19-2862
Argueta Anariba v. Garland
BIA
Mulligan, IJ
A094 825 836
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of February, two thousand twenty-two.
PRESENT:
ROBERT D. SACK,
JOSEPH F. BIANCO,
Circuit Judges.
STEFAN R. UNDERHILL 1,
District Judge.
_____________________________________
ANGEL AGUSTIN ARGUETA ANARIBA,
A.K.A. ANGEL ANARIBA,
Petitioner,
v. 19-2862
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
1Chief Judge Stefan R. Underhill, United States District Court for the
District of Connecticut, sitting by designation.
FOR PETITIONER: MICHAEL RAYFIELD, Mayer Brown LLP,
New York, NY; ANNIE MATHEWS (Elyssa
N. Williams, on the brief), The
Bronx Defenders, Bronx, NY.
FOR RESPONDENT: BROOKE MARIE MAURER, Trial Attorney,
Office of Immigration Litigation
(Jeffrey Bossert Clark, Acting
Assistant Attorney General, Civil
Division; Justin R. Markel, Senior
Litigation Counsel, on the brief),
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA” or “agency”) decision, it
is hereby ORDERED, ADJUDGED, AND DECREED that the petition
for review is GRANTED and the case is REMANDED to the BIA for
further proceedings consistent with this Order.
Petitioner Angel Agustin Argueta Anariba, a native and
citizen of Honduras, seeks review of an August 23, 2019
decision of the BIA affirming a March 18, 2019 decision of an
Immigration Judge (“IJ”), which denied asylum, withholding of
removal, and protection under the Convention Against Torture
(“CAT”). In re Angel Agustin Argueta Anariba, No. A 094 825
836 (B.I.A. Aug. 23, 2019), aff’g No. A 094 825 836 (Immigr.
Ct. N.Y.C. Mar. 18, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
2
We have reviewed the IJ’s decision as modified and
supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We review factual findings
for substantial evidence and questions of law de novo. See
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). We
grant the petition for review. We remand the case to the BIA
for further proceedings consistent with this Order.
I. CAT Relief
We remand for reconsideration of the denial of CAT relief
because the IJ mischaracterized Argueta’s claim and failed to
consider material evidence. 2 Deferral of removal under the
CAT is not barred by any convictions, but an applicant must
show that he would more likely than not be tortured. See 8
C.F.R. §§ 1208.16(c)(2), 1208.17(a); Khouzam v. Ashcroft, 361
F.3d 161, 168 (2d Cir. 2004). Argueta applied for CAT relief
on the ground that he would be “subject to torture at the
2 Because Argueta was ordered removed for a crime involving moral
turpitude (“CIMT”), our jurisdiction to review his removal order
is limited to “constitutional claims or questions of law.” 8
U.S.C. § 1252(a)(2)(C), (D). However, that jurisdictional
limitation does not apply to our review of his CAT claim, because
“[a] CAT order is distinct from a final order of removal and does
not affect the validity of the final order of removal.” Nasrallah
v. Barr, 140 S. Ct. 1683, 1692 (2020).
3
hands of the family and gang associates” of the people who
“attacked and threatened him in the US” because he had stabbed
one of the people who threatened him. Certified Admin. Rec.
(“CAR”) at 1177. Argueta testified that, after the stabbing,
a group of men in Honduras beat his mother to seek information
on his whereabouts. The account of this attack was confirmed
through affidavits he submitted from a neighbor in Honduras,
as well as from his sisters, which described other threats on
Argueta’s life in both Honduras and the United States.
Additionally, Argueta provided an affidavit from an expert
witness, Dr. Lirio Gutiérrez, a professor at the National
University of Colombia whose research focuses on Honduran
gang activity, who confirmed that someone in Argueta’s
situation was at great risk of torture.
The IJ’s denial of CAT relief was premised on a
mischaracterization of both Argueta’s claim and the evidence
Argueta submitted regarding the nature of his risk of torture.
See Doe v. Sessions, 886 F.3d 203, 210–11 (2d Cir. 2018)
(remanding CAT claim where “agency overlooked key evidence
and mischaracterized the record”). Although the IJ
acknowledged Argueta’s claim that he feared the friends and
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family of the people who had threatened and attacked him in
the United States—one of whom he had stabbed—the IJ focused
only on the threat of harm from individuals in the United
States, not individuals in Honduras. An IJ is required to
conduct “a certain minimum level of analysis” and must provide
“some indication that [he] considered material evidence
supporting a petitioner’s claim.” Poradisova v. Gonzales,
420 F.3d 70, 77 (2d Cir. 2005). The IJ’s decision does not
indicate that he considered material evidence relating to the
risk of harm to Argueta in Honduras from friends and family
of the people whom Argueta feared in the United States or
their associates in the Mara Salvatrucha (“MS-13”) gang.
Moreover, the BIA did not address this argument when Argueta
raised it on appeal.
In addition, Dr. Gutiérrez’s affidavit described the
international coordination of the MS-13 gang and violent
family feuds in Honduras. Though the IJ noted that “the
Court must consider all evidence relevant to the possibility
of future torture,” CAR at 677, the IJ did not discuss that
affidavit, nor did the BIA address Argueta’s reliance on that
affidavit on appeal. Based on her knowledge of Honduras, Dr.
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Gutiérrez concluded that Argueta was “at very high risk” of
torture in Honduras because of his conflict in the United
States, particularly because the families of the individuals
he feared had clearly expressed their intent to seek revenge
and had already attacked and threatened Argueta’s family
members. CAR at 1240. The agency did not explain why it
discounted the expert’s opinion. In addition, the IJ did not
address the evidence in the record of the potential connection
of the MS-13 gang to the ongoing threats, including evidence
that one of the people with whom Argueta had a monetary
dispute was a leader in MS-13 and that Argueta had to be
placed in protective custody while incarcerated to separate
him from prisoners affiliated with the gang.
The IJ also mischaracterized evidence of a death threat
Argueta received from the father of one of the people with
whom he had the monetary dispute. In particular, a neighbor
of Argueta’s mother stated in her affidavit that this father
told her that Argueta would be killed if he returned to
Honduras because Argueta had tried to kill the man’s “family
member.” CAR at 1119. As noted above, after Argueta and the
man’s son had a dispute, the son and two others beat and
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threatened Argueta in the United States. Argueta eventually
stabbed one of those attackers, but the stabbing victim was
not the son of the man who conveyed this threat about Argueta
to the neighbor in Honduras.
The IJ disregarded this threat, finding that it did not
come from a family member of Argueta’s stabbing victim.
Critically, the IJ did not acknowledge evidence that the
individual stabbed by Argueta and the son of the man who
threatened Argueta were cousins or that family feuds in
Honduras often involve extended family. Thus, those
circumstances could have explained the threatening man’s
reference to Argueta trying to kill a “family member.”
The IJ also discounted threats made to Argueta’s sisters—
even though these threats explicitly referenced harm to
Argueta in Honduras—because these threats occurred in the
United States. Even though these threats were made against
Argueta’s sisters in the United States, the threats were about
harm that Argueta would suffer in Honduras. For example, one
sister explained that the individual with whom Argueta had
the monetary dispute followed her to work, told her that he
knew her brother was out of jail and would be deported to
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Honduras, and threatened that “[w]e have some sweet candy for
him waiting in Honduras, and we know when he is getting out
and when he’s being sent back.” CAR at 1125. She explained
that “sweet candy” was code for the assertion that he had
“people with guns and other arms [who] are ready to kill”
Argueta upon his return to Honduras. Id. Therefore, these
threats conveyed to Argueta’s sisters—directed at Argueta and
relating to harm once he returned to Honduras—could not be
discounted (as suggested by the IJ) simply because the threats
were conveyed inside the United States, rather than in
Honduras.
Finally, the IJ erred by discounting the attack on
Argueta’s mother because, in the IJ’s view, there was no
evidence linking the attack to the individuals that Argueta
feared in the United States. Although an IJ may deny CAT
relief where a claim is “too speculative” in that it “involves
a chain of assumptions,” Savchuck v. Mukasey, 518 F.3d 119,
124 (2d Cir. 2008) (internal quotation marks omitted), here,
the IJ did not consider the attack on Argueta’s mother in
light of the fact that her attackers said they were looking
for him, and in light of Argueta’s other evidence supporting
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his claim that people in Honduras would kill him on behalf of
the people he credibly feared in the United States.
Accordingly, we remand to have the agency properly
consider and address the unrebutted expert testimony about
the risk Argueta faces if deported, as well as the other
categories of evidence that the agency discounted based upon
a misreading or mischaracterization of such evidence.
II. Asylum and Withholding of Removal
The agency also determined that Argueta was ineligible
for asylum and withholding of removal because he had been
convicted of a particularly serious crime.
A noncitizen is barred from asylum and withholding of
removal if “the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a
danger to the community of the United States.” 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). In addition to
convictions that are per se particularly serious, id.
§§ 1158(b)(2)(B)(i)-(ii), 1231(b)(3)(B), the BIA may
exercise the Attorney General’s discretion to determine if a
crime was particularly serious, considering (1) “the nature
of the conviction,” (2) “the circumstances and underlying
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facts of the conviction,” (3) “the type of sentence imposed,”
and (4) “whether the type and circumstances of the crime
indicate that the alien will be a danger to the community,”
Nethagani v. Mukasey, 532 F.3d 150, 155 (2d Cir. 2008)
(internal quotation marks omitted). 3 “[C]rimes against
persons are more likely to be particularly serious than are
crimes against property.” Id.
Argueta argues that the agency, relying upon Matter of
G-G-S-, 26 I. & N. Dec. 339 (A.G. 2014), erred in finding
that his mental health could not be considered in the
particularly serious crime analysis. 4 In December 2021, the
Attorney General asked that Matter of B-Z-R-, 28 I. & N. Dec.
424 (A.G. 2021) be referred to him for review to consider
“[w]hether mental health may be considered when determining
whether an individual was convicted of a ‘particularly
serious crime’ within the meaning of 8 U.S.C.
3The danger to the community factor does not require a separate
analysis. See Nethagani, 532 F.3d at 154 n.1.
4 Argueta’s removal for a CIMT implicates the jurisdictional
limitation in 8 U.S.C. § 1252(a)(2)(C). We acknowledge that the
Supreme Court left open whether this limitation applies to
withholding of removal. Nasrallah, 140 S. Ct. at 1694. We do not
reach the issue here because, even if this limitation applies, it
would not prevent us from reviewing a question of law. See 8
U.S.C. § 1252(a)(2)(D).
10
§§ 1158(b)(2)(A)(ii) and 1231 (b)(3)(B)(ii).” Id. (citing
Matter of G-G-S-, 26 I. & N. Dec. at 339). In addition,
another panel of this Court has this precise issue pending
before it. See Augustin v. Garland, No. 20-1724 (2d Cir.
filed June 2, 2020).
The government suggests that we need not address this
issue because the IJ alternatively decided that, even if he
were to consider Argueta’s mental health as a factor in the
particularly serious crime determination, “it would not alter
the finding that his crime is a particularly serious one.”
CAR at 96. However, as Argueta correctly notes, the BIA
never adopted this alternate holding and, thus, it is not
part of the decision on review. See, e.g., Passi v. Mukasey,
535 F.3d 98, 100 (2d Cir. 2008) (“[O]ur review is confined to
those reasons for denying relief that were adopted by the
BIA.”).
Accordingly, we remand the asylum and withholding of
removal claims, along with the CAT claim, to allow the agency
to consider the expected guidance from the Attorney General
on this issue in Matter of B-Z-R-, as well as to allow the
BIA to consider whether it wishes to review the IJ’s
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alternative finding that Argueta’s crime is particularly
serious even when his mental health is considered.
III. Testimony by Video-Teleconferencing
Argueta also asserts that the IJ’s use of video-
teleconferencing to receive Argueta’s testimony in the
removal proceedings, rather than requiring in-person
testimony, violated Argueta’s due process rights and the
agency’s own regulations. However, as Argueta’s counsel
acknowledged at oral argument, this issue becomes moot once
there is a remand. Thus, in light of our remand of the claims
on the other grounds outlined supra, we need not address this
issue.
IV. Waiver of Admissibility
Argueta further contends that the agency abused its
discretion by refusing to consider his application for a U
visa, with an accompanying request for an inadmissibility
waiver, until there was an adjudication by U.S. Citizenship
and Immigration Services (“USCIS”) on Argueta’s U visa
application.
To be eligible for a U visa, a petitioner must establish
that he: (1) “has suffered substantial physical or mental
12
abuse as a result of having been a victim of criminal
activity”; (2) “possesses information concerning criminal
activity”; and (3) “has been helpful, is being helpful, or is
likely to be helpful” to an investigation or prosecution. 8
U.S.C. § 1101(a)(15)(U)(i); see also 8 C.F.R. § 214.14(b).
Argueta applied for a U visa in July 2016, asserting that he
was eligible because, in 2006, his cousin stabbed him in the
chest, and he fully cooperated with the resulting
investigation and prosecution. In December 2018, with his U
visa application still pending with USCIS, Argueta requested
that the IJ adjudicate his application for a waiver of
admissibility. At the hearing, the IJ found that he lacked
jurisdiction to grant the waiver. The BIA made the alternate
finding that the request was premature until there was a
ruling from USCIS and that Argueta had not moved for a
continuance to wait for a decision by the USCIS on the U visa.
However, on September 24, 2019, after the BIA’s decision,
Argueta’s U visa was denied and, on September 25, 2019,
Argueta’s waiver of inadmissibility was denied by USCIS.
Thus, nothing precludes Argueta from asking the BIA to
reconsider this issue on remand now that USCIS has denied a
13
waiver. Accordingly, we need not address this issue at this
juncture.
* * *
For the foregoing reasons, the petition for review is
GRANTED, the decision of the BIA is VACATED, and the case is
REMANDED to the BIA for further proceedings consistent with
this Order. All pending motions and applications are DENIED
and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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