Does CECOT Justify CAT? Part 2

Second Circuit says "Yes"; Fourth says "No"

Last week, the Second Circuit looked favorably on the theory that the threat of imprisonment in El Salvador's notorious CECOT prison merits protection under the Convention Against Torture (CAT). I ended that post saying "we can expect a decision from the Board of Immigration Appeals (BIA) on whether being sent to CECOT constitutes torture."

This week, in two new cases, we have our answer. The BIA says that Bukele's government is not torturing people, and any Immigration Judge (IJ) who says otherwise is just plain wrong.

In both cases:

• The IJ granted protection under CAT, finding that the petitioner would likely be detained by the Salvadoran government, and that the detention would likely result in his torture.

• The BIA overruled the IJ and denied the protection, finding that the IJ committed "clear error".

Second Circuit

In New York, meet Jose Saul Villalta Martinez. Like Salinas last week, Villalta's expert testified that he "would more likely than not be subject to imprisonment under the state of exception."

As with Salinas, the Second Circuit reviewed Villalta's expert's litany of atrocities committed within the Salvadoran detention system. Once again I'll skip their grisly review of "documented systematic massive torture and in-custody killings", and instead refer readers to the full opinion.

In light of the evidence, the Second Circuit in a summary order overruled:

[R]emand is warranted here because the BIA gave insufficient justification for its clear error finding. The BIA's conclusion that Dr. Boerman's testimony is generalized or anecdotal fails to consider that his testimony was validated by various sources in the record that report intentional and systematic torture, including by beating and killing suspected gang members in and outside of prisons, and by starving prisoners and subjecting them to life-threatening prison conditions. The BIA also did not grapple with evidence that the government has suppressed public information of its actions.

As with Salinas, the Second Circuit remanded Villalta's case to the BIA for reconsideration.

https://scholar.google.com/scholar_case?case=15439046439652534951

Fourth Circuit

In the Fourth Circuit, Jonathan Alexander Colorado Navarro found a more hostile court.

Colorado is a less sympathetic defendant than either Villalta or Salinas. He initially misrepresented his gang history, and later confessed to having been involved in three murders in El Salvador.

Misdeeds aside, the issues are identical to those raised by Villalta and Salinas: if he were returned to El Salvador, would Colorado be arrested, and would his detention "more likely than not" result in torture?

Once again, all parties agree that "Colorado was likely to end up in prison", and the analysis focuses on prison conditions. Like Villalta and Salinas, Colorado supplied extensive evidence; like Villalta, the IJ granted CAT protection and the BIA found "clear error" and overruled.

Like the Second Circuit, the Fourth reviewed the evidence presented to the IJ. But it came to a very different conclusion. Emphatically, almost enthusiastically, it discounted the experts, and found that conditions in Salvadoran prisons aren't really all that bad. Let's take a look:

We first address the likelihood of torture directly by the Salvadoran government. The IJ found that "hundreds" had been killed during clashes with the Salvadoran police in its "state of exception."[2] A.R. 108. Thus, the IJ concluded, Colorado was more likely than not to be killed by Salvadoran officials. But the evidence compels the opposite conclusion. It showed that out of 52,000 arrested during the first sixth months of El Salvador's state of exception, fewer than a hundred people had been killed in law enforcement operations and less than a hundred had died during detention. While any deaths are regrettable, this evidence does not show that it is likely that Colorado will face torture by the Salvadoran government.

Similarly, the evidence didn't establish that torture in prison was likely. The Board observed that the IJ "overlooked" El Salvador's "efforts to" improve prison conditions and "investigate complaints of human rights abuses." A.R. 10. And though it acknowledged that some of the data Colorado submitted showed that several detainees had been tortured, the Board concluded that the record evidence only established that 55 out of 95,000 detained persons showed signs of torture or reported being tortured. Less than one-tenth of one percent—.057 percent—is not "more likely than not.[3] While statistics alone don't always reveal a petitioner's full risk of torture, these statistics provide substantial evidence on this record to support the BIA on the likelihood of torture in prison. … Given this dearth of evidence, it is no surprise that the IJ's findings were rejected for clear error. …

The IJ's decision was based on generalized (and facially insufficient) statistics, and on Colorado's speculation. Moreover, it ignored contrary evidence. … We find that substantial evidence supports the Board's conclusion that the IJ clearly erred in its likelihood of torture analysis.

https://scholar.google.com/scholar_case?case=15788086342829191236

I’ll not libel the Fourth Circuit by speculating that its analysis was influenced by Colorado’s unsavory background. Perhaps he proffered evidence that was less compelling, less recent, or less thorough than that of Salinas and Villalta. (As advocates, we’d do well to remember that country conditions evidence really can make a difference, and that some experts are better than others.)

But given the striking similarity of the cases and the strikingly different outcomes, Salvadorans fleeing Bukele's "state of exception" would be well advised to seek CAT protection in New York rather than in Maryland.

Today’s State Department Report

This morning, a leaked draft of the annual State Department human rights report on El Salvador assures me that there were “no credible reports of significant human rights abuses” in 2024.

(Inmates at CECOT might have been inclined to challenge this finding. But as the Second Circuit says, “Bukele has imposed a ‘gag order’ on reporting on abuses in the prisons, which can result in journalists being jailed for up to 15 years, and only media ‘aligned with the administration’ are allowed in prisons.” Consequently, “credible reports” might have been hard to obtain.)

What a difference a year makes! Just last year the same U.S. State Department found “credible reports” of

• unlawful or arbitrary killings;

• enforced disappearance;

• torture or cruel, inhuman, or degrading treatment or punishment by security forces;

• harsh and lifethreatening prison conditions;

• arbitrary arrest or detention;

• serious problems with the independence of the judiciary; …

(Horrifying details and supporting evidence in the full report.)

I expect that today’s news — that El Salvador has fully solved all these pesky problems — will figure prominently in upcoming agency CAT considerations.

It might also impact people who already won their cases. “At any time while [CAT protection] is in effect” the government can move to “consider whether deferral of removal should be terminated” by presenting “evidence that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred and that was not presented at the previous hearing.” The new State Department report clearly qualifies. Salvadorans in the U.S. who previously won CAT protection have reason to be worried.