17-2898-ag Martinez De Artiga v. Barr 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term 2019 6 7 (Argued: January 8, 2020 Decided: June 10, 2020) 8 9 Docket No. 17-2898-ag 10 ________ 11 12 PATRICIA XIOMARA MARTINEZ DE ARTIGA, NOE 13 ANTONIO ARTIGA MARTINEZ, 14 Petitioners, 15 16 v. 17 18 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, 19 Respondent. 20 21 ________ 22 23 Before: KEARSE, CALABRESI, and POOLER, Circuit Judges. 24 25 Patricia Xiomara Martinez De Artiga challenges the denial of her 26 application for asylum, withholding of removal, and protection under the 27 Convention Against Torture (CAT). Martinez listed her son as a derivative 28 beneficiary on her application. The Immigration Judge (IJ) found that Martinez 29 testified credibly regarding serious, individualized threats against her and her 30 children by the infamous Mara Salvatrucha (MS-13) gang. Nevertheless, the IJ 31 denied Martinez’s claims for asylum and withholding, concluding that the 32 gang targeted Martinez because she had frustrated the gang’s recruitment 33 efforts and not on account of membership in her son’s family. On the issue of 34 CAT protection, the IJ determined that Martinez failed to meet her burden for 35 relief because she fled El Salvador promptly after MS-13 threatened her. We 36 hold that the IJ erred as a matter of law when it penalized Martinez for her 17-2898-ag Martinez De Artiga v. Barr 1 prompt flight, and we cannot confidently predict that a remand would be 2 futile. We therefore DENY the government’s motion for summary denial, 3 GRANT Martinez’s petition for review, and REMAND the case. Judge Kearse 4 dissents in a separate opinion. 5 6 7 REBECCA R. PRESS, UnLocal, Inc., Community Immigration Legal 8 Services, New York, NY, for Petitioners. 9 EVAN P. SCHULTZ, Trial Attorney (Joseph H. Hunt, Assistant 10 Attorney General; Stephen J. Flynn, Assistant Director, on the 11 brief), Office of Immigration Litigation, U.S. Department of 12 Justice, Washington, D.C., for Respondent. 13 14 15 CALABRESI, Circuit Judge: 16 Petitioner Patricia Xiomara Martinez De Artiga is a citizen of El 17 Salvador. Martinez seeks relief from threats to her and her children’s 18 lives by the infamous Mara Salvatrucha (MS-13) gang. She applied for 19 asylum, withholding of removal, and protection under the Convention 20 Against Torture (CAT) and listed her son Noe Antonio Artiga Martinez 21 as a derivative beneficiary. Martinez testified credibly concerning 22 serious, individualized threats against her and her children. The 23 Immigration Judge (IJ) denied CAT relief due to Martinez’s prompt 24 flight from El Salvador following the gang’s threats and the fact that 2 17-2898-ag Martinez De Artiga v. Barr 1 there had been no physical harm prior to her flight. The BIA affirmed. It 2 was error for the IJ to penalize Martinez in this manner, and we cannot 3 confidently predict that a remand would be futile. We therefore DENY 4 the government’s motion for summary denial, GRANT Martinez’s 5 petition ...
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