MIGUEL VELASQUEZ-SAMAYOA V. MERRICK GARLAND, No. 21-70093 (9th Cir. 2022)
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Petitioner asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured. Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board of Immigration Appeals (“Board”) concluded that Petitioner failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen.
The Ninth Circuit, in granting Petitioner’s petition for review the court held that the Board erred by failing to adequately consider Petitioner’s aggregate risk of torture from multiple sources, and erred in rejecting Petitioner’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence.
The court concluded that the Board erred by failing to assess Petitioner’s aggregate risk of torture. Discussing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), the court explained that when an applicant posits multiple theories for why he might be tortured, the relevant inquiry is whether the total probability that the applicant will be tortured exceeds 50 percent.
Here, the Board considered Petitioner’s two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. The court concluded that in doing so, the Board misapplied Cole and Matter of J-F-F-. By requiring Petitioner to show that every step in two hypothetical chains was more likely than not to occur, the Board increased his CAT burden.
Court Description: Immigration. Granting Miguel Angel Velasquez-Samayoa’s petition for review of the Board of Immigration Appeals’ decision affirming denial of protection under the Convention Against Torture, and remanding, the panel held that the Board erred by failing to adequately consider Velasquez-Samayoa’s aggregate risk of torture from multiple sources, and erred in rejecting Velasquez-Samayoa’s expert’s credible testimony solely because it was not corroborated by additional country conditions evidence. Velasquez-Samayoa asserted that, if he were removed to his native country of El Salvador, he would be identified as a gang member based on his gang tattoos and face a significant risk of being killed or tortured—either by Salvadoran officials or by members of a rival gang with the acquiescence of the Salvadoran government. Relying on Matter of J-F-F-, 23 I. & N. Dec. 912 (A.G. 2006), the Board concluded that Velasquez-Samayoa failed to demonstrate a clear probability of torture because he did not establish that every step in a hypothetical chain of events was more likely than not to happen. The panel concluded that the Board erred by failing to assess Velasquez-Samayoa’s aggregate risk of torture. Discussing Cole v. Holder, 659 F.3d 762 (9th Cir. 2011), the panel explained that when an applicant posits multiple theories for why he might be tortured, the relevant inquiry is whether—considering all possible sources of and reasons for VELASQUEZ-SAMAYOA V. GARLAND 3 torture—the total probability that the applicant will be tortured exceeds 50 percent. For example, if an applicant is at risk of torture from police, death squads, and gangs, he need not prove that each group, treated individually, would more likely than not torture him. The panel explained that Cole’s approach is consistent with Matter of J-F-F-, which provides that, when an applicant posits a single theory for why he would be tortured, but the torture will come about only if several hypothetical events all occur in sequence, an applicant must show that the individual probability of each event occurring is greater than 50 percent. Here, the Board considered Velasquez-Samayoa’s two separate theories of torture—either by Salvadoran officials or by members of a rival gang—as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. The panel concluded that in doing so, the Board misapplied Cole and Matter of J-F-F-. The panel explained that the Board should not have considered Velasquez- Samayoa’s claim as a single hypothetical chain of events, when—as the Board itself acknowledged—he posited two “alternative” and distinct theories for why he would be tortured if he were removed to El Salvador. By requiring Velasquez-Samayoa to show that every step in two hypothetical chains was more likely than not to occur, the Board increased Velasquez-Samayoa’s CAT burden. The panel explained that Velasquez-Samayoa was not required to show that he was more likely than not to be tortured under both theories, nor was he required to show that he was more likely than not to be tortured under any single theory considered individually. Rather, the law required him to show only that, taking into account all possible sources of torture, he is more likely than not to be tortured. 4 VELASQUEZ-SAMAYOA V. GARLAND The panel concluded that the Board also erred by disregarding credible testimony from Velasquez-Samayoa’s expert Dr. Thomas Boerman. The panel explained that, although the agency may reject credible testimony if it is outweighed by other more persuasive evidence, when the agency has credited an expert, it cannot reject that expert’s testimony for the sole reason that it is not corroborated by additional evidence. The panel wrote that the mere fact that Dr. Boerman’s testimony was not corroborated by country conditions evidence was not a valid reason for rejecting that testimony, as expert testimony can itself provide evidence of country conditions. Acknowledging that the agency may point to other persuasive evidence in the record that contradicts a credible expert’s testimony, the panel concluded that to the extent the agency articulated a finding that other evidence in the record outweighed Dr. Boerman’s testimony, such a finding was unsupported by substantial evidence. The panel remanded for the agency to properly assess the aggregate risk that Velasquez-Samayoa will be tortured if he is removed to El Salvador and, as part of that assessment, to properly consider Dr. Boerman’s testimony. VELASQUEZ-SAMAYOA V. GARLAND 5
The court issued a subsequent related opinion or order on September 23, 2022.
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