Summary
This Fifth Circuit opinion reviews the Board of Immigration Appeals' denial of deferral of removal under the Convention Against Torture for a Salvadoran national. The court holds that the petitioner's prior removal does not moot his appeal because ICE policy may facilitate his return if relief is granted. On the merits, the court grants the petition and remands, finding that the immigration judge failed to adequately consider critical affidavit evidence regarding a recent police search at the petitioner's family home when assessing his risk of torture.
Topics
Practice areas
Questions Presented
- Whether Aguilar-Quintanilla's petition for review became moot after he was removed from the United States while challenging the denial of CAT protection.
- Whether the agency committed legal error by failing to consider affidavits describing a police search for Aguilar-Quintanilla in connection with the country-conditions evidence when assessing his likelihood of torture in El Salvador.
Holdings
- The petition for review was not moot because a favorable judicial decision could still lead ICE to facilitate Aguilar-Quintanilla's return to the United States under the Return Directive.
- The agency committed legal error by apparently failing to consider affidavits describing the January 2023 police search in its likelihood-of-torture assessment, requiring remand for further consideration of the CAT claim.
Key quotations
“The availability of an ICE-facilitated return pursuant to the Return Directive constitutes “effective relief” preventing a petition like the one here from becoming moot upon removal.” (p. 6)
“Because it is not “impossible for a court to grant any effectual relief whatsoever to the prevailing party,” Aguilar-Quintanilla’s petition for review is not moot.” (p. 8)
“There is “no exception for cases of adverse credibility determinations.”” (p. 9)
“The apparent failure to consider the affidavits in connection with the country conditions evidence warrants remand.” (p. 10)
Factual background
Aguilar-Quintanilla, a native and citizen of El Salvador, had tattoos and a criminal record there, including a conviction for gang affiliation and a later acquittal on an aggravated-homicide charge. He presented evidence that El Salvador's state of exception permitted arrests of suspected gang members and resulted in arbitrary arrests, inhuman prison conditions, and other abuses. Affidavits also described Salvadoran police searching for him at his family's former home in January 2023 and a prior incident in which police shot him in the leg. He was removed to El Salvador during the pendency of his petition for review.
Procedural history
After unlawfully reentering the United States, Aguilar-Quintanilla was placed in removal proceedings and applied for asylum, statutory withholding of removal, and Convention Against Torture protection. The immigration judge denied relief and ordered removal, and the BIA adopted the IJ's decision. Aguilar-Quintanilla petitioned for review, was removed to El Salvador while the petition was pending, and the Fifth Circuit considered mootness and the merits of the CAT claim.
Remand instructions
The agency must further consider Aguilar-Quintanilla's claim for deferral of removal under the CAT, including the affidavits describing the January 2023 police search in connection with the country-conditions evidence and the likelihood-of-torture assessment.