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Immigration – Torture risk based on risk from all sources

The likelihood that a former gang member would be tortured if removed to his home country because of his gang-related tattoos depended on the total risk of torture posed by rival gangs, anti-gang vigilantes and police forces in the aggregate.


In 2005, petitioner Eduardo Antonio Rodriguez-Arias fled El Salvador’s rampant gang related violence and crime and illegally entered the United States. He was 12 years old at the time and his grandparents were being extorted by gangs, he had personally been robbed twice and his cousin had been killed for refusing to join a gang.

After arriving in the United States, Rodriguez-Arias joined Sureños 13, a United States-based gang with no presence in El Salvador. Although he left the gang in 2011 or 2012, he still has multiple gang-related tattoos on his chest, stomach, left hand, knees and back.    

Removal proceedings were initiated against Rodriguez-Arias and he sought relief from the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. At an evidentiary hearing before an immigration judge on May 16, 2016, Rodriguez-Arias testified that he fears violence from other gangs who may view him as a rival, from anti-gang vigilante groups who engage in extrajudicial killings of gang members to protect their communities and from police who use extreme violence in their anti-gang efforts.

He explained that in El Salvador, having tattoos is seen as an automatic sign of gang membership and people do not investigate whether you are still an active gang member before subjecting you to harm. He further testified that his friend, who was also a former member of Sureños 13, was killed within one week after being deported to El Salvador and that he himself has been threatened by Salvadoran gangs operating in the United States.

Specifically, he testified that he was once chased by a large group of men wearing MS-13 colors, he was hit with a bat by an MS-13 member and he was hit with a chair at a restaurant frequented by MS-13 members. Moreover, while he was in detention, an MS-13 member explicitly told him that he will be killed by MS-13 as soon as he returns to El Salvador and two members of the 18th Street gang told him that 18th Street will look for him and have fun with his body if he goes back to El Salvador.

In addition, Rodriguez-Arias called five expert witnesses to testify about the extreme violence gang members and suspected gang members in El Salvador face at the hands of rival gangs, anti-gang vigilante groups and police forces. He also submitted more than 300 pages of documentation, including U.S. Department of State reports and scholarly and news articles, describing the appallingly violent conditions in El Salvador.

The immigration judge denied Rodriguez-Arias’s request for relief. Less than one page of her opinion was devoted to his claim under the convention, and she limited her analysis to the risks of violence posed only by rival gangs and police forces. The Board of Immigration Appeals remanded the case and directed the immigration judge to address the risk posed by anti-gang vigilante groups. The immigration judge then issued a supplemental opinion which provided the requested analysis and once again denied Rodriguez-Arias’s request for relief. The board adopted both opinions and supplemented them with additional reasoning but did not specifically refer to any of the evidence provided by Rodriguez-Arias. This petition followed.


Under the convention, torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person in a manner that is by or at the instigation of or with the consent or acquiescence of a public official. To obtain relief under the convention, an applicant must demonstrate that it is more likely than not that he or she will be tortured in the country of removal.

The board’s failure to aggregate the risk of torture posed by gangs, anti-gang vigilante groups and police forces constituted legal error. Although this issue has not previously been addressed by this circuit, precedent from other circuits supports our conclusion that the risk of torture from all sources should be combined when evaluating whether a person seeking relief under the convention is more likely than not to be tortured in a particular country. In addition, this interpretation is most consistent with both the implementing regulations and this country’s treaty obligations not to return individuals to a country where they face a substantial risk of torture.

The immigration law judge’s first opinion only considered the risks posed by gangs and police and her supplemental opinion only addressed the risks posed by anti-gang vigilante groups. At no point did she consider the aggregated risk caused by all three entities in unison by adding the probability of torture from each entity and determining whether that sum exceeded 50 percent. The board likewise failed to aggregate risk in its final order.

The immigration law judge and the board also failed to meaningfully engage with the testimony and documentary evidence Rodriguez-Arias originally produced to support his request for relief and the additional evidence he submitted on remand. The immigration law judge did not address the evidence Rodriguez-Arias provided about the conditions in El Salvador and the Salvadoran government’s behavior towards gang members and suspected gang members. This failure was not remedied by the board.

It is an abuse of discretion for an immigration law judge or the board to arbitrarily ignore relevant evidence. Those who flee persecution and seek refuge under our laws have a right to know that the evidence they present of mistreatment in their home country will be fairly considered and weighed by those who decide their fate. This court has a responsibility to ensure that unrebutted, legally significant evidence is not ignored by the factfinder. Moreover, the failure to engage with an applicant’s evidence hampers our ability to meaningfully review the decision below.

Vacated and remanded.

Rodriguez-Arias v. Whitaker (Lawyers Weekly No. 001-035-19, 13 pp.) (Henry Floyd, J.) Case No. 17-2211. Feb. 12, 2019. From the Board of Immigration Appeals. James Feroli for Petitioner; Margot Lynne Carter for Respondent.

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