Francisco Perez v. Jefferson B. Sessions III
Opinion
Francisco Javier Perez, a Honduran citizen, petitions for review of the denial of his application for deferral of removal under Article 3 of the Convention Against Torture. The Board of Immigration Appeals dismissed his appeal from an immigration judge's decision denying his application and ordering his removal to Honduras. In the Board's view, the IJ correctly decided that Perez had not shown that, if removed to Honduras, he was more likely than not to be tortured with the acquiescence of a *333 public official by a street gang. In this court, Perez argues that the immigration service erred by failing to make factual findings about whether he would have been tortured had he not narrowly escaped the gang's violent recruitment efforts years earlier and that the Board improperly did not consider whether, if removed to Honduras, he could live safely and openly there as an unwilling recruit of this gang. We conclude that the Board erred by truncating the crucial factual inquiry about Perez's risk of torture if he is returned to Honduras and by asking the wrong question with respect to internal relocation. We therefore grant the petition for review and remand to the Board for further proceedings.
I
Perez grew up in Danli, Honduras, where the MS-13 street gang tried to recruit him as a member. In 2003, when Perez was 14, MS-13 gave him two weeks to decide whether to join their ranks or "suffer the consequences." Instead of joining MS-13, Perez moved in with his grandmother in another part of Danli. Later that year, MS-13 members confronted Perez on his way to school about joining them. Perez responded by running away and then dropping out of school.
Two or three years later, Perez witnessed the murder of a friend, who, Perez suspected, was slain to "settl[e] the score" involving a dispute among local gangs. Perez thought that his friend was shot to death because the friend's brother belonged to a rival gang of MS-13. The murder did not lead to any criminal charges, because the shooter's family threatened Perez and others not to testify about it. Two men backed up the threats by beating Perez. Later an unidentified person fired shots in the direction of Perez and his friends, but they fortunately were not hit. Perez reported these events to the police, but the authorities did nothing in response.
In 2008 Perez was admitted to the United States as a lawful permanent resident. He joined his stepfather and sister in Indiana, where he had several factory jobs. He returned to Honduras in 2010 for a two-week vacation. While in Danli, he attended a neighborhood festival. There he was recognized by the same MS-13 members who had tried to recruit him in 2003; he evaded them by quickly running to his grandmother's house. Scared by this encounter, Perez cut short his vacation and returned to the United States.
Three years later and back in Indiana, Perez pleaded guilty to engaging in sexual misconduct with a minor in violation of IND. CODE § 35-42-4-9(a), and was sentenced to six years' imprisonment. After his conviction, the Department of Homeland Security took Perez into custody and served him with a Notice to Appear in removal proceedings. DHS asserted that Perez was removable because he had committed "sexual abuse of a minor," an aggravated felony, see
Perez's disqualification for other forms of immigration relief did not, however, foreclose action under the CAT, which permits deferral of removal even for those who are ineligible for asylum or withholding. See
The IJ denied Perez's application for deferral of removal. Although he found Perez's testimony credible, the IJ decided that he had not met his burden to show that if he were returned to Honduras, he would more likely than not be tortured. In support of this conclusion, the IJ emphasized that Perez had not previously been tortured by any gangs because he had "fortunately ... evade[d] them or run away" and that Perez had failed to connect the violence in Honduras to his personal circumstances. The IJ also determined that Perez had not shown that he could not relocate safely within Honduras.
Perez appealed to the Board, arguing that the IJ wrongly decided that his submissions and testimony fell short of the showing he needed to make for deferral of removal. The Board upheld the IJ's decision, pointing out that Perez had "not been tortured in the past by the gangs he fears" and concluding that his "fear of future torture is speculative, and not based on a specific current threat to himself." The Board also agreed with the IJ that Perez had not demonstrated that "if he remains fearful of those who harmed or threatened him in the past, he would be unable to relocate in Honduras to avoid those threats." The Board ultimately concluded that Perez was not entitled to deferral pursuant to the CAT.
II
An applicant seeking to defer removal under the Convention Against Torture has the burden of demonstrating that "it is more likely than not that [he or she] ... would be tortured" if sent to "the proposed country of removal."
When all is said and done, the CAT requires a prediction about what will happen if the applicant for relief is returned to the proposed country of removal.
*335
Jabateh v. Lynch
,
A
Perez's key argument is that the IJ and then the Board cut off their inquiry prematurely, after they noted that Perez had not actually been tortured in the past. He freely admits the fact that MS-13 did not manage to torture him, but he argues that the relevant inquiry is more complex. There are many gradations, he contends, between completed acts of torture (warranting relief) and mere harassment (not warranting relief). For example, if the only reason why someone is not shot is because she was lucky and dodged a bullet, that person rationally would believe that the shooter was still out to kill her and might have better aim the next time. On the other hand, if one simply receives a threatening note with no other action, it would be hard to predict future violence on that basis alone (perhaps depending on what the note said). Perez asserts that his case presents a situation that lies at or near the "actual torture" end of the spectrum; it would have been completed torture if luck and fleet feet had not averted disaster.
With this construct in mind, Perez argues that the immigration service failed to make sufficient findings about whether he would have been tortured in 2003 if he had not escaped MS-13's recruitment efforts, or in 2010 had he not been able to flee from the gang members. He suggests that evidence of a narrow escape from torture is as good as evidence of actual past torture for purposes of
Perez overstates his case, but at its core his argument has more merit than the Board thought. We do not need to, and do not, literally equate a narrow escape from torture with actual torture, as such an equation would not be consistent with the definition of torture under Article 1.1 of the CAT
1
or the implementing regulations found in
Perez should have been given the opportunity to show that, at MS-13's hands, in the earlier situations he would have experienced severe physical or mental pain or suffering, inflicted for a particular purpose,
*336
and at the instigation of or with the consent or acquiescence of a public official.
B
Perez also argues that the Board erred by failing to consider whether, after relocation, he would have to hide the fact that he has resisted MS-13. He acknowledges that the Board did evaluate whether he "would be able to avoid the
particular
MS-13 members he had previously confronted." (Emphasis added.) Perez contends, however, that this was not enough, and that our case law has consistently required "the Board [to] ask whether [a CAT applicant] could live safely after 'openly' admitting the qualities that exposed him to danger." See
Velasquez-Banegas v. Lynch
,
Perez is correct that the Board erred by examining only the threat from the same MS-13 gang members who previously confronted him and failing to consider his evidence that MS-13 (whether through the same or different representatives) would endanger him in the areas of Honduras outside of Danli. The Board said only that it was "not persuade[d]" that "if he remains fearful of those who harmed or threatened him in the past, he would be unable to relocate in Honduras to avoid those threats." As a result, the Board did not comply with
Although we theoretically could look to the IJ's opinion to fill in this important omission from the Board, see
Orellana-Arias
,
We conclude that the Board must take another look at Perez's evidence that relocation is not an option for him, because MS-13 members outside of Danli would torture him in Honduras.
III
The IJ and the Board failed to make an adequate inquiry into Perez's near-escapes from MS-13's clutches and thus failed properly to include this factor in the mix *337 when they made their prediction about the risk of torture Perez would face if returned to Honduras. The Board also erred when considering Perez's evidence that he could not relocate safely within Honduras, by too narrowly focusing on his exposure to particular MS-13 members rather than the gang as a whole. We therefore GRANT Perez's petition for review.
That language is as follows: "For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
Reference
- Full Case Name
- Francisco Javier PEREZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
- Cited By
- 6 cases
- Status
- Published