Carmen I. Rodriguez-Arroyo, Esq.

DETAINED
VV825103
The Bronx Defenders
360 East 161st Street
Bronx, NY 10451

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW YORK, NEW YORK
____________________________________
)
In the matter of: )
)
YAMBA-TENEZACA, Luis A. ) A 205-293-802
) In Removal Proceedings
Respondent. )
____________________________________)

Immigration Judge Tsankov Next Hearing (Individual): November 6, 2017

RESPONDENT’S PRE-HEARING STATEMENT

 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
NEW YORK, NY
------------------------------------------------------------------------
In the Matter of )
)
YAMBA-TENEZACA, Luis A. ) A 205-293-802
) In Removal Proceedings
Respondent )
------------------------------------------------------------------------

RESPONDENT’S PRE-HEARING STATEMENT

Mr. Luis A. Yamba-Tenezaca (“Mr. Yamba-Tenezaca”), through undersigned counsel,

respectfully submits this pre-hearing memorandum in support of his application for asylum,

withholding of removal and protection under the Convention against Torture (“CAT”). As

discussed in detail below, Mr. Yamba-Tenezaca is eligible for protection because it is more

likely than not that he will be subject to persecution and torture in the form of severe harm or

death if he is forcibly removed to Ecuador. Mr. Yamba-Tenezaca will be targeted because of his

membership in the particular social group of the “Yamba-Tenezaca family”, which has

previously been targeted and suffered harm by members of the Sombra Negra (Black Shadow)

gang. His family—including members of the indigenist Pachakutik party—has resisted youth

violence and gang influence and terror through community organizing, challenging gang

authority in communities where police oversight is inexistent and violent crime often goes

unprosecuted. Their efforts have cost at least two family members their lives, and three others

are disappeared. Law enforcement—whom members of the Yamba-tenezaca family have

approached to offer information against gang members— is unwilling to prosecute these crimes

and, as one family member experienced, they sometimes act to protect gang members, causing

undue harm to those who denounce them. Mr. Yamba-Tenezaca is thus subject to harm and

torture at the hands of both gang members and the police.

 PRELIMINARY STATEMENT

Mr. Yamba-Tenezaca is entitled to asylum, withholding of removal under Section

241(b)(3) of the Immigration and Nationality Act (“INA”), as well as withholding and deferral of
removal under the Convention Against Torture (“CAT”) because he faces persecution, torture,
and imminent death if removed to Ecuador. See INA § 208; see also 8 CFR §§ 208.16(c)(3),
208.17. First, he risks being tortured in Ecuador due to his family’s political involvement as
indigenous community leaders who resisted gang authority and violence. Second, he risks being
tortured because of his siblings’ specific encounters with Sombra Negra gang members. His
brother, Raul Yamba-Tenezaca, offered information about Sombra Negra gang members to
community leaders for an indigenous community trial, and once witnessed a Sombra Negra gang
member torture and murder his boss’s son. Furthermore, their sister, Aurora Yamba-Tenezaca
witnessed several Sombra Negra gang members murder her husband, and she and her children
were persecuted and threatened by members of the Sombra Negra to stop cooperating with law
enforcement. Since March or April of this year, his family has not seen or heard anything from
Aurora or her children, leading them to believe that she was harmed and permanently silenced by
the Sombra Negra. See generally Tab C, Affidavit of Luis A. Yamba-Tenezaca (“Tab C”), and
Tab D Evidence Corroborating Mr. Yamba-Tenezaca’s Claims for Relief (“Tab D”). It is his
sister’s disappearance, coupled with the growing presence and authority of the Sombra Negra in
Ecuador that causes Mr. Yamba-Tenezaca to fear that his own life is at risk if he returns to
Ecuador, as the gang’s retaliation for his sibling’s actions would not be finalized. See Tab C ¶¶
24-25, Tab D, Notarized Affidavit of Raul D. Yamba Tenezaca pp. 9-17, at ¶¶ 31-32.
As discussed infra, the Sombra Negra is an increasingly dangerous, widespread gang in
Ecuador who has terrorized many communities. See Section II.B. An overwhelming amount of
gangs have historic ties to Ecuador, and its National police. See generally Tab E, Country
Conditions Demonstrating Mr. Yamba-Tenezaca’s Substantial Fear and Risk of Persecution and
Torture if Removed to Ecuador (“Tab E”). Furthermore, his brother Raul has already
experienced violent mistreatment by the police, who have also declined to take his statements
regarding gang violence. See Tab C, at ¶ 17. Mr. Yamba-Tenezaca shares his family’s disavowal
of gang authority, and would seek to pursue justice for his disappeared sister and nephews. His
hometown, however, is plagued by Sombra Negra gang presence, as well as various cities
throughout Ecuador. Upon deportation, Mr. Yamba-Tenezaca will eventually be identified by
these gang members who will associate him with his family’s “disrespect” and he will fare the
same fate as his brutally murdered brother-in-law. Id. at ¶¶ 30-31
Although Ecuador was once regarded as one of South America’s safer countries,
governmental corruption, extrajudicial killings—amply documented by the U.S. Department of
State—and the proliferation of a wide-array of violent gangs have corroded the previously held
belief that it is a safe place, and recent local and international reports have instead highlighted
the various human rights abuses present in Ecuador. See generally Tab E, Country Conditions
Demonstrating Mr. Yamba-Tenezaca’s Substantial Fear and Risk of Persecution and Torture if
Removed to Ecuador (“Tab E”). Additionally, discrimination against indigenous communities
and the lack of police presence in various sectors has left many people vulnerable to gang
violence, which has spread throughout Ecuador with more than 700 individual gangs, and over
10,000 gang members operating in the mountain range alone—where Mr. Yamba-Tenezaca’s
family is located. Id.; see also Tab C at ¶ 4, and Tab D at 9, ¶¶ 3-4. Specifically, the Sombra
Negra gang, a current threat for Mr. Yamba-Tenezaca and his family, has increased its presence
in the Ecuatorian mountain range, robbing, stabbing and often murdering their victims. See Tab
E at 54-91. The lack of police presence in these areas has forced indigenous communities to band
together, as Mr. Yamba-Tenezaca’s parents once did, and enforce their own laws. Id. at 88-91.
Gangs, however, continue to threaten these communities, and the government has made no
substantial efforts to curtail their growing influence, or increase police presence in vulnerable
sectors. Id.
These facts make Mr. Yamba-Tenezaca’s removal to Ecuador a violation of the United
States’ international obligations under the United Nations Convention Against Torture (“CAT”).
As the evidence discussed below establishes, and as Mr. Yamba-Tenezaca’s testimony will
reflect, because of Mr. Yamba-Tenezaca’s family’s community organizing, witnessing of crimes
and denouncement of Sombra Negra gang members, he is highly likely to be the victim of some
form of serious violence or murder if he is removed to Ecuador. Importantly, Mr. Yamba-
Tenezaca’s inevitable harm would be inflicted with the acquiescence—and even the direct
complicity—of the Ecuadorian government. Mr. Yamba-Tenezaca’s will be tortured if returned
to Ecuador, and this Court is therefore obligated, under both international and domestic law, to
grant him relief from deportation.
Commented [RB1]: This is a good preliminary statement! You
For these reasons, Mr. Yamba-Tenezaca should not and cannot be removed to Ecuador. should merge it with the introductory section above this one
though – you should only have one preliminary section.
 PROCEDURAL HISTORY

Mr. Yamba-Tenezaca was first placed in removal proceedings at or around March, 2012,
after being detained near the border in New Mexico. El Paso, TX, Detained Docket Immigration
Judge Thomas C. Roepke denied his application for asylum on June 25, 2012, but granted
voluntary departure. See Tab C at ¶ 2; see also DHS Proffer of Evidence, Tab A. Mr. Yamba-
Tenezaca reentered the United States on or around October 6, 2012. See Tab A, Application for
Asylum, Withholding of Removal, and Protection Under the Convention Against Torture,
submitted to the Court on September 19, 2017 and marked as Exhibit 6 (“Tab A”). In January 31,
2015, Mr. Yamba-Tenezaca was arrested for the first time, and the charges for VTL 1192(2) and
VTL 0509(1) were disposed of with a fine on August 25, 2015. See Certificate of Disposition
filed separately under Tab G (“Tab G”). On December 22, 2015, Mr. Yamba-Tenezaca enrolled
in DWI group therapy sessions at Catholic Charities in Hampton Bays, which he completed on
June 23, 2016. See Tab F pp. 105-106, Letter from Carlos E. Rodriguez from Catholic Charities
C.A.S.A.C. program and Certificate of Completion from Catholic Charities Chemical
Dependence Services. On January 21, 2017 Mr. Yamba-Tenezaca was re-arrested and on June 5,
2017, he pleaded guilty to VTL 0511(3), VTL 1192(2), VTL 1192(3). See Certificate of
Disposition submitted on Bond Record on September 18, 20171. On July 20, 2017, he was
transferred to ICE custody. His first appearance before an Immigration Judge was on August 30,
2017. On September 19, 2017 he was denied bond, and submitted a Form I-589 application for
relief. See Tab A. The individual hearing was set for November 6, 2017. On October 20, 2017,
undersigned counsel filed a Motion to Continue, detailing efforts made to obtain specific
corroborating evidence from Ecuador, and a still pending FOIA request. That Motion is still
pending before this Court.
I. STATEMENT OF FACTS

Mr. Yamba-Tenezaca’s family has been characterized by strong values opposing gang
violence. His parents were community organizers up until his mother’s death in 2011. After
being denied asylum in 2012, Mr. Yamba-Tenezaca’s family has suffered specific harm at the
hands of Sombra Negra gang members. His brother, Raul, fled to the United States in 2013,
escaping persecution after being targeted by Sombra Negra and witnessing a murder; his brother-

1
Undersigned counsel will provide a new, original Certificate of Disposition for the removal record at the Individual
hearing date, after it is received from the East Hampton Justice Court.
in-law, Juan Carlos Tapia Guallpa, was stabbed and murdered in his home in Biblian on
September 27, 2015; and his sister, Aurora, and her two children, have disappeared since around
March of 2017. Commented [RB2]: If you are going to do this as a straight facts
sections, you need citations for all of these facts. Stuff like this
i. Mr. Yamba-Tenezaca’s Personal History - Background might be better integrated into your argument section

Mr. Yamba-Tenezaca was born to humble parents, Maria Teresa Tenezaca, and Demetrio
Yamba, in the rural Alausi canton in Ecuador on September 5, 1992. See Tab C at ¶¶ 1, 3. His
parents were community organizers, and supported an indigenist party called “Pachakutik”. See
Tab D at 9, ¶ 4. They organized the community to combat crime due to the lack of police
oversight in the 20-plus communities that comprise the Achupallas town of Alausi. Id. at ¶¶ 3-4;
see also Tab C at ¶¶ 3-5. On June 12, 2011, Mr. Yamba-Tenezaca’s mother died after suffering a
spinal cord injury. See Tab D at 23-24. He found her at the bottom of a ditch, but did not know
much about how she died, although there were rumors that she was killed by people who
opposed her influence within the community. See Tab C at ¶ 6. Immediately after his mother’s
death, his father and brother began pressuring him to flee to the United States, stating generally
that his life would be impacted by gangs, and that he faced unnamed dangers. Id. at ¶ 7. It was
not until his brother, Raul Yamba-Tenezaca, arrived in the United States in 2013 that he learned
that his mother’s death was the result of his brother and mother’s clash with Sombra Negra gang
members, and the threat to the rest of his family’s life became more clear. Id.
ii. Mr. Yamba-Tenezaca’s brother, Raul Yamba’s experience with the
Sombra Negra gang

Raul Yamba-Tenezaca witnessed gang presence in Ecuador throughout the Chimborazo

and Azuay provinces since he was 14 years old. He met men who “bragged about taking
everything by force: money, things…women”; they also bragged about violence, extortion, and
intimidating victims to drop charges. See Tab D at 10 ¶¶ 9-10. A couple of months before his
mother’s death, he contributed to the capture of some Sombra Negra gang members by
community leaders, who alleged they had stolen school supplies and livestock. Id. at 11 ¶ 12.
The accused were punished with poison ivy, and their parents fined. His parents were involved in
the punishment. Id. Raul heard that the family of the accused threatened that they were going to Commented [RB3]: Scary way to phrase this. Makes it seem
like his family is imposing vigilante law, not community law.
prove that there was another law that ruled in the streets besides his family’s law. Id. at 13. His
Commented [RB4]: Confused by this sentence.
mother was eventually tricked into attending a community assembly to testify, beat by two men
She went to a community assembly to testify, but it turned out to
and two females and thrown in a ditch. Id.; see also Id. at 10 ¶ 7. be a trick and she was beaten and thrown in a ditch? If so, that’s
not totally clear here.
 One day, in the last weeks of October 2012, Raul witnessed the brutal murder of his boss’
son, Diego Lema. See Id. at 11-12 ¶ 14-15; see also Tab D at 18-21 (October 27, 2012 Ecuador
Herald news article corroborating Diego Lema’s murder). Raul witnessed two males hold Diego
down while a female he knew to be a Sombra Negra gang member beat Diego and stabbed him
in the testicles. Id. Diego Lema’s body was subsequently found on the Burgay River. His murder
was linked to the previous murder of a friend of Diego Lema, who was also found on the Burgay
River. See Tab D at 18-21. Raul tried to inform the police about what happened, but the police
refused to take his statement. See Tab D at 12 ¶ 16. On December 20, 2012, as he was walking
home, Raul was brutally beaten by police officers who attempted to arrest him after he was taken
to the hospital. Id. at ¶ 17; see also Tab D at 21-22, Copy of Certified Document from Dr. Mauro
Rivera (stating that Raul D. Yamba-Tenezaca was admitted to the emergency unit for multiple
injuries in lumbar back region). Raul believes he was targeted because “one of the perpetrators of
the murder of Diego Lema’s friend, was a relative of the mayor and they wanted to hide all
evidence that would link him to the murder.” Id. at ¶ 18. By 2013, Raul fled to the United States.
See Tab C at ¶ 9.
iii. Mr. Yamba-Tenezaca’s brother-in-law, Juan Carlos Tapia Guallpa’s
murder

On September 27, 2015, Mr. Yamba-Tenezaca’s brother-in-law was stabbed and killed
by Sombra Negra gang members. See Tab C at ¶¶ 11-13, Tab D at 12, 13 ¶¶ 19-22; see also Tab
B, Death certificate for Juan Carlos Tapia Guallpa (“Tab B”). Luis and his brother Raul received Commented [RB5]: Clarify this is Respondent because these
facts are complicated.
the news while they were in the United States, and through communications with their sister
Aurora, they learned that Sombra Negra members had followed Jorge, Juan Carlos’ sixteen-year-
old brother on his way home from school, harassing him to join the gang and telling him that Commented [RB6]: A brother of a brother-in-law should just
be another brother-in-law, no?
Raul was a traitor. See Tab D at 12 ¶ 20. When Jorge arrived in his home, a van appeared and
various gang members broke into the home, beating and stabbing Jorge. Id. Juan Carlos, Aurora
Yamba-Tenezaca’s husband, came out of his room to defend his brother, and was repeatedly
stabbed and killed. Id. Aurora herself, came out to defend her husband, and was able to see some
of the perpetrators, and hear their names as they called each other to escape. Id.; see also Tab C
at ¶ 12. Juan Carlo’s sixteen year-old brother made a miraculous recovery after an extended
period in the hospital; Juan Carlos, who is also the brother of Raul Yamba-Tenezaca’s wife, bled
out while he waited for an ambulance, leaving behind his wife and two young children. See Tab
D at 12, 13 ¶¶ 19, 21.

iv. Mr. Yamba-Tenezaca’s sister, Aurora Yamba and her two children’s
disappearance
An investigation was opened into the murder of Juan Carlos Tapia Guallpa. Mr. Yamba-
Tenezaca’s sister, Aurora, pressed charges at the suggestion of her brother Raul, who insisted
that “if she knew who was responsible she should tell the police; that she shouldn’t be scared
because those people shouldn’t be out in the community.” Id. at 13 ¶ 22. Aurora was told that the
police had arrested the people responsible for the murder, but when she went to identify them,
she saw they hadn’t detained the right people, and some had been let free weeks later. Id.; see Commented [RB7]: All were released? Or just some? Does
that mean that the police held one or more people and potentially
also Tab C at ¶ 13. Through a series of troubling communications she told her brothers that she held that person responsible for the murder? Would undermine
acquiescence…
was approached at her daughter’s school and was threatened by Sombra Negra gang members to
drop the charges, and that she received a threatening letter in her home which said that if she
dropped the charges they would leave her family alone. See Tab C at ¶ 13, Tab D at 13, ¶ 23. She
struggled with the decision of whether to drop the charges, but expressed to Luis that she didn’t
want her husband “to die like an animal, with no justice”. See Tab C at ¶ 13.
Eventually, the stress of having her family threatened was too much and she fled to
Alausi with her children. Id. at ¶ 14. Even though she moved, she continued to call her brothers
and communicate she was scared; she shut down her Facebook profile because gang members
had been able to reach her through it. She was forced to move around, without feeling safe. Id.
Aurora considered leaving her children in an orphanage because their lives were at risk and she
couldn’t sustain them. Id. at ¶ 15. Luis, who felt extremely sad and anxious about this situation,
was doing all he could to support them financially and begged her to be patient, suggesting she
go to the U.S. embassy with all records of her husband’s murder to see if they would allow her to
apply for asylum. Id. at ¶ 15-16; see also Tab D at 13 ¶ 24. Though she had moved to the coastal
area, she was still scared. The last communication Mr. Yamba-Tenezaca had with his sister
Aurora was towards the end of 2016. See Tab C at ¶ 17. The rest of his family has not heard
anything from Aurora or her children since around March or April of 2017, despite attempts to
find her in various towns throughout Ecuador. Id.; see also Tab D at 13 ¶ 25. Though both Luis
and Raul hope she is hiding to protect herself and her family, the fact that she hasn’t reached out
at all makes them fear that she has in fact been found and harmed—likely even killed—by the
Sombra Negra. See Tab C at ¶ 17, Tab D at 13 ¶ 25.

II. STATEMENT ON COUNTRY CONDITIONS Commented [RB8]: I’ve never seen it organized like this. Is this
your own format or from another BXD PHS?

A. Law enforcement in Ecuador is increasingly untrustworthy and corrupt

Ecuador was regarded as one of South America’s safer countries, but governmental
instability and transnational organized crime have impacted its security. See Tab E, ISSAT
Ecuador Country Profile at 49. Additionally, human rights abuses—including arbitrary arrest and
detention, use of excessive force, and unlawful killings by security forces—have continued,
substantially influencing the high perception of insecurity in the region. See generally Tab E,
ISSAT Ecuador Country Profile at 51, and Ecuador 2016 Human Rights Report at 26-33.
The U.S. Department of State acknowledges that, despite constitutional protections,
national, provincial and local authorities arbitrarily arrest and detain individuals. See Tab E at 30.
The 2016 report indicates that “[c]orruption, insufficient training, poor supervision, and a lack of
resources continued to impair the effectiveness of the National Police.” Id. at 31. Officers often
act with impunity, and the report recognizes that the judicial process is impaired by outside
pressure and corruption. Id. at 32. Various legal and human rights organizations reported
susceptibility to bribes for favorable decisions. Id. Delays in cases brought against the
government are common, and decisions are based on “media influence or political and economic
pressures”. Id. at 33. The U.S. Department of State document cites a judicial watchdog report
which stated that “persons critical of the government, including students and indigenous leaders,
were subject to ‘disproportionate sanctions’ for minor crimes or without evidence of any
infraction.” Id. The substantial likelihood of the Ecuadorian law enforcement and judicial
officials would be complicit or acquiescent to severe harm and torture is thus not unfounded.
In addition to law enforcement abuses, Ecuador substantially restricts freedom of speech
and press, which decreases investigative reporting and impairs access to information. See
generally Id. at 35-36. The report cites journalist Janet Hinostroza—who was sanctioned on the
basis of “media lynching”—as stating that “the ruling ‘demonstrates that in Ecuador it is not
possible to do [investigative journalism],’ adding that the communications law’s intent is ‘to
silence journalists that make [the government] uncomfortable.’”. Id. at 40. The report also
acknowledges that in 2013, Fernando Villavicencio—who is affiliated with the Pachakutik party
Mr. Yamba-Tenezaca’s family supported— received an 18-month prison sentence for
defamation of President Correa. Id. at 45.
Reliance on law enforcement for protection or prosecution is not encouraged by country
conditions reports. The endemic corruption in Ecuador’s security and justice institutions is said
to benefit criminals and substantially contribute to widespread impunity. See Tab E, ISSAT
Ecuador Country Profile at 49. The ISSAT report cited the United Nations’ call on Ecuador to
address its “astonishingly high impunity” for killings in 2010, noting that for every 100 killings,
only one perpetrator was brought to justice. Id. at 52. Extreme lack of police oversight is
reflected in the report, which also stated that Interior Minister José Serrano acknowledged in
September, 2011 that, according to United Nations standards, Ecuador had a deficit of 17,000
police officers. Id; see also Tab C and Tab D, Affidavit of Raul Yamba-Tenezaca
(acknowledging that there is no police force in Achupallas, where Mr. Yamba-Tenezaca’s family
lives). Commented [RB9]: Is there anything in the country conditions
that establishes that Ecuador spends a disproportionately small
B. Gangs presence in Ecuador—including the Sombra Negra—is widespread and percentage of its money on policing? Or anything to suggest it CAN
pay for police, but CHOOSES not to?
they are sanguinary

Ecuador is home to hundreds of small gangs that engage in robbery, assault and drug-
dealing. See Tab E, ISSAT Ecuador Country Profile at 50. In 2009, the statistical magazine of
the State Attorney General’s Office, edited by the National Criminal Policy Directorate, stated
that there were about 712 gangs in the country, attributing growth of gang affiliation and
delinquency to underdevelopment and the demand for basic services such as water, electricity,
education, and health, among other factors such as a 48.08% rate of underemployment. See Tab
E, Ecuador has 712 Gangs, at 92. At that time, it was estimated about 12,000 youths in Ecuador
were members of gangs. Id. By 2016, however, it was estimated that in the Azuay and
Chimborazo provinces, where Biblian and Achupallas are located, there were about 26 different
gangs, while in the mountain range alone there were about 238 gangs with a base of over ten-
thousand members. See Tab E, Gangs and Violence In Migratory Contexts Of The Biblián
Township, Province Of Cañar-Ecuador, at 55. The largest gang documented in Biblian,
according to data from the Council for the protection of children’s Rights, is the Sombra Negra
(Black Shadow). Id. at 56. Gang presence has altered the peace in various sectors, as the Mayor
of the Biblian canton recognized: “the situation is there is latent, the citizen peace has been
altered, there is no tranquility in some aspects”. Id. at 61. Members of the community inform of
murders Sombra Negra murders where “young men have been found with their throats slit open,
stabbed […]” Id. In 2010, a local newspaper, El Tiempo, quoted Hospital Director, Victor
Crespo, saying that the authorities had done nothing about the increase in Black Shadow knife Commented [RB10]: I would stick with either the Spanish or
English. Switching between the two gets confusing.
attacks and violence in the canton even though both provincial and town authorities were made
aware of it. Id. A 2016 thesis published by Cuenca University in Ecuador noted that “[f]aced
with this phenomenon of gang violence, the state is far from establishing possible policies and
strategies that would allow the dismantling of the gangs” and actually perpetuates gang
affiliation because it does not “offer new alternatives that are different than the repression, which
in many cases is the worst barrier that can be placed on young person, conditioning them to think
that recovery is not possible.” Id. at 64-65.
Gang affiliation runs rampant with Ecuadorian youth and school officials inform that
political leadership efforts are inconsistent and insufficient, with little to no follow-up to
minimize gang influence. Id. at 67. Romero Garate, provincial attorney of Cañar fears the gang is
“beginning to expand”, attracting indigenous youth and growing in various provinces such as
Suscal, Tambo, San Pedro, Nason and Jerusalen. See Tab E, Transnational Menace In Black &
White, at 87. With Black Shadow presence expanding also throught the Chimborazo province,
communities have had to unite to get gang members to answer for crimes committed against
their community. See Tab E, Leaders of the Sombra Negra Detained By Over 80 Communities
United!! At 88. Entering the Black Shadows often requires to hit someone, and leaving the group
is not easy. See Tab E at 96, 100. In addition to the violence documented in the mountain range
provinces, gang activity is found throughout Ecuador, particularly in the coastal region where the
ISSAT stated that “express kidnapping, where individuals are held for a few hours and often
asked to empty their bank accounts, is Ecuador's third most common crime after robbery and
assault [….] The express kidnapping rate in Guayaquil reached an average of 11 per week in
2011, a figure which remained consistent in 2012.” See Tab E, ISSAT Ecuador Country Profile
at 50. Gang presence throughout Ecuador and their influence and heinous acts of violence is thus
well-documented by international and local authorities, including Ecuador’s own government
officials. See generally Tab E.
III. BURDEN OF PROOF

Mr. Yamba-Tenezaca is applying for four, distinct forms of relief, for which different
standards apply. First, he requests asylum under INA § 208. To be statutorily eligible for asylum,
an applicant must first demonstrate that he is a “refugee”. A refugee, as defined in INA§
101(a)(42)(A), is:
any person who is outside any country of such person's nationality…and who is
unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion….
Thus, an applicant must demonstrate either (1) that he has been persecuted in the past on
account of a statutorily protected ground, or (2) that he has a reasonable fear of future
persecution based on one of the protected grounds if forced to return. The persecution must be
carried out by the government, or by forces that the government is unable or unwilling to control.
For a fear of persecution to be well-founded an applicant must demonstrate that there is at least a
10% probability that he or she will suffer persecution if removed to the country from which they
seek asylum. See INS v. Cardozo-Fonseca, 480 US 421, 440 (1987) (deciding that it would be
inappropriate to conclude that “because an applicant only has a 10% chance of being shot,
tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’” of persecution); see
also Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) (stating that a showing of “as little as
10% probability of persecution may suffice” for a grant of asylum). Indeed, an applicant’s fear
may be well-founded even if there is “only a slight, though discernible, chance of persecution.”
Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 US 421,
431 (1987)). Despite the substantial evidence submitted in support of Mr. Yamba-Tenezaca’s
application, his forthcoming testimony alone—if credible, persuasive, and specific—is sufficient
to sustain his burden of proof. See 8 C.F.R. § 1208.16(b). The applicant must also demonstrate
that he is not statutorily barred from asylum for any of the reasons listed in the INA. Finally, the
applicant must show that he deserves a grant of asylum.
Second, Mr Yamba-Tenezaca requests withholding of removal under INA
§ 241(b)(3)(A), a mandatory form of relief where an applicant may not be removed to a country
where he will more likely than not be persecuted. The applicant must show that his “life or
freedom would be threatened in that country because of [her] race, religion, nationality,
membership in a particular social group, or political opinion.” Id.; see Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A finding of past persecution gives rise to a
presumption of future persecution, and it rests upon DHS to rebut the presumption through a
showing of a fundamental change in circumstance that the applicant's life or freedom would not
be threatened, or that a future threat to his or her life or freedom would be avoided by relocating
to another part of the country of removal, but only if it would be reasonable to expect the
applicant to do so. See 8 C.F.R. § 1208.16(b)(1)(i), 1208.16(b)(1)(ii). Third, Mr. Yamba-
Tenezaca requests withholding of removal under the CAT, which is available where the
applicant establishes that it is more likely than not that he would be tortured if removed to the
proposed country of removal. See 8 C.F.R. § 1208.16(c)(2).
A noncitizen who has been convicted of a particularly serious crime and who is a “danger
to the community of the United States” is ineligible for asylum or withholding of removal under
both INA § 241(b)(3) and the Convention Against Torture. INA §§ 208(a)(2)(A),
241(b)(3)(B)(ii); 8 C.F.R. §§ 1208.13(c)(1), 1208.16(d)(2). In assessing whether the conviction
constitutes a “particularly serious crimes”, the Court must consider factors such as “the nature of the
conviction, the circumstances and underlying facts of the conviction, the type of sentence
imposed, and, most importantly, whether the type and circumstances of the crime indicate that
the alien will be a danger to the community.” Matter of Frentescu, 18 I. & N. Dec. 244, 247
(BIA 1982). For the reasons set forth below, Mr. Yamba-Tenezaca has not been convicted of a
particularly serious crime and is therefore eligible for asylum and withholding of removal.
Finally, even if found ineligible for asylum or withholding of removal, Mr. Yamba-
Tenezaca must be granted protection under the non-refoulement provision of Article 3 of the
Convention Against Torture, codified by regulation at 8 C.F.R. §§ 208.16(c), 208.17, 208.18,
which prohibits the United States from deporting any individual “to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.” See
Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), as
implemented by Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.
L. 105-277, 112 Stat. 2681-821. If an applicant demonstrates that he will be tortured in the
country of removal, he is entitled to CAT relief. See 8 C.F.R. §§ 1208.16(c), 1208.17. Under
Article 1 of the CAT, torture is defined as:
any act by which severe pain or suffering, whether physical or
mental, is inflicted on a person for . . . any reason based on
discrimination of any kind, where such pain or suffering is
inflicted by or at the instigation of or with the consent or
 acquiescence of a public official or other person acting in an
official capacity.

See also 8 C.F.R. § 1208.18(a); De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir. 2010).
Torture causes severe physical or mental pain or suffering; is intentionally inflicted for a
proscribed purpose by or at the instigation of or with the consent or acquiescence of a public
official; and does not arise from lawful sanctions. INS v. Cardozo-Fonseca, 480 U.S. 421, at
480; see also Matter of J-E, 23 I&N Dec. 291, 297 (BIA 2002).

IV. ARGUMENT

A. MR. YAMBA-TENEZACA IS ELIGIBLE FOR ASYLUM

i. Mr. Yamba-Tenezaca Belongs to the Particular Social Group of
“immediate family members of the Yamba-Tenezaca family who
oppose Sombra Negra authority”
Gang related claims to asylum protection are not precluded as long as they fulfill the
requirements of particular social group membership. See Matter of M-E-V-G-, supra at 251 (“our
holdings in Matter of S-E-G- and Matter of E-A-G- should not be read as a blanket rejection of
all factual scenarios involving gangs.”) Whether or not a particular social group is viable for
asylum or withholding of removal purposes depends on whether the group meets three
requirements. First, the group members must share a common, immutable characteristic, i.e., a
characteristic that either is beyond the power of the individual members to change “or is so
fundamental to their identities or consciences that it ought not be required to change.” Matter of
Acosta, 19 I&N Dec. 211, 212 (BIA 1985) overruled in part on other grounds by Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987). An immutable characteristic may be a trait “such as
sex, race, kinship, or in some instances, past experiences.” Id. at 233. Second, the group must
be defined with particularity, meaning it must be “recognizable as a discrete group, with well-
defined boundaries.” Matter of C-A, 23 I&N Dec. 951 (BIA 2006). Finally, the group must be
“socially distinct” within the society in question. See Matter of M-E-V-G-, 26 I&N Dec. 227,
244 (BIA 2014). As the BIA recently clarified, social distinction does not depend upon ocular
visibility, but rather that the group’s members “be perceived as a group by society.” Id. at 236,
240. The social group proposed here—immediate family members of the Yamba-Tenezaca
family who oppose Sombra Negra authority—meets all three requirements, and Mr. Yamba-
Tenezaca should thus be granted asylum.
 a. Immediate family members of the Yamba-Tenezaca family
who oppose Sombra Negra authority share common,
immutable characteristics
In this case, the immutability of the proposed group arises from the family relationship, and
their opposition to gang authority, which is rooted in firmly held beliefs amongst them against
gang authority. Both the BIA and the Second Circuit have long recognized that "kinship ties"
may form a cognizable shared characteristic for a particular social group when its members are
recognizable by virtue of shared immutable characteristics "inextricably linked to family ties."
See Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007), Matter of H-, 21 I. & N. Dec. 337, 342
(BIA 1996); see also Matter of Acosta, supra, at 233; Crespin-Valladares v. Holder, 632 F.3d
117, 125 (4th Cir. 2011) (“[E]very circuit to have considered the question has held that family
ties can provide a basis for asylum.”); Al-Ghorbani v. Holder, 585 F.3d 980, 995 (6th Cir. 2009)
(“[M]embership in the same family [] is widely recognized by the caselaw.”); Gebremichael v.
INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There can, in fact, be no plainer example of a social group
based on common, identifiable and immutable characteristics than that of the nuclear family.”)..
The fact that certain members of the Yamba-Tenezaca family have opposed gang
authority, such as when Mr. Yamba-Tenezaca’s brother Raul refused gang recruitment and once
gave over Sombra Negra members to community leaders for the corresponding punishment for
stealing and that their mother was involved in such community activities, or that his sister Aurora
refused to drop charges against Sombra Negra members who killed her husband, are also
immutable. See Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008); supra Sections I.i-iv.
Furthermore, Mr. Yamba-Tenezaca’s and his family’s beliefs against gang authority cannot
reasonably be required to change, as his parent’s involvement in community organizing against
youth violence and crime has reasonably instilled in Mr. Yamba-Tenezaca, his brother Raul, and
his sister Aurora a sense of justice and disavowal of gang behavior. Id. Mr. Yamba-Tenezaca has
affirmed he does not respect or accept gang authority, and will not live by their rules. See Tab C
at ¶ 25. Such a firmly held belief cannot, as a matter of conscience, be required to change to
avoid persecution.
 b. The group of “immediate family members of the Yamba-
Tenezaca family who oppose Sombra Negra authority” is
narrowly defined and has discrete and definite boundaries
The Yamba-Tenezaca family is admittedly large. Aside from the father and the deceased mother,
there are ten siblings in total. See Tab A. The proposed group, however, argues that the members of the
family who face persecution have been those who have at some point directly opposed Sombra Negra
authority or would be imputed to do so, which does not make up a “large and diffuse segment of society”.
See e.g.Matter of S-E-G-, supra at 16 (BIA 2008). The group is not inchoate in that the motivation of
persecution is directly related to the voluntary relationship they share in their opposition, which is
ultimately rooted in their parent’s community organizing against youth crimes and violence. See supra
Section I.i-iv. Thus, the proposed group is narrowly defined, and fulfilled the particularity requirement.

c. The group of “immediate family members of the Yamba-

Tenezaca family who oppose Sombra Negra authority” is
socially distinct
Social distinction does not mean ocular visibility, but rather that the group would be perceived as
such by society. See Matter of M-E-V-G-, supra at 31. The proposed group is not defined merely by
the fact of persecution, but exists independently from it. Gang opposing members of the Yamba-
Tenezaca family are socially distinct because, beginning with Respondent’s mother and father, they have
a history within their community of organizing and standing up to crime and violence. Their efforts were
well supported by the community and the family was broadly well respected. See Tab D at 9, 10 ¶ 4-5.
The Yamba-Tenezaca’s were seen as model members of the community. Id.at 10 ¶ 5. Similar community
based opposition is still recognized within the Azuay and Chimborazo provinces in Ecuador. See Tab E,
Leaders of the Sombra Negra Detained By Over 80 Communities United!! at 88. Furthermore,
the status of the proposed group is relevant to the issue of nexus, particularly when the
persecution would arise from imputed grounds. See Matter of M-E-V-G-, supra at 39. Commented [RB11]: There might also be another imputed PSG
because of his sister’s cooperating witness PSG. See Gashi v. Holder
(2d Cir. 2012, I think).
ii. Persecuted members of Mr. Yamba-Tenezaca’s family share an anti-gang
political opinion which Mr. Yamba-Tenezaca shares, or which will be
imputed to him.

To establish persecution on account of a political opinion, an asylum applicant must show

that the persecution arises from his or her own actual or imputed political opinion. See INS v.
Elias-Zacarias, 502 U.S. 478, 482 (1992); Koudriachova v. Gonzales, 490 F.3d 255, 263-64 (2d
Cir. 2007) Elias-Zacarias instructs courts to carefully consider the factual record of each case
when determining whether the petitioner’s fear of future persecution due to his refusing
recruitment attempts constitutes persecution on account of political beliefs. The Second Circuit
has held that “an imputed political opinion, whether correctly or incorrectly attributed, can
constitute a ground of political persecution within the meaning of the Immigration and
Nationality Act." Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005) The relevant question
is not whether an asylum applicant subjectively holds a particular political view, but instead
whether the authorities in the applicant's home country perceive him to hold a political opinion
and would persecute him on that basis. Id.; Koudriachova v. Gonzales, supra. In this case, Mr.
Yamba-Tenezaca’s family opposition to gang authority qualifies him for asylum based on actual
or imputed political opinion in two ways. First, his family’s community organizing against gangs
constitutes a political act against the local government that fundamentally formed the Yamba-
Tenezaca family’s sense of justice and, second, his family’s refusal to submit to gang authority
constitutes a political act against the gang inasmuch as they represent authority in an area that is
essentially barren of governmental law-enforcement presence.
Both Mr. Yamba-Tenezaca and his brother Raul have expressed that their parents,
Demetrio Yamba and Maria Teresa Tenezaca, were community leaders affiliated with the
Pachakutik indigenist party in Ecuador, who rallied and organized to combat crime due to the
lack of police oversight in the 20-plus communities that comprise the Achupallas town of Alausi.
See Tab C. at ¶¶ 3-5; Tab D at ¶¶ 3-4. Their parent’s involvement in these activities did not have
the approval of the only authority figure in town, the Lieutenant, but they persisted because of
the Lieutenants unwillingness to follow up on grave incidents of crime that affected the
community. See Tab D at ¶¶ 3, 5. Indeed, Raul asserts “I feel the police in Ecuador is racist and
classist, and is never there for the poor folk [….] My father has also lost faith in law
enforcement.” Id. at ¶¶ 27-28. Raul became further wary of law enforcement when he was beaten Commented [RB12]: Sorry I am forgetting – do we have proof
of racism and government discrimination against indigenous groups
by police whom he believes targeted him to silence him regarding the murder he had witnessed. in Ecuador? That would be a strong basis for arguing acquiescence
and even willful disregard for gang violence in the area.
Id. at ¶ 18.
Sombra Negra gang members boldly asserted that the Yamba-Tenezaca family had their
law, but that another law ruled the streets. See Tab D at ¶ 13. Mr. Yamba-Tenezaca observes that
“[i]ndigenous law is being continuously threatened by gang authority, and more often than not,
the gangs win.” See Tab C ¶ 24. He isn’t wrong. Gang presence in Ecuador is growing. See
generally Tab E. Since Mr. Yamba-Tenezaca arrived in the United States his brother Raul has
been harassed and robbed, witnessed a murder, was refused to offer testimony by the police and
was then beaten by law enforcement because of possible political ties to a Sombra Negra
murderer and the town Mayor. See Tab D at ¶ 18. The Ecuadorian agencies’ inability or
unwillingness to provide security in the Achupallas community has forced this community to
fashion their own form of law enforcement and demand compliance from local governance, as
have other community leaders throughout the Cañar pronvince. See Tab E at 88-91. The parents’
anti-gang activities instilled in their children anti-gang values which are inherently political in
the sense that they arise from values that have political consequences within their community—
one that is forced to establish their own methods of rule enforcement to contest gang authority.
Mr. Yamba will be imputed both his parents’ and his brother’s political opinions, which he
aligns with as Mr. Yamba-Tenezaca asserts that “[i]f I am ever confronted by the gangs, I will
honor my family and denounce them with all I have. I don’t respect them, I don’t accept them.
Their rules are not the rules I want to live by”. See Tab C. at ¶ 25.
iii. Mr. Yamba-Tenezaca will be persecuted on the basis of his status as an
immediate family member of the Yamba-Tenezaca family who
opposes Sombra Negra authority and of his actual or imputed anti-
gang political opinion

There is a clear nexus between the cognizable group of “immediate family members of
the Yamba-Tenezaca family who oppose Sombra Negra authority” and the harm Mr. Yamba-
Tenezaca fears will befall him if he is forcibly removed to Ecuador. Nexus depends on the views
and motives of the persecutor. See Matter of W-G-R-, 26 I. & N. Dec. 208, 224 (BIA 2014);
Matter of N-M-, 25 I. & N. Dec. 526 (BIA 2011). The affidavits of Mr. Yamba Tenezaca and his
brother Raul submitted into evidence show a reasonable fear of retribution and punishment by
gang members motivated by this status as immediate family members of the Yamba-Tenezaca
family who oppose Sombra Negra authority.

Mr. Yamba-Tenezaca faces persecution in Ecuador because of his membership in a

particular social group, detailed supra Section IV.A.i, and his anti-gang political opinion,
whether actual or imputed. His fear is subjectively reasonable, as (1) his mother was murdered in
retaliation for both her and his brother’s contribution to Sombra Negra gang members’
punishment by community leaders, (2) his brother Raul suffered persecution at the hands of both
Sombra Negra gang members and police officials because of his attempt to aid in the
investigation of a vicious murder by Sombra Negra gang members which he witnessed, (3) his
brother-in-law was horribly murdered in his home at the hands of Sombra Negra gang members,
and (4) his sister has since disappeared after repeatedly expressing fear due to threats and
harassment by Sombra Negra gang members for cooperating with law enforcement in the
investigation of her husband’s death. See supra Sections I.i-iv.
Mr. Yamba-Tenezaca’s fear is also objectively reasonable, as the Sombra Negra gang is
widespread and violent, and his brother fears Mr. Yamba-Tenezaca’s quest for justice for his
sister and his brother-in-law will place him in danger of being identified by gang members,
without there being any viable source of governmental protection within his community to avoid
gang-induced harm. See Tab E at 54-91; Tab D at 14. Mr. Yamba-Tenezaca’s anti-gang beliefs
are deeply rooted in his family’s values and he has expressed a moral obligation to find justice
and denounce gangs, disavowing their authority. See Tab C ¶ 25. The Second Circuit has held
that even a slight, discernible chance of persecution is sufficient to establish a well-founded fear.
See Diallo v. INS, 232 F.3d 279, 284 (2d Cir. 2000) (citing INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987). Mr. Yamba-Tenezaca will very likely be persecuted because of his and his
family’s anti-gang opinion and distinct actions that have garnered the ire of an objectively
dangerous and violent gang, the Sombra Negra.

iv. Mr. Yamba-Tenezaca will be unable to avail himself of the protection of the
Ecuadorian government where the National Police is ineffective, there are
high levels of impunity for killings, and the government restricts free speech

As the above-detailed country conditions demonstrate, Mr. Yamba-Tenezaca cannot rely on

government officials to protect him from gang violence. See Sections II.A, B. State officials
estimated there were over 700 gangs in Ecuador in the year 2009. See Tab E at 92. In the Azuay
and Chimborazo provinces, where Mr. Yamba-Tenezaca’s family is located, there are estimated
to be over 238 gangs with a base of over ten-thousand members, the largest of which are Sombra
Negra. Id. at 55-56. Mr. Yamba-Tenezaca and his brother Raul affirm that there are no security
forces in their community of Achupallas, the closest precinct being about an hour away. See Tab
C ¶ 4, Tab D at 9 ¶ 3. Extreme lack of police oversight is reflected in the ISSAT report, which
states that Interior Minister José Serrano acknowledged in September, 2011 that, according to
United Nations standards, Ecuador had a deficit of 17,000 police officers. See Tab E at 52. A
2016 thesis published by Cuenca University in Ecuador noted that “[f]aced with this
phenomenon of gang violence, the state is far from establishing possible policies and strategies
that would allow the dismantling of the gangs”. See Tab E at 64-65. In 2010, a local newspaper,
El Tiempo, quoted Hospital Director, Victor Crespo, saying that the authorities had done nothing
about the increase in Black Shadow knife attacks and violence in the canton even though both
provincial and town authorities were made aware of it. Id. at 61.
Ecuador is no longer regarded as a safe country. Mr. Yamba-Tenezaca’s brother himself
experienced law enforcement’s inability to protect and actual infliction of harm, when he was
denied an opportunity to offer a declaration regarding the murder he had witnessed, and when a
few months later he was unjustifiably brutally beaten by police. See Tab D at 12 ¶¶ 16, 18. The
U.S. Department of State acknowledges that Ecuadorian national, provincial and local authorities
arbitrarily arrest and detain individuals. See Tab E at 30. The 2016 report indicates that
“[c]orruption, insufficient training, poor supervision, and a lack of resources continued to impair
the effectiveness of the National Police.” Id. at 31. Officers often act with impunity, and the
report recognizes that the judicial process is impaired by outside pressure and corruption. Id. at
32. The Yamba-Tenezaca’s family’s history as community organizers was born precisely out of
the fact that law enforcement is incapable of protecting them in their community. See Tab C ¶ 4,
Tab D 9-10 ¶¶ 3, 6. Further, indigenist activities and dissent of government policies may be
discriminated against, violating free speech and further undermining any trust for the central
Government by indigenous members of the community. For example, members of the
Pachakutik party—which Mr. Yamba-Tenezaca’s family was associated with—have been
sentenced for defaming the President, as the U.S. Department of State recognized. See Tab E at
45. Mr. Yamba-Tenezaca is thus reasonably unwilling and objectively unable to avail himself of
governmental protection when he suffers persecution.

v. Mr. Yamba-Tenezaca is not statutorily barred from asylum

a. Mr. Yamba-Tenezaca’s renewed application for asylum is based

on changed circumstances and he filed within the one-year
deadline after his sister’s disappearance

The INA allows a previously denied applicant for asylum to apply again based on
changed circumstances, so long as they materially affect the applicant’s eligibility for asylum.
See INA ¶ 208(a)(2)(C),(D). Similarly, changed or extraordinary circumstances can also excuse a
delay in filing the application. Id. at (D); 8 CFR §§ 208.4(a)(4)-(5). Mr. Yamba-Tenezaca’s last
entry into the United States was on or around October 6, 2012. See Tab A. However,
circumstances in his life changed dramatically, with a series of amassing harms against his
family that reached a peak towards the end of 2016, causing a new claim for fear-based relief to
arise. It was not until the disappearance of Mr. Yamba-Tenezaca’s sister that he became aware of
the magnitude of the threat the Sombra Negra represented to his family and himself. See Tab C ¶
17. Mr. Yamba-Tenezaca filed within the one-year deadline of his sister’s disappearance, or
within a reasonable time after his sister’s persecution by Sombra Negra gang members began
after she began to cooperate with the investigation of her husband’s murder. Mr. Yamba-
Tenezaca has thus demonstrated changed circumstances that materially affect his claim, and
excuse a delay in the filing from the date of his last entry into the United States. To find
otherwise would be to disregard the amounting evidence that his family has been targeted and
harmed by the Sombra Negra and to deny him necessary relief.
b. Mr. Yamba-Tenezaca has not been convicted of a particularly
serious crime
The Immigration and Nationality Act does not define a "particularly serious crime," but
states that, for purposes of asylum, all aggravated felonies are per se particularly serious crimes.
See 8 INA § 208(b)(2)(B)(i). Mr. Yamba-Tenezaca’s two convictions under traffic law are not
per se particularly serious. In this case, the the guideposts set out in Matter of Frentescu, 18 I. &
N. Dec. 244, 247 (BIA 1982), modified, Matter of C-, 20 I. & N. Dec. 529 (BIA 1992): (1) the
nature of the conviction, (2) the circumstances and underlying facts of the conviction, (3) the
type of sentence imposed and (4) whether the type and circumstances of the crime indicate that
the alien will be a danger to the community. Id. at 247. Furthermore, crimes against persons are
more likely to be particularly serious than are crimes against property. Id. Mr. Yamba-
Tenezaca’s convictions are not particularly serious crimes that preclude asylum relief.
Mr. Yamba-Tenezaca’s first arrest resulted in two fines for VTL § 1192(2), and VTL
0509(1). Though Mr. Yamba-Tenezaca was driving under the influence of alcohol, the sentence
imposed does not reflect a grave circumstances or an indication that the court thought him to be a
danger to the community. See Tab G. Mr. Yamba-Tenezaca’s forthcoming testimony will further
clarify that the circumstances underlying this conviction were not particularly serious. Similarly,
Mr. Yamba-Tenezaca’s forthcoming testimony regarding the circumstances of his second
conviction for driving under the influence will clarify no persons were harmed and the sentence
imposed not indicative that he was convicted of a particularly serious crime. Mr. Yamba-
Tenezaca should be found eligible for asylum relief.
Notably, regardless of whether Mr. Yamba-Tenezaca is found ineligible for asylum based
on his convictions, none of his convictions would be particularly serious crimes for purposes of
the withholding of removal provision, as he has been convicted not been convicted of an
aggravated felony that results in an aggregate prison sentence of at least five years. See INA §
241(b)(3)(B). The elements of Mr. Yamba-Tenezaca’s convictions are also not within the ambit
of any particularly serious crimes. See Matter of N-A-M-, 24 I&N Dec. 336, 16 (BIA 2007). Mr.
Yamba-Tenezaca should not be disqualified from seeking to establish that, if he were deported to
Ecuador, it is more likely than not that his life or freedom would be threatened on account of his
membership in a particular social group or his political opinion. See Matter of L-S- 22 I. & N.
Dec. 645, 8 (BIA 1999)(citing INS v. Cardoza-Fonseca, supra, and finding that a conviction for
bringing an illegal alien into the United States with 3 ½ months in jail was not particularly
serious).
B. MR. YAMBA-TENEZACA IS ELIGIBLE FOR WITHHOLDING OF REMOVAL
UNDER THE INA
Even is Mr. Yamba-Tenezaca is found to be ineligible for asylum, his removal should be
withheld under INA § 241(b)(3) because he will be subject to future persecution and torture in
the form of severe harm or death if removed to Ecuador on account of his membership in the
particular, cognizable social group of “immediate family members of the Yamba-Tenezaca
family who oppose Sombra Negra authority”, and on account of his anti-gang political opinion.
i. It Is More Likely Than Not Mr. Yamba-Tenezaca’s life or freedom
will be threatened if he is removed to Ecuador
Ecuador is plagued by hundreds of gangs. See Tab E at 50. State officials estimated there
were over 700 gangs in Ecuador in the year 2009. Id. at 92. In the Azuay and Chimborazo
provinces, where Mr. Yamba-Tenezaca’s family is located, there are estimated to be over 238
gangs with a base of over ten-thousand members, the largest of which are Sombra Negra. Id. at
55-56. Mr. Yamba-Tenezaca and his brother Raul affirm that there are no security forces in their
community of Achupallas, the closest precinct being about an hour away. See Tab C ¶ 4, Tab D
at 9 ¶ 3. A 2016 thesis published by Cuenca University in Ecuador noted that “[f]aced with this
phenomenon of gang violence, the state is far from establishing possible policies and strategies
 that would allow the dismantling of the gangs”. See Tab E at 64-65. In 2010, a local newspaper,
El Tiempo, quoted Hospital Director, Victor Crespo, saying that the authorities had done nothing
about the increase in Black Shadow knife attacks and violence in the canton even though both
provincial and town authorities were made aware of it. Id. at 61. Members of the community tell
of murders Sombra Negra murders where “young men have been found with their throats slit
open, stabbed […]” Id. Mr. Yamba-Tenezaca and his brother Raul detail the persecution that the
family has suffered at the hands of Sombra Negra gang members, who have directly killed at
least one member of their family and have been involved in the murder of another and the
disappearance of their sister, who suffered persistent threats to herself and her family for over a
year. See generally Tabs C and D. Under these conditions, and for the reasons stated in Section
II.A., supra, Mr Yamba-Tenezaca is very likely to be identified and suffer persecution at the
hands of Sombra Negra gang members, who are known to him to exist in his hometown, a fact
corroborated by news articles and data. See Tab C ¶ 18; see also Tab E at 55, 88. For the same
reasons detailed in Section IV.A.iv, supra Mr. Yamba-Tenezaca will also be unable to seek
protection from the Ecuadorian government.
C. MR. YAMBA-TENEZACA IS ENTITLED TO WITHHOLDING OR DEFERRAL
PROTECTION UNDER THE CAT BECAUSE IT IS MORE LIKELY THAN NOT
THAT HE WILL BE TORTURED IF RETURNED TO ECUADOR

Mr. Yamba-Tenezaca is eligible for protection under CAT, as such relief requires only a
showing by Respondent that it is “more likely than not” that he would be subject to torture if
removed to Ecuador. See De La Rosa v. Holder, supra; 8 CFR § 1208.16(c)(4). As demonstrated
infra, it is more likely than not that Mr. Yamba-Tenezaca will suffer severe harm or death—
harm that would constitute “torture”—if removed to Ecuador. He will be subject to torture at the
hands of the Sombra Negra gang, and his inevitable pain and suffering will be inflicted with the
acquiescence of individuals acting in a public capacity. See supra Sections II.A, B, IV.A.iv; see
generally Tab E. As such, the CAT precludes his removal.
i. Mr. Yamba-Tenezaca Will Experience Extreme Pain and Suffering in
Ecuador as a Result of His Actual or Imputed Opposition to Sombra
Negra, Where Country Conditions Demonstrate Widespread Gang
Violence and Consciously Inadequate Law Enforcement
Mr. Yamba-Tenezaca’s family has been tortured in the past. For the purpose of punishing
family members for Raul Yamba’s acts of “betrayal”, the Sombra Negra retaliated against his
mother, and his sister’s brother-in-law, Jorge, killing his brother-in-law, Juan Carlos as well. The
Sombra Negra further threatened his sister, Aurora, and her children, with physical suffering and
imminent death. Raul Yamba was personally beaten by police in an intentional act with the
illicit purpose of eliminating any leads to one of the Sombra Negra members—a relative of a
local politician—who murdered Adrian Arizaga, a friend of Diego Lema, the man Raul
witnessed get brutally murdered. See Tab D 12 ¶ 16; 18-21; 21-22. Even though this last act
itself fits the traditional definition of torture at the hands of the government, the Second Circuit
has held that torture requires only that government officials know of or remain willfully blind to
an act and thereafter breach their legal responsibility to prevent it. De La Rosa v. Holder, 598
F.3d 103, 109 (2d Cir. 2010); Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). In the
case at hand, the government is highly aware of the threat the Sombra Negra represents. The
government itself estimated in 2009 that there were over 700 gangs in Ecuador. See Tab E at 92.
At that time, it was estimated about 12,000 youths in Ecuador were members of gangs. Id. By
2016, there were over ten-thousand members in the Azuay and Chimborazo provinces alone, the
majority of which are members of the Sombra Negra. Id. at 55-56. Despite being aware of the
increased threat, there is an “astonishingly high impunity” for killings, with the U.N. noting that
for every 100 killings, only one perpetrator was brought to justice. Id. at 52. Extreme lack of
police oversight is reflected in the ISSAT report, which notes that Interior Minister José Serrano
acknowledged in September, 2011 that, according to United Nations standards, Ecuador had a
deficit of 17,000 police officers. Id. Mr. Yamba-Tenezaca and his brother Raul affirm that there
are no security forces in their community of Achupallas, the closest precinct being about an hour
away. See Tab C ¶ 4, Tab D at 9 ¶ 3. Where substantial evidence shows the Sombra Negra is
widespread and violent, the Ecuadorian government is aware of it, and yet has done nothing to
protect the community there is torture as the Second Circuit defines it. See De La Rosa v. Holder,
supra.
Under these conditions, and for the reasons stated in Sections II.A and IV.A, B, supra, is
more likely than not that Mr Yamba-Tenezaca will be tortured at the hands of Sombra Negra
gang members, with the willful blindness of a government who does not provide police security
within the indigenous community and fails to protect the community from vicious crime, instead
choosing to leave violent crimes unresolved. See generally Tab E; see Tab C at ¶¶ 3-5, 24; Tab D
at 9-10, 12, 14 ¶¶ 3-6, 16-18, 27-29. Under the CAT, and under this Circuit’s law, he cannot be
forcefully returned to Ecuador.
 CONCLUSION
As the above-detailed facts demonstrate, this Court should grant Mr. Yamba-Tenezaca’s
request for asylum, withholding under the INA and the CAT or, in the alternative, deferral of
removal under the CAT because he will more likely than not be subject to torture, specifically
death, if removed to Ecuador.
Respectfully Submitted,

DATED: Bronx, New York _________________________

November ___, 2017 Carmen I. Rodriguez-Arroyo, Esq.
Counsel for Mr. Yamba-Tenezaca
The Bronx Defenders
360 E. 161st Street
Bronx, NY 10451
T: 718.508.3422
YAMBA-TENEZACA, Luis A.
A 205-293-802

CERTIFICATE OF SERVICE

I, ____________________, hereby certify under penalty of perjury that I served a true and
correct copy of RESPONDENT’S PRE-HEARING STATEMENT and any affixed pages on the
ICE Office of Chief Counsel by hand delivery at:

DHS/ICE Office of Chief Counsel

201 Varick St., Room 1130
New York, NY 10014

On November ____ , 2017.

_________________
The Bronx Defenders
360 E. 161st Street
Bronx, NY 10451