20

- 3063 Barahona v. Garland BIA Auh , IJ A 205 309 979 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 n d da y of A u g u s t , two thousand twenty

3 t hree

. 4 5 PRESENT: 6 RAYMOND J. LOHIER, JR. , 7 EUNICE C. LEE , 8 SARAH A. L. MERRIAM , 9 Circuit Judges. 10

_____________________________________ 11 12 FRANKLIN ARIEL MEJIA BARAHONA , 13 Petitioner , 14 15

v. 20

- 3063 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 22 232 FOR PETITIONER : John H. Peng , Esq. ; Karen Murtagh, Executive 1 Director, Prisoners’ Legal Services of New 2 York, Albany , N Y

. 3 4 FOR RESPONDENT: Brian Boynton , Assistant Attorney General ; 5 Shelley R. Goad , Assistant Director ; Tim 6 Ramnitz , Senior Litigation Counsel , Office of 7 Immigration Litigation, United States 8 Department of Justice, Washington, D

. C. 9 UPON DUE CONSIDERATION of this petition for review of a Board of 10
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 11

DECREED that the petitio n for review is GRANTED

. 12

Petitioner Franklin Ariel Mejia Barahona , a native and citizen of Honduras , 13

seeks review of a n August 10 , 2020 decision of the BIA affirming a February 13 , 14

2020 decision of an Immigration Judge (“IJ”) denying his application for protection 15
under the Convention Against Torture (“CAT”)

. In re Franklin Ariel Mejia 16

Barahona , No. A 205 309 979 (B.I.A. Aug. 10, 2020 ), aff’g No. A 205 309 979 (Immig r

. 17

Ct. Fishkill Feb. 13 , 2020 ). We assume the parties’ familiarity with the underlying 18
facts and procedural history. 19

Under the circumstances, we have review ed the IJ’s decision as 20
supplemented by the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 21
2005). We review the agency’s legal conclusions de novo and its factual findings 223 for substantial evidence. See N asrallah v. Barr , 140 S. Ct. 1683, 1692 (2020); 1
Quintanilla

- Mejia v. Garland , 3 F.4th 569, 583 (2d Cir. 2021)

. 2

An applicant for CAT protection has the burden of showing that he would 3
“more likely than not” be tortured by or with the acquiescence of government 4

officials. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a), 1208.18(a)(1); Khouzam v. Ashcroft , 5

361 F.3d 161, 170

– 71 (2d Cir. 2004). In assessing whether an applicant has 6

s atisfied his burden of proof, the agency must consider all evidence relevant to the 7
possibility of future torture, including “[e]vidence of past torture,” “[e]vidence of 8
gross, flagrant or mass violations of human rights within the country of removal,” 9

and “ [ o ] ther relevant information regarding conditions in the country of removal.” 10

8 C.F.R. § 1208.16(c)(3). “[A]n alien will never be able to show that he faces a 11
more likely than not chance of torture if one link in the chain cannot be shown to 12
be more likely than not to occur. It is the likelihood of all necessary events coming 13
together that m ust more likely than not lead to torture, and a chain of events 14
cannot be more likely than its least likely link.” Savchuck v. Mukasey , 518 F.3d 119, 15
123 (2d Cir. 2008) (quoting In re J

- F

- F

- , 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)). 16

As an initial matt er, t he g overnment argues that Barahona waives any 17
challenge to the agency’s determination that he failed to establish a likelihood of 184 torture in Honduras by not raising such a challenge in his brief. We disagree. 1
Barahona’s brief challenges that determi nation by arguing that the agency failed 2
to explain why it discredited evidence that he faces likely death for leaving the 3
gang, ignored his country conditions evidence, and failed to consider all sources 4
of harm in the aggregate. Further, those arguments have merit. 5

First, the agency erroneously concluded that Barahona failed to provide 6

evidence as to the type of harm he faces for leaving his former gang without 7
permission . Indeed, Barahona testified and provided extensive evidence that 8
gangs kill members who leave without permission. See Poradisova v. Gonzales , 420 9
F.3d 70, 77 (2d Cir. 2005) (“We

. . . require some indication that the IJ considered 10
material evidence supporting a petitioner’s claim.”). 11

Second, the agency erred in requiring Barah ona to establish that a specific 12
person in Honduras would more likely than not torture him when he was required 13
only to show that someone in “his particular alleged circumstances” would more 14
likely than not be tortured. Mu

- Xing Wang v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 15
2003)

. Moreover, Barahona presented evidence that individuals in his 16
circumstances face torture, but the agency failed to adequately evaluate such 17
evidence individually or in the aggregate. See Poradisova , 420 F.3d at 77, 79

– 80; 185 see als o Matter of J

- R

- G

- P

- , 27 I. & N. Dec. 482, 484 (B.I.A. 2018) (“Claims under the 1
[CAT] must be considered in terms of the aggregate risk of torture from all sources , 2
and not as separate, divisible, claims

. ” (quotation marks and ellipsis omitted)). 3
Although Barahona testified that a gang leader had threatened him, the IJ found 4

that fact irrelevant because the threat occurred in the United States , but the IJ failed 5
to evaluate material evidence that the gang is a transnational organization and that 6

a threat from a leader in the United States may be carried out in Honduras

. See 7

Poradisova , 420 F.3d at 77. Further, Barahona presented evidence that the United 8

States informs Honduran officials when removing deportees who have known 9

gang affil iations , but the agency failed to acknowledge or evaluate country 10

conditions evidence that Honduran officials kill and torture suspected gang 11
members or hand them over to rival gangs. See Poradisova , 420 F.3d at 77 ; see also 12

Scarlett v. Barr , 957 F.3d 316, 336 (2d Cir. 2020) (remanding for further 13

consideration of a CAT claim where the agency failed to give “reasoned 14
consideration to all relevant evidence and all principles of law ”); Savchuck , 518 15

F.3d at 123

. 16

B ecause the agency applied an o verly stringent standard, failed to 17
acknowledge or evaluate material evidence, and failed to consider all sources of 186 torture in the aggregate, we vacate and remand. See Poradisova , 420 F.3d at 77

. 1

T he petition for review is GRANTED and the case is remanded to the BIA

. All 2
pending motions and applications are DENIED and stays VACATED

. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6