In a 2-1 decision published Wednesday, the panel majority said the evidence compelled it to vacate a Board of Immigration Appeals decision that had affirmed the denial of Carlos Andres Ramos Marquez's applications for withholding of removal and protection under the United Nations Convention Against Torture.
"As to withholding of removal, the record compels us to conclude that petitioner sufficiently demonstrated that Honduras is unable or unwilling to control the MS-13 gang, reporting his past persecution to Honduran authorities would have been futile or subjected petitioner to further harm, and he could not have relocated to avoid persecution," U.S. Circuit Judge Stephanie D. Thacker wrote for the panel, joined by U.S. Circuit Judge Roger L. Gregory.
The panel also held that the BIA failed to engage with evidence supporting Ramos Marquez's contention that the Honduran government would be willing to accept his torture if he was returned there, directing the board to do so on remand.
The decision sparked a sharp dissent from U.S. Circuit Judge J. Harvie Wilkinson III, with the judges clashing over the appropriate level of review and the proper takeaway from Ramos Marquez's decision to not report his run-ins with MS-13 gang members to police in Honduras.
Ramos Marquez entered the U.S. without authorization in 2019 after a number of purported encounters with members of the notorious gang, according to the decision, including demands for money, beatings and threats to find and kill him.
The panel said the immigration court's conclusion that Ramos Marquez failed to show Honduras was unable or unwilling to control the gang focused on that its police responded to the killings of his brothers, even though they were never solved, and that Ramos Marquez never reported to police the threats, harassment and injuries that he allegedly endured.
"In reaching this conclusion, the IJ and the BIA did the exact thing we have cautioned them not to do — they ignored petitioner's credible, unrebutted, legally significant testimony that reporting to the police would have resulted in more harm, and cherry-picked evidence from the record to support its contrary conclusion," Judge Thacker said.
Judge Wilkinson accused the panel majority of doing much the same, saying it paid lip service to the deference owed to immigration courts and their findings but cherry-picked facts to "rebalance evidence according to its preferences."
According to Judge Wilkinson, Ramos Marquez repeatedly chose not to report alleged encounters with the gang to police, leaving them in the dark, with the panel majority willing to write off "Honduras's policing efforts whole cloth as 'empty or token assistance.'"
"Reviewing the findings of fact below for only substantial evidence, as we must, this should have been a straightforward case," Judge Wilkinson said.
"Even after Honduran officials repeatedly responded to alleged crimes against his relatives, Ramos Marquez never consulted the authorities himself. The IJ and BIA thus reasonably concluded that he — not Honduras — failed to uphold his end of the bargain in the oft-cooperative endeavor of solving crime," the judge added.
According to the majority, however, Judge Wilkinson's dissent aimed to impose a police reporting requirement that the court has long rejected.
The panel said immigration courts failed to consider testimony that Ramos Marquez did not report gang encounters to police because of government corruption and involvement with the gang, or country conditions evidence supporting a contention that reporting the incidents to police would have been futile or even led to more harm.
"The IJ and BIA ignored that evidence and failed to offer 'specific, cogent reasons' for doing so," Judge Thacker said.
Representatives for the parties did not immediately respond to requests for comment Wednesday.
Ramos Marquez is represented by Madeline Taylor Diaz and Katherine Soltis of Taylor Diaz & Soltis PLLC.
The government is represented by Amber A. Arthur, Erica B. Miles, Craig A. Newell Jr. and Blair T. O'Connor of the U.S. Department of Justice's Civil Division.
The case is Ramos Marquez v. Bondi, case number 24-1842, in the U.S. Court of Appeals for the Fourth Circuit.
--Editing by Nick Siwek.
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