HHR recently obtained a rare Second Circuit remand to the Board of Immigration Appeals on behalf of a pro bono client who faces a serious risk of death if he is returned to El Salvador.

The Second Circuit denies more than 90% of petitions for review of Board of Immigration Appeals decisions, but the firm was able to convince the Second Circuit to review the client’s petition and remand the case to the Board for further proceedings related to the client’s claim for relief under the Convention Against Torture.

The client entered the U.S. in 2012 without inspection, fleeing gang activity in his native El Salvador. After living and working on Long Island for three years, he was the victim of a drive-by shooting, which left him with multiple gunshot wounds. Nassau County police believed that the shooters were members of a gang active in El Salvador and on Long Island, but, despite the client’s cooperation, the shooters were never identified.

In 2017, the client was served with a notice of removal and was detained pending removal. An immigration judge and then the Board both rejected the client’s applications for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture. The client appealed pro se and, in 2019, the Second Circuit appointed HHR pro bono counsel.

While the client’s appeal was pending, the firm helped obtain the client’s release from detention in Alabama days before Thanksgiving 2020.

On the appeal, HHR convinced the Second Circuit that the Board inadequately explained its denial of the client’s claim for withholding of removal under the Convention. The Convention prohibits the U.S. from deporting an individual to a country where there are substantial grounds to believe that the individual would be in danger of being tortured, and defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person… when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The client credibly feared that, upon return to El Salvador, he would be killed by the same gang that he fled in 2012 and that was responsible for shooting him in 2017. The client further established that it was likely that Salvadoran government officials, including the police, would know of or remain willfully blind to this danger, and not take steps to prevent it. The Second Circuit found the Board’s analysis of the Salvadoran government’s acquiescence lacking because the Board relied solely on the fact that the Salvadoran government had “declared war on the gangs” and did not assess the specific of the client’s argument.

Carl Mills, Vilia Hayes, Dustin Smith and James Henseler continue to represent the client on remand to the Board of Immigration Appeals.