Nyandwi v. Garland

• Decision Date: 08 October 2021
• Docket Number: No. 20-3215,20-3215
• Citation: 15 F.4th 836
• Parties: Eric NYANDWI, Petitioner, v. Merrick B. GARLAND, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

15 F.4th 836

Eric NYANDWI, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 20-3215

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2021

Decided October 8, 2021

Rehearing and Rehearing En Banc Denied December 10, 2021

Keren Hart Zwick, Attorney, National Immigrant Justice Center, Chicago, IL, Nicholas Tarasen, Attorney, Amazon.com Inc., Sunnyvale, CA, for Petitioner.

Jennifer A. Bowen, Trial Attorney, Anthony Cardozo Payne, Attorney, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Sykes, Chief Judge, and Flaum and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Eric Nyandwi, facing removal from the United States because of multiple felony convictions, applied for a deferral of removal under the Convention Against Torture. He claimed that he faced a substantial risk of torture if returned to the country of Burundi, of which he is a citizen. Both an immigration judge and the Board of Immigration Appeals found no such substantial risk and so denied his application. In this petition for review, Nyandwi asks us to remand the case, arguing that the immigration judge and the Board committed various legal errors when they denied his application. We disagree, find no error, and therefore deny the petition.

I

Nyandwi, a citizen of Burundi and a native of Tanzania, came to the United States as a refugee on August 9, 2006 and became a lawful permanent resident. After Nyandwi was convicted of robbery in the second degree, receiving a stolen firearm, and illegal possession of a controlled substance, the Department of Homeland Security began removal proceedings against him under 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Nyandwi conceded his removability as an aggravated felon but filed an Application for Asylum and Withholding of Removal, seeking a deferral under the Convention Against Torture (CAT). At a removal hearing before an immigration judge (IJ), Nyandwi submitted evidence of country conditions in Burundi and testified that he was an ethnic Twa whose parents fled Burundi in 1996 because of a civil war that resulted in the death of Twas, including his family members. Nyandwi told the IJ that he feared being removed to Burundi because he was a returning Twa refugee, was unable to speak the native language, had no proof of political allegiance to the governing regime, and was unable to pay compulsory election contributions.

The IJ denied Nyandwi's claim for deferral under CAT, concluding that "Respondent has not established a substantial risk that he will be targeted for torture if he returns to Burundi" because he did not claim that anyone in Burundi had a current intent to torture him specifically. Rather, his fears relied on what the IJ called a hypothetical chain of events: that he would be detained by authorities upon return to Burundi because he was a refugee, viewed as an oppositionist to the ruling regime because he was a Twa and financially incapable of paying compulsory election contributions, and therefore singled out for torture. The IJ faulted Nyandwi for failing to show that he would be unable to make money or make election contributions in Burundi and for failing to present any specific cases of persons in Nyandwi's position as a returning Twa refugee being tortured in Burundi.

Nyandwi appealed to the Board of Immigration Appeals (BIA), claiming that the IJ had failed to use the correct legal standard and had ignored relevant evidence. The BIA affirmed, finding no error in the IJ's "careful analysis of the component parts of a holistic claim." Nyandwi timely filed this petition for review.

II

Because the BIA adopted and supplemented the IJ's decision, we review the IJ's decision supplemented by the Board's reasoning. Herrera-Garcia v. Barr , 918 F.3d 558, 561 (7th Cir. 2019). We review questions of law de novo. Lozano-Zuniga v. Lynch , 832 F.3d 822, 826 (7th Cir. 2016). We will remand for further consideration when the agency commits legal errors such as using an incorrect legal standard or overlooking key evidence that could have resulted in a different conclusion. Sirbu v. Holder , 718 F.3d 655, 656 (7th Cir. 2013) ; Lam v. Holder , 698 F.3d 529, 533–34 (7th Cir. 2012).

Nyandwi first asserts that the IJ committed legal error by failing to consider in the aggregate three risk factors that Nyandwi had raised: (1) Nyandwi is Twa; (2) Nyandwi is a returning refugee; and (3) Nyandwi is likely to be targeted as an oppositionist due to his inability to pay the ruling party's compulsory election contributions. According to Nyandwi, these three reasons combine to render him particularly susceptible to torture. Because the IJ never considered that combination explicitly, Nyandwi argues, the IJ committed legal error. And, says Nyandwi, the Board did not cure this supposed error when it affirmed the IJ's decision. Second, Nyandwi alleges that the IJ erred in demanding corroborating evidence of specific cases in which returning refugees have been tortured and demanding corroborating evidence that Nyandwi would be unable to earn money in Burundi. Because the Burundi regime hides evidence of such specific cases, making them unavailable, and because Nyandwi lacked personal knowledge of Burundi and was in detention, Nyandwi claims that it was impossible for him to provide this information. Finally, Nyandwi argues the IJ and BIA committed legal error by ignoring three main pieces of evidence: (1) evidence that Burundi officials extort bribes disguised as mandatory election contributions; (2) evidence of Nyandwi's characteristics that could make Nyandwi seem like an oppositionist: his inability to speak the language, his identifiable Twa ethnicity, and the history of familial death in the earlier conflict; and (3) general evidence about the authoritarian tendencies of the Burundi government and that similarly-situated people have been tortured.

A

We first consider whether the IJ erred in its analysis of the risk factors put forth by Nyandwi. To determine whether the IJ committed error, we must first establish the legal standard the IJ was bound to follow. Both parties agree that agencies should use the aggregate risk legal standard, which requires that claims under CAT be considered in terms of the aggregate risk of torture and not only as separate, divisible claims. See Matter of J-R-G-P- , 27 I. & N. Dec. 482, 484 (BIA 2018). Five of our sister circuits have adopted this standard. See Kamara v. Attorney General , 420 F.3d 202, 213–14 (3d Cir. 2005) ; Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1308 (9th Cir. 2015) ; Rodriguez-Arias v. Whitaker , 915 F.3d 968, 972–73 (4th Cir. 2019) ; Marqus v. Barr , 968 F.3d 583, 589 (6th Cir. 2020) ; Abdi Omar v. Barr , 962 F.3d 1061, 1065 (8th Cir. 2020). We see no reason to disagree with the parties, the BIA, or other circuits, so we 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.

Nyandwi urges us to follow the leads of the Third and Fourth Circuits and take a quantitative or statistical approach to calculating aggregate risk. Those circuits have adopted such an approach to calculate the risk of torture an alien faces from different sources. The Third Circuit has held that an alien facing removal "is entitled to CAT protection if he is able to demonstrate that the cumulative probability of torture by [multiple sources] exceeds 50%." Kamara , 420 F.3d at 213–14. To calculate the sum of the weighted probability of torture by each potential source of torture, the court devised a formula for the adding of probabilities for mutually exclusive events.¹ Id . at 214. The Fourth Circuit has followed the Third Circuit's approach, faulting an IJ for failing to "consider the aggregated risk caused by all three entities in unison by adding the probability of torture from each entity and determining whether that sum exceeded 50%." Rodriguez-Arias , 915 F.3d at 973. But, as far as we can tell, those two circuits have not applied that approach to calculate the risk of torture an alien faces due to different reasons for risk. Nyandwi's theory would be novel even under the statistical approach of the Third and Fourth Circuits.²

Either way, we decline to follow the Third and Fourth Circuits’ quantitative or statistical approach to aggregate risk. We do not think this is the appropriate methodology for determining substantial risk. We have already held that "substantial risk" under CAT is a "non-quantitative restatement" of the "more likely than not" standard. Perez-Montes v. Sessions , 880 F.3d 849, 850 (7th Cir. 2018). Adding percentages is not a tenable method to determine substantial risk because "[t]he data and statistical methodology that would enable a percentage to be attached to a risk of torture simply do not exist." Rodriguez-Molinero v. Lynch , 808 F.3d 1134, 1135 (7th Cir. 2015) ; see also Perez-Montes , 880 F.3d at 850 ("[A] statistical requirement cannot be taken seriously and ... the best an agency or court can do is look for substantial risk"). Taking a holistic, non-quantitative approach to the aggregation of factors accords with our requirements for agencies and judges in other contexts. In reviewing Social Security claims, for example, we have held that "an ALJ is required to consider the aggregate effects of a claimant's impairments" but have not taken a quantitative approach, finding it sufficient where an ALJ "stated that he had considered all of [the claimant's] symptoms together." Getch v. Astrue , 539 F.3d 473, 483 (7th Cir. 2008). Similarly, in reviewing whether probable cause existed for warrants, we have not assigned a percentage threshold to the requirement of "fair probability." See, e.g ., United States v. Orr , 969 F.3d 732, 736 (7th Cir. 2020) (quoting Illinois v. Gates ,...