeting him due to his refusal to pay the rent.' The IJ concluded that Serrano-Alberto's fear of persecution was not objectively reasonable. The IJ also held, with respect to asylum and withholding of removal, that P did not meet his burden of establishing 'that individuals perceived as wealthy who refuse to pay gang taxes' constitute a PSG eligible for protection under the INA or that there was a nexus between his membership in any PSG and his fear of persecution. P timely appealed. The BIA adopted and affirmed the IJ's decision. P appealed.