Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Martinez-De Umana v. Garland, (September 8, 2023) No. 22-60340 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) personally served the Petitioners with a notice to appear, charging that they are subject to removal from the United States.

 

One Petitioner was placed in immigration court proceedings subsequent to the other two Petitioners, but both proceedings were consolidated into one proceeding that included three individuals.

 

The Petitioners did not contest their removal charges and the lead Petitioner applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”).

 

The two remaining Petitioners relied on the merits of the lead Petitioner’s asylum claim.

 

An immigration judge denied the asylum and withholding of removal applications, as well as the CAT application.

 

The Petitioner filed an appeal to the Board of Immigration Appeals (“BIA”).

 

The BIA dismissed the Petitioner’s appeal.

 

The Petitioner then filed a petition for review of the decision the BIA.

 

Facts

• The Petitioners include a mother and two daughters who are natives and citizens of El Salvador.
• In 2014, the mother, Eufemia Martinez-De Umana, and one of her daughters, Katherine Lisbeth Umana-Martinez, were apprehended while attempting to enter the United States without permission.
• An asylum officer determined that the mother had a credible fear of persecution based on her membership in a particular social group.
• The DHS then personally served the Petitioner and her daughter, Katherine, with a Notice to Appear (“NTA”), charging that they are subject to removal from the United States under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”), as aliens who seek admission without a valid entry document.
• In 2017, another one of Eufemia’s daughters, Imelda Tatiana Umana Martinez, attempted to enter the United States without authorization.
• The DHS charged that this individual is subject to removal from the United States under section 212(a)(6)(A)(i) of the Act, as an alien who is present in the United States without being admitted or paroled.
• Both proceedings were then consolidated into one proceeding in which Eufemia Martinez-De Umana, became the lead Petitioner (“Petitioner”) whose daughters relied upon the merits of her applications for relief.
• At her asylum hearing, the Petitioner stated that, from 2012 to 2014, she had worked at the Ministry of Justice, an agency that administered the prison system in El Salvador, where she had been employed as a security officer and in an administrative office.  The Petitioner then recounted multiple incidents involving criminal gangs after her employment in the Ministry of Justice had been discovered, including attempts to contact her, the deaths of coworkers and attacks on her husband until 2015 when he began living with a “new partner and children.”
• The Petitioner also presented and expert witness who testified that: 

[T]he government of El Salvador is involved in a violent power struggle with the MS-13 gang and that targeting government employees is central to the gang’s “strategy of terror.” He explained that former government employees are “in a very unique and vulnerable position” because the government in El Salvador has no “protective mechanism” for former police, military, or corrections officers, yet they are known to gang members, who will continue to pursue them because they are likely to “continue to embody . . . pro rule of law values.” . . . gang members in El Salvador often “terrorize and leverage corrections officials” in order to gain intelligence and obtain weapons and ammunition. He testified that the gangs also use corrections officers to support their illegal activities in other ways such as smuggling contraband into the prisons and communicating messages from inside the prison to gang members in the community. He further opined that the gangs sought to “assert control over [Martinez-De Umana] through the use of terror towards herself and her family so that they could then use her as an asset within the prison system.”

• The Immigration Judge cited Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988) and denied the Petitioner’s persecution claim, concluding that the Petitioner’s proposed social groups of “employees of the Ministry of Justice,” “former employees of the Ministry of Justice” “family members” and “whistleblowers” lacked the requisite nexus to a protected statutory ground “given the inherent assumption of risk that is tied to a law enforcement job;” and asserted that the Petitioner had not established that it would be unreasonable for her to relocate to another part of El Salvador to avoid the harm she had described.
• The Petitioner appealed the Immigration Judge’s determination to the BIA, arguing that the Immigration Judge had erroneously applied Matter of Fuentes.
• The BIA rejected the Petitioner’s argument that her case was distinguishable from Matter of Fuentes, did not disturb the Immigration Judge’s conclusion that she did not have a well-founded fear of future persecution, in spite of expert testimony to the contrary, and dismissed the Petitioner’s appeal.
• The Petitioner then timely filed a petition for review of the BIA’s decision.

 

Held

Petition for Review DENIED

 

Rationale

The Petitioner raised two challenges to the dismissal of her appeal by the BIA that were considered:

1. The BIA erred by applying Matter of Fuentes too broadly in a way that rendered any government employee, even an office worker, ineligible for relief.
2. BIA erred in affirming the Immigration Judge’s decision that she had failed to show a well founded fear of future persecution if she returned to El Salvador because the Immigration Judge disregarded substantial uncontroverted evidence, including expert testimony, that supported her well-founded fear of future persecution in El Salvador.

 

The Fifth Circuit Court of Appeal reasoned as follows:

Application of Matter of Fuentes

• In Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2016) the Fifth Circuit Court of Appeal had applied the BIA’s decision and reasoning of Matter of Fuentes, in which the BIA had concluded that policemen “are often attacked either because they are (or are viewed as) extensions of the government’s military forces or simply because they are highly visible embodiments of the power of the state;” explaining that the dangers encountered by policemen, like the dangers encountered by military combatants, are “perils arising from the nature of their employment and domestic unrest” and were not on account of any protected ground (i.e. race, religion, nationality, membership in a particular social group, or political opinion).  Matter of Fuentes, at 661.
• Although the Petitioner emphasized the fact that she was an office worker and therefore not a “highly visible embodiment” of the state, her argument misconstrues the BIA’s analysis in Matter of Fuentes.
• The Petitioner’s employment in the El Salvadoran penal system where she:   monitored prisoners and visitors via video surveillance equipment, received military training and worked as a security officer inside a prison was “no regular office job.”
• It was not unreasonable for the Immigration Judge and the BIA to conclude that criminal gangs were led to view the Petitioner as a “visible embodiment of the state” as well as an “extension[] of the government’s military forces,” after she was publicly seen in uniform and identified as an employee of the Ministry of Justice.
• Thus, the circumstances surrounding the Petitioner in El Salvador fall within the scope of Matter of Fuentes:

[T]he dangers the police face are no more related to their personal characteristics or political beliefs than are the dangers faced by military combatants. Such dangers are perils arising from the nature of their employment and domestic unrest rather than ‘on account of’ immutable characteristics or beliefs within the scope of [the statute].

• In short, the Fifth Circuit Court of Appeal agreed with the BIA that the Petitioner was more than an “ordinary government employee” and that she had been threatened in the “normal course of her employment in law enforcement,” and not on account of a protected statutory ground.
• Finally, even though the Petitioner’s status as a former employee of the El Salvadoran Ministry of Justice is an immutable characteristic, the Petitioner faced “danger[s] that one with ties to a participant in a violent struggle might expect if he ventures into an area of open conflict.”  Matter of Fuentes, at 662.

Imputed Political Opinion

• The Fifth Circuit Court of Appeal previously rejected an applicant’s argument that she can establish a well-founded fear of persecution based on her political opinion defined as “pro rule-of-law, anti-corruption, and anti-gang.” See Cabrera v. Sessions, 890 F.3d 153, at 161 (5th Cir. 2018); see also Orellana-Monson, 685 F.3d at 521– 22 (holding that “Salvadoran males, between the ages of 8 and 15,” recruited by gangs but who refused to join, did not constitute a particular social group).
• According to the record under review, the primary reason gang members targeted the Petitioner was to exploit her work-related access and knowledge from her employment with the Ministry of Justice in order to further their criminal enterprise.
• The Petitioner indicated during her credible fear interview that prison employees like herself were being targeted by the gangs to “put pressure on the government” in El Salvador and to obtain special privileges for gang members who were imprisoned. She also stated that she believed that she would be targeted by gangs if she returned to the country because she had information about the prison security system, including the location of the cameras used to monitor inmates.
• However, “[c]onduct that is driven by criminal . . . motives does not constitute persecution” on account of a protected ground.  See Vasquez-De Lopez v. Lynch, 620 F. App’x 293, 295 (5th Cir. 2015) (citing Thuri v. Ashcroft, 380 F.3d 788, at 792–93 (5th Cir. 2004)); see also Garcia v. Holder, 756 F.3d 885, at 890 (5th Cir. 2014) (explaining that “[t]his court does not recognize economic extortion” as persecution based on a protected ground).

In summary, the Fifth Circuit Court of Appeal held, under the substantial evidence standard of review, that the evidence in the record supports the BIA’s conclusion that the Petitioner is ineligible for asylum because she failed to show the requisite nexus between the harm she claims to have suffered and fears in El Salvador and a protected statutory ground.

 

Commentary

In Martinez-De Umana v. Garland, (September 8, 2023) No. 22-60340, the Fifth Circuit Court of Appeal reviewed the BIA’s decision under the substantial evidence standard which requires that factual findings are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.”  Omagah v. Ashcroft, 288 F.3d 254, at 258 (5th Cir. 2002); Orellana-Monson v. Holder, 685 F.3d 511, at 518 (5th Cir. 2012).

Thus, Ms. Martinez-De Umana was heavily burdened in her challenge of administrative fact finding.

In addition, the Fifth Circuit Court of Appeal did not address all of the issues raised by the Petitioner, namely, that: 
 

1. The threats she experienced rose to the level of past persecution;
2. her fear of future persecution is objectively reasonable, and thus well-founded; and
3. she could not reasonably relocate within El Salvador to avoid persecution.

The Fifth Circuit Court of Appeal deemed it unnecessary to consider these issues because, once it determined that the Petitioner had failed to establish a nexus between the motive of the alleged persecutors and at least one protected ground, any potential favorable outcome relating to any other issue could not change the ultimate disposition of the appeal.

 

Expert Testimony

The record in Martinez-De Umana v. Garland reveals the use of an expert witness relating to criminal gangs in El Salvador which provides an occasion for comment about the use of expert witnesses in immigration court proceedings.

The Immigration Judge obviously disagreed with the conclusion of the Petitioner’s expert witness that criminal gangs in El Salvador will continue to pursue former police, military, or corrections officers because they are likely to “continue to embody . . . pro rule of law values,” at least with regard to the motivation of the criminal gangs as a central reason for persecuting her.  In particular, having “pro rule of law values” could be construed as a political opinion that justified the Petitioner’s persecution claim.  See, generally, section 208(b)(1)(B)(i) of the Act. 

Typically, an expert witness is a person with specialized knowledge about subject matter that is relevant to fact finding and conclusions drawn from facts; not legal conclusions, even if the expert happens to have a law degree.

For example, an expert on country conditions or a psychology expert should not be asked to offer an opinion about the credibility of a respondent in immigration proceedings or whether an asylum applicant has established past persecution or a has a well founded fear of persecution.  This subject matter lies outside the area of expertise of the expert witness.

Like it or not, credibility and the application of law to facts is within the exclusive province of the Immigration Judge.  The testimony of psychology experts should be confined to conclusions derived from psychological tests and psychological evaluation for specific psychological conditions, such as the existence of post-traumatic stress, depression, anxiety, whether a person is bipolar, etc.

It is then the duty of the respondent’s advocate to persuade the Immigration Judge that conditions established by expert testimony support the theory of the claim, enlighten surrounding circumstances, explain behavior or inform and provide insight about events.  An attempt to use an expert witness as an advocate amounts to misuse of the expert witness.

Practitioners should feel free to ask an expert witness hypothetical questions about country conditions or questions about conclusions derived from psychological testing, but eliciting an opinion about a legal conclusion or an opinion that an applicant should be granted relief under the immigration law will, at least, create the impression of bias on the part of an expert witness who is expected to be a neutral and objective source of relevant information.  

Venturing beyond the area of expertise of an expert witness by asking inappropriate questions could provide justification for discrediting or giving reduced weight to expert testimony, based on perceived bias that could be supported by specific inapplicable testimony in the record of proceedings.

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