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Salvadoran Man Receives Second Chance to Present His Claim for Protection from Religious Persecution

NEW ORLEANS (December 5, 2023) — A Salvadoran man who fled to the United States after being targeted for religious persecution has secured a positive published opinion in the Court of Appeals for the Fifth Circuit that will allow him a second chance to present his claim for protection.

The National Immigrant Justice Center (NIJC) and Quinn Emanuel Urquhart & Sullivan LLP represent Samuel de Jesus Argueta-Hernandez, who had applied for legal protection to remain in the United States under withholding of removal and sought judicial review after the Board of Immigration Appeals (BIA) erroneously dismissed his appeal. Before fleeing El Salvador, Mr. Argueta had experienced credible death threats and a potentially lethal attack on his son because of Mr. Argueta’s religion.

The court’s decision reversed its previous finding that it did not have jurisdiction to review Mr. Argueta’s case because he had not filed his petition for review earlier in his proceedings when the government decided to reinstate a prior removal order. In the new decision, the court found jurisdiction is proper where an applicant for withholding of removal files a petition for review following dismissal on the merits by the BIA, and that an applicant need not file that petition at the earlier point in the proceedings when the government decides to reinstate a prior removal order.

"We are pleased that the Fifth Circuit’s decision has helped to clarify case law regarding the timeline for filing petitions for review for Mr. Argueta and others in his situation,” said Chuck Roth, NIJC director of appellate litigation. “Migrants in this situation, who have fled persecution and must navigate an immigration system full of due process and procedural obstacles, should be able to seek judicial review when the immigration court and Board of Immigration Appeals erroneously deny their applications for protection. Today’s decision helps preserve access to that review.”

On the protection claim, the Fifth Circuit also found multiple legal errors in the BIA’s decision to dismiss Mr. Argueta’s appeal:

  • The court held that physical harm is not required to meet the persecution standard and that the BIA erred when it ruled that a series of threats, surveillance, and an incident where a gang hitman followed Mr. Argueta’s son did not rise to the level of persecution.
  • The court found that the BIA made an additional legal error when it suggested that the harm perpetrated against Mr. Argueta could only be persecution if the persecutors referenced his religious practices, wrongly conflating the persecution and nexus elements that applicants for withholding are required to demonstrate in their claims for protection.
  • The court also engaged with the nuance of the nexus requirement for asylum, in which an applicant must show that they were targeted for persecution on account of a protected ground (race, religion, nationality, membership in a particular social group, and/or political opinion). The court faulted the BIA for treating nexus as an “either-or proposition” when the law recognizes that persecutors can have mixed motives and that the existence of multiple motivations does not defeat a claim. The Fifth Circuit found Mr. Argueta established his religious identity was one central reason he was targeted, and the BIA erred by requiring him to show his persecutor explicitly said “he was not allowed to preach or otherwise exercise his religious rights.” The court held, “Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).
  • The court further found the BIA erred in concluding that persecution for extortion or other criminal purposes and persecution on account of a protected ground are mutually exclusive. They are not, and adjudicators must explore the mixed motives of persecutors. The Court said, “If we allow BIA’s analysis to stand as-is, we run the risk that anything can be recharacterized as 'incidental' or 'tangential' under the BIA’s logic.”
  • The court also remanded for further consideration of Mr. Argueta’s particular social group-based claims, which the BIA had failed to consider, and his request for protection under the Convention Against Torture.

Mr. Argueta’s case is remanded to the BIA for further consideration in accordance with the Fifth Circuit’s decision.

Read the court’s decision