Maldonado v. Lynch

Under the Convention Against Torture, an applicant for deferral of removal does not need to show that relocation within the country of removal is impossible to avoid torture, however, the applicant must show that torture is more likely to occur than not if removed.

Roberto Maldonado was deported in 1997, and stripped of his legal residency status after a first-degree burglary conviction. After returning to Mexico, Maldonado was detained by corrupt “Mexican judicial police.” Over the next several months, Maldonado was tortured. Maldonado fled to the United States several times between 2000 and 2007. Each time he was detained, sent back to Mexico, and tortured. In 2008, Maldonado’s 1997 removal order was reinstated, which was then referred to an immigration judge (“IJ”) because of Maldonado’s fear that returning to Mexico would result in torture. Maldonado’s application for deferral of removal under the Convention Against Torture (“CAT”) was denied by the IJ because Maldonado had opportunity to relocate within Mexico, and failed to show that relocating was impossible. The Board of Immigration Appeals (“BIA”) dismissed Maldonado’s appeal, which he then petitioned for review by the Ninth Circuit. Under CAT, the court must consider all evidence relevant to the possibility of future torture, but the burden of proof is on the applicant to show that torture is more likely to occur than not if removed. The panel found that the language in previous case law did not align with § 1208.16(c)(2) or (3) of CAT. BIA case law requires Maldonado to show that internal relocation was impossible, while § 1208.16(c)(2) and (3) require he show the likelihood of tortured if removed. The panel explained that deference is given to BIA interpretations of its own regulations, and that the BIA is not barred from reading its regulations to require internal relocation possibility. But because the case law relied upon by the BIA was no longer controlling, the panel granted the petition for review, and remanded Maldonado’s deferral of removal claim. PETITION GRANTED and REMANDED.