24-2806 Andrade v. Bondi BIA Schultz, IJ A094 476 777
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of January, two thousand twenty-six.
PRESENT: JON O. NEWMAN, GERARD E. LYNCH, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________ JORGE ALBERTO ANDRADE, Petitioner,
v. 24-2806 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Aaron J. Aisen, Michaela Andriatch, Erie County Bar Association Volunteer Lawyers Project, Batavia, NY. FOR RESPONDENT: Brett A. Schumate, Assistant Attorney General; Margot P. Kniffin, Rebecca Hoffberg Phillips, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is GRANTED, the removal order is
VACATED, and the case is remanded for further consideration consistent with this
order.
Petitioner Jorge Alberto Andrade, a native and citizen of El Salvador, seeks
review of an October 23, 2024, decision of the BIA affirming a May 6, 2024, decision
of an Immigration Judge (“IJ”) denying Andrade’s application for protection
under the Convention Against Torture (“CAT”). In re Andrade, No. A 094 476 777
(B.I.A. Oct. 23, 2024), aff’g No. A 094 476 777 (Immig. Ct. Batavia May 6, 2024). We
assume the parties’ familiarity with the underlying facts and procedural history.
We review the IJ’s decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review findings of fact for
substantial evidence and questions of law and application of law to fact de novo.
See Quintanilla-Mejia v. Garland, 3 F.4th 569, 583 (2d Cir. 2021). “[T]he
2 administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
“[W]e presume that [the agency] has taken into account all of the evidence before
[it], unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t
of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006). However, remand is warranted if the
agency “overlook[s] key evidence and mischaracterize[s] the record,” Doe v.
Sessions, 886 F.3d 203, 211 (2d Cir. 2018), or where there is insufficient reasoning
for judicial review, see Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005).
A CAT applicant must show he will “more likely than not” be tortured “if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “Torture
is . . . any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted . . . by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or other person acting
in an official capacity.” Id. § 1208.18(a)(1). The more likely than not standard
“requires the applicant to establish that there is greater than a fifty percent
chance . . . that he will be tortured.” Chun Gao v. Gonzales, 424 F.3d 122, 128–29
(2d Cir. 2005) (quotation marks omitted). Whether an applicant meets this
threshold “must be considered in terms of the aggregate risk of torture from all
3 sources, and not as separate, divisible . . . claims.” Matter of J-R-G-P-, 27 I. & N.
Dec. 482, 484 (B.I.A. 2018) (quotation marks omitted).
The agency found that, while Andrade would likely be detained under the
state of exception, 1 he had not established likely torture by Salvadoran officials
because (1) the risk of intentional torture by prison guards, police, or other officials
was speculative as there were only anecdotal reports of torture, (2) there was
insufficient evidence that pain and suffering caused by prison conditions would
be intentionally inflicted, and (3) the record did not demonstrate that officials
would acquiesce to Andrade’s torture by other incarcerated gang members. As
discussed below, we remand because the agency did not address all evidence
relevant to the risk of torture by prison officials or to the intentional imposition of
harsh prison conditions. We find no error in the agency’s determination that
Andrade did not demonstrate that he would more likely than not be tortured by
rival gang members with the acquiescence of public officials.
I. Torture by Salvadoran Prison Officials
Andrade’s expert witness, Dr. Robert Kirkland, stated:
1 The “régimen de excepción” or state of exception, enacted in March 2022, is a national law of El Salvador under which known or suspected gang members may be arrested and imprisoned with little process. See Certified Administrative Record (“CAR”) at 310 (2022 State Dep’t Rep.)
4 The extreme violence in Salvadoran prisons is a matter of state- sanctioned policy and practice. Guards and police beat detainees to try to force them to “confess” to gang membership, in addition to beating and punishing detainees simply to inflict pain and suffering. Many prisoners have died while in state custody under circumstances that suggest torture and abuse as the cause of death, such as death certificates that list “mechanical asphyxia,” “multiple unidentified traumas,” or “badly beaten” as the principal cause of death . . . [and] Amnesty International and others have suggested that the prison conditions in El Salvador amount to “a policy of systematically torturing everyone who is detained under the state of emergency because they are suspected of being gang members.”
CAR at 294 (Kirkland Aff.); see also id. at 316 (2022 State Dep’t Rep.) (reporting 35
detainee deaths from “causes such as strangulation, blunt force trauma, or other
causes that could indicate torture or mistreatment”), 367 (2023 Amnesty Int’l Art.)
(reporting “deaths of 190 individuals while in state custody—some as a result of
torture or other ill-treatment”), 389 (2022 Intercept Art.) (“[T]he few people
released from prisons—mostly minors—have shown signs of being beaten,
starved, and medically neglected. Some have shown signs of torture.”), 403 (2023
El Pais Art.) (reporting “death[s] of 153 prisoners” and noting “a ‘common pattern’
[of] the presence of lacerations, hematomas caused by beatings, wounds with
sharp objects and signs of choking or strangling on the cadavers”), 444 (2024 AP
Art.) (reporting that 241 people died in prison since the start of the state of
exception). 5 Evidence further indicates that prisoners have been deprived of food and
water and arbitrarily subjected to electric shocks, humiliation, confinement in
isolation cells without cots or toilets, and beatings. Id. at 406–07 (2023 El Pais Art.)
(released detainee describing how guards gave him five seconds to eat off the floor
with only his mouth), 411 (2023 El Faro Art.) (“One man suffered electric shocks
while being forced to kneel on gravel to the point that he began bleeding.
Another suffered a stroke after he was held in solitary confinement, given only
one meal a day, and subjected to routine beatings. In another case, around 145
people confined to one cell were forced to share a single glass for water, and to eat
off of the floor.”), 553 (2023 State Dep’t Rep.) (relating reports of “systemic abuse
in the prison system, including beatings by guards and the use of electric
shocks. . . . [G]uards activated electric stun guns against the prison’s wet floors
to deliver electric shocks to all the prisoners in a cell.”).
The agency appeared to assume that these instances of severe violence
would qualify as intentional torture. See 8 C.F.R. § 1208.18(a)(3) (“Torture does
not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions,” but lawful sanctions “do not include sanctions that defeat the object
and purpose of the [CAT] to prohibit torture.”); Pierre v. Gonzales, 502 F.3d 109, 121
6 (2d Cir. 2007) (noting that punishments such as “live burial” qualify as torture
“even if somewhere it were the lawful sanction for an offense”). No evidence
suggests that a legitimate penological purpose was served by the extreme and
arbitrary punishments employed by Salvadoran prison guards, such as electric
shocks, strangulation, lethal beatings, and the like. Cf. Galina v. Wilkinson, 988
F.3d 137, 142–43 (2d Cir. 2021) (Italian solitary confinement policy was not
intended as torture where legitimate penological purpose—prevention of crimes
organized from prison—was served). The prison guards perpetrating these acts
are public officials, so their conduct satisfies the state action element of a CAT
claim. See 8 C.F.R. § 1208.18(a)(1). Accordingly, the issue with respect to these
intentional abuses is whether Andrade established he is more likely than not to be
subjected to such torture.
The agency concluded that the evidence of direct torture was “[a]necdotal,”
encompassing less than the majority of gang members incarcerated under the state
of exception, and therefore insufficient to establish likely torture. CAR at 4.
However, the agency did not discuss Dr. Kirkland’s conclusion that torture by
prison guards is a matter of policy. See CAR at 294–95; see also id. at 403 (2023 El
Pais Art.) (“The massive and systemic violations are now a state policy.”). In
7 addition, nearly all data about Salvadoran prisons during the state of exception
comes from reviewing reports of detainees who have died and the statements of
those released, but the record shows that both categories represent only a small
percentage of the total detainee population. See, e.g., id. at 294, 316, 389, 403.
Thus, the evidence implies violence at higher rate than the agency contemplated.
See id. at 403 (identifying indications of torture in deaths of 75 detainees out of 153
deaths reviewed), 445 (2024 AP Art.) (reporting NGO’s conclusion that 44% of
deaths were due to violence, plus 29% due to lack of medical attention). An
inference of systemic torture is further supported by evidence that the Salvadoran
government restricted access to prisons and engaged in cover-ups regarding the
existence of torture. See, e.g., id. at 316 (2022 State Dep’t Rep.) (explaining that
Salvadoran human rights agency (PDDH) was denied access to prisons in
November 2022), 377 (2024 Amnesty Int’l Art.) (citing a “pattern of minimization,
concealment, delegitimization and denial adopted by the government of El
Salvador”), 389 (2022 Intercept Art.) (describing how new laws restrict lawyers
and independent media from accessing prisons), 402 (2023 El Pais Art.)
(“Authorities have withheld official information and have insisted that all deaths
within prisons are from natural causes.”). While an absence of evidence normally
8 works against the party bearing the burden of proof (here, Andrade), this evidence
that the Salvadoran government has limited information regarding rates of torture
bolsters, rather than diminishes, the overall likelihood of torture. See Villalta
Martinez v. Bondi, 157 F.4th 108, 117–18 (2d Cir. 2025) (holding that BIA erred in
relying on lack of complete information regarding prison conditions to reverse an
IJ’s finding of likely torture by Salvadoran government, given evidence of data
suppression).
The IJ cited the 2023 State Department Report for the proposition that “[t]he
government took credible steps to identify and punish officials who may have
committed human rights abuses.” CAR at 549. However, the agency did not
acknowledge that the report also implies that those steps did not extend to prison
officials: “Impunity was a problem in the General Directorate of Penal Centers
particularly for prison guards. Human rights organizations noted the Attorney
General’s Office had not opened any complaints into the allegations of torture,
abuse, or mistreatment by prison guards.” Id. at 554; see also id. at 311 (2022 State
Dep’t Rep.) (“Impunity persisted in the security forces, other executive branch
offices, and justice system.”); see Doe, 886 F.3d at 211 (remanding where agency
failed to acknowledge or assess evidence contrary to its conclusion).
9 In sum, we do not opine as to whether the record establishes that Andrade
has a 50% or greater chance of being tortured by prison officials, but we conclude
that the record at least shows more than isolated incidents as found by the agency.
We remand for the agency to determine in the first instance and based on the
totality of the evidence whether the aggregate risk of torture—from prison officials
and from harsh prison conditions—rises above the threshold. See Doe, 886 F.3d
at 211; Matter of J-R-G-P-, 27 I. & N. Dec. at 484.
II. Prison Conditions
“Torture does not include pain or suffering arising only from, inherent in,
or incidental to lawful sanctions,” unless such sanctions “defeat the object and
purpose of the [CAT] to prohibit torture.” 8 C.F.R. § 1208.18(a)(3). “[B]arbaric
prison conditions might constitute torture if they cause severe pain or suffering
and if circumstances indicate that the intent of the authorities in causing the
severity of pain and suffering . . . is to illicitly discriminate, punish, coerce
confessions, intimidate, or the like.” Pierre, 502 F.3d at 121. “The failure to
maintain standards of diet, hygiene, and living space in prison does not constitute
torture under the CAT unless the deficits are sufficiently extreme and are inflicted
intentionally rather than as a result of poverty, neglect, or incompetence.” Id.;
10 accord Matter of J-R-G-P-, 27 I. & N. Dec. at 485–86. Thus, to show torturous prison
conditions, “a CAT claimant must provide some evidence of specific intent, direct
or circumstantial.” Pierre, 502 F.3d at 119 (quotation marks omitted).
The IJ found that, “to the point of near certainty,” Andrade would be
imprisoned upon removal to El Salvador and face “cruel, inhuman, and
degrading” treatment. CAR at 73, 75. The issue is whether the IJ erred in
concluding that Andrade did not produce any evidence that those conditions were
intended to cause pain and suffering to suspected gang members.
The 2022 State Department report states that El Salvador’s prisons were at
“119 percent of capacity prior to the state of exception but became more crowded
as the number of detainees doubled. By May [2022], more than 71,000 detainees
were being held in a penitentiary system designed for 30,000.” Id. at 315. In
some instances, as many as “80 prisoners [were] held in cells built for 12,” id., and
released prisoners reported “shar[ing] a cell with no toilet—just a bucket—with
400 others,” id. at 398. The Salvadoran government was aware of this situation,
releasing photos showing prisoners held shoulder-to-shoulder, see, e.g., id. at 371,
395, 402, 404, 421, and advertising it as what the gang members deserve, id. at 315
(2022 State Dep’t Rep.) (“From the start of the state of exception, the government
11 frequently advertised on social media the overcrowded conditions and lack of
adequate food in the prisons as appropriate treatment for gang members.”). This
constitutes some evidence that overcrowding was intentional punishment, rather
than the result of limited resources or neglect. Cf. Pierre, 502 F.3d at 121.
Likewise, the statements of government officials provide evidence that the
severe limits on detainees’ food and water were, at least in part, intentional. See,
e.g., CAR at 315 (2022 State Dep’t Rep.) (“A released prisoner reported he received
four ounces of rice and one tortilla per day.”), 387 (Intercept Article) (“[F]ood
rations for prisons are meager, unvaried, and inconsistent), 555 (2023 State Dep’t
Rep.) (“Detainees . . . reported a lack of food and potable water and being limited
to two tortillas, one spoonful of beans, and one glass of water per day.”). One
article describes how, following an incident of gang violence outside of the
prisons, President Bukele “threatened to stop feeding prisoners at all,” saying, “I
swear to God, they won’t eat a grain of rice, and let’s see how long they last.” Id.
at 387.
This evidence, together with that discussed above of arbitrary violence
inflicted on some detainees by guards, raises an inference that the Salvadoran
government created or allowed severe prison conditions with a specific intent to
12 cause pain and suffering to those incarcerated under the state of exception.
Additionally, unlike with violence by the guards, no evidence suggests that steps
have been taken to alleviate food and water deficiencies. See id. at 549–92 (2023
State Dep’t Rep.). And while the 2023 State Department report indicates that a
new, high-capacity prison facility was completed, the same passage indicates that
it was under-utilized and that overcrowding persisted. See id. at 555.
The IJ did not address this evidence in finding no or insufficient evidence of
intent to torture. See id. at 72–75. And although on appeal, Andrade pointed to
evidence of intent, including Dr. Kirkland’s statements, the social media
comments of Salvadoran officials, and the severity of the conditions, the BIA did
not address it. See id. at 3–4 (BIA Dec.), 21–24 (Br. to BIA). To the extent the BIA
spoke to the likelihood of torture (which presumes intent) through imposition of
harsh prison conditions, it mischaracterized the record by chalking the evidence
up to “generalized reports” of ordinary prison brutality. Id. at 4. Thus, we
remand for the agency to determine whether the evidence, properly considered,
establishes that the prison conditions should be included in Andrade’s aggregate
risk of torture. See Doe, 886 F.3d at 211; Matter of J-R-G-P-, 27 I. & N. Dec. at 484.
13 III. Torture by Imprisoned Rival Gang Members
Andrade also asserted a risk of torture by rival gang members in prison.
Torture by private actors may be attributable to the government, and thus fall
under the CAT’s definition of torture, if a government official consents or
acquiesces to the torture. See 8 C.F.R. § 1208.18(a)(1). “Acquiescence of a public
official requires that the public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity. Such awareness requires a
finding of either actual knowledge or willful blindness.” Id. § 1208.18(a)(7).
We find no error in the IJ’s lack of discussion of this risk because, as the IJ’s
summary of the evidence reflects, the record does not suggest that inter-gang
violence is condoned or tolerated by prison officials. See, e.g., CAR at 72–73 (IJ’s
decision summarizing evidence of steps taken to separate rival gangs in prison),
220 (Tr.) (“[Officials] try to separate the gang members by their affiliations.”), 316
(2022 State Dep’t Rep.) (“[P]risoners were divided into groups composed of gang
members, gang collaborators, and those with no gang connections.”); see also Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (explaining that agency has
“duty explicitly to consider relevant evidence” but that agency need not “expressly
14 parse or refute on the record each individual argument or piece of evidence offered
by the petitioner” (emphasis added; quotation marks omitted)). Andrade raised
this fear on appeal, but did not identify evidence to support it. The BIA’s
conclusion that Andrade’s unsupported claim was speculative was not
impermissible fact-finding, particularly in light of the IJ’s acknowledgement of the
evidence that gang members were separated.
As set forth above, the petition for review is GRANTED, the removal order
is VACATED, and the case is REMANDED for further consideration of country
conditions evidence relevant to the likelihood of torture by officials in prison and
whether the inhumane prison conditions—including overcrowding and
deprivations of food and water—are intentional and rise to the level of
torture. All pending motions and applications are DENIED as moot.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court