19-2862 Argueta Anariba v. Garland BIA Mulligan, IJ A094 825 836 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 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 18th day of February, two thousand twenty-two.

PRESENT: ROBERT D. SACK, JOSEPH F. BIANCO, Circuit Judges. STEFAN R. UNDERHILL 1, District Judge. _____________________________________

ANGEL AGUSTIN ARGUETA ANARIBA, A.K.A. ANGEL ANARIBA, Petitioner,

v. 19-2862 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

1Chief Judge Stefan R. Underhill, United States District Court for the District of Connecticut, sitting by designation. FOR PETITIONER: MICHAEL RAYFIELD, Mayer Brown LLP, New York, NY; ANNIE MATHEWS (Elyssa N. Williams, on the brief), The Bronx Defenders, Bronx, NY.

FOR RESPONDENT: BROOKE MARIE MAURER, Trial Attorney, Office of Immigration Litigation (Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division; Justin R. Markel, Senior 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” or “agency”) decision, it

is hereby ORDERED, ADJUDGED, AND DECREED that the petition

for review is GRANTED and the case is REMANDED to the BIA for

further proceedings consistent with this Order.

Petitioner Angel Agustin Argueta Anariba, a native and

citizen of Honduras, seeks review of an August 23, 2019

decision of the BIA affirming a March 18, 2019 decision of an

Immigration Judge (“IJ”), which denied asylum, withholding of

removal, and protection under the Convention Against Torture

(“CAT”). In re Angel Agustin Argueta Anariba, No. A 094 825

836 (B.I.A. Aug. 23, 2019), aff’g No. A 094 825 836 (Immigr.

Ct. N.Y.C. Mar. 18, 2019). We assume the parties’

familiarity with the underlying facts and procedural history.

2 We have reviewed the IJ’s decision as modified and

supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of

Just.,

(2d Cir. 2005); Yan Chen v. Gonzales,

(2d Cir. 2005). We review factual findings

for substantial evidence and questions of law de novo. See

Yanqin Weng v. Holder,

(2d Cir. 2009). We

grant the petition for review. We remand the case to the BIA

for further proceedings consistent with this Order.

I. CAT Relief

We remand for reconsideration of the denial of CAT relief

because the IJ mischaracterized Argueta’s claim and failed to

consider material evidence. 2 Deferral of removal under the

CAT is not barred by any convictions, but an applicant must

show that he would more likely than not be tortured. See

(c)(2), 1208.17(a); Khouzam v. Ashcroft,

(2d Cir. 2004). Argueta applied for CAT relief

on the ground that he would be “subject to torture at the

2 Because Argueta was ordered removed for a crime involving moral turpitude (“CIMT”), our jurisdiction to review his removal order is limited to “constitutional claims or questions of law.”

(a)(2)(C), (D). However, that jurisdictional limitation does not apply to our review of his CAT claim, because “[a] CAT order is distinct from a final order of removal and does not affect the validity of the final order of removal.” Nasrallah v. Barr,

(2020). 3 hands of the family and gang associates” of the people who

“attacked and threatened him in the US” because he had stabbed

one of the people who threatened him. Certified Admin. Rec.

(“CAR”) at 1177. Argueta testified that, after the stabbing,

a group of men in Honduras beat his mother to seek information

on his whereabouts. The account of this attack was confirmed

through affidavits he submitted from a neighbor in Honduras,

as well as from his sisters, which described other threats on

Argueta’s life in both Honduras and the United States.

Additionally, Argueta provided an affidavit from an expert

witness, Dr. Lirio Gutiérrez, a professor at the National

University of Colombia whose research focuses on Honduran

gang activity, who confirmed that someone in Argueta’s

situation was at great risk of torture.

The IJ’s denial of CAT relief was premised on a

mischaracterization of both Argueta’s claim and the evidence

Argueta submitted regarding the nature of his risk of torture.

See Doe v. Sessions,

, 210–11 (2d Cir. 2018)

(remanding CAT claim where “agency overlooked key evidence

and mischaracterized the record”). Although the IJ

acknowledged Argueta’s claim that he feared the friends and

4 family of the people who had threatened and attacked him in

the United States—one of whom he had stabbed—the IJ focused

only on the threat of harm from individuals in the United

States, not individuals in Honduras. An IJ is required to

conduct “a certain minimum level of analysis” and must provide

“some indication that [he] considered material evidence

supporting a petitioner’s claim.” Poradisova v. Gonzales,

(2d Cir. 2005). The IJ’s decision does not

indicate that he considered material evidence relating to the

risk of harm to Argueta in Honduras from friends and family

of the people whom Argueta feared in the United States or

their associates in the Mara Salvatrucha (“MS-13”) gang.

Moreover, the BIA did not address this argument when Argueta

raised it on appeal.

In addition, Dr. Gutiérrez’s affidavit described the

international coordination of the MS-13 gang and violent

family feuds in Honduras. Though the IJ noted that “the

Court must consider all evidence relevant to the possibility

of future torture,” CAR at 677, the IJ did not discuss that

affidavit, nor did the BIA address Argueta’s reliance on that

affidavit on appeal. Based on her knowledge of Honduras, Dr.

5 Gutiérrez concluded that Argueta was “at very high risk” of

torture in Honduras because of his conflict in the United

States, particularly because the families of the individuals

he feared had clearly expressed their intent to seek revenge

and had already attacked and threatened Argueta’s family

members. CAR at 1240. The agency did not explain why it

discounted the expert’s opinion. In addition, the IJ did not

address the evidence in the record of the potential connection

of the MS-13 gang to the ongoing threats, including evidence

that one of the people with whom Argueta had a monetary

dispute was a leader in MS-13 and that Argueta had to be

placed in protective custody while incarcerated to separate

him from prisoners affiliated with the gang.

The IJ also mischaracterized evidence of a death threat

Argueta received from the father of one of the people with

whom he had the monetary dispute. In particular, a neighbor

of Argueta’s mother stated in her affidavit that this father

told her that Argueta would be killed if he returned to

Honduras because Argueta had tried to kill the man’s “family

member.” CAR at 1119. As noted above, after Argueta and the

man’s son had a dispute, the son and two others beat and

6 threatened Argueta in the United States. Argueta eventually

stabbed one of those attackers, but the stabbing victim was

not the son of the man who conveyed this threat about Argueta

to the neighbor in Honduras.

The IJ disregarded this threat, finding that it did not

come from a family member of Argueta’s stabbing victim.

Critically, the IJ did not acknowledge evidence that the

individual stabbed by Argueta and the son of the man who

threatened Argueta were cousins or that family feuds in

Honduras often involve extended family. Thus, those

circumstances could have explained the threatening man’s

reference to Argueta trying to kill a “family member.”

The IJ also discounted threats made to Argueta’s sisters—

even though these threats explicitly referenced harm to

Argueta in Honduras—because these threats occurred in the

United States. Even though these threats were made against

Argueta’s sisters in the United States, the threats were about

harm that Argueta would suffer in Honduras. For example, one

sister explained that the individual with whom Argueta had

the monetary dispute followed her to work, told her that he

knew her brother was out of jail and would be deported to

7 Honduras, and threatened that “[w]e have some sweet candy for

him waiting in Honduras, and we know when he is getting out

and when he’s being sent back.” CAR at 1125. She explained

that “sweet candy” was code for the assertion that he had

“people with guns and other arms [who] are ready to kill”

Argueta upon his return to Honduras.

Therefore, these

threats conveyed to Argueta’s sisters—directed at Argueta and

relating to harm once he returned to Honduras—could not be

discounted (as suggested by the IJ) simply because the threats

were conveyed inside the United States, rather than in

Honduras.

Finally, the IJ erred by discounting the attack on

Argueta’s mother because, in the IJ’s view, there was no

evidence linking the attack to the individuals that Argueta

feared in the United States. Although an IJ may deny CAT

relief where a claim is “too speculative” in that it “involves

a chain of assumptions,” Savchuck v. Mukasey,

(2d Cir. 2008) (internal quotation marks omitted), here,

the IJ did not consider the attack on Argueta’s mother in

light of the fact that her attackers said they were looking

for him, and in light of Argueta’s other evidence supporting

8 his claim that people in Honduras would kill him on behalf of

the people he credibly feared in the United States.

Accordingly, we remand to have the agency properly

consider and address the unrebutted expert testimony about

the risk Argueta faces if deported, as well as the other

categories of evidence that the agency discounted based upon

a misreading or mischaracterization of such evidence.

II. Asylum and Withholding of Removal

The agency also determined that Argueta was ineligible

for asylum and withholding of removal because he had been

convicted of a particularly serious crime.

A noncitizen is barred from asylum and withholding of

removal if “the alien, having been convicted by a final

judgment of a particularly serious crime, constitutes a

danger to the community of the United States.”

(b)(2)(A)(ii), 1231(b)(3)(B)(ii). In addition to

convictions that are per se particularly serious,

§§ 1158(b)(2)(B)(i)-(ii), 1231(b)(3)(B), the BIA may

exercise the Attorney General’s discretion to determine if a

crime was particularly serious, considering (1) “the nature

of the conviction,” (2) “the circumstances and underlying

9 facts of the conviction,” (3) “the type of sentence imposed,”

and (4) “whether the type and circumstances of the crime

indicate that the alien will be a danger to the community,”

Nethagani v. Mukasey,

(2d Cir. 2008)

(internal quotation marks omitted). 3 “[C]rimes against

persons are more likely to be particularly serious than are

crimes against property.”

Argueta argues that the agency, relying upon Matter of

G-G-S-,

(A.G. 2014), erred in finding

that his mental health could not be considered in the

particularly serious crime analysis. 4 In December 2021, the

Attorney General asked that Matter of B-Z-R-,

(A.G. 2021) be referred to him for review to consider

“[w]hether mental health may be considered when determining

whether an individual was convicted of a ‘particularly

serious crime’ within the meaning of 8 U.S.C.

3The danger to the community factor does not require a separate analysis. See Nethagani,

n.1.

4 Argueta’s removal for a CIMT implicates the jurisdictional limitation in

(a)(2)(C). We acknowledge that the Supreme Court left open whether this limitation applies to withholding of removal. Nasrallah,

. We do not reach the issue here because, even if this limitation applies, it would not prevent us from reviewing a question of law. See

(a)(2)(D). 10 §§ 1158(b)(2)(A)(ii) and 1231 (b)(3)(B)(ii).” Id. (citing

Matter of G-G-S-,

). In addition,

another panel of this Court has this precise issue pending

before it. See Augustin v. Garland, No. 20-1724 (2d Cir.

filed June 2, 2020).

The government suggests that we need not address this

issue because the IJ alternatively decided that, even if he

were to consider Argueta’s mental health as a factor in the

particularly serious crime determination, “it would not alter

the finding that his crime is a particularly serious one.”

CAR at 96. However, as Argueta correctly notes, the BIA

never adopted this alternate holding and, thus, it is not

part of the decision on review. See, e.g., Passi v. Mukasey,

(2d Cir. 2008) (“[O]ur review is confined to

those reasons for denying relief that were adopted by the

BIA.”).

Accordingly, we remand the asylum and withholding of

removal claims, along with the CAT claim, to allow the agency

to consider the expected guidance from the Attorney General

on this issue in Matter of B-Z-R-, as well as to allow the

BIA to consider whether it wishes to review the IJ’s

11 alternative finding that Argueta’s crime is particularly

serious even when his mental health is considered.

III. Testimony by Video-Teleconferencing

Argueta also asserts that the IJ’s use of video-

teleconferencing to receive Argueta’s testimony in the

removal proceedings, rather than requiring in-person

testimony, violated Argueta’s due process rights and the

agency’s own regulations. However, as Argueta’s counsel

acknowledged at oral argument, this issue becomes moot once

there is a remand. Thus, in light of our remand of the claims

on the other grounds outlined supra, we need not address this

issue.

IV. Waiver of Admissibility

Argueta further contends that the agency abused its

discretion by refusing to consider his application for a U

visa, with an accompanying request for an inadmissibility

waiver, until there was an adjudication by U.S. Citizenship

and Immigration Services (“USCIS”) on Argueta’s U visa

application.

To be eligible for a U visa, a petitioner must establish

that he: (1) “has suffered substantial physical or mental

12 abuse as a result of having been a victim of criminal

activity”; (2) “possesses information concerning criminal

activity”; and (3) “has been helpful, is being helpful, or is

likely to be helpful” to an investigation or prosecution.

(a)(15)(U)(i); see also

(b).

Argueta applied for a U visa in July 2016, asserting that he

was eligible because, in 2006, his cousin stabbed him in the

chest, and he fully cooperated with the resulting

investigation and prosecution. In December 2018, with his U

visa application still pending with USCIS, Argueta requested

that the IJ adjudicate his application for a waiver of

admissibility. At the hearing, the IJ found that he lacked

jurisdiction to grant the waiver. The BIA made the alternate

finding that the request was premature until there was a

ruling from USCIS and that Argueta had not moved for a

continuance to wait for a decision by the USCIS on the U visa.

However, on September 24, 2019, after the BIA’s decision,

Argueta’s U visa was denied and, on September 25, 2019,

Argueta’s waiver of inadmissibility was denied by USCIS.

Thus, nothing precludes Argueta from asking the BIA to

reconsider this issue on remand now that USCIS has denied a

13 waiver. Accordingly, we need not address this issue at this

juncture.

* * *

For the foregoing reasons, the petition for review is

GRANTED, the decision of the BIA is VACATED, and the case is

REMANDED to the BIA for further proceedings consistent with

this Order. All pending motions and applications are DENIED

and stays VACATED.

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

14