Velasquez-Samayoa v. Merrick Garland

To prevail on a deferral of removal under the CAT, a plaintiff must “establish that it is more likely than not that he . . . would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (providing the standard for withholding of removal under the CAT); see id. §1208.17(a) (providing the standard for deferral of removal under the CAT). To qualify for CAT protection, an applicant must “show only a chance greater than fifty percent that he will be tortured if removed.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004)).

Velasquez-Samayoa appealed a decision from the Board of Immigration Appeals (“BIA”) which denied his protection under the Convention Against Torture (“CAT”) and issued an order for his removal.  Velasquez-Samayoa assigned error to the CAT analysis and argued that it, “failed to consider his aggregate risk of torture” and BIA erred by disregarding expert testimony.  To prevail on a deferral of removal under the CAT, a plaintiff must “establish that it is more likely than not that he . . . would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (providing the standard for withholding of removal under the CAT); see id. §1208.17(a) (providing the standard for deferral of removal under the CAT). To qualify for CAT protection, an applicant must “show only a chance greater than fifty percent that he will be tortured if removed.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004)).  The Court concluded that Velasquez-Samayoa established he might be tortured upon his removal by providing evidence to support his claim that he would be identified as a gang member by officials and by rival gangs.  Additionally, the BIA improperly rejected expert testimony that explained why Velasquez-Samayoa faced a high risk of torture.  Granted and remanded.