Appeals Court Gives Immigrant Second Chance

Threatened by gang members at gunpoint in El Salvador, W.G.A., whose name has been kept anonymous, fled to the United States, where he was picked up by the Department of Homeland Security (DHS), denied asylum by an immigration judge and the Immigration Appeals Board, and wrongly returned by the United States government to El Salvador while his federal court appeal was pending.

The Seventh Circuit Court of Appeals last week gave the man another chance, rejecting the reasoning the Immigration judge and board gave when they turned W.G.A.’s request and returning the case to the Board for further proceedings.

The government, while finding credible W.G.A.’s story about death threats from an El Salvadoran gang, rejected his pleas to remain in the United States. While he was indeed persecuted, the government argued, his persecution was not due to one of the five grounds that could keep him in this country: “race, religion, nationality, membership in a particular social group, or political opinion.”

The appeals panel disagreed. W.G.A.’s family is a particular social group, and he was threatened because of his membership in it.

W.G.A. was threatened by the gang Mara 18 because his brother tried to leave it, U.S. Circuit Judge David Hamilton wrote for a three-member panel that also included Circuit Judge Diane Sykes and  U.S. District Judge John Z. Lee. Sykes got her start as a judge in Milwaukee County. The decision by the three was unanimous.

W.G.A. and his family members are not identified beyond initials in court filings, most of which are not available to the public.

“The Mara 18…is one of the two main gangs operating in El Salvador,” Hamilton wrote. “Together with their rivals, MS‐13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes.”

The gangs put together labor strikes and plotted to bomb government buildings. They extort millions of dollars from businesses and, Hamilton wrote, “they are largely responsible for El Salvador’s homicide rate — one of the highest in the world.”

One day in 2014, when both brothers were still in El Salvador, W.G.A.’s brother, identified only as S.R.P., did not come home from a trip to the store. W.G.A. and his mother looked for him to no avail. They guessed that S.R.P. had been forcibly recruited by a gang.

They didn’t hear from him until they got a phone call a few months later. He was crying and said he could not talk long because the gang might kill him, Hamilton wrote. Then he hung up.

S.R.P. was arrested a few months later and was released from prison in 2015. He called W.G.A. to say he did not want to be in a gang anymore and did not want to tell W.G.A. where he was going. Then he was gone.

Four tattooed gang members showed up at W.G.A’s house two days later. They were looking for his brother. When W.G.A. said he did not know, “one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: ‘if you don’t [hand] over your brother, you’re going to die here,'” Hamilton wrote.

The men gave W.G.A. four days to comply or they would kill him. They also said they would kill him and his family if anyone talked to police.

W.G.A. took off for the United States. Gang members threatened family members still in El Salvador. It got so bad that W.G.A.’s mother sent another son into hiding.

W.G.A. was arrested in the United States and denied asylum by both an immigration judge and a Board of Immigration Appeals. He petitioned for the Seventh Circuit to review the decisions, which should have put a hold on deportation proceedings.

It did not. Homeland Security sent him back to El Salvador, but when the appeals panel appeared ready to consider ordering him returned, the government voluntarily did so.

“We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed.”

Hamilton was critical of the immigration judge’s and appeals board’s decisions. The board, for example, found that W.G.A. failed to adequately show that his gang persecution was due to his family connection because his family continued to live unharmed in El Salvador.

“This is factually inaccurate,” Hamilton wrote.

Family members testified about the fear the gang caused them.

“W.G.A.’s mother reported that she had received at least four threatening phone calls from ‘angry,’ yelling gang members and that the calls continued until she threw her cell‐phone chip away,” Hamilton wrote. “W.G.A.’s mother and sister described how masked gang members have appeared at their home at least twice, threatening them. … We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed.”

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.