Lopez-Sorto v. Garland

103 F.4th 242

Gilfredo LOPEZ-SORTO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 21-2107

United States Court of Appeals, Fourth Circuit

Argued: December 6, 2023

Decided: May 31, 2024

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED: Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Brendan Paul Hogan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Alexandra M. Williams, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before RICHARDSON, QUATTLEBAUM, and BENJAMIN, Circuit Judges.

Petition for review denied by published opinion. Judge Richardson wrote the opinion, in which Judges Quattlebaum and Benjamin joined.

RICHARDSON, Circuit Judge:

Gilfredo Lopez-Sorto petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's ("IJ") decision denying him deferral of removal under the Convention Against Torture ("CAT"). He argues that the IJ and BIA used the wrong legal standard to evaluate his claim, failed to aggregate his various asserted risks of torture, and ignored his experts' testimony. We disagree. Accordingly, we deny the petition for review.

I. BACKGROUND

Lopez-Sorto, a nearly fifty-year-old Salvadoran native, was admitted to the United States as a lawful permanent resident in 1982, when he was eight years old. Ten years later, he joined the "El Palo" street gang. As a member of this gang, he got into a fight with members of a rival gang in Washington, D.C., in 1995. The fight began in a club, but it turned into a car chase as members of the opposing gang pursued Lopez-Sorto through the city. When traffic caused Lopez-Sorto to stop, his pursuers caught up to him in their car. Lopez-Sorto then got out of his car, approached his rivals' car, and killed one of the occupants by shooting into the driver's window.

As a result, Lopez-Sorto was convicted of second-degree murder while armed, assault with intent to kill while armed, possession of a firearm during a violent crime, and carrying a pistol without a license. He was sentenced to prison for a period of twenty-two to sixty-five years and served twenty-six years, during which his gang disbanded and he claims to have left gang life behind. His incarceration ended in 2021.

After completing his prison sentence, Lopez-Sorto was transferred to U.S. Immigration and Customs Enforcement ("ICE") custody and served with a Notice to Appear, which initiated removal proceedings against him. The Notice asserted that Lopez-Sorto was removable under the Immigration and Nationality Act for having committed an aggravated felony and an enumerated firearm offense. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). Lopez-Sorto did not challenge his removability. He sought the only relief available: deferral of removal under the CAT.¹

At his hearing, Lopez-Sorto testified to his fear that he would be tortured should he be deported to El Salvador. According to him, his many gang-related tattoos and criminal record mark him as a potential gang member. And that would draw the attention of Salvadoran authorities, anti-gang vigilante "death squads," and street gangs like MS-13 and M-18, likely leading to his torture at each entity's hands.

The IJ disagreed with Lopez-Sorto, concluding that he had not established that he would more likely than not be tortured should he return to El Salvador. So the IJ ordered that Lopez-Sorto be removed to El Salvador and denied his application for deferral of removal under the CAT. Lopez-Sorto appealed only the IJ's denial of CAT protection, but the BIA affirmed the IJ's decision and dismissed the appeal. This prompted Lopez-Sorto to timely petition this Court for review under 8 U.S.C. § 1252, again challenging only the IJ's decision to deny his application for deferral of removal.

While his petition for review was pending, however, Lopez-Sorto failed to ask for a stay of removal. So the government carried out the IJ's order mandating that Lopez-Sorto be removed from the country. Therefore, on October 8, 2021, Lopez-Sorto was removed to El Salvador.

II. JURISDICTION

Lopez-Sorto's 2021 removal raises a natural question: Is this case moot? Article III limits a federal court's jurisdiction to "Cases" and "Controversies." U.S. Const. art. III, § 2. But whether a suit is a "case" or "controversy" is not measured solely at the time the litigation began; instead, "an actual controversy must be extant at all stages of review." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). The doctrine of mootness establishes that federal courts lack jurisdiction "[w]hen a case or controversy ceases to exist—either due to a change in the facts or the law." Porter v. Clarke, 852 F.3d 358, 363 (4th Cir. 2017). And a case or controversy ceases to exist "when it is impossible for a court to grant any effectual relief whatever to the prevailing party."² Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (internal quotations omitted).

For jurisdiction to exist, we must determine that a favorable decision from us would possibly grant "effectual relief" to Lopez-Sorto. Whether we can grant "effectual relief," however, turns on what relief the party is seeking. Here, Lopez-Sorto ultimately seeks CAT protection—i.e., deferral of removal. Of course, we can't give him that relief directly, even if we hold in his favor. Our power is limited to vacating the BIA's decision and remanding to the agency. Only if the agency eventually holds in Lopez-Sorto's favor would he receive his requested relief. But the possibility that the agency may exercise its discretion to deny Lopez-Sorto relief does not mean his case is moot. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). Rather, Lopez-Sorto's case remains a live Article III controversy unless we " 'know[ ]' that [the] agency will not grant" him the relief he seeks. Townes v. Jarvis, 577 F.3d 543, 548 (4th Cir. 2009) (quoting Akins, 524 U.S. at 25, 118 S.Ct. 1777).

At first blush, it would seem logical, if not inevitable, to conclude that the agency will not grant him that relief. Lopez-Sorto asks the BIA to defer his removal. That is, he asks the government not to rescind his removal but merely to forbear from or delay removing him to El Salvador. But he has already been removed. There is no longer any pending removal to defer. The agency not only won't defer his removal; it can't. His requested relief would thus seem to be a logical impossibility. Precisely for this reason, some of our sister circuits have recognized that, "[i]n cases challenging a BIA decision, the petitioner's removal from the United States generally renders the petition moot." Mendoza-Flores v. Rosen, 983 F.3d 845, 847 (5th Cir. 2020); Peralta-Cabrera v. Gonzales, 501 F.3d 837, 842-43 (7th Cir. 2007).

But Lopez-Sorto points us to ICE's Facilitation of Return Policy ("Directive").³ According to Lopez-Sorto, should we grant his petition, ICE could facilitate his return to the United States. Under the Directive, facilitation of return is defined as "engag[ing] in activities which allow a lawfully removed alien to travel to the United States (such as by issuing a Boarding Letter to permit commercial air travel) and, if warranted, parol[ing] the alien into the United States upon his or her arrival at a U.S. port of entry." Directive ¶ 3.1. Thus, if applicable, the Directive might allow ICE to restore Lopez-Sorto's physical presence in the United States. And since he would then be physically present in the country while still subject to an order of removal, there would be a pending removal that the agency could defer. And if that were so, the case might not be moot.

To determine whether Lopez-Sorto's case is moot, therefore, we must determine whether he may be returned under the Directive. The parties argue that he may and, on this record, we must agree that it is possible.

The Directive's operative paragraph states:

Absent extraordinary circumstances, if an alien who prevails before the U.S. Supreme Court or a U.S. court of appeals was removed while his or her [petition for review] was pending, ICE will facilitate the alien's return to the United States if either the court's decision restores the alien to lawful permanent resident (LPR) status, or the alien's presence is necessary for continued administrative removal proceedings. ICE will regard the returned alien as having reverted to the immigration status he or she held, if any, prior to the entry of the removal order and may detain the alien upon his or her return to the United States. If the presence of an alien who prevails on his or her [petition for review] is not necessary to resolve the administrative proceedings, ICE will not facilitate the alien's return. However, if, following remand by the court to the Executive Office for Immigration Review (EOIR), an alien whose [petition for review] was granted and who was not returned to the United States is granted relief by EOIR or the Department of Homeland Security (DHS) allowing him or her to reside in the United States lawfully, ICE will facilitate the alien's return to the United States.

Directive ¶ 2.

Though phrased somewhat inartfully, the Directive applies in three scenarios. First, ICE may facilitate an alien's return to the United States when a favorable decision on a petition for review "restores the alien to lawful permanent resident (LPR) status." Id. Second, the Directive permits returning an alien when "the alien's presence is necessary for continued administrative removal proceedings." Id. And third, if "an alien whose [petition for review] was granted and who was not...