Wilson Pena-Lojo v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 20-2641
____________
WILSON PENA-LOJO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A087-392-768)
Immigration Judge: Jason L. Pope
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 23, 2021
Before: SMITH, Chief Judge, MATEY and FISHER, Circuit Judges.
(Filed: November 5, 2021)
____________
OPINION*
____________
FISHER, Circuit Judge.
Wilson Pena-Lojo, a Guatemalan citizen and environmental activist, entered the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
U.S. illegally. When removal proceedings began, he applied for deferral of removal under
the Convention Against Torture (CAT).1 The Immigration Judge (IJ) denied Pena-Lojo’s
application and the Board of Immigration Appeals (BIA) affirmed. Pena-Lojo petitions
for review. We will grant the petition.2
Under the legislation that implements the CAT, it is “the policy of the United
States not to . . . effect the involuntary return of any person to a country in which there
are substantial grounds for believing the person would be in danger of being subjected to
torture.”3 An individual applying for CAT protection must show that “it is more likely
than not that he or she would be tortured if removed to the proposed country of
removal.”4 Torture is “any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted . . . for such purposes as . . . punishing . . . , intimidating
1
In 2018, Pena-Lojo pled guilty in New Jersey state court to endangering the
welfare of a child through sexual conduct, N.J. Stat. Ann. 2C:24-4A(1). His conviction
renders him ineligible for withholding of removal under both the Immigration and
Nationality Act and the CAT. 8 U.S.C. § 1231(b)(3)(B)(ii). His only requested relief is
deferral of removal under the CAT. See 8 C.F.R. § 208.16(c)(4).
2
We have jurisdiction under 8 U.S.C. § 1252(a)(4). “Because the BIA here
adopted the IJ’s reasons concerning the denial of CAT relief, ‘we review both the BIA
and IJ decisions.’” Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 871 n.11 (3d Cir. 2020)
(quoting Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012)). “[F]actual
challenges to CAT orders” are reviewed under the “highly deferential . . . . substantial-
evidence standard: The agency’s ‘findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S.
Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review questions of law
de novo. Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
3
Auguste v. Ridge, 395 F.3d 123, 133 (3d Cir. 2005) (quoting Foreign Affairs
Reform & Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681).
4
8 C.F.R. § 208.16(c)(2).
2
or coercing.”5 The pain or suffering must be “inflicted by, or at the instigation of, or with
the consent or acquiescence of, a public official.”6
The IJ concluded that, in Guatemala, Pena-Lojo would be merely harassed, not
tortured. Pena-Lojo argues that the BIA should not have affirmed because the IJ
impermissibly ignored evidence weighing in favor of granting relief. We agree.
The applicable regulation directs the IJ to consider “all evidence relevant to the
possibility of future torture”—not only “[e]vidence of past torture inflicted upon the
[particular] applicant,” but also “[e]vidence of gross, flagrant or mass violations of
human rights within the country of removal” and “[o]ther relevant information regarding
conditions” there.7 Indeed, “[c]ountry conditions alone can play a decisive role [in
determining if relief is warranted].”8 And while the agency “need not ‘discuss every piece
of evidence,’”9 it “may not ignore evidence favorable to the [petitioner].”10 “[I]f
[evidence] is to be disregarded, we need to know why.”11
In determining that Pena-Lojo “was not subject to past torture,” the IJ found that
5
8 C.F.R. § 208.18(a)(1).
6
Id.7
8 C.F.R. § 208.16(c)(3).
8
Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 592 (3d Cir. 2011) (second
alteration in original) (quoting Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001)).
9
Green v. Att’y Gen., 694 F.3d 503, 509 (3d Cir. 2012) (quoting Huang v. Att’y
Gen., 620 F.3d 372, 388 (3d Cir. 2010)).
10
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (quoting Huang, 620
F.3d at 388).
11
Id. (second alteration in original) (quoting Myrie, 855 F.3d at 518).
3
Pena-Lojo was credible in all but one respect: his account of individuals on a motorcycle
shooting at him, narrowly missing him as he leapt behind a tree.12 The IJ determined that
this story was not credible because two affidavits—one submitted by Pena-Lojo’s father
and another by his fellow community activist—did not mention the shooting. This
credibility finding is supported by substantial evidence13 because we cannot say that “any
reasonable adjudicator would be compelled to conclude[,] to the contrary,” that Pena-
Lojo was credible about this event.14 Therefore, we will not give further consideration to
the evidence of the shooting.
Leaving aside the shooting, the IJ still was required to consider “[e]vidence of
gross, flagrant or mass violations of human rights.”15 The IJ and BIA opinions do not
explain why the evidence of this kind that is in the record—which is favorable to Pena-
Lojo’s claim—was disregarded.16
The IJ stated that Pena-Lojo “has absolutely introduced evidence . . . that there are
issues in Guatemala with treatment of the indigenous community,” which include
“exploitation of resources in their communities” and “the recent history of . . . arrests, or
12
AR 69-70.
13
Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005) (“Adverse credibility
determinations, like other factual findings in immigration proceedings, are reviewed
under the substantial evidence standard.”).
14
Nasrallah, 140 S. Ct. at 1692 (quoting 8 U.S.C. § 1252(b)(4)(B)).
15
8 C.F.R. § 208.16(c)(3).
16
See Quinteros, 945 F.3d at 786.
4
in some cases, killings or assassinations.”17 The IJ also noted Pena-Lojo’s expert’s
affidavit discussing “specific violence that occurred in Peten,” Pena-Lojo’s region, “over
the land rights issues and . . . the cases of land rights defenders who have been killed
there, and at times, the lack of a government response to some of these incidents.”18 The
IJ then properly turned to a “determin[ation] [of] what specifically is likely to happen to
[Pena-Lojo] if he were to return to Guatemala.”19
The IJ held that Pena-Lojo would not be tortured if removed because he had not
been tortured in the past. When Pena-Lojo was engaging in environmental activism, he
was “out in the open,” running meetings and having his picture taken—but was never
detained or subject to any treatment worse than “veiled threats” and unfriendly questions
from an auxiliary mayor.20
However, Pena-Lojo submitted extensive evidence that conditions in Guatemala
have substantially worsened in recent years. Therefore, the question is whether the IJ
properly held that Pena-Lojo would be treated the same upon removal as he was before
his departure sometime between 2013 and 2016.21
Pena-Lojo’s expert witness, who has traveled to Guatemala to investigate threats
17
AR 68-69.
18
AR 69.
19
AR 69.
20
AR 70.
21
Pena-Lojo says that after he was removed from the U.S. for the second time, in
2013, he re-entered that same year. In any event, he returned at some point before
November 2016, when federal agents arrested him. DHS AR 43.
5
and assassinations in rural communities, stated in her affidavit that 52 “human rights
defenders” were assassinated in indigenous areas in 2017, a 325% increase over 2016.
She has traveled twice to Peten, and she described the killings of two defenders there in
2013 and 2015. The expert opined that Pena-Lojo would be “visible and vulnerable” to
attacks and assassination attempts “wherever he went inside Guatemala” because he is a
“highly visible figure as a spokesperson for and leader of a community that has disputed
the usurpation of their lands.”22
In addition to the expert’s report, Pena-Lojo offered significant evidence of a
rising tide of human rights violations in Guatemala since 2016. The Inter-American
Commission on Human Rights reported that murders of human rights defenders increased
each year from 2014 to 2017 and noted an “unacceptable increase of violence” in 2017
alone.23 Also in 2017, the United Nations announced that environmental rights defenders
in Guatemala “are the most at-risk defenders in the world.”24
In 2018, Amnesty International reported that seven human rights defenders had
been killed in Guatemala over the course of four weeks, and the 2018 U.S. State
Department Human Rights Report said that “[a]t least nine rural, indigenous activists and
human rights defenders were killed or died under disputed circumstances between May
22
AR 243-44.
23
AR 400.
24
AR 352.
6
and September.”25
In January 2019, National Public Radio reported that indigenous Guatemalans
“worr[ied] that the violence [of the 1990s] [was] making a comeback” because “[i]n just
the last year, 26 members of mostly indigenous campesino [i.e., peasant] organizations
have been killed.”26 The article quoted a U.S. researcher saying that “Guatemala is on the
verge of a major human rights catastrophe,” and an indigenous Guatemalan leader saying
that “Guatemala has entered ‘a new stage of repression’ – one focused on ‘assassinating
community leaders who defend their territories’” against environmental degradation.27
Based on investigations in mid-2019, Amnesty International continued to report
on “increase[d] . . . risks faced by human rights defenders.”28 In July 2019, Global
Witness reported a “five-fold surge in killings” of land and environmental defenders.29 In
September 2019, Peace Brigades International reported that “[v]iolence against human
rights defenders [had] been increasing” for the prior two months, and throughout the
year, “at least one human rights activist [had been] killed every two weeks.”30
We do not take issue with the fact that the agency did not “discuss every piece of
[this] evidence.”31 Rather, the problem is that the IJ and BIA ignored evidence favorable
25
AR 298.
26
AR 662.
27
AR 662, 665.
28
AR 490.
29
AR 578.
30
AR 497.
31
Green, 694 F.3d at 509 (quoting Huang, 620 F.3d at 388).
7
to Pena-Lojo and did not explain why.32 The IJ stated that Pena-Lojo would be treated the
same as he was before 2013 or so, but did not square that assertion with the evidence, all
from the record, that we have just discussed.
The IJ added that Pena-Lojo’s fellow activist, Edvin Amador, “appears to continue
his activism in Guatemala on behalf of his community without being harmed.”33 But
Amador stated: “I live in fear of suffering attacks on my life . . . [W]e do not leave here
because we cannot and especially because we hope that conditions change.”34 Amador
said community leaders are “key targets.”35 He recounted the killing of one such leader in
2016 and stated his concern for an activist friend whose brother had been murdered a
month before and “who [was] being threatened with death” at the time the affidavit was
written in December 2019.36 If the reports about increasing danger to activists are to be
32
See Quinteros, 945 F.3d at 786 (quoting Huang, 620 F.3d at 388).
33
AR 71.
34
AR 744.
35
AR 745.
36
AR 745.
8
ignored, Amador’s affidavit does not provide the basis to do so.37
Because the IJ and BIA do not explain why evidence favorable to Pena-Lojo is to
be disregarded, the proper course of action is to grant the petition and remand.38 In light
of this disposition, we need not consider Pena-Lojo’s arguments that the IJ and BIA did
not complete the required steps of the analysis of the likelihood of torture, and that the
BIA applied the incorrect standard of review.
37
Blanco v. Att’y Gen., 967 F.3d 304, 313 (3d Cir. 2020), contains reasoning
analogous to our thinking here. In Blanco, the agency denied the petitioner’s asylum
application, emphasizing that “despite . . . death threats, Blanco remained unharmed.” Id.
at 313. We held that the agency did not apply the proper standard because “if Blanco’s
persecutors had followed through with their threats—as the BIA and IJ seem to suggest
was necessary—Blanco would be dead.” Id. Similarly here, it seems that, according to
the IJ’s logic, the only way Pena-Lojo could support his application for CAT protection
would be to submit an affidavit from a community activist who was subsequently
assassinated. That is not a faithful application of the CAT standard. See 8 C.F.R.
§ 208.16(c)(2) (petitioner must show that “it is more likely than not that he . . . would be
tortured if removed”).
38
See Quinteros, 945 F.3d at 787; Huang, 620 F.3d at 388.
9