CA9 on CAT, Honduras: Aguilar-Osorio v. Garland

Aguilar-Osorio v. Garland

"He ... argues ... that he faces the threat of future torture, pointing to the State Department’s Country Report that describes pervasive criminality within Honduran society. Although the IJ declined to receive the Report as an official part of the record because the form in which it was offered did not comply with the rules, the IJ’s decision treated it as part of the record by taking judicial notice of it. Aguilar-Osorio has relied upon the Report in his appeal to the BIA and in his brief to this court. Yet the BIA decision neither took the Report into account nor explained why it was not taking it into account. We therefore do not have an adequate basis on which to evaluate Aguilar-Osorio’s claim of future torture that is based, in part, upon the Report. We cannot independently take judicial notice of a report that is not a part of the record. Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996). The question of how to treat this unusual situation is an issue that the BIA has not addressed and therefore we cannot decide in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (citations omitted) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). We therefore remand the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report.'

[Hats off to Chris Stender!]