Categories
All Countries El Salvador

2020 RLLR 25

Citation: 2020 RLLR 25
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: John Kivlichan 
Counsel for the Claimant(s): Emily Rebecca Gerhard
Country: El Salvador
RPD Number: TB9-14423
Associated RPD Number(s): TB9-14504
ATIP Number: A-2021-00540
ATIP Pages: 000146-0000150


DECISION

[1]       MEMBER: The claimants are Ms. [XXX] and her minor daughter [XXX]. They are citizens of El Salvador who claim refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the start of the hearing, I appointed the principal claimant as the designated representative for the minor child, her daughter, given there has been long term separation of daughter from her birth father, who now lives in the USA. It is not contended there’s any issue here of abduction otherwise or problem about the principal claimant having sole custody of the minor claimant.

[2]       I determine that both claimants are citizens of El Salvador and no other country by reference to the copies of the passports found in Exhibit 1. The certified true copy of that for the principal claimant and the copy of a copy for the minor claimant. It was explained to me that the original passport for the minor claimant is being held by the US immigration authorities.

[3]       Let’s refer to the allegations in brief. The claimants assert a fear of the Maras otherwise known as the MS- 13 in El Salvador. Specifically, because the principal claimant was involved in a number of [XXX] as a [XXX] whose primary function was to work with at risk youth and try to divert those youth from otherwise becoming involved with the Maras, the gangs, who are the criminal actors in El Salvador. Because of the principal claimant’s work then and her background as a [XXX] who ran several programs to work with the at-risk [XXX], the Maras took a dim view of this, they threatened her repeatedly, they forced her to leave one job and relocate to another job. And in the most recent occupation in a new [XXX] starting in or so of [XXX] 2017, she only lasted there for about [XXX] months because by [XXX] of that year, she began to receive serious threats from a Mara member, personally identified himself to the principal claimant at her [XXX] as being from the MS-13 and he warned her that if she did not do as she was told then she would face the consequences “she took this as being a death threat”. She was also aware that in pervious positions, other [XXX] had been killed and in that most recent position, the [XXX] who were her pre-assessors had been forced to flee for their own lives. The principal claimant tried to seek help from the local police in [XXX] 2017 but while the police took her statement, nothing concrete came of the corn plaint. More importantly, as she was leaving the police station, she was approached by a runner or observer, a young boy acting on behalf of the Maras who was following her and who asked why she had gone to police. She knew at that point that she was under constant surveillance by the Maras, she never returned to the [XXX]. And furthermore, she learned soon afterwards that the extent of the Maras interest in her also went as far as her own daughter.

[4]       For these reasons, she decided to leave El Salvador as quickly as possible. A smuggler or snake head was found to get mother and daughter into the USA. They crossed the border first through Guatemala and then Mexico and into the USA by way of a raft on the Rio Grande. She was then picked up with her daughter in the USA and they were processed at that time however they found the detention conditions and the church to be aberrant. And furthermore, there were in the USA awaiting the outcome of their claims because of the situation there and other reasons which were detailed in oral testimony, they felt they would be safer by far in this country and thus made their move to come north into Canada. For these foregoing reasons they make their current claims.

[5]       I find to determine that the claimants are persons in need of protection due to risk to life or risk of cruel and unusual treatment or punishment for the following reasons. I accept that the testimony was credible throughout, it was given in a forthright and detailed fashion by the principal claimant. There were very few missed steps. There were some areas of concern primarily through gaps of the written narrative. I per say the narrative cannot be all encompassing for fear as it would be too lengthy but I would of appreciated for example, further details as to the problems in the second [XXX] where the principal claimant started in [XXX] or [XXX] 2017. The written narrative jumped into the problems in that second place by reference to an event in [XXX] 2017 but by comparison the oral testimony indicated area of problems from [XXX] even some months before hand. Furthermore, the country documentation disclosed by the claimants indicates that even before the principal claimant arrived at that [XXX] there was a history of violence against [XXX] like herself who had tried to engage the at-risk [XXX], this we see from Exhibit 6, page 13 and 14, the news article. So, in my view it is certainly my perception it would have been ideal to have seen greater detail as to why the principal claimant went to that [XXX] despite knowing-, actually said in oral testimony, all the history of problems there but that’s a minor point where one has easily overall thrashed the claim. So, to-, it would have been preferred had we been able to obtain the credible fear interview notes from the USA which I believe one from the access through the appropriate Access to Information Request to US CBP or INS or both, that might of assisted by corroborating that the allegations put forward to the USA at the credible fear interview stage were the same or consistent with the current claims. I see confirmation of the US credible fear interview though as being successful by way of the Notice to Appear from the US, department of Homeland Security appendant to Exhibit 2.1, the Basis of Claim From for the principal claimant.

[6]       So, in summary, I found the testimony given throughout was credible and trustworthy. There was appropriate corroboration by way of letters from calling [XXX] in the Exhibit package 6. We see the attestation also of the police and deputy inspector at page 1 to 5, employment letter regarding her [XXX], letters from the principal claimant’s colleagues and principal. All these serve to corroborate the details of the situation for the principal claimant and her daughter in El Salvador. Furthermore, the information applied by the principal claimant is entirely consistent with the known country conditions in El Salvador. Persons who are [XXX] are one of the classes of individuals who are at particular risk in so far as the gangs whether the MS-13 or the MS-18, consistently have reacted with the violence even murder against those who try to divert young [XXX] ages 10 and up from following the gang lifestyle. We this for example, when one looks at the report on the eligibility guidelines for assessing the international protection needs of asylum seekers from El Salvador, this from the UNCHR at Tab 1.5 of the National Documentation Package, Exhibit 3 on page 40, paragraph sub 10. It states, due to the youthful membership of the gangs in El Salvador, gangs reportedly often seek to exert inference on and in [XXX] and [XXX] institutions where they operate. [XXX] and other [XXX] working across the country where gangs are present reportedly occupy themselves subject to extortion demands and those who represent as I believe the principal in this insist, also did an alternative source from authority or resist or oppose the gangs and their recruitment of local youths have reportedly been threatened and killed by the gangs. It goes on then to state, depending upon the particular circumstances of the case, UNCHR considers that [XXX] and [XXX] working in [XXX] and [XXX] institutions may be in need of international refugee protection on the basis of their imputed political opinion or on the basis of other Convention grounds.

[7]       Given the outcome as positive, I dare say that the claimants care little that in my view there is questionable Nexus to any Convention refugee ground. The fear of persecution in my view is not necessary to enter the five grounds, I’ve considered the claimants testimony and I find that they fear crime or vendetta from members of the criminal gang, the MS-13. And the federal court cases in this regard for the most part have held that victims of such generally failed to establish any link between their fears in any one of the Convention grounds and that’s noted in the case law. For example, Marincas, M-A-R-I-N-C-A-S citation IMM-5737-93, more recently Bacchus, B-A-C-C-H-U-S that’s 2004 FC 821. So, certainly is an arguable point as to whether there is a Nexus or not. UNCHR takes a different view in the final outcome given my determination in positive, I doubt it matters to the claimants per say.

[8]       The claimants in view have also rebutted the presumption of state protection. They went to police as noted in the oral testimony and as evidenced by the reports we find in the Exhibit 6 package but with no success and more to the point the attempt to seek help from the police created a negative reaction from the gangs who were then able to identify the principal claimant as being what we would refer to ask a snitch and that itself exposed her to grave problems of irate immediate nature necessitating her departure from her job that very same day. So, as I said I consider that they have rebutted the presumption of state protection and all the circumstances and given that the country documentation consistently indicates in my view from Exhibit 3 NDP that there is no state protection both because of the inability but also because pervasive corruption that the MS-13 and MS-18 have managed to infiltrate various local police.

[9]       There was a further question mark about the abandonment of the US claims. As I said, I might of preferred to have seen more careful discussion of that in the written narrative. The only mention about the USA really indicates when I looked to the narrative at line 91 and 92 and thereafter, there were problems securing a lawyer, Jack of fonds and that was the real reason to depart from the USA for fear of deportation or arrest. The oral testimony differed from this because we got forward details about the oppressed conditions in the USA that indeed when the principal claimant consulted with the lawyer after arriving in the USA, in or about [XXX] 2018 she was advised that there was little chance of success in making a claim based on gang violence in El Salvador. The lawyer according to oral testimony based that upon directors from the president himself. My specialized knowledge and expertise is of course that the directive to restrict the ability to make a refugee or asylum claim in the USA arose from the promulgation of the then Attorney General, Mr. Sessions, S-E-S-S-I-O-N-S in or about [XXX] 2018. Whoever said it, I acknowledge that the US law is in flux, there is a clear indication from the highest authorities in the US that there is a grave risk of rejection of one’s asylum claim based upon the grounds of gang violence in El Salvador. So, for that reason, I draw no adverse inference in the all the circumstances that the claimants abandoned their US asylum claims in order to come here seeking true safety.

[10]     So, to summarize, as I said, there is ample documentation from the claimants to corroborate their process situation. The articles presented by counsel in the Exhibit package 6 address the particular problems of those who deal with [XXX] children who are at risk. We see this for example in the articles presented at page 18 from the Atlantic Magazine, the Rogers article at page 25 and the Inside Crime Discussion starting at page 31, all within the country disclosure section and these are all consistent with the allegations from the principal claimant. I did note also, in my discussion with her during the course of oral testimony that she had applied for a Canadian visitor visa but being rejected even as early as we see from the GCMS notes in Exhibit 1, in or about May or so of 2017, sometime before she actually left the country to go to the USA. Upon questioning the principal claimant, she said because of her prior experiences in the previous [XXX], she was then worried about getting further threats and had little confidence about her long-term prospects in El Salvador, however she lacked the fonds to get a visa from the either the Canadian authorities or US authorities at that time and was thus refused. It is apparent that there was the-, not shall we say obligation to leave the country even then so there is a slight question mark as to the timing of departure. In theory, the claimants might have left earlier then they did but in all these circumstances, I draw no negative inference. It would appear that their finances were limited and the principal claimant was trying her best to seek a new avenue of employment where she had been assured in the second [XXX] where she had worked most recently that she would be offered security. After a few months in that place in Morazan, M-O-R-A-Z-A­N, she found out that her employers had misled her because the police protection was withdrawn leaving her to the approaches by the gangs at their mercy.

[11]     My point here is essentially, I draw no adverse inference from the delay in leaving, from the abandonment of the US claim and ail the circumstances and I find the claimants have successfully made their made as persons in need of protection. I, therefore determine that the claimants [XXX] and her minor daughter [XXX] are persons in need of protection due to the risk to life or risk of cruel and unusual treatment or punishment which is more likely then not were they to return to El Salvador in the present day. And which risk is entirely personalized in nature given the repeated escalating threats to the principal claimant from the Maras in El Salvador. That concludes my decision.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 74

Citation: 2019 RLLR 74
Tribunal: Refugee Protection Division
Date of Decision: January 8, 2019
Panel: S. Shaw
Counsel for the claimant(s): Kieran Verboven
Country: El Salvador
RPD Number: VB7-06918
ATIP Number: A-2020-01274
ATIP Pages: 000221-000226


[1]       PRESIDING MEMBER: So [XXX], [XXX] and [XXX] you claim to be citizens of El Salvador.

[2]       You claim refugee protection pursuant to Sections 96 and 97 [1] of   Immigration and Refugee Protection Act.

[3]       The Claimants’ Basis of Claim form allegations found in Exhibit 2. The Principal Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1981. The Principal Claimant’s wife, the Associate Claimant, [XXX] is a citizen of El Salvador. Born on [XXX], 1984. The Principal Claimant and the Associate Claimant’s daughter is the minor Claimant. [XXX]. She’s born on [XXX], 2016.

[4]       The Claimants face a risk to their lives from MS13 because originally the Principal Claimant sent them to jail and then confronted them later. It began on [XXX], 2017 when the Principal Claimant was attacked by three gang members for no reason. In the city [XXX] in Antigua Cuscatlan C-U-S-C-A-T-L-A-N. The gang members had asked for money and then they said they were going to harm the Associate Claimant. And three of them began to attack the Principal Claimant.  He was lynched and thrown into the street and run over by— twice by a car, which fractured his [XXX] and his right [XXX]. He would have died but he was assisted by security employees who helped him before the police arrived. The gang members — two of the gang members were captured of the three. Due to the attack the Principal Claimant spent more than [XXX] months in hospital recuperating. The legal matter against the gang members was botched by the general prosecutor of the Republic and also by the judge. The judge admitted evidence that wasn’t valid. The criminal offences kept changing which would benefit the gang members. The judge granted them alternative measures to provision of detention, and so forth.

[5]       All this led to the gang members learning that where the Claimant’s family lived. They kept searching for the Claimant— for the Principal Claimant trying to intimidate him and trying to force him to withdraw his lawsuit and trying to locate him even while he was hospitalized. After he left the hospital, [XXX] 2007, relatives of the gang members came to the Principal Claimant’s home to tell him that if he didn’t drop the charges they would kill the Principal Claimant. Ultimately he had to reconcile with the gang members and they reached an agreement so that they would not kill him. The gang members also told him that he would need to leave the zone or else they would kill him.

[6]       The Claimant— Principal Claimant went to the general prosecutor to get protection measures but all he negotiated with the gang was to get them to give him $1500 each from each of them to facilitate his departure from the area and to prevent the killing of the Principal Claimant. The Associate Claimant was also at risk because she was a witness to the events.

[7]       The Claimants started moving and went back to their studies. Each of them studied [XXX]. The Principal Claimant became a [XXX] to the [XXX]’s office in San Salvador since mid 2012. The Principal Claimant would observe the gang members would come to [XXX]’ s office asking for him. This made him afraid to show the problems he had with the gang. The Principal Claimant decided to transfer to another department to avoid the risk. The Principal

[8]       Claimant was then appointed by the [XXX] to [XXX]. He had to negotiate with companies that are under the control of the gangs. The Principal Claimant gave up that work in XXXX 2015 for his safety. He there after decided to open his [XXX]— his own [XXX]. He was asked by a particular bank to carry out a [XXX] of five cases which had been stagnate for years and they haven’t been able to recover properties. The Principal Claimant was able to find owners of one property in the United States. He learned that the house that he was getting information about was filled with gang members and that’s why the MS had decided to keep that house. The family had fled El Salvador for the United States to avoid being killed.  The Principal Claimant was able to negotiate the return of the house to the bank. Where the Principal Claimant would be the [XXX] and be able to authorize this transaction.

[9]       The Principal Claimant learned in [XXX] 2016 that the men who were living inside the house were the men who had attacked him in 2007 in the initial transaction he had with the gang. This was in [XXX] 2017.  The gang insisted that the Principal Claimant negotiate this transaction. In [XXX] 2017, gang members approached the Principal Claimant and told him that his luck would be over unless he returned that house to the Maras (ph.), to the MS. They knew all the details about his parents and they threatened his life.

[10]     On [XXX] while the Principal Claimant was in a car with his wife and daughter, two persons followed them on a motorcycle. They intercepted the car and they took out a 9mm black weapon out of a bag. The Claimant hid in different hotels and left the country eventually getting to Canada to claim for refugee protection.

DETERMINATION

[11]     I find that the Claimants are persons in need of protection. In that the removal to El Salvador will subject them personally to a risk to their lives for the following reasons.

ANALYSIS

[12]     The Claimants’ identities as nationals of El Salvador are established by their testimony and the supporting documentation filed, namely their passports found in Exhibit 1. I have found the Claimants to be credible witnesses. They did not exaggerate about the amount of information they are aware of, about their situation since they came to Canada. Moreover the Claimants corroborated every allegation contained in their Basis of Claim forms with the 257 pages of supporting documentation found in Exhibit 4. These include their [XXX], the legal documents about the initial incident where in the Principal Claimant was run over by cars, they arrested the men and evidence that the Claimant was in the hospital, the detentions of the gang members  for five months, the conditional suspension procedure, the judicial errors in this case, evidence that the Claimant fled and was hiding in different houses and suffering from [XXX] and [XXX], witness to the events of 2007, evidence about the motorcycle  incident, that the Claimants  were constantly fleeing and  hiding  in  houses, medical evidence from the hospital, confirmation the Principal Claimant worked at the various locations and doing the work that he said he was doing, including that he recovered debts and so forth.

[13]     The Claimants’ testified today that the parents of the Principal Claimant are still in hiding and never go outside.  They are currently living in Santa Ana.  And even here in last May 2018 gang members were asking neighbours of the Claimant’s parents where the Claimants were. There’s evidence that the gangs are still searching for the Claimants to this day.

[14]     I have considered— and so I thus find that— I have considered whether the Claimants’ are Convention refugees. For the Claimants to be Convention refuges their fear of persecution must be by reason of one five grounds enumerated in the Convention refugee definition. I find that the Claimants’ fear of persecution is criminality and criminality is not a Convention ground. I therefore find that the Claimants’ are not Convention refugees.

[15]     The Claimants alleged that if they return to El Salvador they will be subjected to a risk to their lives by the MS13. I find that on a Balance of Probabilities that they have established this. The gang has been after the Claimant since 2007. First in connection to    the Claimant’s having the gang members incarcerated and for not dropping charges against them with regard to the aggravated assaulted perpetrated against the Principal Claimant. The gang members have been asking for the Claimant since mid-2012 again when he was working for [XXX]’s office.  In this job he made more enemies with the MS by evicting them from the market which had been a stronghold of the MS gang. So the MS gang only, by this point in 2012, had increased interest in the Claimant than in the originally in 2017. And after the Principal Claimant decided to leave this job out of fear of the gangs, his next position put him back in front of the gang again for trying to evict them from their headquarters, the house that got re-deeded back to the bank. The Principal Claimant was told in [XXX] 2017 that he was a dead man. They threatened the Claimants on [XXX] and took out a gun on their car which had all of the Claimants in it. Even when the Claimants were hiding they were found over and over again. I thus find that on a Balance of Probabilities all of the Claimants are at risk of harm pursuant to Section 97.

[16]     National Documentation Package item 7.2 and 7.3 of the National Documentation Package dated September 28— September 28, 2018 indicates that El Salvador has become the most violent in the world that is not in active warfare. There are approximately 18 murders a day. A 70 per cent increase compared to the previous year. Making El Salvador the highest murder rate for any country in the world in almost 20 years.

[17]     Item 7.2 of the National Documentation Package indicates that these numbers do not include the unreported murders or the hundreds or more disappearance cases. Gang related violence is the proximate and cause for many individuals and families fleeing El Salvador and becoming internally displaced as the Claimants had been. At present there are approximately 300,000 El Salvadorians who are internally displaced.  Gang violence in El Salvador is an immediate pre cursor to displacement. Entire families, like your own, are caught up in this violence without end. That’s Exhibit 3, National Documentation Package Item 7.2.

[18]     I find that the authorities in El Salvador have consistently failed to assist individuals and prevent displacement. In your case they assisted the displacement and made a deal to get you out of town. To create your own displacement instead of protecting you.  And the authorities have, moreover, have shown a difference to the plighted victims of violence and have thrown their back on their own citizens. The government officials botched the entire 2007 case against the gangs. And instead of following through on the manner, the Claimants were forced, again as I said, to leave town to protect their own lives.

[19]     The article Gang Based Violence and Internal Displacement indicates that the police, attorney general and prosecutors office discourage citizens from reporting crimes. They refuse to take denouncements or refuse to take responsibility for accepting reports of crime. Referring victims, witnesses and family members to other offices or agencies. The El Salvadorian state is unable to protect victims of crime, witnesses of crime or people who have participated in investigations or reported crime.

[20]     In many cases after having sought out the police or other government agencies, like yourselves, victims continue to suffer threats, attacks, violence and attempts on their lives. When the government representatives fail to response victims and survivors in these cases are forced to go hungry even sleep on the street, stay in deplorable conditions. In some cases, victims or family members are killed after seeking state protection. And media reports of the murder of the eye witnesses and those who testify at trial abound.

[21]     Item 7.13 and Item 2.3 Freedom of the World. There is a slowness in the state’s response to the seriousness case of harassment, abuse or violence that leaves victims in danger. Including cases involving persons like yourselves. There appears as well to be a failure on behalf of the judicial branch. The judicial system in El Salvador is weak and plagued with corruption. This is what the Claimants have alleged as well. With all of this there has been a creation of impunity from criminal prosecution as you experienced. Moreover there are frequent cases in the national news of violent deaths of those who report or witness crimes. These documents indicate that there are close ties between some government representatives and organized criminal structures. In a number of cases, links between local government and the police force and the gangs operating in communities are evident. This contributes to increased threats as stated and prevents the pursuit of justice and results in further victimization of citizens and victims. See Item 7.2, 7.13, 2.3, 2.1 of the National Documentation Package.

[22]     The United States Department of State report at Item 2.1 of the National Documentation Package indicates that corruption is widespread,  highlighting the weaknesses in the judiciary and security forces have contributed to a high level of impunity. According to Freedom House, Item 2.3 corruption continues to be a serious problem with few officials facing charges.

[23]     For all these reasons I find that the presumption of state protection has been rebutted. I have considered whether you face a risk throughout the country. I find that you would face— each of you face a risk to your lives on a Balance of Probabilities throughout El Salvador.

[24]     As noted in the National Documentation Package gang based violence article at Item 7.13 the MS reach extends across Central and North America. Estimates of active gang membership rang from 54,000 to 80,000 persons in El Salvador, Guatemala and Honduras. The gangs are now present in each of El Salvador’s 14 regional departments controlling entire neighbourhoods and imposing violence and fear on the population. Item 7.2 of the National Documentation Package.

[25]     The gangs are everywhere. If the Claimants were to move anywhere in El Salvador there is gang presence and their numbers are very high and they are always looking around for who is entering a neighbourhood. The Claimants cannot move anywhere in the country without their presence being learned by the gang. And for this information to be gather by the gangs. The gang presence is so large in El Salvador I find that the Claimants face a risk to their lives throughout El Salvador. There is no Internal Flight Alternative.

CONCLUSION

[26]     For the foregoing reasons I conclude that the Claimants are persons in need of protection and I therefore accept their claims.

[27]     And that’s the end of my decision and I will go off the record at this time.

—PROCEEDINGS CONCLUDED

Categories
All Countries El Salvador

2019 RLLR 71

Citation: 2019 RLLR 71
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2019
Panel: Daniel Marcovitch, Miranda Robinson, Dawn Kersha
Counsel for the claimant(s): Vilma Felici
Country: El Salvador 
RPD Number: TB8-27180
ATIP Number: A-2020-01274
ATIP Pages: 000207-000209


DECISION

[1]       MEMBER: We’ve considered your testimony, evidence and supporting documentation and we are ready to render our decision orally.

[2]       This is the decision for [XXX] who I’ll-, who I will refer to as the claimant, who claims to be a citizen of El Salvador. He’s claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The details of the claimant’s allegations are documented in his Basis of Claim form and in his oral testimony.

[3]       The claimant alleges he fears a risk of harm from society in general and criminal gangs in particular in El Salvador because of his sexual orientation as a gay man.

[4]       The Panel determines that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act. As he has a well-founded fear of persecution based on his membership in a particular social group.

[5]       The Panel finds that the claimant has established on a balance of probabilities his personal identity and national identity as a citizen of El Salvador through his testimony and the disclosure of the claimant’s identity documents, namely his passport.

[6]       The claimant testified in a candid, straightforward manner and without embellishment. There were no discrepancies and inconsistencies, omissions or contradictions in the claimant’s oral testimony and the other evidence before the Panel. The claimant readily answered all the questions without hesitation and provided further detail when asked to do so.

[7]       The claimant provided supporting documentation in the form of a denunciation to the Attorney General and support letters from family members to substantiate his allegations. No credibility concerns arose and a session of reasons arose to doubt the truthfulness of the claimant.

[8]       The Panel therefore finds on a balance of probabilities that the claimant is a credible witness.

OBJECTIVE DOCUMENTATION

[9]       In recent years, El Salvador’s government has enacted several positive measures to protect members of the LGBT community. While in office in 2010, Salvadorian President Mauricio Funes signed executive Order 56 prohibiting discrimination based on sexual orientation and/or gender identity by executive branch agencies. Further, homosexuality is not criminalized in El Salvador and the country’s constitution protects a person’s right to life and physical integrity.

 [10]    It also establishes the equality of all persons before the law. Also, El Salvador has ratified the international covenant on civil and political rights which has been interpreted to pr-, to include protection from discrimination for LGBTI people. However, even with the positive steps just noted, there are still deeply ingrained social prejudices that lead to the persistence of systematic violence carried out by State actors. In addition, the absence of processes aimed at achieving accountability plays into perpetrators’ ability to act with impunity, repeating the cycle of violence and discrimination. This extends to crimes and other violence motivated by hatred or prejudice that are carried out by other members of society.

[11]     A review of the documentary evidence pertaining to the situation of sexual minorities in El Salvador shows that sexual minorities face human rights abuses, including acts of violence.

[12]     Discrimination against sexual minorities was widespread. Thus, being gay, bi-sexual, transgender and intersex communities faced risks and suffered violence and intimidation from State agents, individuals and private groups. LGBT persons have been killed due to their sexual identity. LGBT persons are some of the most vulnerable popu-, populations in El Salvador. And are discriminated against in education, health care and employment. A serious aspect of violence against sexual minorities is criminal gangs.

[13]     The documentary evidence indicates that these groups acted in an extremely violent way, usually attacking and murdering sexual minorities. The claimant testified to hav-, to having personally experienced threats and violence from members of what he believed to be a gang. Non-governmental organizations have reported that public officials, including the police, engaged in violence and discrimination against LGBTI persons. Sexual minorities were ridiculed when they applied for identification cards or reported cases of violence against LGBTI persons.

[14]     Documentary evidence indicates that all members of LGBT persons tend to remain unsolved, violence sorry, violations of human rights of LGBTI people are not investigated by the State in effective or adequate manner and perpetrators have not been punished. It’s also noted that State authorities did not act with due diligence to prevent such acts of violence.

[15]     Based on the documentary evidence before me and the Panel, we find that the claimant’s allegations of a risk of harm, based on a sexual orientation are supported by the objective documentary evidence.

[16]     The Panel also finds on a balance of probabilities, that adequate state protection would not be forthcom-, forthcoming on a forward-looking basis.

INTERNAL FLIGHT ALTERNATIVE

[17]     Given the lack of adequate state protection available to the claimant. And given the fact that the gangs are prevalent throughout El Salvador, the Panel finds on a balance of probabilities that the claimant would face a serious possibility of persecution anywhere in El Salvador if he were to return and attempt to live openly as a gay man.

[18]     Therefore, the Panel finds that there’s no viable internal flight alternative available to the claimant.

[19]     So, in conclusion, we find that the claimant would be subject to a serious possibility of persecution should he return to El Salvador. And having considered the totality of the evidence, we find that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[20]     And therefore, accepts his claim.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 61

Citation: 2019 RLLR 61
Tribunal: Refugee Protection Division
Date of Decision: March 8, 2019
Panel: D. Marcovitch
Counsel for the claimant(s): Adela Crossley
Country: El Salvador  
RPD Number: TB8-09319
Associated RPD Number(s): TB8-09330, TB8-09365, TB8-09366
ATIP Number: A-2020-01274
ATIP Pages: 000151-000155


DECISION

[1]       MEMBER: I’ve considered your testimony as well as the other evidence in this case and I’m ready to render my decision orally.

[2]       [XXX], [XXX] who I will refer to as the principal claimant, [XXX], and [XXX] are citizens of El Salvador and are requesting protection under Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       The claims were joined pursuant to Rule 55 if the RPD rules, and [XXX] was appointed as the designated representative of the minor claimants pursuant to rule … or pursuant to Section 167(2) of the Immigration and Refugee Protection Act.

[4]       The specific details of this claim are set out in the Basis of Claim Form of [XXX].

[5]       In short, the claimants fear the MS-13 gang in El Salvador as a result of years of extortion and threats, particularly experienced by the adult male claimant. The MS-13, it started approaching him in 2015 seeking small extortion amounts on a regular basis. However, starting in [XXX] 2016 the principal claimant was approached for greater extortion amounts which the principal claimant paid on the [XXX] of every month, and he considered it part of his monthly costs of living.

[6]       However, in [XXX] 2017 the principal claimant was asked by an elder … elderly neighbour to use his position as the [XXX] of a [XXX] company called [XXX](ph) to provide samples of [XXX] that the neighbour was unable to obtain through the El Salvador social assistance program due to office closers during the holiday season.

[7]       Shortly after doing this favour the MS-13 approached the principal claimant and asked for sample [XXX] as well in addition to the extortion amounts. At this time the MS-13 also advised as to the details that they had regarding the principal claimant’s family, where he worked, when and where his kids went to school, etcetera.

[8]       Later on, the minor claimant [XXX] was stopped by gang members as he got off a school bus and was threatened regarding his father following through on extortion amounts and to try and stop avoiding them.

[9]       INTERPRETER: Would you kindly repeat that (inaudible) last part all about the school bus?

[10]     MEMBER: To try and stop avoiding them.

[11]     INTERPRETER: Can you back to where he got on the school bus (inaudible)?

[12]     MEMBER: And was threatened regarding his father following through on extortion and to stop trying to avoid them.

[13]     The claimants also believe that the MS-13 members had moved into a rooming-house across from their home and were keeping an eye on them.

[14]     My determination is that I find the claimants persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act.

[15]     With regard to Section 96, I find that the claimants fear criminal entity and I therefore find that their fear of persecution is not based on one of the five Convention grounds. That being so, this case was assessed under Section 97 of the Immigration and Refugee Protection Act.

[16]     With regard to generalized risk, the documentary evidence that El Salvador is one of the most violence countries in the world with one of the highest homicide rates. In particular, gangs are responsible for about 60 percent of the country’s homicides, as noted in NDP Item 7.1(1).

[17]     El Salvador’s National Documentation Package further indicates that random organized violent crime is endemic throughout El Salvador.

[18]     Based on the documentary evidence contained in the NDP and counsel’s country package I find, on a balance of probabilities, that the risk of violence at the hands of gangs in El Salvador is a generalized risk faced by the general population in El Salvador, and that extortion threats are common. However, I find that the claimant in this particular case face an individualized risk.

[19]     I find that even though some of the extortion faced by the claimants in 2015 or 2016 may have been generalized in nature, the more recent threats they experienced in 2017 and 2018 was personalized in nature. I find, on a balance of probabilities, that the claimants face a greater risk to their lives than the risk faced by the generalized population in El Salvador, such that they are subject to the generalized risk exception found in sub-paragraph 97(1)(b)(ii) of the Act.

[20]     With regard to identity, I find, on a balance of probabilities, that the claimants have established their identities by way of certified true copies of their El Salvadorian passports as seized by the Canadian Border Security Agency.

[21]     With regard to credibility, I find that the principal claimant was a credible witness. I find that he was consistent and did not embellish his testimony when there were opportunities for him to have done so. I find that I believe what he said and presented at his hearing.

[22]     I accept the principal claimant’s evidence that before they went to the United States in [XXX] 2017, he was scared of the gangs but did not consider the threats at that time to be significant, as he was paying the extortion amounts and viewed it as a monthly expense.

[23]     Further, the gangs appear to have accepted that monthly amount and had not threatened further at that point.

[24]     I therefore find that the claimants have not experienced such serious threats of a personal nature, that they should have sought protection in the United States…

[25]     INTERPRETER: That they should have?

[26]     MEMBER: That they should have sought protection in the United States. And that I find they did not re-avail themselves of El Salvador’s protection when they returned.

[27]     With regard to State protection, there are numerous documents in the Board’s disclosure packages that describe the ineffectiveness of El Salvador’s police and judiciary. Based among other things, on gang infiltration and corruption.

[28]     The claimants in this case did not approach the police at any point about the threats. While I find this problematic, I’m also of the opinion that even if they had stayed to try to get the benefit of State protection that the protection offered would not have been adequate given the objective country documentation on the issue, and the imminent threats faced by the claimants.

[29]     I therefore find, on a balance of probabilities, that the claimants have rebutted their presumption of State protection available to them in El Salvador and I find, on a balance of probabilities, that State protection would not be available to these particular claimants in the future if they were to return to El Salvador.

[30]     With regard to internal flight alternative, the documentary evidence is clear that gang activity is prevalent throughout El Salvador and that MS-13 has connections throughout the country and that they communicate with each other when new people move into their neighbourhoods.

[31]     That being so and given my determination regarding State protection, I find, on a balance of probabilities, that there’s no viable internal flight alternative available to these particular claimants anywhere in El Salvador.

[32]     To conclude I find, on a balance of probabilities, that the claimants are persons in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act as they would be personally subjected to a risk to their lives or a risk of cruel and unusual treatment should they return to El Salvador today.

[33]     I therefore accept their claims. Good luck.

[34]     COUNSEL: Thank you, Mr. Member.

[35]     MEMBER: And we’re off the record.

———- REASONS CONCLUDED ———-

Categories
All Countries El Salvador

2019 RLLR 54

Citation: 2019 RLLR 54
Tribunal: Refugee Protection Division
Date of Decision: October 21, 2019
Panel: Roslyn Ahara
Counsel for the claimant(s): Penny Yektaeian Guetter
Country: El Salvador
RPD Number: TB8-00970
ATIP Number: A-2020-01274
ATIP Pages: 000100-000103


DECISION

On October 21, 2019 the Refugee Protection Division (RPD) heard the claim of [XXX], who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

[1]       MEMBER: [XXX], is a citizen of El Salvador seeking refugee protection pursuant to Sections 96 and 97 (1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       Your allegations are described in detail in your Basis of Claim Form (BOC);2 however, they can be summarized as follows:

[3]       You fear persecution at the hands of the Mara Salvatrucha (MS-13), and you believe that this gang caused the disappearance of your brother in [XXX] 2013. Personally, you believe that you have been threatened if you did not transport drugs on their behalf, and you felt this threat was real, given the fate of your brother.

[4]       You left El Salvador on or about [XXX], 2014, for the United States. You were detained, and made a refugee claim, which was denied, and subsequently the appeal was also denied.

[5]       You have indicated in your testimony today that you were extorted, on a regular basis, approximately six months following the disappearance of your brother in [XXX] 2013.

[6]       Finally, on [XXX], 2014, six to seven members of the MS-13 approached you and asked you to transport drugs inside the [XXX] that you were repairing, and when you refused, they immediately punched and kicked you. In your oral testimony today, you also stated that they threatened that you would suffer the same fate as your brother if you did not comply with their demands.

[7]       At the outset of this hearing, I identified the issues of credibility, generalized risk and state protection. Counsel conceded that there was no nexus.

[8]       On a balance of probabilities, I find that your identity has been established as per your passport.3 In considering your credibility, I did not find any glaring omission or contradictions between your testimony and the evidence contained in your record. I did not find that you attempted to embellish the merits of your claim. In totality, I found you to be a credible witness.

[9]       As I indicated earlier, counsel conceded the issue of nexus. There is much case law in this regard, in terms of criminality by gangs, and the country documentary evidence states that the MS-13 are engaged in economically motivated crimes involving extortion, kidnapping, recruitment of youths to aid their cause. There are a number of cases which support the lack of nexus, but since your counsel has conceded this issue, I will go on to consider the issue of generalized risk.

[10]     In examining generalized risk in this particular case, I must look at whether or not there have been consequences as a result of the initial threats, because extortion on its own would be a generalized risk. I must also look at what factors may move your claim from the category of generalized risk into a personalized risk, in other words as it relates to you.

[11]     You have provided much documentation with respect to what happened in El Salvador, with respect to your brother and your father’s attempt to locate him. Therefore, the motive has been established. As I indicated earlier, it began as extortion, and then the precipitating event which led to your departure was a demand for you to transport drugs.

[12]     This may also be the modus operandi of the MS-13 gang. Given the documentation that you have submitted, I concur that this may well be tied to, and certainly indicates that if you did not comply with the perpetrators’ demands, you could meet the same fate as your brother. Therefore, I find that this event removes you from the generalized risk category, into a personalized risk, because of this consequential and heightened risk.

[13]     The objective evidence is extensive in the National Documentation Package (NDP).4 The MS-13 and the 18th Street Gang (Barrio 18) are violent, armed street gangs involved in drug sales, extortion, arms trafficking, murder for hire, carjacking, and aggravated street crime.

[14]     A report by the International Crisis Group indicates that: “The [MS-13] are both victims of extreme social inequality and the perpetrators of brutal acts of violence.”5

[15]     The murders in El Salvador among the world’s highest rates of homicide,6 the incidents include confrontation with the police, rivalries, score settling, or intimidation carried out by the two outstanding Mara organizations: MS-13 and the Barrio 18.

[16]     I am satisfied that the objective evidence confirms and supports the subjective basis of your fear that you are at risk of harm or death if returned to El Salvador.

[17]     In terms of state protection, you have indicated in your oral testimony about the corruption and the police presence within these gangs. The Immigration and Refugee Board’s NDP indicates that the El Salvadorian authorities are not effective in combating crime.7

[18]     According to the documentary evidence, there have been serious concerns about corruption within the police and judicial systems.8 Therefore, the presumption of state protection is rebutted.

[19]     The United States Department of State’s “El Salvador 2018 Human Rights Report” indicates that: “impunity persisted despite government steps to dismiss and prosecute some [officials] in the security forces, executive branch, and justice system… “9

[20]     The International Crisis Group also indicates that “[c]orruption is prevalent in Salvadoran judicial and security institutions…”10

[21]     Consequently, I conclude that state protection is not adequate.

[22]     Although, not placing the issue of an internal flight alternative (IFA) on the table, in light of the fact that El Salvador is a small country and the Mara Salvatrucha groups operate throughout El Salvador, I do not find a viable IFA in the particular circumstances of your claim.

[23]     I consider that while the average El Salvadorian could be affected by gang related crime, I find that you and your family were singled out.

[24]     Accordingly, for the foregoing reasons, I find that you are a person in need of protection pursuant to Section 97(1) of the Immigration and Refugee Protection Act, and accordingly your claim is accepted.11

———- REASONS CONCLUDED———-

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended [IRPA], sections 96 and 97(1).
2 Exhibit 2, Basis of Claim Form (BOC), received January 29, 2018.
3 Exhibit 1, Package of information from the referring CBSA/IRCC, received January 29, 2018.
4 Exhibit 4, National Document Package (NDP) for El Salvador (September 30, 2019).
5 Ibid., item 7.8.
6 Ibid., item 9.2.
7 Ibid., item 7.6.
8 Ibid., item 9.2.
9 Ibid., item 2.1, Executive Summary.
10 Ibid., item 9.2.
11 IRPA, supra, footnote 1, section 97(1).

Categories
All Countries El Salvador

2019 RLLR 45

Citation: 2019 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: November 7, 2019
Panel: Nicole Ginsberg
Country: El Salvador
RPD Number: MB8-25771
ATIP Number: A-2020-01274
ATIP Pages: 000030-000036


[1]       This is the decision of the Refugee Protection Decision in the claim for refugee protection of [XXX], file number MB8-25771. Ms. [XXX], you are claiming refugee protection in Canada pursuant to section 96 and sub-section 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case, and I am prepared to render my decision orally. A written version of this decision will be sent to you by mail at a later date.

DETERMINATION

[2]       I find that you face a serious possibility of persecution in El Salvador on the basis of your membership in a particular social group as a lesbian woman. I therefore find that you are a “Convention refugee” pursuant to section 96 of the Act and I accept your claim. In coming to this conclusion, I have considered the Chairperson’s guideline number nine on sexual orientation and gender identity and expression. My reasons are as follows.

ALLEGATIONS

[3]       Your allegations are contained in your Basis of Claim form, including the narrative your attached and the amended narrative that you submitted subsequently, both of which are found at document two of the evidence. In summary, you fear your former co-worker [XXX] (phonetic) will make good on the death threats he has been making about you as a result of being fired from your place of work. You also allege that as a lesbian who presents in a way you described as being masculine, you are not and will not be accepted by El Salvadorian society generally and your human rights are not respected there. You explained the death threats you suffered from [XXX], the danger he poses to you because of his particular profile, and the adverse treatment of same-sex relations and of LGBTQ people in El Salvador generally, including the lack of regard for LGBTQ rights by El Salvadorian authorities and the unwillingness of the authorities to protect LGBTQ persons there.

[4]       You allege that you are a lesbian and have been in a same-sex relationship with a woman, [XXX], I’ll… I’ll spell that now [XXX]. Is that correct? Ok. For over 11 years, since [XXX] 2007. Your relationship continues to this day. You allege that you have suffered harassment and ill­ treatment in El Salvador from as far back as 2004 as a result of your perceived sexual orientation and have had to live in fear that people would find out. You relayed several incidents of having endured insults and threats from strangers as a result of being perceived as a lesbian, to the extent that you have feared for your life. You explained that same-sex relationships are not accepted in El Salvadorian society generally and the authorities demonstrate an unwillingness to help LGBTQ people. You allege that you have had to keep your sexual orientation secret and that you come from a religious family that does not accept same-sex relationships. Your mother does not accept your being a lesbian, and your father told you that if he found out one of his children was homosexual, he would poison their soup.

[5]       You allege that as a [XXX] at [XXX] in La Libertad, you told an employee’s supervisor about his lack of respect for work hours and that this person, XXXX, lost his job as a result. He began harassing and insulting you based on your sexual orientation and he showed another co­worker a gun that he said he intended to use on you. You allege the death threats must be taken seriously in a country whose security situation is as precarious as El Salvador’s, particularly as an LGBTQ woman who cannot rely on the protection of the police. And, that [XXX] is known to have… to take part in criminal activity and has family political ties. You fled El Salvador on [XXX], 2018, soon after the threats from [XXX] began, and came to Canada where you made your claim for refugee protection.

ANALYSIS

IDENTITY

[6]       Your personal and national identity as a citizen of El Salvador is established on a balance of probabilities by your testimony and by the documentary evidence on file, including a copy of your El Salvadorian passport at document one.

NEXUS

[7]       Your allegations establish a nexus to the Convention ground I identified earlier and I have therefore analyzed your claim pursuant to section 96 of the Act.

CREDIBILITY

[8]       Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this claim, I have no such reason. I find you to be a credible witness. You testified today to be a straightforward, open and sincere manner. You were spontaneous in your answers to my questions, and I do not find that you tried to embellish or exaggerate your allegations during your testimony. You testified credibly and in detail during the hearing about your attraction to women, how you came to realize that you were somehow different, as you say, as a child, and your attraction to women and girls in your adolescence. You testified credibly about your relationship with [XXX], how you met, how your relationship changed from being co-workers to being romantic partners, and about how you had to carry on your relationship in secret, with people believing you were roommates.

[9]       You further testified credibly about your life in Canada as an openly lesbian woman, and the freedom you have found to express yourself, in particular to dress in a way to you have described as masculine. You explained how your job at a men’s suit retailer is your dream job because you finally are able to wear a suit and tie to work everyday. You testified credibly about the treatment of lesbians and LGBTQ people in El Salvador, in law and society. Specifically, you explained that people don’t want to see LGBTQ people for who they are, and often treat them as invisible. The authorities don’t take their complaints seriously. It would be… It would not be safe to be out in the open about a same-sex relationship there or to express oneself with a gender expression not considered binary or mainstream. Your testimony was consistent with the allegations in your Basis of Claim form, and also included some more specific details that were not contained in your Basis of Claim form, but these details allowed me to better and more fully understand your claim.

[10]     You further provided corroborative documentary evidence in support of your allegations. Several… well… Including the following. Photos of you and your partner and your dogs, who you explained are like your children, at exhibit 1… C-1. Photos of you at pride events, also at C-1. Photos of you dressed for work at the [XXX] at which you work in Canada in the same exhibit. Letters from LGBTQ organisations in Canada concerning your involvement, including the women’s choir and a Valentine’s dance from exhibits C-2 to C-6. Sworn statements from three co­workers from [XXX] concerning the threats by [XXX] at exhibits C-15 to C-17. A letter of employment from [XXX] at C-14, declaration of cohabitation with [XXX] at C-13, and several articles concerning the situation of LGBTQ people in El Salvador at exhibit C-20 through C-23. There were… There were no relevant contradictions, inconsistencies, omissions between your Basis of Claim form, your testimony at the hearing and the documentary evidence on file.

OBJECTIVE BASIS

[11]     Your allegations are consistent with the objective country documents before me concerning the treatment of lesbians in El Salvador. For example, although we see same-sex relations are not criminalized in El Salvador, as we see from the objective documentary evidence, for example in tabs 2.1 and 6.3, there are some laws prohibiting discrimination based on sexual orientation and gender identity enforced in the country including in regards to housing, employment, nationality and access to government services. However, the objective documentary evidence is clear about the significant legal vacuums that exist for the protection of LGBTQ people in El Salvador. There is widespread stigmatisation of LGBTQ people, and no general non-discrimination law to protect marginalized people in El Salvador. That’s found at tab 6.3. The objective documentary evidence indicates that El Salvador LGBTQ people are particularly exposed to violence in El Salvador which is linked to the discrimination they face on various fronts in their family life and working life, and it’s part of society generally. This relates to not only sexual orientation but gender expression as well. This is particularly troubling in El Salvador as it is among the most violent countries in the world. This is at tab 6.1 of the National Documentation Package. There is no official government data on hate crimes or bias motivated violence against LGBTQ people in El Salvador, but the evidence is replete with examples of violence against LGBTQ people and a lack of will on the part of the State to bring perpetrators to justice. That’s found at tab 6.3. The evidence also points to grave deficiencies in the country’s justice system and a lack of access to justice for LGBTQ people.

[12]     Not only do they face obstacles in reporting crimes against them because of the widespread social stigmatisation and the lack of acceptance, including within law enforcement, perpetrators often face impunity in cases of violence, that is at tab 6.3. This document also discusses the bias against the LGBTQ community that is prevalent within the police and justice sectors themselves. One cannot forget the background against which violence against LGBTQ community members occurs in El Salvador, that has been described as the murder capital of the world with a rate of 116 murders per 100 000 people in 2015. That’s also at tab 6.3.

[13]     The claimant has also provided… or, pardon me, you have also provided documentary evidence concerning the human rights situation of the LGBTQ community in El Salvador, the lack of police protection, and incidences of violence against the community. The research pieces at tab 6.2 also discusses in detail the pattern of systemic discrimination and violence against the LGBTQ people by the Salvadorian law enforcement itself. For all of these reasons and country conditions, I find you to be credible. I therefore find you’ve established on a balance of probabilities that you are a lesbian, that you were subjected to death threats at the hands of your former co-worker [XXX], and that you have otherwise experienced harassment and mistreatment in El Salvador as a result of your sexual orientation and it can also be said as a result of your gender expression. I also find that you have demonstrated subjective fear in El Salvador, that in view of the objective country evidence, is objectively well-founded.

STATE PROTECTION

[14]     I find that you have rebutted the presumption of State protection with clear and convincing evidence that the Salvadorian state would be unable or unwilling to provide you with adequate protection. The documentary evidence is replete with information about the risks facing people of the LGBTQ community in El Salvador and the lack of State protection for such people, including a widespread pattern of systemic discrimination and violence by law enforcement itself. This is found most pointedly at tab 6.2 as well as the country documents submitted by you. In addition, I have discussed above the legal vacuums that exist to protect LGBTQ people in El Salvador, including the absence of a general non-discri… discrimination law and a lack of enforcement of violent crime and harassment against LGBTQ people. For all of these reasons, I find that you have rebutted the presumption of State protection.

INTERNAL FLIGHT ALTERNATIVE

[15]     I find that you face a serious possibility of persecution throughout El Salvador as a result of the widespread stigmatisation of same-sex relations through El Salvador, the legal vacuums and lack of willingness from police to protect LGBTQ people, and moreover, the pattern of discrimination and violence actually perpetrated against LGBTQ people by law enforcement itself. The violence and lack of regard for human rights of LGBTQ people persists throughout the country, as does the lack of State protection. You have also testified credibly that people have explained to you [XXX] criminal involvement, his political connections through his father and his pattern of impunity from offenses like drunk driving because of those connections. Moreover, you would not be expected to ignore your sexual orientation if you were to return to El Salvador. I find that if you were to live your life as a lesbian in El Salvador, particularly one who presents in a way that you describe as masculine, you would face a serious possibility of persecution at the hands of members of the public, the authorities and [XXX]. Because you have a serious possibility of persecution anywhere in El Salvador, I will not analyze the second prong of the… of the IFA. For all of these reasons, I find that there is no viable internal flight alternative for you in El Salvador.

CONCLUSION

[16]     For all of these reasons, I find that you have established on a balance of probabilities that you have a subjective fear of return to El Salvador that is objectively well-founded. Having considered all the evidence, including your testimony, I find that you, [XXX] face a serious possibility of persecution in El Salvador on the Basis of your membership in a particular social group as a lesbian. I therefore find that you are a “Convention refugee” pursuant to Section 96 of the Act and I accept your claim. So, this concludes your hearing.