Pro Bono Client Granted New Asylum Hearing with Appellate Victory

On April 17, 2020, the U.S. Court of Appeals for the Third Circuit granted a Cravath pro bono client’s petition for review, concluding that the Board of Immigration Appeals (“BIA”) erred in dismissing his application for relief under the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”). The panel vacated the BIA’s removal order and remanded the case to the BIA for further proceedings.

Cravath’s client, a native of El Salvador, overheard the murder of his neighbors by a Salvadoran gang. Fearing retaliation from the gang, he subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He ultimately fled to the United States, seeking asylum. The BIA dismissed his request for asylum, holding that: (1) “complaining witnesses against major Salvadoran gangs” do not constitute a legally cognizable particular social group under the INA; (2) he failed to show that he was targeted on account of any anti‑gang political opinion; and (3) he failed to show that he was likely to be tortured upon removal to El Salvador.

Cravath began representing the client after the BIA’s dismissal and appealed all three issues to the U.S. Court of Appeals for the Third Circuit. In a precedential opinion, the Court granted his appeal on the first and third issues. Cravath argued on the first point that the proper test was whether the applicant’s status as an informant was assuredly disclosed to the public, regardless of whether the informant testified in open court. The Court adopted Cravath’s argument, noting that the Government’s more limited position entailed “too narrow a reading” of precedent.

On the third point, Cravath argued that the BIA’s logic in dismissing his CAT application, which suggested that the gang did not have a continuing interest in torturing him because the gang twice allowed him to leave prior attacks, leads to the unworkable conclusion that a person who survives past torture can never claim relief under CAT. The Court agreed, reversing the BIA’s determination with respect to whether the client is likely to face torture upon removal and remanding the case to the BIA for further proceedings.

The Cravath team included partner J. Wesley Earnhardt and associate Brian Maida, who argued the case before the Third Circuit.

The case is Guzman Orellana v. Att’y General, No. 19-1793 (3d Cir.).