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Aldana-Ramos v. Holder

United States Court of Appeals, First Circuit

June 27, 2014

ELVIS LEONEL ALDANA-RAMOS; ROBIN OBDULIO ALDANA-RAMOS, Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

As Amended August 8, 2014.

Page 10

[Copyrighted Material Omitted]

Page 11

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.

William P. Joyce and Joyce & Associates P.C. on brief for petitioners.

Stuart F. Delery, Assistant Attorney General, Civil Division, Song Park, Senior Litigation Counsel, and Sunah Lee, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Torruella and Thompson, Circuit Judges.

OPINION

Page 12

AMENDED OPINION

LYNCH, Chief Judge.

Petitioners Elvis Leonel Aldana Ramos (" Elvis" ) and Robin Obdulio Aldana Ramos (" Robin" ) seek review of an order of the Board of Immigration Appeals (" BIA" ) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ). The BIA concluded that the petitioners had not made the requisite showings that they were or will be persecuted on account of membership in a protected social group or that it is more likely than not that they would be tortured by government authorities upon returning to their home country. Because the BIA's conclusion as to the asylum claim is legally flawed and is not supported by the record as currently developed, we grant the petition in part and remand to the BIA for further proceedings as to the asylum and withholding of removal claims. We deny the petition as to the CAT claim.

I.

We recount the facts as presented by the record, noting that the Immigration Judge (" IJ" ) found that petitioners were credible. Elvis and Robin are brothers and are natives and citizens of Guatemala. At the time of the relevant events, Elvis was 20 years old and Robin was 18. Their father, Haroldo Aldana-Córdova (" Haroldo" ), owned a successful used car business and a real estate rental business in Salamá, Guatemala. Elvis and Robin worked with their father in the family business. The family was relatively well-off and was able to travel to the United States on vacation.

On February 4, 2009, Haroldo asked Elvis and Robin to attend to certain ongoing used car and property rental business concerns while he showed a rental apartment to potential tenants in another town. Both Elvis and Robin were to meet with a buyer interested in purchasing a truck, and Elvis was later supposed to show a rental property to potential tenants. Elvis later called Haroldo to tell him that the buyer was interested in purchasing a truck from the dealership, but there was no answer on Haroldo's phone. Elvis left Robin to conclude the truck sale while he went to show the apartment. Soon after, an unknown person approached Robin at the dealership and told him that Haroldo had been kidnapped for ransom. Robin called Elvis, who immediately went to the police station to report the kidnapping. According to the petitioners, the police took no real action on the kidnapping report. Elvis and Robin later learned that the kidnappers belonged to a group known as the " Z" gang, a well known criminal organization in Guatemala with ties to drug trafficking.

On February 5, Haroldo called Elvis and Robin and told them that his kidnappers demanded one million quetzales (approximately $125,000) in ransom by noon of that day and would kill him if they did not pay the entire ransom. The next day, Haroldo called again to repeat the message. Haroldo instructed Elvis and Robin to pawn the car dealership to Marlon Martínez, a family friend and business associate.[1]

Page 13

Martínez already owed Haroldo's family 150,000 quetzales but he did not help them raise the ransom money.

Over the next three days, Elvis and Robin collected 400,000 quetzales and paid it to the kidnappers. The kidnappers continued to refuse to release Haroldo until the ransom was paid in full. Around that same time, men in vehicles without license plates began driving around petitioners' home. The brothers found the action intimidating. According to an affidavit Elvis later submitted, this was a threatening tactic frequently used by the " Z" gang.

Eventually, Elvis and Robin borrowed the remaining 600,000 quetzales, largely from relatives, and paid the sum over to the kidnappers. The brothers state that they completely exhausted their financial resources in doing so. The kidnappers told the brothers where they could retrieve their father. When they arrived at that location, they could not find him. Nor did he turn up. Four days later, the ...


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