     18-1930
     Hernandez-Hernandez v. Barr
                                                                                   BIA
                                                                            Connelly, IJ
                                                                          A 208 277 797
                            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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 24th day of October, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   EDWIN ANTONIO HERNANDEZ-
14   HERNANDEZ,
15                 Petitioner,
16
17                    v.                                         18-1930
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                   Devin S. Sikes, Ramin Mohammad,
25                                     Akin Gump Strauss Hauer & Feld
26                                     LLP, Washington, DC; Melissa
27                                     Gibson, Akin Gump Strauss Hauer &
28                                     Feld LLP, Philadelphia, PA; Robert
29                                     H. Pees, Nicole A. Greenstein,
30                                     Akin Gump Strauss Hauer & Feld
31                                     LLP, New York, NY.
32   FOR RESPONDENT:                   Joseph H. Hunt, Assistant
33                                     Attorney General; Matthew B.
34                                     George, Senior Litigation Counsel;
1                             Erik R. Quick, Trial Attorney,
2                             Office of Immigration Litigation,
3                             United States Department of
4                             Justice, Washington, DC.
5
6        UPON DUE CONSIDERATION of this petition for review of a

7    Board of Immigration Appeals (“BIA”) decision, it is hereby

8    ORDERED, ADJUDGED, AND DECREED that the petition for review

9    is GRANTED.

10       Petitioner Edwin Antonio Hernandez-Hernandez, a native

11   and citizen of El Salvador, seeks review of a June 18, 2018,

12   decision of the BIA affirming a December 21, 2017, decision

13   of an Immigration Judge (“IJ”) denying Hernandez-Hernandez’s

14   application for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).    In re Edwin

16   Antonio Hernandez-Hernandez, No. A 208 277 797 (B.I.A. June

17   18, 2018), aff’g No. A 208 277 797 (Immig. Ct. Batavia Dec.

18   21, 2017).    We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified by the BIA.   See Xue Hong Yang

22   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

23   We review the agency’s legal conclusions de novo and its

24   factual findings under the substantial evidence standard.


                                  2
1    Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013).                           “[T]he

2    administrative findings of fact are conclusive unless any

3    reasonable adjudicator would be compelled to conclude to the

4    contrary[.]”       8 U.S.C. § 1252(b)(4)(B).

5           We remand for the agency to explain why there is no

6    duress exception for the serious nonpolitical crime bar and

7    why MS-13 is not a state actor based on the record evidence.

8    We   also     remand   because     the       agency    applied    a   government

9    acquiescence standard at odds with our decision in De La Rosa

10   v. Holder, 598 F.3d 103, 110 (2d Cir. 2010), and failed to

11   consider in its CAT analysis the undisputed and relevant fact

12   that    the    Salvadoran   government          will    know     of   Hernandez-

13   Hernandez’s        former   gang     affiliation         because      the     U.S.

14   government relays that information about deportees.

15   Serious Nonpolitical Crime Bar

16          An applicant is ineligible for asylum and withholding of

17   removal if “there are serious reasons for believing that the

18   alien has committed a serious nonpolitical crime outside the

19   United States prior to the arrival of the alien in the United

20   States[.]”      8 U.S.C. § 1158(b)(2)(A)(iii) (asylum); see also

21   8    U.S.C.    §    1231(b)(3)(B)(iii)          (withholding);        8     C.F.R.

22   § 1208.16(d)(2) (withholding under the CAT).

                                              3
1           Hernandez-Hernandez does not dispute that the murders he

2    committed are serious nonpolitical crimes; instead, he argues

3    that    he   qualifies       for   a   duress   exception.      The     agency

4    appeared to accept that Hernandez-Hernandez had committed the

5    crimes under duress, but concluded that there was no duress

6    defense to the statutory bar.                The BIA did not provide any

7    reasoning for this conclusion except for a footnote that

8    discusses duress defenses to crimes and murder generally and

9    whether juveniles may be prosecuted for murder in the United

10   States and El Salvador.

11          This lack of analysis by the BIA as to whether there is

12   a duress defense warrants remand, especially considering that

13   ten days after deciding Hernandez-Hernandez’s case, the BIA

14   determined in a published decision that there was a limited

15   duress defense for the statutory persecutor bar under other

16   subsections       of   the    same     statutory     provisions,   8   U.S.C.

17   §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).                 Matter of Negusie,

18   27 I. & N. Dec. 347 (B.I.A. 2018).

19          We recognize that the Attorney General (“AG”) referred

20   Negusie      to   himself    in    October    2018    for   further    review.

21   Matter of Negusie, 27 I. & N. Dec. 481 (A.G. 2018).                      Given

22   these circumstances, we conclude that remand to the BIA in

                                              4
1    the first instance is warranted for further examination of

2    whether   a     duress    exception   applies     to   the     serious

3    nonpolitical crime bar, in light of Negusie or the AG’s

4    eventual determination as to Negusie’s validity.        See Negusie

5    v. Holder, 555 U.S. 511, 523-24 (2009) (remanding to BIA to

6    determine in first instance whether persecutor bar contains

7    duress exception); I.N.S. v. Orlando Ventura, 537 U.S. 12, 16

8    (2002) (holding that “the proper course, except in rare

9    circumstances, is to remand to the agency for additional

10   investigation    or   explanation”    (internal    quotation    marks

11   omitted)); Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014)

12   (remanding to allow BIA to address in the first instance

13   possible duress exception to bar to asylum and withholding

14   based on material support to terrorist organization); see

15   also Nderere v. Holder, 467 F. App’x 56, 58-59 (2d Cir. 2012)

16   (remanding to BIA to determine whether “particularly serious

17   crime” bar contains duress exception).

18   CAT Deferral

19       CAT deferral is available regardless of the serious

20   nonpolitical crime bar and does not require a nexus to a

21   protected ground.        See 8 C.F.R. § 1208.17(a).      “[T]he CAT

22   expressly prohibits the United States from returning any

                                       5
1    person to a country in which it is more likely than not that

2    he or she would be in danger of being subjected to torture.”

3    Khouzam    v.    Ashcroft,       361   F.3d      161,    168    (2d        Cir.   2004)

4    (internal       quotation    marks     omitted);         see        also    8     C.F.R.

5    § 1208.16(c)(2) (“The burden of proof is on the applicant

6    . . . to establish that it is more likely than not that he or

7    she would be tortured if removed to the proposed country of

8    removal.”).

9          “Torture is defined as any act by which severe pain or

10   suffering,      whether     physical        or   mental,       is    intentionally

11   inflicted on a person . . . by or at the instigation of or

12   with the consent or acquiescence of a public official or other

13   person     acting    in     an     official       capacity.”                8     C.F.R.

14   § 1208.18(a)(1).         Acquiescence, in turn, “requires that the

15   public official, prior to the activity constituting torture,

16   have awareness of such activity and thereafter breach his or

17   her   legal     responsibility         to    intervene         to    prevent       such

18   activity.”         Id.    § 1208.18(a)(7).              “Where       a     government

19   contains officials that would be complicit in torture, and

20   that government, on the whole, is admittedly incapable of

21   actually      preventing     that      torture,         the    fact        that    some

22   officials take action to prevent the torture would seem

                                             6
1    neither      inconsistent        with        a   finding      of    government

2    acquiescence nor necessarily responsive to the question of

3    whether torture would be inflicted by or at the instigation

4    of or with the consent or acquiescence of a public official

5    or other person acting in an official capacity.”                   De La Rosa,

6    598 F.3d at 110 (internal quotation marks omitted).                         The

7    agency      must     consider     “all       evidence     relevant    to    the

8    possibility of future torture,” including: “[e]vidence of

9    past    torture[,]”      evidence       regarding       the   possibility   of

10   internal relocation, “[e]vidence of gross, flagrant or mass

11   violations     of     human     rights[,]”        and    “[o]ther     relevant

12   information regarding conditions in the country of removal.”

13   8 C.F.R. § 1208.16(c)(3)(i)-(iv).

14          We   review    the   agency’s         determination     regarding    the

15   likelihood of torture for substantial evidence but consider

16   legal issues de novo.           See Hui Lin Huang v. Holder, 677 F.3d

17   130, 134 (2d Cir. 2012) (“A determination of what will occur

18   in the future and the degree of likelihood of the occurrence

19   has been regularly regarded as fact-finding . . . .”); see

20   also Joaquin-Porras v. Gonzales, 435 F.3d 172, 181 (2d Cir.

21   2006) (reviewing findings of fact regarding CAT claim for

22   substantial evidence, but “review[ing] de novo questions of

                                              7
1    law regarding what evidence will suffice to carry any . . .

2    applicant’s   burden   of   proof”   (internal    quotation    marks

3    omitted)).

4        The agency appeared to concede that MS-13 would likely

5    harm Hernandez-Hernandez, but stated that this harm did not

6    qualify him for CAT relief because MS-13 is not a state actor

7    and the government of El Salvador had been actively combating

8    gang violence and would therefore not acquiesce to Hernandez-

9    Hernandez’s torture.    The agency also concluded that it was

10   not likely that the government would single out Hernandez-

11   Hernandez for torture because he (1) was not a full gang

12   member, (2) did not have any tattoos, (3) was not aware of

13   any public official looking for him, (4) was not aware of any

14   legal prosecution he would face for the murders he committed,

15   and (5) was not harmed when Mexican authorities returned him

16   to El Salvador on his first attempt to reach the United States

17   in 2015.

18       We conclude that the agency (1) did not adequately

19   explain why MS-13 is not a de facto state actor given the

20   record evidence, (2) applied the incorrect legal standard for

21   acquiescence, and (3) overlooked the relevant fact that upon

22   Hernandez-Hernandez’s   removal,     the   U.S.   government   will

                                     8
1    inform    the    Salvadoran       government         of     his    former      gang

2    affiliation.

3        First,      the   agency      did       not   adequately        explain     its

4    determination that MS-13 is not a de facto state actor.                          As

5    Hernandez-Hernandez argues, we have recognized that a private

6    actor or group may be a de facto state actor to satisfy the

7    government      acquiescence    requirement          under    the    CAT.       See

8    Delgado   v.     Mukasey,   508    F.3d       702,    709    (2d     Cir.     2007)

9    (remanding      to    address     CAT        claim    alleging        government

10   acquiescence to torture by rebel group); see also Gomez-

11   Beleno v. Mukasey, 291 F. App’x 411, 414 (2d Cir. 2008);

12   Buritica-Colorado v. Gonzales, 217 F. App’x 38, 41 (2d Cir.

13   2007).    While we do not require “that an IJ expressly parse

14   or refute” each piece of evidence, Xiao Ji Chen v. U.S. Dep’t

15   of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006), that is

16   only when the agency “has given reasoned consideration to the

17   petition, and made adequate findings,” Wei Guang Wang v.

18   B.I.A., 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation

19   marks omitted).

20       Here, it is unclear if the agency gave such reasoned

21   consideration and analyzed the evidence as to MS-13’s status

22   as a de facto state actor.              The BIA agreed with the IJ’s

                                             9
1    conclusion that MS-13 was not a state actor, but did not

2    elaborate.   The IJ said MS-13 was not a state actor twice,

3    but did not explain why. Therefore, remand is warranted for

4    the agency to explain why MS-13 is not a de facto state actor.

5    See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)

6    (“Despite our generally deferential review of IJ and BIA

7    opinions, we require a certain minimum level of analysis from

8    the IJ and BIA opinions denying asylum, and indeed must

9    require such if judicial review is to be meaningful.”).

10         Second, the IJ applied the wrong legal standard for

11   government acquiescence.      The IJ cited the country-conditions

12   evidence, including Dr. Thomas Boerman’s expert affidavit,

13   and found that although there is much gang violence and the

14   government has struggled to curb it, “the documentation does

15   not show that the government of El Salvador has turned a

16   willful blind eye or acquiesced to this problem[.]”        The IJ

17   conceded that Salvadoran efforts “regrettably have failed to

18   control the gang violence” and that currently, the government

19   “is losing the battle” against the gangs.        But then the IJ

20   concluded that despite this losing battle, “the escalating

21   nature of police response in a state of war against the gangs”

22   was   evidence   that   the    Salvadoran   government   was   not

                                      10
1    acquiescing to gang violence.

2           This analysis does not account for our holding in De La

3    Rosa that “the preventative efforts of some government actors

4    [does     not]    foreclose      the        possibility   of     government

5    acquiescence, as a matter of law, under the CAT . . . [w]here

6    a government contains officials that would be complicit in

7    torture, and that government, on the whole, is admittedly

8    incapable of actually preventing that torture.”                  598 F.3d at

9    110.      Therefore, we remand to the agency for additional

10   analysis of acquiescence as defined in De La Rosa.

11          Finally,   the   agency    overlooked        the   fact    that   the

12   Salvadoran government will be aware of Hernandez-Hernandez’s

13   former gang affiliation because the U.S. government will

14   communicate this information to them.              See Mendez v. Holder,

15   566 F.3d 316, 323 (2d Cir. 2009) (stating that the agency

16   commits legal error when it “totally overlook[s]” important

17   facts).    The agency emphasized that Hernandez-Hernandez would

18   not be singled out by the government because he was not a

19   full gang member, the Salvadoran government does not know he

20   was a gang member, and the government did not harm him when

21   Mexican officials returned him in 2015 after his initial

22   attempt to flee El Salvador.                But Dr. Boerman notes in his

                                            11
1    uncontested    affidavit       that     the    U.S.    government      provides

2    Salvadoran officials with information on deportees’ gang

3    affiliation.      According to Dr. Boerman, Salvadoran officials

4    then use this information to target individuals for further

5    scrutiny,      “threats—including              death       threats—arbitrary

6    detention, beatings and/or torture.”

7        Although       the    Salvadoran          government       did   not    harm

8    Hernandez-Hernandez when he was returned by Mexico after his

9    first attempt to reach the United States in 2015, there is no

10   evidence    that     Mexican      authorities         knew     of    Hernandez-

11   Hernandez’s    former     MS-13    affiliation.          In     contrast,     the

12   United   States     government     is    clearly       aware    of   that   past

13   affiliation    and,      according       to    Dr.    Boerman’s      undisputed

14   affidavit   and     testimony,      it     relays     information      on   gang

15   affiliation to the country of removal.

16       Thus, we remand for the agency to consider the fact that

17   the Salvadoran government will know of Hernandez-Hernandez’s

18   prior gang affiliation in light of the entire record.                       See 8

19   C.F.R. § 1208.16(c)(3) (“In assessing whether it is more

20   likely than not that an applicant would be tortured in the

21   proposed country of removal, all evidence relevant to the

22   possibility    of     future      torture      shall     be    considered[.]”

                                           12
1    (emphasis added)).

2        For the foregoing reasons, the petition for review is

3    GRANTED.   As we have completed our review, any stay of removal

4    that the Court previously granted in this petition is VACATED,

5    and any pending motion for a stay of removal in this petition

6    is DISMISSED as moot.   Any pending request for oral argument

7    in this petition is DENIED in accordance with Federal Rule of

8    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

9    34.1(b).

10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe,
12                                Clerk of Court
13




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