1 Pursuant t o Federal Rule of Appellat e Procedure 43 (c)(2), Attor ney General Michael B.

Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales. -1- 05-4393-ag Delgado v. Muka sey UNIT ED S TAT ES COU RT OF A PP EALS FOR THE SE CON D CIR CUIT

____________________________________

August Term, 2006 (Argued: August 6, 2007 Decided: Nove mber 28, 2007) Docket No. 05-4393-ag

____________________________________ MARIA DEL

PILA R DELGADO, Petitioner ,

– v. – MICHAEL

B. MUKASEY, 1 Attorney Gene ral of the United States of America, Responde nt.

____________________________________ Before: CALAB RESI, RAGGI , and HALL , Circuit Ju dges.

____________________________________ Petition for review of a decision of the Board of I mmigration Appeals, affirming an Immigration Judge’s denial of Petitioner’s application for asy lum, withholding of removal, and relief under the Convention Against Torture. Petitioner, who fle d her country after being kidnapped by anti-government terrorists to set up their computer network, arg ues, inter alia , that the Immigration Judge er red in finding that she failed to establish a well-founded fe ar of persec ution or a likelihood

of tortur e. We hold t

hat the B oard of I

mmigrat ion Appea

ls improperly denied Petitioner’ s application without considering whether she had a we ll-founded fear of future persecution on ac count of imputed political opinion. We also hold that the-2-

agency ’s denial of Petitioner’s CAT claim must be vacated because the agency appears to have misstated the record, and the agenc y’s application of the la

w does not seem to comport with our most recent rulings. The petition for review is GRANTED a nd the case is REMANDED to the BIA, with instructions to remand to an I mmigration Judge for further findings of fa ct.

_ ________________________

ALAN MI CHAEL STRAUSS, (Stanley H. Wallenstein, on the 1 brief ), New York, N.Y., for Petitioner

. 2 3 KEITH I. M cMANUS, O ffice o f Imm igration Litigation, U. S. 4 Department of Justice, (Nelson Pérez-Sosa, on the brief ), for Rosa 5 E. Rodriguez-Velez, United States Attorney for the District of 6 Puerto Rico, San Juan, P.R., for Respondent

. 7

_____________________________________ 8 9 CALABRESI , Circuit Judge : 10 This case raises the question of whet her an a syl

um seeke r who was

kidnappe d in order

to 11 set up the computer network of a terrorist org anization, and who, after her temporary release, has 12 refused to cooperate further with that organization, has a reasonable fear of future persecution on 13 the basis of imputed political opinion: opposition to the terrorist organization that kidnapped her. 14 Since neither the Board of I mmigration Appeals (“BI A”) nor the Immigr

ation Judge (“IJ”) 15 consider

ed this as serted b asis for r elief, a nd since Pe

titioner d id not have

an oppor tunity to flesh 16 out this argument at the hearing on the merits of he r claim, we remand to the BIA with 17 instructions to remand to an IJ for further findings of f act. We also remand for reconsideration of 18 Petitioner ’s Conven tion Aga inst Tortu re (“CAT”) cla

im. 19 I. BACKGROUND 20 Maria Del Pilar Delgado (“Petitioner” or “Delgado”), a native and c itizen of Colombia, 21 arrived in the United States in April 2002. In Dec ember 2002, she sought asy lum, withholding of 22 removal, and relief under the CAT. Her e xperiences in Colombia with the Revolutionary Armed 23-3-

Forces of Col ombi a (“FAR C”), a n anti -govern ment t errori st orga niza tion respo nsib le for large 1 numbers of civilian casualties, political murders, and forced disappe arances, were the bases of 2 her cla

ims. Remova

l procee dings we

re initia ted aga inst Petitioner in June

2003, and

a merits 3 hearing took place on March 3, 2004, bef ore IJ Brigitte Laforest. 4 Petitioner’s attorney did not attend the he aring on the merits of Petitioner’s claims. Two 5 witnesses that Petitioner’s attorney pla nned to call, Petitioner’s mother and brother, also did not 6 app ear , ap par ent ly be cau se P eti ti one r wa s un awa re t hat her att orn ey wan ted th em t her e. T he IJ 7 proceeded without them, and on direct examination she solicited the following acc ount from 8 Petitioner. 9 In January

2002, three men and two women dressed in military clothing abducted 10 Petitioner at gunpoint and transported her to a FARC camp in the countr yside. They

told her that 11 she had b een kidna pped bec ause of her compu ter skills (at that t ime, Petiti oner wor

ked as a 12 computer systems expert at a ba nk in Colombia), and that she would be setting up the FARC’s 13 computer network. According to Petitioner’s asy lum statement, the kidnappers threatened her by 14 telling her that they knew who she was, where she lived, and whe re she worked; they

said “[t]hey 15 had been watching [her] and if [she] did not help them, [her] family would be pr eparing [her] 16 funeral.” Petitioner indicated she did not want to help the FARC because she “do[es] not support 17 any organization that deals in murder.” 18 After three days, the computer equipment had not arrived, so the FARC soldiers release d 19 Petitioner

with instru

ctions tha t they would con

tact her again a nd that she

must not re

port them t

o 20 the polic e; they

reitera ted that they

could ea sily

find her and that i f she bet

ray ed them she would 21 be killed. Upon her release, Petitioner fled the town wher e the FARC soldiers left her and went 22-4-

to a friend’s house in another town. The following we ek, Petitioner learned that a man and a 1 woman had asked Petitioner’s roommate in her original town whe re Petitioner was. They 2 indicated that the FARC’s computer equipment had arrived. Someone ha d also called her 3 mother’s house looking for her. Petitioner filed an incident re port with the local authorities, but 4 “they did not give it much importance” because she was “just a c ivilian person.” 5 Significantly, for the purpose of our analysis, the IJ found that Petitioner was credible and 6 that her fears were subjectively genuine. Nevertheless, the I J denied Petitoner’s application for 7 asylum and withholding of r emoval because Petitioner “was not kidnapped beca use of her 8 political opinion, . . . her race, her religion, her na tionality, or her membership in a pa rticular 9 social group.” See In re Delgado , No. A 96 241 761 (Immig. Ct. New Yor k City Mar. 3, 2004). 10 “[F]or that reason and for that reason alone,” the I J stated, “I find that this respondent does not 11 qualify for political asy lum in the United States.” Id. The IJ also found that Petitioner was not 12 eligible for relief under the CAT bec ause the FARC had not acted with the consent or 13 acquiescence of the gove rnment. 14 Petitioner appealed to the BI A, arguing that she had established a well-founded fear of 15 future persecution on account of her political re sistance to the FARC and of her membership in a 16 particular social group (experts in computer scienc e). She also contended that the IJ violated her 17 right to due process by failing to inform her that she could request a continuanc e when her 18 attorney did not appea r at her hearing. I

n addition and in any ca se, she requested a remand 19 because her counsel had give n her constitutionally ineffe ctive assistance. The BIA adopte d and 20 affirmed the IJ’s decision, adding that Petitioner’s testimony showed that she had be en 21 kidnapped because of her computer skills, not her political opinion, and that the par ticular social 22-5-

group she described was not cog nizable because its members possess only “broadly-

based 1 characteristics.” See In re Delgado , No. A 96 241 761 (B.I.A. July 18, 2005), aff’g No. A 96 241 2 761 (Imm ig. Ct . Ne w Yo rk C it y Mar . 3, 200 4) ( in ter nal quo tat io n m ark s om it ted ). T he B IA 3 further found that even if the FARC targ eted Petitioner on account of a protected g round, she 4 would be ineligible for asy lum since kidnapping does not rise to the level of persecution. The 5 BIA denied Petitioner’s CAT c laim because the record was “de void of any evidenc e” from which 6 it could infer that she would suffer harm “with the acquiesc ence of the Colombian government.” 7 Id. The BIA did not consider D elgado’s allegations regarding ineffective assistance of counsel or 8 the IJ’s failure to notify her about her right to a continuance. This appe al followed. 9 II. DISCUSSI ON 10 A. Standard of Review 11 Where, as here, the BI A has adopted and supplemented the IJ’s decision, we review the 12 decision of the IJ as supplemented by the BIA. Gao v. Gonzales , 440 F.3d 62, 64 (2d Cir. 2006). 13 And because the IJ found Petitioner to be credible, we treat the events she experie

nced in the past 14 as undisputed facts. Id. We review the factual findings of the I J or the BIA under the substantial 15 evidence standard, which means that “a f inding will stand if it is supported by rea sonable, 16 substantial, and probative evidence in the record whe n considered as a whole.” Secaida-Rosales 17 v. INS

, 331 F.3d 297, 307 (2d. Cir. 2003) (internal quotation marks omitted). This standard 18 “requir

e[s] a cer tain minimu

m level of

analy sis from the IJ an

d BI A,” as we ll as “ some indication 19 that the IJ considered material evidenc e supporting a petitioner's claim.” Poradisova v. 20 Gonzales , 420 F.3d 70, 77 (2d Cir. 2005). We review de novo questions of law and the 21 application of law to undisputed fact. Secaida-Rosales , 331 F.3d at 307. 22-6- B. Asylum and Withholding of Removal 1 Asylum is a discretionary form of relief that hinges on persec ution in the applicant’s 2 country of na

tionality. An asy

lum applicant may establish eligibility by showing that she has 3 suffered past persecution or has a we ll-founded fear of future persec ution, on account of race, 4 religion, nationality, membe rship in a particular social group, or political opinion. 8 U.S.C. § 5 1101(a) (42). “A

n applica nt who has

been fou nd to have

established such p ast pers ecution shall 6 also be presumed to have a well-founded fe ar of persecution on the basis of the original c laim.” 7 8 C.F.R. § 2 08.13(b) (1). Onc e an app licant ha s established eligibility , howeve r, it rema ins within 8 the Attorney Ge

neral’s discretion to deny asylum. 9 Requests f or withhol ding of r

emoval un

der 8 U.S. C. § 1231(b )(3) of ten rely on the same 10 grounds as asy

lum and de

pend on the same ty

pes of pr oof, but withholding

of removal is a 11 mandatory for

m of relief, and it requires the applicant to clear a higher bar. Specifically, if an 12 applica

nt shows tha

t “it is more

likely than not” that her “life or freedom would be

threate ned in 13 the proposed country of removal on account of race, re ligion, nationality, membership in a 14 particular social group, or political opinion,” the Attorney General must withhold removal. 8 15 C.F.R. § 1208.16(b). 16 The applicant bears the burden of demonstrating eligibility for asy

lum and withholding of 17 removal , but an applicant’s testimony alone may be suffic ient to carry this burden. 8 C.F.R. §§ 18 208.13(a

), 208.16 (b). We a

lso reco gnize tha

t “ the IJ has an af

firmativ e obliga

tion to help 19 establish and develop the record in the course of suc h proceedings,” Secaida-Rosales , 331 F.3d 20 at 306, especially w hen, as here, an alien is unrepresente d by counsel, United States v. Copeland , 21 376 F.3d 61, 71 (2d Cir. 2004). 222 Petitioner further argues that she has demonstra ted a well-founded fear of future persecution on accoun t of membe

rship in a particu lar socia l group: Colombian c omputer e xperts or “ systems engineers.” I

n fact, Petitioner has not shown that the characteristics of her claimed social group satisfy the test that the BI A set forth in Matter of A costa , 19 I. & N. Dec . 211, 233-34 (B.I.A. 1985). Spe cifical ly, Petitioner has offe red no ar gument as to why

computer

expertise is a charac teristic “that the members o f the gr

oup eithe r cannot chang e, or shou

ld not be r

equired to change because it is fundamental to their individual identities or consc iences.” Id. at 233. Accordingly , we need not concern ourselves with whether the BIA corr

ectly interpre

ted Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991). See Hong Ying Gao v. Gonzales , 440 F.3d 62, 69-70 (2d Cir. 2006) (ackno wledgi ng, in discu ssin g Gomez , that “[t]he general law in our Circuit on particular social groups is less than clear,” and declining to “decide the exact scope of Gomez ”).

3 Because the I

J appears to have misunderstood Petitioner’s imputed political opinion claim, he rejected her asy

lum claim on that ground alone and did not discuss her attempt to link the FARC’s action to the government except in the context of her CAT claim. Our own discussion of that latter point, see infra at [ ], applies equally to all Petitioner’s claims for relief f rom removal. See, e.g. , Pavlova v. INS , 441 F.3d 82, 91 (2d

Cir. 2006) ; Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 342 (2d Cir. 2006). -7- Petitioner argues that she has demonstrated a we ll-founded fear of future persec ution on 1 account of (1) the political opinion that the FARC has now imputed or will impute to her upon 2 her return, 2 and (2) t he gove rnment’s unwilling

ness to control the FARC, exposin g her to likely 3 violent retaliation. 3 We have “accept[ed] the proposition that an imputed political opinion, 4 whether correctly

or incorrectly

attributed, can constitute a ground of political persec ution.” 5 Chun Gao v. Gonzales , 424 F.3d 122, 129 (2d Cir. 2005) (internal quotation marks omitted). 6 The IJ did not consider this argument, howeve r. 7 At the hearing on the merits of Delga do’s claims, the IJ (who decided to procee d with the 8 hearing without Delgado’s attorne y) asked no que stions regarding Delga do’s political opinion or 9 th e po li ti cal opi ni on t hat her ki dna ppe rs m igh t i mp ut e to her . In r end eri ng a n or al d eci si on, th e IJ 10 dealt with Delgado’s fear of f uture persecution entirely in the abstract, and dismissed that fear 11 with a single, conclusory sentence. (“I

. . . cannot find that [Delgado] has a well-founded fear of 12-8-

persecution on account of one of the five enume rated grounds in the [INA].”) T he BIA af firmed, 1 reasoning (1) that because Petitioner testified tha t the FARC kidnapped her on account of her 2 computer expertise, “the record does not support a conclusion that her abuse was premised upon 3 a political opinion . . . imputed to her,” and (2) that kidnapping does not rise to the level of 4 persecution, so Petitioner could not have a well-founded fea r of persecution. The BI

A’s 5 determination rests on two propositions, both legally untenable. 6 1. Fear of Future Persecution on the Basis of Imputed Political Opinion 7 The first propositi on is that p ersecu tion on ac count of one gro und prec ludes a w ell8 gro und ed f

ear of f ut ure per sec ut io n on acc oun t o f an ot her . De lga do d id tes ti fy, a s t he B IA 9 emphasized, that the FARC targeted her beca use of her knowledge of her c omputers, a reason 10 unrelat

ed to politi cal opini on. But she also te stified that she wo uld be tar geted b y the FARC in 11 the futur

e for be tray ing them , which, w

hen coup led with the gove rnment’s unwilling

ness to 12 control the FARC, could well qualify as persecution for an imputed political opinion (opposition 13 to the FA

RC). The FARC soldiers who kidna pped Petit

ioner told her that they would kill her if 14 she did not

collabor ate with t hem. Petiti oner cle arly

viewed her flig

ht as a re fusal to c ooperat e 15 with the FARC, and it is reasonable to infer that the FARC would reach the same conclusion. 16 Petitioner also stated that she is opposed to the FARC (“I do not support any organization that 17 deals in mu

rder”) and that she “belonged to a politica l party,” a fac

t that she f

eared t he FARC 18 would discover. 19 Given this evidence, it did not necessarily follow that, because Petitioner’s original 20 kidnapping had not been politically motivated, her refusal to provide further technological 21 assistance did not support a well-founded fear of futur e persecution on account of an imputed 22-9-

political opinion. Cf. Osorio v . INS , 18 F.3d 1 017, 1028 (2d Cir. 199 4) (“[T]he conclusi on that a 1 cause of persecution is economic does not nece ssarily imply that there cannot exist other causes 2 of the persecution.”). Thus, the BI A erred in not discussing Petitioner’s imputed political 3 opinion claim. Shu Ling Ni v. BIA , 439 F.3d 177, 178, 180 (2d Cir. 2006) (per curiam). 4 2. Kidnapping as “Persecution” 5 The sec ond bas is for th e BIA ’s d ete rmi nat io n i s eq ual ly pr obl ema ti c. T he B IA 6 concluded that “the harm [Delgado] suffered simply does not rise to the level of persecution,” 7 noting, in a parenthetical summary of Matter of V-T-S- , 21 I. & N. Dec . 792, 798 (B.I.A. 1997), 8 that “kidnaping generally does not qualify as per

secution.” “Accordingly,” the BIA c oncluded, 9 Delgado “has failed to demonstrate that she posse sses a well-founded fear of future persecution 10 in Colombia .” This sta tement as sumes, fir

st, that the

only typ e of persecution

Petitioner

fears is 11 the type of har

m she suffered before – kidnapping – a nd, second, that no kidnapping Petitioner 12 might experience could constitute persecution. Both assumptions are fla wed. 13 First, Petitioner credibly te stified that she fears much more than kidnapping. She said she 14 was “mar

ked . . . f or death” and tha

t she would

be killed for ref using to c ollabora

te. State 15 Department reports in the r ecord c onfirm tha

t the FARC

did not hes itate to us e murder to 16 consolidate its power and enforce discipline, freque ntly killing both civilians suspected of 17 cooperating with rival political groups and dese rters from its own ranks. 18 Second, V-T-S- does not conclude that kidnapping genera lly does not qualify

as 19 persecution because the harm inflicted is not sufficiently severe. To the contrary, V-T-S20 acknowledges that “[k]idnapping is a very serious offense.” Id. at 798. Wha t V-T-S- emphasizes 21 is that “[s]eriousness of conduct” is not, by itself, “dispositive” of persecution; “the critical issue 22-10-

is whether a reasonable inferenc e may be dr awn from the evidence . . . that the motivation for the 1

co nd uc t w as to pe rs ec ut e t he as ylu m a pp li ca nt on ac co un t o f r ac e, re li gi on , n at io na li ty, 2 membership in a particular social group, or political opinion.” Id. Thus, when confronted with a 3 credible fear of kidnapping, the a gency should proceed to consider whether the motivation for 4 kidnapping is one indicative of persecution. See gen erally Ucelo-Gomez v. Gonzales , 464 F.3d 5 163, 167 (2d Cir. 2006) (per curiam) (faulting a gency failure to consider petitioners’ claim of 6 threatened kidnapping). The agency fa ilure to do so in this case, where Petitioner’s fear of 7 kidnapping was accompanied by an objectively re asonable fear of death, was er ror. 8 Because of these leg al flaws in the agency ’s review of Petitioner’s claim of future 9 persecution, its ruling cannot stand. See Jin S hui Qiu v. Ashcroft, 329 F.3d 140, 149, 156-57 (2d 10 Cir. 2003), overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296 11 (2d Cir. 2007). This is not a case in which we can be confident that, a bsent these errors, the 12 agency

would reach the same result upon reconsidera tion, and thus we must remand. Li Hua Lin 13 v. U.S. Dep’t of Justice , 453 F.3d 99, 107 (2d Cir. 2006). To the extent there is a need for further 14 development of the factual record, a ta sk outside the scope of the BI A’s authority, see8 C.F.R. § 15 1003.1(d)(3)(i), (iv), we instruct that on remand, the B IA send this case to an I J for further 16 finding s of fact. 17 * * * * * 18 The IJ and the BI A conducted no particularized analy sis as to whether Delgado met the 19 standard for withholding of removal under the I NA. Rather, the agency

reasoned that an 20 applicant who cannot meet the standard for asy lum cannot meet the higher standard for 21 withholding of removal. Because we are remanding this case for f urther consideration of 22-11-

Delgado’s asy

lum claim, Delgado’s withholding of removal claim must be rec onsidered as well. 1 Cao He Lin v. U.S. Dep’t of Justice , 428 F.3d 391, 407 (2d Cir. 2005). 2 C. CAT Relief 3 In addition to apply ing for asy

lum and withholding of removal under the I NA, Petitioner 4 applied f

or withhol ding of r

emoval un

der the Convention A

gainst T orture a

nd Other Cruel, 5 Inhuman or Deg

rading Treatment or Punishment (“CAT”), Dec . 10, 1984, S. Treaty Doc . No. 6 100-20, 1465 U.N.T.S. 85. The Attorney G eneral must withhold removal under the CAT if an 7 applica

nt shows tha

t it is “more

likely than not” that a petitioner would be tor tured if r emoved to 8 the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). CAT relief does not require a nexus 9 to a protected ground. 10 “Tortur

e” unde r the CAT i s “an extr

eme for m of crue l and inhuman trea tment,” w hich is 11 defined

as “any act by which se vere pa in or suff ering, whether

phy sical or mental, is i

ntentiona lly 12 inflicted” for purposes such as interroga tion, punishment, intimidation, coercion, or 13 discrimination, “when such pain or suffering is inflicted by or at the instigation of or with the 14 consent or acquiescence of a public of ficial or other person acting in an offic ial capacity .” 8 15 C.F.R. § 1208.18(a). A public official has “acquiesce d” when, “prior to the activity constituting 16 torture,” the public official “ha[s] awareness of such a ctivity and therea

fter breach[es] his or her 17 legal responsibility to interve ne to prevent such activity .” 8 C.F.R. § 1208.18(a)(7). 18 “Acquiescence” does not require official “consent or approval”; it “require s only that gover nment 19 officials know of or remain willfully blind to an act and thereafter breac h their legal 20 responsibility to prevent it.” Khouzam v . Ashcroft , 361 F.3d 161, 170-71 (2d Cir. 2004)

. 214 Again, the IJ has inexplicably assumed that the type of ha rm Petitioner fears she will encounter on her return is the same ty pe of harm that she encountered befor e: kidnapping, with no physica l abuse. In fact, Petitioner testified tha t she feared she would not only be kidnapped again, but killed.

5 The requirement of government involvement or a cquiescence applies equally to a petitioner’s claims of asylum and withholding of removal. See, e.g. , Pavlova , 441 F.3d at 91; Ivanishvili , 433 F.3d at 342. -12- Delga do arg ues that she is entit

led to with

holding o f remova

l under the CAT bec ause, if 1 removed to Colombia, she is likely to be tortured by the FARC; she claims, moreover, that “she 2 can expect no protection from her governme nt.” The IJ denied this claim, finding that Petitioner 3 had fail ed to mee

t the stand

ard for CAT relie f becau se “the a ctions tha t took plac e in Colombi a 4 against [Petitioner] were not done by government officials or any one acting with the consent or 5 acquiescence of gove rnment officials.” 4 The BI A affir med, stati ng only that “the record is 6 devoid of any e

vidence from which we could infer that any harm the [Petitioner] might suffer 7 upon return would be with the acquiescence of the Colombian government.” While we offer no 8 opinion as to whether Petitioner’s CAT argument should succeed, we remand the issue for 9 reconsideration because the BI A appears to have misstated the record, and the agency ’s 10 application of the law with respect to government a cquiescence in third-party actions does not 11 seem to c omport wit h our most r

ecent r ulings on that point. 5 12 Co nt ra ry t o t he BIA ’s ch ar ac te ri za ti on of th e r ec or d, Pe ti ti on er te st if ie d t ha t s ev er al da ys 13 after her kidnapping she filed a c omplaint with the local authorities, but they did not give he r 14 complaint “much importance” because she wa s “just a civilian person.” In addition, and 15 significantly, a

2002 report by Huma

n Rights Watch in the record indicates that, “[w]ith the 16 stated g oal of fu

rthering peace t alks,” the gove

rnment ha

d allowed the FARC “

to maintai

n 17-13-

control over a Switzerland-sized area” of the country . Whatever weight this testimonial and 1 documentary e

vidence warranted, its existence precluded the B IA from concluding that “the 2 record is devoid of any evidence” to support a claim of gover nment acquiescence in the FARC’s 3 retaliatory violenc e. See gen erally Kho uzam v. Ashcroft , 361 F.3d at 171 (holding that 4 acquiescence may be shown by evidenc e that officials knew of private parties’ abusive a ctions 5 “and thereafter breac h[ed] their legal responsibility to prevent [such actions]”). Where the IJ and 6 BIA “ha[ve] give

n reasoned consideration to [a] petition, and made adequate findings,” they are 7 not required “expressly to pa rse or refute on the record ea ch individual argument or piece of 8 evidence offered by the petitioner.” Wei Guang W ang v. BIA , 437 F.3d 270, 275 (2d Cir. 2006) 9 (internal quotation marks omitted). But failure to consider materia l evidence in the record

is 10 ground for remand. Tian-Yong Che n v. INS , 359 F.3d 121, 128 (2d Cir. 2004). Such a failure 11 occurred here. And the f act that “ a hypothetical a

djudicator, applying

the law correctly , might 12 also have denied” a CAT claim is “no[] excuse[]” for a failure to consider the evidence

. Jin Shui 13 Qiu , 329 F.3d

at 149; see gene

rally Poradisova , 420 F.3d at 77 (“We . . . require some indication 14 that the IJ considered material evidenc e supporting a petitioner’s claim.”). 15 In the interest of judicial economy , we also note that the agency ’s failure to mention the 16 material evidence in support of Petitioner’s CAT claim may well indicate the application of an 17 inappropriately stringent standard on the part of the agenc y. I t ap pea rs t hat th e BIA and IJ 18 required Petitioner to show the government’s affir mative consent to torture. This would 19 constitute legal error and would by itself be grounds for remand – for a show ing of willful 20 blindness suffices to support a CAT claim. See Rafiq v. Gonzales , 468 F.3d 165, 166 (2d Cir. 21-14-

2006) (per cu riam) (reman ding a C AT clai m to t he BIA beca use th e IJ “fai led to ackno wledge 1 [ Khouzam ] as controlling authority” a nd did not appear to apply the correct legal standard). 2 D. Claims Relating to Petitioner’s Lack of Counsel at Her Removal Hearing 3 Delgado has argue d on appeal that the IJ erred by not informing her of her right to seek a 4 continuance when her counsel failed to appe ar at her merits hearing. Delgado characterizes the 5 IJ’s inaction as an abuse of discretion and a violation of due process. She also claims that the 6 BIA should have re manded her case to the I

J on the basis of ineffective assistance of counsel. 7 Since we now remand all of Petitioner’s claims to the BI A, with orders to remand the 8 procee dings to t

he IJ for further factfinding , these a lleged errors have be en rende

red har mless. 9 III. CONCL USION 10 Having considered all of the arg uments that Petitioner has raised, we GRANT the 11 petition for review and REMAND the proc eeding s to the BI A. We instr

uct the B IA to

remand t o 12 an IJ for further finding s of fact. 13