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Viewing entries tagged
Convention Against Torture
The Board of Immigration Appeals has determined the acquiescence standard for CAT protection differs from the unable-or-unwilling standard for asylum and withholding of removal; the potential for private actor violence coupled with a speculation that police cannot or will not help is insufficient to prove acquiescence.
The full text of Matter of M-S-I-I can be found here:
The Board of Immigration Appeals has reversed a grant of deferral of removal under the Convention Against Torture to a Salvadoran former gang member. While acknowledging that perceived gang members are subject to widespread arrest in El Salvador, the Board stated that, “[t]he evidence the Immigration Judge relied upon does not evaluate whether there are characteristics or circumstances that make certain classes of detainees, such as deportees from the United States, any more or less likely to be victims of torture. Further, the applicant has not shown that the majority of current or former gang members detained in El Salvador are likely to suffer harm satisfying the legal definition of torture, such that he would need to show nothing more than gang affiliation and a likelihood of detention to meet his burden of proof.”
The full text of Matter of A-A-R- can be found here:
The Fourth Circuit has reversed the Board of Immigration Appeals’ reversal of an Immigration Judge’s grant of protection under the Convention Against Torture. The applicant was shot by gang members and his family members threatened and attacked by gang members. During one of these incidents, the gang members were accompanied by a man in a military uniform.
The full text of Funez-Ortiz v. McHenry can be found here: https://www.ca4.uscourts.gov/opinions/232290.P.pdf
The First Circuit has remanded a Convention Against Torture case, finding that the agency applied an erroneous standard by relying solely on “the fact that the government has taken some responsive action to combat private violence.”
“More to the point, looking only to whether a government takes some responsive action to prevent private violence fails to account for instances where a foreign government takes some measures but still does not satisfy its legal duty to intervene. Sometimes, despite having taken some action, a government may still have a legal responsibility to do more.. That is why we require the agency to address whether the government's actions demonstrate that it will adequately meet its legal responsibility to intervene. Addressing this part of the inquiry is especially important where a government's preventative actions have been ineffective.”
The full text of Akinsanya v. Garland can be found here:
https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1412P-01A.pdf
The Ninth Circuit has determined that the agency is not required to consider child abuse that took place in the United States when considering whether a deported parent is likely to torture their child in their country of origin.
The full text of GC v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/07/30/21-1228.pdf
The Board of Immigration Appeals has confirmed that rape is a torture and is not a lawful sanction. “Rape clearly rises to the level of torture. It is an extreme form of cruel and inhuman treatment’ that causes severe pain or suffering and is therefore mistreatment sufficiently severe to qualify for protection under the CAT where the other elements are established. As the Immigration Judge noted, torture does not include pain or suffering arising from lawful sanctions. However, a lawful sanction must be judicially imposed or otherwise authorized by law. While incarceration is a lawful sanction, rape by fellow inmates is not. Additionally, a lawful sanction cannot ‘defeat the object and purpose of the Convention Against Torture to prohibit torture. Thus, rape is sufficiently severe to constitute torture and can never be a lawful sanction under the CAT.”
The full text of Matter of H-C-R-C- can be found here:
Following the Seventh Circuit’s lead, the Sixth Circuit has adopted a holistic analysis - rather than a statistics-based one - for determining whether a non-citizen faces a clear probability of torture.
The full text of Saleh v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0102p-06.pdf
The Sixth Circuit has adopted the aggregate risk analysis in Convention Against Torture cases, requiring that adjudicators consider if the risk of torture from all possible sources exceeds fifty percent.
The full text of Abdulahad v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0082p-06.pdf
The Board of Immigration Appeals has abandoned its prior “rogue official” formulation for Convention Against Torture claims, and refocused on whether an official was acting under color of law when inflicting torture. “An act that is motivated by personal objectives may be under color of law when the actor uses his or her official authority to further those objectives.” “[I]t is key to consider whether he or she was only able to accomplish the acts of torture by virtue of holding official status. In evaluating if a public official acted under color of law, circuit courts have often relied on whether the actor’s government connections provided physical access to the victim, or to the victim’s whereabouts or other identifying information.” “Also relevant to, but not dispositive of, the ‘under color of law’ analysis is whether a law enforcement officer was on duty and in official uniform at the time of the torturous conduct.” “Another relevant consideration in determining whether an official’s conduct is under color of law is whether the official threatened and had the ability to retaliate through governmental channels if the victim reported the conduct to authorities.”
The full text of Matter of J-G-R- can be found here:
The First Circuit has remanded a CAT claim in which the agency discredited an expert’s opinion without sufficient reason.
The full text of G.P. v. Garland can be found here:
The Ninth Circuit has determined that South Korea’s extraterritorial-jurisdiction law, allowing it to re-prosecute its citizens for crimes committed and punished outside of South Korea, is not inherently torturous.
The full text of Park v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/29/21-70623.pdf
The First Circuit has remanded a claim for protection under the Convention Against Torture, finding that harm inflicted was severe enough to constitute torture. “The assailants not only beat Hernandez-Martinez senseless; they also sliced his waist with a knife and intentionally burned the flesh on his foot as they repeated their threats, sending him unconscious to a hospital where he remained for three to four days.”
The full text of Hernandez-Martinez v. Garland can be found here:
The Eighth Circuit has determined that the Board provided insufficient reasoning for reversing the grant of CAT protection to an applicant with an IQ of 55 who had been threatened with death by gang members in El Salvador.
The full text of Alvarez-Gomez v. Garland can be found here:
The Second Circuit has determined that acquiescence to torture by any official is sufficient to warrant protection under the Convention Against Torture. “Where, as here, the primary perpetrator of likely harm is a gang, the relevant state action question (should the BIA reach it) is whether any public official, or any other person, including low-level local police officers, when acting under color of law, will participate or acquiesce in harm that the gang is likely to inflict and that is recognized as torture under section 1208.18(a).”
The full text of Garcia-Aranda v. Garland can be found here:
The First Circuit has determined that the Board of Immigration Appeals’ use of a “willful acceptance” instead of a “willful blindness” standard in Convention Against Torture cases is unlawful. The court also noted that the question of whether a government official’s conduct constitutes acquiescence to torture is a question of law, subject to de novo review in the court of appeals. Finally, the court remanded for further consideration of whether MS-13 is a de facto government actor.
The full text of H.H. v. Garland can be found here:
The Ninth Circuit has determined that a man who was viciously beaten by a group of men that included two police officers established that he was tortured by government officials.
The full text of De Leon Lopez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/21/20-71529.pdf
The Ninth Circuit has again emphasized that the agency must calculate the likelihood of future torture for Convention Against Torture purposes in the aggregate. As such, when a petitioner posits multiple potential sources of torture, “the relevant inquiry is whether the total probability that the applicant will be tortured—considering all potential sources of and reasons for torture—exceeds 50 percent.”
“The BIA considered his two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. But the BIA should not have considered his claim as a single hypothetical chain of events, when—as the BIA itself acknowledged—he posited two ‘alternative’ and distinct theories for why he would be tortured if he were removed to El Salvador. By requiring Velasquez-Samayoa to show that every step in two hypothetical chains was more likely than not to occur, the BIA increased his CAT burden. Velasquez-Samayoa was not required to show that he was more likely than not to be tortured under both theories, nor was he required to show that he was more likely than not to be tortured under any single theory considered individually. The law requires him to show only that taking into account all possible sources of torture, he is more likely than not to be tortured. Thus, the BIA should have assessed whether aggregating the risks posed by Velasquez-Samayoa’s two theories results in a probability greater than 50 percent that he will be tortured.”
The Court also found error in the agency’s treatment of expert testimony. “The BIA affirmed the IJ’s decision that Dr. Boerman was a credible witness. Yet the BIA proceeded to reject key pieces of Dr. Boerman’s testimony regarding why Velasquez Samayoa faced a high risk of torture, agreeing with the IJ that the country conditions evidence did not corroborate the expert’s testimony that Velasquez-Samayoa will be perceived as a gang leader based on his age and other characteristics. The mere fact that Dr. Boerman’s testimony is not corroborated by country conditions evidence is not a valid reason for rejecting that testimony— expert testimony can itself provide evidence of country conditions.”
The full text of Velasquez-Samayoa v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/24/21-70093.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-70093.pdf
The Eighth Circuit has remanded a mentally ill Somali man’s application for protection under the Convention Against Torture, ordering the agency to consider if he would experience torture in an Internally Displaced Persons camp.
The full text of Salat v. Garland can be found here:
The Eleventh Circuit has remanded an asylum, withholding of removal, and protection under the Convention Against Torture claim for a Sri Lankan citizen, finding that the agency did not give consideration to his claim of future harm based on his status as a failed asylum seeker.
The full text of Jathursan v. Attorney General can be found here:
https://media.ca11.uscourts.gov/opinions/pub/files/202010003.pdf
The Seventh Circuit has determined that when evaluating whether an applicant for protection under the Convention Against Torture has demonstrated a clear probability of torture, the agency must evaluate the aggregate risk of torture. “[W]e adopt the aggregate risk approach for the determination of substantial risk and hold that the agency may address risk factors individually so long as it considers all sources of and reasons for risk cumulatively to determine whether there is a substantial risk of torture,”
The full text of Nyandwi v. Garland can be found here:
