Francisco Perez v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1369
FRANCISCO JAVIER PEREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A059-606-737.
____________________
ARGUED DECEMBER 13, 2017 — DECIDED MAY 2, 2018
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. Francisco Javier Perez, a Honduran cit-
izen, petitions for review of the denial of his application for
deferral of removal under Article 3 of the Convention Against
Torture. The Board of Immigration Appeals dismissed his ap-
peal from an immigration judge’s decision denying his appli-
cation and ordering his removal to Honduras. In the Board’s
2 No. 17-1369
view, the IJ correctly decided that Perez had not shown that,
if removed to Honduras, he was more likely than not to be
tortured with the acquiescence of a public official by a street
gang. In this court, Perez argues that the immigration service
erred by failing to make factual findings about whether he
would have been tortured had he not narrowly escaped the
gang’s violent recruitment efforts years earlier and that the
Board improperly did not consider whether, if removed to
Honduras, he could live safely and openly there as an unwill-
ing recruit of this gang. We conclude that the Board erred by
truncating the crucial factual inquiry about Perez’s risk of tor-
ture if he is returned to Honduras and by asking the wrong
question with respect to internal relocation. We therefore
grant the petition for review and remand to the Board for fur-
ther proceedings.
I
Perez grew up in Danli, Honduras, where the MS-13 street
gang tried to recruit him as a member. In 2003, when Perez
was 14, MS-13 gave him two weeks to decide whether to join
their ranks or “suffer the consequences.” Instead of joining
MS-13, Perez moved in with his grandmother in another part
of Danli. Later that year, MS-13 members confronted Perez on
his way to school about joining them. Perez responded by
running away and then dropping out of school.
Two or three years later, Perez witnessed the murder of a
friend, who, Perez suspected, was slain to “settl[e] the score”
involving a dispute among local gangs. Perez thought that his
friend was shot to death because the friend’s brother be-
longed to a rival gang of MS-13. The murder did not lead to
any criminal charges, because the shooter’s family threatened
Perez and others not to testify about it. Two men backed up
No. 17-1369 3
the threats by beating Perez. Later an unidentified person
fired shots in the direction of Perez and his friends, but they
fortunately were not hit. Perez reported these events to the
police, but the authorities did nothing in response.
In 2008 Perez was admitted to the United States as a lawful
permanent resident. He joined his stepfather and sister in In-
diana, where he had several factory jobs. He returned to Hon-
duras in 2010 for a two-week vacation. While in Danli, he at-
tended a neighborhood festival. There he was recognized by
the same MS-13 members who had tried to recruit him in
2003; he evaded them by quickly running to his grand-
mother’s house. Scared by this encounter, Perez cut short his
vacation and returned to the United States.
Three years later and back in Indiana, Perez pleaded
guilty to engaging in sexual misconduct with a minor in vio-
lation of IND. CODE § 35-42-4-9(a), and was sentenced to six
years’ imprisonment. After his conviction, the Department of
Homeland Security took Perez into custody and served him
with a Notice to Appear in removal proceedings. DHS as-
serted that Perez was removable because he had committed
“sexual abuse of a minor,” an aggravated felony, see 8 U.S.C.
§ 1101(a)(43)(A). The IJ sustained the charge and noted that
Perez was ineligible for asylum and withholding of removal
because his aggravated-felony conviction was a “particularly
serious crime” under 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i),
1231(b)(3)(B)(ii).
Perez’s disqualification for other forms of immigration re-
lief did not, however, foreclose action under the CAT, which
permits deferral of removal even for those who are ineligible
for asylum or withholding. See 8 C.F.R. § 1208.17. Perez ac-
cordingly sought deferral. In his application, he stated that his
4 No. 17-1369
friend was “killed because he was thought to be part of [a]
street gang,” and that he received threats from MS-13, who
told him that “if I did not join them I would be killed.” He
also expressed the belief, based on his encounter with MS-13
in 2010 and the rampant gang violence in Honduras, that he
would be harmed if he were returned to that country. At his
hearing, he emphasized his fear of the gang violence through-
out Honduras and reiterated his conviction that he would be
pressured (via threats) to join MS-13 if removed there. Vari-
ous family members also testified at the hearing and ex-
pressed their fear that Perez would be killed if he were re-
moved to Honduras and refused to join a gang. Perez also
submitted various news articles documenting the significant
gang violence in Honduras, and he filed letters of support
from family members.
The IJ denied Perez’s application for deferral of removal.
Although he found Perez’s testimony credible, the IJ decided
that he had not met his burden to show that if he were re-
turned to Honduras, he would more likely than not be tor-
tured. In support of this conclusion, the IJ emphasized that
Perez had not previously been tortured by any gangs because
he had “fortunately … evade[d] them or run away” and that
Perez had failed to connect the violence in Honduras to his
personal circumstances. The IJ also determined that Perez had
not shown that he could not relocate safely within Honduras.
Perez appealed to the Board, arguing that the IJ wrongly
decided that his submissions and testimony fell short of the
showing he needed to make for deferral of removal. The
Board upheld the IJ’s decision, pointing out that Perez had
“not been tortured in the past by the gangs he fears” and con-
cluding that his “fear of future torture is speculative, and not
No. 17-1369 5
based on a specific current threat to himself.” The Board also
agreed with the IJ that Perez had not demonstrated that “if he
remains fearful of those who harmed or threatened him in the
past, he would be unable to relocate in Honduras to avoid
those threats.” The Board ultimately concluded that Perez
was not entitled to deferral pursuant to the CAT.
II
An applicant seeking to defer removal under the Conven-
tion Against Torture has the burden of demonstrating that “it
is more likely than not that [he or she] … would be tortured”
if sent to “the proposed country of removal.” 8 C.F.R.
§§ 1208.16(c)(3), 1208.17(a). Recognizing that this inquiry
does not lend itself to mathematical precision, we have under-
stood this language to call for “a substantial risk that a given
alien will be tortured if removed from the United States.” Ro-
driguez-Molinero v. Lynch, 808 F.3d 1134, 1135–36 (7th Cir.
2015). The government urges us to abandon this description,
but we think that it is making too much of semantics. As we
recently explained in Perez-Montes v. Sessions, 880 F.3d 849,
850 (7th Cir. 2018), we apply the substantiality test with the
concept embodied by the Convention’s language in mind.
When all is said and done, the CAT requires a prediction
about what will happen if the applicant for relief is returned
to the proposed country of removal. 8 C.F.R. § 1208.16(c)(3).
The burden is on the petitioner to demonstrate eligibility for
deferral of removal. Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir.
2016). When evaluating the petitioner’s evidence, the IJ “must
address various factors such as evidence of past torture, abil-
ity to relocate within the country, evidence of grave human
rights violations or other relevant country conditions.” Orel-
lana-Arias v. Sessions, 865 F.3d 476, 489 (7th Cir. 2017); see 8
6 No. 17-1369
C.F.R. § 208.16(c)(3)(i)–(iv). When, as in this case, the Board
agrees with the IJ and supplements his or her opinion with
observations of its own, “we review the IJ’s decision wherever
the Board has not supplanted it with its own rationale; where
the Board has spoken, we review its opinion.” Jabateh v. Lynch,
845 F.3d 332, 337 (7th Cir. 2017) (internal quotation marks and
citation omitted). The agency’s factual findings must be sup-
ported by substantial evidence; we give plenary considera-
tion to legal conclusions. Id.A
Perez’s key argument is that the IJ and then the Board cut
off their inquiry prematurely, after they noted that Perez had
not actually been tortured in the past. He freely admits the
fact that MS-13 did not manage to torture him, but he argues
that the relevant inquiry is more complex. There are many
gradations, he contends, between completed acts of torture
(warranting relief) and mere harassment (not warranting re-
lief). For example, if the only reason why someone is not shot
is because she was lucky and dodged a bullet, that person ra-
tionally would believe that the shooter was still out to kill her
and might have better aim the next time. On the other hand,
if one simply receives a threatening note with no other action,
it would be hard to predict future violence on that basis alone
(perhaps depending on what the note said). Perez asserts that
his case presents a situation that lies at or near the “actual tor-
ture” end of the spectrum; it would have been completed tor-
ture if luck and fleet feet had not averted disaster.
With this construct in mind, Perez argues that the immi-
gration service failed to make sufficient findings about
whether he would have been tortured in 2003 if he had not
escaped MS-13’s recruitment efforts, or in 2010 had he not
No. 17-1369 7
been able to flee from the gang members. He suggests that
evidence of a narrow escape from torture is as good as evi-
dence of actual past torture for purposes of 8 C.F.R.
§ 1208.16(c)(3)(i). Both types of evidence, in his view, support
the same prediction for the key inquiry under the CAT: the
likelihood of future torture. Thus, he concludes, to comply
with § 1208.16(c)(3)(i), the immigration service needed to de-
termine whether he would have been tortured by MS-13, and
it committed legal error by failing to give adequate weight to
his narrow escapes.
Perez overstates his case, but at its core his argument has
more merit than the Board thought. We do not need to, and
do not, literally equate a narrow escape from torture with ac-
tual torture, as such an equation would not be consistent with
the definition of torture under Article 1.1 of the CAT1 or the
implementing regulations found in 8 C.F.R. § 1208.18(a)(1),
which largely replicate the CAT language. Nevertheless, an
escape from torture at the hands of the state or someone who
the state cannot or will not control is strong evidence support-
ing a prediction of torture should the target be returned to
that country. Such evidence is particular to the petitioner; it
1 That language is as follows: “For the purposes of this Convention,
the term ’torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a confes-
sion, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official ca-
pacity. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.”
8 No. 17-1369
indicates the methods likely to be used; it identifies who the
perpetrator(s) will be; and it sheds light on the state of mind
of the potential torturer.
Perez should have been given the opportunity to show
that, at MS-13’s hands, in the earlier situations he would have
experienced severe physical or mental pain or suffering, in-
flicted for a particular purpose, and at the instigation of or
with the consent or acquiescence of a public official. 8 C.F.R.
§ 1208.18(a), and that this points to a serious risk of torture on
his return to Honduras. We grant that any inquiry about the
future requires some speculation, but that problem is baked
into the Convention and § 1208.16(c)(3). The fact that Perez
was the target of some near-misses, however, shows that
MS-13 had Perez himself in its sights and was willing to take
violent action against him. The threat of imminent death is
one way in which torture by means of mental pain or suffer-
ing can be inflicted. 8 C.F.R. § 1208.18(a)(4)(iii).
B
Perez also argues that the Board erred by failing to con-
sider whether, after relocation, he would have to hide the fact
that he has resisted MS-13. He acknowledges that the Board
did evaluate whether he “would be able to avoid the particular
MS-13 members he had previously confronted.” (Emphasis
added.) Perez contends, however, that this was not enough,
and that our case law has consistently required “the Board [to]
ask whether [a CAT applicant] could live safely after ‘openly’
admitting the qualities that exposed him to danger.” See Ve-
lasquez-Banegas v. Lynch, 846 F.3d 258, 262–63 (7th Cir. 2017);
N.L.A. v. Holder, 744 F.3d 425, 442 (7th Cir. 2014) (in context of
asylum and withholding of removal); Sarhan v. Holder, 658
F.3d 649, 661 (7th Cir. 2011). As evidence of the danger of MS-
No. 17-1369 9
13 to him throughout Honduras, he points to his mother’s let-
ter, his testimony, and that of his wife, sister, and cousin, who
testified about gangs’ extensive reach in Honduras. These
witnesses all testified about their fear that he would be killed
in Honduras no matter where he settled.
Perez is correct that the Board erred by examining only the
threat from the same MS-13 gang members who previously
confronted him and failing to consider his evidence that
MS-13 (whether through the same or different representa-
tives) would endanger him in the areas of Honduras outside
of Danli. The Board said only that it was “not persuade[d]”
that “if he remains fearful of those who harmed or threatened
him in the past, he would be unable to relocate in Honduras
to avoid those threats.” As a result, the Board did not comply
with 8 C.F.R. § 1208.16(c)(3)(ii)’s requirement that it consider
all evidence relating to whether a CAT applicant can relocate
safely within the proposed country of removal. See Piescha-
con-Villegas v. Attorney Gen. of U.S., 671 F.3d 303, 313–14
(3d Cir. 2011); Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir.
2011).
Although we theoretically could look to the IJ’s opinion to
fill in this important omission from the Board, see Orellana-
Arias, 865 F.3d at 489, we find that option unsatisfactory here.
The IJ made a perfunctory statement to the effect that “[t]he
record does not indicate that the reach of these gangs is abso-
lute throughout Honduras or that they would learn of [Pe-
rez’s] whereabouts were he to return,” but he offered no ex-
planation for this conclusion and mistakenly said that the
country of return would be Mexico, not Honduras. Under the
circumstances, this is not enough to fill the gap in the Board’s
reasoning.
10 No. 17-1369
We conclude that the Board must take another look at Pe-
rez’s evidence that relocation is not an option for him, because
MS-13 members outside of Danli would torture him in Hon-
duras.
III
The IJ and the Board failed to make an adequate inquiry
into Perez’s near-escapes from MS-13’s clutches and thus
failed properly to include this factor in the mix when they
made their prediction about the risk of torture Perez would
face if returned to Honduras. The Board also erred when con-
sidering Perez’s evidence that he could not relocate safely
within Honduras, by too narrowly focusing on his exposure
to particular MS-13 members rather than the gang as a whole.
We therefore GRANT Perez’s petition for review.