Crespin-Valladares v. Holder: "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" qualifies as a "particular social group".

In Crespin-Valladares v. Holder the U.S. Court of Appeals for the Fourth Circuit held that "family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses" qualified as a "particular social group" under the Immigration and Nationality Act (INA).

In this case Orlando Crespin-Valladares and his wife and children - citizens of El Salvador - petitioned for review of a final order of removal entered by the Board of Immigration Appeals (BIA). Mr. Crespin argued that he and his family deserved asylum because he feared persecution in El Salvador on account of his family ties because of events arising from the murder of Crespin’s cousin in El Salvador. An immigration judge (IJ) accepted this argument and granted the Crespins’ asylum application, but the BIA vacated and ordered their removal. 

Here, the U.S. Court of Appeals for the Fourth Circuit articulated at least two reasons for granting the petition for review. 

• Relatives of witnesses, testifying against MS-13, who suffer persecution on account of their family ties, constitute a "particular social group"; and 
• In holding that Crespin suffered persecution - not merely harassment, the Court reiterated its holding that "threat of death" qualifies as persecution. Because Crespin had received  such threats, he is "presumed to have a well-founded fear of future persecution." 

The Court remanded the case to the BIA with instructions that it review for "clear error" two factual issues where the BIA had applied the incorrect legal standard and instead "simply substituted its own judgment for that of the IJ":

• Whether Crespin’s persecution was "on account of his family ties; and
• Whether the Salvadoran government is unable or unwilling to control MS-13’s activities.

Lizama v. Holder: "Young, Americanized, well-off, Salvadoran male deportees with criminal histories who oppose gangs" not a social group for Asylum and Withholding

In Lizama v. Holder the petitioner, Carlos Lizama, sought judicial review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").

Carlos Lizama, a native and citizen of El Salvador, entered the United States in 1992 and was placed in removal proceedings in 2006.  As a defense to removal he petitioned for asylum, withholding of removal, and protection under CAT. The Immigration Judge denied Mr. Lizama's application for relief. He appealed the Immigration Judge's decision to the BIA, which affirmed.  

The U.S. Court of Appeals for the Fourth Circuit dismissed Mr. Lizama's claim for asylum for lack of jurisdiction in that he had not applied for asylum within one year of entry (8 U.S.C. 1158(a)(2)(B)), and reasoned that recently accumulated wealth did not constitute "changed" or "extraordinary" circumstances which excused his failure to file a timely asylum application. The Court also denied Mr. Lizama's petition for review of his withholding of removal under 8 U.S.C. section 1231(b)(3) holding that being a "young, Americanized, well-off Salvadoran male deportee with a criminal history who opposes gangs" did not qualify him for membership in a social group possessing the common, immutable characteristics and recognized level of visibility and particularity required by BIA precedent.  Finally, the court agreed with the Immigration Judge who held that Mr. Lizama did not qualify for CAT protection because he had failed to establish he would "more likely than not" be tortured if removed to El Salvador. 

Crespo v. Holder: Adjudication Under Virginia Code 18.2-251 Not Always a Conviction for Immigration Purposes

In Crespo v. Holder the U.S. Court of Appeals for the Fourth Circuit held Mr. Crespo's adjudication under Virginia Code 18.2-251 did not satisfy any of the five situations that Congress listed in 8 U.S.C. section 1101(a)(48)(A) to satisfy a sufficient finding of guilt to constitute a "conviction" for immigration purposes.

This case involved the case of Franklin Eduardo Crespo, a Peruvian national, who entered the U.S. with a B-2 visitor's visa and overstayed.  He later applied to adjust his status to that of a Lawful Permanent Resident based on his marriage to a U.S. citizen.  Upon the approval of the Immigrant Relative Petition, Mr. Crespo submitted an adjustment of status petition along with a "212h" waiver with the immigration judge. 

The waiver was denied by an immigration judge who held that Mr. Crespo was ineligible to apply for a 212h waiver because he had two "convictions" for marijuana possession.  The Immigration Judge determined that one of the convictions, which occurred in 1997 pursuant to Virginia Code 18.2-251, counted as a "conviction" for immigration purposes under 8 U.S.C. 1182(h) even though it was a deferred adjudication. The Board of Immigration Appeals (BIA) dismissed Mr. Crespo's appeal, agreeing with the Immigration Judge that the 1997 adjudication counted as a conviction and that Mr. Crespo was ineligible for a 212h waiver. Mr. Crespo petitioned for review of the denial of the 212h waiver.  

As our readers may be aware of, the definition of what constitutes a "conviction" under immigration law is not the same as the definition under criminal law.  We will address the differences on a different post.  For now, readers should now that a conviction for immigration purposes is defined under 8 U.S.C. section 1101(a)(48)(A).

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—

(i)         a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii)        the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

As noted by the Court, this section creates two prongs for finding a conviction. The first prong covers situations in which there has been a "formal judgment of guilt".  This circumstance did not occur in this case. The second prong covers deferred adjudications and requires two elements: (i) a sufficient finding of support for a conclusion of guilt, and (ii) the imposition of some form of punishment.

The Court focused its review only on the first requirement of the second prong - whether there was some sufficient finding of guilt to satisfy 8 U.S.C. section 1101(a)(48)(A). The Court held that a plain reading of the statute confirmed that there was not sufficient finding of guilt to satisfy the statutory elements given that in this particular case none of the five sufficient findings were present: there was no finding of guilt by a judge or jury; there was no guilty plea, there was no plea of no contest; and there was no admission by the alien of facts sufficient to find guilt.