United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-1546 ___________________________ Willian Ernesto Rubio Barahona lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States lllllllllllllllllllllRespondent ------------------------------ Fair Trials Americas lllllllllllllllllllllAmicus Curiae ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: November 18, 2020 Filed: February 3, 2021 (Amended April 15, 2021) ____________ Before BENTON, ERICKSON, and GRASZ, Circuit Judges. ____________ ERICKSON, Circuit Judge. Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings. I. BACKGROUND Barahona is a native and citizen of El Salvador who entered the United States illegally in December 2012. His wife, Cecila Rivera de Rubio, came to the United States a few years later and was granted asylum. On September 21, 2018, Cecila filed a Form I-730 asylum petition on Barahona’s behalf. In reviewing the asylum petition, agents with the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services, performed a record check and discovered an Interpol Red Notice dated July 2018 requesting Barahona’s extradition as a fugitive sought for criminal prosecution in El Salvador. The underlying alleged crime was for participating in an “illicit gathering” in violation of Article 345 of the Salvadoran Penal Code. The Red Notice indicated that, according to an investigation conducted in 2010, Barahona was identified by an informant to be a “gatillero”1 or “hit man” for the Mara Salvatrucha (“MS-13”) criminal organization. An arrest warrant was issued for Barahona in 2016. 1 The exact meaning of “gatillero” is open to some dispute. Barahona testified that the term may mean “hitman” or “delivery man.” The Interpol Red Notice uses the phrase, “Barahona has the position of ‘gatillero’ [hit man] within the organization.” -2- Immigration and Customs Enforcement agents took Barahona into custody. Because Barahona was determined to be a danger to the security of the United States, his asylum petition was denied. On February 25, 2019, Barahona was charged with being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without having been admitted or paroled. On May 6, 2019, Barahona appeared before an Immigration Judge (“IJ”) and, after conceding his removability, requested asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), based on his fear of MS-13 in El Salvador. A hearing was held and Barahona testified that MS-13 shot his father in 2006 because he was a police sergeant investigating an MS-13 murder. His father survived and …
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