The Ninth Circuit has again emphasized that the agency must calculate the likelihood of future torture for Convention Against Torture purposes in the aggregate. As such, when a petitioner posits multiple potential sources of torture, “the relevant inquiry is whether the total probability that the applicant will be tortured—considering all potential sources of and reasons for torture—exceeds 50 percent.”
“The BIA considered his two separate theories of torture as a single hypothetical chain of events and denied his CAT claim because the probability of that hypothetical chain occurring was not high enough. But the BIA should not have considered his claim as a single hypothetical chain of events, when—as the BIA itself acknowledged—he posited two ‘alternative’ and distinct theories for why he would be tortured if he were removed to El Salvador. By requiring Velasquez-Samayoa to show that every step in two hypothetical chains was more likely than not to occur, the BIA increased his CAT burden. Velasquez-Samayoa was not required to show that he was more likely than not to be tortured under both theories, nor was he required to show that he was more likely than not to be tortured under any single theory considered individually. The law requires him to show only that taking into account all possible sources of torture, he is more likely than not to be tortured. Thus, the BIA should have assessed whether aggregating the risks posed by Velasquez-Samayoa’s two theories results in a probability greater than 50 percent that he will be tortured.”
The Court also found error in the agency’s treatment of expert testimony. “The BIA affirmed the IJ’s decision that Dr. Boerman was a credible witness. Yet the BIA proceeded to reject key pieces of Dr. Boerman’s testimony regarding why Velasquez Samayoa faced a high risk of torture, agreeing with the IJ that the country conditions evidence did not corroborate the expert’s testimony that Velasquez-Samayoa will be perceived as a gang leader based on his age and other characteristics. The mere fact that Dr. Boerman’s testimony is not corroborated by country conditions evidence is not a valid reason for rejecting that testimony— expert testimony can itself provide evidence of country conditions.”
The full text of Velasquez-Samayoa v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/06/24/21-70093.pdf
An amended opinion can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/09/23/21-70093.pdf