In a published decision litigated by a pro se litigant (no lawyer!), the Seventh Circuit overturned an Immigration Judge's decision, finding that he overlooked key evidence that the petitioner would be harmed in El Salvador.  "For example, there is no sign that the judge considered an affidavit from Arrazabal’s mother-in-law, with whom he had lived in El Salvador. Her testimony corroborated Arrazabal’s account of his arrest and beating by the Salvadoran police on account of his perceived gang affiliation, and his statement that MS- 13 members threatened to murder him and his family because of his refusal to participate in the gang. The affidavit had been read into the record by Arrazabal’s translator during the hearing. At the time the immigration judge said that  he would consider its contents, but he never referred to it in his decision. This was not a harmless oversight: it led the immigration judge to state, erroneously, that Arrazabal’s “claims that he was beaten by the police are not corroborated.” The mother-in-law’s affidavit may not have been as specific as one would wish, but it did provide at least some corroboration for the withholding and CAT claims. The immigration judge also overlooked a letter from Arrazabal’s uncle expressing concern that Arrazabal would be murdered by gang members if returned to El Salvador. We express no view about the accuracy of these documents. The problem is that the immigration judge’s decision says nothing about them, nor does it grapple with the views of Arrazabal’s relatives about the life-threatening danger they believed he would face upon return."

The Court also criticized the Immigration Judge's disregard of Arrazabal's assertion that there was no way he could leave the gang.  "For this important finding, the judge relied exclusively on a feature article that appeared on a news website. The article touted the success of one pilot program in San Salvador that helps former gang members find jobs. But the immigration judge read too much into the article. Its description of one company’s decision to hire 30 former gang members does not establish that throughout El Salvador (a country of more than 6 million people), all 'those who truly want to leave the gang and who are willing to actually try to leave the gang' (as the immigration judge put it) can do so."

Additionally, the Court was dissatisfied with the Judge's determination that Arrazabal had not truly renounced his gang membership.  "Nevertheless, he said that Arrazabal’s failure to take outward steps to renounce gang membership (meaning, perhaps, his failure to undergo the painful and expensive process of tattoo removal) automatically meant that he was an active rather than a former gang member and thus not a member of the latter social group. He may want to leave the gang, the immigration judge said, but '[g]ang members who have subjectively decided to leave are not socially distinct because only they know individually their own thoughts.' But the record shows that Arrazabal was not asking anyone to read his mind, and so the immigration judge was wrong to suggest that renunciation of membership required Arrazabal to take more visible steps to distance himself from the gang. Arrazabal testified that he did take objectively ascertainable steps: he repeatedly rebuffed the efforts of MS-13 members to recruit him to commit crimes and regularly paid extortion money to avoid harm. If we accept that testimony as true (as the immigration judge implicitly did in this portion of his analysis), there is little more Arrazabal could have done to distance himself from the gang without putting himself at even more risk of reprisal."

Finally, the Court reaffirmed its prior reluctance to read the "more likely than not" standard too literally.  "But that oft-repeated phrase must be understood pragmatically in the immigration context, because there is no reliable data to show just how great an applicant’s risk of torture is. All that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.

The full text of Arrazabal v. Lynch can be found here: