Case: 19-60322 Document: 00515921922 Page: 1 Date Filed: 07/01/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 1, 2021 No. 19-60322 Lyle W. Cayce Summary Calendar Clerk Juan Carlos Guity Casildo, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A077-008-511 Before Clement, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Juan Carlos Guity Casildo, a native and citizen of Honduras, sought to enter the United States without proper documentation in 2017. Pertinent to this appeal, he requested relief from removal under the Convention Against Torture (CAT). To prevail on his CAT claim, he must show that it * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60322 Document: 00515921922 Page: 2 Date Filed: 07/01/2021 No. 19-60322 is “more likely than not that [he] will be tortured upon return to his homeland.” Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); see 8 C.F.R. § 1208.16(c)(2). He also must show that the torture will be intentionally “inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.” § 1208.18(a)(1); see Iruegas-Valdez v. Yates, 846 F.3d 806, 812 (5th Cir. 2017). The required state involvement can occur absent state sanction where torturous acts are committed “under color of law,” such as when a corrupt police officer abuses power while clothed with the state’s authority. Iruegas-Valdez, 846 F.3d at 812-13 (citing Garcia). The immigration judge (IJ) did “not dispute that corrupt police may try to kill [Guity Casildo] or his family because he tried to report [threats and extortion] to the authorities.” But the IJ then concluded that Guity Casildo had “not established that any harm done to him would be with the consent or acquiescence of the government” where testimony showed “that the government is not turning a blind eye to police corruption.” The IJ did not mention the color-of-law theory of state involvement. The Board of Immigration Appeals (BIA) dismissed Guity Casildo’s initial appeal based on its view that the IJ had not found torture to be more likely than not, despite the IJ’s “may try to kill” observation. In an appeal from that decision, Guity Casildo v. Whitaker, No. 18-60466, we granted a joint motion for a remand to allow the BIA to reconsider whether Guity Casildo showed the requisite likelihood or torture in light of the IJ’s “may try to kill” statement, and if so, whether state involvement was established under the color-of-law rule. Nonetheless, without further briefing in an April 2019 order, the BIA simply repeated its finding that the IJ’s “may try to kill” statement was a finding that Guity Casildo had failed to establish the requisite likelihood …
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