Santiaguez v. Garland

20-1693
Santiaguez v. Garland
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM-
MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED-
ERAL 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 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
16th day of September, two thousand twenty-two.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
BARRINGTON D. PARKER
EUNICE C. LEE,
Circuit Judges
_____________________________________
CASIMIRO SANTIAGUEZ, AKA JORGE SMET,
Petitioner,
v. 20-1693
MERRICK B. GARLAND, UNITED STATES ATTORNEY
GENERAL,
Respondent.
_____________________________________
For Petitioner: NOAH NIX, Student Counsel (Thomas V. Burch, Esq.,
Olivia B. Hunter, Student Counsel, Jared R. Allen, Stu-
dent Counsel, on the brief), Appellate Litigation Clinic,
University of Georgia School of Law, Athens, GA.
Paige Austin, on the brief, Make the Road New York,
Brooklyn, N.Y.
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For Respondent: VIRGINIA LUM, Trial Attorney, Office of Immigration
Litigation, Civil Division (Brian Boynton, Acting As-
sistant Attorney General and Nancy E. Friedman, Sen-
ior Litigation Counsel, on the brief), United States De-
partment of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is GRANTED.
Casimiro Santiaguez, a native and citizen of Mexico, seeks review of a May 22, 2020 de-
cision of the Board of Immigration Appeals (“BIA”) affirming a November 20, 2019 decision of
an Immigration Judge (“IJ”) denying protection under the Convention Against Torture (“CAT”).
In re Casimiro Santiaguez, No. A206-0320-068 (B.I.A. May 22, 2020), aff’g No. A206-032-068
(Immigr. Ct. N.Y.C. Nov. 20, 2019). We have reviewed the IJ’s decision as supplemented by the
BIA, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), and assume the parties’ famil-
iarity with the underlying facts and procedural history, which we discuss only as necessary to
explain our decision to grant the petition.
I. Standard for CAT Relief
To be eligible for CAT relief, an applicant must show that upon removal he “more likely
than not would be tortured by, or with the acquiescence of, government officials acting in an offi-
cial capacity.” Scarlett v. Barr, 957 F.3d 316, 334 (2d Cir. 2020) (internal quotation marks omit-
ted); see 8 C.F.R. §§ 1208.16(c), 1208.17(a), 1208.18(a)(1); see also Quinteros v. Att’y Gen., 945
F.3d 772, 786 (3d Cir. 2019) (noting the agency must address “two prongs . . . when evaluating a
CAT claim”: (1) “whether an applicant has met the burden of establishing that it is more likely
than not [he] would be tortured if removed” and (2) “whether public officials will acquiesce in the
likely treatment” (internal quotation marks omitted)). “[A]cquiescence is demonstrated by
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evidence that government officials know of or remain willfully blind to an act [of torture] and
thereafter breach their legal responsibility to prevent it.” Scarlett, 957 F.3d at 334 (quoting
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)). “A private actor’s behavior can consti-
tute torture under the CAT without a government’s specific intent to inflict it if a government
official is aware of the persecutor’s conduct and intent and acquiesces in violation of the official’s
duty to intervene.” Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007). The BIA has held
that CAT relief “must be considered in terms of the aggregate risk of torture from all sources, and
not as separate, divisible . . . claims.” Matter of J-R-G-P-, 27 I. & N. Dec. 482, 484 (B.I.A. 2018)
(quoting Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015)).
On appeal of an agency’s decision, this court reviews factual challenges to CAT orders
under the substantial-evidence standard, pursuant to which the “agency’s ‘findings of fact are con-
clusive 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)). “A deter-
mination of what will occur in the future and the degree of likelihood of the occurrence has been
regularly regarded as fact-finding subject to only clear error review.” Hui Lin Huang v. Holder,
677 F.3d 130, 134 (2d Cir. 2012).
II. Substantial Evidence
Santiaguez contends that the agency failed to appropriately weigh evidence demonstrating
that he faced a risk of torture if he returned to Mexico due to his status as an indigenous gay man
and advocate for transgender rights. In denying his petition for CAT relief, the agency acknowl-
edged that Santiaguez is an indigenous gay man and LGBT activist and that there is widespread
violence against members of the LGBT community throughout Mexico. Nonetheless, the agency
concluded that Santiaguez failed to satisfy his burden for CAT relief because he did not establish
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a likelihood that Mexican authorities would either torture him directly or acquiesce to his torture
by private actors. In reaching this conclusion, the agency erred in several respects.
First, the agency found that the Coordinadora Regional de Autoridades Comunitarias–Poli-
cia Comunitaria (“CRAC-PC”), a volunteer communal police force established by the indigenous
community in the state of Guerrero, would neither torture Santiaguez nor acquiesce in his torture,
because it had reacted to the death of Santiaguez’s brother, who was murdered for being gay, by
convicting and sentencing the murderer to 80 years in the communal judicial system. The agency
reasoned that the CRAC-PC’s responded to Santiaguez’s brother’s murder undermined San-
tiaguez’s contention that members of the CRAC-PC, itself, posed a risk of LGBT-targeted vio-
lence. Critically, however, this finding does not bolster the agency’s acquiescence conclusion.
The CRAC-PC is not a governmental organization but rather a private, volunteer security force
operating in a part of Mexico where governmental protections have proven inadequate. See 8
C.F.R. § 1208.18(a) (defining torture as an act by a public official or an act with the consent or
acquiescence of a public official); see also Khouzam, 361 F.3d at 171 (defining acquiescence as
requiring “only that government officials know of or remain willfully blind to an act and thereafter
breach their legal responsibility to prevent it” (emphasis added)). Accordingly, the IJ erred by
assessing the CRAC-PC as if it were a government actor, whose actions are reflective of Mexican
public officials’ opposition to LGBT violence.
The IJ additionally discredited Santiaguez’s acquiescence arguments based on an incident
in which the Mexican police took control of 12 towns in Guerrero after the community police force
helped drug gangs disappear 43 student protestors, explaining that this evidence showed that Mex-
ican officials can and do intervene. However, the IJ’s determination that a police response to the
kidnapping of a large number of students supports a conclusion that police might do the same to
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protect LGBT individuals is wholly speculative and, even more, is contradicted by evidence that
Mexican public officials do not investigate or punish those who abuse sexual minorities. See
Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (“[W]e will reject a deduction made by an IJ
only when there is a complete absence of probative facts to support it—that is, when the specula-
tion is bald.” (internal quotation marks omitted)). The IJ’s acknowledgement that the Mexican
police suffer from widespread corruption and that 94 percent of crimes go unreported or are not
investigated does not excuse the agency’s failure to address significant record evidence that police
intentionally do not investigate or punish violence against the LGBT community. See Manning
v. Barr, 954 F.3d 477, 486–87 (2d Cir. 2020) (remanding where the IJ and BIA overlooked evi-
dence material to the possibility of future torture).
The IJ further erred in finding that a police superintendent’s letter, which states that San-
tiaguez would not be safe from violence in Mexico, undermines a finding of government acquies-
cence because it “evinces a concern by local authorities as to the safety and well-being of [San-
tiaguez].” C.A.R. 62. As this Court has explained, “[w]here a government contains officials
that would be complicit in torture, and that government, on the whole, is admittedly incapable of
actually preventing that torture, the fact that some officials take action to prevent the torture [is]
neither inconsistent with a finding of government acquiescence nor necessarily responsive to the
question of whether torture would be inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.” De La Rosa v.
Holder, 598 F.3d 103, 110 (2d Cir. 2010) (internal quotation marks omitted). Here, the fact that
a police officer expressed sympathy towards Santiaguez for the danger he faces is even less re-
sponsive to the question of acquiescence than a few officials taking action to prevent torture. See
id. As the Court sees it, the letter tends to support Santiaguez’s assertion that the government
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will acquiesce in his torture because it shows that a police superintendent is aware of the danger
Santiaguez faces and does not think that he can be protected. Indeed, the police superintendent
urged Santiaguez to “stay away from here to avoid suffering the same misfortune as his brother”
and admitted “[t]he reality . . . that if [Santiaguez] returns to Mexico, his life is in danger in this
locality and in Mexico in general.” C.A.R. 384.
The IJ also erred in stating that the evidence does not show that Mexican officials torture
or kill members of the LGBT community or acquiesce in such torture when the record in fact
contains evidence of police involvement in, and incitement of, violence against sexual minorities.
See Manning, 954 F.3d at 486–87. Moreover, the record supports the existence of a heightened
risk to Santiaguez, in particular, as a result of his public-facing advocacy for LGBT rights, which
increases the likelihood that he could be identified and targeted for his affiliations. And, although
the agency recognized that Santiaguez’s claim was based in part on his indigenous status, it did
not consider whether that fact would make it more likely that Mexican officials would acquiesce
to torture. Contrary to the agency’s conclusions, the record includes evidence that the police and
armed forces perpetrate violence against and exhibit indifference towards indigenous, as well as
LGBT, Mexicans. See id.; see also Tian-Yong Chen v. U.S. I.N.S., 359 F.3d 121, 128 (2d Cir.
2004) (finding the BIA’s decision “fatally flawed” when the agency ignored evidence that peti-
tioner had been beaten).
The only findings that are not infected by error and provide support for the agency’s deci-
sion are that Santiaguez’s family did not seek help from government officials after his brother’s
murder and that the federal government has taken steps to promote equality for the LGBT com-
munity and increase penalties for hate crimes based on sexual orientation or gender identity.
However, those findings alone are not sufficient in light of the agency’s multiple errors, namely:
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(1) its bald speculation that the official police response to a mass student kidnapping shows that
police will respond to violence against LGBT individuals; (2) its unsupported conclusion that one
police officer’s expression of sympathy shows that other police officers will not acquiesce in tor-
ture; and (3) its failure to consider material evidence of public officials’ violence against the LGBT
and indigenous communities. See Manning, 954 F.3d at 486–87; see also Tian-Yong Chen, 359
F.3d at 128. Accordingly, we remand for the agency to fully evaluate the record evidence. See
Manning, 954 F.3d at 487; see also De La Rosa, 598 F.3d at 110–11.
* * *
The Court has considered Santiaguez’s remaining arguments and finds them to be without
merit. Accordingly, the petition for review is GRANTED, the BIA’s decision is VACATED,
and the case is REMANDED for further proceedings. All pending motions and applications are
DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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