Rodriguez-Arias v. Whitaker (P)

The Board of Immigration Appeals erred in denying relief under the Convention Against Torture because it failed to aggregate his risk of torture in El Salvador from all three of the entities that the petitioner fears: gangs, vigilante groups, and the police. Joining other circuits, the court holds that the risks of torture from all sources should be combined when determining whether a Convention Against Torture applicant is more likely than not to be tortured in a particular country.

Here, the Immigration Judge’s first order addressed only the risks that the petitioner faced from gangs and the police, with no mention of vigilante groups. The second order simply stated: “Respondent has failed to demonstrate that it is more likely than not that he would be tortured by vigilante groups.” At no point did the IJ 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%. The Board also devoted no space in its final order to aggregating risk.

The Board also erred by failing to meaningfully engage with the live testimony and over 300 pages of the petitioner’s documentary evidence and failing to meaningfully consider the additional evidence that he submitted on remand about the risk of torture that he faces in El Salvador.

The tribunals below did not meaningfully address the petitioner’s evidence about the Salvadoran government’s behavior towards gang members and suspected gang members. The IJ didn’t address extensive evidence about the government’s willingness to use torture on suspected gang members or its willingness to turn a blind eye to the extreme violence between rival gangs and between gangs and vigilante groups. In its review, the Board didn’t engage with the petitioner’s evidence at all.

Denying the petitioner’s claim for Convention Against Torture relief required more— much more—from both the tribunals below. On remand, the Board must interact seriously with the full panoply of the risk-of-torture evidence, recognizing that country conditions alone can play a decisive role in granting relief under the Convention. When a man’s life is on the line, he is entitled to know that the court deciding his claim reviewed all his evidence, understood it, and had a cogent, articulable basis for its determination that his evidence was insufficient.

Petition granted; vacated and remanded.

Rodriguez-Arias v. Whitaker (P), No. 17-2211, Feb. 12, 2019. 4th Cir. (Floyd) from BIA.

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published


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