Background
Nelson Armando Torres, a citizen of El Salvador, sought deferral of removal under the Convention Against Torture (CAT). He argued that Mexican gang tattoos and his status as a criminal deportee would expose him to torture from two sources after return: rival gangs and corrupt police or death squads.
An immigration judge and the Board of Immigration Appeals rejected the claim. They found the feared chain of events too speculative and concluded that Torres had not shown torture was more likely than not. He petitioned the Ninth Circuit, arguing that the agency failed to combine the risks from all potential sources as CAT doctrine requires.
The Court’s Holding
A divided panel denied the petition in a nonprecedential memorandum. The majority read the agency decisions as separately considering gang violence, police violence, and generalized crime before evaluating their combined effect. It found substantial evidence for the conclusion that Torres’s tattoos were not conspicuous, their gang meaning was uncertain, and the record did not compel a finding that either gangs or officers would discover and act on them.
The majority also held that the agency need not discuss every item of evidence so long as its decision shows reasoned consideration. General country-condition evidence did not establish the individualized probability CAT requires. The panel denied the stay motions and lifted the temporary stay of removal.
Judge Mendoza dissented. He believed the immigration judge improperly collapsed two independent threats into a single hypothetical chain by repeatedly referring to a gang member or officer as the same actor. In his view, the agency had to assess each theory independently and then add the probabilities before deciding whether aggregate risk exceeded 50 percent.
Key Takeaways
- CAT applicants must show an individualized, greater-than-50-percent likelihood of torture, not merely dangerous country conditions.
- The agency must consider all potential sources of torture in the aggregate.
- Specific evidence about tattoo visibility, identification, screening practices, and likely perpetrators can determine the outcome.
- A reviewing court will uphold agency factfinding unless the record compels the opposite result.
- The dissent illustrates how wording that merges separate perpetrators can create an aggregate-risk challenge.
Why It Matters
For California immigration lawyers, the memorandum underscores the need to present gang and police threats as distinct factual pathways before expressly calculating their combined risk. Country reports should be tied tightly to the client’s markings, history, arrival process, and likely encounters.
The split also warns adjudicators to write clearly. Even where all evidence is considered, language suggesting that independent threats were collapsed into one sequence may invite remand arguments.
Read the full opinion (PDF) · Court docket