FRANCISCO JAVIER PEREZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 17-1369
United States Court of Appeals, Seventh Circuit
Argued December 13, 2017 — Decided May 2, 2018
In the
United States Court of Appeals
For the Seventh Circuit
No. 17-1369
FRANCISCO JAVIER PEREZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A059-606-737.
ARGUED DECEMBER 13, 2017 — DECIDED MAY 2, 2018
Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.
I
Perez grew up in Danli, Honduras, where the MS-13 street gang tried to recruit him as a member. In 2003, when Perez was 14, MS-13 gave him two weeks to decide whether to join their ranks or “suffer the consequences.” Instead of joining MS-13, Perez moved in with his grandmother in another part of Danli. Later that year, MS-13 members confronted Perez on his way to school about joining them. Perez responded by running away and then dropping out of school.
Two or three years later, Perez witnessed the murder of a friend, who, Perez suspected, was slain to “settl[e] the score” involving a dispute among local gangs. Perez thought that his friend was shot to death because the friend’s brother belonged to a rival gang of MS-13. The murder did not lead to any criminal charges, because the shooter’s family threatened Perez and others not to testify about it. Two men backed up the threats by beating Perez. Later an unidentified person fired shots in the direction of Perez and his friends, but they fortunately were not hit. Perez reported these events to the police, but the authorities did nothing in response.
In 2008 Perez was admitted to the United States as a lawful permanent resident. He joined his stepfather and sister in Indiana, where he had several factory jobs. He returned to Honduras in 2010 for a two-week vacation. While in Danli, he attended a neighborhood festival. There he was recognized by the same MS-13 members who had tried to recruit him in 2003; he evaded them by quickly running to his grandmother’s house. Scared by this encounter, Perez cut short his vacation and returned to the United States.
Three years later and back in Indiana, Perez pleaded guilty to engaging in sexual misconduct with a minor in violation of IND. CODE § 35-42-4-9(a), and was sentenced to six years’ imprisonment. After his conviction, the Department of Homeland Security took Perez into custody and served him with a Notice to Appear in removal proceedings. DHS asserted that Perez was removable because he had committed “sexual abuse of a minor,” an aggravated felony, see
Perez’s disqualification for other forms of immigration relief did not, however, foreclose action under the CAT, which permits deferral of removal even for those who are ineligible for asylum or withholding. See
The IJ denied Perez’s application for deferral of removal. Although he found Perez’s testimony credible, the IJ decided that he had not met his burden to show that if he were returned to Honduras, he would more likely than not be tortured. In support of this conclusion, the IJ emphasized that Perez had not previously been tortured by any gangs because he had “fortunately … evade[d] them or run away” and that Perez had failed to connect the violence in Honduras to his personal circumstances. The IJ also determined that Perez had not shown that he could not relocate safely within Honduras.
Perez appealed to the Board, arguing that the IJ wrongly decided that his submissions and testimony fell short of the showing he needed to make for deferral of removal. The Board upheld the IJ’s decision, pointing out that Perez had “not been tortured in the past by the gangs he fears” and concluding that his “fear of future torture is speculative, and not based on a specific current threat to himself.” The Board also agreed with the IJ that Perez had not demonstrated that “if he remains fearful of those who harmed or threatened him in the past, he would be unable to relocate in Honduras to avoid those threats.” The Board ultimately concluded that Perez was not entitled to deferral pursuant to the CAT.
II
An applicant seeking to defer removal under the Convention Against Torture has the burden of demonstrating that “it is more likely than not that [he or she] … would be tortured” if sent to “the proposed country of removal.”
When all is said and done, the CAT requires a prediction about what will happen if the applicant for relief is returned to the proposed country of removal.
A
Perez’s key argument is that the IJ and then the Board cut off their inquiry prematurely, after they noted that Perez had not actually been tortured in the past. He freely admits the fact that MS-13 did not manage to torture him, but he argues that the relevant inquiry is more complex. There are many gradations, he contends, between completed acts of torture (warranting relief) and mere harassment (not warranting relief). For example, if the only reason why someone is not shot is because she was lucky and dodged a bullet, that person rationally would believe that the shooter was still out to kill her and might have better aim the next time. On the other hand, if one simply receives a threatening note with no other action, it would be hard to predict future violence on that basis alone (perhaps depending on what the note said). Perez asserts that his case presents a situation that lies at or near the “actual torture” end of the spectrum; it would have been completed torture if luck and fleet feet had not averted disaster.
With this construct in mind, Perez argues that the immigration service failed to make sufficient findings about whether he would have been tortured in 2003 if he had not escaped MS-13’s recruitment efforts, or in 2010 had he not been able to flee from the gang members. He suggests that evidence of a narrow escape from torture is as good as evidence of actual past torture for purposes of
Perez overstates his case, but at its core his argument has more merit than the Board thought. We do not need to, and do not, literally equate a narrow escape from torture with actual torture, as such an equation would not be consistent with the definition of torture under Article 1.1 of the CAT1 or the implementing regulations found in
indicates the methods likely to be used; it identifies who the perpetrator(s) will be; and it sheds light on the state of mind of the potential torturer.
Perez should have been given the opportunity to show that, at MS-13’s hands, in the earlier situations he would have experienced severe physical or mental pain or suffering, inflicted for a particular purpose,
B
Perez also argues that the Board erred by failing to consider whether, after relocation, he would have to hide the fact that he has resisted MS-13. He acknowledges that the Board did evaluate whether he “would be able to avoid the particular MS-13 members he had previously confronted.” (Emphasis added.) Perez contends, however, that this was not enough, and that our case law has consistently required “the Board [to] ask whether [a CAT applicant] could live safely after ‘openly’ admitting the qualities that exposed him to danger.” See Velasquez-Banegas v. Lynch, 846 F.3d 258, 262–63 (7th Cir. 2017); N.L.A. v. Holder, 744 F.3d 425, 442 (7th Cir. 2014) (in context of asylum and withholding of removal); Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011). As evidence of the danger of MS-13 to him throughout Honduras, he points to his mother’s letter, his testimony, and that of his wife, sister, and cousin, who testified about gangs’ extensive reach in Honduras. These witnesses all testified about their fear that he would be killed in Honduras no matter where he settled.
Perez is correct that the Board erred by examining only the threat from the same MS-13 gang members who previously confronted him and failing to consider his evidence that MS-13 (whether through the same or different representatives) would endanger him in the areas of Honduras outside of Danli. The Board said only that it was “not persuade[d]” that “if he remains fearful of those who harmed or threatened him in the past, he would be unable to relocate in Honduras to avoid those threats.” As a result, the Board did not comply with
Although we theoretically could look to the IJ’s opinion to fill in this important omission from the Board, see Orellana-Arias, 865 F.3d at 489, we find that option unsatisfactory here. The IJ made a perfunctory statement to the effect that “[t]he record does not indicate that the reach of these gangs is absolute throughout Honduras or that they would learn of [Perez’s] whereabouts were he to return,” but he offered no explanation for this conclusion and mistakenly said that the country of return would be Mexico, not Honduras. Under the circumstances, this is not enough to fill the gap in the Board’s reasoning. We conclude that the Board must take another look at Perez’s evidence that relocation is not an option for him, because MS-13 members outside of Danli would torture him in Honduras.
III
The IJ and the Board failed to make an adequate inquiry into Perez’s near-escapes from MS-13’s clutches and thus failed properly to include this factor in the mix