24-115 (L) Villalta Martinez v. Bondi BIA Schultz, IJ A201 517 860
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 23rd day of July, two thousand twenty- five.
PRESENT: JON O. NEWMAN, WILLIAM J. NARDINI, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________
JOSE SAUL VILLALTA MARTINEZ, Petitioner,
v. 24-115 (L); 24-1222 (Con) NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Aaron J. Aisen, Esq., Erie County Bar Association Volunteer Lawyers Project, Inc., Batavia, NY.
FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General; Ilana J. Snyder, Senior Litigation Counsel; Timothy Bo Stanton, Senior Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of decisions of
the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED,
AND DECREED that the lead petition for review is GRANTED and the case is
REMANDED, and the consolidated petition is DISMISSED as moot.
Petitioner Jose Saul Villalta Martinez, a native and citizen of El Salvador,
seeks review of a (1) January 12, 2024, decision of the BIA vacating a September
15, 2023, decision of an Immigration Judge (“IJ”) that granted his claim for relief
from removal under the Convention Against Torture (“CAT”), In re Villalta
Martinez, No. A201 517 860 (B.I.A. Jan. 12, 2024), rev’g No. A201 517 860 (Immig.
Ct. Batavia Sept. 15, 2023), and (2) the BIA’s April 12, 2024, decision denying his
motion to reconsider, In re Villalta Martinez, No. A201 517 860 (B.I.A. Apr. 12, 2024).
We assume the parties’ familiarity with the underlying facts and procedural
history. 2 Under these circumstances, we have reviewed the BIA’s decision denying
CAT relief. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
I. Standard of Review
The BIA “will not engage in de novo review of findings of fact determined
by an [IJ]. Facts determined by the [IJ], including findings as to the credibility of
testimony, shall be reviewed only to determine whether the findings of the [IJ] are
clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). Clear error review “plainly does
not entitle a reviewing court [or the BIA] to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the case differently.”
Wu Lin v. Lynch, 813 F.3d 122, 127 (2d Cir. 2016) (quoting Anderson v. Bessemer City,
470 U.S. 564, 573–74 (1985)). Examples of clear error include when “[t]here might
be no evidence at all to support a finding of fact. . . . Or the finding might be
controverted by indisputable evidence.” Id. “A more likely example might arise
where an IJ has obviously misunderstood the testimony of a witness and based a
finding of fact on that misunderstanding. Situations might also arise where the
evidence opposed to the claimant’s version, though not indisputable, has
overwhelming persuasive force.” Id. “What is not in doubt, however, is that the
phrase ‘clear error’ is to be taken literally: the error must be clear.” Id. Clear
3 error review “is less deferential to a factfinder than ‘substantial evidence’ review”;
thus, “even if there is substantial evidence to support a finding of fact, . . . the BIA
can conclude, with sufficient justification, that a ‘clear error’ has been committed.”
Id. at 127–28. “If the findings of fact are against the clear weight of the evidence”
or if on appeal, the BIA “otherwise reaches a definite and firm conviction that a
mistake has been made by the [factfinder],” it “will set the findings aside even
though there is evidence supporting them that, by itself, would be considered
substantial.” Id. at 128 (quotation marks omitted).
“The BIA’s application of ‘clear error’ review is the application of a legal
standard to findings of fact and as such is a ruling of law” that we review de novo.
Id. at 129. “However, de novo review does not mean that we can redetermine de
novo whether we think the IJ has committed clear error. It means that we must
determine whether the BIA has provided sufficient justification for its conclusion
that the IJ has committed clear error” and “that we must make sure that the BIA
has not violated the prohibition against making its own findings of fact.” Id.
The BIA must supply “cogent reasons for its rulings.” Id. We will remand if the
BIA has given “no explanation for why it rejected the IJ’s reasons,” has “started
anew, conducting its own . . . analysis,” has “engaged in impermissible
4 factfinding,” or where it has not given sufficient justification for its findings of
clear error. Id. at 130–31 (quotation marks omitted).
II. CAT Relief
An applicant for CAT relief has the burden to prove he will “more likely
than not” be tortured “by, or at the instigation of, or with the consent or
acquiescence of, a public official.” 8 C.F.R. §§ 1208.16(c)(2), 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). When
determining the likelihood of future torture, the agency considers “[e]vidence of
past torture inflicted upon the applicant,” “[e]vidence of gross, flagrant or mass
violations of human rights within the country of removal,” and “[o]ther relevant
information regarding conditions in the country of removal.”
8 C.F.R. § 1208.16(c)(3). “Barbaric 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 v.
Gonzales, 502 F.3d 109, 121 (2d Cir. 2007).
5 We remand because the BIA did not provide sufficient justification for its
conclusions that the IJ clearly erred in finding that Villalta Martinez would more
likely than not be tortured and that there was government intent to torture. See
Cert. Admin. R. (“CAR”) 1 at 33 (BIA Dec.); see also Wu Lin, 813 F.3d at 131. “On
remand, the BIA will have to either accept the IJ’s findings or, if it can, provide a
supportable basis for rejecting them.” Wu Lin, 813 F.3d at 131.
A. Dr. Boerman’s Testimony
The first justification the BIA gave for finding clear error in the IJ’s decision
is that “[t]he testimony from Dr. Boerman, considered with other evidence of
record, is insufficient to show that the respondent is more likely than not to be
tortured if returned to El Salvador.” CAR at 33. In reaching this conclusion, the
BIA reasoned: “As determined by the Immigration Judge, Dr. Boerman’s
testimony . . . was entitled to diminished weight because [he] did not recall if he
analyzed documents relevant to the respondent’s particular claim, and he did not
interview the respondent.” Id. But the IJ did not “fully discount” Dr. Boerman’s
testimony because he was qualified as an expert on El Salvador, the state of
1 All record citations are to the CAR in 2d Cir. 24-1222.
6 exception, 2 and its application to possible gang members, but concluded that his
testimony deserved “probative weight,” especially as his testimony was “in many
ways verified and validated by other sources in th[e] record.” Id. at 113–14 (IJ
Dec.). The BIA’s conclusion that Dr. Boerman’s testimony was entitled to
diminished weight because he did not interview Villalta Martinez or recall if he
reviewed Villalta Martinez’s written statements, see CAR at 33, does not justify
finding clear error absent consideration of other country conditions evidence that
corroborated Dr. Boerman’s testimony.
B. Tattoos and criminal convictions
Dr. Boerman may not have reviewed Villalta Martinez’s asylum application,
but he did review Form I-213, in which the Department of Homeland Security
identifies Villalta Martinez’s tattoos and criminal conviction. Id. at 247 (Tr.), 646
(Aff.), 701–03 (I-213). Thus Dr. Boerman did not need to review Villalta
2 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 are arrested and imprisoned. CAR at 505 (2022 State Dep’t Report) (“Under the state of exception, which must be renewed monthly, security forces were empowered to arrest anyone suspected of belonging to a gang or providing support to gangs.”); see also https://www.elsalvadornow.org/2025/05/30/state-of-exception-extended-39-times- regimen-de-excepcion-prorrogado-39-veces/ (extended 39 times, now until July 4, 2025).
7 Martinez’s asylum application to determine whether he would more likely than
not be subject to imprisonment under the state of exception based on his tattoos
and conviction. As Villalta Martinez argues, the BIA failed to consider country
conditions evidence corroborating Dr. Boerman’s testimony that the tattoos alone
are a basis for Villalta Martinez to be targeted under the state of exception, and
that being so targeted exposed him to a likelihood of torture. See, e.g., CAR at
445–57 (2022 The Intercept Report) (describing deportation and eventual
disappearance in prison of a man with an MS tattoo who had been out of the gang
for 15 years), 512 (2022 State Dep’t Report) (“[S]ecurity forces frequently arrested
persons for gang membership based solely on anonymous denunciations through
a government hotline, for having tattoos, or for having any prior contact with the
criminal justice system.”).
The agency is required to consider the risk of torture in the aggregate.
8 C.F.R. § 1208.16(c)(3). Although the BIA considered conditions in prisons for
suspected gang members under the state of exception, it did not appear to consider
the risk that Villalta Martinez would be a target for police and other authorities
because of his visible tattoos, or that risk in combination with country conditions
8 evidence that his tattoos could lead to his disappearance or murder by authorities.
See CAR at 33–35.
C. Suspension of due process rights, including pervasive impunity for extrajudicial killings
While the BIA discounted Dr. Boerman’s testimony and report, the IJ
credited it because it was also supported by other evidence. See id. at 33–35, 113–
14. Dr. Boerman testified, in part, that the state of exception entailed a complete
curtailment of due process rights, including that suspected gang members could
be killed or tortured without trials. See id. at 245 (Tr.).
There is record support for Dr. Boerman’s testimony that the state of
exception has resulted in the suspension of due process rights, including that
suspected gang members are killed without trial. See id. at 416–17 (2022
ElSalvador.Com Report) (indicating that the Attorney General “will not prosecute
police or military personnel involved in the deaths of gang members in clashes
and in the line of duty”), 431 (2020 Human Rights Watch Report) (“pervasive
impunity” for state actors as perpetrators of harm), 435 (witnesses attesting to
police moving bodies and hiding evidence), 505 (2022 State Dep’t Report) (“[T]he
state of exception suspended the rights to be informed immediately of the reason
9 for detention, to legal defense during initial investigations, to privacy in
conversations and correspondence, and to freedom of association. . . . Significant
human rights issues included . . . unlawful or arbitrary killings; forced
disappearances; torture and cruel, inhuman, or degrading treatment or
punishment by security forces; . . . arbitrary arrest and detention; . . . [and]
arbitrary or unlawful interference with privacy. . . . [I]mpunity persisted in the
security forces.”), 511 (“[I]n practice, security forces were no longer required to
have warrants prior to making arrests or entering homes to make arrests.”), 512
(police officers were “pressured to give false testimony to incriminate detainees
and to reach a daily quota of arrests,” and the founder of the police union, after
complaining that police were forced to make arbitrary arrests, “was arrested and
held for four days on charges of ‘apologizing for crime’”). Given that this
evidence is relevant to the risk of torture, see 8 C.F.R. § 1208.16(c)(3), and the IJ
credited Dr. Boerman’s testimony as validated by evidence in the record, see CAR
at 113–14, the BIA’s decision to discount his testimony without considering this
evidence is an insufficient justification for its clear error finding.
10 D. State-sponsored systematic infliction of torture
Dr. Boerman emphasized that, while Villalta Martinez faced a risk of harm
from the gangs themselves (including within and outside the prisons), “the
greatest risk to [him] is from the Salvadoran government.” Id. at 252 (Tr.).
“[T]here have been 174 documented in-custody deaths . . . [in] less than 18
months.” Id. at 252–53. “[T]he majority of [these deaths] show[ed] signs of
torture.” Id. at 253. And there was further “documented systematic massive
torture and in-custody killings.” Id. According to the “former inspector general
for the National Police,” the police used “routine beatings” that were “ritualistic”
for everyone who enters the prison system. Id. at 273, 280.
Again, Dr. Boerman’s testimony is supported by other evidence in the
record, and the BIA’s conclusion that he provided only generalized or anecdotal
evidence is an insufficient justification to support its determination that the IJ
clearly erred. See id. at 33–34. The record includes evidence of specific instances
of torture and low-value statistics. See, e.g., id. at 413–14 (2022 ElSalvador.com
Article reporting 306 cases of torture, and describing the beating and simulated
drowning of a 14-year old boy accused of gang membership), 455 (2022 The
Intercept Report) (“[T]he few people released from prisons – mostly minors – have
11 shown signs of being beaten, starved, and medically neglected,” with some
“show[ing] signs of torture.”), 581 (2022 Amnesty Int’l Report describing the
“repeated[] torture[]” of a 16-year old boy by fellow cell-mates, condoned by
prison officials), 585–86 (2022 Inter Press Service Report describing a man falsely
accused of gang membership who was tortured and killed in custody).
But the record also includes evidence contrary to the BIA’s conclusion that
reports of torture are anecdotal. See, e.g., id. at 423–24 (2020 Human Rights Watch
Report) (stating that 138 murders of deportees from the United States, including
by police and state actors, is the “tip of the iceberg”), 439 (2022 Human Rights
Watch Report) (“These human rights violations include arbitrary arrests, enforced
disappearances, torture and other ill-treatment of detainees, and significant due
process violations. In addition, the circumstances of many deaths in custody
during the state of emergency suggest state responsibility for those deaths.”), 440
(stating that these “human rights violations were not isolated incidents by rogue
agents. Rather, similar violations were carried out repeatedly and across the
country . . . by both the military and police”), 560–61 (2022 Washington Office on
Latin America Report) (“Stigmatization, persecution and repression have not been
isolated actions, but are . . . carried out in a systematic manner. . . . Arbitrary
12 detentions and torture in prisons have occurred in a systematic, generalized, and
massive manner.”). The BIA failed to address this evidence, and accordingly its
conclusion regarding the likelihood of torture is insufficiently justified.
E. Overcrowding and starvation
The record also contains evidence that the government is intentionally
subjecting detainees to overcrowding and starvation within the prisons, which (as
Villalta Martinez argues) the BIA ignored. Overcrowding in one prison “rife with
allegations of abuse, torture, and death” has “hit nearly 250 percent.” Id. at 453
(2022 The Intercept Report). More recent reporting reflects prisons at three to six
times their capacity. See id. at 461 (2023 Human Rights Watch Report). The 2022
State Department Report confirms these figures and adds that “80 prisoners [were]
held in cells built for 12,” with “insufficient room to lie down.” Id. at 509; see also
id. at 505 (detailing “credible reports of: . . . harsh and life-threatening prison
conditions”). “There is extreme overcrowding in the prisons which has led to
deplorable conditions. Local human rights organizations have documented a
lack of basic necessities such as access to clean water, sanitary services, and
sufficient food in decent condition. There has also been a complete lack of
13 medical attention for people detained who are in need of medicine for preexisting
conditions.” Id. at 560 (2022 Washington Office on Latin America Report).
As Villalta Martinez argues, the record also contains evidence that these
conditions are intentional, and the BIA did not address this evidence before
reaching a conclusion contrary to the IJ’s regarding intent. “From the start of the
state of exception, the government frequently advertised on social media the
overcrowded conditions and lack of adequate food in the prisons as appropriate
treatment for gang members.” Id. at 509 (2022 State Dep’t Report). President
Bukele has tweeted that “none of [the gang members] will ever get out,” id. at 358
(2022 El Pais Report), and he has ordered that prisoners “do not see sunlight,” id.
at 364. He has also cut prisoner rations to two meals a day, specifically
threatening: “I swear to God, [prisoners] won’t eat a grain of rice, and let’s see how
long they last.” Id. at 453 (2022 The Intercept Report); see also id. at 509 (2022 State
Dep’t Report) (“A released prisoner reported he received four ounces of rice and
one tortilla per day.”). These public statements, among others, furnish some
evidence indicating a specific intent to torture suspected gang members. Thus,
the BIA’s conclusion, contrary to the IJ’s, is insufficiently justified as it does not
account for or address this evidence of intent.
14 F. Lack of Complete Information
The BIA also justified its decision by noting that Dr. Boerman “did not have
complete information regarding the prevalence of harm in Salvadoran detention
facilities.” Id. at 33. Dr. Boerman repeatedly emphasized that the available
statistics were inherently limited given the current totalitarian regime. See, e.g.,
id. at 267-69 (Tr.). And there is evidence to support that position. President
Bukele reported “zero homicides,” apparently removing “the deaths of alleged
gang members in confrontations with the police.” Id. at 558 (2022 Washington
Office on Latin America Report). Bukele has “dismantl[ed] . . . democratic
institutions” and “has left virtually no independent government bodies that can
serve as a check on the executive branch.” Id. at 442 (2022 Human Rights Watch
Report); see also id. at 505 (2022 State Dep’t Report) (detailing “credible reports” of
“serious problems with the independence of the judiciary” and “serious
restrictions on free expression and media, including censorship and threats to
enforce criminal laws to limit expression”). Bukele has “undermined
transparency and accountability, including by weakening the agency in charge of
ensuring access to public information.” Id. at 442; cf. id. at 559 (2022 Washington
Office on Latin America Report) (“The members of the Institute of Access to Public
15 Information do not fulfill their role of overseeing transparency and publicity since
they are close to the ruling party.”). Bukele has imposed a “gag order” on
reporting on abuses in the prisons, which can result in journalists being jailed for
up to 15 years, and only media “aligned with the administration” are allowed in
prisons. Id. at 454–55 (2022 The Intercept Report); see also id. at 517 (2022 State
Dep’t Report) (asserting that the law “effectively prohibits reporting on gang-
related issues”). Again, given this evidence, the BIA did not sufficiently justify
its conclusion that Dr. Boerman’s lack of complete information was a basis to find
clear error in the IJ’s decision.
Lastly, as to El Salvador’s Human Rights Ombudsman, whom the BIA cites
for the conclusion that the “treatment” of detainees was not “beyond what was
allowed by law,” id. at 34 (citing id. at 509–540 (2022 State Dep’t Report)), the
Ombudsman’s “office itself was . . . denied access to the prisons to investigate . . .
arrests and the conditions,” id. at 278 (Tr.); accord id. at 507, 510 (2022 State Dep’t
Report) (stating the same, and that the Ombudsman was not “an independent
defender of human rights”). Moreover, the “regulations do not exempt from the
definition of torture those sanctions that defeat the object and purpose of the
[CAT],” such as those that are “brutal and highly disproportionate to the
16 penological purpose for which they are imposed.” Galina v. Wilkinson, 988 F.3d
137, 142 (2d Cir. 2021) (footnote and quotation marks omitted); see also Pierre, 502
F.3d at 121 (“[L]ive burial would be torture even if somewhere it were the lawful
sanction for an offense.”).
In sum, remand is warranted here because the BIA gave insufficient
justification for its clear error finding. The BIA’s conclusion that Dr. Boerman’s
testimony is generalized or anecdotal fails to consider that his testimony was
validated by various sources in the record that report intentional and systematic
torture, including by beating and killing suspected gang members in and outside
of prisons, and by starving prisoners and subjecting them to life-threatening
prison conditions. The BIA also did not grapple with evidence that the
government has suppressed public information of its actions.
Because we are remanding, we dismiss as moot Villalta Martinez’s
consolidated petition challenging the subsequent denial of reconsideration. See
Aliyev v. Mukasey, 549 F.3d 111, 119 (2d Cir. 2008) (granting petition for review of
BIA’s final order of removal and dismissing as moot petition for review of BIA’s
denial of reconsideration).
17 For the foregoing reasons, the lead petition for review is GRANTED and the
case is REMANDED to the BIA for further consideration, and the consolidated
petition is DISMISSED as moot. All pending motions and applications are
DENIED and stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court