18-1930
Hernandez-Hernandez v. Barr
BIA
Connelly, IJ
A 208 277 797
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 24th day of October, two thousand nineteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 EDWIN ANTONIO HERNANDEZ-
14 HERNANDEZ,
15 Petitioner,
16
17 v. 18-1930
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Devin S. Sikes, Ramin Mohammad,
25 Akin Gump Strauss Hauer & Feld
26 LLP, Washington, DC; Melissa
27 Gibson, Akin Gump Strauss Hauer &
28 Feld LLP, Philadelphia, PA; Robert
29 H. Pees, Nicole A. Greenstein,
30 Akin Gump Strauss Hauer & Feld
31 LLP, New York, NY.
32 FOR RESPONDENT: Joseph H. Hunt, Assistant
33 Attorney General; Matthew B.
34 George, Senior Litigation Counsel;
1 Erik R. Quick, Trial Attorney,
2 Office of Immigration Litigation,
3 United States Department of
4 Justice, Washington, DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is GRANTED.
10 Petitioner Edwin Antonio Hernandez-Hernandez, a native
11 and citizen of El Salvador, seeks review of a June 18, 2018,
12 decision of the BIA affirming a December 21, 2017, decision
13 of an Immigration Judge (“IJ”) denying Hernandez-Hernandez’s
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Edwin
16 Antonio Hernandez-Hernandez, No. A 208 277 797 (B.I.A. June
17 18, 2018), aff’g No. A 208 277 797 (Immig. Ct. Batavia Dec.
18 21, 2017). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA. See Xue Hong Yang
22 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
23 We review the agency’s legal conclusions de novo and its
24 factual findings under the substantial evidence standard.
2
1 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013). “[T]he
2 administrative findings of fact are conclusive unless any
3 reasonable adjudicator would be compelled to conclude to the
4 contrary[.]” 8 U.S.C. § 1252(b)(4)(B).
5 We remand for the agency to explain why there is no
6 duress exception for the serious nonpolitical crime bar and
7 why MS-13 is not a state actor based on the record evidence.
8 We also remand because the agency applied a government
9 acquiescence standard at odds with our decision in De La Rosa
10 v. Holder, 598 F.3d 103, 110 (2d Cir. 2010), and failed to
11 consider in its CAT analysis the undisputed and relevant fact
12 that the Salvadoran government will know of Hernandez-
13 Hernandez’s former gang affiliation because the U.S.
14 government relays that information about deportees.
15 Serious Nonpolitical Crime Bar
16 An applicant is ineligible for asylum and withholding of
17 removal if “there are serious reasons for believing that the
18 alien has committed a serious nonpolitical crime outside the
19 United States prior to the arrival of the alien in the United
20 States[.]” 8 U.S.C. § 1158(b)(2)(A)(iii) (asylum); see also
21 8 U.S.C. § 1231(b)(3)(B)(iii) (withholding); 8 C.F.R.
22 § 1208.16(d)(2) (withholding under the CAT).
3
1 Hernandez-Hernandez does not dispute that the murders he
2 committed are serious nonpolitical crimes; instead, he argues
3 that he qualifies for a duress exception. The agency
4 appeared to accept that Hernandez-Hernandez had committed the
5 crimes under duress, but concluded that there was no duress
6 defense to the statutory bar. The BIA did not provide any
7 reasoning for this conclusion except for a footnote that
8 discusses duress defenses to crimes and murder generally and
9 whether juveniles may be prosecuted for murder in the United
10 States and El Salvador.
11 This lack of analysis by the BIA as to whether there is
12 a duress defense warrants remand, especially considering that
13 ten days after deciding Hernandez-Hernandez’s case, the BIA
14 determined in a published decision that there was a limited
15 duress defense for the statutory persecutor bar under other
16 subsections of the same statutory provisions, 8 U.S.C.
17 §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). Matter of Negusie,
18 27 I. & N. Dec. 347 (B.I.A. 2018).
19 We recognize that the Attorney General (“AG”) referred
20 Negusie to himself in October 2018 for further review.
21 Matter of Negusie, 27 I. & N. Dec. 481 (A.G. 2018). Given
22 these circumstances, we conclude that remand to the BIA in
4
1 the first instance is warranted for further examination of
2 whether a duress exception applies to the serious
3 nonpolitical crime bar, in light of Negusie or the AG’s
4 eventual determination as to Negusie’s validity. See Negusie
5 v. Holder, 555 U.S. 511, 523-24 (2009) (remanding to BIA to
6 determine in first instance whether persecutor bar contains
7 duress exception); I.N.S. v. Orlando Ventura, 537 U.S. 12, 16
8 (2002) (holding that “the proper course, except in rare
9 circumstances, is to remand to the agency for additional
10 investigation or explanation” (internal quotation marks
11 omitted)); Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014)
12 (remanding to allow BIA to address in the first instance
13 possible duress exception to bar to asylum and withholding
14 based on material support to terrorist organization); see
15 also Nderere v. Holder, 467 F. App’x 56, 58-59 (2d Cir. 2012)
16 (remanding to BIA to determine whether “particularly serious
17 crime” bar contains duress exception).
18 CAT Deferral
19 CAT deferral is available regardless of the serious
20 nonpolitical crime bar and does not require a nexus to a
21 protected ground. See 8 C.F.R. § 1208.17(a). “[T]he CAT
22 expressly prohibits the United States from returning any
5
1 person to a country in which it is more likely than not that
2 he or she would be in danger of being subjected to torture.”
3 Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004)
4 (internal quotation marks omitted); see also 8 C.F.R.
5 § 1208.16(c)(2) (“The burden of proof is on the applicant
6 . . . to establish that it is more likely than not that he or
7 she would be tortured if removed to the proposed country of
8 removal.”).
9 “Torture is defined as any act by which severe pain or
10 suffering, whether physical or mental, is intentionally
11 inflicted on a person . . . by or at the instigation of or
12 with the consent or acquiescence of a public official or other
13 person acting in an official capacity.” 8 C.F.R.
14 § 1208.18(a)(1). Acquiescence, in turn, “requires that the
15 public official, prior to the activity constituting torture,
16 have awareness of such activity and thereafter breach his or
17 her legal responsibility to intervene to prevent such
18 activity.” Id. § 1208.18(a)(7). “Where a government
19 contains officials that would be complicit in torture, and
20 that government, on the whole, is admittedly incapable of
21 actually preventing that torture, the fact that some
22 officials take action to prevent the torture would seem
6
1 neither inconsistent with a finding of government
2 acquiescence nor necessarily responsive to the question of
3 whether torture would be inflicted by or at the instigation
4 of or with the consent or acquiescence of a public official
5 or other person acting in an official capacity.” De La Rosa,
6 598 F.3d at 110 (internal quotation marks omitted). The
7 agency must consider “all evidence relevant to the
8 possibility of future torture,” including: “[e]vidence of
9 past torture[,]” evidence regarding the possibility of
10 internal relocation, “[e]vidence of gross, flagrant or mass
11 violations of human rights[,]” and “[o]ther relevant
12 information regarding conditions in the country of removal.”
13 8 C.F.R. § 1208.16(c)(3)(i)-(iv).
14 We review the agency’s determination regarding the
15 likelihood of torture for substantial evidence but consider
16 legal issues de novo. See Hui Lin Huang v. Holder, 677 F.3d
17 130, 134 (2d Cir. 2012) (“A determination of what will occur
18 in the future and the degree of likelihood of the occurrence
19 has been regularly regarded as fact-finding . . . .”); see
20 also Joaquin-Porras v. Gonzales, 435 F.3d 172, 181 (2d Cir.
21 2006) (reviewing findings of fact regarding CAT claim for
22 substantial evidence, but “review[ing] de novo questions of
7
1 law regarding what evidence will suffice to carry any . . .
2 applicant’s burden of proof” (internal quotation marks
3 omitted)).
4 The agency appeared to concede that MS-13 would likely
5 harm Hernandez-Hernandez, but stated that this harm did not
6 qualify him for CAT relief because MS-13 is not a state actor
7 and the government of El Salvador had been actively combating
8 gang violence and would therefore not acquiesce to Hernandez-
9 Hernandez’s torture. The agency also concluded that it was
10 not likely that the government would single out Hernandez-
11 Hernandez for torture because he (1) was not a full gang
12 member, (2) did not have any tattoos, (3) was not aware of
13 any public official looking for him, (4) was not aware of any
14 legal prosecution he would face for the murders he committed,
15 and (5) was not harmed when Mexican authorities returned him
16 to El Salvador on his first attempt to reach the United States
17 in 2015.
18 We conclude that the agency (1) did not adequately
19 explain why MS-13 is not a de facto state actor given the
20 record evidence, (2) applied the incorrect legal standard for
21 acquiescence, and (3) overlooked the relevant fact that upon
22 Hernandez-Hernandez’s removal, the U.S. government will
8
1 inform the Salvadoran government of his former gang
2 affiliation.
3 First, the agency did not adequately explain its
4 determination that MS-13 is not a de facto state actor. As
5 Hernandez-Hernandez argues, we have recognized that a private
6 actor or group may be a de facto state actor to satisfy the
7 government acquiescence requirement under the CAT. See
8 Delgado v. Mukasey, 508 F.3d 702, 709 (2d Cir. 2007)
9 (remanding to address CAT claim alleging government
10 acquiescence to torture by rebel group); see also Gomez-
11 Beleno v. Mukasey, 291 F. App’x 411, 414 (2d Cir. 2008);
12 Buritica-Colorado v. Gonzales, 217 F. App’x 38, 41 (2d Cir.
13 2007). While we do not require “that an IJ expressly parse
14 or refute” each piece of evidence, Xiao Ji Chen v. U.S. Dep’t
15 of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006), that is
16 only when the agency “has given reasoned consideration to the
17 petition, and made adequate findings,” Wei Guang Wang v.
18 B.I.A., 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation
19 marks omitted).
20 Here, it is unclear if the agency gave such reasoned
21 consideration and analyzed the evidence as to MS-13’s status
22 as a de facto state actor. The BIA agreed with the IJ’s
9
1 conclusion that MS-13 was not a state actor, but did not
2 elaborate. The IJ said MS-13 was not a state actor twice,
3 but did not explain why. Therefore, remand is warranted for
4 the agency to explain why MS-13 is not a de facto state actor.
5 See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)
6 (“Despite our generally deferential review of IJ and BIA
7 opinions, we require a certain minimum level of analysis from
8 the IJ and BIA opinions denying asylum, and indeed must
9 require such if judicial review is to be meaningful.”).
10 Second, the IJ applied the wrong legal standard for
11 government acquiescence. The IJ cited the country-conditions
12 evidence, including Dr. Thomas Boerman’s expert affidavit,
13 and found that although there is much gang violence and the
14 government has struggled to curb it, “the documentation does
15 not show that the government of El Salvador has turned a
16 willful blind eye or acquiesced to this problem[.]” The IJ
17 conceded that Salvadoran efforts “regrettably have failed to
18 control the gang violence” and that currently, the government
19 “is losing the battle” against the gangs. But then the IJ
20 concluded that despite this losing battle, “the escalating
21 nature of police response in a state of war against the gangs”
22 was evidence that the Salvadoran government was not
10
1 acquiescing to gang violence.
2 This analysis does not account for our holding in De La
3 Rosa that “the preventative efforts of some government actors
4 [does not] foreclose the possibility of government
5 acquiescence, as a matter of law, under the CAT . . . [w]here
6 a government contains officials that would be complicit in
7 torture, and that government, on the whole, is admittedly
8 incapable of actually preventing that torture.” 598 F.3d at
9 110. Therefore, we remand to the agency for additional
10 analysis of acquiescence as defined in De La Rosa.
11 Finally, the agency overlooked the fact that the
12 Salvadoran government will be aware of Hernandez-Hernandez’s
13 former gang affiliation because the U.S. government will
14 communicate this information to them. See Mendez v. Holder,
15 566 F.3d 316, 323 (2d Cir. 2009) (stating that the agency
16 commits legal error when it “totally overlook[s]” important
17 facts). The agency emphasized that Hernandez-Hernandez would
18 not be singled out by the government because he was not a
19 full gang member, the Salvadoran government does not know he
20 was a gang member, and the government did not harm him when
21 Mexican officials returned him in 2015 after his initial
22 attempt to flee El Salvador. But Dr. Boerman notes in his
11
1 uncontested affidavit that the U.S. government provides
2 Salvadoran officials with information on deportees’ gang
3 affiliation. According to Dr. Boerman, Salvadoran officials
4 then use this information to target individuals for further
5 scrutiny, “threats—including death threats—arbitrary
6 detention, beatings and/or torture.”
7 Although the Salvadoran government did not harm
8 Hernandez-Hernandez when he was returned by Mexico after his
9 first attempt to reach the United States in 2015, there is no
10 evidence that Mexican authorities knew of Hernandez-
11 Hernandez’s former MS-13 affiliation. In contrast, the
12 United States government is clearly aware of that past
13 affiliation and, according to Dr. Boerman’s undisputed
14 affidavit and testimony, it relays information on gang
15 affiliation to the country of removal.
16 Thus, we remand for the agency to consider the fact that
17 the Salvadoran government will know of Hernandez-Hernandez’s
18 prior gang affiliation in light of the entire record. See 8
19 C.F.R. § 1208.16(c)(3) (“In assessing whether it is more
20 likely than not that an applicant would be tortured in the
21 proposed country of removal, all evidence relevant to the
22 possibility of future torture shall be considered[.]”
12
1 (emphasis added)).
2 For the foregoing reasons, the petition for review is
3 GRANTED. As we have completed our review, any stay of removal
4 that the Court previously granted in this petition is VACATED,
5 and any pending motion for a stay of removal in this petition
6 is DISMISSED as moot. Any pending request for oral argument
7 in this petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
13
13