7th Circuit grants review to Indiana immigrant’s torture case

May 3, 2018

The 7th Circuit Court of Appeals has ordered the Board of Immigration Appeals to re-examine a Honduras native’s case against his forced removal to his home country, finding the board did not adequately consider the man’s evidence of the threat of gang violence against him if he were returned home.

After declining an invitation to join the Honduran street gang MS-13 in 2003, Francisco Javier Perez ran away from his hometown of Danli, Honduras, and dropped out of school. He then witnessed the murder of a friend, who Perez believed was shot because his brother was a member of one of MS-13’s rival gangs. Perez was subsequently beaten and shot at as a way of dissuading him from testifying about the murder.

Perez eventually moved to Indiana and was admitted as a lawful permanent resident in 2008, but he returned to Honduras for a vacation in 2010. Perez was forced to end his vacation, however, after the same gang members who had tried to recruit him recognized him while on vacation.

After returning to Indiana, Perez pleaded guilty to sexual misconduct with a minor, an aggravated felony that disqualified him from asylum and withholding of removal. However, Perez was still qualified to seek deferral under the Convention Against Torture, which he did based on the argument that MS-13 would harm and possibly kill him if he were removed to Honduras. Family members also testified about the dangers they believed Perez would face if he were removed.

An immigration judge eventually found that Perez failed to prove he would be tortured if removed to his home country, and the Board of Immigration Appeals agreed. Specifically, the board found Perez’s “fear of future torture is speculative, and not based on a specific current threat to himself.” The Honduran native then filed for review with the 7th Circuit Court of Appeals, which granted his petition on Wednesday in Francisco Javier Perez v. Jefferson B. Sessions III, 17-1369.

“We grant that any inquiry about the future requires some speculation, but that problem is baked into the Convention …,” Chief Judge Diane Wood wrote for the panel. “The fact that Perez was the target of some near-misses, however, shows that MS-13 had Perez himself in its sights and was willing to take violent action against him. The threat of imminent death is one way in which torture by means of mental pain or suffering can be inflicted.”

Wood also said the board erred by examining the threat against Perez brought only by the MS-13 members in Danli and failing to consider his evidence that the gang would pose a threat in other areas of the country. The panel, thus, concluded the board must revisit Perez’s evidence of the widespread threat of torture in Honduras.


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