South Carolina Lawyers Weekly
Where the immigration judge or IJ, found that the threat of torture from MS-13, police and vigilante groups in El Salvador was less than 50%, both separately and in the aggregate, an applicant’s bid for protection under the Convention Against Torture or CAT, was denied.
Background
Miguel Angel Ibarra Chevez petitions for review of the final order of the Board of Immigration Appeals or BIA, denying his application for protection under the CAT. The IJ found that Ibarra was not credible and that he had failed to show that it was more likely than not he would be tortured if returned to his native country of El Salvador.
Aggregation
Ibarra first argues that the IJ failed to properly aggregate the risk of torture under Rodriguez-Arias v. Whitaker, 915 F.3d 968 (4th Cir. 2019), in which this court joined other circuits in holding “that the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.” The IJ there had combined the risks that the applicant faced from gangs and the police in her first decision and, on remand, found that the applicant had failed to demonstrate that it is more likely than not that he would be tortured by vigilante groups. But “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%.”
Here, in contrast, the IJ considered the likelihood of torture by MS-13, police and vigilante groups, and found that “the threat to [Ibarra] from [all] sources is less than a 50% chance of torture both separately and in the aggregate.” In response, Ibarra argues that IJ erred in conflating the risk posed by the police with the risk posed by vigilante groups and erred in failing to employ more precise quantitative risk estimates for each feared entity. The court disagrees.
The court finds no factual or legal error in the IJ’s consideration of the risk allegedly posed to Ibarra from police and vigilante groups. The court also finds no error in the method in which the IJ aggregated the likelihood that Ibarra would be subjected to torture. The BIA found that the IJ’s findings were supported by substantial evidence, and the court agrees. Accordingly, the agency did not err in its consideration of the aggregate risk of torture.
Standard of review
Ibarra next argues that the BIA applied an incorrect standard of review to the IJ’s aggregate finding. The court rejects his argument. The IJ considered the potential threat to Ibarra from MS-13, the police and vigilante groups, both individually and in the aggregate, and made a predictive factual determination of what would likely happen if Ibarra was removed to El Salvador. This factual finding was “entitled to deference under the clearly erroneous standard.”
And once the BIA accepted the IJ’s non-clearly erroneous factual findings regarding the treatment that Ibarra was likely to receive from all the entities and for the reasons combined, the BIA properly concluded that Ibarra had failed to meet the ultimate statutory standard for CAT relief.
Merits
Ibarra also argues that the IJ and BIA arbitrarily ignored evidence relevant to his claim and that the evidence was so compelling that no reasonable factfinder could fail to find that Ibarra had shown that it was more likely than not that he would be tortured if removed to El Salvador. The court disagrees.
The IJ and BIA thoughtfully considered the evidence presented by Ibarra and the Department of Homeland Security, including the expert opinions and other country-conditions evidence, in four separate opinions. The crux of Ibarra’s argument is that the IJ arbitrarily ignored relevant evidence because she failed to specifically address the final opinions of the experts—i.e., that, based upon their review and acceptance of Ibarra’s written declaration as credible, Ibarra faces a significant risk of torture if he is deported to El Salvador. This likelihood of torture, however, constitutes the ultimate factual finding that rested solely with the IJ, and the IJ’s decisions more than amply explain why she reached a contrary finding.
Petition for review denied.
Chevez v. Garland (Lawyers Weekly No. 001-065-22, 23 pp.) (William Byrd Traxler Jr., S.J.) Case No. 20-1576. From the Board of Immigration Appeals. Maya Rose Tsukazaki and Jeremy Padow for Petitioner. Shahrzad Baghai for Respondent. 4th Cir.
