United States Court of Appeals For the First Circuit
Nos. 21-1150, 21-1230
H.H.,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Lipez, and Howard, Circuit Judges.
SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for petitioner.
Kristen A. Giuffreda, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Acting Assistant Attorney General, and Shelley R. Goad, Assistant Director, were on brief, for respondent.
Anna R. Welch, Suzannah Dowling (Student Attorney), and Cumberland Legal Aid Clinic, University of Maine School of Law on brief for amici curiae Immigration Law Professors.
William J. Aceves, California Western School of Law, Nathan P. Warecki, and Nixon Peabody LLP on brief for amici curiae Current and Former U.N. Special Rapporteurs on Torture. Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals.
October 21, 2022 LIPEZ, Circuit Judge. Petitioner H.H.1 seeks review of
an order of the Board of Immigration Appeals ("BIA") affirming the
denial of his application for deferral of removal to Honduras under
the Convention Against Torture ("CAT"). He argues that the
immigration judge ("IJ") applied the incorrect legal standard in
assessing whether he would more likely than not be tortured with
the "consent or acquiescence" of the Honduran government, and that
the BIA erred in its review of the IJ's decision. He also argues
that the BIA failed to consider whether the Honduran government
would likely torture him and whether the MS-13 gang is a de facto
government actor. We agree that the agency2 erred in these
respects, and we therefore grant his petition for review, vacate
the order of the BIA to the extent it denied him CAT relief as to
Honduras, and remand for further proceedings consistent with this
opinion.
I.
A. Factual Background
H.H. is a citizen of El Salvador and Honduras. He
entered the United States without inspection in 2004, when he was
16 years old, and was apprehended and released by Customs and
Border Protection shortly after his arrival. Because he was a
1 We refer to H.H. by pseudonym due to the threats on his life underlying this petition for review. 2 We refer to the BIA and IJ collectively as the "agency."
- 3 - minor at the time, he was released to the custody of his uncle,
who lived in Maryland. He was ordered removed in absentia in April
2004. H.H. does not recall receiving notice of a removal hearing.
While living in Maryland, H.H. became involved with the
MS-13 gang. He was arrested for gang-related activity in 2005 and
eventually charged with racketeering and robbery. He pleaded
guilty to a Racketeer Influenced and Corrupt Organizations Act
("RICO") charge and was sentenced to 15 years' incarceration.
In or around 2006, H.H. began to cooperate with federal
authorities who were investigating other MS-13 members. Most
prominently, he testified in the prosecution of a high-ranking MS-
13 leader who was eventually convicted and sentenced to 60 years'
imprisonment. Based on H.H.'s cooperation, MS-13 has authorized
its members to kill him, issuing what the parties refer to as a
"luz verde" or "green-light" order. Such an order does not expire
and permits his execution by any member of MS-13 regardless of the
circumstances under which he is identified.
B. Proceedings before the IJ
H.H. was released from prison in July 2019 and
transferred to the custody of Immigration and Customs Enforcement
("ICE") based on the 2004 removal order. Soon thereafter, he
successfully moved to reopen his immigration proceedings and to
transfer venue to the Boston Immigration Court. H.H. sought
deferral of removal under the CAT as to both El Salvador and
- 4 - Honduras.3 The IJ held a series of merits hearings in the spring
and summer of 2020.
In these proceedings, H.H. testified about his past
involvement with MS-13, noting that he was drawn to the gang
lifestyle at a young age. He explained that, since he began his
cooperation with the government in 2006, he has lived in fear of
execution by other MS-13 members. He testified that he had moved
through at least seven federal facilities, using aliases to protect
his identity, because the luz verde order put him at significant
risk of physical harm from other gang-affiliated inmates. During
his time in federal custody, MS-13 members were, in fact, sent to
kill him. Further, H.H. testified that an active member of MS-13
who knows H.H. and his family and knows that H.H. informed against
MS-13 was removed to Honduras in 2010 or 2011 and is actively
involved in gang activities in that country. H.H. also noted that
members of the rival 18th Street or Sureños gangs might harm him
as well, due to his past affiliation with MS-13. The IJ found
H.H. to be a credible witness.
The IJ also heard extensive testimony from Drs. Anthony
Fontes and Harry Vanden, two professors whom the IJ qualified as
experts on country conditions in El Salvador and Honduras. Both
3 The parties agree that H.H. is ineligible for any other relief due to his RICO conviction.
- 5 - Fontes and Vanden testified about country conditions and the nature
of gang activity in those countries.
With respect to Honduras, Fontes explained that, due to
widespread corruption, MS-13 and local police forces are often
intertwined in several ways. First, he explained that MS-13 had
recently "[b]ecome a more respected political actor" due to its
large-scale cocaine distribution networks, and that it maintains
power and influence in the areas in which it operates in part by
performing traditional state functions like neighborhood
security.4 He explained that while this activity began as a way
for gangs to fill the vacuum left by unresponsive police forces,
their influence has grown to the point that it is now common for
MS-13 members to pay police to permit them to operate with
impunity. Fontes testified that police, in addition to accepting
bribes, "work as surveillance with [MS-13], to try to identify
strangers coming in and out; and also will be tasked to get
background information on anyone who MS-13 finds suspicious moving
through their territory." He opined that, due to these channels
of communication and collaboration between the gangs and the
police, and due to H.H.'s gang tattoos, H.H. would be readily
identified as a former gang member upon his return. Such
4 For example, he noted that in some neighborhoods "[y]ou don't call the police if something happened in that neighborhood. You call MS-13."
- 6 - identification would place him at risk of grave harm due to the
luz verde order.
Fontes also testified that the perception of H.H.'s gang
membership would place him at risk of direct harm from law
enforcement. He explained that, although the police collaborate
with MS-13 in many communities, numerous law enforcement officers
have become frustrated by their inability to effectively combat
gang activity and have "taken to extrajudicially pursuing and
executing suspected gang members." He said that such actions by
law enforcement were "shrugged off by the local populaces," and
that, if placed directly in harm's way by Honduran police or
military, H.H. would not have the protection associated with actual
gang membership due to the luz verde order. Fontes concluded that
H.H. would therefore be "between a rock and a hard place," because
"MS-13 wants to kill him[] and won't give him any support at all"
yet he would also be proactively pursued by members of the Honduran
police or national security forces.
With respect to El Salvador, Fontes noted that the
Salvadoran president had informed law enforcement officers that
they would not face consequences for killing gang members, and
that the government would not record such deaths. Fontes
testified, however, that such "mano dura," or "heavy hand,"
policies had failed to stymie the influence of MS-13 and that, as
- 7 - a result, H.H. would face a significant risk of harm from both the
Salvadoran government directly and from MS-13 itself.
Vanden's testimony was substantially similar to
Fontes's. He opined on the interconnectedness of MS-13 and the
Honduran police force. He also noted that H.H. would be readily
identified as a gang member -- perhaps due to the communication
between gang members and the police -- and would likely be harmed
either directly by the government or by gang members who face
little accountability for their actions. He agreed that H.H. would
likely face grave harm in El Salvador as well, due to the power of
gangs and the government's tolerance of extrajudicial killings of
suspected gang members.
In August 2020, the IJ issued a written decision granting
H.H. deferral of removal to El Salvador but denying relief as to
Honduras. The IJ cited to the extensive evidence that the
Salvadoran government itself "employs torturous conduct against
actual and suspected gang members," and found that the Salvadoran
government would also likely consent or acquiesce to torture
performed directly by gang members. Regarding Honduras, the IJ
found that H.H. had failed to demonstrate that he would more likely
than not be "tortured for a proscribed purpose by or at the
instigation of the Honduran government." The IJ concluded that
the record showed that any harm that H.H. might suffer in Honduras
at the hands of the government directly would arise from "poor
- 8 - governance and lack of sufficient funding," as opposed to the
specific intent to harm current or former gang members.
Regarding the government's consent or acquiescence to
torture by private actors, the IJ also found that, while the
evidence supported a finding that the Honduran government was
"aware of how the gangs abuse the power vacuum created by its own
funding and governance issues," H.H. had not demonstrated that
Honduran officials would be "willfully accepting" of torture by
private actors -- i.e., MS-13. The IJ did not, however, make a
more specific factual finding about what he believed Honduran
officials would likely do in light of their awareness of gang
activity, nor did he make a finding regarding the likelihood that
H.H. would be harmed by gang members.
C. Appeal to the BIA
H.H. and the government cross-appealed the IJ's
decisions with respect to Honduras and El Salvador, respectively.
The BIA dismissed both appeals. Given that the government has not
sought review of the BIA's denial of its appeal regarding deferral
of removal to El Salvador, we discuss only the BIA's decision
dismissing H.H.'s appeal.5
5 The BIA dismissed the government's appeal on the basis that there had been no clear error in the IJ's finding that H.H. would more likely than not be murdered or tortured in El Salvador.
- 9 - H.H. argued to the BIA that the IJ erred in concluding
that he was not likely to be tortured by, or with the "consent or
acquiescence" of, the Honduran government. He asserted that the
IJ had applied the incorrect legal standard in concluding that he
had not established that Honduran officials would be "willfully
accepting" of his torture, noting that many circuit courts have
rejected the "willful acceptance" standard in favor of a "willful
blindness" test. Under the latter test, a CAT applicant may
demonstrate consent or acquiescence by establishing that
government officials would "turn a blind eye to torture" and
violate their legal duty to intervene to prevent it, even if actual
knowledge of torture is not established. See, e.g., Cruz-
Quintanilla v. Whitaker, 914 F.3d 884, 886-87 (4th Cir. 2019)
(internal quotation marks omitted).
The BIA found no clear error in the IJ's determination
that H.H. had failed to establish that he would more likely than
not be tortured with the consent or acquiescence of the Honduran
government. However, the BIA did not directly address whether the
IJ had applied the wrong legal standard. Instead, it concluded
that the IJ's "specific finding that the potential harm [to H.H.]
would not be with any consent or acquiescence of the Honduran
government . . . is sufficiently comprehensive to incorporate the
concept of willful blindness." And it held that H.H. had failed
to show clear error in that finding. The BIA also rejected H.H.'s
- 10 - argument that MS-13 was a de facto government actor.6 Finally,
the BIA concluded that it was unnecessary to reach H.H.'s argument
that he would likely face torture by the Honduran government. H.H.
timely petitioned for review.
II.
A. Standard of Review
To establish eligibility for CAT protection, H.H. must
demonstrate that he would more likely than not be subject to
torture if removed to Honduras. See Romilus v. Ashcroft, 385 F.3d
1, 8 (1st Cir. 2004). Relying on BIA precedent, we have defined
torture as "(1) an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for a proscribed
purpose; (4) by or at the instigation of or with the consent or
acquiescence of a public official who has custody or physical
control of the victim;7 and (5) not arising from lawful sanctions."
6 The IJ's decision did not expressly address this argument. 7 While we have often cited this language regarding the "custody and control" of a government official, which derives from Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002), the regulatory definition of torture requires only that the victim be "in the offender's custody or physical control." See 8 C.F.R. § 208.18(a)(6) (emphasis added). In Azanor v. Ashcroft, 364 F.3d 1013, 1019-20 (9th Cir. 2004), the Ninth Circuit held that any requirement that the victim be in government custody or control for a claim based on torture by private actors was contrary to Congress's intent in ratifying the CAT, as well as its implementing regulations. The Ninth Circuit therefore rejected Matter of J-E- to the extent it imposed a government custody requirement in all cases and held that a petitioner must only establish the custody and control of the offender. This case does not require us to
- 11 - Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004) (quoting
Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002)).
An IJ's determination regarding CAT relief is reviewed
as a mixed question of law and fact. See DeCarvalho v. Garland,
18 F.4th 66, 73 (1st Cir. 2021). Factual findings as to "whether
a person is likely to suffer a particular harm and the role of the
foreign government in causing or allowing that harm" are reviewed
for clear error, but "whether the government's role renders the
harm by or at the instigation of[,] or with the consent or
acquiescence of[,] a public official" is a legal question that is
reviewed de novo. Id. (internal quotation marks omitted).
When "the BIA adopts and affirms the IJ's ruling but
also examines some of the IJ's conclusions, this [c]ourt reviews
both the BIA's and IJ's opinions." Sanabria Morales v. Barr, 967
F.3d 15, 19 (1st Cir. 2020) (quoting Perlera-Sola v. Holder, 699
F.3d 572, 576 (1st Cir. 2012)).
B. Willful Blindness
H.H. argues that the IJ erred by relying on the willful
acceptance standard set forth in Matter of S-V-, 22 I. & N. Dec.
1306 (BIA 2000), in the fourth step of the Elien analysis -- the
assessment of whether H.H. showed that he would face torture with
the "consent or acquiescence" of the Honduran government. He
decide whether it is appropriate to join the Ninth Circuit on this issue.
- 12 - further argues that the BIA erred by upholding the IJ's finding
despite this legal error. We first address the IJ's use of the
willful acceptance standard.
In Matter of S-V-, the BIA announced that, as part of a
showing of acquiescence, "the respondent . . . must demonstrate
that [the] officials are willfully accepting of the . . . torturous
activities." 22 I. & N. Dec. at 1312. H.H. asserts that the
proper test is not willful acceptance, however, but whether
Honduran officials are likely to exhibit "willful blindness"
toward his torture by private actors. See, e.g., Perez-Trujillo
v. Garland, 3 F.4th 10, 18 (1st Cir. 2021) ("Acquiescence includes
willful blindness."); Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d
Cir. 2004) ("[T]orture requires only that government officials
know of or remain willfully blind to an act and thereafter breach
their legal responsibility to prevent it.").
Although we have previously acknowledged that a
government's "acquiescence" to torture for purposes of the CAT may
include a showing of willful blindness, see, e.g., Perez-Trujillo,
3 F.4th at 18, we have not squarely addressed whether the BIA's
decision in Matter of S-V- conflicts with our approval of the
"willful blindness" standard. Moreover, our precedent has not
been entirely consistent on the showing required to demonstrate
acquiescence to torture under the CAT. See Diaz-Garcia v. Holder,
609 F.3d 21, 26 (1st Cir. 2010) (referring to the petitioner's
- 13 - burden to demonstrate that a government would be "willfully
accepting of" torture by guerrillas for CAT purposes). As we shall
explain, the "willful acceptance" standard set forth in Matter of
S-V- is inconsistent with the text of the CAT, as well as the clear
intent of Congress, and is not required to establish acquiescence
to torture.
The United Nations unanimously adopted the Convention
against Torture in 1984, and then-President Reagan signed the CAT
in 1988. See Committee on Foreign Relations, Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, S. Exec. Rep. 101–30, at 2 (1990) ("Senate Report").
President Reagan then transmitted the CAT to the Senate for advice
and consent, along with 17 proposed conditions. Id. at 7. Among
these was the condition that, to establish a public official's
"acquiescence" to torture, the "public official, prior to the
activity constituting torture, [must] have knowledge of such
activity and thereafter breach his legal responsibility to
intervene to prevent such activity." Id. at 15 (emphasis added).
The Senate Foreign Relations Committee found that this condition
and others "created the impression that the United States was not
serious in its commitment to end torture worldwide." Id. at 4.
The Senate took no further action at that time.
In 1990, the first Bush administration submitted revised
proposed conditions, which included changing the acquiescence
- 14 - requirement from requiring "knowledge" of the risk of torture to
an "awareness" of it. Id. at 2, 4, 9. The Foreign Relations
Committee endorsed this change, noting in its report that "[t]he
purpose of this condition is to make it clear that both actual
knowledge and 'willful blindness' fall within the definition of
the term 'acquiescence.'" Id. at 9. In October 1990, the Senate
adopted its resolution of advice and consent, and the United
States' CAT obligations were ultimately codified through the
Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA").
Pub. L. No. 105–277, div. G., tit. XXII, § 2242(b), 112 Stat. 2681–
822 (codified at 8 U.S.C. § 1231 note).
The FARRA, in turn, directed "the heads of the
appropriate agencies" to "prescribe regulations to implement the
obligations of the United States under Article 3 of the
[Convention], subject to any reservations, understandings,
declarations, and provisos contained in the United States Senate
resolution of ratification of the Convention." Id. Accordingly,
the Immigration and Naturalization Service ("INS")8 implemented
regulations consistent with the Senate Resolution, using the
phrase "awareness" instead of "knowledge." Of particular
relevance is 8 C.F.R. § 1208.18(a)(7), which states that
8 The functions of the INS have since been transferred to three other agencies: ICE, U.S. Citizenship and Immigration Services ("USCIS"), and Customs and Border Protection ("CBP").
- 15 - "[a]cquiescence 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."9 (Emphasis
added).
Thus, that use of "awareness" and that history persuade
us that the willful acceptance test set forth in Matter of S-V-
conflicts with the clear intent of Congress. Congress endorsed
the CAT and adopted the FARRA in the face of an express statement
that "acquiescence" for purposes of the Convention includes "both
actual knowledge and 'willful blindness.'" Senate Report at 9.
The concept of "willful acceptance," however, necessarily includes
9 In December 2020, the Trump administration promulgated a proposed rule to amend 8 C.F.R. § 1208.18. The regulation would have modified 8 C.F.R. § 1208.18(a)(1) and (a)(7) to explicitly include "willful blindness" and elaborate on the definitions of several other terms. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020). The enforcement of this rule was enjoined in January 2021. See Pangea Legal Servs. v. U.S. Dep't of Homeland Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021). To date, the injunction in Pangea has not been lifted nor has the government argued that this now-enjoined rule is enforceable. While the Biden administration promulgated an interim final rule that went into effect on May 31, 2022, and that amends other parts of 8 C.F.R. § 1208.18, see Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18078-01 (Mar. 29, 2022), this rule does not include language modifying 8 C.F.R. § 1208.18(a)(1) or (a)(7), nor does it otherwise address the legal standard governing the consent or acquiescence inquiry. We therefore analyze the regulatory language as it existed prior to the promulgation of the now-enjoined rule.
- 16 - knowledge of the matter one is "accepting," and excludes the
concept of willful blindness.
Accordingly, contrary to Matter of S-V-, a showing of
willful acceptance is not necessary to establish "acquiescence" to
torture under the CAT. See Succar v. Ashcroft, 394 F.3d 8, 36
(1st Cir. 2005) (declining to defer to a proposed regulation by
the Attorney General when it conflicted with the clear intent of
Congress). Our holding is consistent with that of every circuit
to address the issue. See, e.g., Zheng v. Ashcroft, 332 F.3d 1186,
1194 (9th Cir. 2003) ("Congress made its intent clear that actual
knowledge, or willful acceptance, is not required for a government
to 'acquiesce' to the torture of its citizens."); Silva-Rengifo v.
Att'y Gen., 473 F.3d 58, 67 (3d Cir. 2007) ("A brief review of the
Convention's implementing legislation confirms that Congress
intended that relief under the Convention not be limited to
situations where public officials have actual knowledge of
torturous activity.").10 Hence, the IJ erred by requiring that
H.H. demonstrate that the Honduran government would more likely
than not be "willfully accepting" of his torture.
10 See also Khouzam, 361 F.3d at 171; Suarez-Valenzuela v. Holder, 714 F.3d 241, 245-47 (4th Cir. 2013); Hakim v. Holder, 628 F.3d 151, 155-57 (5th Cir. 2010); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007); Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).
- 17 - The BIA, however, glossed over the IJ's error in
upholding the denial of Honduras-based CAT relief, citing to the
IJ's statement that "any potential harm that may befall [H.H.] in
Honduras would result from its substandard conditions or
insufficient governance rather than any consent or acquiescence of
the Honduran government."11 The BIA found no "clear error in the
specific finding that the potential harm [H.H. would experience]
would not be with any consent or acquiescence of the Honduran
government," which it characterized as "a finding of fact that is
sufficiently comprehensive to incorporate the concept of willful
blindness."
In so concluding, the BIA appears to have treated the
IJ's statement regarding the lack of "any consent or acquiescence"
as a purely factual finding, subject only to deferential clear
error review.12 However, the question of "whether the government's
role renders the harm 'by or at the instigation of or with the
11 These "substandard conditions," according to the IJ, included poor funding and understaffing in the criminal justice system, low wages and lack of training in the national police force, and a "culture of corruption" among police leaders. 12"To find clear error as to the IJ's findings of fact, the BIA must be 'left with the definite and firm conviction that a mistake has been committed,'" and such findings "may not be overturned simply because the [BIA] would have weighed the evidence differently or decided the facts differently had it been the factfinder." Adeyanju v. Garland, 27 F.4th 25, 33 (1st Cir. 2022) (alteration in original) (quoting Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878- 01, 54889 (Aug. 26, 2002)).
- 18 - consent or acquiescence of a public official,'" is legal in nature
and is subject to de novo review. DeCarvalho, 18 F.4th at 73
(quoting Samayoa Cabrera v. Barr, 939 F.3d 379, 382 (1st Cir.
2019)); see also Myrie v. Att'y Gen., 855 F.3d 509, 517 (3d Cir.
2017) (vacating and remanding when the BIA reviewed only for clear
error the legal conclusion that "the government of Panama would
not be acquiescent to any torture") (internal quotation marks
omitted). The BIA properly applies clear error review to the IJ's
probabilistic findings, such as findings of fact about "how public
officials will likely act in response to the harm the petitioner
fears." Myrie, 855 F.3d at 515. But it must review without
deference the question of whether "the likely response from public
officials qualifies as acquiescence under the governing
regulations." Id.
The BIA therefore erred by failing to apply the proper
standard of review to the IJ's findings. See Adeyanju v. Garland,
27 F.4th 25, 45 (1st Cir. 2022) (stating that application of the
wrong standard of review is an error of law). For that reason, we
remand for de novo review of the question of acquiescence,
understanding that a showing of willful blindness suffices to
demonstrate an "awareness" of torture under the CAT. See
Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007)
(en banc) ("If the IJ and [BIA] rested their decision upon a
misunderstanding of the legal elements of [a claim], the ordinary
- 19 - remedy is a remand to allow the matter to be considered anew under
the proper legal standards.").13
C. The Awareness and Breach Prongs
In the interest of judicial efficiency in case the issue
arises on remand, we offer one further clarification on the role
played by the "willful blindness" standard within the regulatory
test for acquiescence set forth at 8 C.F.R. § 1208.18(a)(7). As
described above, § 1208.18(a)(7) requires that a public official
"have awareness of [torture] and thereafter breach his or her legal
duty to prevent such activity." By its terms, the regulation
anticipates a two-part, successive inquiry: An applicant seeking
to establish acquiescence must first demonstrate the likelihood of
a foreign government's awareness of torture, and then show a likely
breach of the government's duty to intervene to prevent the
torture.
However, most of the courts that have adopted the willful
blindness standard have not consistently distinguished between the
"awareness" and "breach of duty" steps. For example, in describing
willful blindness, the Ninth Circuit simply framed the question as
"whether public officials 'would turn a blind eye to torture.'"
Zheng, 332 F.3d at 1196 (quoting Ontunez-Tursios v. Ashcroft, 303
13 Although we have identified a legal error, we recognize that the BIA may conclude that it is necessary to remand to the IJ for further factfinding.
- 20 - F.3d 341, 354–55 (5th Cir. 2002)); see also Suarez-Valenzuela v.
Holder, 714 F.3d 241, 246 (4th Cir. 2013) ("[W]illful blindness
can satisfy the acquiescence component of [the regulatory
test]."). The failure to explicitly address the conjunctive nature
of the regulatory language has created some ambiguity about whether
establishing acquiescence requires distinct showings of
"awareness" and "breach of duty."
At present, the Second Circuit is the only court to have
explicitly established, and consistently applied, a two-step
inquiry that reflects the language and structure of the regulation.
In Khouzam, it held that "torture requires only that government
officials know of or remain willfully blind to an act and
thereafter breach their legal responsibility to prevent it." 361
F.3d at 171 (emphasis added).14
This approach is well illustrated by the Second
Circuit's reasoning and remand in Scarlett v. Barr, 957 F.3d 316
(2d Cir. 2020). In the underlying agency decision in Scarlett,
the BIA acknowledged that Jamaican officials had been aware that
gang members had threatened to torture the petitioner, a Jamaican
police officer. Id. at 325. However, the BIA held that the
petitioner could not establish acquiescence because the record
14Other circuits have at times approvingly cited 8 C.F.R. § 1208.18(a)(7) but have not uniformly and expressly adopted such a two-part formulation for the acquiescence inquiry. See, e.g., Silva-Rengifo, 473 F.3d at 69-70.
- 21 - included evidence that his superiors had transferred him to another
station and later contacted him to provide him with notice of a
gang's planned attack on him. Id. at 323, 335. The Second Circuit
remanded the case because the BIA had not addressed whether,
notwithstanding the government's awareness of this threat and
actions taken to warn the petitioner, the police "bore a legal
responsibility to do more." Id. at 335. Hence, the court treated
the police's awareness of the torture and potential breach of legal
duty as distinct elements of the acquiescence inquiry.
We agree with the Second Circuit's approach. A two-step
inquiry is clearly supported by the plain language of 8 C.F.R.
§ 1208.18(a)(7), which refers first to officials' awareness of
torture and, second, to whether they "thereafter breach [their]
legal duty to prevent such activity." (Emphasis added). The word
"thereafter" inescapably conveys that a finding of awareness is a
predicate to finding a breach of a duty, and that both findings
are necessary to show "acquiescence."
Moreover, with this two-part framework in mind, it is
apparent that the concept of willful blindness pertains to the
"awareness" prong of the inquiry. As discussed above, Congress
replaced the word "knowledge" with "awareness" as a condition of
ratifying the CAT, with the specific intent to express that willful
blindness toward torture could suffice in lieu of actual knowledge.
See Senate Report at 9. Thus, willful blindness involves the
- 22 - degree to which government officials are aware of activity
constituting torture, but not necessarily whether, given such
"awareness," a government official's response (or lack thereof)
satisfies the duty to intervene to prevent such torture.15 Because
the agency's decision rested on its incorrect use of the willful
acceptance standard, neither the IJ nor BIA explicitly addressed
the question of whether Honduran officials would more likely than
not "breach [their] legal responsibility to intervene to prevent
[torture]." 8 C.F.R. § 1208.18(a)(7).16 We leave it to the agency
to analyze breach of duty in the first instance, to the extent
necessary.17 We note, however, that we join the Second Circuit in
expressing skepticism that any record evidence of efforts taken by
15 In our discussions of willful blindness in the criminal context, we have similarly described it as relevant to one's degree of awareness of certain facts. See United States v. Azubike, 564 F.3d 59, 66 (1st Cir. 2009) ("A willful blindness instruction is appropriate if (1) a defendant claims a lack of knowledge, (2) the facts suggest a conscious course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood as mandating an inference of knowledge."). 16We recognize that there may be cases where some of the same facts supporting a finding of willful blindness also support a finding of breach of responsibility, such as evidence of actions that government actors have taken to avoid learning about torture. In holding that § 1208.18(a)(7) sets forth two analytically distinct steps, we do not mean to limit the universe of facts on which the agency may supportably rely in considering either step. 17 The proposed 2020 amendment to 8 C.F.R. § 1208.18(a)(7) would have provided additional guidance to the agency on this topic. However, as we have discussed, the enforcement of these amendments has been enjoined.
- 23 - the foreign government to prevent torture, no matter how minimal,
will necessarily be sufficient to preclude the agency from finding
that a breach of the duty to intervene is likely to occur. See De
La Rosa v. Holder, 598 F.3d 103, 110-11 (2d Cir. 2010).18 Rather,
on remand, the agency's determination about breach of duty, to the
extent such a determination is necessary, must be made after
carefully weighing all facts in the record.
III.
H.H. also requests that we remand on the independent
basis that the BIA improperly failed to address his arguments that
he would likely be tortured "by or at the instigation of" Honduran
officials or others acting in an official capacity. 8 C.F.R.
§ 1208.12(a)(1).19 These arguments encompassed two distinct
theories. First, H.H. argued that he would be tortured directly
18 In De La Rosa, the panel reviewed a BIA decision that it read to suggest that the mere existence of "preventative efforts of some government actors [could] foreclose the possibility of government acquiescence, as a matter of law, under the CAT." Id. at 110. The court expressed "significant doubts" about this premise and remanded the case to the BIA with instructions to issue a precedential opinion regarding "whether, as a matter of law, a government may acquiesce to a person's torture where (1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3) the government is admittedly unable to actually prevent the torture from taking place." Id. at 110–11. The BIA has not yet issued such an opinion. 19These arguments differ from the "consent and acquiescence" claim in that they are predicated on the direct involvement of a government official or person acting in an official capacity, as opposed to simply a state actor's awareness of, and response to, the high probability of torture.
- 24 - by Honduran officials, such as police or military officers.
Second, he argued that MS-13 operates with such impunity that it
is a de facto state actor.
Regarding the first theory, the IJ found that H.H. had
failed to meet his burden to show that he would more likely than
not be tortured by Honduran officials. The IJ reasoned that the
record only supported "a finding that [such] torture may occur at
times in Honduras," as opposed to "a finding that [H.H.] himself
is more likely than not to be subjected to torture." The IJ also
found, relying on CAT cases addressing prison conditions, that
"poor governance and a lack of sufficient funding for government
officials" would likely be the cause of any harm, rather than a
specific intent to harm H.H. On appeal to the BIA, H.H. argued
that the IJ had erred by assuming that actions by corrupt or rogue
officers could not be attributable to the state, and by exclusively
relying on prison conditions cases that he claims are inapposite
to whether police would target him for extrajudicial
assassination.
The BIA explicitly declined to reach these arguments,
stating in a footnote that because "we discern no clear error in
the [IJ's] findings of fact regarding the likelihood of torture
inflicted by private actors (gang members) with governmental
acquiescence, we do not address whether the [IJ] clearly erred
- 25 - with respect to whether a public official would inflict or
instigate an act of torture."
This statement is puzzling in the context of this case
because H.H. set forth two distinct theories for relief, each
relying upon different evidence. Under the "by or at the
instigation of" theory, the perpetrator of torture is the state
itself. See Matter of O-F-A-S-, 28 I. & N. Dec. 35, 37 (2020)
(discussing circuit courts' interpretations of the "official
capacity" requirement for CAT claims). The "consent or
acquiescence" theory of relief focuses on state actors' awareness
of, and duty to intervene in, private conduct. 8 C.F.R. §
1208.18(a)(7). H.H.'s distinct theories therefore depend at least
in part on different sets of evidence and, thus, the BIA erred by
concluding that its resolution of one theory necessarily resolved
the other. See Enwonwu v. Gonzales, 438 F.3d 22, 35 (1st Cir.
2006) (remanding when the BIA failed to consider one of the grounds
for the IJ's decision).
The agency also failed to meaningfully address H.H.'s
alternative theory that MS-13 itself is a de facto state actor.
The IJ said nothing about this argument and the BIA summarily
rejected it, concluding that such a theory was "unpersuasive"
because it "at most, asserts that the Immigration Judge clearly
erred in considering the actual government of Honduras to be the
only relevant government for purposes of [H.H.'s] claim." The
- 26 - BIA's statement does not explain why H.H.'s theory was
"unpersuasive" and fails to set forth the proper legal test to
determine whether MS-13 is a de facto state actor. Moreover, the
BIA's assertion that the IJ did not "clearly err[]" suggests that
the IJ made a finding about whether MS-13 was a de facto
government, when the IJ made no such finding -- indeed, the IJ was
silent on this entire theory.
The First Circuit has not yet addressed the legal
question of whether gangs can exert such control over a territory
that they are considered de facto state actors for CAT purposes.
This question hinges on whether the likely activity of MS-13
members amounts to action taken "in an official capacity." See 8
C.F.R. § 1208.18(a)(1) (requiring that torture be inflicted "by or
at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity"
(emphasis added)).
In 2020, the Attorney General issued a precedential
opinion interpreting the CAT's "official capacity" requirement,
holding that the term "official capacity" is subject to the same
analysis applicable to actions taken "under color of law" in the
§ 1983 context. See Matter of O-F-A-S-, 28 I.& N. Dec. at 40 ("[A]
public official acts under color of law when he exercise[s] power
possessed by virtue of . . . law and made possible only because
[he] is clothed with the authority of . . . law." (internal
- 27 - quotation marks omitted)). We have interpreted the "under color
of law" inquiry to be "the functional equivalent of the Fourteenth
Amendment's 'state action' requirement." Jarvis v. Vill. Gun Shop,
Inc., 805 F.3d 1, 8 (1st Cir. 2015). A private party can be
treated as a state actor in rare circumstances falling into three
categories: (1) "if the private party assumes a traditional public
function when performing the challenged conduct," (2) "if the
private party's conduct is coerced or significantly encouraged by
the state," and (3) "if the private party and the state have become
so intertwined that they were effectively joint participants in
the challenged conduct." Id. (internal quotation marks and
alterations omitted). In this case, however, the BIA's summary
statement did not purport to rely on Matter of O-F-A-S- or any
First Circuit precedent regarding the meaning of actions taken
"under color of law."
The government asks us to hold that, because the IJ
considered all the record evidence, it must have implicitly made
a supportable finding that MS-13 was not a de facto state actor,
and that the BIA properly found no clear error in this implicit
finding. Cf. Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008)
(acknowledging that the BIA may make implicit subsidiary findings
of fact). However, the BIA's cursory treatment of this issue
leaves us unable to infer the factual or legal basis for its
determination. See id. at 72 n.1. ("[W]e have found the absence
- 28 - of specific findings problematic in cases in which such a void
hampers our ability meaningfully to review the issues raised on
judicial review.").20 We therefore conclude that the agency erred
by failing to articulate its reasoning on this issue "with
sufficient particularity and clarity" to facilitate appellate
review. See Halo v. Gonzales, 419 F.3d 15, 19 (1st Cir. 2005)
(quoting Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998)).
We are mindful that where the agency "has given reasoned
consideration to the petition, and made adequate findings," it
does not have to "expressly parse or refute on the record each
individual argument or piece of evidence offered by the
petitioner." Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.
2006) (internal quotation marks omitted). However, because the IJ
provided no explanation at all for dismissing the claim at issue,
and because the BIA likewise did not provide any rationale for
doing so, remand is necessary. See Enwonwu, 438 F.3d at 35
(remanding where the BIA provided only one general reason for
rejecting a claim and noting that the agency "is obligated to offer
The BIA also erred to the extent its reference to "clear[] 20
err[or]" suggested that the de facto government issue presented a purely factual question. The question of whether the IJ's findings of fact meet the definition of "official capacity" as set forth in § 1208.18(a)(1) requires a legal judgment about the meaning of the phrase "official capacity," which the BIA must review de novo. See DeCarvalho, 18 F.4th at 73 (noting that the BIA reviews de novo the IJ's application of the law such as regulatory definitions to its factual findings).
- 29 - more explanation when the record suggests strong arguments for the
petitioner that the [agency] has not considered" (alteration in
original) (internal quotation marks omitted)).
IV.
For the reasons detailed above, we conclude that the BIA
erred by: (1) applying the incorrect standard of review to uphold
the IJ's denial of CAT relief as to Honduras, in a misguided effort
to accommodate the IJ's error of law in requiring a showing of
willful acceptance rather than willful blindness; (2) improperly
failing to address H.H.'s argument that he would likely be tortured
by or at the instigation of Honduran officials; and (3) failing to
meaningfully address H.H.'s argument that MS-13 members may act
under color of law.21 Accordingly, we grant the petition for
review, vacate the BIA's decision insofar as it denied H.H.
deferral of removal to Honduras, and remand the case for further
proceedings consistent with this opinion.
So ordered.
21These legal errors provide a sufficient basis for remand. Thus, we do not reach H.H.'s arguments that the BIA also failed to consider whether he could safely relocate within Honduras or that it failed to aggregate all potential sources of torture. On remand, the agency must adhere to its regulatory obligations under 8 C.F.R. § 1208.16(c)(3) (requiring consideration of all evidence relevant to the possibility of future torture, including the possibility of internal relocation).
- 30 -