Velasquez-Samayoa v. Garland

• Decision Date: 24 June 2022
• Docket Number: 21-70093
• Citation: 38 F.4th 734
• Parties: Miguel Angel VELASQUEZ-SAMAYOA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

38 F.4th 734

Miguel Angel VELASQUEZ-SAMAYOA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 21-70093

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2022 Pasadena, California

Filed June 24, 2022

Jean Reisz (argued) and Niels Frenzen, University of Southern California, Gould School of Law, Immigration Clinic, Los Angeles, California, for Petitioner.

Sarah E. Witri (argued), Trial Attorney; Jennifer P. Levings, Senior Litigation Counsel; Brian M. Boynton, Acting Assistant Attorney General; Shelley R. Goad, Assistant Director; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C.; for Respondent.

Before: Richard C. Tallman and Michelle T. Friedland, Circuit Judges, and Edward R. Korman,^* District Judge.

FRIEDLAND, Circuit Judge:

Miguel Angel Velasquez-Samayoa seeks protection under the Convention Against Torture ("CAT"). Velasquez-Samayoa asserts that, if he were removed to his native country of El Salvador, he would be identified as a gang member and therefore would face a significant risk of being killed or tortured—either by Salvadoran officials or by members of a rival gang with the acquiescence of the Salvadoran government. The Board of Immigration Appeals ("BIA") upheld a decision by an Immigration Judge ("IJ" and, collectively with the BIA, the "Agency") concluding that neither potential source of torture poses a sufficient risk to entitle Velasquez-Samayoa to CAT relief. Velasquez-Samayoa argues before our court that the Agency failed to assess the aggregate risk that he will be tortured—considering all sources together. We agree. We grant the petition for review and remand to the Agency to reconsider Velasquez-Samayoa's CAT claim, applying the correct legal standards.

I.

Velasquez-Samayoa came to the United States when he was two or three years old and has lived in this country for more than forty years since. He became a lawful permanent resident in 1995, when he was seventeen. He has not visited El Salvador since approximately 1993, and his entire family now lives in the United States.

When he was about fifteen and residing in the Los Angeles area, Velasquez-Samayoa joined the White Fence gang. The White Fence gang is a rival of the Mara Salvatrucha ("MS-13") gang in Los Angeles, and Velasquez-Samayoa often fought with MS-13 members. During his time in the White Fence gang, Velasquez-Samayoa had the letters "WF" tattooed on his body in two places—both letters on his neck and one letter on each of his legs. Each letter on his neck is approximately six inches tall and three inches wide and is written in a calligraphy script common for gang tattoos.

In 1998, Velasquez-Samayoa was convicted of multiple felonies. He was sentenced to eighteen years in prison for those crimes. Upon moving prison facilities about seven years into his sentence, he was stabbed over twenty times by gang members and was placed in protective custody for the remainder of his sentence. Velasquez-Samayoa later testified that, with the help of a prison psychologist, he "realize[d he] had wasted [his] entire life with gangs."

After Velasquez-Samayoa's release from prison, officers from the Department of Homeland Security detained him and initiated removal proceedings. An IJ determined that Velasquez-Samayoa was removable based on his felony convictions. Velasquez-Samayoa does not dispute that, in light of that determination, the only relief he is eligible to seek is deferral of removal under the CAT.

An IJ held a hearing on Velasquez-Samayoa's CAT claim in June 2020. Velasquez-Samayoa testified in support of his claim, as did Dr. Thomas Boerman, who has conducted research on gang activity and violence in El Salvador. The Government stipulated that Dr. Boerman qualified as an expert on those topics. The IJ found that both Velasquez-Samayoa and Dr. Boerman "testified credibly" and therefore "afford[ed] their testimonies full evidentiary weight."

Velasquez-Samayoa testified to his fear that, if he were removed to El Salvador, he would be killed or tortured either by Salvadoran officials or by rival gang members. He explained that his conspicuous neck tattoo and/or the records of his criminal convictions would reveal his prior gang affiliation. Velasquez-Samayoa declared: "[B]oth of these parties [i.e. , Salvadoran officials or rival gang members] will eventually kill me for these reasons."

Dr. Boerman agreed that Velasquez-Samayoa faces a "high risk of egregious physical harm and death if returned to El Salvador." Dr. Boerman testified that, if Velasquez-Samayoa were removed to El Salvador, he would likely be identified as a gang member because of his neck tattoo or because of information the United States would send to the Salvadoran government.

Dr. Boerman testified that, if Velasquez-Samayoa were identified as a gang member by Salvadoran officials, he would likely be tortured in government custody. According to Dr. Boerman, even if Velasquez-Samayoa were not identified by government authorities immediately upon entering the country, he would eventually encounter police officers who would target and potentially kill him because of his obvious gang affiliation.

Dr. Boerman also spoke about the risk that Velasquez-Samayoa would be tortured or killed by rival gang members if he were removed. Dr. Boerman testified that the MS-13 and Barrio 18 gangs, both rivals of the White Fence gang, are present in 95 percent of Salvadoran municipalities. He stated that White Fence is "well-known by MS-13 and Barrio 18 in El Salvador" and that gangs in El Salvador routinely kill or torture members of rival gangs, and do so with impunity. And Dr. Boerman pointed to Velasquez-Samayoa's status as a middle-aged man—which would make him appear to be a gang leader—and mannerisms he acquired growing up in the United States as other factors that would make him a target for torture.

The IJ issued a written decision denying Velasquez-Samayoa CAT protection and ordering him removed to El Salvador. The IJ acknowledged that Velasquez-Samayoa claimed that he would be either detained and then tortured by Salvadoran officials or tortured by gang members with the acquiescence of the Salvadoran government. The IJ explained that a CAT applicant who brings a "claim for relief based on a future and hypothetical chain of events ... must establish that every step in the ‘hypothetical chain of events is more likely than not to happen’ " (quoting Matter of J-F-F- , 23 I. & N. Dec. 912, 917 (U.S.A.G. 2006) ). The IJ then proceeded to "analyze[ ] whether there is sufficient evidence in the record to establish it is more likely than not that each of these steps will occur." The IJ discussed some of the steps that Velasquez-Samayoa claimed might lead to his torture and determined that he had not shown that they were more likely than not to occur.

Velasquez-Samayoa appealed the order of removal to the BIA. The BIA affirmed the IJ's decision, concluding that the IJ "properly determined that [Velasquez-Samayoa] had not demonstrated that each link in the chain of hypothetical events will more than likely occur."

Velasquez-Samayoa filed a petition for review in our court. He argues that the Agency's CAT analysis was fundamentally flawed in that it failed to consider his aggregate risk of torture. He also argues, among other things, that the Agency erred by requiring that the testimony of Dr. Boerman—who was deemed credible by the IJ—be corroborated by evidence from the country conditions reports.

II.

"We review issues of law regarding CAT claims de novo."

Cole v. Holder , 659 F.3d 762, 769 (9th Cir. 2011). We review the factual findings underlying the BIA's decision that an applicant is not eligible for CAT relief for substantial evidence. Id. at 770. "Under the substantial evidence standard, the court upholds the BIA's determination unless the evidence in the record compels a contrary conclusion." Id. (quoting Arteaga v. Mukasey , 511 F.3d 940, 944 (9th Cir. 2007) ).

III.

Velasquez-Samayoa's sole claim for relief is deferral of removal under the CAT. To prevail on that claim, the burden is on Velasquez-Samayoa "to establish that it is more likely than not that he ... would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2) (providing the standard for withholding of removal under the CAT); see id. § 1208.17(a) (providing the standard for deferral of removal under the CAT). To qualify for CAT protection, an applicant must "show only a chance greater than fifty percent that he will be tortured if removed." Cole v. Holder , 659 F.3d 762, 770 (9th Cir. 2011) (quoting Hamoui v. Ashcroft , 389 F.3d 821, 827 (9th Cir. 2004) ).

In Cole , we made clear that the standard for granting CAT relief does not change when an applicant contends that he would face risks of torture from multiple distinct sources if he were removed to his country of origin. Such an applicant must establish that, "taking into account all possible sources of torture, he is more likely than not to be tortured." Id. at 775. Thus, in assessing a CAT claim from an applicant who has posited multiple theories for why he might be tortured, 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. See Quijada-Aguilar v. Lynch , 799 F.3d 1303, 1308 (9th Cir. 2015) ("CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims."). For example, if an applicant is at risk of torture from "police, death squads, and gangs," he "need not prove that each group, treated individually, would more likely than not torture him." Cole , 659 F.3d at 775.

The Attorney General has instructed that, if an applicant would be tortured only if a single "hypothetical chain of events" comes to fruition, CAT relief cannot be granted unless each link in the chain is...