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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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 ———-