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- 1370 Cazahuatl Torres 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 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 NO TATION “ SUMMARY ORDER ” ). A PARTY CITING TO 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 20 th da y of May, two thousand twenty

- one

.

P resent : D EBRA A NN L IVINGSTON , Chief Judge
, G UIDO C ALABRESI , W ILLIAM J. N ARDINI , Circuit Judges

.

_____________________________________
E STEBAN C AZAHUATL T ORRES ,

Petitioner ,

v. 19

- 1370 M ERRICK B. G ARLAND , U NITED S TATES A TTORNEY G ENERAL , Respondent

.

_____________________________________
For Petitioner : D AVID A. H OFFMAN , ( W. Logan Lewis
, on the brief )
, Vinson & Elkins, LLP, New York, NY ; Juan Quevedo Gutierrez, The Bronx Defenders, Bronx, NY.

F or Respondent: C HRISTIN M. W HITACRE , Trial Attorney, Office of Immigration Litigation (Kohsei Ugumori, Senior2 Litigation Counsel, on the brief ) , United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is GRANTED

.
Petitioner Esteban Cazahuatl Torres (“Cazahuatl Torres”) , a native and citizen of Mexico,

seeks review of a n April 19, 2019, decision of the Board of Immigration Appeals (“ BIA ”)
affirming a December 7, 2018, decision of an Immigration Judge (“IJ”) denying Cazahuatl

Torres’s application for withholding of removal and relief under the Convention Against Torture
(“CAT”). In re Esteban Cazahuatl Torres

, No. A 201 157 757 (B.I.A. Apr. 19, 2019 ), aff’g No.

A 201 157 757 (Immig. Ct. N.Y. C. Dec. 7, 2018 ). We assume the parties’ fa miliarity with the
underlying facts and procedural history.

We review the IJ’s decision as modified by the BIA
, s ee Xue Hong Yang v. U.S. Dep’t of

Justice , 426 F.3d 520, 522 (2d Cir. 2005) , reviewing the agency’s legal conclusions de novo and

its factual findings under the substantial evidence standard. See Y.C. v. Holder , 741 F.3d 325,
332 (2d Cir. 2013). Cazahuatl Torres claims that he has been the continued target of a smuggler

in Mexico named “Salvador” after he identified two of Salvador’s smugglin g guides to U.S.
immigration officials in 2011. In addition to allegations of threats that he received in Mexico

from 2011 to 2015 , Cazahuatl Torres alleges that he was also subject to kidnapping, sexual assault,

and abuse in the United States at the hands of a smuggler named “Pablo” after he arrived in Arizona

in 2015. Specifically, the IJ found credible Cazahuatl Torres’s testimony that Pablo “confronted”
Cazahuatl Torres after he arrived in the United States “for betray ing Salvador. ” A.R. 35. The
IJ explained:3 [Pablo] pointed a pistol at [Cazahuatl Torres], told him that Salvador has a $10,000 bounty on his head, and forced [Cazahuatl Torres] to perform oral sex on him. [Cazahuatl Torres] was ill and was beaten with the pistol and fell unconscious, and thereafter, he was locked up by Pablo for approximately one month.

A.R

. 35

– 36.
Cazahuatl Torres argues that the IJ and BIA (together, the “agency”) failed to consider

the facts surrounding his assault in the Uni ted States in reaching its conclusion that Cazahuatl

Torres had not establish ed a clear probability of future persecution o r likelihood of torture in

Mexico

. We conclude that the record is unclear on this point. 1 The agency did not discuss the

relevance of Cazahuatl Torres’s testimony that Pablo told Cazahuatl Torres that he was a friend of
Salvador and that Salvador had offered “$10,000 for [his] head” before sexually abusing him and
holding him hostage in a cellar. This evidence , if credited, may demo nstrate that Salvador had
informed others about a “$10,000 bounty on [Cazahuatl Torres’s] head,” that others were willing

to harm Cazahuatl Torres on Salvador’s behalf , and that similar harm might again occur if

Cazahuatl Torres returned to Mexico . Simila rly, based on Cazahuatl Torres’s testimony , it was
likely not, as the IJ found, “speculative that Salvador necessarily kn[ew] or blame[d] [Cazahuatl
Torres]” for identifying his guides to immigration authorities. A.R. 40.

1 Pursuant to 8 C.F.R. § 1208.16(b)(1)(i) , only evidence of past persecution “ in the proposed country of removal ” can give rise to a presumption “that the applicant’s life or freedom would be threatened in the future in the co untry of removal.” 8 C.F.R. § 1208.16(b)(1)(i). The parties assert that the agency applied the BIA’s regulation in its analysis, and Cazahuatl Torres urges that we “not give any deference to the Agency’s Geographic Restriction on past persecution because it fails both steps of the Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837 (1984), analysis.” Pet’r Br. 23

– 24. Neither the IJ nor the BIA, however, mentioned this regulation, and it is unclear from the record whether the agency actually applied it. Even assuming arguendo that the agency did apply the regulation a nd that the BIA’s interpretation of the INA is entitled to deference, see, e.g. , Gonzalez

- Medina v. Holder , 641 F.3d 333, 338 (9th Cir. 2011) (“It is reasonable to link the past persecution provision to the proposed country of removal.”), the agency could still consider the harm Cazahuatl Torres faced in the United States as evidence supporting a likelihood of future persecution in Mexico. See 8 C.F.R. § 1208.16(b)(2). The record does not reflect whether the agency gave such consideration to Cazahuatl Tor res’s testimony.4 Because the agency “ignor [ed] a significant aspect of [Cazahuatl Torres’s] testimony . . .
we are unable adequately to consider whether substantial evidence ” in this case supports the BIA’s

determination that Cazahuatl Torres failed to demonstrate a well

- founded fear of future

per secution. Chen v. I.N.S. , 359 F.3d 121, 128 (2d Cir. 2004)

. A ccordingly , we remand to the
agency to consider this testimony in the first instance. On remand, the BIA may also consider
whether Cazahuatl Torres has established membership in a particular s ocial group or established

that the government would be unwilling or unable to protect him for purposes of his withholding
of removal claim, or whether Cazahuatl Torres has demonstrated government acquiescence as to

his CAT claim.
For the foregoing reaso ns, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED for further proceedings consistent with this order. All
pending motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolf e, Clerk of Court