U.S. Department of tlusticc Executive Office 1hr Immigration Review {

Board q Jmmigration Appeals OJ/lee
Bates, Brian Keith Reina & Bates 123 Northpoint Dr. Suite 190 Houston, TX 77060

OHS/ICE Office of Chief Counsel .. HOO 126 Northpoint Drive, Suite 2020 HOUSTON, TX 77060

Name: Date of this notice: 12/1/2017

Enclosed is n copy of the Board's decision and order in the abovc�refercnced case. Sincerely,

Donna Carr Chief Clerk Enclosure Panel Members: Cole 1 Patricia A. Wendtland, Linda S. Pauley t Roger

Userteam: Docket

Decision of the Board of Immigration Appeals

U.S:'Depat1tment of Justice Executive Office fo1i'lmmigqltion Review Falls Church, Virginia 22041

File:

- Houston, TX

Date:

Inre

IN ASYLUM AND/OR WITHHOLDING PROCEEDINGS APPEAL ON BEHALF OF APPLICANT:

Brian K. Bates, Esquire

APPLICATION: Convention Against Torture The applicant, a native and citizen of Nicaragua, appeals from an Immigration Judge's decision, dated June 8, 2017, denying his application for deferral of removal under the Convention Against Torture (Convention), 8 C.F.R. § 1208.17. The Department of Homeland Security (DHS) has not responded to the appeal. The appeal will be sustained, the applicant will be granted deferral under the Convention, and the record will be remanded for any necessary background checks. The applicant concedes removability as charged and does not challenge the Immigration Judge's determination that he is ineligible for asylum and withholding of removal by virtue of his criminal record (IJ at 1; Exhs. 7, 17). Accordingly, the only issue on appeal is whether . the applicant has carried his burden of proving that he qualifies for deferral of removal under the Convention. See Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) ("A conviction of an aggravated felony has no effect on [Convention Against Torture] eligibility[.]"). 1 The Immigration Judge found the applicant's father credible, and the following facts are undisputed (IJ at 2-3). The father testified that he had been a Nicaraguan Contra, engaged in combat with the Sandinistas, from 1979-1985 (Tr. at 39-40). The applicant and his family entered the United States as refugees in 1990 (IJ at 3; Tr. at 40-41; Exhs. 5, 8). In 2000, the applicant was ordered removed for an aggravated felony controlled substance violation (IJ at 1; Exhs. 5, 17). During the initial removal proceedings, the applicant and bis mother testified that he would be harmed because he is the son of a Contra (Exh. 17). The initial Immigration Judge found that harm speculative and ordered him removed; he was physically removed later that year (IJ at 1; Exhs. 5, 17). While in detention, he befriended another detainee with a cousin in the police force; they were deported together and the friend knew the applicant was the son of a Contra (IJ at 3; Tr. at 62-63).

The Immigration Judge properly recognized that the applicant's criminal history was irrelevant to his eligibility for protection under the Convention Against Torture (Tr. at 100-03). The DHS's combative tone with the Immigration Judge on this point was inappropriate. 1

Upon arriving in Nicaragua, the applicant was immediately detained by the authorities (D at 3-4; Tr. at 63). The applicant was taken to an interrogation room with a chair stained with

blood and smelling of human waste (IJ at 3-S; Tr, at 67-68). He was forced to strip naked, was slapped, restrained, and interrogated about his father (IJ at 3-5; Tr. at 63-70). While he was naked and protesting any knowledge ofhis father, the authorities threatened to take a shoelace and tie his testicles to his heels, and then kick his leg (IJ at 3-S; Tr. at 69-73). The applicant begged them for mercy (Tr. at 73). When he was transported to a new location, the guard permitted him to escape; the applicant used money hidden in his shoe to take a taxi to a hotel and call the other deported detainee (Tr. at 76-82). The other detainee appeared a day or so later with his police officer cousin; they attacked the applicant, slashing his hand with a knife while accusing him of being a Contra supporter (IJ at 3; Tr. at 84-89). After obtaining medical care, the applicant called his father who told him not to go to the police and sent him money to escape back to the United States (Tr. at 8S-89). The applicant has been in the United States without inspection since 2000 (IJ at 2; Exh. 8). The Immigration Judge found the applicant's testimony credible, except as to whether he had, in 2016, told anyone in immigration detention that he was the son ofa Contra (D at 3-4). To qualify for deferral of removal, the applicant must demonstrate that it is more likely than not that he will be tortured in Nicaragua. See 8 C.F.R. § 1208.16(c)(2); Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (Sth Cir. 2017) ("Thus relief under the [Convention] requires a two part analysis-first, is it more likely than not that the alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture." (quoting Garcia v. Holder, 756 F.3d 885,891 (5th Cir. 2014))). The Immigration Judge denied the application because he found that the applicant had not established that he was more likely than not to be tortured because each step in the chain of events was not more likely than not to occur (IJ at 4-6). The Immigration Judge found that the threat to tie the applicant's testicles to his heels was severe emotional distress constituting past torture (IJ at 4-S). However, he concluded that there was not sufficient evidence that children of Contras were more likely than not to suffer torture, especially given the long passage of time since the applicant was in the country (IJ at 5-6)~ The Immigration Judge's finding that the applicant suffered past torture is not clearly erroneous. See Matter ofJ-Y-C-, 24 l&N Dec. 260, 263 (BIA 2007) (citing United States v. Nat'/ Ass 'n ofReal Estate Btls., 339 U.S. 48S, 49S (1950) (explaining that a factual finding is not "clearly erroneous" merely because there are two permissible views of the evidence)). While we acknowledge the Immigration Judge reasoning, we disagree that the applicant has not met his burden of proof. See Matter ofZ-Z-O-, 26 I&N Dec. 586 (BIA 2015).

In assessing a claim for protection under the Convention, all evidence relevant to the possibility of future· torture is considered, including evidence of past torture inflicted upon the applicant; evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and any other relevant information regarding conditions in the country of removal. See 8 C.F.R. § 1208.16(c)(3). 2

I'·

Here, we place emphasis upon two factors: first, the applicant suffered past torture, and second, the country conditions evidence shows that the Sandinistas have increased their power and presence in the Nicaraguan government and continue to attack former Contras. While past torture does not give rise to a presumption of future torture, it is a factor for consideration, particularly in light of the country conditions evidence. The applicant bas experienced past torture (JJ at 4-S). 8 C.F.R. § 1208.16(c)(3). In 2000, when the applicant was initially in removal proceedings, he alleged he would be harmed as the son of a Contra (Exh. 17). The Immigration Judge reasonably found this harm speculative, given it had been IS Y,ears since the .end of the war (Exh. 17). However, the applicant was taken into custody at the Nicaraguan airport and tortured because his father was a Contra (JJ at 3-5; Tr. at 63-73). Thus, despite the long passage of time, the applicant was still of interest to the authorities in his country. The applicant's name is nearly identical to bis father's, and it is reasonable to infer that any travel document is likely to carry enough information to indicate to the government authorities who the applicant is, and any prior encounters. We conclude that the applicanf s past torture, even after a lapse of time after the war, is a significant indicator that be may be of interest to the authorities again. The applicant is likely to remain of interest to the authorities given the 2016 Department of State's country conditions evidence shows that the Sandinistas have resumed power since he was last deported, and the authorities are increasingly political (Exh. 10). See 8 C.F.R. § 1003.l(d)(3)(iv) (limiting our appellate fact-finding authority to "taking administrative notice of commonly known facts such as the contents of official documents"); Matter ofS-H-, 23 I&N 462, 465-66 (BIA 2002). In 2006, Daniel Ortega Saavedra was elected president and is a member of the political party representing the Sandinistas; he remains in power (Exh; 10). Furthermore, the most recent country report indicates that the Nicaraguan National Police (NNP) have been heavily politicized: President Ortega had politicized the NNP and [this] led many to question its professionaHsm•... For instance ... [t]he media also highlighted the NNP's use of an emblem with President Ortega and Sandino's shadow as part of the officer's uniform, and the use of the (Sandinista party] red and black party flag painted on select police stations or at police celebrations. . . . [T]he press alleged the ~ continued to provide preferential treatment for progovernment and [Sandinista party] rallies. [...] · President Ortega's administration blurred distinctio~. between the [Sandini~ arty] and the government through its use of [Sandinista ~)-led · ·: [s~ctal p ] The government administered subsidized food, housing, vaccmations, pro~ ~linics and other benefits directly through either the [social pro~s), ::~ reportedl; often coerced citizens into [Sandinista party) membership and denied services to opposition members. (Exh. 10 at 10, 22-23).

3

.- . . . While the Sandinista-led government would be of conce~ the danger tips into more likely than not when we consider that the 2016 Department of State Country Report identified multiple examples of former Contras being killed recently, and the absence of any investigation into their deaths (Exh. 10 at 6 (2014 and 2015 killings), 10 (2013 killing by military), 11 (2012 killing by NNP). These recent killings, together with the applicant's past torture, and his father's credible testimony that Contras and their family members are not safe in Nicaragua, and in light of the lack of any opposition by DHS, leads us to the conclusion that the applicant has met his burden of proof (IJ at 2-5; Tr. at 39-50, 63-73; Exh. 10). Iruegas-Valdez v. Yates, 846 F.3d at 812; Matter ofZ-Z-O-, 26 I&N Dec. 586. For the reasons stated above, the applicant has demonstrated eligibility for deferral of removal under the Convention Against Torture. The record will be remanded for the requisite background checks. ORDER: The applicant's appeal is sustained. FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the OHS the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h).

FOR THE BOARD

Board Member Roger A. Pauley respectfully dissents and would affirm the denial of relief. The respondent is not a former Contra and there is insufficient evidence to show a more that 50% chance of torture in Nicaragua.

4

BIAu 12-1-17_Redacted.pdf

The other detainee appeared a day or so later with his police officer cousin; they attacked the. applicant, slashing his hand with a knife while accusing him of being a Contra supporter. (IJ at 3; Tr. at 84-89). After obtaining medical care, the applicant called his father who told him. not to go to the police and sent him money to ...

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