No. 15-362

In The

ELENILSON J. ORTIZ-FRANCO,

Petitioner, v.

LORETTA E. LYNCH, ATTORNEY GENERAL, Respondent.

____________________________

On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit

BRIEF OF EXPERTS IN COUNTRY CONDITIONS IN El SALVADOR AS AMICI

CURIAE IN SUPPORT OF PETITIONER ____________________________

Hyland Hunt Patrick G. O’Brien AKIN GUMP STRAUSS Counsel of Record HAUER & FELD LLP Scott T. Williams 1333 New Hampshire Brennan H. Meier Ave., NW AKIN GUMP STRAUSS WASHINGTON, DC 20036 HAUER & FELD LLP (202) 887-4000 1700 Pacific Street,

Suite 4100 Dallas, TX 75201 (214) 969-2800 pobrien@akingump.com

Counsel for Amici Curiae

(i)

QUESTION PRESENTED

Did the Second Circuit err in holding that 8 U.S.C. § 1252(a)(2)(C) divests the courts of appeals of jurisdiction to review factual claims challenging the denial of deferral of removal under the Convention Against Torture?

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TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............................................ 1 INTRODUCTION AND SUMMARY OF ARGUMENT ................ 4 ARGUMENT ...................................................................... 7 I. THE IMMIGRATION COURT’S INCORRECT

CONCLUSION THAT PETITIONER WAS UNLIKELY TO FACE TORTURE IN EL SALVADOR REQUIRES JUDICIAL REVIEW. ..................................................... 7

II. JUDICIAL REVIEW IS NEEDED TO CORRECT THE IMMIGRATION COURT’S ERRONEOUS FINDING THAT SALVADORAN GOVERNMENT OFFICIALS WOULD PROTECT PETITIONER FROM GANG-RELATED VIOLENCE. ................................................................. 13

CONCLUSION .............................................................. 18

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TABLE OF AUTHORITIES

TREATIES

United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art.3 S. Treaty Doc. No. 100-20 (1988) 1465 U.N.T.S. 85 ......................................... 4

STATUTES

8 U.S.C. § 1252(a)(2)(C) ............................................... 4

OTHER AUTHORITIES

3 MS-13 Leaders Sentenced to Decades in Prison for Racketeering, Violent Crimes, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, NEWS RELEASES (Jun. 23, 2015), https://www.ice.gov/news/releases/ 3-ms- 13-leaders-sentenced-decades-prison-racketeering-violent-crimes. ................... 12

A. Grayner, Escaping Forced Gang Recruitment: Establishing Eligibility for Asylum After Matter of S-E-G, 63 HASTINGS L. J. 1417 (June 2012) ................... 11, 16

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Central Am. and Mexico Gang Assessment 45 (U.S. Agency for Int’l Dev., Bureau for Latin Am. & the Caribbean, 2006), http://www.uscrirefugees.org/2010Website/ 5_Resources/5_3_For_Service_Providers/5_3_9_Gangs/USAID.pdf ..................................... 9, 14

Clare Ribando Seelke, Gangs in Central America 3 (Cong. Research Serv., 2014), http://fas.org/sgp/crs/row/RL34112.pdf .................. 9

D. Farah, Central American Gangs: Changing Nature and New Partners, 66 J. INT’ L AFF. 53 (Fall/Winter 2012) ..................................... 10, 15

Edgardo Ayala, El Salvador’s New Government to Inherit Hot Potato of Gang Truce, INTER PRESS SERV. (May 10, 2014), http://www.ipsnews.net/2014/05/el-salvadors-new-government-inherit-hot-potato-gang-truce/ .................................................. 9

El Salvador 2012 Human Rights Report 5 (U.S. Dep’t of State, 2012), http://www.state.gov/documents/ organization/204661.pdf ...................................... 14

El Salvador 2014 Human Rights Report 1 (U.S. Dep’t of State, 2014), http://www.state.gov/documents/organization/ 236900.pdf ...................................................... 14

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El Salvador 2015 Crime & Safety Report 1 (U.S. Dep’t of State, Bureau of Diplomatic Sec., May 20, 2015), https://www.osac.gov/ pages/ ContentReportPDF.aspx?cid=17691 ......... 9, 10, 11

El Salvador Travel Warning 1 (U.S. Dep’t of State, Bureau of Consular Affairs, June 22, 2015), http://travel.state.gov/content/ passports/en/ alertswarnings/el-salvador-travel-warning.html ............................................... 9

El Salvador: Gang Truce Fails to Ease Violence, Officials Say, N.Y. TIMES (April 7, 2014), http://www.nytimes.com/ 2014/04/08/world/americas/el-salvador-gang-truce-fails-to-ease-violence-officials-say.html?_r=0 ....................................................... 15

Even Stronger: Truce Between El Salvador Gangs Has Unintended Consequence, FOXNEWSLATINO (September 7, 2014), http://latino.foxnews.com/latino/news/2014/09/07/even-stronger-truce-between-el-salvador-gangs-has-unintended-consequence. ......................................................... 15

H. Vanden, Maras, Contragoverned Space, and Sovereignty, in US NAT’L SEC. CONCERNS IN LATIN AM. AND THE CARIBBEAN 81 (Gary Prevost, Harry E. Vanden, Carlos Oliva Campos, & Luis Fernando Ayerbe eds., 2014) ............................... 11

vi

Hector Silva, What 2 MS-13 Leaders Have in Common: Active Gangs in the US, INSIGHTCRIME, http://www.insightcrime.org/news-analysis/what-ms-13-leaders-have-in-common-active-gangs-in-the-us ..................... 12, 13

J. Blake, Gang and Cartel Violence: A Reason to Grant Political Asylum from Mexico and Central America, 38 YALE J. INT’L LAW 31 (2012) .............................................................. 15, 16

Jaime Lopez et al., How Gangs Have Become a Trojan Horse in El Salvador’s Security Forces (Part 2), GLOBAL VOICES, http://globalvoicesonline.org/2014/05/15/how-gangs-have-become-a-trojan-horse-in-el-salvadors-security-forces-part-2/ ......................... 14

Jeffrey D. Corsetti, Marked for Death: The Maras of Central American and Those Who Flee Their Wrath, 20 GEO. IMMIGRATION LAW J. 407 (2006) ........................... 14

John Sullivan, Maras Morphing: Revisiting Third Generation Gangs, 7 GLOBAL CRIME 487 (Aug.-Nov. 2006) ...................................... 10, 15

Murders in El Salvador Spike to Record High for May, REUTERS (May 26, 2014) http://www.reuters.com/article/2014/05/27/us-elsavlador-violence-idUSBREA4Q00120140527 ................................. 16

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MS-13 National Gang Task Force, FED. BUREAU OF INVESTIGATION, https://www.fbi.gov/about-us/investigate/vc_majorthefts/gangs/gangs_ms13taskforce ..................................................... 12

No Place to Hide: Gang, State, and Clandestine Violence in El Salvador (Human Rights Program, Harv. L. Sch., 2007), http://www.wola.org/sites/default/ files/downloadable/Citizen%20Security/ past/Harvard_Gangs_NoPlaceToHide.pdf ............ 8

Press Release, U. S. Dep’t of Treasury, Treasury Sanctions Latin Am. Criminal Org., (Oct. 11, 2012), http://www.treasury.gov/press-center/press-releases/Pages/ tg1733.aspx ........... 10

Seth Adam Meinero, La Vida Loca Nationwide: Prosecuting Sureno Gangs Beyond Los Angeles, 26-35 United States Attys’ Bulletins, Gang Prosecutions 1 (2014), http://www.justice.gov/sites/default /files/usao/legacy/2014/06/03/usab6203.pdf. ........ 12

Sharing Intelligence To Fight Transnational Gangs, (Fed. Bureau of Investigation Aug. 11, 2009), https://www.fbi.gov/news/ stories/2009/august/gangs_081109 ...................... 12

Thomas Boerman, Central American Gangs: An Overview of the Phenomenon in Latin America and the U.S., 15 J. OF GANG RES. 35-52 (2007) ........................................................... 8

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Three Alleged MS-13 Members Charged in Violent Racketeering Conspiracy, U.S. ATTY’S OFF., DEP’T OF JUST. (Jul. 6, 2015), http://www.justice.gov/usao-md/pr/three-alleged-ms-13-members-charged-violent-racketeering-conspiracy ....................................... 11

Tim Johnson, 2 Street Gangs Divide Up El Salvador’s Capital, Bringing Chaos to All http://www.mcclatchydc.com/2014/7/07/232547/2-street-gangs-divide-up-el-salvadors.html ...................................................... 16

(1)

In The

No. 15-362

ELENILSON J. ORTIZ-FRANCO, Petitioner,

v. LORETTA E. LYNCH, ATTORNEY GENERAL,

Respondent. ____________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF EXPERTS IN COUNTRY

CONDITIONS IN El SALVADOR AS AMICI CURIAE IN SUPPORT OF PETITIONER

____________________________

INTERESTS OF AMICI CURIAE1 Amici Harry E. Vanden, Ph.D, Thomas Boerman, Ph.D., Elizabeth G. Kennedy, and the U.S. Jesuit Conference are scholars and experts regarding the country conditions in El Salvador, specifically regarding the history and activity of gangs in the

1 All parties have consented to the filing of this Brief. No counsel for a party authored this brief in whole or in part, and no person other than amici made a monetary contribution intended to fund the preparation or submission of this brief.

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region and the interactions between the gangs in El Salvador and the United States. Amici do not address the legal arguments regarding the jurisdictional issue in this case, but write to provide the Court with an understanding of the importance of federal court review of the facts underlying deferral of removal in cases such as the one brought by Petitioner. If the Second Circuit’s decision is left to stand, and there continues to be a Circuit split as to the reviewability of factual claims regarding deferral of removal under the Convention Against Torture, amici are concerned that deserving individuals will be denied relief based solely on incorrect factual determinations that currently go unreviewed in large parts of the United States.

Harry E. Vanden, Ph.D., is a professor in the Department of Government and International Affairs and Institute for the Study of Latin America and the Caribbean at the University of South Florida. He was co-chair of the Central American Section of the Latin American Studies Association twice and has published extensively on Central and Latin America. The holder of two Fulbrights for Latin America, he has published on gangs in Central America and has provided expert testimony on country conditions, including in El Salvador, more than 60 times.

Thomas J. Boerman, Ph.D., is an expert concerning the gang issue in Latin America. He has worked as a consultant to numerous governmental and non-governmental organizations addressing gangs in Latin America, including with the U.N. High Commissioner for Refugees, the U.S. Agency for

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International Development, The World Bank, Save the Children—United Kingdom, and many development organizations. He has authored or contributed to numerous reports and articles on gangs in general and in Central America in particular, and has served as an expert and provided testimony in over 200 court proceedings.

Elizabeth G. Kennedy, Ph.D. candidate, San Diego State University and the University of California, Santa Barbara, MSc. University of Oxford, held a Fulbright Fellowship in El Salvador from 2013 to 2014, where she interviewed over 700 children and families about why they were leaving. She has provided expert testimony in more than 50 Central American asylum seekers’ cases in Canada, Sweden, the United Kingdom and the United States and has been invited to speak as an expert on gangs and country conditions by United States and Salvadoran government agencies. She has published frequently in academic and popular presses. She has also served as a consultant for the United Nations High Commissioner for Refugees and the Open Society Foundation

The United States Jesuit Conference represents the United States branch of the largest Roman Catholic order of priests and brothers in the world. The Jesuits of the United States work in partnership with Central American Jesuit ministries and academic institutions to promote peace, stability, justice, respect for human rights and the rule of law. The Jesuits have a centuries-long history in Central America, including El Salvador, and have dedicated their academic, pastoral, and social institutions to

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the defense of the rights of excluded and marginalized groups.

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner Elenilson J. Ortiz-Franco, a national of El Salvador, seeks to overturn the Second Circuit’s ruling that 8 U.S.C. § 1252(a)(2)(C) divests jurisdiction from the courts of appeals to review factual claims challenging the denial of deferral of removal under the Convention Against Torture (“CAT”), United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 85. Petitioner provided federal prosecutors in New York with evidence against the Salvadoran gang known as Mara Salvatrucha (“MS-13”) and sought relief based on the fear that he would be killed by MS-13 if he were returned to El Salvador. The Immigration Court found that Petitioner had not met his burden to show that MS-13 gang members in El Salvador would subject him to torture due to his anti-gang activities in the United States, and that in any event the Salvadoran government would not acquiesce in that torture. For that reason, the Immigration Court denied him relief under the CAT. After the Board of Immigration Appeals affirmed the decision, the Second Circuit held that it was jurisdictionally precluded from reviewing those factual determinations due to Petitioner’s criminal convictions.

It is vitally important that this Court review the question of the court of appeals’ jurisdiction to review

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the factual findings of the Immigration Court. In amici’s judgment from participation in hundreds of court proceedings, the erroneous findings here are emblematic of a failure of immigration courts to grapple with the precarious position of individuals who have provided evidence against the gangs. Despite the heightened risk of harm they face if returned to El Salvador, those who provide evidence against gangs are also more likely to have criminal convictions that make them unable to access judicial review under the Second Circuit’s decision. Without the prospect of judicial review, the errors amici describe here will only proliferate, with devastating consequences for individuals who risked their lives and their safety to assist the government in prosecuting criminal gangs.

The two errors the Immigration Court committed here are typical of the kinds of factual errors for which judicial review is necessary. First, the Immigration Court erred in determining that Petitioner failed to establish the requisite likelihood of torture if he were returned to El Salvador. The conditions in El Salvador regarding the pervasive gang activity coupled with Petitioner’s involvement with and testimony against MS-13 directly contradict the Immigration Court’s factual findings and support deferral of Petitioner’s removal. El Salvador’s two largest gangs, the 18th Street gang (“M 18”) and MS-13, have evolved from loosely affiliated “cliques” of street gangs in the 1990s into more organized groups threatening the security and well-being of vast numbers of Salvadorans. The MS-13 and M 18 gangs have developed extensive networks of contacts with

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other cliques throughout El Salvador, one of the most densely populated countries in the hemisphere, as well as ties with cliques in Honduras, Guatemala and the United States. Indeed, MS-13 has been classified as a transnational criminal organization by the United States Department of Treasury. Those who provide evidence against the gangs, such as Petitioner, are particularly vulnerable to retribution and have little recourse.

Second, the Immigration Court wrongly determined that the Salvadoran government would protect Petitioner from such torture upon his return to El Salvador. The national government has been ineffective at restricting gang activity. Violent crime, including extortion and death threats, is ubiquitous. El Salvador has one of the highest homicide rates in the world—and the United States State Department has issued travel warnings regarding the pervasive gang violence in El Salvador. Police resources are scarce and the police are largely overwhelmed, with few effective strategies to control or challenge gang activity. While the police have attempted in the past to take a mano dura (hard line) policy to attempt to detain anyone involved in gang-related activity, the results have led only to gang growth that exceeded previous levels. The police frequently acquiesce to the conduct of the gangs. Many suspect that, at local levels, there are police officers who are often complicit with gang-related crimes. Further, persons in the government’s witness protection program—which protects only those involved in domestic cases—have been murdered. Because the country is so small, and gang activity so widespread, nowhere in

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the country is considered safe for those who are targeted for retribution.

The gang conditions in El Salvador make it vitally important that Petitioner’s removal be deferred under the CAT so that he may avoid torture for his anti-gang activity in the United States. The Second Circuit’s refusal to review the factual errors on which the Immigration Court’s denial of deferral rested means that Petitioner, and others like him in the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits, will have no opportunity to demonstrate to a court of appeals that the Immigration Court’s determination cannot be squared with the evidence regarding country conditions in El Salvador. Based on amici’s depth of experience in El Salvador and immigration proceedings, they fear that a great many deserving claims will be denied without the prospect of judicial review.

ARGUMENT I. THE IMMIGRATION COURT’S

INCORRECT CONCLUSION THAT PETITIONER WAS UNLIKELY TO FACE TORTURE IN EL SALVADOR REQUIRES JUDICIAL REVIEW.

The Immigration Court’s factual findings in Petitioner’s case were patently incorrect, as the pervasive connections between gangs in the United States and El Salvador make it likely that Petitioner will face torture in El Salvador for his anti-gang activity testifying in the United States. In amici’s

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view, the evidence of these pervasive connections is overwhelming. Unfortunately, however, the Immigration Court’s failure to give appropriate weight to this evidence is not uncommon, and judicial review is necessary to ensure that individuals with valid CAT claims are not consigned to removal to countries where they are likely to be tortured.

1. The dramatic rise of gang culture in El Salvador and much of Central America began in the 1990s as large numbers of youth and their family members were deported from the United States.2 Many of those deported had ties to gangs in the United States, especially the gangs known as M 18 and MS-13, both of which originated in Los Angeles.3

Seasoned gang members and high risk youth were deported to El Salvador with no regional governmental or NGO support structure in place, living in the shadows, under the government’s radar.4 At the same time, as protracted regional conflicts and wars were coming to an end, many demobilized guerrillas and former military personnel turned to crime; some became involved with the gang structures that were emerging in connection with the arrival of these deported individuals.5 The emerging

2 No Place to Hide: Gang, State, and Clandestine Violence in El Salvador (Human Rights Program, Harv. L. Sch., 2007), http://www.wola.org/sites/default/files/downloadable/ Citizen%20Security/past/Harvard_Gangs_NoPlaceToHide.pdf.

3 Id. 4 Thomas Boerman, Central American Gangs: An Overview

of the Phenomenon in Latin America and the U.S., 15 J. OF GANG RES. 35-52 (2007).

5 Id.

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gangs sometimes used the weapons and tactics of these former combatants to establish their criminal organizations and extend their reach.6 Indeed, gang cliques have developed connections to drug, weapon and human traffickers, as well as other criminal organizations.7

MS-13 and M 18 are prevalent throughout the country and exercise influence in many Salvadoran communities. Numbering in the tens of thousands, these gangs are one of the main contributors to the region’s high rates of crime and violence.8 In fact, the State Department has recognized El Salvador as “one of the most violent countries in the world,” with

6 Id. 7 El Salvador 2015 Crime & Safety Report 1 (U.S. Dep’t of

State, Bureau of Diplomatic Sec., May 20, 2015), 1, https://www.osac.gov/pages/ContentReportPDF.aspx?cid=17691 [hereinafter “Crime & Safety Report”]; see also Edgardo Ayala, El Salvador’s New Government to Inherit Hot Potato of Gang Truce, INTER PRESS SERV. (May 10, 2014), http://www.ipsnews.net/2014/05/el-salvadors-new-government-inherit-hot-potato-gang-truce/.

8 See Clare Ribando Seelke, Gangs in Central America 3 (Cong. Research Serv., 2014), http://fas.org/sgp/crs/ row/RL34112.pdf (noting that El Salvador has the highest concentration of gang members in Central America, with some 323 gang members for every 100,000 citizens); Central Am. and Mexico Gang Assessment 45 (U.S. Agency for Int’l Dev., Bureau for Latin Am. & the Caribbean, 2006), http://www.uscrirefugees.org/2010Website/5_Resources/ 5_3_For_Service_Providers/5_3_9_Gangs/USAID.pdf [hereinafter “USAID, Gang Assessment”] (noting that the government’s National Council on Public Security calculated upwards of 39,000 gang members in 2006).

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nowhere considered “safe.”9 Further, MS-13 has been classified as a transnational criminal organization by the Department of Treasury.10

The Salvadoran gangs operate through fear and reprisal. Those who fail to submit to their requests and demands are subject to immediate and harsh persecution, torture, and even assassination.11 Further, residents who fail to pay extortion “taxes” to the gangs can be threatened, killed, or tortured.12

9 Crime & Safety Report at 1 (“There are few if any areas

immune from violent crime.”); see also El Salvador Travel Warning 1 (U.S. Dep’t of State, Bureau of Consular Affairs, June 22, 2015), http://travel.state.gov/content/passports/en/ alertswarnings/el-salvador-travel-warning.html (warning “crime and violence levels in El Salvador remain high” and that the El Salvador police forces “lacks sufficient resources to properly investigate and prosecute cases and to deter violent crime”).

10 Press Release, U. S. Dep’t of Treasury, Treasury Sanctions Latin Am. Criminal Org., (Oct. 11, 2012), http://www.treasury.gov/press-center/press-releases/Pages/ tg1733.aspx; see also Crime & Safety Report, supra note 7, at 1 (“The threat from transnational criminal organizations is prevalent throughout Central America. . . . Recognizing the threat posed by MS-13, the Department of Treasury’s Office of Foreign Assets Control (OFAC) designated the MS-13 a Transnational Criminal Organization (TCO) in their list of Specially Designated Nationals.”).

11 See Crime & Safety Report, supra note 7, at 6 (“The kidnapping, torture and murder of rival gang members is extremely common.”); John Sullivan, Maras Morphing: Revisiting Third Generation Gangs, 7 GLOBAL CRIME 487, 494-495 (Aug.-Nov. 2006) (noting MS-13 rules entire municipalities in El Salvador, “demanding certain behavior from … citizens, and sanctioning those who do not obey”).

12 D. Farah, Central American Gangs: Changing Nature and New Partners, 66 J. INT’L AFF. 53, 60 (Fall/Winter 2012)

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Robberies, home invasions, killings and extortions occur throughout the country.13 Gangs in El Salvador are associated not only with homicides but also with disappearances. Families of gang members face the same risks of gang activity as the gang members themselves, including death or kidnapping.14

2. The widespread gang violence and coordination between national leaders and local cliques are dire for those who oppose the gangs.15 The sophistication of MS-13’s structure enables cliques in the United States to communicate gang-related directives from El Salvador for execution in the United States and vice-versa.16 United States-

(noting that in 2010 members of MS-13 attacked two crowded buses, including spraying them with automatic weapons, after bus drivers resisted gang “taxes”).

13 Crime & Safety Report, supra note 7, at 1. 14 Id. at 6 (“The kidnapping, torture, and murder of rival

gang members is extrecrime & samely common.”). 15 A. Grayner, Escaping Forced Gang Recruitment:

Establishing Eligibility for Asylum After Matter of S-E-G, 63 HASTINGS L. J. 1417, 1423 (June 2012) (“The increasingly sophisticated nature of gang networks renders it nearly impossible for a target of gang violence to escape within the country or region.”); H. Vanden, Maras, Contragoverned Space, and Sovereignty, in US NAT’L SEC. CONCERNS IN LATIN AM. AND THE CARIBBEAN 81 (Gary Prevost, Harry E. Vanden, Carlos Oliva Campos, & Luis Fernando Ayerbe eds., 2014) (“Without the necessary economic and social changes, it is unlikely that the maras are going to disappear, and their work with the cartels is institutionalizing them into transnational criminal networks that are stronger every day.”).

16 See Three Alleged MS-13 Members Charged in Violent Racketeering Conspiracy, U.S. ATTY’S OFF., DEP’T OF JUST. (Jul.

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based cliques often work together, and these local cliques may have “frequent contact” with MS-13 leadership in El Salvador.17 The gangs often have seamless connections from El Salvador to the United States, and this has only worsened as MS-13 has continued to recruit new members and strengthen its international branches.18

For example, the Federal Bureau of Investigation has noted that MS-13 continues to expand its influence in the United States, prompting the FBI to form the MS-13 National Gang Task Force in December 2014.19 Further, in Long Island, where

6, 2015), http://www.justice.gov/usao-md/pr/three-alleged-ms-13-members-charged-violent-racketeering-conspiracy (detailing the indictment of three MS-13 members who attempted to “kill a person who had fled from El Salvador to Frederick, Maryland to escape an order to kill by MS-13 in El Salvador.”).

17 See 3 MS-13 Leaders Sentenced to Decades in Prison for Racketeering, Violent Crimes, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, NEWS RELEASES (Jun. 23, 2015) (summarizing the recent trial of many MS-13 members in a racketeering trial based in Washington, D.C.), https://www.ice.gov/news/releases/3-ms-13-leaders-sentenced-decades-prison-racketeering-violent-crimes.

18 See Sharing Intelligence To Fight Transnational Gangs, (Fed. Bureau of Investigation Aug. 11, 2009), https://www.fbi.gov/news/stories/2009/august/gangs_081109 (“’These gangs are transnational, and right now they pretty much cross our borders for criminal activity at will.’”).

19 MS-13 National Gang Task Force, FED. BUREAU OF INVESTIGATION https://www.fbi.gov/about-us/investigate/ vc_majorthefts/gangs/gangs_ms13taskforce (“FBI investigations reveal that [MS-13] is present in almost every state and continues to grow its membership, now targeting younger recruits more than ever before.”).

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the Petitioner became involved in MS-13, some cliques have become so well-established that they have created corresponding arms of the Long Island cliques in El Salvador.20 The transnational connection of these cliques means a witness who provides evidence in the United States against members of MS-13 may face serious reprisals from local clique members in El Salvador once it is known, or even suspected, that he is cooperating with law enforcement authorities.21

The Immigration Court’s decision failed to heed these realities, and the unavailability of judicial review leaves the Petitioner and others who cooperate with law enforcement anti-gang activities in the United States with no effective redress for valid CAT claims.

20 Seth Adam Meinero, La Vida Loca Nationwide:

Prosecuting Sureno Gangs Beyond Los Angeles, 26-35 United States Attys’ Bulletins, Gang Prosecutions 1, 29 (2014), http://www.justice.gov/sites/default/files/usao/legacy/2014/06/03/usab6203.pdf.; see also Hector Silva, What 2 MS-13 Leaders Have in Common: Active Gangs in the US, INSIGHTCRIME, http://www.insightcrime.org/news-analysis/what-ms-13-leaders-have-in-common-active-gangs-in-the-us (describing multiple examples of MS-13 violence in the United States and connections between cliques in United States and El Salvador).

21 Id.

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II. JUDICIAL REVIEW IS NEEDED TO CORRECT THE IMMIGRATION COURT’S ERRONEOUS FINDING THAT SALVADORAN GOVERNMENT OFFICIALS WOULD PROTECT PETITIONER FROM GANG-RELATED VIOLENCE.

The Immigration Court committed a second fundamental factual error in concluding that the Salvadoran government would not acquiesce in Petitioner’s torture. Judicial review would confirm that official corruption and ties with the gangs pervade the Salvadoran government, leaving individuals like Petitioner without protection from the Salvadoran government.

Indeed, the pernicious effect of official corruption marginalizes any efforts to combat the gangs and leaves the government to largely acquiesce in the gang activity.22 Police resources are scarce, and there are notorious cases of police officers colluding with gangs.23 To date, the government has not effectively responded to the gang violence.24 Public officials are frequently intimidated by gang

22 See Jeffrey D. Corsetti, Marked for Death: The Maras of Central American and Those Who Flee Their Wrath, 20 GEO. IMMIGRATION LAW J. 407 (2006).

23 Jaime Lopez et al., How Gangs Have Become a Trojan Horse in El Salvador’s Security Forces (Part 2), GLOBAL VOICES, http://globalvoicesonline.org/2014/05/15/how-gangs-have-become-a-trojan-horse-in-el-salvadors-security-forces-part-2/.

24 See USAID, Gang Assessment, supra note 8, at 51 (“Gangs in [El Salvador and Central America] are able to access weapons, conduct illegal activities, and dominate territories in part because some state functionaries are corrupt.”).

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members and the police often do not respond to gang violence, initiate an investigation or facilitate prosecution.25 The numbers of young people who are involved with MS-13 and M 18 often outstrip the forces available to the government.26 Further, efforts to combat gangs are stymied by failures to protect witnesses and victims, making it difficult to report gang activity.27

Notably, the Salvadoran government itself treats the gangs as actors who exercise power at the community level. Observers report that, over the years, leaders of all of the different political parties have been known to negotiate with gang leaders, offering support for favorable laws or selective law enforcement in exchange for votes in gang-controlled

25 See El Salvador 2012 Human Rights Report 5 (U.S. Dep’t

of State, 2012), http://www.state.gov/documents/organization/ 204661.pdf (“[I]nstances of corruption and criminality [among others, have] limited the [National Civil Police’s] effectiveness.”); see also id. at 7 (“Intimidation and killing of police officers, crime victims, and witnesses created a climate of fear, complicating investigation of violent crime and other alleged human rights abuses.”); El Salvador 2014 Human Rights Report 1 (U.S. Dep’t of State, 2014), http://www.state.gov/documents/organization/ 236900.pdf (“The principal human rights problems were widespread corruption; weaknesses in the judiciary and the security forces that contributed to a high level of impunity; and abuse ….”).

26 See J. Blake, Gang and Cartel Violence: A Reason to Grant Political Asylum from Mexico and Central America, 38 YALE J. INT’L LAW 31, 34 (2012) (“Even the lower estimate indicates that there are more gang members than military personnel in [Central America].”).

27 See Sullivan, supra note 11, at 494-95.

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territories.28 In addition, the government facilitated a truce between MS-13 and M 18 in 2012, which senior government officials thought would likely lead to increased stability and safety.29 But the truce merely “gave the gangs breathing room to grow even stronger.”30 And by 2014 that truce had largely unraveled, leading to a surge of recruitment and violence.31

In fact, the gangs have divided many parts of El Salvador’s capital city (San Salvador) into districts, and individuals risk attack and murder by crossing into rival districts.32 In some areas of El Salvador, the control of specific cliques is so complete that police obtain permission to enter the neighborhood or will not enter at all.33 Gangs function as the primary

28 Farah, supra note 12, at 63. 29 Id. at 54. 30 Even Stronger: Truce Between El Salvador Gangs Has

Unintended Consequence, FOXNEWSLATINO (September 7, 2014), http://latino.foxnews.com/latino/news/2014/09/07/even-stronger-truce-between-el-salvador-gangs-has-unintended-consequence.

31 El Salvador: Gang Truce Fails to Ease Violence, Officials Say, N.Y. TIMES (April 7, 2014), http://www.nytimes.com/ 2014/04/08/world/americas/el-salvador-gang-truce-fails-to-ease-violence-officials-say.html?_r=0; see also Murders in El Salvador Spike to Record High for May, REUTERS (May 26, 2014), http://www.reuters.com/article/2014/05/27/us-elsavlador-violence-idUSBREA4Q00120140527 (noting homicide rate has increased while truce has broken down).

32 Tim Johnson, 2 Street Gangs Divide Up El Salvador’s Capital, Bringing Chaos to All, MCCLATCHY DC (July 7, 2014), http://www.mcclatchydc.com/2014/7/07/232547/2-street-gangs-divide-up-el-salvadors.html.

33 Grayner, supra note 15 at 1422-23.

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authorities in many areas, instituting curfews, controlling egress and entrance, implementing a system of parallel “taxation” from business owners and targeting residents and business owners who refuse to cooperate, with government authorities acquiescing to the gang activity in these zones, failing to protect the residents.34

The existence of this pervasive gang control and official corruption was wrongly discounted by the Immigration Court. The systematic failures of the immigration courts to grapple with the true nature of country conditions in El Salvador leaves individuals like Petitioner without any redress absent the ability to access the courts to review erroneous factual determinations like these.

34 See Blake, supra note 26 at 37 (noting some powerful

gang cliques in Central America, including El Salvador, “have de facto control over a significant amount of territory and directly influence state and government officials, competing with them for control of the state”).

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*** The pervasive gang conditions in El Salvador

and the gangs’ effective control of territory provide ample reason to find that Petitioner would likely face torture with the acquiescence of the Salvadoran government if returned. The Second Circuit’s conclusion that it lacked the power to review the Immigration Court’s contrary—and flatly wrong—finding increases the likelihood that the United States will regularly remove cooperating individuals to countries where they likely face torture.

CONCLUSION For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

Hyland Hunt Patrick G. O’Brien AKIN GUMP STRAUSS Counsel of Record HAUER & FELD LLP Scott T. Williams Brennan H. Meier AKIN GUMP STRAUSS HAUER & FELD LLP

October 23, 2015