Jonathan Ayala Leiva v. Attorney General United States


NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-2919 ___________ JONATHAN AYALA LEIVA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A215-665-131) Immigration Judge: Mirlande Tadal ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) August 20, 2021 Before: GREENAWAY, JR., KRAUSE and BIBAS, Circuit Judges (Opinion filed: January 7, 2022) ____________________________________ ___________ OPINION* ___________ PER CURIAM Jonathan Ayala Leiva, acting pro se, petitions for review of his final order of removal. We will grant the petition. I. Ayala Leiva is a citizen of El Salvador who entered the United States illegally in 2011. In 2019, the Government charged him as removable on that basis. Through counsel, Ayala Leiva conceded the charge but applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). He claimed to fear persecution and torture in El Salvador on the basis of gang violence directed toward him and his family. Ayala Leiva and his mother, Myrna Leiva, appeared at a hearing before an Immigration Judge (“IJ”). Ayala Leiva testified that, when he was around six or seven years old, he was present when two gang members (“maras”) raped his sister, Jessica. See A.R. 115; see also A.R. at 188–89 (Jessica’s sworn account of the incident). He knew the men by their nick- names, “Chickee” and “Goata.” A.R. 117. Ayala Leiva stated that the maras put a gun to his head and threatened to kill him unless he left the scene.1 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The agency found that the gang members held a gun to Ayala Leiva’s head during his sister’s attack. See IJ Op. at 3 (“The respondent testified that . . . on the same day that his sister was raped, they held a gun to his head and then told the respondent to leave the area.”) & BIA Op. at 1 (“The respondent testified that . . . gang members raped his sister and held a gun to the respondent’s head.”). However, Ayala Leiva, who testified through an 2 Myrna reported the incident to the police, who arrested the men responsible. Neither Ayala Leiva nor Myrna knows whether the men arrested for Jessica’s assault were con- victed or for how long they were incarcerated. After the arrests, the gang members discov- ered Myrna’s cell phone number and email address and repeatedly threatened to kill her and the children unless she paid them $12,000 for the release of the arrested assailants. The maras also stalked Myrna and the children. Myrna never reported the threats to the police because the maras told her that if she did, they would kill her children. To escape, Myrna moved the family to a friend’s house and then to a motel in El Salvador. However, the gang discovered their new locations. Myrna then took the children …

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