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Perez v. Sessions

United States Court of Appeals, Seventh Circuit

May 2, 2018

Francisco Javier Perez, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued December 13, 2017

          Petition for Review of an Order of the Board of Immigration Appeals. No. A059-606-737.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.


         Francisco Javier Perez, a Honduran citizen, petitions for review of the denial of his application for deferral of removal under Article 3 of the Convention Against Torture. The Board of Immigration Appeals dismissed his appeal from an immigration judge's decision denying his application and ordering his removal to Honduras. In the Board's view, the IJ correctly decided that Perez had not shown that, if removed to Honduras, he was more likely than not to be tortured with the acquiescence of a public official by a street gang. In this court, Perez argues that the immigration service erred by failing to make factual findings about whether he would have been tortured had he not narrowly escaped the gang's violent recruitment efforts years earlier and that the Board improperly did not consider whether, if removed to Honduras, he could live safely and openly there as an unwilling recruit of this gang. We conclude that the Board erred by truncating the crucial factual inquiry about Perez's risk of torture if he is returned to Honduras and by asking the wrong question with respect to internal relocation. We therefore grant the petition for review and remand to the Board for further proceedings.


         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 8 U.S.C. § 1101(a)(43)(A). The IJ sustained the charge and noted that Perez was ineligible for asylum and withholding of removal because his aggravated-felony conviction was a "particularly serious crime" under 8 U.S.C. §§ 1158(b)(2)(A)(ii), (B)(i), 1231(b)(3)(B)(ii).

         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 8 C.F.R. § 1208.17. Perez accordingly sought deferral. In his application, he stated that his friend was "killed because he was thought to be part of [a] street gang, " and that he received threats from MS-13, who told him that "if I did not join them I would be killed." He also expressed the belief, based on his encounter with MS-13 in 2010 and the rampant gang violence in Honduras, that he would be harmed if he were returned to that country. At his hearing, he emphasized his fear of the gang violence throughout Honduras and reiterated his conviction that he would be pressured (via threats) to join MS-13 if removed there. Various family members also testified at the hearing and expressed their fear that Perez would be killed if he were removed to Honduras and refused to join a gang. Perez also submitted various news articles documenting the significant gang violence in Honduras, and he filed letters of support from family members.

         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 ...

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