18-2281 Garcia-Aranda v. Garland
United States Court of Appeals For the Second Circuit
August Term 2021
Argued: January 20, 2022 Decided: November 21, 2022
No. 18-2281
KARLA IVETH GARCIA-ARANDA,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
Petition from the Board of Immigration Appeals No. A206-716-166.
Before: KEARSE, WALKER, and SULLIVAN, Circuit Judges.
Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and her family had been threatened, kidnapped, and beaten by members of the Mara 18 gang while a local Honduran police officer was present. Garcia-Aranda sought asylum and withholding of removal, arguing that the gang had persecuted her because she was a member of the Valerio family, which ran its own drug trafficking ring in Garcia-Aranda’s hometown. She also sought protection under CAT based on an asserted likelihood of future torture at the hands of the gang with the participation or acquiescence of the local Honduran police. Having reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and withholding of removal, but that the agency applied incorrect standards when adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is DENIED IN PART and GRANTED IN PART, the decisions of the BIA are VACATED IN PART to the extent they denied Garcia-Aranda’s claim for CAT protection, and the case is REMANDED to the BIA for further proceedings consistent with this decision. DENIED IN PART, GRANTED IN PART, VACATED IN PART, AND REMANDED.
HEATHER AXFORD (Rebecca Press, Paola Donovan, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner.
BEAU BAUMANN (Joseph H. Hunt, Patricia A. Smith, Victor M. Lawrence, on the brief), United States Department of Justice, Washington, DC, for Respondent.
Christopher P. Malloy, Sophia M. Mancall- Bitel, Amber R. Will, New York, NY, for Amici Curiae Brooklyn Defender Services, The Bronx Defenders, Erie County Bar Association Volunteer Lawyers Project, The Legal Aid Society, and The Prisoners’ Legal Services of New York. RICHARD J. SULLIVAN, Circuit Judge:
Karla Iveth Garcia-Aranda petitions for review of two decisions of the Board
of Immigration Appeals (“BIA”) denying asylum, withholding of removal, and
2 relief under the Convention Against Torture (“CAT”). Garcia-Aranda, a native
and citizen of Honduras, testified before an Immigration Judge (“IJ”) that she and
her family had been threatened, kidnapped, and beaten by members of the Mara
18 gang while a local Honduran police officer was present. Garcia-Aranda sought
asylum and withholding of removal, arguing that the gang had persecuted her
because she was a member of the Valerio family, which ran its own drug
trafficking ring in Garcia-Aranda’s hometown. She also sought protection under
CAT based on an asserted likelihood of future torture at the hands of the gang
with the participation or acquiescence of the local Honduran police. Having
reviewed both the IJ’s and the BIA’s opinions, we hold that the agency did not err
in finding that Garcia-Aranda failed to satisfy her burden of proof for asylum and
withholding of removal, but that the agency applied incorrect standards when
adjudicating Garcia-Aranda’s CAT claim. Accordingly, the petition for review is
DENIED IN PART and GRANTED IN PART, the BIA’s decisions are VACATED
IN PART to the extent that they denied CAT protection, and the case is
REMANDED to the BIA for further proceedings consistent with this decision.
3 I. BACKGROUND
A. Factual Background 1
Prior to fleeing Honduras, Garcia-Aranda lived with her husband and two
children in the village of San Juan, in the municipality of Tela and in the
department of Atlantida. Although Garcia-Aranda and her parents were law-
abiding citizens, she acknowledged that most of her extended family was involved
in drug trafficking in Honduras – led by her great uncle, Jorge Valerio. Beginning
in 2008, members of the Mara 18 gang began killing members of the Valerio family,
including Jorge Valerio, because of their involvement in drug trafficking and their
refusal to pay a “war tax” to the gang. The gang also killed Garcia-Aranda’s
stepfather, who was not involved in the Valerio drug operation, due to his
relationship with the family.
After the gang murdered her aunt in 2010, Garcia-Aranda moved with her
husband and children to Tegucigalpa, Honduras to escape the violence. They
returned to San Juan three years later, after hearing that the Valerio family had
ceased selling drugs and that the dispute with the gang had subsided. Back in San
Juan, Garcia-Aranda and her husband opened two businesses, one selling food
1The factual background presented here is derived from the Certified Administrative Record and factual findings of the IJ, which are not disputed on appeal.
4 and one transporting local children to school. But the Mara 18 gang soon
approached Garcia-Aranda – first to gain information on the whereabouts of an
uncle involved in drug trafficking, and later to demand that Garcia-Aranda and
her husband pay a “quota,” or extortion payment, based on the belief that the
couple had money from their businesses and from an inheritance from Jorge
Valerio. For about six months, Garcia-Aranda and her husband paid the “quota,”
but then stopped after their businesses’ sales declined.
Garcia-Aranda and her husband then fled to Mexico, but in 2014, they
returned to San Juan after being deported. Almost immediately thereafter, a group
of Mara 18 gang members kidnapped Garcia-Aranda, her husband, and her
children and again demanded money in light of her purported inheritance from
Jorge Valerio. The gang held Garcia-Aranda and her family for three days, during
which time they deprived her of food and repeatedly beat her husband. During
her captivity, Garcia-Aranda recognized the voice of a local police officer, whom
she knew because he had previously come to Jorge Valerio’s home to collect
money. After Garcia-Aranda’s mother paid a portion of the ransom, the gang
released the family.
B. Procedural History
In June 2014, following the kidnapping, Garcia-Aranda and her two
5 children entered the United States without inspection. They were apprehended at
the border and were served by the Department of Homeland Security with notices
to appear charging them with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
Through counsel, and with Garcia-Aranda participating as lead applicant, the
family conceded removability as charged and timely applied for asylum,
withholding of removal, and protection under CAT. 2 At a later merits hearing
before the IJ, Garcia-Aranda testified to the events discussed above. Garcia-
Aranda also submitted exhibits pertaining to the country conditions in
Honduras – including the U.S. Department of State’s 2015 Country Report on
Human Rights Practices for Honduras and Douglas Farah’s “Central America’s
Northern Triangle: A Time of Turmoil and Transition,” which chronicled the
sources of corruption, violence, criminal activity, and governmental abuse in
Honduras.
On September 6, 2016, despite finding that Garcia-Aranda had testified
credibly, the IJ denied the family’s applications for asylum, withholding of
removal, and CAT relief and ordered their removal to Honduras. The IJ found
2As alluded to above, Garcia-Aranda’s two children were included as derivative beneficiaries in her removal proceedings. They were also originally included as petitioners here, but their cases have been severed and remanded.
6 that Garcia-Aranda failed to satisfy her burden for asylum or withholding of
removal because her proposed social group (members of the Valerio family in San
Juan, Tela, Atlantida, Honduras) did not constitute a “particular social group,” as
required by 8 U.S.C. § 1101(a)(42). Alternatively, the IJ found that, even if the
Valerio family did qualify as a “particular social group,” Garcia-Aranda did not
establish that her affiliation with the family was “at least one central reason” why
gang members had targeted her, as required by 8 U.S.C. § 1158(b)(1)(B)(i). Instead,
the IJ concluded that the gang had targeted her due to a perception that she was
wealthy. Finally, as for CAT relief, the IJ noted Garcia-Aranda’s “credible
testimony that there was a police officer who was involved in some of the past
incidents,” but determined that Garcia-Aranda failed to “demonstrate that it is
‘more likely than not’ that she would be harmed by governmental forces or forces
the government is unable or unwilling to control in a way that constitutes torture
as that term has been defined.” Certified Admin. Record at 90–91.
Garcia-Aranda appealed to the BIA, which dismissed the appeal on June 30,
2017. With respect to her asylum and withholding of removal claims, the BIA
agreed with the IJ that Garcia-Aranda did not show the legally required nexus
between her membership in her proposed social group and her fear of harm. With
7 respect to CAT relief, the BIA concluded that Garcia-Aranda’s “testimony, along
with the evidence of widespread corruption and violence . . . , does not establish
that a public official of the government of Honduras would acquiesce in [Garcia-
Aranda’s] torture, or that she faces a more likely than not chance of torture in the
first place.” Id. at 30. Garcia-Aranda timely petitioned for review of the BIA
decision pursuant to 8 U.S.C. § 1252, but the parties subsequently stipulated under
Federal Rule of Appellate Procedure 42(b) to dismiss the petition and remand to
the BIA so that it could reconsider certain aspects of its CAT analysis, which we
so-ordered.
On remand, the BIA again dismissed Garcia-Aranda’s appeal in a July 9,
2018 decision. Because the parties’ stipulation and our ensuing order did not
reference the BIA’s prior asylum and withholding of removal determinations, the
BIA addressed only relief under CAT. Ultimately, the BIA concluded that,
“[a]ssuming that the kidnapping and other past mistreatment . . . described [by
Garcia-Aranda] constitutes torture, we agree [with the IJ] that she has not shown
a likelihood of future torture by or with the acquiescence (including willful
blindness) of a government official upon return.” Certified Admin. Record at 4.
The BIA explained that “the evidence does not support a finding that the police
8 officer in question or any Honduran official has an interest in torturing the
respondent at this time or that members of the police, either alone or in connection
with gangs or cartels, routinely engage in kidnapping for ransom and associated
mistreatment and that higher officials know or remain willfully blind to the
conduct and breach their responsibility to prevent it.” Id. (citing Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)).
Garcia-Aranda now again timely petitions for review of the BIA’s decision
pursuant to 8 U.S.C. § 1252. 3
II. DISCUSSION
Because the BIA did not expressly adopt the IJ’s decision, but “its brief
opinion closely track[ed] the IJ’s reasoning,” we have reviewed the opinions of
both the IJ and the BIA “for the sake of completeness.” Pan v. Holder, 777 F.3d 540,
543 (2d Cir. 2015) (internal quotation marks omitted). We review the IJ’s factual
findings under the substantial evidence standard, treating them as “conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Id. (internal quotation marks omitted). We review de novo questions
3The parties do not dispute that the BIA’s June 30, 2017 decision (with respect to the asylum and withholding of removal determinations) and the BIA’s July 9, 2018 decision (with respect to the CAT determination) are both properly before us. Gov’t Br. at 3.
9 of law and the application of law to undisputed facts, but the BIA’s interpretations
of immigration regulations are reviewed with substantial deference, unless an
interpretation is plainly erroneous or inconsistent with the regulation. See Bah v.
Mukasey, 529 F.3d 99, 110–11 (2d Cir. 2008).
Before this Court, Garcia-Aranda advances two main arguments. First, she
contends that, for her asylum and withholding of removal claims, the BIA erred in
concluding that (even assuming the validity of her proposed social group, the
Valerio family) she had failed to establish the legally required nexus between her
membership in that group and her fear of harm. Second, she argues that, for her
CAT claim, the BIA erred in concluding that she had failed to establish that she
would more likely than not be tortured in Honduras by or with the acquiescence
of a public official upon her return. We address each of these arguments in turn.
A. Asylum and Withholding of Removal
An applicant for asylum and withholding of removal “must establish that
race, religion, nationality, membership in a particular social group, or political
opinion was or will be at least one central reason for persecuting the applicant.”
8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1231(b)(3)(A); Quituizaca v. Garland, 52 F.4th
103, 105–06 (2d Cir. 2022); Matter of C-T-L-, 25 I. & N. Dec. 341, 344–48 (B.I.A. 2010).
In cases where there is more than one motive for mistreatment (also known as
10 mixed-motive cases), the “at least one central reason” statutory requirement still
stands; in other words, an applicant’s status as a member of a particular social
group still must be at least one of the central reasons, rather than a minor reason,
for why that individual is being targeted. See Acharya v. Holder, 761 F.3d 289, 296–
98 (2d Cir. 2014); Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010); Matter of N-M-, 25
I. & N. Dec. 526, 530–31 (B.I.A. 2011).
When a proposed social group is based on family ties, these same basic
principles apply. See Matter of L-E-A-, 27 I. & N. Dec. 40, 43–47 (B.I.A. 2017), rev’d
in part on other grounds, 27 I. & N. Dec. 581, 596–97 (A.G. 2019). “[T]he fact that a
persecutor has threatened an applicant and members of his [or her] family does
not necessarily mean that the threats were motivated by family ties.” Id. at 45.
Instead, because membership in the family cannot be a minor, incidental, or
tangential reason for the harm, “the fact that a persecutor targets a family member
simply as a means to an end is not, by itself, sufficient to establish a claim,
especially if the end is not connected to another protected ground.” See id. at 44–
46; see also, e.g., Arias-Avila v. Garland, 855 F. App’x 54, 55 (2d Cir. 2021); Gonzalez-
Carias v. Garland, 855 F. App’x 52, 53 (2d Cir. 2021); Barrera Pacheco v. Barr, 836 F.
11 App’x 22, 24 (2d Cir. 2020). 4
Here, the agency did not err in finding that Garcia-Aranda failed to show
that her membership in the Valerio family was a central, rather than tangential or
incidental, reason that the Mara 18 gang targeted her. The record reflects that gang
members killed several Valerio family members on account of their involvement
in the drug trade and refusal to pay extortion, and that Garcia-Aranda and her
husband were targeted several years later because the gang perceived them to
have wealth based on their ownership of two businesses and inheritance from
Valerio family members. This supplies substantial evidence for the agency’s
conclusion that Garcia-Aranda was targeted for extortion and kidnapping based
on her perceived ability to pay, and that animus toward the Valerio family was at
most an incidental reason for her targeting. See Matter of L-E-A-, 27 I. & N. Dec. at
44–47; see also Ucelo-Gomez v. Mukasey, 509 F.3d 70, 74 (2d Cir. 2007) (“[H]arm
motivated purely by wealth is not persecution.”). Similarly, the fact that the gang
also killed Garcia-Aranda’s stepfather, who was not involved in drug trafficking,
and once approached Garcia-Aranda seeking the whereabouts of an uncle
4Numerous other circuits have adopted this standard. See, e.g., Thalayan v. Att’y Gen. of U.S., 997 F.3d 132, 142–44 (3d Cir. 2021); Orellana-Recinos v. Garland, 993 F.3d 851, 856–59 (10th Cir. 2021); Sanchez-Castro v. U.S. Att’y Gen., 998 F.3d 1281, 1286–88 (11th Cir. 2021); Fuentes v. Barr, 969 F.3d 865, 871–72 (8th Cir. 2020).
12 involved in drug trafficking – without more to indicate that these occurrences
were due to animus against the Valerio family and not the perceived wealth of the
Valerio family – does not undermine the substantial evidence supporting the
agency’s conclusion.
Accordingly, we deny the petition for review as to Garcia-Aranda’s claims
for asylum and withholding of removal.
B. CAT Claim
Unlike asylum and withholding of removal, CAT relief does not require a
nexus between the alleged torture and an applicant’s membership in a protected
group. Instead, Article III of CAT, as implemented by the United States, prohibits
the government from removing an applicant if it is “more likely than not that he
or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2) (2022); 8 C.F.R. § 1208.16(c)(2) (2018) (same); 5 see also Mu-Xing Wang
5For the purposes of this case, whether considering the current version of CAT-implementing regulations (labeled with a 2022 parenthetical), or the version in effect at the time of the IJ’s and the BIA’s decisions (labeled with a 2018 parenthetical), we would reach the same conclusions. After the IJ’s and the BIA’s decisions in this case, a new version of the CAT-implementing regulations was promulgated in December 2020, with a set effective date of January 11, 2021. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80,274 (Dec. 11, 2020). But on January 8, 2021, before the new version of the regulations could take effect, a district court in California preliminarily enjoined their implementation, enforcement, and application. See Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966 (N.D. Cal. 2021). The current version of the CAT-implementing regulations was then promulgated in March 2022, with an effective date of May 31, 2022. See
13 v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003).
Analysis of a CAT claim boils down to a two-step inquiry. See, e.g., Garcia
v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); Garcia-Milian v. Holder, 755 F.3d 1026,
1033 (9th Cir. 2014). First, the applicant must show that, in his or her particular
situation, it is more likely than not that he or she will be harmed upon removal in
a way recognized by section 1208.18(a). See, e.g., Zelaya-Moreno v. Wilkinson, 989
F.3d 190, 203–05 (2d Cir. 2021); Banegas Gomez v. Barr, 922 F.3d 101, 109–10 (2d Cir.
2019); Mu Xiang Lin v. U.S. Dep't of Just., 432 F.3d 156, 160 (2d Cir. 2005). Generally
speaking, this means that the applicant must show that he or she will more likely
than not be subject to “any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as . . .
intimidating or coercing him or her or a third person.” 8 C.F.R. § 1208.18(a)(1)
(2022); see also id. § 1208.18(a)(2)–(6) (2022); 8 C.F.R. § 1208.18(a) (2018) (same);
Zelaya-Moreno, 989 F.3d at 204 (“Whether . . . acts of violence rise to the level of
torture depends on the interplay between many factors, including severity,
duration, effects, and means of carrying them out.”). In assessing the likelihood
of future harm, the agency must consider “all evidence relevant to the possibility
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022).
14 of future torture . . . including, but not limited to: (i) [e]vidence of past torture . . . ;
(ii) [e]vidence that the applicant could relocate . . . ; (iii) [e]vidence of gross,
flagrant or mass violations of human rights . . . ; and (iv) [o]ther relevant
information regarding conditions in the country of removal.” 8 C.F.R.
§ 1208.16(c)(3) (2022); 8 C.F.R. § 1208.16(c)(3) (2018) (same).
Second, for an applicant to be eligible for CAT relief, the applicant must also
show that sufficient state action, as defined in section 1208.18(a), would be
involved in his or her likely future harm. In other words, the applicant must show
that his or her likely future harm will be “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.” 8 C.F.R. § 1208.18(a)(1) (2022);
8 C.F.R. § 1208.18(a)(1) (2018) (materially similar). Acquiescence is satisfied where
the government actor “know[s] of or remain[s] willfully blind to an act and
thereafter breach[es] their legal responsibility to prevent it.” Khouzam, 361 F.3d at
171; see also De La Rosa v. Holder, 598 F.3d 103, 109–10 (2d Cir. 2010); Delgado v.
Mukasey, 508 F.3d 702, 708–09 (2d Cir. 2007); 8 C.F.R. § 1208.18(a)(7) (2022).
As for who qualifies as a government actor, the Attorney General and our
sister circuits have interpreted the regulation’s reference to public officials (or
15 other persons) “acting in an official capacity” to mean any public official at any
level of government (or any other person) acting “under color of law,” as that
phrase is used in the civil-rights context. See Matter of O-F-A-S-, 28 I. & N. Dec. 35,
39–42 (A.G. 2020); In re Y–L, 23 I. & N. Dec. 270, 279, 285 (A.G. 2002); see also, e.g.,
Garcia, 756 F.3d at 891–93; United States v. Belfast, 611 F.3d 783, 808–09 (11th Cir.
2010); Ramirez-Peyro v. Holder, 574 F.3d 893, 899–901 (8th Cir. 2009); Bankole v. INS,
126 F. App’x 503, 504 (2d Cir. 2005).6 We agree and thus now hold that the CAT
state-action requirement mandates that an applicant’s likely future torture be
performed by, or with the acquiescence of, any public official (or other person)
“exercis[ing] power ‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” West v. Atkins,
487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see
also Screws v. United States, 325 U.S. 91, 111 (1945) (“It is clear that under ‘color’ of
law means under ‘pretense’ of law.”). Although acts of officials in the ambit of
6 The current version of section 1208.18(a)(1) makes the connection between the concepts of “official capacity” and “color of law” even more explicit, explaining that “[p]ain or suffering inflicted by a public official who is not acting under color of law shall not constitute pain or suffering 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, although a different public official acting in an official capacity or other person acting in an official capacity could instigate, consent to, or acquiesce in the pain or suffering inflicted by the public official who is not acting under color of law.” 8 C.F.R. § 1208.18(a)(1) (2022).
16 their personal pursuits are plainly excluded, whether any particular official’s
actions ultimately satisfy this standard is a fact-intensive inquiry, as “there is no
bright line test for distinguishing ‘personal pursuits’ from activities taken under
color of law.” Pitchell v. Callan, 13 F.3d 545, 547–49 (2d Cir. 1994); see also, e.g.,
United States v. Giordano, 442 F.3d 30, 42–47 (2d Cir. 2006); Monsky v. Moraghan, 127
F.3d 243, 245–46 (2d Cir. 1997).
Here, based primarily on the past kidnapping incident in which a local
police officer was present, see Certified Admin. Record at 163–67, 171–77, and
country-conditions evidence allegedly showing regular collusion between gangs
and police, see, e.g., id. at 417, 431, Garcia-Aranda seeks CAT protection on the
theory that, upon her return to Honduras, the Mara 18 gang will likely subject her
to harm cognizable as torture under section 1208.18(a). Thus, applying the
standards articulated above to this theory of CAT relief, the agency must answer
two key questions based on the evidence: whether, if Garcia-Aranda were to be
removed to Honduras, it is more likely than not (1) that the gang will intentionally
inflict severe pain or suffering to intimidate or coerce her, including meeting all
the harm requirements for torture under section 1208.18(a); and (2) that local
police acting under color of law will either (i) themselves participate in those likely
17 gang actions or (ii) acquiesce in those likely gang actions. See Ramirez-Peyro, 574
F.3d at 901–06 (the Eighth Circuit conducting requisite color-of-law analysis on
facts similar to this case).
Thus far, the agency at all levels has failed to make these required
determinations. For her part, the IJ found that Garcia-Aranda failed to
“demonstrate that it is ‘more likely than not’ that she would be harmed by
governmental forces or forces the government is unable or unwilling to control in
a way that constitutes torture as that term has been defined,” seemingly applying
the “unable or unwilling to protect” acquiescence standard applicable to asylum
and withholding of removal claims, rather than the standard applicable to CAT
claims. Certified Admin. Record at 90–91; see also Scarlett v. Barr, 957 F.3d 316, 336
(2d Cir. 2020) (remanding for the agency to explain how the distinct unable-or-
unwilling standard “might translate to identifying government acquiescence in
torture under the CAT”).
To be sure, the BIA came closer to the standard we announce today when it
required Garcia-Aranda to show “a likelihood of future torture by or with the
acquiescence (including willful blindness) of a government official upon return.”
Certified Admin. Record at 4. But the BIA then fatally erred when, parroting
18 language from Khouzam, 361 F.3d 161, it faulted Garcia-Aranda for failing to show
either that “the police officer in question or any Honduran official has an interest in
torturing the respondent at this time” or that “members of the police, either alone
or in connection with gangs or cartels, routinely engage in kidnapping for ransom
and associated mistreatment and that higher officials know or remain willfully blind
to the conduct and breach their responsibility to prevent it.” Certified Admin.
Record at 4 (emphases added). In other words, the BIA failed to analyze whether
it is likely that the Mara 18 gang has an interest in torturing Garcia-Aranda at this
time and whether it is likely that any member of the local police who is acting under
color of law will participate in, or acquiesce in, that conduct.
In Khouzam, we analyzed whether a man accused of murder in Egypt, where
torture was regularly used as an interrogation tactic, was eligible for CAT relief.
361 F.3d at 163–64, 169. Although we indicated that section 1208.18(a)’s state-
action requirement was likely met because the interrogating police officers were
themselves “acting in their official capacities . . . as [was] strongly suggested by
the fact that their goal [was] to extract confessions,” we also held that, to the extent
that the interrogating police officers were not acting in their official capacities,
evidence of the “‘routine’ nature of the torture and its connection to the criminal
19 justice system” meant that other police officers – in that case higher-level police
officers – would meet section 1208.18(a)’s state-action requirement through
acquiescence. Id. at 171. But we never indicated that such facts are necessary.
Where, as here, the primary perpetrator of likely harm is a gang, the relevant state-
action question (should the BIA reach it) is whether any public official, or any other
person, including low-level local police officers, when acting under color of law,
will participate or acquiesce in harm that the gang is likely to inflict and that is
recognized as torture under section 1208.18(a).
Because of these legal errors, we grant the petition as to Garcia-Aranda’s
claim for protection under CAT and vacate the BIA’s decisions regarding CAT
protection. See Rafiq v. Gonzales, 468 F.3d 165, 166–67 (2d Cir. 2006) (remanding a
CAT claim for proper application of Khouzam). On remand, we direct the agency
to consider, in light of all testimony and documentary evidence, whether Garcia-
Aranda will more likely than not be tortured by, or at the instigation of, or with
the consent or acquiescence of, any public official (or other person) acting under
color of law. As more fully described above, that means considering questions
such as whether it is more likely than not that the gang will torture Garcia-Aranda,
including meeting all the harm requirements for torture under section 1208.18(a),
20 and whether it is more likely than not that local police acting under color of law
will themselves participate in those likely gang actions or acquiesce in those likely
gang actions. The BIA is also instructed to remand to the IJ for any additional
factfinding that is necessary for the BIA to make its determination.
III. CONCLUSION
For the foregoing reasons, we DENY IN PART and GRANT IN PART the
petition for review, VACATE the BIA’s decisions regarding CAT protection, and
REMAND the case to the BIA for further proceedings consistent with this
opinion. 7
7On September 10, 2018, Garcia-Aranda filed a motion seeking a stay of removal during the pendency of her claim before this Court. Doc. No. 15. We hereby deny that motion as moot.