TB6-10961

RPD File No. / N° de dossier de la SPR : TB6-10961 TB6-10960 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Claimant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing October 7, 2016 November 23, 2016 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision December 6, 2016 Date de la décision and reasons et des motifs Panel Catherine Smith Tribunal Counsel for the Claimant(s) Adela Crossley Barrister and Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the principal claimant) and XXXX XXXX XXXX XXXX (the associated claimant) are brothers and citizens of El Salvador who are seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act1 as they fear the gangs back in El Salvador. [2] The panel is satisfied as to the identities of the claimant, based on the certified true copies of their passports2 and copies of their birth certificates.3 DETERMINATION [3] The panel finds that the claimants have not established that there is a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, they would personally be subjected to a danger of torture or face a risk to life or risk of cruel and unusual treatment or punishment upon return to El Salvador. ALLEGATIONS [4] The claimants both allege they had problems with the Mara Salvatrucha (MS-13) gang in El Salvador, due to the gang members XXXX XXXX XXXX XXXX XXXX, and "XXXX XXXX XXXX", trying to recruit the principal claimant, and XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, and XXXX, trying to recruit the associated claimant. [5] The principal claimant left El Salvador with the help of an agent and arrived in the U.S. in December 2012, where he claimed asylum after being detained. The associated claimant left El Salvador and arrived in the U.S. in December 2014. Both claimants came to Canada and claimed refugee protection on August 18, 2016, fearing harm at the hands of the MS-13 gang for having defied them and fled from El Salvador. ANALYSIS [6] The determinative issues in this case are credibility and an internal flight alternative to either San Salvador or Santa Ana. Nexus [7] The panel notes that the claimants' counsel indicated in her submissions that the claimants were not advancing a claim pursuant to section 96 of the IRPA. The panel also notes that any claim made by the claimants under section 96 would not have succeeded as the panel finds that the claimants have not established that there is a nexus to one of the Convention grounds. [8] The claimants testified that they fear gang violence in El Salvador as the MS-13 previously tried to recruit them. As such, the panel finds that the claimants are victims of crime or of a personal vendetta. The Federal Court has held that victims of crime, corruption or vendettas generally fail to establish a link between their fear of persecution and one of the Convention grounds in the definition of Convention refugee.4 [9] The panel finds that the claimants fear being a victim of crime is not linked to race, religion, nationality, political opinion, or membership in a particular social group and as such is not linked to a Convention ground. As a result, the claim would fail under section 96 of the IRPA. As such, an analysis under section 97 of the IRPA follows. Credibility and Failure to seek protection in the United States [10] The panel finds that the principal claimant's abandonment of his U.S. asylum claim and the associated claimant's failure to seek protection in the U.S. are detrimental to their credibility for the reasons below. [11] The panel notes that given that this claim is being assessed under subsection 97(1) of the IRPA, there is no subjective fear component to the analysis. However, in the absence of a satisfactory explanation, behaviour inconsistent with being fearful, including delays or omissions in seeking protection in the face of allegations of the possibility of severe harm or death as encompassed by subsection 97(1), may undermine a claimant's credibility regarding the existence of such a risk. The principal claimant [12] The principal claimant arrived in the U.S. in December 2012 and claimed asylum after he was detained by U.S. immigration authorities for illegal entry. [13] The principal claimant testified that he did not attend the court date he was given for his asylum hearing because he followed the advice of others who told him his claim would be rejected and he would be deported back to El Salvador. He testified that his bail bondswoman had said that he could not live with her anymore and he feared he would be detained and deported for violating a condition of his bail. He also testified that he did not have the resources for a lawyer given that he was repaying the bail bondswoman the money she had paid for his release. When asked, the principal claimant testified that he assumed when he did not show up for his court date that a deportation order had been issued against him. The principal claimant testified that he never made any efforts, other than his abandoned asylum claim, to regularize his status in the U.S. [14] The panel finds the principal claimant's explanation for the abandonment of his U.S. asylum claim and subsequent failure to regularize his status in the U.S. to be not reasonable. The panel notes that the principal claimant fled to the United States out of fear for his life because of the gangs in El Salvador. Based on his testimony he made an asylum claim when he was detained because he did not want to be deported and yet he abandoned his asylum claim, thus ensuring that a deportation order would be made against him. The panel also notes that the principal claimant was in the U.S. for 4 years, without status, and as such was at risk of removal. In that context, his explanation that he abandoned his asylum claim for fear that he would be deported is not reasonable, particularly given his allegation that he would face violence from the MS-13 who tried to recruit him should he return to El Salvador and that the abandonment ensured a deportation order would be issued against him. The associated claimant [15] The associated claimant arrived in the U.S. in December 2014. He testified that he never sought protection from the U.S. authorities because he was following the advice of others that he would be detained, his claim would be denied, and he would be deported back to El Salvador. [16] The panel finds that the associated claimant's explanation for his failure to seek protection in the U.S. to be not reasonable. The panel notes that like his brother, the associated claimant fled to the United States out of fear for his life because of the MS-13 in El Salvador. The panel also notes that the associated claimant was in the U.S. for 2 years, without status, and as such risked deportation. The panel would reasonably expect someone who fears return to their country to seek avenues to allow them remain outside of their country of alleged persecution. In that context, his explanation that he never sought protection for fear that he would be deported is not reasonable, particularly given his allegation that he would face violence from the MS-13 who tried to recruit him should he return to El Salvador. Counsel's submissions [17] The claimants' counsel submitted that the United States does not grant asylum to claimants from Central America as there is no equivalent to section 97 of the IRPA in U.S. asylum claims, and claimants have to bring their claims under one of the Convention grounds. The claimants' counsel also provided statistics to demonstrate that only a small portion of claims from El Salvador are accepted. [18] The panel is not persuaded by the counsel's submissions. The claimants were in the U.S. for almost 4 years and almost 2 years respectively. While both eventually made their way to Canada, their intention upon arriving in the U.S. was to stay there, and not return to El Salvador. Based on their testimony, other than the principal claimant's asylum claim, which he abandoned thereby ensuring a deportation order would be made against him, they did not make any efforts to seek protection or to regularize their status. They did not speak to any legal counsel regarding their situation, nor did they testify to having done independent research into possible ways they could remain outside El Salvador, other than speaking to members of their community. [19] When asked about why they decided to come to Canada, the principal claimant said that his brother saw on the internet that they were giving refugee protection to El Salvadorians in Canada. The panel notes that the claimants have proven themselves to be resourceful individuals, who were able to live and work in the United States, the principal claimant for almost 4 years and the associated claimant for almost two years. In addition, according to their testimony, the claimants were able to use the internet in order to find out that they could make a refugee claim here in Canada. As such, the panel finds that their failure to make any effort to regularize their status in the United States and the lack of a reasonable explanation for this failure to be detrimental to the credibility of the two claimants. [20] In this case, given the intention of the two claimants to remain in the United States and the length of time they remained there illegally, the panel finds the failure to seek protection by the associated claimant and the abandonment of the U.S. asylum claim by the principal claimant, as well as their failure to make any effort to regularize their status in the United States to be fatal to their refugee claims. Internal Flight Alternative (IFA) [21] The panel considered an IFA to San Salvador or Santa Ana, two of the largest cities in El Salvador and both several hours away from Guatajiagua where the claimants had problems with the gangs. Given the facts of this case, the panel finds that the claimants would be able to relocate to one of these two cities for the reasons below. [22] Claimants are expected to avail themselves of a safe haven in their own country where they would be free of persecution, unless they can show that it is objectively unreasonable for them to do so. It is not a matter of the claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location before traveling half-way around the world to seek a safe haven, in another country. 5 [23] The test to apply in order to determine whether a viable IFA exists is two-pronged: (i) there is no serious possibility of the claimants being persecuted or subjected, on a balance of probabilities, to a danger of torture or to a risk to life or of cruel and unusual treatment or punishment in the proposed IFA area, and (ii) conditions in the IFA area must be such that it would not be unreasonable, in all the circumstances, for the claimants to seek refuge there.6 [24] The claimants bear the burden of proof to show that they would be subject personally, on a balance of probabilities,7 to a risk to life or a risk of cruel and unusual treatment or punishment in all of El Salvador and specifically in the potential IFA area, in this case San Salvador or Santa Ana.8 Risk faced in San Salvador or Santa Ana [25] The panel finds that while the claimants may have faced a personalized risk in Guatajiagua in 2012 for the principal claimant and in 2014 for the associated claimant, they would only face a generalized risk in San Salvador or Santa Ana. [26] The claimants were asked if they could return to El Salvador and reside in either San Salvador or in Santa Ana. The principal claimant testified that he could not live in either place because the gangs are very big and they will ask him for identification when he arrives and they will have suspicions that he is fleeing. The associated claimant testified that he could not live in either place because the MS-13 gang is the biggest gang in El Salvador and the people looking for him were chiefs of the gang and they have a way of communicating so they would find him. [27] The panel finds that the claimants have not adduced any evidence to indicate that the gangs are currently looking for them. The principal claimant testified that his last communication with the gangs was XXXX 2012. When asked, the principal claimant testified that the gangs have not gone to his parents' home looking for him. The associated claimant testified that his last communication with the gangs was in XXXX 2014. The panel notes that the claimants provided an affidavit from their father,9 and there is no mention in the affidavit of the gangs currently looking for either claimant. [28] The associated claimant testified that his wife, who is currently living in San Miguel with the claimants' eldest brother XXXX, is worried because there are strangers outside the place where they are currently staying. Based on the questions asked, the associated claimant testified that the strangers have not approached the house and no one has come looking for him there. Based on this the panel finds it to be speculation as to who these strangers are and whether or not they are looking for the associated claimant. [29] The claimants' older brother XXXX is also currently living in San Miguel in El Salvador at an uncle's house. He was deported from the United States back to El Salvador following the rejection of his refugee claim. According to the testimony of the claimant, XXXX is allegedly in hiding but has not had any problems with the gangs since his return. The claimants also provided a letter from XXXX where he indicates that he is in hiding.10 The panel finds that this is not evidence that the gangs are currently looking for the claimants. [30] The panel finds that while the claimants may have been personally targeted in Guatajiagua in 2012 and 2014, on a balance of probabilities, they do not face a personalized risk in San Salvador or Santa Ana. The claimants may have previously been targeted for recruitment, but there is no persuasive evidence before the panel to suggest that the MS-13 are still interested in either of them today. [31] According to the objective country documentation, the level of crime in El Salvador is "critical", corruption is rampant, and businesses and citizens are subject to extortion on a regular basis.11 The country documents also indicated that gangs operate throughout El Salvador and that the crimes they commit include homicide, extortion, forced recruitment, forced disappearances, street-level drug trafficking (narcomenudeo), threats, and carjacking.12 [32] Although the documents indicate that the gangs in El Salvador operate throughout the country and have a communication network which gives them the capacity to track and locate individuals, the panel finds that the claimants have not established that the Maras are currently looking for them. Given that 4 years has passed since the principal claimant left, and two years has passed since the associated claimant left, the panel finds that the claimants have not established that the gang members who tried to recruit the claimants in Guatajiagua would be looking for them in San Salvador or Santa Ana. As such, the panel finds that the claimants have not established that they would face a risk that is personalized or heightened as compared to the general population in San Salvador or Santa Ana. Consequently, the panel finds that the risk faced by the claimants in San Salvador or Santa Ana would be a similar risk as the general population. Reasonableness test [33] The panel finds that it is not objectively unreasonable for the claimants to relocate to San Salvador or Santa Ana. The claimants are both young and have shown themselves to be quite capable and resourceful individuals. They lived in the United States without status almost 4 and almost 2 years respectively. In that time, they were able to find paid work and support themselves. The associated claimant said that he has his family and there is no work in El Salvador. The panel notes that these are not reasons which would make the IFA unreasonable. [34] Based on the particular facts of this case, the panel determines that there is an IFA for the claimants in San Salvador or Santa Ana. Therefore, the claimants have not established, on a balance of probabilities, that they would be subject personally to a risk to life or to a risk of cruel and unusual treatment or punishment in El Salvador at the hands of the MS-13. CONCLUSION [35] Having considered all of the evidence, the panel finds that there is not a serious possibility of persecution on a Convention ground should the claimants return to El Salvador, or that, on a balance of probabilities, they would be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment. [36] The panel concludes that the claimants are not Convention refugees or persons in need of protection. Therefore, their claims are rejected. (signed) "Catherine Smith" Catherine Smith December 6, 2016 Date 1 IRPA S.C. (2001), c. 27 as amended. 2 Exhibit 1. 3 Exhibits 1 and 7. 4Barrantes, Rodolfo v. M.C.I. (F.C., no. IMM-1142-04), Harrington, April 15, 2005; 2005 FC 518; Prato, Jorge Luis Machado v. M.C.I. (F.C., no. IMM-10670-04), Pinard, August 12, 2005; 2005 FC 1088. 5 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 7 Li v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239 (F.C.A.). 8 IRPA, s. 97(1)(b)(ii). 9 Exhibit 7. 10 Exhibit 10. 11 Exhibit 4, National Documentation Package (NDP) for El Salvador (September 30, 2016), items 7.2; 7.6; and 7.17. 12 Ibid., item 7.17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.29.1 (August 31, 2012) RPD File No. / N° de dossier de la SPR : TB6-10961 TB6-10960