Rodriguez-Arias v. Whitaker

• Decision Date: 12 February 2019
• Docket Number: No. 17-2211,17-2211
• Citation: 915 F.3d 968
• Parties: Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

915 F.3d 968

Eduardo Antonio RODRIGUEZ-ARIAS, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General, Respondent.

No. 17-2211

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2018

Decided: February 12, 2019

ARGUED: James Feroli, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES, Washington, D.C., for Petitioner. Margot Lynne Carter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jennifer Bibby-Gerth, CATHOLIC CHARITIES IMMIGRATION LEGAL SERVICES, Washington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before FLOYD and HARRIS, Circuit Judges, and Donald C. COGGINS, United States District Judge for the District of South Carolina, sitting by designation.

Petition for review granted; vacated and remanded by published opinion. Judge Floyd wrote the opinion, in which Judge Harris and Judge Coggins joined.

FLOYD, Circuit Judge:

Eduardo Rodriguez-Arias (Rodriguez), a native of El Salvador, petitions for review of the final order of the Board of Immigration Appeals (BIA) affirming the denial of his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review of his CAT claim, vacate the BIA’s order with respect to that claim, and remand for further proceedings consistent with this opinion.

I.

Rodriguez fled El Salvador’s rampant gang-related violence and crime in 2005, when he unlawfully entered the United States as a twelve-year-old. At that time, his grandparents were being extorted by the gangs, he himself had been robbed twice by them, and his teenage cousin had been killed after refusing to join them. The cause of Rodriguez’s flight now forms part of the basis for his claim for relief: Rodriguez fears being returned to El Salvador due to the country’s continued high rate of gang-perpetrated violence. But what’s more, he now also fears violence at the hands of anti-gang vigilante groups and the state police because today he bears the insignia of gang affiliation on his body—gang-related tattoos.

After he arrived in the United States, Rodriguez moved to Maryland and joined Sureños 13, a United States-based gang with no presence in El Salvador. Due to his affiliation with Sureños 13, Rodriguez obtained multiple tattoos that identify him as a gang member. These include the word "Sureños" on his chest, the phrase "Brown Pride" on his stomach, "BPS" and "13" on his left hand, the letter "S" above each of his knees, and "BPS" on his back. A.R. 951–56. Although Rodriguez left Sureños 13 in 2011 or 2012, and has had a face tattoo removed, his other explicitly gang-related tattoos remain.

After he was placed in removal proceedings, Rodriguez sought relief from removal under the CAT.¹ He received an evidentiary hearing before an Immigration Judge (IJ) on May 16, 2016. At the hearing, Rodriguez testified that he fears returning to El Salvador. Because of his tattoos, he expects to be targeted by the violent gangs that plague the country, who will see him as a rival; by anti-gang vigilante groups, who engage in extrajudicial killings of gang members to protect their communities; and by the police, who use extreme violence in their anti-gang efforts. Rodriguez explained in his testimony that in El Salvador, having tattoos is seen as an automatic sign of gang membership and people do not bother investigating whether you are still an active gang member before harming you. Confirming his fears, a friend of his who, like Rodriguez, had once belonged to Sureños 13 was killed within a week after being deported to El Salvador.

Indeed, Rodriguez testified that even after he left Sureños 13, his tattoos have made him a target of violence at the hands of Salvadoran gangs operating in the United States. On one occasion, he was chased by ten to twenty men dressed in blue, the color worn by the notorious Mara Salvatrucha or MS-13 gang. On another occasion he was walking near his home when an MS-13 member struck him with a bat, and on still another occasion someone hit him with a chair when he visited a restaurant frequented by MS-13 members. Rodriguez has also been threatened by rival gangs while in immigration detention. An MS-13 member in detention told Rodriguez that as soon as he arrives in El Salvador, MS-13 will find him and kill him. Two members of the 18th Street gang told him that in El Salvador, 18th Street will look for him and will "have fun with" his body. A.R. 440.

In addition to his own testimony, Rodriguez provided evidence from five expert witnesses about how gang members or suspected gang members routinely experience extreme violence in El Salvador at the hands of other gangs, numerous vigilante groups, and police forces. He also produced the U.S. Department of State 2015 and 2014 Country Reports on El Salvador, the asylum eligibility guidelines for El Salvador from the United Nations High Commissioner for Refugees, and approximately thirty articles from various scholarly and news sources describing the appallingly violent conditions in El Salvador. In all, he provided over 300 pages of documentation.

The IJ denied Rodriguez’s application for relief. She devoted less than one page of her opinion to the CAT claim and limited her risk-of-torture analysis to the risks that Rodriguez faced from gangs and the police. On appeal, the BIA remanded the case so that the IJ could address Rodriguez’s risk of torture from vigilante groups as well. Nowhere in the two-page remand order did the BIA state that the IJ’s original opinion had been vacated or reversed.

On remand, Rodriguez provided additional country-conditions evidence relating to his risk of torture in El Salvador. The IJ then issued a supplemental opinion, which incorporated her first opinion by reference and provided new analysis on only those topics that the BIA had ordered addressed. The IJ again denied CAT relief, this time devoting three pages to the topic. On Rodriguez’s second appeal, the BIA reviewed the IJ opinions together, adopted both, and supplemented them with additional reasoning. In the BIA’s two pages of CAT analysis, it did not refer specifically to any of the evidence provided by Rodriguez. This petition for review timely followed.

II.

When making a CAT claim, the alien seeking relief has the burden to show that "it is more likely than not that he or she would be tortured" in the country of removal. 8 C.F.R. § 1208.16(c)(2) (2012). Torture is defined as (1) "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" in a manner that is (2) "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 1208.18(a)(1) (2012). Public officials acquiesce to torture when, "prior to the activity constituting torture, [they] have awareness of such activity and thereafter breach [their] legal responsibility to intervene to prevent such activity." 8 C.F.R. § 1208.18(a)(7). Public officials breach their responsibility to intervene when they engage in "willful blindness" or "turn a blind eye to torture." Suarez-Valenzuela v. Holder , 714 F.3d 241, 245 (4th Cir. 2013) (quoting Ontunez–Tursios v. Ashcroft , 303 F.3d 341, 355 (5th Cir. 2002) ). Public officials need not have actual knowledge of torture to have engaged in willful blindness. Id . When determining whether the willful-blindness standard has been met, "immigration judges should consider evidence of past torture, evidence of ‘gross, flagrant or mass violations of human rights,’ the country’s conditions, and whether the applicant could relocate to a part of the country where he or she is unlikely to be tortured." Id . (quoting 8 C.F.R. § 1208.16(c)(3) (2012) ).

In reviewing the denial of a CAT claim, we review the agency’s finding of fact for substantial evidence. See Marynenka v. Holder , 592 F.3d 594, 600 (4th Cir. 2010). In the immigration context, this standard means that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2012) ; Suarez-Valenzuela , 714 F.3d at 245. Legal determinations, however, are reviewed de novo. Hui Zheng v. Holder, 562 F.3d 647, 651 (4th Cir. 2009). Although the BIA may be granted Chevron deference when it decides matters of statutory interpretation, such deference is not granted where, as here, the BIA issued a nonprecedential opinion authored by a single member. Martinez v. Holder , 740 F.3d 902, 909 (4th Cir. 2014) ; Turkson v. Holder , 667 F.3d 523, 527 (4th Cir.2012) ; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

We may also overturn the BIA’s determinations if we conclude that the BIA abused its discretion. Tassi v. Holder , 660 F.3d 710, 719 (4th Cir. 2011). "The BIA may be held to have abused its discretion if it failed to offer a reasoned explanation for its decision, or if it distorted or disregarded important aspects of the applicant’s claim." Id . Finally, because the BIA here "adopted and supplemented an IJ decision, we are obliged to review both rulings." Id .

III.

In his petition for review, Rodriguez first argues that the BIA made a legal error when it denied him CAT relief because it failed to aggregate his risk of torture from all three of the entities that he fears: gangs, vigilante groups, and the police. We agree.

The CAT implementing regulations provide that when "assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered." 8 C.F.R. §...