H.H. v. Garland, 52 F.4th 8

Petitioner H.H., a dual El Salvador/Honduras national, joined MS-13 as a youth, pleaded guilty to RICO, and later cooperated with U.S. authorities, prompting an enduring "luz verde" death order by MS-13.
After release from prison and ICE custody, H.H. sought deferral of removal under the Convention Against Torture (CAT) as to both El Salvador and Honduras.
The IJ granted CAT relief for El Salvador but denied it for Honduras, applying a "willful acceptance" standard and finding no likely government consent or acquiescence to torture there.
The BIA affirmed the IJ as to Honduras but did not explicitly correct the IJ's legal standard; it also summarily rejected H.H.'s de facto state-actor theory regarding MS-13 and declined to reach whether Honduran officials themselves would likely torture him.
The First Circuit held that the agency erred: the CAT acquiescence inquiry permits willful blindness (awareness), the BIA applied the wrong standard of review, and the BIA failed to address the "by or at the instigation of" and de facto state-actor arguments; the Court vacated and remanded for further proceedings.

Issue	H.H.'s Argument	Government's Argument	Held
Proper legal standard for "consent or acquiescence" under CAT	Matter of S-V-'s "willful acceptance" is too stringent; willful blindness/awareness suffices	Agency relied on Matter of S-V- standard (willful acceptance)	Court: "willful acceptance" is incorrect; "awareness"/willful blindness suffices under CAT and related implementing history
Standard of review the BIA must apply to IJ's legal conclusion about acquiescence	BIA should review de novo whether facts constitute acquiescence	BIA treated the IJ's statement as factual and reviewed for clear error	Court: legal question; BIA erred by applying clear-error review rather than de novo review
Whether agency addressed "by or at the instigation of" (direct state action) theory	H.H.: IJ and BIA failed to address whether Honduran officials would directly torture or instigate torture	Government: BIA declined to reach the issue because it found no clear error on related findings	Court: BIA improperly failed to address this distinct theory and must consider it on remand
Whether MS-13 is a de facto state actor ("official capacity")	H.H.: MS-13's control and police-gang entanglement could render it a state actor	Government: agency implicitly rejected the theory; BIA summary dismissal sufficed	Court: BIA provided no reasoning and misapplied review; remand required for meaningful analysis

Romilus v. Ashcroft, 385 F.3d 1 (1st Cir.) (standard for CAT eligibility)
Elien v. Ashcroft, 364 F.3d 392 (1st Cir.) (torture definition framework under BIA precedent)
Succar v. Ashcroft, 394 F.3d 8 (1st Cir.) (refusing deference where regulation conflicts with Congressional intent)
Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.) (willful blindness satisfies acquiescence)
Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.) (two-step awareness then breach framework)
Perez-Trujillo v. Garland, 3 F.4th 10 (1st Cir.) (acquiescence includes willful blindness)
DeCarvalho v. Garland, 18 F.4th 66 (1st Cir.) (distinguishing factual findings from legal questions; standard of review)
Scarlett v. Barr, 957 F.3d 316 (2d Cir.) (applying two-step awareness-plus-breach analysis and remanding)
De La Rosa v. Holder, 598 F.3d 103 (2d Cir.) (government preventative efforts may not negate acquiescence as a matter of law)
Jarvis v. Vill. Gun Shop, Inc., 805 F.3d 1 (1st Cir.) (state-action/under-color-of-law framework)