Letter Brief of [Client] A# []

LOWENSTEIN SANDLER LLP 1251 Avenue of the Americas New York, NY 10020 October, 2017 VIA HAND DELIVERY United States Department of Homeland Security Bureau of Citizenship & Immigration Services, Asylum Office 1200 Wall Street West, 4th Floor Lyndhurst, New Jersey 07071 Re: [Client Name; Client A#] Pre-Interview Submission in Support of Asylum Receipt # ***Unaccompanied Alien Child*** Dear Asylum Officer: This firm is pro bono counsel for seventeen-year-old in his petition for asylum. From when he was a young boy and continuing until he left El Salvador at sixteen years old, [Client] endured public humiliation, severe emotional and physical harm, and threats to his life from members of a subset of the Mara Salvatrucha 13 gang ( MS-13 ). [Client] suffered persecution because of his membership in the particular social group of perceived members of the lesbian, gay, bisexual, and transgender ( LGBT ) community in El Salvador. The government of El Salvador was either unwilling or unable to protect [Client] from this persecution. We respectfully submit that [Client] s petition should be granted based on the past persecution he endured in the form of persistent physical and psychological harm as well as threats of harm from members of MS-13, or independently, based on [Client] s well-founded fear of future persecution by MS-13 if he were to return to El Salvador. [Client] genuinely fears that if he returns to El Salvador he will be seriously harmed or killed as MS-13 gang members have made death threats against him. Gang violence against LGBT minorities remains prevalent in El Salvador, and the government has been powerless or unwilling to stop this persecution. Relocation for [Client] is neither safe nor reasonable. If [Client] does not receive asylum in the United States, he will have to return to the dangerous conditions he endured in El Salvador and will be subject to future persecution. [Client] s petition should also be granted on humanitarian grounds, because he can show compelling reasons, arising out of past severe persecution, for being unable or unwilling to return to El Salvador, and there is a reasonable likelihood that he would suffer future harm if

he were to return. Finally, [Client], as a young person and in light of the totality of circumstances, deserves a favorable exercise of discretion. I. Statement of Facts ********** BACKGROUND A. MS-13 s Persecution of [Client] Based on Their Belief That He Was Gay ********** B. [Client] s Escape from the Persecution of MS-13 ********** II. Country Conditions in El Salvador El Salvador a country with a population of approximately 6.2 million people 1 continues to be plagued, as it has been for years, by the violence of its criminal gangs and the corruption of its law enforcement officials. In this lawless environment, adolescents such as [Client] are left to fend for themselves without protection from the many dangers they face, especially from the threats and violence perpetrated by gangs like MS-13. A. Gang Violence Is Rampant in El Salvador, Especially Towards Adolescents As explained in detail in the accompanying declaration of Professor Harry E. Vanden, an expert on gang activity and persecution in El Salvador, that country is one of the most dangerous places in the world. (Vanden Decl. 10.) El Salvador s high levels of violence and brutality, in particular against young people, are well documented. 2 In 2016, the U.S. State Department reported that violence against young people was a serious and widespread problem in El Salvador. 3 The Salvadoran Ministry of Education reported that 39,000 students 1 Cent. Intelligence Agency, The World Factbook: People and Society El Salvador (last updated July 2017) (Tab 4), https://www.cia.gov/library/publications/the-world-factbook/geos/es html. 2 See, e.g., U.S. Dep t of State, El Salvador 2016 Human Rights Report, at 24 26, 33 (last updated Apr. 12, 2017) (Tab 5), https://www.state.gov/documents/organization/265798.pdf [hereinafter 2016 Human Rights Report ] (detailing the various human rights issues facing children in El Salvador, including abuse, displacement, sexual exploitation, abduction, forced marriage, and forced labor). 3 Id. at 24. 2

left school in 2015 due to harassment or threats by gangs. 4 Indeed, among young people s primary motivations to emigrate from El Salvador is a fear of violence. 5 El Salvador has long been recognized by the United Nations as one of the deadliest countries on Earth that is not an active war zone. 6 (Vanden Decl. 9 13.) Since its civil war in the 1980s and 1990s, El Salvador remains deeply fractured, and the level of gang activity and violence has increased substantially in recent years, reaching epidemic proportions. (Id. 9, 10.) In particular, MS-13 has become larger, stronger, more organized, and even more violent. (Id. 10) A clear majority of homicides are committed by gangs, and the murder rate has steadily increased as the gangs have tightened their hold. (Id. 11.) Despite repeated efforts by the Salvadoran government to rein in the gangs, the government has been incapable of controlling gang activity. (Id. 14 21.) In fact, the gangs have directly challenged the power of the government, evidenced by their ability to halt specific public services. (Id. 14.) Local police and judicial authorities have not been effective in apprehending, charging, or prosecuting gang members for violent crimes. (Id. 17.) Far too often, the police do not even respond to reports of gang violence, nor can they be counted on to investigate or prosecute crimes after they are committed largely due to inadequate government funding, lack of training, corruption, poor pay, and the absence of even a uniform code of evidence. (Id. 16 17, 19.) On top of that, police officers, crime victims, and witnesses are often intimidated into silence or killed, creating a climate of fear around investigation of violent crimes. (Id. 16, 19.) B. Salvadoran Gangs Target Actual and Perceived Members of the LGBT Community El Salvador remains a socially hostile country to actual and perceived members of the LGBT community. Despite government efforts to curb discrimination based on sexual orientation and gender identity 7, and despite the legalization of homosexuality (Vanden Decl. 23), El Salvador does not recognize same-sex marriage, civil unions, or any other legal status for same-sex couples. 8 And the country has taken steps to bar gay and lesbian couples from 4 Amnesty Int l, Central America Turns Its Back on Hundreds of Thousands Fleeing War-Like Violence (Oct. 14, 2016) (Tab 6), https://www.amnesty.org/en/latest/news/2016/10/central-america-turns-its-back-on-hundreds-ofthousands-fleeing-war-like-violence/. 5 2016 Human Rights Report, supra note 3, at 25. 6 Amnesty Int l, supra note 5. 7 Int l Human Rights Law Clinic, Univ. of Calif., Berkeley, Sch. of Law, Sexual Diversity in El Salvador: A Report on the Human Rights Situation of the LGBT Community 1 (2012) (Tab 7), https://www.law.berkeley.edu/files/ihrlc/lgbt_report_english_final_120705.pdf. 8 See LGBTQ Nation, El Salvador Approves Measures Banning Same-Sex Marriage, Gay Couple Adoption (Apr. 17, 2015) (Tab 8), https://www.lgbtqnation.com/2015/04/el-salvador-approves-measures-banning-same-sex- 3

adopting children. 9 In fact, only about 11% of Salvadorans support government recognition of same-sex marriage, some of the lowest support across Latin America. 10 Much like the rest of Latin America, El Salvador still has a very socially conservative and traditional society. (Vanden Decl. 22.) The concept of machismo governs the behavior of both men and women, and behavior that falls outside of traditional gender roles is not publicly accepted. (Id.) Any activity that is seen as gay or lesbian is not tolerated and can be negatively sanctioned by private individuals, businesses, and public authorities. (Id. 23.) Such reactions can range from job discrimination and public harassment to ridicule or indifference on the part of police to brutal beatings, rape, and extra-judicial killings by gangs and rogue police officers. (Id.) All of this makes El Salvador an especially deadly place for members of the LGBT community in general and homosexual men in particular. (Id. 24.) Because the commission of anti-gay crimes enjoys virtual impunity, as the police and judicial authorities have been unable and unwilling to apprehend the perpetrators, it is not uncommon for victims of LGBT abuse to fail to report the crimes committed against them or to shun government services. (Id. 25-32 (detailing systemic violence against the LGBT community by both ordinary citizens and the police).) The Salvadoran government is generally unwilling and unable to control gangs like MS- 13, which attack sexual minorities, due to inadequate support, apathy toward, and even sympathy with such crimes. 11 (Vanden Decl. 14 21, 25 32.) Gangs therefore enjoy widespread latitude to torture, rape, and murder LGBT individuals without any realistic risk of punishment. (Id. 25 32.) They target men who are transgender or gay, or who adopt a feminine appearance. (Id. 22 32.) These vulnerable individuals find little to no protection from the police. Year after year, human rights NGOs report that the Salvadoran police themselves engage in violence against the LGBT community. (Id. 23 31.) Indeed, one LGBT organization in El Salvador tracked 600 murders of community members between 1993 and the beginning of 2016, identifying government security forces and gangs [as] the primary perpetrators. (Id. 30 12.) LGBT individuals who have been attacked or threatened by gangs in the past are especially vulnerable, as there is a consistent tendency among gangs to complete unfinished business and not to let anyone escape their authority or retribution. (Id. 33.) marriage-gay-couple-adoption/ (describing the Legislature s approval of a constitutional amendment to bar gay adoption as well as a bill banning same-sex marriage). 9 Id. 10 Pew Res. Ctr., Social Attitudes on Moral Issues in Latin America, ch. 5 (Nov. 13, 2014) (Tab 9), http://www.pewforum.org/2014/11/13/chapter-5-social-attitudes/. 11 OSAC, U.S. Dep t of State, El Salvador 2017 Crime and Safety Report (Mar. 22, 2017) (Tab 10), https://www.osac.gov/pages/contentreportdetails.aspx?cid=21308 ( The police are often hampered by inadequate funding and limited resources, and as a result of perceived corruption, they do not enjoy the full confidence and cooperation of citizens. ). 12 Quoting Sam Tabory, Police, Gangs Major Perpetrators of LGBT Violence in El Salvador, InSight Crime, Apr. 26, 2016 (Tab 11), http://www.insightcrime.org/news-briefs/police-gangs-major-perpetrators-of-lgbt-violence-elsalvador-activist. 4

LEGAL ANALYSIS I. [Client] Qualifies as a Refugee Under Section 208 of the Immigration and Naturalization Act ( INA ), the Secretary of Homeland Security and the Attorney General have the discretion to grant asylum to a removable alien who is deemed a refugee. 13 The INA defines a refugee as any person who is outside any country of such person s nationality... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of... membership in a particular social group.... 14 To be eligible for asylum, an applicant must prove he has either suffered past persecution or has a well-founded fear of future persecution. 15 [Client] qualifies for asylum because he has suffered persecution from MS-13 on account of his membership in the particular social group of perceived members of the LGBT community. [Client] also qualifies for asylum because he has a well-founded fear that the gang will persecute him in the future if he is returned to El Salvador. Because MS-13 thought he was gay, [Client] was beaten, harassed, and threatened with death throughout most of his life in El Salvador. During his childhood and adolescence, he lived in constant fear of being beaten, raped, or murdered until he finally escaped El Salvador for the United States. [Client] continues to feel intense fear that he would be harmed or killed if returned to El Salvador, and his fear is entirely reasonable in light of what MS-13 has done to him and to other young people in his community who are either gay or are perceived to be gay. ([Client] Aff. 6 21; Vanden Decl. 36.) [Client] has an intense and well-founded fear that he would suffer even greater harm or death if he were returned to El Salvador. ([Client] Aff. 23; Vanden Decl. 37.) The Salvadoran government is clearly unable or unwilling to protect [Client] from the threats of MS-13. (Vanden Decl. 32, 38.) El Salvador has not experienced any fundamental change in society or government since [Client] left that could lessen his well-founded fear of future persecution, and there is no basis to believe he could avoid that persecution by returning to a different part of El Salvador, as MS-13 maintains a presence across the entire country. (Vanden Decl. 34 35.) [Client] is not subject to any bars to asylum, and his case warrants a favorable exercise of discretion. 16 13 8 U.S.C. 1158(b)(1)(A); see also 8 U.S.C. 1101(a)(42)(A); Santos v. Att y Gen., 552 F. App x 197, 200 (3d Cir. 2014). 14 8 U.S.C. 1101(a)(42)(A) (listing membership in a particular social group among four other qualifying categories of reasons for persecution). 15 8 C.F.R. 208.13(b) ( The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. ). 16 See 8 U.S.C. 1101(a)(42)(A); 8 C.F.R. 208.13(b) (c). 5

A. As a Minor Principal Asylum Applicant, [Client] Warrants Special Consideration As a minor who is seventeen years old, [Client] is entitled to special considerations afforded by the Asylum Office when reviewing the petitions of minor, non-derivative asylum applicants. 17 The United Nations Office of the High Commissioner for Refugees ( UNHCR ) has issued guidelines that recognize that minors manifest fear in ways different from adults due to their earlier stage of development, limited knowledge of the conditions of their country of origin, and special vulnerability. 18 Also, the United States Citizenship and Immigration Services ( USCIS ), in its training course for Asylum Officers, notes that there may be inconsistencies or gaps in a minor s testimony and that Asylum Officers should take into account the minor s age and stage of development at the time of the persecution when reviewing the minor s testimony. 19 This course also explains that Asylum Officers should consider the minor s gender, cultural background, [and] other circumstances when making determinations. 20 B. [Client] Suffered Past Persecution Persecution is either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. 21 It extends to the infliction of 17 See USCIS Asylum Div., Guidelines for Children s Asylum Claims, 12 13 (Mar. 21, 2009), https://www.uscis.gov/sites/default/files/uscis/humanitarian/refugees%20%26%20asylum/asylum/aobtc%2 0Lesson29_Guide_Children%27s_Asylum_Claims.pdf [hereinafter AOBTC Guidelines ] ( The needs of child asylum seekers are best understood if the applicant is regarded as a child first and an asylum-seeker second. ); Memorandum from Jeff Weiss, Acting Director, Off. of Int l Affairs, Immigration and Naturalization Service, to Asylum Officers, et al. (Dec. 10, 1998), https://www.uscis.gov/sites/default/files/uscis/laws%20and%20regulations/memoranda/ancient%20history/c hildrensguidelines121098.pdf (titled Guidelines For Children s Asylum Claims) ( Because of the unique vulnerability and circumstances of children, [INS] considers it appropriate to issue guidance relating to our youngest asylum seekers. ); see also 8 U.S.C. 1232(d)(8) ( Applications for asylum... in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children s cases. ). 18 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum 12 13 (Feb. 1997) (Tab 12), http://www.unhcr.org/en-us/publications/legal/3d4f91cf4/guidelines-policies-proceduresdealing-unaccompanied-children-seeking-asylum html. 19 AOBTC Guidelines, supra note 18, at 32 33. 20 Id. at 33. 21 In re Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), modified on other grounds by In re Mogharabi, 19 I. & N. Dec. 439 (BIA 1987). 6

psychological or emotional harm. 22 The harm, whether physical or psychological, must be particularized to the individual, rather than suffered by the general population. 23 Acts committed by private individuals constitute persecution if the government is unable or unwilling to control such acts. 24 Threats can also rise to the level of persecution if they are of a highly imminent and menacing nature so as to cause significant actual suffering or harm. 25 When determining whether persecution exists, Asylum Officers must look at events cumulatively 26 and take into account factors such as the victim s age and level of development at the time of the incidences of persecution. 27 The trauma MS-13 inflicted on [Client] in El Salvador constitutes past persecution. He experienced both physical and psychological harm, which was particularized to him. In In re X, the BIA found that the abuse an applicant from Guatemala suffered for being a homosexual female who identified as male which included being threatened, humiliated, sexually assaulted, and beaten by family members and the police rose to the level of persecution. 28 Like the applicant in that case, [Client] has suffered persecution: MS-13 gangsters repeatedly attacked him by, and. ([Client] Aff. 8 13, 16-18.) They publicly humiliated him by calling him derogatory names, taunting him in front of his peers, and making overtly homophobic statements about. (Id. 6, 8, 9, 10, 12, 13.) They committed these acts at his. (Id. 6, 8, 9, 10, 12, 13.) Physical abuse can constitute persecution when the suffering or harm amounts to more than mere harassment. 29 MS-13 did not merely 22 See Chang Hao Lin-Lin v. Att y Gen., 360 F. App x 392, 395 (3d Cir. 2010) ( [A] finding of past persecution might rest on a showing of psychological harm. ) (quoting Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006)). 23 See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005) ( [H]arm resulting from country-wide civil strife is not persecution on account of an enumerated statutory factor. ); In re N-M-A-, 22 I. & N. Dec. 312, 323 (BIA 1998) ( [T]he applicant has not adequately demonstrated that his situation is appreciably different from the dangers faced by all his countrymen. ) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1394 (9th Cir. 1985)). 24 See Khan v. Att y Gen., 691 F.3d 488, 496 (3d Cir. 2012) ( The source of the persecution must be the government or forces that the government is unwilling or unable to control. ) (quoting Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007)). 25 Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006) (quoting Li v. Att y Gen., 400 F.3d 157, 164 (3d Cir. 2005)). 26 See Radoniqi v. Att y Gen., 417 F. App x 210, 213 (3d Cir. 2011) ( [T]he cumulative effect of the applicant s experience must be taken into account because taking isolated incidents out of context may be misleading. ) (quoting Cheng v. Att y Gen., 623 F.3d 175, 192 (3d Cir. 2010)). 27 See Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (remanding for the Immigration Court to address the harms [that applicant] and his family incurred cumulatively and from the perspective of a small child and holding that age can be a critical factor in determining past persecution and a well-founded fear of future persecution). 28 In re X, at *2 (E.O.I.R. Mar. 29, 2010) (Tab 3). 29 See Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000). 7

harass [Client]; the constant attacks and threats were intended to inflict pain, instill fear, and make him suffer for his association with his friends and his imputed status as a young gay male. Threats alone may constitute persecution for purposes of determining refugee status under the INA. In the Third Circuit, a threat may be regarded as persecution, and specifically past persecution, if it meets two criteria. First, the threat must be highly imminent, concrete and menacing. 30 Second, it must be so menacing as to cause significant actual suffering or harm. 31 Both criteria are easily met here. MS-13 gangsters threatened to kill [Client] several times and extended the threat to his whole family shortly before he left El Salvador. ([Client] Aff. 12, 16, 17.) These threats carried conviction because they were consistent with the notorious tendency of gangs to punish the families of their primary targets. 32 Moreover, MS- 13 s rape of,, and murder of,, had clearly demonstrated to [Client] the seriousness and credibility of the gang s threats. ([Client] Aff. 14, 15.) The threats the gang directed against [Client] were not only menacing, but imminent and concrete. As to the second factor, MS-13 s threats have inflicted significant harm and suffering on [Client]. [Client] was seriously injured when he was attacked by numerous members of MS-13. Even before the attack, [Client] experienced severe mental torture every day. His fear kept him isolated from his peers and anxious each day that he would be attacked. Even after he fled to the United States, [Client] has heard that MS-13 members continue to ask for his whereabouts and threaten to harm him once he is found. (Id. 23.) [Client] knows that MS-13 kills people who resist its demands. He lives now in fear that, if he is made to return to El Salvador, he will be murdered himself. (Id.) These experiences would traumatize almost any adult, let alone an adolescent like [Client]. [Client] s age must be taken into account when evaluating the severity of the resulting harm as he perceived it. As stated in the AOBTC Guidelines for Children s Asylum Claims, the harm a child fears or has suffered may still qualify as persecution despite appearing to be relatively less than that necessary for an adult to establish persecution. This is because children... are prone to be more severely and potentially permanently affected by trauma than adults. 33 Especially when considered in light of [Client] s age at the time of the persecution (which began when he was around years old, if not earlier) ([Client] Aff. 6, 8), the harm and suffering caused by MS-13 s threats rise to the level of persecution. 30 Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006). 31 Id. at 518. 32 See, e.g., UNHCR Guidance Note on Refugee Claims Relating to Victims of Organized Gangs 17 (2010) (noting that family members of victims may also be routinely targeted by gangs ) (Tab 12), http://www refworld.org/docid/4bb21fa02 html. 33 AOBTC Guidelines, supra note 18, at 37. 8

C. [Client] Was Targeted for Persecution Because of His Membership in a Particular Social Group An applicant who has suffered persecution is eligible for asylum if he was persecuted on account of his membership in a particular social group. 34 His membership in a particular social group need not be the dominant or most important reason for his persecution, but only one central reason. 35 Also, the motivation of the persecutor may be established by direct or circumstantial evidence. 36 1. Perceived Members of the LGBT Community in El Salvador In order to claim membership in a particular social group, an applicant must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. 37 An immutable characteristic is one that the proposed members either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. 38 Under the standard set by the BIA, a group is defined with particularity when it is described by terms with discrete and definable boundaries that are commonly understood and accepted in society, and a group is socially distinct when it is perceived by society as a distinct group. 39 Both the BIA and the Third Circuit have stressed that the type of shared characteristic sufficient to define a particular social group is to be determined on a case-by-case basis. 40 The characteristic that links a group together may be 34 See 8 C.F.R. 208.13(b)(1); 8 U.S.C. 1101(a)(42)(A). 35 8 U.S.C. 1158(b)(1)(B)(i). See Ndayshimiye v. Att y Gen., 557 F.3d 124, 129 (3d Cir. 2009) ( [A]n applicant need only show that his or her persecution was caused at least in part by membership in a protected group. ); see also Ndayshimiye, 557 F.3d at 129 30 ( This plain language [of the INA] indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant. ). 36 INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). 37 In re M-E-V-G-, 26 I. & N. Dec. 227, 251 52 (BIA 2014). [Client] maintains that, under current Third Circuit precedent, he is not required to prove social distinction. In Valdiviezo-Galdamez v. Att y Gen., 663 F.3d 582, 607 (3d Cir. 2011), the Third Circuit rejected the need to prove social visibility, the analogous term used by the BIA prior to In re M-E-V-G-, and the court has not yet determined whether the BIA s recharacterization of social visibility as social distinction in M-E-V-G- satisfies the concerns on which its Valdiviezo-Galdamez holding was based. See Sazo-Godinez v. Att y Gen., 629 F. App x 271, 276 (3d Cir. 2015) (stating that we have not yet decided this question); Vaitkus v. Att y Gen., 655 F. App x 118, 122 (3d Cir. 2016) (declining to reach the issue). Nevertheless, even if [Client] is required to prove social distinction, the facts of his case show that his social group is socially distinct. 38 Acosta, 19 I. & N. Dec. at 233. 39 See M-E-V-G-, 26 I. & N. Dec. at 238 40; In re W-G-R-, 26 I. & N. Dec. 208 at 214 16 (BIA 2014). 40 Fatin v. INS, 12 F.3d 1233, 1239-40 (3d Cir. 1993) (quoting Acosta, 19 I. & N. Dec. at 233). 9

an innate one, such as sex... or kinship ties or a shared past experience such as former military leadership or land ownership. 41 Perceived members of the LGBT community in El Salvador is a cognizable social group, and [Client] was targeted for being a member of that group. In re Toboso-Alfonso established that identification as a homosexual could form a basis for asylum as a cognizable social group, 42 and the boundaries of this social group have since expanded to include other members of the LGBT community. 43 Furthermore, imputed sexual orientation can form the basis for membership in a particular social group. 44 Likewise, the UNHCR has noted, An applicant s sexual orientation can be relevant to a refugee claim where he or she fears persecutory harm on account of his or her actual or perceived sexual orientation, which does not, or is seen not to, conform to prevailing political, cultural[,] or social norms and that LGBT individuals may be subjected [by their communities] to physical, sexual[,] and verbal abuse and discrimination, because of... who they are perceived to be. 45 Moreover, this group satisfies the particularity and social distinction elements, 46 as perceived members of the LGBT community are marked by common, readily ascertainable attributes and identified using terms that are commonly understood and accepted in society. Such members are identifiable in their communities by outward behavior that is often stereotyped as being homosexual (e.g., effeminate behavior or speech pattern, refusal to engage in activities normally associated with boys, close association with other boys who are actually or are perceived to be gay, wearing stylish clothing or makeup, or lack of readily recognizable masculine attributes). 41 Id. 42 In re Toboso-Alfonso, 20 I. & N. Dec. 819, 822 23 (BIA 1990); see also Ferreira v. Att y Gen., 513 F. App x 184, 188 (3d Cir. 2013) ( As a threshold matter, the [BIA] correctly noted that [applicant s] sexual orientation can be the basis for a withholding of removal claim based on membership in a particular social group. ); Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007) (noting that the BIA has recognized explicitly that homosexuality qualifies as a particular social group ). 43 See, e.g., Hernandez-Montiel v. INS, 225 F.3d 1084, 1095 (9th Cir. 2000) (noting that gay men in Mexico with female sexual identities could qualify for membership in a particular social group ). 44 Amanfi v. Ashcroft, 328 F.3d 719, 724 (3d Cir. 2003) (remanding to the BIA in order to determine whether the evidence supported applicant s theory of persecution on account of imputed status as a homosexual); Pozos v. Gonzales, 141 F. App x 629, 631 n.1 (9th Cir. 2005) ( This court recently removed all doubt about whether the protected ground particular social group includes those perceived as homosexuals. In Karouni v. Gonzales [399 F.3d 1163, 1172 (9th Cir. 2005)], we held that all alien homosexuals are members of a particular social group within the meaning of the Immigration and Naturalization Act. ); see also Valdiviezo-Galdamez v. Att y Gen., 663 F.3d 582, 617 (3d Cir. 2011) (recognizing as a particular social group persons listed by the government as having the status of a homosexual, even if membership in such a group did not meet a visibility test); In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996) ( Persecution for imputed grounds... can satisfy the refugee definition. (citation omitted)). 45 UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity 3, 7 (Nov. 21, 2008) (emphases added), http://www.refworld.org/pdfid/48abd5660.pdf. 46 Although [Client] continues to maintain that he does not need to prove social distinction under Third Circuit precedent. See supra note 40. 10

[Client] associated with boys who were gay or considered to be effeminate. ([Client] Aff. 7, 8, 10, 12, 14, 15.) Members of MS-13 drew the conclusion that [Client] was also gay, as evidenced by the names they called him,, and and by their other taunts. (Id. 6, 8, 18.) The gang members also treated [Client] as gay when they threatened. (Id. 10.) This long history of targeting establishes [Client] as a member of the particular social group of perceived members of the LGBT Community in El Salvador. 47 The gangsters belief that [Client] was gay was a central factor in their persecution of him. 48 In Morett v. Gonzales, the Second Circuit, reversing the BIA s denial of asylum, found that sexual assault, intimidation, threats, and use of homophobic epithets against the applicant and his friends constituted substantial evidence of persecution on account of homosexuality. 49 In Maldonado v. Attorney General, the Third Circuit explained that even though the gay applicant did not claim that the individual physical assaults resulted in severe injuries or that he was ever detained [by the local, homophobic police] for more than twelve hours at a time, the police abuse he suffered, which occurred at least twenty times over a period of several years, rises to the level of persecution. 51 The Court relied on evidence that the applicant was attending events where other gay people were present as well as general evidence of the frequent targeting of gay people by the police to establish that the applicant was persecuted on account of his sexual orientation. 52 Similarly, the many incidents that [Client] experienced at the hands of gang members taken together demonstrate a nexus between [Client] s persecution and his perceived status as a young gay male. 47 See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (noting that an asylum applicant cannot be expected to provide direct proof of his persecutors motives but that he must provide some evidence of it, direct or circumstantial ). 48 Pozos, 141 F. App x at 631 ( Although other factors may have also played a role in the harm [abuser] inflicted on [applicant], [abuser] s actions were unquestionably motivated, at least in part, by [applicant] s perceived homosexuality. ). 49 Morett v. Gonzales, 190 F. App x 47, 48 (2d Cir. 2006). 50 See Avendano-Hernandez, 800 F.3d 1072, 1081 82 (9th Cir. 2015) (recognizing the inherent complexity of LGBT issues and that the use of homophobic slurs against a transgender woman that are usually used in reference to gay men, along with other harassment, must be considered in evaluating a transgender applicant s [asylum and withholding of removal claim] ). 51 Maldonado v. Att y Gen., 188 F. App x 101, 103 04 (3d Cir. 2006). 52 Id. at 104. 11

D. The Salvadoran Authorities Cannot or Will Not Protect [Client] from Persecution Asylum applicants must show their persecution was either caused by the government or that the government was unwilling or unable to protect them from a private actor. 53 The applicant need not have actually sought government protection and may prove this element through testimony and country conditions evidence. 54 Authorities in El Salvador are unwilling or unable to take the steps necessary to curb gang violence in general, and especially violence against LGBT individuals. (Vanden Decl. 14 21, 25 32.) The police lack resources and training and are mired in corruption, such that they cannot effectively combat gang violence. (Id. 31.) As to LGBT individuals, the police are often the perpetrators of the abuse themselves, tend to be homophobic, and habitually do nothing to stop abuse by others. (Id. 25 32.) E. Independent of Past Persecution, [Client] Is Entitled to Asylum Based on a Well-Founded Fear of Future Persecution If an applicant proves he has suffered past persecution, there is a presumption that his life or freedom would be threatened in the future on the same basis, which may be rebutted by a fundamental change in circumstances in the petitioner s home country. 55 No such change in circumstances has occurred here. Even where past persecution has not been proven, as it has been here, an applicant will still qualify for asylum if he can prove a well-founded fear of future persecution. 56 A fear of future persecution is well-founded when there is a reasonable possibility an applicant will suffer persecution if returned to his country of nationality. 57 The Supreme Court has held that a reasonable possibility of persecution may be found even where persecution is only ten percent likely to occur. 58 53 See Valdiviezo-Galdamez, 663 F.3d at 591 ( If the persecution was not conducted directly by the government or its agents, the petitioner must also establish that it was conducted by forces the government is unable or unwilling to control. ) (internal quotation marks omitted). 54 S-A-, 22 I. & N. at 1335. 55 8 C.F.R. 208.13(b)(1)(i)(A). 56 8 C.F.R. 208.13(b). 57 8 C.F.R. 208.13(b)(2)(i)(B). 58 See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (discussing the example where every tenth adult male person is either put to death or sent to some remote labor camp as being a situation where a well-founded fear exists and rejecting a more likely than not standard). 12

The inquiry into a well-founded fear is both subjective and objective. 59 The subjective component is satisfied by proof that the professed fear is genuine, while the objective component is satisfied by proof that the alien s subjective fear is reasonable in the light of all the record evidence. 60 Layered on top of this analysis is the fact that child asylum applicants may lack the maturity to form a well-founded fear of persecution, thus requiring the adjudicator to give more weight to objective factors. 61 [Client] fears that if he were forced to return to El Salvador, he would be subjected to the same or even worse physical harm and psychological torment by MS-13. ([Client] Aff. 23.) He has a reasonable basis for his fear, given the conditions in El Salvador, the power of MS-13, and the facts of his case. (Vanden Decl. 35 37.) II. [Client] Should Be Granted Asylum on Humanitarian Grounds Even if this office were to find that changed circumstances weigh against finding that [Client] possesses a well-founded fear of future persecution, [Client] should be granted asylum on humanitarian grounds. A refugee can be granted humanitarian asylum by establishing either: (1) that he has compelling reasons, arising out of the severity of the past persecution, for being unable or unwilling to return to his country... ; or (2) that there is a reasonable possibility that he may suffer other serious harm upon removal to his country. 62 Both criteria are met in [Client] s case. [Client] experienced severe past persecution in the form of attacks that led to serious injury, humiliation, threats of rape and death, and psychological torment. This alone justifies a humanitarian grant of asylum. 63 However, [Client] also faces a real possibility of experiencing further harm if he is deported. In addition to the likely harm from MS-13, [Client] has suffered emotional trauma from past persecution, which would only worsen if he were sent back to El Salvador. ([Client] Aff. 23; Vanden Decl. 21, 36 37.) These circumstances warrant a grant of asylum on humanitarian grounds. 59 Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005). 60 Id. 61 AOBTC Guidelines, supra note 18, at 40 41; see also UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, U.N. DOC. HCR/1P/4/ENG/REV.3, at 41 (Dec. 2011), http://www.unhcr.org/3d58e13b4.pdf. 62 In re L-S-, 25 I. & N. Dec. 705, 710 (BIA 2012) (noting that those for whom the presumption of a well-founded fear has been rebutted and who have not shown any other basis for a well-founded fear of persecution could still seek asylum and that adjudicators... should consider whether such an applicant is eligible for a humanitarian grant of asylum. ) (internal quotation marks omitted). 63 See In re S-A-K- and H-A-H-, 24 I. & N. Dec. 464, 465 66 (BIA 2008) (finding that a mother and daughter who were the victims of genital mutilation with aggravated circumstances were eligible for asylum on humanitarian grounds, regardless of whether they could establish a well-founded fear of future persecution). 13

III. [Client] Is Deserving of a Favorable Exercise of Discretion It is within the discretion of the Asylum Officer to determine whether an applicant merits a grant of asylum, even if the applicant meets the definition of a refugee (as is the case with [Client]). 64 The inquiry focuses on the totality of the circumstances and actions that led an asylum seeker to flee his or her home country. 65 Heed should be given to compelling, humanitarian considerations that [are] involved if the refugee were to be forced to return to a country where [he] was persecuted in the past, 66 including the tender age of the applicant. 67 Ultimately, the danger of persecution should generally outweigh all but the most egregious of adverse factors. 68 The discretionary factors warrant a grant of asylum in [Client] s case, where the favorable factors far outweigh any (if any) unfavorable factors. [F]avorable factors... include family ties to the United States, evidence of hardship to the [child] if deported, evidence of good character or value to the community, and general humanitarian reasons. 69 [Client] s possibility of future persecution, which he has demonstrated, weighs strongly in favor of asylum, as he is still young and vulnerable. His adjustment to life in the United States, including his all after just one year should weigh in favor of asylum. ([Client] Aff. 26.) [Client] will be able to assimilate into his new found community and grow up into a productive member of society if given a safe home in the United States and the ability to express himself freely, without fear of harm and humiliation. IV. None of the Bars to Asylum Applies to [Client] [Client] has never previously applied for asylum, 70 nor was he firmly resettled in a third country prior to entering the United States. 71 He has never participated in the persecution of another person, been convicted of any crime, been involved in any terrorist activities, or posed any danger to the community or the security of the United States. 72 64 INS v. Cardozo-Fonseca, 480 U.S. 421, 428 n.5 (1987). 65 See In re Pula, 19 I. & N. Dec. 467, 473 74 (BIA 1987), superseded in part on other grounds by statute as stated in United States v. Kantengwa, 781 F.3d 545, 555 (1st Cir. 2015). 66 In re H-, 21 I. & N. Dec. 337, 347 (BIA 1996) (order sustaining appeal). 67 Pula, 19 I. & N. Dec. at 474. 68 Id. 69 See Patpanathan v. Att y Gen., 553 F. App x 261, 266 (3d Cir. 2014). 70 8 U.S.C. 1158(a)(2)(C). 71 Id. 1158(b)(2)(A)(vi). 72 Id. 1158(b)(2)(A)(i) (v). 14

CONCLUSION For the foregoing reasons, [Client] asks that this Office, in its sound discretion, grant his application for asylum. Respectfully submitted, LOWENSTEIN SANDLER LLP 1251 Avenue of the Americas New York, NY 10020 616.414.6922 Pro Bono Attorney for Petitioner [Client] 15