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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).