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Denial of asylum to domestic abuse victim was arbitrary and capricious

The Board of Immigration Appeals acted arbitrarily and capriciously when it upheld the decision of an immigration judge denying asylum to a victim of domestic violence whose uncontroverted testimony established that the police in her home country frequently ignored her requests for help when her partner became abusive.

Background

In 1992, when Ruth Jeanette Orellana was fifteen years old, she met Jose Teodoro Garcia. They started dating, and soon began living together in San Vicente, El Salvador. When Orellana became pregnant with their first child the next year, Garcia began abusing her both verbally and physically.

In 1999, Orellana reported Garcia’s abuse to the Salvadoran police for the first time. Officers responded to Orellana’s call and spoke with Garcia but did not arrest him. From that point forward, she would call the police every time Garcia became abusive, but they would take hours to arrive, if they showed up at all.

Orellana made efforts to become independent of Garcia, which he violently resisted. In 2009, after Garcia again threatened Orellana with a machete, the police seized him and confiscated the machete. Garcia then spent six days in jail before appearing in front of the San Vicente magistrate’s court. At the hearing, the magistrate refused to issue a protective order and returned the machete to Garcia. When Orellana called the police the next time Garcia became drunk and abusive, she was told that they could not take him into custody because there was no protective order.

Orellana made a third attempt to get a protective order, but employees at the family court told her they were too busy to help and that she should come back on a different day. Orellana then went to the police station, but the police chief would also not speak with her. In January 2011, after Orellana learned that Garcia was planning to kill her, she fled El Salvador, leaving her teenage children with other family.

Orellana arrived in the United States on March 10, 2011 and was promptly detained by the Department of Homeland Security. Orellana conceded her removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture. A hearing was held on April 25, 2013. Despite finding Orellana credible, the immigration judge denied her claims on June 3, 2013, concluding that she failed to show that the El Salvadoran government was unwilling and unable to protect her.

Orellana appealed to the Board of Immigration Appeals, or BIA, who remanded the case back to the IJ. On Nov. 20, 2015, the IJ issued a new order denying all relief to Orellana. On March 17, 2017, the BIA upheld the IJ’s opinion.  On April 5, 2018, the BIA reaffirmed the IJ’s decision and adopted its factual determinations. This petition followed.

Analysis

Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented by disregarding and distorting important aspects of the Orellana’s claim. For example, the IJ gave no weight to Orellana’s uncontroverted testimony that the police did not respond to many phone calls she made over a 12-year period. To arbitrarily ignore such evidence and focus only on the isolated instances where police did respond was an abuse of discretion. In addition, the IJ inexplicably concluded that when the family court employees turned her away and told her to come back another day it was an offer of continued assistance.

The government argues that Orellana’s own testimony established that she had access to legal remedies in El Salvador, but access to a nominal or ineffectual remedy does not constitute meaningful recourse and does not demonstrate that a government is willing and able to protect an asylum seeker. Moreover, there is no requirement that an applicant persist in seeking government assistance when doing so would have been futile or would have subjected her to further abuse.

Finally, although the government failed to argue that the conditions in El Salvador have changed such that Orellana would have access to meaningful recourse now, because the agency never asserted this as a justification for its order, principles of administrative law bar us from dismissing the petition on this basis.

Petition granted.

Orellana v. Barr, Case No. 18-1513, May 23, 2019. 4th Cir. (Motz), Petition from Order of the Board of Immigration Appeals. Michael Ernest Rosado for Petitioner; Rebecca Hoffberg Phillips for Respondent. VLW 019-2-149. 14 pp.

VLW 019-2-149

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