Rosa Cabrera Vasquez v. William Barr , 919 F.3d 218 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1226
ROSA CABRERA VASQUEZ, a/k/a Ruth Calderon Rocha,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 12, 2018 Decided: March 20, 2019
Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
Petition for review granted; vacated and remanded by published opinion. Chief Judge Gregory
authored the opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Michael Rosado, LAW OFFICES OF ROSADO & SOTREN, P.C.,
Beltsville, Maryland, for Petitioner. Alexander Jacob Lutz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Chad A. Readler, Acting Assistant Attorney General, Anthony C. Payne, Assistant
Director, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
GREGORY, Chief Judge:
Appellant Rosa Cabrera Vasquez (“Cabrera”) and her son Brandon were told they
would be killed by members of the 18th Street gang if they did not leave their native
country of El Salvador within 24 hours. That was the second death threat the mother and
son received. When local law enforcement refused to provide any form of aid, Cabrera
and Brandon made their journey to the United States. Their application for relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”) was denied. Because the Board of Immigration
Appeals (“BIA”) failed to fully consider the evidence in support of Cabrera’s CAT claim,
we grant her petition for review of that claim, vacate the BIA’s order with respect to that
claim, and remand for further proceedings consistent with this opinion.
I.
A.
Cabrera’s family has been the victim of gang violence in El Salvador. In 2010,
her 17-year-old nephew was murdered by gang members when he attempted to resist the
gang’s assault. Four years later, in March 2014, Cabrera’s sister-in-law disappeared after
being kidnapped by gang members during the night from her home. During the three
weeks that Cabrera’s sister-in-law was missing, Cabrera and her youngest son Brandon
searched for her. When Cabrera’s sister-in-law was found, she had been sexually
assaulted and beaten severely.
2
In the course of that search, Cabrera and Brandon happened upon a clandestine
graveyard used by members of the 18th Street gang. Thereafter, gang members began to
threaten Cabrera and her son with death if they told anyone about the graveyard. Cabrera
reported the threats to local police but was told that without any proof of the threats, the
police could do nothing to help her. So Cabrera took her son and moved. But the gang
tracked them down and continued to threaten Cabrera and her son’s lives. Gang
members sent notes and messages, making it clear that “they didn’t want to see [Cabrera]
over there, see [Cabrera and Brandon] over there, because they w[ould] kill [them].”
A.R. 104. The gang gave Cabrera and her son 24 hours to leave the country.
Cabrera went back to the police, this time with the written notes in hand as
evidence. Instead of offering assistance, however, the police “laughed in [her] face” and
accused her son of being a gang member himself. Id. The police provided one piece of
advice: “go back home.” Id.
When the police offered no help, Cabrera made the “radical decision” to flee El
Salvador. Id. She and her son initially journeyed to Mexico, but later left Mexico for the
United States when family members in Mexico were unable to provide Brandon with
adequate “protection.” A.R. 94.
B.
Cabrera and Brandon entered the United States without documentation on July 12,
2014, near Naco, Arizona, where they were detained by the Department of Homeland
Security (“DHS”). During a credible fear interview, Cabrera expressed fear for her and
her son’s lives if they were returned to El Salvador.
3
Cabrera was placed into removal proceedings in Arizona. Upon her release from
DHS custody, Cabrera moved to Maryland, retained counsel, and moved successfully to
change the venue of her removal proceedings to the Baltimore immigration court.
Cabrera conceded removability and applied for asylum, withholding of removal,
and protection under the CAT. In her application, she expressed fear that she and her son
would “risk torture or even death by the gang 18” if they returned to El Salvador because
they had “stumbled upon” the “clandestine cemetery” and “gang members said they
would kill us if we told anybody.” A.R. 121. At a hearing before the immigration judge
(“IJ”), Cabrera testified about the death of her 17-year-old nephew, who “was attacked
cruelly” by gang members. A.R. 100. She also described her sister-in-law’s
disappearance and the threats made to Cabrera and her son after they discovered the
clandestine graveyard. When asked about the rest of her family, Cabrera responded that
she has two other sons who remain in El Salvador and have not been the subject of gang
threats. Cabrera testified, however, that she could not return and live with them because
the gang members “are still over there.” A.R. 102. Nor could she live with her parents,
who were “already elderly.” Id. In short, Cabrera had nowhere safe in El Salvador to go.
In addition to her testimony, Cabrera submitted documentary evidence to support
her CAT claim. That evidence included her nephew’s death certificate, the declarations
of three friends describing her character and the trouble that she had with the gang, a
2014 Congressional Research Service (“CRS”) report on gangs in Central America, a
2016 CRS background report on El Salvador, and several news articles discussing the
widespread violence in the country.
4
After considering Cabrera’s testimony and the documentary evidence, the IJ
denied Cabrera’s application for relief. As relevant to this appeal, the IJ found Cabrera’s
testimony credible and consistent with the documentary evidence presented but held that
she had not met her burden with respect to her CAT claim. According to the IJ, the
gang’s death threats, “while unfortunate,” failed to rise to the level of torture. A.R. 61.
The IJ also determined that Cabrera provided no evidence that she would more likely
than not be subjected to torture if she returned to her home country. This was because
Cabrera’s older sons still live in El Salvador and have not been threatened or harassed
themselves.
The IJ additionally found that Cabrera had not established that the torture she
feared would come at the hands, or at the acquiescence, of government officials. As the
IJ explained, “[t]hough certainly concerning, the fact that the police informed [Cabrera]
that there was insufficient information to file a report fails to demonstrate that
government officials are willfully accepting of the actions by gang members.” A.R. 61.
Addressing the documentary evidence Cabrera submitted, the IJ noted that the
widespread problems appeared “to flow from a weak central government, as opposed to a
conscious effort by the government to leave populations vulnerable.” A.R. 61–62. That,
coupled with the fact that the country conditions report indicated efforts by the
government to fight the gangs, persuaded the IJ that there was insufficient evidence that
the Salvadoran government “would bear any responsibility—through direct or passive
acquiescence—for physical harm visited upon [Cabrera].” A.R. 62 (quoting Matter of
Y.L., A.G., R.S.R., 23 I&N Dec. 270, 281 (BIA 2002)).
5
Cabrera filed a timely appeal with the BIA. The BIA affirmed the denial of
Cabrera’s CAT claim, agreeing with the IJ that Cabrera had not established eligibility for
protection. In its one paragraph of analysis, the BIA found that the IJ’s conclusion that
country conditions showed the government was making efforts to fight the gangs—
therefore making the government unlikely to acquiesce to torture—was not clearly
erroneous. The BIA did not address the conduct of the police officers. Nor did the BIA
comment on the IJ’s finding that there was no evidence of torture.
Cabrera timely petitioned this Court for review.
II.
An applicant seeking protection under the CAT bears the burden of showing “it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2). Torture is “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . . by or at
the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.” Id. § 1208.18(a)(1). A public official acquiesces to
torture if that official is aware of the activity constituting torture prior to the activity and
breaches his or her “legal responsibility to intervene to prevent such activity.” Id.
§ 1208.18(a)(7); Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).
Officials “need not have actual knowledge of the torture; it is enough if they simply ‘turn
a blind eye’ to it.” Mulyani v. Holder, 771 F.3d 190, 200 (4th Cir. 2014) (citing Suarez-
Valenzuela, 714 F.3d at 245–47).
6
While evidence of past torture is relevant, it does not create a presumption of
future torture. Suarez-Valenzuela, 714 F.3d at 245. Instead, the IJ should consider: (1)
evidence of past torture; (2) whether the applicant could safely relocate to another part of
the country; (3) evidence of “gross, flagrant or mass violations of human rights within the
country of removal”; and (4) other relevant information of country conditions. 8 C.F.R.
§ 1208.16(c)(3).
When CAT relief is denied, we review the underlying factual findings for
substantial evidence. Suarez-Valenzuela, 714 F.3d at 245; Turkson v. Holder, 667 F.3d
523, 527–29 (4th Cir. 2012). Under this standard, “administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Suarez-Valenzuela, 714 F.3d at 245 (quoting 8 U.S.C. § 1252(b)(4)(B)).
While this is a deferential standard, we will reverse the BIA’s decision if the evidence
presented “was so compelling that no reasonable factfinder could fail to find” the
requisite likelihood of being tortured at the government’s acquiescence upon return to the
applicant’s country of origin. Suarez-Valenzuela, 714 F.3d at 245 (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 483–84 (1992)).
We also review the BIA’s decision for abuse of discretion. Rodriguez-Arias v.
Sessions, ___ F.3d ___, ___, No. 17-2211, 2019 WL 542996, at *3 (4th Cir. Feb. 12,
2019); Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). We may find that the BIA
abused its discretion “if it failed to offer a reasoned explanation for its decision, or if it
distorted or disregarded important aspects of the applicant’s claim.” Tassi, 660 F.3d at
719. Where, as here, the BIA did not adopt the IJ’s opinion but instead offered its own
7
reasons for denying relief, we review the BIA’s order rather than the IJ’s decision.
Tairou v. Whitaker, 909 F.3d 702, 706 (4th Cir. 2018) (citing Ngarurih v. Ashcroft, 371
F.3d 182, 188 (4th Cir. 2004)). 1
III.
Cabrera argues that the BIA erred in concluding that the evidence does not
demonstrate that Salvadoran officials would likely acquiesce in Cabrera’s torture if she
were returned to El Salvador. This conclusion, Cabrera contends, is improperly based on
a limited analysis of the country conditions that fails to consider Cabrera’s credible
testimony. We agree.
Those who arrive at our border fleeing torture and seeking refuge under our laws
“have the right to know that the evidence they present of mistreatment in their home
country will be fairly considered and weighed by those who decide their fate.” Baharon
v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). Therefore, in reviewing the BIA’s final
order, we have a “responsibility to ensure that unrebutted, legally significant evidence is
1
The parties express some disagreement as to which decision below, and what
parts of those decisions, we should review. Cabrera’s brief suggests that we should
review the entirety of both decisions; the Government asserts that only the BIA and IJ’s
discussion of acquiescence by public officials is reviewable. “[W]here the BIA issues an
opinion without adopting the IJ’s opinion in whole or in part, this Court can only review
the BIA’s opinion.” Martinez v. Holder, 740 F.3d 902, 908 n.1 (4th Cir. 2014). Rather
than adopt the IJ’s reasoning, the BIA has apparently conducted an independent review of
the IJ’s findings and has limited its reasoning to Cabrera’s failure to demonstrate that any
torture would be at the acquiescence of the Salvadoran authorities. Therefore, we review
only the BIA’s decision. See Tairou, 909 F.3d at 706; Krotova v. Gonzales, 416 F.3d
1080, 1084 (9th Cir. 2005).
8
not arbitrarily ignored by the factfinder.” Id. As we have made clear, “[i]t is an abuse of
discretion for the BIA or IJ to arbitrarily ignore relevant evidence.” Rodriguez-Arias,
2019 WL 542996, at *5; Baharon, 588 F.3d at 233; Tassi, 660 F.3d at 719. And while
our job is not to reweigh the evidence that was before the IJ, Baharon, 588 F.3d at 233,
the BIA’s “failure to engage with an applicant’s evidence hampers our ability to
meaningfully review what was decided below,” Rodriguez-Arias, 2019 WL 542996, at *5
(citing Zelaya v. Holder, 668 F.3d 159, 168 (4th Cir. 2012)).
Here, the BIA erred by limiting its review of Cabrera’s evidence of government
acquiescence to the country condition reports that “showed the government was making
efforts to fight the gangs in El Salvador.” A.R. 4. The BIA entirely failed to address
Cabrera’s testimony that she twice sought the aid of local police and twice was turned
away. While the police initially refused to assist her because of a lack of evidence, when
she did present evidence of the death threats she and her son received, she was laughed at
and her son was accused of being a gang member himself. This testimony is material to
Cabrera’s claim that Salvadoran officials turned a “blind eye” to the death threats.
Mulyani, 771 F.3d at 200; 8 C.F.R. § 1208.16(c)(2) (“The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof without corroboration.”). 2
2
We note that the IJ appears to have applied the wrong standard in determining
whether Cabrera’s evidence demonstrated that public officials would acquiesce in her
torture if she returned to El Salvador. The IJ concluded that Cabrera’s encounters with
the police “fail[ ] to demonstrate that government officials are willfully accepting of the
actions of the gang members.” A.R. 61. A CAT applicant, however, is not required to
demonstrate a “willful acceptance” of torture by public officials. Rather, we have held
that public officials “need not have actual knowledge of the torture; it is enough if they
(Continued)
9
Although the IJ found Cabrera’s testimony credible, the BIA’s order lacks any
meaningful engagement with her testimony. Such a “wholesale failure to fully consider”
the country conditions evidence Cabrera presented to show government acquiescence in
her torture constitutes reversible error. Rodriguez-Arias, 2019 WL 542996, at *6; Zelaya,
668 F.3d at 168. 3
IV.
For the foregoing reasons, we grant Cabrera’s petition for review of her CAT
claim, vacate the BIA’s decision with respect to that claim, and remand for further
proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED AND REMANDED
simply ‘turn a blind eye’ to it.” Mulyani, 771 F.3d at 200 (citing Suarez-Valenzuela, 714
F.3d at 245–47).
3
The BIA affirmed only on the ground that Cabrera failed to demonstrate
government acquiescence in any torture. The agency did not consider whether the death
threats constituted torture under the CAT. We note that the IJ summarily concluded,
without analysis, that “[t]he threats and harassment the Respondent suffered, while
unfortunate, do not rise to the level of torture for purposes of protection under the CAT.”
A.R. 61. Death threats to one’s self or others may constitute torture under the CAT. 8
C.F.R. § 1208.18(a)(4)(iii)-(iv). Upon remand, therefore, we expect that if there is a
finding that the threats Cabrera received do not amount to torture, it will be accompanied
by meaningful reasoning.
10