2200 Southwest Freeway, Suite 550 Raed Gonzalez, Esq, GONZALEZ OLIVIERI, LLC ¥ Houston, TX 77098 Phone: (713) 481-3040, Fax: (713) 588-8683 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT HOUSTON TEXAS § Inthe Mater of 5 § RODRIGUEZ, Juan 5 ile: A 078-308-248 s Respondent § § In Removal Proceedings § sR int 7 MOTION TO REOPEN AND REQUEST FOR STAY OF DEPORTATION LEOIRY 91 NOP LIND Mas BYsSO ons, gp aUNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT HOUSTON TEXAS In the Mate of i 3 nt ao 8 : 22% RODRIGUEZ, Juan rie Avge. 5. a : ae: Respondent i ge 3 28 ; ts 1a Removal Proceedings 5 wee & BSG 2 TO REOPEN AND RI Vs it ‘TO THE HONORABLE IMMIGRATION JUDGE: NOW COMES, Juan Rodriguez (“Respondent”), by and through counsel, and moves this Honorable Court to reopen his proceedings pursuant to the Immigration and Nationality Act (*INA”) § 240(6)(7(OVGi) and tile 8 of the Code of Federal Regulations (“CFR”) § 1003.23(0) ‘and permit him to apply for asylum under INA § 208, withholding of removat under INA. § 241(b)(©), and for protection under the UN. Convention Against Torture (“CAT”) based on ‘changed conditions in Respondent's native country. ‘This motion is timely, asthe time and numerical limitations that govern motions to reopen sot forth in 8 CER. § 1003.23(b\1) do not apply where the basis ofa motion to reopen isto apply for asylum, withholding of removal under the INA, or protection under CAT, and is based on changed country conditions. See 8 CFR. § 1003.23(6)\(4)(). ‘Respondent furthermore moves the Immigration Judge (I) order the stay of removal under 8CER. § 1003.23(6\1)(v), pending adjudication of the motion to seapen now before the Court. AA stay of deportation is warranted inthis case, in part, because this motion raises anovel question of law and presents a unique set of facts. In support thereof, the Respondent shows as follows: 11. STATEMENT OF FACTS Respondent is a native and citizen of El Salvador See Tab A 1-589 Applicaton He seks to ave his proceaings reopened under INA § 240) T(t apply for asylum, withholding of removal, and proteton under CAT onthe basis of changed country conditions. Respondent entered the United States on July 3,200 Se Tab B, Respondent's Atidevit. Respondent was detained by immigration authors until he was released on bond on tober 19, 2001. s ‘Tab C, Immigration Bond. In October 2002, Respondent appeared in cour: before an ‘immigration judge who granted voluntary departure. Respondent did not departed and was placed ‘on an order of supervision. See Tab D, Order of Supervision, Respondent has faithfully continued to report under an order of supervision forthe past 12 years and has never missed a check-in. Id. He has been authorized to travel, within the country, by ICE as he has not posed a rsk to public safety or national security. Jd, Respondent does not have ‘criminal history. See Tab E, Criminal Records Check, ‘Respondent is married to Celia Rodriguez, a US. citizen. See Tab F, Marriage Certificate; see also, Tab G, Naturalization Documents, Respondent and his wife have three daughters, all of ‘whom are U.S. citizens. See Tab H, Birth Certificates; see also, Tab G, supra, ‘Respondent and his fumily are Seventh Day Adventists, « Protestant Christian religion. See ‘Tab B, supra. Respondent and his fumily practice their religion faithfully, embracing all the tenets ‘and beliefs taught by their church. Jd, Respondent has as a sincerely-held religious belief that God blesses the institution of marriage asa foundation for family and a moral, sptitul ideal is forthe family to live together, in harmony, security, and love, with both parents and the father serving as the loving head of the household. 1d, ‘Based on this belief, Respondent's nuclear family — all U.S. citizens —- would follow himto BI Salvador, if he were removed. 1d. Respondent and his family hold «deeply held religious belie that family and especially familial unity, s paramount ot only for emotional and material support but spiritual maturation and fidelity to God. Accordingly, whster to emi together for them snot a choice, but mutter of ligious dy. For these reasons, Respondent greatly fears for himself and his family fhe were removed ‘0 F Saivador on the basis the county conditions have signiGcanly and mately degenerated 14,81 Salvador presently isn an untenble state of civil srife amounting os humanitarian disaster because of the uncontained growth of power wielded by transnational criminal gangs, high aes of homicide and other violence, and en ineffective goverment that has dan tie to resolve the czisis. See generally Tab 1 Country Conitons i Et Salvador. Respondent ssershe has a wel founded fer of persecution on account ofhis membership into particular socal groups: (1) nuclear family and (2) imputed American ciien. See Tab A, supra, Ye also fears that he woud be subjected to torture by gang members withthe acquiescence, or the willl blindness ofthe Salvadoran goverment. I Respondent is prima facie eligible for asylum, withholding of removal, nd protection under CAT: ‘herfore, Respondent files this instant motion reopen proceedings inorder to have @ full harng on the merits of his $89 aplication N, STANDARD OF REVIEW. ‘A motion to reopen removal proceedings must state the ne fc tht wil be proven at a bearing to be held ifthe mati is granted, and must be supported by affidavits or other evidentiary material. See INA § 240(c)(7)(B). The motion to reopen must be filed within 90 days of the date of entry of a final order of removal. See INA. § 240(c)(7)(C\). However, certain motions are ‘exempt fiom the 90-day limitation, including those that are motions to reopen for purposes ofsubmission of asylum applications because of changed conditions inthe country of origin, See INA § 240(cX(7 (Ci); see also, Kucana v, Holder, 558 U.S. 233 (2010). Similarly such motions are also exempt from the numerical limitations, if filed on said grounds. See 8 CER. § 100.2304). ‘This motion is timely fled as itis submitted pursuant tothe exception enumerated in INA. §240(27( Cy, as well as the Federal Regulations pursuant to & CER. § 1003.2300)4)) M1, LEGA. ARGUMENT ‘An alien may file a motion to reopen outside ofthe general 90-day deadline ifthe basis of the motion isto seek asyun or withholding of removal based on changed country conditions. Xiu Qin Lin v. Mukasey, 275 F. App’x 249, 252 (4th Cir. 2008). In order to proceed under this ‘exception, the alien must present evidence of changed country conditions tha “is material and was ‘not available and would not have boen discovered or presented a the previous proceeding.” I Respondent asserts «well-founded fear of persecution should he be returned to El Salvador ‘based on the substantial changes inthe social and poitial conditions in the country since he last ‘was before en immigration judge. ‘A, Changed Country Conditions Country conditions have materially worsened since Respondent ast resided in his native ‘country. When Respondent came tothe U.S. a Fly 2001, El Salvador was largely sil recovering fiom two mejor carthguskes, See Tab I, supra at 125-128, Given the magnitude ofthese evens, the U.S. offered Salvadorans temporary protected satus (*TPS"), fat 131-134, Presently in El Salvador, violence, crime, and general lawlessness is ubiquitous. See generally, Fab. The overall instability of E Salvador is primarily de to its endemic gang problems. Tens of thousands of gang members are active in Central America, including F Salvador. El Salvadorhhas one ofthe highest murder rates in the worl, 1d. at 149-165, The gangs operating in El Salvador 4isrupt the social and economic order and pose threat to public safety. See generally, Tab I. ‘The problem is not one of mere gang activity, high rates of crime, or violence. Gangs often act as the defacto government, as they control swaths of tetitory. 1d. at 166-167, Gangs, such as 'MS-13 and Barrio 18, impose their power and undermine the operational capacity and authority of legitimate state actors. Id. Following erosion ofthe governments bility to fulfil ts functions, legitimate institutions become largely irelevant and within this goveramental void, gangs operate ‘with near impunity. fd By eroding public confidence inthe government, both through intimidation and corruption, ‘pangs ereate « power vacuum for themselves to fll, coming both oppressor and protector. This allows gangs to simultaneously maintain, and even expand, control oftheir tertories and ensures ‘their criminal enterprises thrive, Jd. at 12. Gangs “govern” their territories by instituting curfews, controlling who enters and who leaves, imposing a system of parallel “txation’ extortion, and targeting residents and businesses In some instances the power of gangs isso complete that the police wil obtain permission to enter gang-conrlled ares or otherwise wl not cate. It is common for gangs to commit stocious, unspeakable acts, including murder (comprising disturbing and barbaric acs of femicide), rape, torture extortion, death threats, freed ‘worutment of youth including women), and kidnapping to asset ther autbority. Se general, Tab. EL Salvador further suffers om public dstrast and cynicism regarding the police, military, and othe tate officials. lat 168-174 This stems in part, from the fact that gangs have bribed sand intimidated government officials to the point the police, judiciary, as well as local and‘departmental governments are rife with criminal collaborators and infilteator. Id Police resources are scarce andthe police are largely overwhelmed by the ersis, lacking in effective strategies to contol or challenge gang activity. Se generally, Tab J. The Salvadoran military provides just as litle hope. The numberof gang members are estimated to exceed that of military personnel 1d ‘The present realty in Fl Salvador — i. unstable with inereasing violence —is precisely ‘why the US. Stale Department issued wavel warnings for American that travel to Salvador See Ts ‘State Department Bi Salvador Travel Warning, ‘The foregoing evidence was not available at the ime of Respondent's hearing onthe merits before an immigration judge in October 2002. Respondent departed his native El Salvador in the aftermath that followed the two major earthquakes that struck the country. These earthquakes ireolly caused hundreds of deaths, thousands of injuries, and 1.6 million people wo be homeless {na country with a population, atthe time, of 6 million. See, Tab I, supra at 125-128. Furthermore, public infrastructure suffered severe damage and many health care facili , including hospital, were gretly damaged. 1d ‘The country conditions in El Salvador in 2001, wien Respondent lf, was without question poor, bt ina materially different way. The principal plight, and focus of all socio-political efforts, ‘was addressing recovery effos, high migration trends of Salvadoransfeeing economic poverty following the earthquakes, anda fragile economy given the event events. Id. ‘The country conditions a that time didnot reflect pervasive gang violence and gang control of whole communities. In 2001, there was not an organized scheme of mass extortion — which is ‘hat Salvadoran gangs are notorious for — backed by credible threats of death and ater forms of violent retaliation. Given the fallout from the earthquakes, there was mass unemployment and no‘one to extort; whole communities were displaced and living in temporary makeshift shelters, Id ‘The state of aflsirs in Hl Salvador had not reached its present point and further, Respondent slid not, at that time, have a fear of harm rising tothe level of persecution on account ofa protected ‘ground, Responcent left El Salvador following the calamity caused by two major earthquakes. Given the vast change in country conditions since 2001 and the fac that Respondent's wife and children would travel to El Salvador with him if he were removed, Respondent is prima facie cligible for asylum, withholding, and protection under CAT. ‘The changed country conditions are material because they establish Respondent's well- ‘founded fear of future persecution. Respondent, ifremoved to Fl Salvador, now fears that he would, be targeted on account of his membership in two social groups cognizable under the INA: (I) ‘nuclear family; and (2) imputed American citizen, Facie Eligibiti jum, Withholding of Removal, and CAT Relief ‘Respondent is prima facie eligible for asylum under INA § 208, withholding of removal under INA § 241(6)(¢), and relief under CATT, asset forth in C.F.R. §§ 208.16-18; §§ 1208.16-18, 1, Asvlum and Withholdis under IN) Under INA § 208(2), an ales a refuge and therefore eligible for asylum ie is unable ‘or unwilling to retam to his country beemseof “persecution ora well-founded fear of persecution ‘on account of his mice, region, nationality, membership ina particular socal group, or poieal pinion” INS v,Hlas-Zacaras, 02 US, 478, 41, (1982); se als, INA § 101)42X). ‘An asylum seeker beats the burden of showing he qualifies fo efgee stats andi luo ‘atid to a discretionary grant of asylum. Fuard v, Asher, 379 P.3d 182, 187 (Sth Cir 2004), see als, 8 CER. § 208.136), "See Mater of1-0-G.,21 12N Dee. 413 (BLA 1996) (holding thee no requiremest fra nation to reopen to show ‘cncisivey that elle would be grated a alcn nee only show prima fase elighlty for reli.