Lopez Troche v. Garland

United States Court of Appeals
For the First Circuit
No. 20-1718

MARIO RENE LOPEZ TROCHE,

Petitioner,

v.

MERRICK B. GARLAND,*
UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta and Barron, Circuit Judges.
Saris, District Judge.

Elena Noureddine, with whom Irene C. Friedel and PAIR Project
were on brief, for petitioner.
Jennifer A. Bowen, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Jeffrey Bossert Clark,
Acting Assistant Attorney General, Civil Division, and Anthony C.
Payne, Assistant Director, Office of Immigration Litigation, were
on brief, for respondent.

October 18, 2021

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
 Of the District of Massachusetts, sitting by designation.
 BARRON, Circuit Judge. Mario Rene Lopez Troche ("Lopez

Troche"), a native and citizen of Honduras, petitions for review

of an order of the Board of Immigration Appeals ("BIA") that

affirms the denial of his application for withholding of removal

and protection under the Convention Against Torture ("CAT"). We

vacate and remand.

I.

Lopez Troche came to the United States in 1988. He was

removed from this country in 1992. He re-entered the United States

shortly thereafter. He has lived here since 1993 or 1994.

The U.S. Department of Homeland Security detained Lopez

Troche and reinstated his removal order on February 6, 2013. While

detained at the Suffolk County House of Correction in Boston,

Massachusetts, Lopez Troche asked to meet with an asylum officer.

The asylum officer then conducted what we will refer to as a

"reasonable fear" interview.

Lopez Troche told the asylum officer that he was gay and

living with HIV. He further claimed that, on account of his sexual

orientation and from a young age, "he was repeatedly harassed,

abused and beaten by members of his community." He said that he

had been abused and faced attempted stoning and frequent beating

because of his sexual orientation and that this abuse was

exacerbated by his dressing as a woman for shows at clubs.

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 Lopez Troche also told the asylum officer about his

relationship in Honduras with a man named Carlos Sota. Lopez

Troche told the asylum officer that Sota's family blamed Lopez

Troche for Sota's death from AIDS and that they told Lopez Troche

that the family would kill him if he did not leave the country.

Lopez Troche also told the asylum officer that he thought that

Sota's family was responsible for the murder of Lopez Troche's

younger brother in 2012, and that, should Lopez Troche return to

Honduras, Sota's family would kill him as well.

According to the asylum officer's notes of the

interview, when Lopez Troche was asked whether he had ever gone to

the police to report any of the abuse that he had recounted, he

stated: "we complained a few times but nothing happened[;] the

police didn't do anything about it." The asylum officer's notes

also recorded that Lopez Troche claimed that he feared harm from

"the authorities" in Honduras "because they don't protect the

homosexual community [and] . . . people go unpunished, they violate

rights of homosexuals."

The asylum officer determined that Lopez Troche was

credible and that Lopez Troche had established a reasonable fear

of persecution in Honduras. Lopez Troche thereafter filed a Form

I-589 application for withholding of removal and protection under

the CAT. See 8 C.F.R. §§ 1208.16-18.

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 In support of the application for relief, Lopez Troche

submitted a written declaration. In it, he repeated many of the

claims that he had made during his interview with the asylum

officer and stated that he was "afraid" that he would "be beaten,

arrested, tortured, and killed by the national police or others

because [he is] gay."

Lopez Troche restated in his declaration that, prior to

coming to the United States, he had performed at clubs in women's

clothing and "would constantly get assaulted and beaten,"

including, in one incident, by two men he knew from his hometown.

He also again discussed his relationship with Sota and Sota's

family's subsequent threats and possible murder of Lopez Troche's

brother.

In addition, Lopez Troche added detail regarding

beatings that he suffered at the hands of his father and being

sexually assaulted at a young age. Lopez Troche also described an

incident in which "somebody let off gunshots and shattered the

windows to [a] taxi cab" in which he was riding as a passenger.

In support of his application for relief, Lopez Troche

also submitted a number of documents. They included country

condition reports from the U.S. Department of State, medical

records, a physician's letter addressing his HIV diagnosis, a

statement of support from the AIDS Action Committee of

Massachusetts, and a letter from Dr. John Grimaldi, a psychiatrist

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at Brigham and Women's Hospital. The letter stated that Dr.

Grimaldi had been treating Lopez Troche for "depression, anxiety,

and sequelae of past trauma," and that Lopez Troche's "psychiatric

symptoms and HIV disease adversely affected his cognitive

functioning, specifically his memory, attention and

concentration[, leading to] . . . difficulty organizing and

following through with basic tasks in daily living such as

following a schedule, meeting deadlines, and fulfilling other

responsibilities related to self-care." Lopez Troche then later

supplemented these documents by submitting additional reports from

the State Department, Human Rights Watch, Amnesty International,

and media sources.

An Immigration Judge ("IJ") held a hearing on the merits

of Lopez Troche's claims for relief on April 6, 2018. Lopez Troche

testified at the hearing. Following the hearing, the IJ issued an

oral decision denying the claims.

The IJ began by assessing Lopez Troche's argument that

he had met his burden to show that he had been subject to past

persecution. The IJ explained in doing so that it did "not find

[Lopez Troche] to be a credible witness in terms of crucial aspects

of his claim and his lack of credibility [was] ultimately fatal to

his argument that he has suffered past persecution" and that it

"g[ave] little or no weight" to the letter from Dr. Grimaldi. With

that predicate adverse credibility finding in place, the IJ then

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explained that Lopez Troche's attempt to show past persecution

failed because -- even assuming that he had suffered the requisite

level of harm and been subject to it based on his membership in a

protected group -- "there [was] insufficient evidence in this

record to establish that the respondent ever reported any incidents

in the past to the police, or that the officials in Honduras would

be unable or unwilling to protect him." The IJ further explained

that "the respondent himself was not credible in this regard."

To support this adverse credibility finding, the IJ

explained that although Lopez Troche had, during the hearing,

"argued that he never reported any of these incidents in the past

to the police," he had "made a different statement to the asylum

officer." Specifically, the IJ noted that in Lopez Troche's

reasonable fear interview he had stated in response to the question

"did you ever go to the police?" that "we complained a few times,

but nothing happened. The police did not do anything about it."

The IJ then elaborated that "[t]he respondent's testimony on the

witness stand, as compared to what he told the asylum officer,

[was] different," and that he had not adequately explained the

reason for the discrepancy.

As further support for finding that Lopez Troche failed

to establish that he had been subject to past persecution, the IJ

also identified what it deemed to be a second discrepancy between

Lopez Troche's testimony and what he had told the asylum officer

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during his reasonable fear interview. The IJ determined that this

discrepancy was "fatal to the respondent's credibility in terms of

his argument that the government were actors in any of the harm

that he suffered" and that it could not "find that the government

are actors in any of the harm that the respondent has suffered,

even if the Court f[ound] that the rest of the respondent's

testimony [was] credible."

Here, the IJ pointed to what it deemed to be a

discrepancy between Lopez Troche's testimony at the hearing and

his declaration concerning the incident in which Lopez Troche

claimed to have been shot at while he was in a taxi. The IJ

focused on the fact that Lopez Troche stated in his declaration

that "somebody let off gunshots" while he testified that "there

w[as] a group of people from the national police [and] . . . [o]ne

of them shot . . . at the cab."

The IJ concluded its consideration of Lopez Troche's

claim that he had suffered past persecution by returning to the

issue of whether Lopez Troche was credible:

As the Court found above, the Court cannot
find the respondent credible in his assertions
that the Government were actually actors in
the harm that he suffered . . . . Therefore,
the Court does not find that the respondent
has established past persecution and the Court
finds that the respondent does not enjoy a
presumption of a well-founded fear of future
persecution . . . .

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 The IJ then noted that Lopez Troche had not established

"a pattern or practice of persecution of a group of persons

similarly situated to the applicant," which would have allowed him

to circumvent the requirement "to provide evidence that he would

be singled out individually for such persecution." The IJ

"incorporate[d] and adopt[ed] its findings" regarding the past

persecution claim and, relying on them, found "there is no pattern

or practice of persecution of gay Honduran men by the government

in Honduras." The IJ noted in that connection that "[t]here is

discrimination, there is harassment, but . . . d[id] not find it

rises to a sufficient level for the respondent to meet his burden

of proof."

The IJ at that point turned to Lopez Troche's CAT claim,

which it also rejected. The IJ explained that "[w]hile the

respondent argues that he is afraid of the government, the

respondent has failed to meet his burden with detailed evidence

that he would be tortured in the future or even that he has been

tortured in the past." In so concluding, the IJ noted that the

BIA "understands that the acquiescence can include willful

blindness of a public official" but "that the respondent falls far

short of his burden after reviewing the evidence in this record."

The IJ went on to acknowledge "the respondent's

testimony that he has been attacked and raped by private

individuals." However, the IJ explained, "Article 3 of the

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Convention [A]gainst Torture does not protect the applicant

against third parties that the government is unable to control."

It then concluded that Lopez Troche had not met his "burden,"

presumably with respect to that showing.

Lopez Troche appealed the IJ's ruling to the BIA, and

the BIA affirmed. The BIA explained that it understood the IJ to

have "concluded, among other things, that the applicant did not

credibly testify or otherwise corroborate his claim." The BIA

further explained that it also understood the IJ to have concluded

"that the applicant did not establish that (1) he was ever harmed

by any government official or (2) the Honduran government was

unable or unwilling to protect him."

The BIA then addressed Lopez Troche's challenges to

those rulings by the IJ. The BIA explained up front that it

"discern[ed] no clear error in the Immigration Judge's adverse

credibility finding" and that it found that Lopez Troche's mental

health issues were adequately considered in making that finding.

The BIA elaborated that the IJ had "permissibly relied on

inconsistencies between the applicant's testimony and his prior

accounts of events." The BIA pointed out that the IJ noted "that

although the applicant stated at the hearing that he never reported

past incidents of harm to the police, in his statement to the

asylum officer, he stated he complained to the police 'a few

times.'" The BIA acknowledged Lopez Troche's argument on appeal

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from the IJ's ruling "that his testimony was not inconsistent

because his testimony before the Immigration Court only related to

his decision not to go to the police on one occasion when he was

raped by a stranger." But, the BIA rejected that explanation

because it concluded that "the applicant did not limit his

testimony when describing the fact that he never went to

authorities, and, thus, the Immigration Judge concluded that the

statements were inconsistent."

The BIA then also reviewed the IJ's finding with respect

to the other purported discrepancy between Lopez Troche's

testimony and his prior statements, which concerned the taxi

incident. Here, the BIA explained that

[t]o the extent that the applicant argues that
any discrepancies between his statements are
due to a harmless omission in the written
statement that is rectified by his more
detailed testimony during the hearing, an
Immigration Judge is entitled to rely on
omissions and inconsistencies between any
prior accounts and the applicant's hearing
testimony in reaching an adverse credibility
finding.

Having found the IJ's adverse credibility finding

supportable, the BIA then turned to Lopez Troche's withholding of

removal claim. Here, the BIA explained that, "[b]ased on the

adverse credibility finding, we affirm the conclusion that the

applicant did not establish past persecution."

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 The BIA separately considered Lopez Troche's arguments

with respect to his showing of past persecution that the IJ applied

the wrong burden of proof to the past persecution analysis. The

BIA stated it was "unpersuaded by [this] argument . . .

particularly where, as here, the Immigration Judge's adverse

credibility finding is dispositive regarding the applicant's

inability to establish past persecution."

The BIA then "[t]urn[ed] to the issue of whether [Lopez

Troche] was able to independently establish a future threat to his

life or freedom." The BIA explained in addressing this issue the

following: "[I]n addition to relying on the Immigration Judge's

adverse credibility determination, we also affirm the Immigration

Judge's determination that governmental authorities would not be

unable or unwilling to protect [Lopez Troche]." The BIA explained

that "[t]hese findings are supported by the fact that the applicant

acknowledged at the final hearing that he never reported any act

of harm he suffered to the police." It further explained that he

had "also testified that he did not know if he ever suffered any

harm from the police or officials from the Honduran government

because he did not know who shot at the taxi cab in which he rode."

The BIA also addressed the evidence that Lopez Troche

put forward concerning "violence against the lesbian, gay,

bisexual, transgender, and intersex (LGBTI) community in Honduras

from gangs and police." It noted that the IJ had found "that the

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background materials in this case establish that homosexual men

and those with HIV suffer discrimination in Honduras but not

persecution because the government has a violent crime task force

that investigates crimes against particularly vulnerable victims,

including those of the LGBTI community." The BIA explained that,

accordingly, it could "discern no clear error in the Immigration

Judge's predictive findings regarding the actions that the

Honduran government would likely take in the future," and so it

affirmed the IJ's "conclusion that the Honduran government would

be able and willing to protect the applicant in Honduras from

private actor harm committed on account of his sexual orientation."

Finally, the BIA affirmed the IJ's conclusion that Lopez

Troche was not eligible for protection under CAT. It noted that

Lopez Troche "did not establish that he has ever been harmed by

government officials," and "did not credibly establish that he

ever reported any harm he experienced to the Honduran authorities,

thus undermining any claim that a government official or other

person acting in an official capacity would acquiesce in any

torture that might be committed by a private individual."

Lopez Troche timely filed this petition for review.

II.

We start with Lopez Troche's challenge to the BIA's

affirmance of the IJ's denial of his application for withholding

of removal. To be entitled to withholding of removal, Lopez Troche

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must show that his life or freedom would be threatened in Honduras

on account of his membership in a particular social group. 8

U.S.C. § 1231(b)(3)(A). He attempts to do so in part by

demonstrating that he "suffered past persecution in [Honduras]

. . . on account of . . . membership in a particular social group,"

as he then would be entitled to a presumption that his "life or

freedom would be threatened in the future" there. 8 C.F.R.

§ 1208.16(b)(1)(i). He also attempts to establish that,

independently of any past persecution that he suffered, he has a

well-founded fear that his life or freedom would be threatened in

Honduras on account of his sexual orientation and HIV status.

"[P]ersecution 'always implies some connection to

government action or inaction.'" Rebenko v. Holder, 693 F.3d 87,

92 (1st Cir. 2012) (quoting Harutyunyan v. Gonzales, 421 F.3d 64,

68 (1st Cir. 2005)). Thus, as to his claim of past persecution,

Lopez Troche must show involvement in the abuse that he claims to

have suffered by the government or by private citizens whom "the

government [was] unwilling or unable to" control. Id. (quoting

Butt v. Keisler, 506 F.3d 86, 92 (1st Cir. 2007)); see also

Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 70 (1st Cir. 2013).

He similarly must show such involvement with respect to his attempt

to establish -- independent of whether he can establish that he

had suffered past persecution -- that he has a well-founded fear

of future persecution.

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 In rejecting Lopez Troche's request for withholding of

removal, the BIA affirmed at the outset of its analysis the IJ's

adverse credibility finding on the ground that it did not

constitute "clear error," because the IJ "permissibly relied on

inconsistencies between the applicant's testimony and his prior

account of events." In doing so, the BIA specifically cited the

same two purported "inconsistencies" that the IJ had identified.

The IJ's adverse credibility finding was, according to the BIA,

"dispositive regarding the applicant's inability to establish past

persecution," and so, "[b]ased on the adverse credibility

finding," the BIA affirmed the IJ's "conclusion that [Lopez Troche]

did not experience past persecution."

The government does not dispute that if the BIA's

affirmance of the IJ's adverse credibility finding cannot be

sustained, then we must vacate and remand the BIA's ruling

affirming the IJ's denial of Lopez Troche's request for withholding

of removal. Nor do we see how the government could dispute that

such a result would follow, given that the BIA's affirmance of the

IJ's finding of no past persecution is plainly dependent, at least

in part, on that adverse credibility finding.

The government contends, however, that an adverse

credibility finding either as to Lopez Troche's account that police

were involved in the taxi shooting or that he had reported the

harm that he claimed to have suffered in the past to the police

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would suffice to warrant a conclusion that Lopez Troche's showing

of past persecution fails. We disagree.

The BIA's decision is not fairly read to reject on

credibility grounds Lopez Troche's attempt to establish past

persecution only because of the purported inconsistency between

his testimony at the immigration hearing and his declaration with

respect to the taxi incident. Nor is it fairly read to rest on a

general finding of adverse credibility based on that purported

divergence alone. If anything, it is more accurate to say that

the BIA rejected Lopez Troche's attempt to show past persecution

based on a finding of adverse credibility solely because of the

inconsistency between his testimony at the hearing and the

reasonable fear interview with respect to whether he ever reported

incidents of abuse that he had suffered to the police. But, at

the very least, the BIA's decision must be read to have rejected

Lopez Troche's attempt to make that showing of past persecution

based in part on its determination that the IJ did not clearly err

in finding that there was an inconsistency between what Lopez

Troche said at his reasonable fear interview regarding the

reporting of past instances of abuse to police and what he said

about reporting such incidents in his testimony, such that his

statements in that regard in the interview could not be deemed

credible. Thus, so long as the BIA's affirmance of the IJ's

finding of adverse credibility as to the reporting of those

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incidents does not hold up, neither does the BIA's ruling affirming

the IJ's rejection of Lopez Troche's effort to establish that he

suffered past persecution. See Sec. & Exch. Comm'n v. Chenery

Corp., 318 U.S. 80, 95 (1943) ("[A]n administrative order cannot

be upheld unless the grounds upon which the agency acted in

exercising its powers were those upon which its action can be

sustained.").

Our review of the BIA's affirmance of the IJ's adverse

credibility determination "is deferential." Cuesta-Rojas v.

Garland, 991 F.3d 266, 270 (1st Cir. 2021). Nevertheless, we will

uphold the adverse credibility determination only if:

"(1) the discrepancies and omissions
underlying the determination are actually
present in the record; (2) those discrepancies
and omissions provide specific and cogent
reasons to conclude that the petitioner's
testimony was incredible with regard to facts
central to the merits of [his] asylum claim;
and (3) the petitioner has failed to provide
a convincing explanation for the discrepancies
and omissions."

Mboowa v. Lynch, 795 F.3d 222, 227 (1st Cir. 2015) (alteration in

original) (quoting Ying Jin Lin v. Holder, 561 F.3d 68, 72 (1st

Cir. 2009)); see also Cuesta-Rojas, 991 F.3d at 271 ("[W]e must

vacate and remand the BIA's decision affirming the IJ's adverse

credibility finding so long as the 'discrepancies' to which the IJ

referred fail on their own to provide a supportable basis for

sustaining the adverse credibility finding.").

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 In affirming the IJ's adverse credibility finding as to

Lopez Troche's statement that he did report the incidents of past

abuse to police, the BIA explained that Lopez Troche "did not limit

his testimony when describing the fact that he never went to the

authorities" (emphasis added). It thus appeared to read his

testimony to have set forth a blanket statement that he had not

reported any such instances to police, notwithstanding his

statements in his reasonable fear interview that he had "complained

a few times" to the police about having been subject to such abuse

and that the police had done nothing in response. We are

convinced, however, that the record does not reveal the claimed

inconsistency between the testimony and the reasonable fear

interview as to Lopez Troche's reporting to police that the BIA

identified.

The BIA cited to three portions of Lopez Troche's

testimony in support of its determination that the IJ did not

clearly err in finding an inconsistency between what Lopez Troche

told the asylum officer during his reasonable fear interview and

how he testified as to the reporting of past abuse. But, none of

those passages supports the BIA's determination.

In the first portion, Lopez Troche described a time when

he was hospitalized after a sexual assault:

Lopez Troche: That happened when I was raped, when I was
the age of 15 years old, when that -- guy, you know, assault me
sexually, I had a, a really bad anal inflammation. . . .

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 Counsel: Did [the hospital] know you had been raped?
Lopez Troche: Yes.
Counsel: Did they offer to call the police?
Lopez Troche: Yes.
Counsel: Did you call the police?
Lopez Troche: No.
Counsel: Why did you not call the police?
Lopez Troche: Because I was very afraid of the national
police and I knew they were not going to give me any type of
protection.

In context, Lopez Troche's response of "no" during his

testimony to the question of whether he called the police refers

only to the single incident of rape that caused him to be

hospitalized. It thus does not contradict Lopez Troche's statement

in his reasonable fear interview that he had "complained a few

times" to the police. Therefore, the statements are not

inconsistent, contrary to the BIA's finding otherwise.

The second portion of Lopez Troche's testimony that the

BIA found to be inconsistent with his reasonable fear interview in

the same regard is as follows:

Government Counsel: Now, sir, the two times that you
were raped in your country, that was done by private individuals,
correct?
Lopez Troche: Yes
Government Counsel: Okay. And did you ever report that
to anyone in the government or to the police?
Lopez Troche: No.

Here, too, the BIA appears to have understood Lopez

Troche's answer of "no" to be a representation that he never had

reported incidents of past abuse to the police, notwithstanding

that he said in his reasonable fear interview that he had reported

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them "a few times." But, once again, read in its proper context,

Lopez Troche's response of "no" to the question of whether he had

reported something to the police refers only to two discrete

incidents: the two rapes. Lopez Troche did not state in his

testimony that he never called the police in response to, for

example, any physical assault. His statements here, therefore,

are not inconsistent with what he said in his reasonable fear

interview, despite the BIA's determination to the contrary.

The final portion of Lopez Troche's testimony on which

the BIA relied in ruling as it did, but which the government does

not address in its brief to us, concerns the testimony that Lopez

Troche gave on redirect. That portion of his testimony proceeds

as follows:

Counsel: When did you -- you stated earlier that you
were only in Honduras for six months. Why did you leave Honduras?
Lopez Troche: Because I had a relationship with Carlos,
and then he ended up sick. Then he died, and quickly. He got
really seriously ill and he died. Then his family accused me that
I had something to do with his death. He -- they tried to harm
me. They'd threaten my life.
Counsel: Did anyone else threaten you?
Lopez Troche: His family.
Counsel: Did you go to the police for protection?
Lopez Troche: No, no, I didn't do anything of that.

The BIA again appeared to understand that Lopez Troche's

statement "no, I didn't do anything of that" meant that Lopez

Troche had never reported any incidents of harm to the police or

gone to the police for protection, despite the fact that he stated

in his reasonable fear interview that he had "complained [to the

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police] a few times." Once again, we disagree. Lopez Troche's

"no" in this context was made in response to a question regarding

threats from Sota's family. Like the first two "no's" that we

have addressed, this one also is not inconsistent with Lopez

Troche's statement in his reasonable fear interview regarding his

reporting of past abuse to the police.1

In sum, although the BIA found that Lopez Troche "did

not limit his testimony when describing the fact that he never

went to the authorities," Lopez Troche did not at any point in his

testimony state that he "never" went to authorities with any such

complaints. He merely answered in response to specific questions

about specific incidents that he had not done so.

Nor is it possible to read either the BIA or the IJ to

have inferred from Lopez Troche's failure to report to the police

the specific incidents that he discussed in his testimony that he

was asserting in that testimony that did not report any incidents

of abuse ever. Neither the IJ's opinion nor the BIA's expressly

1 We note that the IJ also relied on a fourth statement that
the BIA does not appear to cite in affirming the credibility
finding. Nor does the government direct us to this statement in
arguing that the BIA correctly affirmed the credibility
determination. This statement was made by Lopez Troche's counsel
during closing arguments. For that reason, it is problematic that,
in further explaining its reason for finding Lopez Troche not
credible, the IJ stated that Lopez Troche's "testimony on the
witness stand, as compared to what he told the asylum officer, is
different," because nothing Lopez Troche said on the witness stand
was inconsistent with his reasonable fear interview, for the
reasons we have described.

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purports to premise its ruling as to adverse credibility on the

basis of such inferential reasoning, see Chenery, 318 U.S. at 95,

and we do not see what basis there would be for drawing that

inference on this record, given that, in his reasonable fear

interview, declaration, and testimony, Lopez Troche discussed a

series of traumatic physical and sexual assaults that he had

experienced that appears to have stretched back to a time when he

was eight years old and that thus encompassed many more incidents

than those addressed specifically in the portions of his testimony

on which the BIA focused. As a result, we must vacate and remand

the BIA's order affirming the denial of Lopez Troche's request for

withholding of removal.2

III.

We turn, then, to Lopez Troche's claim for protection

under the CAT. The government does not dispute that insofar as

2 As we have noted, the BIA separately concluded that Lopez
Troche did not demonstrate that he would face "a future threat to
his life or freedom," seemingly independently of its determination
that he was not credible in his descriptions of whether he had
reported past incidents of harm to police. It pointed to the three
statements we have described above and also referenced the
statement Lopez Troche's counsel made in closing that Lopez Troche
"did not make any, any reports." But, because the BIA's affirmance
of the adverse credibility finding supported its affirmance of the
finding that Lopez Troche did not suffer past persecution, and
because a finding that Lopez Troche did suffer past persecution
would entitle Lopez Troche to a presumption that he would face a
future threat to his life or freedom in Honduras, we need not
address how this statement impacts the future threat analysis,
given that the BIA did not apply that presumption.

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the BIA's affirmance of the IJ's credibility finding regarding his

past reporting of abuse to the police is not sustainable neither

is the BIA's affirmance of the IJ's rejection of his CAT claim.

We can see why.

In affirming the IJ's rejection of Lopez Troche's CAT

claim, the BIA stated that "the applicant did not credibly

establish that he ever reported any harm he experienced to the

Honduran authorities, thus undermining any claim that a government

official or other person acting in an official capacity would

acquiesce in any torture that might be committed by a private

individual."3 Accordingly, we must vacate and remand the BIA's

ruling rejecting Lopez Troche's CAT claim as well.

IV.

We grant the petition for review, vacate the decisions

of the IJ and the BIA denying Lopez Troche's application for

withholding of removal and CAT protection, and remand for further

proceedings consistent with this opinion.

3 In making this finding, the BIA cited the three portions of
testimony we described above and the statement by Lopez Troche's
counsel in closing. Although we have not addressed how the last
statement would impact the credibility analysis, the BIA's finding
was clearly cumulative, and so we conclude that, for the same
reasons that we find the BIA erred in affirming the adverse
credibility finding, the BIA erred in affirming the CAT holding.

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