Selvin Saban-Cach v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 21-2378 _____________ SELVIN HERALDO SABAN-CACH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA _______________ On Petition for Review of a Final Order of the Board of Immigration Appeals No. A206-689-150 Immigration Judge: Pallavi S. Shirole _______________ Argued: March 2, 2022 Before: McKEE ∗, AMBRO, and SMITH, Circuit Judges. (Opinion filed: January 25, 2023) ∗ Judge McKee assumed senior status on October 21, 2022. Stephanie E. Norton [Argued] Seton Hall University School of Law Center for Social Justice 833 McCarter Highway Newark, NJ 07102 Counsel for Petitioner Merrick B. Garland John B. Holt Victor M. Lawrence, I Jane T. Schaffner [Argued] United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _______________ OPINION _______________ McKEE, Circuit Judge. Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. I. Saban-Cach was born and grew up in the Montufar neighborhood of Sacatepéquez, Guatemala. He is of Kaqchikel Mayan indigenous ethnicity and was one of the few Kaqchikel 2 living in Montufar. 1 Kaqchikel Mayans stand out from the majority population because of their names, language, physical appearance, and dress. During Saban-Cach’s adolescence in Montufar, a local gang associated with the international MS-13 gang was growing in strength. The gang began to harass and act aggressively toward Saban-Cach, including insulting him based on his ethnicity. Gang members threw stones at him and kicked him. His father stated that “[m]any times [Saban-Cach] came home with cuts and bruises from getting beaten up by [the gang].” 2 Saban-Cach did not report these attacks to the police because of fear of gang retaliation and the belief “that [he] was never going to get any . . . protection from [the police].” 3 The gang’s conduct was designed to recruit him into the gang. Gang members warned him: “[W]e’re not going to stop attacking you until you’re part of us and, if not, until we take your life away. We’re going to take your life away if you don’t belong to us.” 4 Because of this abuse, around age fifteen, Saban-Cach dropped out of school and fled to San Pedro, Sacatepéquez— about an hour and a half away from Montufar. Despite relocating to San Pedro, the gang still harassed him. He testified that, “[a]fter [he] got out of school they attacked [him] four times,” 5 each time while he was visiting Montufar. The worst of these attacks occurred when Saban-Cach went …

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