Legal Research in Action: Convention Against Torture (CAT)
Hello, I am Andrea Larios, a new intern here at the Riverside County Law Library. My past few days have been filled with researching legal cases, California codes, primary, and secondary authorities. This will be my second time writing a memorandum about criminal cases, but this time I’ve decided to narrow down the topic to the Convention Against Torture (CAT) protection for non-citizens. The following criminal cases focus on gang affiliation, torture concerns, and the seeking of asylum. I will briefly cover the facts of the cases then discuss how CAT was applied to each one.
My first finding was a 2021 case argued at the United States Court of Appeals, Ninth Circuit called Pimentel-Estrada v. Garland. The petitioner, Pimentel-Estrada, requested a review of the Board of Immigration Appeals (BIA) order that dismissed his appeal of an Immigration Judge’s decision, which denied his application for deferral of removal under CAT. Pimentel-Estrada requested this because he feared that cartels in Mexico would torture him for the following reason: his conviction involved a publicly available reference to a video of him in Utah carrying weapons, drugs, and money, exposing his affiliation with a rival gang, the Sinaloa Cartel. In addition, he was released from prison earlier due to a change of sentencing laws. The petitioner claimed that the Jalisco Cartel Nuevo Generacion would look for him and kill him if he returned to Mexico for working for the Sinaloa Cartel. He also claimed that the Sinaloa Cartel would do the same thing for mistakenly believing that he was released from prison early for cooperating with the government. Pimentel-Estrada testified that he did not suffer any previous torture but urged that he would, more likely than not, be tortured if he returned to Mexico. The court decided that the petitioner did not provide substantial evidence-which is needed to qualify for CAT- and only presented speculation. As a result, they supported the Board of Immigration Appeals decision to deny his petition for CAT.
If Pimentel-Estrada demonstrated evidence of torture, threats, or physical violence, he would have more likely to qualify for CAT. Additionally, the petitioner could have provided a statement from the Mexican police to confirm that he would be more likely than not tortured, as he had claimed. It appears that CAT is a difficult document to obtain. This next case covers a similar situation of someone seeking asylum (CAT), but as opposed to Pimentel-Estrada, this petitioner was not directly involved in the cartel and sought asylum for her whole family.
Garcia-Aranda v. Garland was argued in the United States Court of Appeals, Second Circuit. The petitioner, Karla Iveth Garcia-Aranda, is a native and citizen of Honduras where she and her family lived. Garcia-Aranda claimed that she and her family were kidnapped, threatened, and beaten by the Mara 18 gang, while a Honduran police officer was present. When questioned about their affiliation to the gang, Garcia-Aranda said that she and her family were law-abiding citizens, but her uncle was considered a Mara 18 leader. According to the petitioner, when he was killed, the gang started targeting her and her family, so they sought asylum in the United States. For CAT to qualify in this scenario, all applicants must provide enough evidence for it to be granted. Garcia-Aranda’s petition for CAT protection was vacated in part by the court. It was later decided to remand the case to the BIA for further proceedings consistent with the court’s opinion.
While there is no further information on the outcome of the case, one can see that providing a statement from a police officer may be difficult because they are also working with the cartel/gang. Unlike Pimentel-Estrada’s case, Garcia-Aranda’s evidence was substantial enough for the petition for CAT protection to be reviewed, but there is still a possibility that it gets denied. Furthermore, this case demonstrates that the petitioner’s legal counsel must be adequately prepared for such a ruling, otherwise the case may be prolonged and the petitioner’s safety at risk. This next case includes a similar case where the petitioner isn’t involved in the cartel, but due to family ties, they were targeted.
Flores v. Garland was argued in the United States Court of Appeals, Ninth Circuit. The petitioner, Flores, is a wife and mother native to Honduras. Her and her husband inherited a farm where they grew plantains and coffee. They started a small merchant business but were soon imposed a “war tax” by the MS13 gang. The two were careful not to reveal their ownership of the farm, but a cousin of theirs later joined MS13 and informed the gang leadership. As retribution, the gang began demanding one hundred times the initial war tax, threatening to kill Flores’s husband, if they were not paid. The petitioner’s husband fled to the US alone in hopes that the gang would stop threatening his family, but it only made things worse for the petitioner. MS13 threatened to kill Flores’ children and herself if she did not comply. She later fled to the United States with her children, without the proper documentation, and applied for withholding of removal, asylum, and voluntary departure under CAT. Her initial trial denied her petition, but she was able to get a new trial, arguing that her previous counsel was ineffective. The court granted her petition, reopened the applications for CAT protection and remanded the BIA to reconsider her eligibility for the protection claims.
Fortunately for Flores, she was able to have her case reviewed and acquired a new ruling that looked more promising for her. All three cases involved a petition for CAT protection where the petitioners fled from their home countries due to gang violence, though not all of them had enough support for CAT to be granted. Pimentel-Estrada lacked evidence, Garcia-Aranda could not provide police statements (although it is now under review), and Flores had ineffective counsel. CAT protection may only be considered and granted when the applicant provides substantial evidence to be more likely than not to be tortured. All rulings must follow the Board of Immigration Appeals and applications may only be reopened if directed by the court.
Researching cases involving CAT was by far the most interesting and detail-specific to me. Not only did they provide an abundance of information about the petitions, but they also explained why CAT could or could not apply to the petitioner depending on the amount of evidence, depositions, and other factors. Understanding CAT and the overall process of the three cases was easy thanks to the intricacies that each case provided. As each case progressed, it came to my attention that CAT is a difficult document to secure but is still attainable if given the proper materials and evidence.
References
CFR-2013-title8-vol1-sec208-18.pdf (govinfo.gov)
Garcia-Aranda v. Garland (2d Cir. 2022) 53 F.4th 752
Pimentel-Estrada v. Garland, 856 F. App’x 124 (9th Cir. 2021)
Turcios-Flores v. Garland (6th Cir. 2023) 67 F.4th 347, reh’g denied (6th Cir., June 22, 2023, No. 22-3325) 2023 WL 5498387
Written by Andrea Larios, Intern at the Riverside County Law Library
