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Immigration Law

Unpub. CA2 CAT Remand (El Salvador)

Giron v. Garland

"The agency did not adequately explain its denial of CAT relief. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“[W]e require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.”). The agency expressed “considerable concern” that Giron would face harm in El Salvador, but nevertheless denied CAT relief because the government had “declared war on the gangs” and taken steps to detain and kill suspected gang members. However, the agency failed to consider and explain the impact of evidence that the Salvadoran government’s efforts in the “war on the gangs” had not been successful, such that gang members operate with impunity and security forces commit extrajudicial killings of suspected gang members, both of which pose threats to Giron. See De La Rosa v. Holder, 598 F.3d 103, 109–10 (2d Cir. 2010) (remanding for agency to further address government acquiescence when evidence indicated that government was unlikely to be able to stop torture despite aid from some officials). The 2016 State Department country report provides that impunity persisted in El Salvador despite government efforts to prosecute corrupt officials, that authorities were not able to control gangs in many neighborhoods, and that authorities could not protect freedom of movement due to gang activity. A United Nations report states that corruption and gang infiltration of the police and military lead to high levels of gang impunity while those security forces who target gang members subject them to excessive force and extrajudicial killings. Giron’s expert reported that the Salvadoran government’s declaration of a war on gangs resulted in increased gang violence. While the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (citation omitted), the agency has a duty to consider all material evidence in the record, Yan Chen v. Gonzales, 417 F.3d 268, 275 (2d Cir. 2005); see also Poradisova, 420 F.3d at 77. Given the agency’s failure to discuss the country conditions evidence indicating that the Salvadoran government’s effort to control gang violence has been unsuccessful and that gangs continue to operate with impunity, we grant the petition as to Giron’s CAT claim. See 8 C.F.R. § 1208.16(c); Yan Chen, 417 F.3d at 275; Poradisova, 420 F.3d at 77. For the foregoing reasons, the petition for review is DENIED in part and GRANTED in part and the case is REMANDED to the BIA." - Kolbe, IJ A216 333 740

[Hats off to appointed pro bono publico counsel Vilia B. Hayes, Dustin P. Smith, Carl W. Mills, Hughes Hubbard & Reed LLP!]