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Wednesday, May 22, 2024 | Back issues
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Second Circuit Revives Tortured Immigrant’s Asylum Claim

A man tortured by a U.S.-financed military regime in El Salvador during the 1980s may have another chance to prove he filed his asylum application on time, the Second Circuit ruled on Tuesday.

MANHATTAN (CN) — When he joined a group of student revolutionaries in the 1980s, Jose Linares-Urrutia’s native El Salvador had been in the grip of a civil war lasting more than a decade and marked by rampant human rights abuses.

Linares-Urrutia testified that the Salvadoran military shot him in the leg, electrified his genitals, beat him and threatened to kill him.

Since fleeing the country in 1988, Linares-Urrutia has spent nearly three decades seeking refuge in the United States. He has been deported twice, but his latest effort to return may end differently thanks to a federal appellate court decision.

On Tuesday, the New York-based Second Circuit Court of Appeals partially granted Linares-Urrutia’s petition in a case with potentially wide ripples in humanitarian asylum law.

Linares-Urrutia last stepped on U.S. soil on April 25, 2012.

On that day, he walked across the Peace Bridge from New York to Canada in hopes of reviving an asylum application there.

But Canadian border authorities detained him for roughly four hours before returning him to the United States, where the Department of Homeland Security commenced his latest removal proceedings.

He filed an asylum application just shy of a year after that hours-long stint in Canada.

Though an immigration judge found his torture claims credible, Linares-Urrutia’s case stumbled over a technicality — whether his brief return over the Peace Bridge counted as a “last arrival” under immigration law.

U.S. Circuit Judge Dennis Jacobs conceded that immigration law is unclear on this point.

“If we were to apply our old precedent, this case would be easy,” he wrote in an 8-page ruling, referring to earlier immigration cases from the Second Circuit that had rejected the idea that a return to the U.S. from a brief trip abroad could be counted as an immigrant’s most recent arrival.

But that ruling was later rejected by the Board of Immigration Appeals, which has never fully resolved this issue.

The Second Circuit’s three-judge panel in Manhattan kicked the case back to the immigration court to answer that question.

Meanwhile, the court called upon Congress to clarify the meaning of the phrase, “last arrival.”

“This case exemplifies the problems that will ensue absent a statutory fix,” the ruling states. “One possible fix would be a set period of absence as a predicate to arrival, and other measures would doubtless occur to Congress.”

Linares-Urrutia’s attorneys declined to comment on the ruling.

The United Nations estimated that more than 75,000 people were killed, and an untold number of people disappeared beginning in 1979 and continuing for more than 12 years of conflict in El Salvador, overwhelmingly at the hands of the U.S.-financed military regime.

The Migration Policy Institute estimates that the Salvadoran immigrant population increased fivefold over that decade, from 94,000 to 465,000.

The Department of Justice declined to comment on the case.

Categories / Appeals

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