Juris Doctor Candidate, 2016
Valparaiso University Law
In the context of U.S. immigration law, seekers of asylum or refugee status must demonstrate “persecution.”Persecution involves three essential elements: the petitioner must establish harm, that the harm was authorized by a foreign government, and that the harm stems from race, religion, nationality, political opinion, or membership of a particular social group.
Jonathan Castillo-Ibarra, a 24-year-old citizen of El Salvador, applied for a withholding of removal and protection under the United Nations Convention Against Torture based on his former membership of Mara Salvatrucha, better known as MS-13.
Castillo-Ibarra originally entered the United States with a relative when he was 12 years old. He was placed in immigration proceedings, and in 2005 he received a final order of removal after failing to depart voluntarily. Instead of heading back to El Salvador, however, Castillo-Ibarra remained in the U.S. and became a member of MS-13. He was found in Indiana in 2011 with 21 grams of cocaine on his person, and was subsequently removed back to El Salvador.
Two months later he was found in Indiana again, and this time was arrested for possession of marijuana. This arrest led to Castillo-Ibarra’s previous cocaine charge being reinstated, and in December 2012 he was sentenced to 20 years imprisonment for dealing cocaine.
While in prison, the Department of Homeland Security contacted Castillo-Ibarra and notified him that he would be removed back to El Salvador pursuant to his 2005 order. Castillo-Ibarra, who had multiple tattoos indicating his membership in MS-13, stated that he was afraid to return to El Salvador because he had quit the gang and would likely be murdered in retaliation. His aunt had already been threatened and beaten, and Castillo-Ibarra himself had also been threatened. He stated that the police would likely not help him in El Salvador.
During an interview with an asylum officer, the officer concluded that Castillo-Ibarra did not have a reasonable fear of persecution or torture because no one had actually tried to harm him in El Salvador, and he couldn’t link possible gang retaliation with the government. Not only that, but an Immigration Judge also found that because Castillo-Ibarra had been convicted of a “particularly serious crime” (cocaine trafficking), he was not eligible to remain in the United States. The Board of Immigration Appeals agreed, and as a result Castillo-Ibarra filed a petition for deferral under the Convention Against Torture.
The Seventh Circuit Court of Appeals looked over Castillo-Ibarra’s petition, but eventually sided with the Immigration Judge and the Board of Immigration Appeals. As both previous agencies had noted, Castillo-Ibarra was barred from seeking a withholding of removal because he had already been convicted of a particularly serious crime.
Notwithstanding that determination, the Seventh Circuit also held that even if he had not been convicted, Castillo-Ibarra still would not be entitled to relief under the Convention Against Torture, because he had not shown that he more likely than not would experience severe pain and suffering authorized by the Salvadoran government. As a result, Castillo-Ibarra will be forced to return back to El Salvador, regardless of his previous convictions and former participation in MS-13.