By Hayley Degnan
Factual Background
In 2005, the Appellant, Eduardo Rodriguez-Arias (“Rodriguez”), fled his native country of El Salvador and unlawfully entered the United States at only twelve-years-old.[1] Before fleeing El Salvador, Rodriguez witnessed local gangs perpetuate violence against members of his family and experienced gang-related crimes firsthand; local gangs extorted his grandparents, killed his teenage cousin, and robbed him on two separate occasions.[2] After arriving in the United States, Rodriguez moved to Maryland and joined Sueños 13, a United-States based gang with no presence in El Salvador.[3] Although Rodriguez left Sueños 13 in 2011 or 2012, tattoos he procured to demonstrate his affiliation with the group, covering his chest, stomach, left hand, legs, and back remained on his person.[4] After Rodriguez entered removal proceedings, he sought relief under the United Nations Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (“CAT”), and applied for both asylum and withholding from removal.[5]
Procedural History
On May 16, 2016, Rodriguez testified at an evidentiary hearing before an Immigration Judge (“IJ”).[6] To support his claims for relief, Rodriguez explained that he feared returning to El Salvador because he believed violent gangs would target him as a rival gang member due to his tattoos.[7] He also suggested that anti-gang vigilante groups, who participate in the extrajudicial killing of gang members, and the police, who use excessive force against gang members in their efforts to protect communities, would likely target him for his apparent affiliation with Sueños 13.[8] Rodriguez further alleged that the aforementioned groups would automatically perceive his tattoos as a sign of gang affiliation and would not question the status of his membership before harming him.[9] As evidence to support this assertion, Rodriguez testified that a friend of his, who also belonged to Sueños 13 for a period of time, was killed within a week of his deportation to El Salvador.[10] Additionally, Rodriguez testified that Salvadorian gangs operating in the United States targeted him even after he left Sueños 13.[11] Rodriguez alleged that members of Mara Salvatrucha, or MS-13, chased him, hit him with a bat, and struck him with a chair on different occasions, and members of the 18th Street gang told him that 18th Street planned to look for him and have “fun with his body” once he returned to El Salvador.[12] Aside from his own testimony, Rodriguez also called five expert witnesses to testify about the violence former gang members experience in El Salvador and produced approximately thirty scholarly articles and news reports depicting the current state of violence in El Salvador.[13]
Despite this evidence, the IJ denied Rodriguez’s application for relief, writing less than a page on his CAT claim and limiting her analysis of his risk of torture to that at the hands of gangs and the police.[14] Rodriguez appealed the IJ’s decision on his CAT claim, and although the Board of Immigration Appeals (“BIA”) remanded the case, finding that the IJ needed to address Rodriguez’s risk of torture at the hands of vigilante groups, nowhere did the BIA state that it vacated or reversed the IJ’s initial decision.[15] On remand, the IJ incorporated her initial opinion by reference and added analysis on the topics that the BIA ordered; yet, she again denied Rodriguez relief.[16] Rodriguez appealed the IJ’s decision on remand, and the BIA upheld her decision, analyzing Rodriguez’s CAT claim within its opinion in under two pages.[17] Rodriguez then petitioned for review of the BIA’s decision.[18] The central issue argued before the Fourth Circuit concerned whether a factfinder must aggregate all individual risks of torture and expressly state that it did so to determine if an individual met his or her burden of proof to succeed on a CAT claim.[19]
Plaintiff-Appellant’s Arguments
On appeal, Rodriguez made two interrelated arguments: (1) that the IJ and BIA failed to aggregate the different sources of torture he would face if subject to removal, as required when reviewing a CAT claim, and (2) that the IJ erred by limiting her review on remand to just the issues raised by the BIA and not all of the issues as they were initially presented.[20] In regard to this first argument, Rodriguez asserted that he feared torture at the hands of three different groups: gangs, anti-gang vigilante groups, and the police.[21] Yet, the IJ considered the risk of torture Rodriguez faced at the hands of the gangs and the police in her initial opinion and the risk of torture Rodriguez faced at the hands of anti-vigilante groups in her opinion on remand.[22] Accordingly, because the IJ did not consider the sources of torture altogether by aggregating each individual source, she could not adequately determine whether he satisfied his burden of proof to succeed on a CAT claim for relief.[23] Additionally, Rodriguez asserted that when considering the risk of torture posed by these groups in the aggregate, he meets his burden to prove it is more likely than not he would face torture in El Salvador.[24]
In his second argument on appeal, Rodriguez contended that the IJ erred by limiting her review on remand to only the issues raised by the BIA.[25] He argued that the purpose of a remand is to review of all of the issues presented at the outset of the case unless the appellate authority reserved any of the issues presented.[26] Moreover, in this case, the BIA did not reserve any issues.[27] Thus, Rodriguez asserted that the IJ not only had authority to review all of the issues initially presented to her, but she actually had a duty to review all of the issues on remand.[28] Rodriguez additionally suggested that the IJ failed to adequately account for the evidence of torture in her initial opinion and on remand.[29] Rodriguez noted that the IJ merely dismissed the expert evidence presented as overly broad.[30] Rodriguez claimed that the IJ not only erred because the evidence presented was not overly broad, but also because in order to discount the expert evidence, the IJ needed to provide a cogent reason to do so.[31]
Defendant-Appellee’s Arguments
In contrast, the Government argued that the IJ considered all of the possible evidence of torture together, even though she did not explicitly state that she considered all of the separate of evidence in the aggregate within her opinions.[32] The Government specifically noted that in the decision on remand, the IJ incorporated her previous decision by reference and stated that she considered all evidence relevant to the possibility of torture.[33] Thus, while the IJ may have divided her opinion as a matter of organization to address each independent source of threat separately, her ultimate conclusion incorporated all of the sources of risk of torture to determine that Rodriguez did not meet his burden of proof.[34] Moreover, the Government asserted that in the alternative, even if the IJ did not aggregate all risks of torture, the BIA did so when it reviewed the IJ’s opinions.[35] The Government also noted that the BIA heard the argument raised by Rodriguez that a factfinder needs to aggregate all risks of torture before it issued its decision.[36] Accordingly, the Government argued that the absence of the “magic words” stating that the IJ or BIA aggregated the risks did not take away from the fact that they used all forms of evidence before them to render their decisions.[37]
Further, the Government suggested that Rodriguez’s claim relied on a speculative chain of events, including if these groups saw his tattoos, if they scrutinized the tattoos, and if they responded with violence.[38] Lastly, the Government asserted that while Rodriguez may have presented some persuasive evidence, including the expert testimony, the record did not compel the finding that it was more likely than not Rodriguez himself would face torture as a result of his tattoos.[39]
Outcome on Appeal
The Fourth Circuit held that under a CAT claim of relief, the factfinder must combine all risks of torture to determine whether a CAT applicant is more likely than not to face torture in a particular country.[40] The Court reasoned that the regulations implementing CAT state that when “assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered.”[41] Further, the Court noted that the Ninth Circuit read this requirement to mean that CAT claims “must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims,” and the Third Circuit agreed with the Ninth Circuit’s interpretation.[42] The Fourth Circuit also reasoned that the interpretation which it now adopted is more consistent with its treaty obligation not to return individuals to countries where they face a substantial risk of torture.[43]
Moreover, the Court disagreed with the Government’s contention that the IJ and BIA considered the evidence cumulatively in this case.[44] It reasoned that at no point in either of the IJ’s decisions did the IJ consider the risk caused by the gangs, the anti-vigilante groups, and the police by adding them together and determining whether the sum of all three exceeded the 50% likelihood that Rodriguez needed to prove.[45] In addition, the Court also noted that the BIA failed to devote any of its opinion to aggregating the separate risks.[46] The Court surmised that the BIA merely stated: “Rodriguez has not shown that his hypothetical chain of events is more likely than not to happen.”[47] Further the BIA did so without reviewing any of the evidence presented by Rodriguez.[48] Lastly, the Court reasoned that Rodriguez did not attempt to prove a hypothetical chain events, making the BIA’s response improper.[49]
Additionally, the Court held that both the IJ and BIA in this case failed to meaningfully engage with the evidence Rodriguez presented at the initial hearing and failed to meaningfully consider the additional evidence he presented on remand.[50] It reasoned that because it is the Court’s duty to ensure that legally significant evidence is not arbitrarily ignored by the factfinder, the IJ and BIA’s failure to consider evidence of country conditions constituted a reversible error.[51] Furthermore, the Court reasoned that in her first opinion, the IJ merely acknowledged that the country conditions evidence did not support a finding that Rodriguez would more likely than not face torture in El Salvador.[52] In her second opinion, while she noted that some evidence indicated that vigilante groups used violence against gang members, she did not address any evidence presented about the government’s willingness to use violence against gang members or turn a blind eye on others do.[53] Finally, the Court reasoned that the BIA did not remedy the IJ’s failure to engage with the evidence on appeal.[54] The Court articulated: “When a man’s life is on the line, he is entitled to know that the court deciding his claim reviewed all his evidence, understood it, and had a cogent, articulable basis for its determination that his evidence was sufficient.”[55]Accordingly, the Fourth Circuit vacated the BIA’s decision with respect to Rodriguez’s CAT claim and remanded for further proceedings.[56]
Conclusion
The
Fourth Circuit joined the Third and Ninth Circuits in holding that a factfinder
must aggregate all sources of the potential risk of torture facing an
individual in a particular country when the individual claims relief from
removal. The Court suggested that the factfinder must expressly demonstrate in
its opinion that it considered the individual risks cumulatively to determine
whether the individual claiming relief met his or her burden of proof to show
that it is more likely than not he or she will face torture.
[1] Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4196, at *2 (4th Cir. Feb. 12, 2019).
[2] Id.
[3] Id.
[4] Id at *2–3.
[5] Id.
[6] Id. at *3.
[7] Id.
[8] Id.
[9] Id. at *4.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at *4–5.
[14] Id. at *5.
[15] Id.
[16] Id.
[17] Id. at *6.
[18] Id.
[19] Id.
[20] Oral Argument at 0:59, Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4916 (4th Cir. Feb. 12, 2019), http://www.ca4.uscourts.gov/OAarchive/mp3/17-2211-20181030.mp3.
[21] Id. at 1:02 (referencing 8 C.F.R. § 1208.16(c)(2) (2012)).
[22] Id. at 2:05.
[23] Id.
[24] Id. at 1:15.
[25] Id. at 1:30.
[26] Id. at 1:37.
[27] Id. at 1:49.
[28] Id. at 1:49.
[29] Id. at 10:37.
[30] Id.
[31] Id. at 11:05.
[32] Id. at 14:08.
[33] Id. at 15:32.
[34] Id. at 20:56.
[35] Id. at 16:48.
[36] Id. at 16:51.
[37] Id. at 18:37.
[38] Id. at 28:11.
[39] Id. at 23:56.
[40] Rodriguez-Arias v. Whitaker, No. 17-2211, 2019 U.S. App. LEXIS 4196, at *9 (4th Cir. Feb. 12, 2019).
[41] Id.at *8(citing 8 C.F.R. § 1208.16(c)(2) (2012)).
[42] Id. (citing Quijada-Aguilar v. Lynch 799 F.3d 1303, 1308 (9th Cir. 2015)).
[43] Id. at *9–10.
[44] Id. at *10.
[45] Id. at *11.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Id. at *12.
[51] Id. at *12–13.
[52] Id. at *13.
[53] Id. at *13–14.
[54] Id. at *14.
[55] Id. at *15.
[56] Id.
