Deportation order for N.J. man reversed after appeals court ruling

A North Jersey man faced with deportation to his native Guatemala has won a new chance to remain in the United States after a federal appeals court last week overturned an order of removal, with the judges citing the man’s fear that he will be targeted by MS-13 gang members.

The 30-page opinion by the Third Circuit Court of Appeals regarding Selvin Heraldo Saban-Cach is an uncommon one, according to his lawyer, Stephanie Norton — not just because the decision is so expansive, but also because the three-judge panel rebuked the lower court judges for not considering the suffering asylum seekers face.

The opinion sends Saban-Cach’s case back to the Board of Immigration Appeals for reconsideration.

“Maybe once a year, every couple of years, they’ll issue a precedential decision. This one is really exciting because it touches on so many different issues,” Norton said in an interview. “Often the decisions will be fairly limited, whereas this one … talks about so many things that are relevant.”

She pointed to the sweeping message sent by Judge Theodore McKee that immigration judges need to empathize with the migrants whose lives they hold in their hands. He warned the lower courts that they had already been cautioned to check their bias.

“Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kind of resources as their adjudicators is shortsighted and unfair,” McKee wrote.

Saban-Cach’s life in Guatemala

Saban-Cach was one of the few indigenous Kaqchikel Mayans living in Montufar, a village in Sacatepéquez, Guatemala.

He described being harassed for his ethnicity and recruited for the local MS-13 gang. When he refused to join, gang members beat him with stones, attacked him during walks home from school, and followed him when he tried to move to a town 90 minutes away. In the worst attack, they stabbed him in the back with a glass bottle and kicked him until his skin came off, leaving him unconscious in the street, he told immigration officials.

After that last attack, Saban-Cach told the immigration court, his grandmother treated him using herbal remedies because the only hospital was far away, and he was left with scars above his right eyebrow, chest, arm, and lower back.

He didn’t report his attackers to police because authorities discriminate against indigenous people and were paid off by the gang, he told the courts.

The gang members followed him and his family members through the streets, to school, and on the bus threatening to kill them, he said. When he left to visit family in San Pedro, three gang members followed him.

Saban-Cach fled by crossing the border into the United States, making his first attempt alone in April 2014. While he was crossing the Mexican border, immigration officials captured him and issued an expedited order of removal, sending him back to Guatemala.

He said he didn’t know he could apply for asylum at the time.

When he returned, gang members targeted him and his family again, driving him to try crossing the border again a month later, when he was once more caught by immigration officials. He made it into the United States in 2015, and eventually arrived in New Jersey.

He was detained in 2020 after he was arrested for a minor charge that his lawyer said was dismissed and expunged. Facing another deportation, he told immigration officials his fears of being killed by the local gang.

Immigration judge and Board of Immigration Appeals

Sabin-Cach went before an immigration judge in 2021, requesting a withholding of removal and relief under the United Nations Convention Against Torture, which offers legal protection to people who fear being tortured if they return to their home country.

Immigration Judge Pallavi S. Shirole determined he did not reach that standard of persecution.

Shirole said that “young Guatemalan men who are recruited by a gang and publicly refuse to join” are not a protected group under asylum laws. The judge said Sabin-Cach also failed to show his attacks were politically motivated, or that he had a reason to fear they would happen again.

Shirole also suggested it would be relatively easy for Saban-Cach to move to another town in Guatemala. She also noted no reports were filed with police, despite recognizing they work with gangs and the “generalized discrimination” toward indigenous people.

Saban-Cach appealed her decision to the Board of Immigration Appeals, which agreed with Shirole. They said the brutal attack by gang members that left Saban-Cach unconscious did not rise to the level of persecution because he did not seek “professional medical care” like sutures or surgery.

Overturning the order of removal

McKee’s opinion opens by criticizing the lower courts for not giving an “adequate explanation” for its decision and for issuing a decision “completely conflicting” with the record. Throughout his decision, McKee rails against their reasoning as “puzzling and disappointing,” “unpersuasive,” and “unconvincing.”

He called the lower court’s logic when it came to Sabin-Cach’s access to medical care “disingenuous.” The courts never bothered to ask whether professional care is even accessible in Monafur, McKee wrote.

“The evidence in the record only indicates one option for professional medical treatment — a hospital that was far away. And it seems unlikely that Saban-Cach could have called an Uber (or similar ride-sharing service) to take him there,” he wrote.

He also pointed to the lower judges’ lack of knowledge of the Guatemalan health care system and the role of traditional medicine. Saban-Cach’s use of his grandmother’s natural remedies should be considered a form of seeking medical care and “may well have been accepted as the only treatment realistically available even for very serious injuries,” McKee wrote.

McKee wondered how far an assault must go to reach the standard of persecution that lower judges demanded.

“To find this incident insufficient to rise to the level of persecution suggests that egregiousness must go beyond being stabbed, kicked into unconsciousness, and left bleeding with pieces of flesh hanging off,” McKee wrote.

The Third Circuit determined that Saban-Cach is at risk of being killed by the gang — which has since grown in strength and numbers — if he returns. They vacated the Board of Immigration Appeals’ removal order and remanded it to that court to reconsider based on McKee’s opinion.

Norton said it could take years before Saban-Cach is in court again, but until then, he remains safe and happy with the decision in his North Jersey home with his wife and two daughters. While he cannot claim asylum or be a lawful citizen because of his previous removal order, Saban-Cach can obtain a work permit, she said.

In part, it’s rare for these cases to make it to the Third Circuit because migrants do not have the right to an attorney and are often unrepresented in their cases, Norton said.

She argued his case on behalf of Seton Hall University School of Law, a partner in the state’s Detention and Deportation Defense Initiative, which provides legal representation to low-income immigrants in detention who face deportation.

The case is back in the hands of the immigration appeals court for a final decision, which Norton is hopeful about after the “unexpectedly positive” decision from the Third Circuit.

“It’s easy to get discouraged when you see case after case getting denied, and it’s hard for people to devote themselves to a fight that could take many years to win,” she said. “I think it gives us all hope that hopefully, in more cases in the future, we can be successful too.”