Pineda-Maldonado v. Garland

91 F.4th 76

Ricardo Jose PINEDA-MALDONADO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1912

United States Court of Appeals, First Circuit

January 24, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Kimberly A. Williams, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioner.

Yanal H. Yousef, Trial Attorney, Office of Immigration Litigation, with whom Brain M. Boynton, Acting Assistant Attorney General, Civil Division, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, and Sherease Pratt, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

BARRON, Chief Judge.

Ricardo Jose Pineda-Maldonado ("Pineda-Maldonado") is a native and citizen of El Salvador. He petitions for review of the decision by the Board of Immigration Appeals ("BIA") that denied his application for asylum and claims for withholding of removal and protection under the Convention Against Torture ("CAT"). We grant the petition, vacate the BIA's decision, and remand for further proceedings consistent with this decision.

I.

After fleeing El Salvador, Pineda-Maldonado entered the United States without inspection on or about April 29, 2016. He was charged with removal in July of 2016. He then applied for asylum and brought claims for withholding of removal and protection under the CAT.¹ During his removal proceedings, Pineda-Maldonado put forth the following evidence through a declaration and testimony.

In August of 2014, Pineda-Maldonado's father, Victor Manuel Pineda-Benitez, was murdered in El Salvador by "cattle thieves" to whom the father owed a gambling-related financial debt. More than a year later, in early February of 2016, Pineda-Maldonado "began receiving telephone calls" from the cattle thieves in which they threatened to kill both Pineda-Maldonado and his brother unless the father's gambling debt was paid. The cattle thieves also made these death threats out of a concern that Pineda-Maldonado and his brother would take "reprisals" against them for their having murdered his father.

Later in February of 2016, the cattle thieves approached Pineda-Maldonado on the street and questioned him about his father's debt. They beat Pineda-Maldonado during the encounter and threatened to take his life unless he paid the debt. Pineda-Maldonado attempted to file a police report about the incident, but the police refused to file the report or even to investigate.

Soon thereafter, as Pineda-Maldonado was leaving a soccer game, police officers detained him, searched his belongings, physically beat him, and, while doing so, asked him if he was Victor's son. When Pineda-Maldonado answered that he was, the police officers beat him more forcefully.

Following the beating, Pineda-Maldonado saw members of the local police meeting with the cattle thieves. Not long after, Pineda-Maldonado fled El Salvador and entered the United States without inspection.

The "IJ" assigned to the removal proceedings deemed Pineda-Maldonado credible but rejected his application for asylum, denied both his withholding of removal and CAT claims, and entered a final order of removal against him. Pineda-Maldonado appealed the IJ's decision to the BIA, which affirmed "for the reasons articulated in [the IJ's] decision" while "emphasiz[ing]" certain findings that the IJ had made. Pineda-Maldonado then filed this timely petition for review.

II.

"Where, as here, the BIA 'adopts and affirms the IJ's ruling' but nevertheless 'examines some of the IJ's conclusions,' we review both the BIA and IJ opinions as a unit," Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir. 2020) (quoting Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012)), referring to the IJ and BIA together as the "agency." In conducting our review, we defer to the agency's factual determinations "as long as those determinations are supported by substantial evidence," but we review questions of law de novo. Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).

III.

We start with Pineda-Maldonado's challenge to the denial of his CAT claim. To succeed on his request for protection under the CAT, Pineda-Maldonado must show that "it is more likely than not that he will be tortured if returned to his home country." Bonnet v. Garland, 20 F.4th 80, 84 (1st Cir. 2021) (quoting Mazariegos v. Lynch, 790 F.3d 280, 287 (lst Cir. 2015)).

Under the CAT, torture involves, among other things, "an act causing severe physical or mental pain or suffering . . . by or at the instigation of or with the consent or acquiescence of a public official." Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (quoting Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)); see 8 C.F.R. § 208.18(a)(1). "[M]ental pain or suffering . . . caused by or resulting from" threats of "imminent death" constitutes "torture." 8 C.F.R. § 208.18(a)(4); Ali v. Garland, 33 F.4th 47, 53-54 (1st Cir. 2022). Evidence of past torture "is relevant to the question of whether [an individual] is more likely than not to face future torture." Hernandez-Martinez v. Garland, 59 F.4th 33, 40 (1st Cir. 2023); see 8 C.F.R. § 208.16(c)(3).

We begin with Pineda-Maldonado's challenge to the agency's finding that he had not been tortured in the past. He contends that finding cannot be sustained because neither the IJ nor the BIA addressed the features of the evidence in the record that bear most directly on that finding. Reviewing for whether the agency's factual findings of no torture are supported by substantial evidence on the record as a whole, Rodríguez-Villar v. Barr, 930 F.3d 24, 27 (1st Cir. 2019), we agree that the finding cannot be sustained.

The IJ did refer to the record evidence that supportably shows that the cattle thieves had "threatened" Pineda-Maldonado. The IJ also referred to the record evidence that the cattle thieves had encountered Pineda-Maldonado on the street in February of 2016 and told him that he "had to leave" El Salvador if he did not pay the debt in question. In addition, the IJ noted that the cattle thieves had physically assaulted Pineda-Maldonado during that same encounter with him. But, while not all threats may cause torture threats of imminent death may. See Lobo v. Holder, 684 F.3d 11, 20 (1st Cir. 2012). Yet, the IJ failed to assess -- at least in any express way -- whether the cattle thieves' death threats were threats of imminent death. Indeed, the IJ did not refer to the threats as being death threats at all.

Of course, there is no requirement that a finding that a death threat was not a threat of imminent death be express. Cf. Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008) (acknowledging that an IJ may make implicit subsidiary findings of fact); Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) (same). But we cannot infer that the IJ based her no-past-torture finding on an implicit finding that the threats were not of imminent death. The IJ neither referred to the threats as death threats nor mentioned the features of the record that supportably (even if not conclusively) show that the threats did involve threats of that sort -- namely, the evidence that the cattle thieves had threatened to kill Pineda-Maldonado repeatedly within a short period of time, culminating in their threat to do so while they were both beating him and telling him that he better leave the country if he was not going to pay off the debt.

Moreover, even if we were to assume that the IJ had made an implicit finding that the cattle thieves' threats did not amount to torture because they were not threats of imminent death, the IJ still "fail[ed] to articulate [her] reasoning on this issue with sufficient particularity and clarity" to permit us to "infer the factual or legal basis for [that] determination." H.H. v. Garland, 52 F.4th 8, 23 (1st Cir. 2022) (internal quotations omitted). Accordingly, we cannot sustain the agency's decision denying the CAT claim on the ground that Pineda-Maldonado failed to show that he had been subject to torture in the past. See 8 C.F.R. § 208.18(a)(4)(iii); Rodríguez-Villar, 930 F.3d at 28 (vacating findings of no past torture and no past persecution where the agency "failed to assess" whether the threats directed at the applicant were death threats and thus "turn[ed] a blind eye to salient facts" by "fail[ing] to grapple with the grave nature of th[ose] threats" (quoting Sihotang v. Sessions, 900 F.3d 46, 51 (1st Cir. 2018))).

The IJ did separately conclude that "[t]here is insufficient evidence that [Pineda-Maldonado] would be tortured in the future" if he were removed to El Salvador. But, as we have explained above, evidence of past torture is relevant to a determination of whether there is a basis for finding that a person seeking CAT protection has met the burden to show a likelihood of being subjected to torture in the future. See 8 C.F.R. § 208.16(c)(3)(i) (directing that evidence relevant to the possibility of future torture includes "[e]vidence of past torture"); Hernandez-Martinez, 59 F.4th at 40; see also Romilus, 385 F.3d at 9 (analyzing past incidents in determining likelihood of future torture). Thus, our reasons for concluding that the IJ's no-past-torture finding cannot be sustained also preclude us from concluding that the IJ's no-future-torture finding can be sustained. See Ali, 33 F.4th at 56, 60.

There does remain the BIA's decision that affirms the IJ's denial of Pineda-Maldonado's CAT claim. But the BIA purported to be relying only on "the reasons articulated in [the IJ's] decision." Thus, that ruling provides no independent basis for our concluding that the agency adequately explained the decision to deny Pineda-Maldonado's CAT claim. See Ordonez-Quino v. Holder, 760 F.3d 80, 87-90 (1st Cir. 2014) (granting a petition for review where the BIA adopted and affirmed the IJ's decision that "ignored or unreasonably...