80 F.4th 61
1st Cir.2023Background
- Petitioner Darwin Murillo Morocho, an Ecuadorian, stabbed an alleged victim in 2017, was charged with attempted murder, and fled to the U.S. in 2018 after threats from the victim's powerful family.
- Murillo's uncle received threats, obtained a police "stay away" order, and relocated; no further threats were reported after the order.
- DHS initiated removal; Murillo conceded removability and sought only deferral of removal under the Convention Against Torture (CAT) because an Interpol Red Notice blocked other relief.
- The IJ denied CAT relief based on an adverse credibility finding and, alternatively, on the merits—concluding Murillo had not shown it was more likely than not that he would be tortured with the consent or acquiescence of Ecuadorian officials.
- The BIA adopted the IJ's merits analysis (bypassing the adverse credibility finding), emphasizing that the victim's family was unlikely to find or successfully target Murillo and that Ecuadorian authorities had offered protection.
- The First Circuit held the IJ/BIA applied the incorrect legal test for the "consent or acquiescence" element as to prison violence, vacated that portion of the denial, and remanded for further proceedings; it upheld the agency's factual findings concerning the victim's family threat.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA applied the correct standard of review to the IJ's legal conclusions | Murillo: BIA misapplied the legal standard governing consent/acquiescence | Govt: Agency applied appropriate review/analysis | Court: Did not need to decide abstract standard-of-review dispute because IJ/BIA applied the wrong legal test on acquiescence; remand required for that issue |
| Proper legal test for "consent or acquiescence" as to private actors in prisons | Murillo: Agency failed to apply the correct test (awareness + breach of legal duty; includes willful blindness and possible acquiescence by lower-level officials) | Govt: Agency adequately considered governmental efforts and need not find acquiescence | Court: IJ/BIA failed to articulate/apply the correct acquiescence standard; remand the prison-violence claim for reconsideration under proper legal test |
| Whether agency's factual findings re victim's family's threat are supported by substantial evidence | Murillo: The family is powerful and likely to find and harm him despite orders | Govt: Record shows family did not harm him after stay-away order and courts can protect him; substantial evidence supports agency finding | Court: Upheld agency's factual findings; CAT claim premised on family threat fails |
| Whether IJ erred by denying opportunity to provide further corroboration or letting adverse credibility taint merits | Murillo: IJ should have allowed more corroboration and merits were infected by credibility ruling | Govt: IJ explicitly assumed testimony credible for merits and still found claim insufficient; no error | Court: Declined to reach corroboration claim because, even crediting testimony, agency's merits ruling on family-based claim is supported; no reversible error on credibility bleed |
Key Cases Cited
- H.H. v. Garland, 52 F.4th 8 (1st Cir. 2022) (explains CAT burden and acquiescence framework)
- Elien v. Ashcroft, 364 F.3d 392 (1st Cir. 2004) (defines elements of torture under CAT)
- DeCarvalho v. Garland, 18 F.4th 66 (1st Cir. 2021) (distinguishes factual findings from legal application questions)
- Sanabria Morales v. Barr, 967 F.3d 15 (1st Cir. 2020) (reviews BIA adoption of IJ rulings and standards of review)
- Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019) (on mixed fact-law issues in removal/CAT context)
- Scarlett v. Barr, 957 F.3d 316 (2d Cir. 2020) (vacated in part for agency omissions on acquiescence analysis)
- De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010) (discusses government efforts vis-à-vis acquiescence and lower-level complicity)
- Garland v. Ming Dai, 141 S. Ct. 1669 (2021) (agency may deem credible evidence unpersuasive for burden-of-proof purposes)
- Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (credible testimony may be insufficient for relief)
- Castañeda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007) (remand is appropriate when agency rested decision on misunderstanding of legal elements)