NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2990
___________
MANUEL AYALA-HERNANDEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A201-246-220)
Immigration Judge: Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 21, 2022
Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges
(Opinion filed: August 5, 2022)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Petitioner Manuel Ayala-Hernandez, nominally proceeding pro se, 1 petitions for
review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from the decision of an immigration judge (IJ) denying his application for relief under the
Convention Against Torture (CAT). 2 For the reasons that follow, we will grant the
petition for review.
I.
Petitioner, a citizen of El Salvador, entered the United States unlawfully in 2003 at
the approximate age of thirteen. In 2011, the Department of Homeland Security initiated
removal proceedings against him. Petitioner applied for, as relevant, deferral of removal
under the CAT.
In preparation for his May 2021 hearing before the IJ, Petitioner submitted
affidavits from both himself and his mother. (A.R. 292-95, 300-02.) Both affidavits
explained that they had lived in an area of El Salvador controlled by the “MS-18 gang,”
which had a rivalry with another gang called “MS-13.” Petitioner’s affidavit stated that
many of his childhood friends became members of MS-18 and attempted to recruit him
into the gang. Both affidavits described an incident that occurred when Petitioner was 11
1
In deciding this case, we have considered Respondent’s argument that Petitioner’s
former counsel ghost wrote his brief, and we agree that the brief is not entitled to a liberal
construction. (Respondent’s Br. at 15-17).
2
Petitioner additionally applied for asylum and withholding of removal. However, he
conceded during the proceedings before the IJ that he had a criminal conviction for
aggravated assault that constituted a particularly serious crime and was thus disqualifying
for that relief. As a result, he sought only deferral of removal under the CAT.
2
or 12 years old, during which members of MS-13 branded his chest with the letters
“MS,” and were then chased off by his mother. Both affidavits stated that Petitioner, his
mother, and his brother all subsequently moved to the United States (first his mother and
then he and his brother about a year after her). Finally, the affidavits explained that
Petitioner’s brother was deported to El Salvador, where he was beaten by the gangs, and
that members of both gangs, including the MS-18 members with whom Petitioner grew
up, have threatened to kill Petitioner based on their perceptions that he either joined their
rival gang or abandoned them.
Petitioner appeared at the May 2021 hearing before the IJ via video teleconference
and with the assistance of an interpreter. His attorney appeared in person at the
proceedings. 3 Petitioner testified about the same event from his affidavit, but he stated
that it involved members of the “18 Gang,” rather than MS-13, and that they attempted to
tattoo onto his right hand the numbers “18” followed by “503,” 4 but that they were
thwarted by his mother after only tattooing “503.” (A.R. 228-32.) Petitioner was asked
about the discrepancy between his testimony and his mother’s affidavit, 5 and he
explained that she was ill and confused. He also stated several times that no other gangs
had tattooed him, that he did not have any other gang tattoos, and that he did not have an
3
The transcript does not indicate whether the interpreter appeared in person or via a
separate video feed.
4
“503” is the calling code for El Salvador. (A.R. 25.)
5
Petitioner’s affidavit was not mentioned during the IJ hearing.
3
“MS” tattoo. (A.R. 232, 235-36, 261, 273.) However, at various points of the hearing,
Petitioner seemed potentially confused by questions about these issues, possibly as a
result of translation and communication issues. (See A.R. 265-66, 268.) He further
testified that in 2003, about a month before he left for the United States, members of MS-
13 threatened to kill him if he did not join them. (A.R. 233-36.) By the end of 2003,
Petitioner, his mother, and his brother had all moved to the United States. However, he
testified that in approximately 2017, back in El Salvador, one of his uncles and one of his
cousins were killed, and another cousin was disabled in a shooting. He believed that the
gangs are responsible and carried out these attacks because he refused to join them and
fled the country. He also believed that the gangs would find him because of the partial
tattoo on his hand and because they knew his face. However, he confirmed that he could
not be certain that any of the gang members he encountered were still alive in El
Salvador.
The IJ denied relief. Although she found Petitioner’s testimony to have been
credible (despite noting some discrepancies uncovered during the hearing), she ruled that
he had failed to meet his burden of demonstrating that he was eligible for deferral of
removal under the CAT.
Petitioner appealed to the BIA and submitted an affidavit, (A.R. 25-26), and
copies of purported text messages sent to his brother. (A.R. 28-31.) In the affidavit, he
reiterated his version of events from the IJ hearing regarding the 18th Street Gang
tattooing “503” on his hand, and he stated that his mother had mistaken the 18th Street
Gang for MS-13. Additionally, he stated that after his mother left for the United States,
4
he moved to an area of El Salvador controlled by MS-13, where members of the gang
branded “MS” onto his chest. He claimed to have been confused by his attorney’s
question during the IJ hearing when he “mistakenly” said that he did not have an MS
tattoo. (A.R. 25.) Notably, a police report in the record indicates that Petitioner has
“MS” tattooed both on his chest and his abdomen. (A.R. 424.) The submitted text
messages to his brother referenced and made threats against an individual named “Neto,”
which Petitioner asserts is his nickname, derived from his middle name, Ernesto.
In October 2021, the BIA affirmed the IJ’s decision and dismissed the appeal,
without acknowledging or addressing Petitioner’s new affidavit or the text messages. As
relevant, the agency concluded that it was unlikely that the gang members with whom
Petitioner had encounters in 2003, when he was 13, would recognize him; that he had not
established with persuasive evidence that his family members were killed or attacked
approximately four years before the hearing as retaliation for his refusal to join the gangs
in the early 2000s; that the assertion that he would be tortured solely because he was
tattooed was speculative; and that the assertion that government officials would turn a
blind eye to such torture was also speculative.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). When, as here, the BIA adopts
the findings of the IJ and discusses some of the bases for the IJ’s opinion, our review
encompasses both decisions. See Guzman v. Att’y Gen., 770 F.3d 1077, 1082 (3d Cir.
2014). We review legal conclusions de novo, Singh v. Att’y Gen., 677 F.3d 503, 508 (3d
Cir. 2012), and we review the agency’s findings of fact in denying CAT relief under the
5
substantial-evidence standard pursuant to which such findings “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary,” Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020) (citation and internal quotation marks omitted).
III.
To obtain CAT relief, Petitioner was required to demonstrate, through objective
evidence, “that it is more likely than not” that he will be tortured if removed. See 8
C.F.R. § 1208.16(c)(2), § 1208.17(a); § 1208.18(a)(1); Sevoian v. Ashcroft, 290 F.3d
166, 175 (3d Cir. 2002). The determination as to whether Petitioner met his burden
involves the two-fold inquiry set forth in Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir.
2017): (1) “whether an applicant has met the burden of establishing that it is more likely
than not [that he] would be tortured if removed”; and (2) “whether public officials will
acquiesce in the likely treatment.” Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir.
2019) (citation and internal quotation marks omitted). In deciding whether an applicant
meets the first part of this standard, “the IJ must ask (1) what is likely to happen to the
[applicant] if removed and (2) whether what is likely to happen amounts to torture.”
Guzman Orellana v. Att’y Gen., 956 F.3d 171, 181 (3d Cir. 2020). As for the second
prong, the IJ must first “make[] a factual finding . . . as to how public officials will likely
act in response to the harm the petitioner fears,” and next “assess[] whether the likely
response from public officials qualifies as acquiescence under the governing regulations.”
Myrie, 855 F.3d at 516. Under both prongs, the first inquiry is factual, while the second
is legal. Id.
6
With regard to whether Petitioner established it was more likely than not that he
would be tortured, the agency reasoned that it was unlikely that gang members would
recognize Petitioner, but failed to reconcile Petitioner’s and his mother’s affidavits to the
IJ, which together stated that some of the gang members he grew up with have beaten his
brother and sent threats to his family that they will kill Petitioner if they ever see him
again in their territory. Furthermore, to the extent that the agency characterized
Petitioner as asserting that he would be tortured solely because he is tattooed, the agency
misrepresented the evidence and arguments. Petitioner asserted that he will be tortured
because the gangs that tattooed him will view him as a deserter (particularly the gang that
was stopped midway through tattooing him), or they will view him a rival gang member.
These assertions, alone, are more specific and individualized than merely asserting that
he will be tortured because he is tattooed. In conjunction with the evidence mentioned
above (that Petitioner grew up with some of the gang members, that they beat his brother
upon his return, and that they sent threats to his family), the pertinent question is clearly
broader than whether Petitioner would be tortured “solely” because he is tattooed.
Although the IJ and the BIA need not discuss every piece of evidence, we have
explained that the agency cannot ignore evidence that is favorable to a petitioner without
providing a reason. See Quinteros, 945 F.3d at 786 (stating that “if evidence is to be
disregarded, we need to know why”) (citation and punctuation omitted)); Kang v. Att’y
Gen., 611 F.3d 157, 164 (3d Cir. 2010) (“The BIA may not ignore evidence in the record
that favors the petitioner.”); Chavarria v. Gonzalez, 446 F.3d 508, 517-18 (3d Cir. 2006)
(holding that the BIA’s decision was not supported by substantial evidence when it
7
“mischaracterized and understated” record evidence). From this record, we do not know
how or why the agency discounted the import of the omitted evidence, and we are
therefore unable to make a proper determination of whether the agency’s ruling on the
likelihood of torture is supported by substantial evidence. Cf. Quinteros, 945 F.3d at
787-88 (remanding for BIA to consider evidence undermining its conclusion that
petitioner would not have been recognized as a gang member if returned to El Salvador).
Relatedly, we are troubled that the BIA did not acknowledge the new affidavit and
evidence submitted on appeal. Although the BIA itself could not consider the evidence
for purposes of deciding the appeal, see Saravia v. Att’y Gen., 905 F.3d 729, 734 (3d Cir.
2018), it is a common practice of the BIA to consider construing new evidence as a
motion to remand for the further factfinding. While the BIA was not required to consider
a remand based on the evidence, it is unclear from the BIA’s decision that it was even
aware that the evidence had been submitted. This is particularly concerning given that
(1) the new affidavit sought to clarify important aspects of Petitioner’s testimony before
the IJ, (2) the transcript indicates there was some degree of confusion with interpreting
and communicating during the video conference, and (3) a police report in the record
indicates that the key clarification in the new affidavit—that Petitioner has an “MS”
tattoo—is accurate. 6
6
We note that in January 2021, amendments to the pertinent regulations became effective
which, as relevant, barred the practice of the BIA remanding to the IJ for further
factfinding in this type of scenario. See Appellate Procedures and Decisional Finality in
Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81,588 (Dec. 16, 2020)
(hereinafter, “the Rule”). However, two District Court have issued nationwide
injunctions enjoining operation of the Rule. See Centro Legal de la Raza v. Exec. Off.
8
With regard to the question of whether Salvadorian public officials would
acquiesce to Petitioner’s torture, the agency’s analysis was lacking. The BIA simply
deemed governmental acquiescence speculative, with no explanation. The IJ noted that
“the evidence in the record demonstrates El Salvador’s continued efforts against gang and
organized criminal activity,” and that this Court “has previously found that reports of
generalized brutality within a country do not necessarily show that a particular person
would be in danger of being subjected to torture upon his return to that country.” (IJ Dec.
at 8) (citation omitted). With regard to the El Salvador’s reported efforts against gang
activity, we recently discussed the distinction between a country’s efforts to stop the
harm a deportee would face and its capability to do so, within the specific context of El
Salvador. See Quinteros, 945 F.3d at 788 (“The Board was required to consider whether
the government of El Salvador is capable of preventing the harm Quinteros would likely
face.”); see also id. at 792-93 & n.31 (McKee, J., concurring). Furthermore, the agency
failed to address the 2020 Human Rights Report for El Salvador prepared by the United
States Department of State, (A.R. 352-80), which contains information relevant to his
issue that, at the least, necessitated some comment from the agency. See Pieschacon-
Villegas v. Att’y Gen., 671 F.3d 303, 314 (3d Cir. 2011) (granting petition for review
for Immigr. Rev., 524 F. Supp. 3d 919, 980 (N.D. Cal. Mar. 10, 2021); see also Cath.
Legal Immigr. Network, Inc. v. Exec. Off. for Immigr. Rev., No. 21-cv-00094-RJL, 2021
WL 3609986 (D.D.C. Apr. 4, 2021). At least two of our sister circuits have recognized
the injunctions and, accordingly, deemed the prior versions of the relevant regulation to
remain in effect. Adeyanju v. Garland, 27 F.4th 25, 34 n.6 (1st Cir. 2022); Berdiev v.
Garland, 13 F.4th 1125, 1138 n.6 (10th Cir. 2021).
9
because the BIA appeared to ignore country conditions evidence that supported
petitioner).
Accordingly, we will grant the petition for review, vacate the BIA’s order, and
remand the matter for the agency to address the statements in the affidavits submitted to
the IJ that members of both gangs, including gang members with whom Petitioner grew
up, have threatened to kill him based on their perceptions that he either joined their rival
gang or abandoned them, as well as the relevant country conditions evidence, and to
appropriately address the new evidence that Petitioner submitted to the BIA.
10