Summary
The United States Court of Appeals for the Second Circuit granted B.G.S.’s petition for review of the Board of Immigration Appeals’ denial of deferral of removal under the Convention Against Torture. The court held that the agency failed to properly analyze whether gang members would torture B.G.S. in a Guatemalan prison and whether Guatemalan officials would acquiesce to that torture by private actors. The court vacated the BIA’s decision and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the Agency properly assessed whether B.G.S. was more likely than not to be tortured by MS-13 or other gang members if imprisoned in Guatemala.
- Whether the Agency properly assessed whether Guatemalan officials would know of, remain willfully blind to, or otherwise acquiesce in private actors' torture of B.G.S. in prison.
- Whether the Agency adequately considered all relevant evidence concerning the likelihood of imprisonment, gang targeting, prison violence, government corruption, and government efforts to prevent gang violence.
- Whether the Immigration Judge properly distinguished credibility determinations from persuasiveness determinations.
Holdings
- The Agency did not properly assess B.G.S.'s claim that gang members would torture him in prison upon his return to Guatemala. The Agency focused on general prison conditions and failed to separately analyze the alleged private acts of torture by gang members.
- The Agency was required to determine whether Guatemalan officials would know that B.G.S. was a target for prison violence, remain willfully blind to that risk, have a legal duty to intervene, and likely fail to intervene in violation of that duty.
- Remand was required because the Agency failed to consider material evidence and did not apply the proper government-acquiescence framework to the prison-torture theory.
- On remand, the Agency should clarify whether its stated persuasiveness determinations were actually adverse credibility determinations and should identify the nature and basis of its findings concerning B.G.S. and his supporting witnesses.
Key quotations
“But, the question of whether a government’s failure to maintain basic conditions of imprisonment itself constitutes torture is distinct from the question whether the government acquiesces to torture by a private actor.” (17)
“And it failed to assess whether, against this backdrop, Guatemalan officials would know that B.G.S. is a target for violence in prison (or would remain willfully blind to the risk); whether they have a legal duty to intervene to prevent such violence; and whether they would likely intervene.” (21)
“Where a government contains officials that would be complicit in torture, and that government, on the whole, is admittedly incapable of actually preventing that torture, the fact that some officials take action to prevent the torture would seem neither inconsistent with a finding of government acquiescence nor necessarily responsive to the question of whether torture would be 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.” (22)
Factual background
B.G.S., a Guatemalan national, joined MS-13 as a child and later attempted to leave the gang, after which he was beaten, shot at, and threatened with death. He also testified that a powerful police officer connected to MS-13 attacked him because of his relationship with the officer's girlfriend. B.G.S. fled to Mexico and then entered the United States; the government later introduced an outstanding Guatemalan arrest warrant, raising the possibility that he would be imprisoned upon return. He presented evidence that former gang members with visible or altered MS-13 tattoos face severe violence, including in Guatemala's gang-controlled and dangerous prisons.
Procedural history
An Immigration Judge denied B.G.S.'s application for CAT deferral on November 17, 2022. The Board of Immigration Appeals affirmed on July 14, 2023. The Second Circuit granted the petition for review, vacated the Agency's denial and the pending stay, and remanded for further proceedings.
Remand instructions
The Agency must reconsider whether, in light of B.G.S.'s tattoos, the pending arrest warrant, and the other record evidence, it is more likely than not that B.G.S. will be tortured by gang members in prison with the acquiescence of Guatemalan officials. It must separately analyze the likelihood of intentional torture by private actors, whether officials would know of or remain willfully blind to the risk, whether officials had a legal duty to intervene, and whether they would likely intervene. The Agency should also clarify whether its findings concerning B.G.S.'s testimony and supporting witnesses were credibility or persuasiveness determinations.