20-3063

Barahona v. Garland

BIA

Auh, IJ

A205 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.

1 At a stated term of the United States Court of Appeals for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 2 3 nd day of August, two thousand twenty4 three.

5

6 PRESENT:

7 RAYMOND J. LOHIER, JR.,

8 EUNICE C. LEE,

9 SARAH A. L. MERRIAM,

10 Circuit Judges.

11 _____________________________________

12

13 FRANKLIN ARIEL MEJIA BARAHONA,

14 Petitioner,

15

16 v. 20-3063

17 NAC

18 MERRICK B. GARLAND, UNITED 

19 STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23
2

1 FOR PETITIONER: John H. Peng, Esq.; Karen Murtagh, Executive 

2 Director, Prisoners’ Legal Services of New 

3 York, Albany, NY.

4

5 FOR RESPONDENT: Brian Boynton, Assistant Attorney General;

6 Shelley R. Goad, Assistant Director; Tim 

7 Ramnitz, Senior Litigation Counsel, Office of 

8 Immigration Litigation, United States 

9 Department of Justice, Washington, D.C.

10 UPON DUE CONSIDERATION of this petition for review of a Board of 

11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

12 DECREED that the petition for review is GRANTED.

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

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

15 2020 decision of an Immigration Judge (“IJ”) denying his application for protection 

16 under the Convention Against Torture (“CAT”). In re Franklin Ariel Mejia 

17 Barahona, No. A205 309 979 (B.I.A. Aug. 10, 2020), aff’g No. A205 309 979 (Immigr. 

18 Ct. Fishkill Feb. 13, 2020). We assume the parties’ familiarity with the underlying 

19 facts and procedural history.

20 Under the circumstances, we have reviewed the IJ’s decision as 

21 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

22 2005). We review the agency’s legal conclusions de novo and its factual findings 
3

1 for substantial evidence. See Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020);

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

3 An applicant for CAT protection has the burden of showing that he would 

4 “more likely than not” be tortured by or with the acquiescence of government 

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

6 361 F.3d 161, 170–71 (2d Cir. 2004). In assessing whether an applicant has 

7 satisfied his burden of proof, the agency must consider all evidence relevant to the 

8 possibility of future torture, including “[e]vidence of past torture,” “[e]vidence of 

9 gross, flagrant or mass violations of human rights within the country of removal,” 

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

11 8 C.F.R. § 1208.16(c)(3). “[A]n alien will never be able to show that he faces a 

12 more likely than not chance of torture if one link in the chain cannot be shown to 

13 be more likely than not to occur. It is the likelihood of all necessary events coming 

14 together that must more likely than not lead to torture, and a chain of events 

15 cannot be more likely than its least likely link.” Savchuck v. Mukasey, 518 F.3d 119, 

16 123 (2d Cir. 2008) (quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006)).

17 As an initial matter, the government argues that Barahona waives any 

18 challenge to the agency’s determination that he failed to establish a likelihood of 
4

1 torture in Honduras by not raising such a challenge in his brief. We disagree. 

2 Barahona’s brief challenges that determination by arguing that the agency failed 

3 to explain why it discredited evidence that he faces likely death for leaving the 

4 gang, ignored his country conditions evidence, and failed to consider all sources 

5 of harm in the aggregate. Further, those arguments have merit.

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

7 evidence as to the type of harm he faces for leaving his former gang without 

8 permission. Indeed, Barahona testified and provided extensive evidence that 

9 gangs kill members who leave without permission. See Poradisova v. Gonzales, 420 

10 F.3d 70, 77 (2d Cir. 2005) (“We . . . require some indication that the IJ considered 

11 material evidence supporting a petitioner’s claim.”). 

12 Second, the agency erred in requiring Barahona to establish that a specific 

13 person in Honduras would more likely than not torture him when he was required 

14 only to show that someone in “his particular alleged circumstances” would more 

15 likely than not be tortured. Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir. 

16 2003). Moreover, Barahona presented evidence that individuals in his 

17 circumstances face torture, but the agency failed to adequately evaluate such 

18 evidence individually or in the aggregate. See Poradisova, 420 F.3d at 77, 79–80; 
5

1 see also Matter of J-R-G-P-, 27 I. & N. Dec. 482, 484 (B.I.A. 2018) (“Claims under the 

2 [CAT] must be considered in terms of the aggregate risk of torture from all sources, 

3 and not as separate, divisible, claims.” (quotation marks and ellipsis omitted)). 

4 Although Barahona testified that a gang leader had threatened him, the IJ found 

5 that fact irrelevant because the threat occurred in the United States, but the IJ failed 

6 to evaluate material evidence that the gang is a transnational organization and that 

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

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

9 States informs Honduran officials when removing deportees who have known 

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

11 conditions evidence that Honduran officials kill and torture suspected gang 

12 members or hand them over to rival gangs. See Poradisova, 420 F.3d at 77; see also

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

14 consideration of a CAT claim where the agency failed to give “reasoned 

15 consideration to all relevant evidence and all principles of law”); Savchuck, 518 

16 F.3d at 123.

17 Because the agency applied an overly stringent standard, failed to 

18 acknowledge or evaluate material evidence, and failed to consider all sources of 
6

1 torture in the aggregate, we vacate and remand. See Poradisova, 420 F.3d at 77.

2 The petition for review is GRANTED and the case is remanded to the BIA. All 

3 pending motions and applications are DENIED and stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court