Hernandez-Martinez v. Garland

United States Court of Appeals
For the First Circuit
No. 21-1448
GERSON ANTONIO HERNANDEZ-MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta and Howard, Circuit Judges,
and Walker,* District Judge
Randy Olen on brief for appellant.
Brian Boynton, Acting Assistant Attorney General, Civil
Division, Jessica E. Burns, Senior Litigation Counsel, Office of
Immigration Litigation, and Edward C. Durant, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.
February 2, 2023
* Of the District of Maine, sitting by designation.
KAYATTA, Circuit Judge. In the wake of a police-aided
assault that left him hospitalized, Petitioner Gerson Antonio
Hernandez-Martinez fled to the United States, where he sought
asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Finding Hernandez-Martinez credible, the
Immigration Judge (IJ) nevertheless denied all three forms of
relief. After the Board of Immigration Appeals (BIA) affirmed the
IJ's decision, Hernandez-Martinez timely petitioned for judicial
review. For the following reasons, we find that the record
provides the requisite support for the IJ's conclusions that
Hernandez-Martinez failed to establish eligibility for asylum or
withholding of removal. At the same time, we vacate the order
denying CAT relief. Our reasoning follows.
I.
Hernandez-Martinez is a Guatemalan citizen who entered
the United States without inspection in 2014. Until shortly before
his departure, he had a good life in Guatemala, and made
approximately $5,000 per month between his taxi business and a job
with Coca-Cola.
In March 2014, Hernandez-Martinez was on his way to work
when two men approached him, demanding money and threatening to
kill him if he did not pay. Hernandez-Martinez did not know who
the men were. The men told him that they knew where he lived and
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would harm him or his wife if he did not comply. They also
instructed him not to go to the police.
Hernandez-Martinez went to the police later that day.
Two police officers told Hernandez-Martinez not to be afraid
because they would "take matters into their own hands," and they
offered to drive him home. Instead, they delivered him to the men
who had threatened him earlier. The men hit Hernandez-Martinez in
the face, cut his waist with a knife, burned his right foot with
motorcycle exhaust, dragged him, repeated their threats, and beat
him senseless. The police appeared to know his assailants and
laughed while the men were assaulting him. Hernandez-Martinez
recovered consciousness in a hospital, where he stayed for three
or four days. When he had sufficiently recovered, he promptly
fled to the United States to join his wife and then four- or five-
year-old son, who had already made the journey.
Placed in removal proceedings in 2014, Hernandez-
Martinez conceded his removability but requested asylum,
withholding of removal, and deferral of removal under the CAT. He
argued that he qualified for asylum and withholding of removal
because he had faced past persecution -- and feared future
persecution -- based on his membership in a particular social
group, which he defined as "business owners in Guatemala who have
a high profit." See 8 U.S.C. § 1101(a)(42)(A) (defining the term
"refugee" to encompass a person subject to persecution based on
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"membership in a political social group"). The IJ did not hold a
merits hearing on Hernandez-Martinez's claims until March 8, 2019.
The government makes no claim that Hernandez-Martinez (or his wife
or child) committed any crimes during the five years between his
entry and his 2019 hearing.
The IJ found Hernandez-Martinez to be credible, but
denied his requests for relief. First, she stated that his past
abuse at the hands of his police-supported extortioners did not
"rise above unpleasantness, harassment, and even basic suffering,"
quoting Rebenko v. Holder, 693 F.3d 87, 92 (1st Cir. 1992). The
IJ made no specific finding as to the prospects for future abuse
should Hernandez-Martinez return to Guatemala. Instead, she
devoted the bulk of her reasoning to explaining why, in any event,
he had not established a nexus between his assault and his
membership in a cognizable particular social group. She explained
that his proposed social group lacked "particularity" and had no
limitations based on age or background, and "[t]here was no
evidence that Guatemalan society perceives, considers, or
recognizes 'business owners in Guatemala who have a high profit'
as a distinct social group." Thus, he did not qualify for asylum.
The IJ next determined that Hernandez-Martinez's
withholding of removal claim must fail a fortiori because the
standard is more stringent than that for asylum. Finally, the IJ
rejected the CAT claim, albeit only by stating that "[n]either the
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Respondent's testimony nor other evidence in the record supports
the conclusion that it is more likely than not that the Respondent
would be singled out and tortured by, or with the acquiescence of,
the government of Guatemala, either by their active participation
in torture, or by their willful blindness to the acts of private
individuals."
Hernandez-Martinez appealed the denial of his claims to
the BIA. The BIA affirmed without issuing an opinion. Hernandez-
Martinez then petitioned this Court for review.
II.
"Where the BIA summarily affirms the IJ's asylum
determination, as is the case here, we review the IJ's decision as
if it were the decision of the BIA." Larios v. Holder, 608 F.3d
105, 107 (1st Cir. 2010). In so doing, we review factual
determinations under the "substantial evidence" standard. Gomez-
Abrego v. Garland, 26 F.4th 39, 45 (1st Cir. 2022). "[W]e accept
the findings 'as long as they are supported by reasonable,
substantial and probative evidence on the record considered as a
whole.'" Id. (quoting Aguilar-De Guillen v. Sessions, 902 F.3d
28, 32 (1st Cir. 2018)). Put another way, "[a]n agency's
determination of a fact-driven issue may not be set aside unless
the evidence compels a contrary determination." Moreno v. Holder,
749 F.3d 40, 43 (1st Cir. 2014). We review questions of law de
novo. Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
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A.
1.
A petitioner for asylum must demonstrate persecution or
a well-founded fear of persecution based on a statutorily protected
ground: race, nationality, religion, membership in a particular
social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A).
Persecution entails "more than ordinary harassment, mistreatment,
or suffering." Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir.
2014) (quoting Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217
(1st Cir. 2007)). "To constitute persecution, abuse 'must have
reached a fairly high threshold of seriousness, as well as some
regularity and frequency.'" Ivanov v. Holder, 736 F.3d 5, 11 (1st
Cir. 2013) (quoting Rebenko, 693 F.3d at 92). "An important factor
in determining whether [mistreatment amounts to persecution] is
whether the mistreatment can be said to be systematic rather than
reflective of a series of isolated incidents." Touch v. Holder,
568 F.3d 32, 38 (1st Cir. 2009) (alteration in original) (quoting
Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005)).
Additionally, the petitioner must establish that the protected
ground "was or will be at least one central reason for" the
persecution. 8 U.S.C. § 1158(b)(1)(B)(i). Here, Hernandez-
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Martinez claimed persecution based on his membership in a
particular social group.1
The IJ rejected Hernandez-Martinez's claim for asylum on
two grounds. First, she found that the abuse Hernandez-Martinez
suffered did not constitute persecution because the harm inflicted
on him did not "rise above the level of unpleasantness, harassment,
and even basic suffering." Second, she determined that Hernandez-
Martinez had not sufficiently established that he was persecuted
on account of belonging to a cognizable social group. As we will
explain, we rely only on the latter ground in affirming the denial
of asylum.
2.
We must defer to the BIA's interpretation of the term
"particular social group" as long as it is reasonable. See Elien
v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004). That is, we will
uphold the BIA's interpretation if it is "based on a 'permissible
construction of the statute.'" Chavez v. Garland, 51 F.4th 424,
433 (1st Cir. 2022) (quoting Cantarero v. Holder, 734 F.3d 82, 85
(1st Cir. 2013)).
The BIA has held that an applicant for asylum or
withholding of removal based on membership in a particular social
1 Hernandez-Martinez also argued before the IJ that he was
persecuted based on his political opinion, but the IJ found he had
not demonstrated persecution based on political opinion, and he
does not revive that argument on appeal.
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group must establish that "the group is (1) composed of members
who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in
question." Matter of M-E-V-G, 26 I. & N. Dec. 227, 237 (B.I.A.
2014). Our circuit has likewise "accepted that a legally
cognizable social group is one whose members share a common,
immutable characteristic that makes the group socially visible --
that is, generally recognizable in the community -- and
sufficiently particular to define the group's membership."
Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012).
Additionally, we have "rejected proposed social groups based
solely on perceived wealth, even if signaling an increased
vulnerability to crime, regardless of why one is perceived as
wealthy." Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012)
(cleaned up); see also López-Pérez v. Garland, 26 F.4th 104, 112
(1st Cir. 2022); Garcia-Callejas v. Holder, 666 F.3d 828, 830 (1st
Cir. 2012) (collecting both First Circuit cases and BIA precedent
rejecting social groups based on perceived wealth).
Here, the IJ concluded that Hernandez-Martinez's
proposed social group "failed" because it lacked the required
particularity and social distinction within Guatemala. The group
lacked particularity because it could have included individuals of
any age or background. And the IJ saw no evidence in the record
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that indicated that Guatemalan society recognizes or perceives
business owners with a high profit as a distinct group.
Hernandez-Martinez concedes that "wealth alone may be
insufficient" to define a particular social group, but argues that
his "affluence is combined with his highly visible business
ownership." He points out that a group consisting of business
owners could not, for example, include children. While this may
be true, Hernandez-Martinez's proposed group classification
remains quite broad and partially based on wealth. Especially
because we have previously found that wealth alone cannot define
a particular social group, we see no reason to upset the IJ's
finding here where the only additional limiting suggestion --
visible business owners -- could include people of many ages and
backgrounds, and by its terms is ambiguous. See Mendez-Barrera v.
Holder, 602 F.3d 21, 27 (1st Cir. 2010); see also Sicaju-Diaz v.
Holder, 663 F.3d 1, 4 (1st Cir. 2011) (wealthy Guatemalans
returning from the United States was not a cognizable social
group); Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th
Cir. 2021) (holding that proposed social group of Mexican wealthy
business owners who refused extortion demands lacked
particularity).
Hernandez-Martinez also contends that his proposed group
is socially distinct, because "Guatemalan society perceives
successful business owners as a distinct social group, easily
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identifiable from the vast majority of Guatemalan society, much of
which lives in poverty." He does not, however, cite anything in
the record to support this claim. We therefore cannot conclude
that the IJ's determination that wealthy business owners in
Guatemala are not a sufficiently distinct group was reversible
error. See Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir.
2015) (rejecting a proposed social group, in part because
petitioner offered no evidence of the existence of an otherwise
broadly defined group, "aside from his own assertion").
For the foregoing reasons, Hernandez-Martinez has not
met his burden to overturn the IJ's determination that the proposed
particular social group to which he claims to belong is not
cognizable. We therefore conclude there is no basis to reverse
the IJ's denial of asylum.
B.
We must reach the same conclusion with respect to the
denial of withholding of removal. "To petition successfully for
withholding of removal, an alien must show that, if returned to
his homeland, he would more likely than not be subjected to
persecution on account of a statutorily protected ground." Amouri
v. Holder, 572 F.3d 29, 35 (1st Cir. 2009). Given the probability
requirement, "a claim for withholding of removal 'imposes a more
stringent burden of proof on an alien than does a counterpart claim
for asylum.'" Rivera-Coca v. Lynch, 844 F.3d 374, 378 (1st Cir.
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2016) (internal quotation marks omitted) (quoting Morgan v.
Holder, 634 F.3d 53, 60 (1st Cir. 2011)). Because Hernandez-
Martinez failed to establish a claim for asylum because he did not
establish a well-founded fear of persecution on account of a
protected ground, his claim for withholding of removal also fails.
Id.C.
We turn now to Hernandez-Martinez's CAT claim. Our
holding affirming the rejection of the asylum claim for lack of
the requisite nexus between harm and a protected group does not
dictate the outcome of this claim, because a successful CAT claim
requires no proof of such a nexus. Rashad v. Mukasey, 554 F.3d 1,
6 (1st Cir. 2009) (citing Romilus, 385 F.3d at 8). Rather, in
order to be eligible for protection under the CAT, a petitioner
must show that he would more likely than not be tortured by or
with the acquiescence of a government official if sent to the
country of removal. Aldana-Ramos v. Holder, 757 F.3d 9, 19 (1st
Cir. 2014). In determining whether it is more likely than not
that a petitioner will be tortured with government approval,
all evidence relevant to the possibility of
future torture shall be considered, including
but not limited to:
(i) Evidence of past torture inflicted
upon the applicant;
(ii) Evidence that the applicant could
relocate to a part of the country of
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removal where he or she is not likely to
be tortured;
(iii) Evidence of gross, flagrant, or
mass violations of human rights within
the country, where applicable; and
(iv) Other relevant information
regarding conditions in the country of
removal.
8 C.F.R. § 208.16(c)(3). Although past torture does not create a
presumption of future torture, it is relevant to the question of
whether the petitioner is more likely than not to face future
torture. Id.; see also Romilus, 385 F.3d at 9 (analyzing past
incidents in determining likelihood of future torture).
Adjudicating a CAT claim requires making findings of
fact, "e.g., whether a person is likely to suffer a particular
harm and the role of the foreign government in causing or allowing
that harm," and deciding questions of law, "e.g., whether such
harm rises to the level of torture" and whether government
involvement renders the harm cognizable under the CAT. DeCarvalho
v. Garland, 18 F.4th 66, 73 (1st Cir. 2021). Whether a particular
act constitutes torture is a legal conclusion that we review de
novo, though with reasonable deference to the agency's
interpretation. Gourdet v. Holder, 587 F.3d 1, 5 (1st Cir. 2009),
abrogated on other grounds by Nasrallah v. Barr, 140 S. Ct. 1683
(2020); see also Ali v. Garland, 33 F.4th 47, 54 (1st Cir. 2022).
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The government posits an array of reasons for affirming
the rejection of Hernandez-Martinez's CAT claim. But we must base
any affirmance on grounds adopted by the BIA (or, here, the IJ).
See Rosales Justo v. Sessions, 895 F.3d 154, 162 & n.7 (1st Cir.
2018) (explaining that we "conduct de novo review only of the
justifications provided by the BIA," and noting that such review
"is different from de novo review of district court decisions,
where we can affirm for any reason supported by the record"). Our
charge is not to look through the record searching for reasoning
that the IJ might have offered, but did not. Rather, we "judge
the action of [the BIA] based only on reasoning provided by the
agency, not based on grounds constructed by the reviewing court."
Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir. 2004) (alteration
in original) (quoting Yatskin v. INS, 255 F.3d 5, 9 (1st Cir.
2001)).
The IJ's reasons are not at all clear. She more or less
simply stated the elements of a CAT claim and asserted that
Hernandez-Martinez did not establish those elements without
specifying which elements were found wanting, or why.2 In
addressing the asylum claim, the IJ did comment on the severity of
2 The IJ stated only: "Neither the Respondent's testimony
nor other evidence in the record supports the conclusion that it
is more likely than not that the Respondent would be singled out
and tortured by, or with the acquiescence of, the government of
Guatemala, either by their active participation in torture, or by
their willful blindness to acts of private individuals."
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harm inflicted on Hernandez-Martinez, stating that the abuse he
suffered did not "rise above the level of unpleasantness,
harassment, and even basic suffering." We agree with the
government that were this a supportable description of the harm
inflicted, it would not support a CAT claim. We disagree, though,
that the facts found support such a description. More to the
point, as a matter of law we reject the implicit claim that the
harm visited upon Hernandez-Martinez was not severe enough to
qualify as torture.
Torture is defined as "any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person" to obtain information, to punish, to intimidate or
coerce, "or for any reason based on discrimination of any kind."
8 C.F.R. § 208.18(a)(1). Because we read the IJ's finding to speak
only to severity, that is where we focus our attention. The
regulations implementing the CAT further speak to the necessary
degree of severity by explaining that torture is "an extreme form
of cruel and inhuman treatment," that must be "specifically
intended to inflict severe physical or mental pain or suffering."
Id. § (a)(2), (5). The regulations do not speak specifically to
whether torture must extend over a certain duration or reach a
certain frequency. They do state, though, that "[t]orture is
defined as any act," which implies that a single occurrence is
enough. 8 C.F.R. § 1208.18(a)(1) (emphasis added); see also
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§ 1208.18(5), (6) ("In order to constitute torture, an act
must . . . .); Niz-Chavez v. Garland, 141 S. Ct. 1474, 1481–82
(2021) (reading statutory term defined in singular ("a notice") to
require a single document); Deborah E. Anker, Law of Asylum in the
United States § 7.20 (2022 ed.) ("It is possible, pursuant to the
Torture Convention, for a single act to constitute
torture . . . ."). Certainly the government does not contend
otherwise, so neither shall we.
Here, the treatment that Hernandez-Martinez endured was
clearly severe enough to constitute torture. The assailants not
only beat Hernandez-Martinez senseless; they also sliced his waist
with a knife and intentionally burned the flesh on his foot as
they repeated their threats, sending him unconscious to a hospital
where he remained for three to four days. Even granting
"appropriate deference to the agency's interpretation" on this
legal question, as we must, see Ali, 33 F.4th at 54 (quoting
Ramírez-Pérez v. Barr, 934 F.3d 47, 50 (1st Cir. 2019)), we find
that the record compels the conclusion that Hernandez-Martinez's
experience did "rise above the level of unpleasantness,
harassment, and even basic suffering." More to the point, the
intentionally inflicted harm was the result of an extreme form of
cruel and inhuman treatment intended to inflict severe physical
pain and suffering. That is to say, it was severe enough to
qualify as torture.
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The BIA itself has recognized that intentionally burning
a person with a cigarette can constitute torture. In re J-E, 23
I. & N. Dec. 291, 301–02 (B.I.A. 2002); In re G-A, 23 I. & N. Dec.
366, 370 (B.I.A. 2002); see also P. Kooijmans (Special Rapporteur
on Torture), Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, ¶ 119, U.N. Doc. E/CN.4/1986/15 (Feb. 19,
1986) (listing burns among nonexclusive methods of torture).
Courts have recognized this as well. See Rodriguez-Molinero v.
Lynch, 808 F.3d 1134, 1136 (7th Cir. 2015) ("agree[ing]" that
petitioner "was tortured by [people] who entered his hotel room,
burned him with cigarettes, beat him, and stabbed him with an ice
pick"); Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001)
(burning with cigarettes while detained constituted torture and
was "specifically intended by officials to inflict severe physical
pain"). Intentionally burning the flesh of a person's foot while
cutting the person at the waist and beating him unconscious is
severe enough to be distinguishable from the lesser forms of cruel,
inhuman, or degrading treatment that do not amount to torture.
In arguing to the contrary, the government relies on a
two-step argument. First, it points to cases in which we have
affirmed findings that the harm inflicted on a petitioner did not
constitute persecution.3 Second, it assumes that if harm is not
3 See Gao v. Barr, 950 F.3d 147, 152–53 (1st Cir. 2020);
García-Cruz v. Sessions, 858 F.3d 1, 6–7 (1st Cir. 2017); Vasili
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sufficiently severe to constitute persecution it cannot be
sufficiently severe to constitute torture.4 But this argument
fails at the first step because in none of the cited cases did we
find that conduct equally or more severe than that found here fell
short of the severity required to constitute persecution. In some
of those cases, the persecution claims failed because the harm did
not "occur[] with some regularity and frequency" -- a requirement
for persecution that is separate from the severity, or
"seriousness," of the harm. Vasili v. Holder, 732 F.3d, 83, 89
(1st Cir. 2013) (cleaned up) (quoting Alibeaj v. Gonzales, 469
F.3d 188, 191 (1st Cir. 2006)); see Anacassus v. Holder, 602 F.3d
14, 20 (1st Cir. 2010) ("[I]solated beatings, even when
rather severe, do not establish systematic mistreatment needed to
show persecution." (emphasis added) (quoting Wiratama v. Mukasey,
538 F.3d 1, 7 (1st Cir. 2008))).5 These cases therefore have
v. Holder, 732 F.3d 83, 89–90 (1st Cir. 2013); Barsoum v. Holder,
617 F.3d 73, 79–80 (1st Cir. 2010); Anacassus v. Holder, 602 F.3d
14, 19–20 (1st Cir. 2010); Lumataw v. Holder, 582 F.3d 78, 91 (1st
Cir. 2009); Touch v. Holder, 568 F.3d 32, 39–40 (1st Cir. 2009);
Kho v. Keisler, 505 F.3d 50, 57–58 (1st Cir. 2007); Bocova v.
Gonzales, 412 F.3d 257, 263–64 (1st Cir. 2005).
4 The government cites Nuru v. Gonzales, 404 F.3d 1207, 1224
(9th Cir. 2005) ("In finding that Nuru was tortured, we also
necessarily determined that the acts committed by the military
rose to the level of persecution. . . . This is because torture
is more severe than persecution and the standard of proof for the
CAT claim is higher than the standard of proof for an asylum
claim.").
5 See Anacassus, 602 F.3d at 20 ("single, isolated beating"
was not "systematic" and was therefore insufficient to constitute
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little bearing on whether harm is severe enough to constitute
torture. And in the remaining persecution cases the government
cites, the harm found wanting was clearly less severe than the
harm inflicted on Hernandez-Martinez (and the claims may have had
had other deficiencies as well).6
The government comes closest with Barsoum v. Holder,
where the petitioner's car was pushed off the road into a trash
container and he suffered "injuries to the face and head, requiring
hospitalization, a blood transfusion, and plastic surgery." 617
F.3d 73, 77 (1st Cir. 2010). The court affirmed that this
incident, along with other nonviolent incidents, constituted
neither persecution nor torture. Id. at 79–80. But while the
injuries in Barsoum are unquestionably serious, pushing a car off
persecution); Bocova, 412 F.3d at 263 (affirming BIA determination
that petitioner had not been persecuted where "the record here
shows only two incidents, over an eight-year span," and "there is
little in the record to suggest that the petitioner was
systematically targeted for abuse").
6 See Gao, 950 F.3d at 152–53 (no evidence of any injuries
during detention incident); García-Cruz, 858 F.3d at 6–7 (threats
with no physical harm); Vasili, 732 F.3d at 90 (no evidence about
nature and extent of petitioner's injuries from beating); Lumataw,
582 F.3d at 91 (petitioner "received only a single threat,
unaccompanied by physical harm"); Touch, 568 F.3d at 39–40
(petitioner "did not suffer serious or permanent injuries" from
being beaten and forced to drink wastewater, and single threat was
unaccompanied by physical harm); Butt, 506 F.3d 86 at 90–91
(threats and stalking with "no actual physical harm"); Kho, 505
F.3d at 57-58 (non-violent mugging, verbal insult, looting
incident where petitioner was hit once, burning of two churches
petitioner attended while he was absent).
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the road does not have the "specific[] inten[t] to inflict severe
physical or mental pain or suffering" required for an act to
constitute torture, 8 C.F.R. § 1208.18(a)(5). The car crash could
instead be an example of "[a]n act that results in unanticipated
or unintended severity of pain and suffering," which "is not
torture." Id. Here, by contrast, Hernandez-Martinez's assailants
intentionally cut him, burned him, and beat him senseless, all
toward the end of inflicting severe pain and injury to bend him to
their will, and seemingly as punishment for not previously acceding
to their demands.
To summarize, we hold that the harm inflicted in the
past on Hernandez-Martinez clearly satisfied the severity element
of torture as defined for purposes of adjudicating a claim for
relief under the CAT. We leave it to the BIA or the IJ to determine
on remand in the first instance whether Hernandez-Martinez's
experience otherwise met the definition of past torture (e.g.,
whether it was committed by or with the acquiescence of government
officials), and if so, whether Hernandez-Martinez has otherwise
satisfied the requirements for protection under the CAT.
III.
For the foregoing reasons, we deny Hernandez-Martinez's
petition as to his asylum and withholding of removal claims, but
grant the petition in part by vacating the rejection of his CAT
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claim and remanding for further consideration of that claim
consistent with this opinion.
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