A Toronto man ordered out of Canada for being a member of the notorious crime gang MS-13 has won a reprieve — with a judge accepting that his MS-13 gang tattoos could lead people to think he is a member of MS-13.

The decision to grant René Pacheco another hearing to assess the danger of deporting him to his native El Salvador means the same tattoos that prompted his deportation order have now saved him from immediate deportation.

Pacheco’s strange case started when he was arrested in 2016 for several criminal charges and, while he was in jail awaiting trial, Canada Border Services Agency officers interviewed him.

Pacheco, 25, whose nickname is “Machete,” boasted of his ties to MS-13, an international gang also called Mara Salvatrucha that is widely condemned for liberal use of brutal violence.

He showed officers a tattoo of the number 13 on the back of his hand. He also has a teardrop tattoo on his face, a symbol often taken as a sign of serious criminality, and tattoos on his knuckles and back.

He told officers a colourful account of enduring a 13-second beating as an initiation rite and how the 10 to 20 members of his Toronto chapter, known as a clique, controlled territory in the Jane and Sheppard area of the city. His Facebook page featured MS-13 gang graffiti.

His admissions were deemed believable and CBSA moved to deport him for being a member of a criminal organization. Although he came to Canada at the age of six, he did not become a Canadian citizen.

Pacheco later denied gang ties and gave innocent explanations for his body ink, including the number 13 being his “lucky number” and the teardrop commemorating his birth father’s murder in El Salvador. All he knew about MS-13, he said, he learned from YouTube and he complained he was high on drugs when talking to the CBSA.

“I made bad decision getting these tattoos not knowing that it was going to relate to this,” Pacheco said at an immigration hearing in 2017. “I took as, like, a fashion nowadays. You know everybody has tattoos and I made that bad decision of getting these tattoos and not knowing what I was getting.

“I’m not a member,” he said. “I made a mistake…. Innocent people are dying back in my country and here I am getting these tattoos thinking it’s a joke not realizing the consequences that it brings.”

One Federal Court of Canada judge upheld his deportation order in June as a reasonable outcome given the evidence.

However, Pacheco then applied for a Pre-Removal Risk Assessment, claiming he would be in danger if he was returned to El Salvador because people there would take his tattoos as evidence of gang membership, putting him at risk from both the police and the gangs.

“I understand that if someone arrives in El Salvador with tattoos and they think they are in a gang they can kill them, torture them or immediately throw them in prison,” he said in his appeal. “I can be the target of gangs there for trying to impersonate them. Therefore my life is in danger and I have no hope of being protected.”

He was found not to be at undue risk of persecution or danger if returned to El Salvador, but he also appealed that decision to the Federal Court.

In a decision published Monday, Judge E. Susan Elliott noted that Pacheco’s tattoos were the catalyst for his perceived risk.

She said the officer making the risk assessment decision failed to show evidence of a full assessment of how police, government and gangs in El Salvador were likely to treat Pacheco because of them.

I took as, like, a fashion nowadays. You know everybody has tattoos René Pacheco

Elliott said the U.S. Department of State Report on El Salvador, used as part of the assessment, highlights the “arbitrary deprivation of life” of gang members by authorities, bolstering Pacheco’s contention he would be in danger.

“This was particularly important as he would be returned to El Salvador for being a member of the MS-13 gang, despite his post-interview denials of such membership,” Elliott says in her written judgment.

She sent Pacheco back for a new risk assessment by a different officer.

MS-13 was started in the 1980s by Salvadoran immigrants in Los Angeles and has had a presence in Toronto for at least 10 years.

It became particularly notorious in recent months when Donald Trump, the U.S. president, started branding them as public enemy number one.

This summer, Trump called MS-13 members “animals.” Afterwards, the White House released a fact sheet titled, “What you need to know about the violent animals of MS-13.” In other speeches Trump called MS-13 members “stone cold killers, vicious killers” and highlighted MS-13 victims in his State of the Union address.

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