49 F.4th 1149
9th Cir.2022Background:
- Velasquez‑Samayoa, a lawful permanent resident who lived in the U.S. most of his life, has prior membership in the White Fence gang and prominent "WF" neck tattoos.
- Convicted of multiple felonies in 1998, served prison time, was attacked in prison, and later expressed renunciation of gang life.
- DHS initiated removal proceedings based on his convictions; his only available relief was deferral of removal under the Convention Against Torture (CAT).
- He testified (and an expert, Dr. Boerman, testified credibly) that if returned to El Salvador he would likely be identified as a gang member and face torture or death either at the hands of Salvadoran officials or rival gangs.
- The IJ and BIA found the witnesses credible but denied CAT relief after applying a "hypothetical chain of events" analysis; the Ninth Circuit held the BIA erred by failing to assess the aggregate risk across multiple theories and by improperly discounting expert testimony.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA must assess aggregate risk from multiple sources | Velasquez‑Samayoa: BIA should aggregate probabilities from all theories to determine if overall risk >50% | Government/BIA: BIA treated theories as chains and required each link be more likely than not | Court: BIA erred; when multiple distinct sources alleged, agency must assess aggregate probability that torture will occur (>50%) |
| Whether J‑F‑F‑ chain‑of‑events rule applies to alternative theories | Velasquez‑Samayoa: J‑F‑F‑ applies to single chains only; cannot combine separate alternative theories into one chain | BIA: Applied J‑F‑F‑ / Medina‑Rodriguez, requiring each link in the claimed chain(s) be more likely than not | Court: J‑F‑F‑ is for single hypothetical chains; misapplied here—cannot force petitioner to prove every link across distinct alternative theories |
| Whether Agency improperly discounted credible expert testimony for lack of corroboration | Velasquez‑Samayoa: IJ/BIA credited Dr. Boerman but then rejected key opinions because country reports did not corroborate them | BIA: Country‑conditions evidence did not corroborate expert’s view (e.g., that petitioner would be seen as a gang leader given his age) | Court: BIA erred; cannot reject credited expert solely for lack of corroboration and did not point to other persuasive contradictory evidence; remand to properly consider the expert testimony |
Key Cases Cited
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (aggregate‑risk standard for CAT claims involving multiple sources)
- Quijada‑Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015) (CAT claims assessed by aggregate risk, not separate divisible claims)
- Medina‑Rodriguez v. Barr, 979 F.3d 738 (9th Cir. 2020) (application of J‑F‑F‑ to a theory that relied on sequential events)
- Castillo v. Barr, 980 F.3d 1278 (9th Cir. 2020) (agency must state reasons if rejecting expert testimony)
- Aguilar‑Ramos v. Holder, 594 F.3d 701 (9th Cir. 2010) (regulations require consideration of all evidence relevant to future torture)
- Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (agency may reject testimony when outweighed by more persuasive evidence)