Making Legal Connections to Help Immigrants Escape Persecution

THE CHALLENGE:

In 2003, Veronica Martinez-Santos fled to the United States from Guatemala. Her daughter, Juana, and sons Pedro and Juan Carlos followed in 2005, trekking for two weeks through Mexico to escape persecution by MS-13 gang members who had killed their eldest brother.

To help the siblings remain in the US, a McDermott pro bono team—most recently including Brett Meyerhoff, Brandon Roker, Julian Andre and Jesse Borja—filed for asylum and withholding of removal before an immigration judge in 2006. While the case was pending, the team succeeded in achieving permanent residence status for Veronica and Juana through the U-Visa process.

Both the immigration judge and the Board of Immigration Appeals (BIA), however, ruled that Pedro and Juan Carlos did not meet the “nexus” standard for asylum and withholding of removal. The decision meant they would need to return to Guatemala, where their lives had been threatened by MS-13 gang members. After a complex procedural history spanning several years, the McDermott team appealed the decision to the Ninth Circuit Court of Appeals.

THE SOLUTION:

To establish nexus, or a sufficient connection between a “protected ground” and the harm Pedro and Juan Carlos might face in Guatemala, the McDermott team needed to prove that the brothers had been persecuted by MS-13 gang members specifically because of a protected ground. The McDermott team emphasized that the brothers had been targeted and persecuted because they were part of a social group—in this case, their nuclear family—one of the five protected grounds specified in the Immigration and Nationality Act.

On appeal before the Ninth Circuit, the McDermott team argued that Pedro and Juan Carlos clearly met the nexus standard for both asylum and withholding of removal, and that the BIA erred when it held otherwise. Pedro and Juan Carlos, along with their sister and eldest brother, had been targeted as a family, with gang members extorting them for money, threatening to kill the siblings imminently and stalking them, along with other acts of persecution. After killing their eldest brother, the gang members twice threatened to kill the next eldest sibling, Pedro, which was one factor indicating that their family connection was the reason for the persecution.

The Ninth Circuit agreed, overturning the BIA’s decision and finding for Pedro and Juan Carlos. The Ninth Circuit then remanded the case to the BIA for further proceedings consistent with its opinion.

The McDermott team continues its representation of Pedro and Juan Carlos at the BIA level.

Learn more about our Supreme Court & Appellate Litigation and pro bono capabilities.