United States Court of Appeals For the First Circuit Nos. 21-1150, 21-1230 H.H., Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Gelpí, Lipez, and Howard, Circuit Judges. SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for petitioner. Kristen A. Giuffreda, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Acting Assistant Attorney General, and Shelley R. Goad, Assistant Director, were on brief, for respondent. Anna R. Welch, Suzannah Dowling (Student Attorney), and Cumberland Legal Aid Clinic, University of Maine School of Law on brief for amici curiae Immigration Law Professors. William J. Aceves, California Western School of Law, Nathan P. Warecki, and Nixon Peabody LLP on brief for amici curiae Current and Former U.N. Special Rapporteurs on Torture. Adam Gershenson, Zachary Sisko, Marc Suskin, Valeria M. Pelet del Toro, Samantha Kirby, and Cooley LLP on brief for amici curiae Former Immigration Judges and Former Members of the Board of Immigration Appeals. October 21, 2022 LIPEZ, Circuit Judge. Petitioner H.H.1 seeks review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for deferral of removal to Honduras under the Convention Against Torture ("CAT"). He argues that the immigration judge ("IJ") applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the "consent or acquiescence" of the Honduran government, and that the BIA erred in its review of the IJ's decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency2 erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion. I. A. Factual Background H.H. is a citizen of El Salvador and Honduras. He entered the United States without inspection in 2004, when he was 16 years old, and was apprehended and released by Customs and Border Protection shortly after his arrival. Because he was a 1 We refer to H.H. by pseudonym due to the threats on his life underlying this petition for review. 2 We refer to the BIA and IJ collectively as the "agency." - 3 - minor at the time, he was released to the custody of his uncle, who lived in Maryland. He was ordered removed in absentia in April 2004. H.H. does not recall receiving notice of a removal hearing. While living in Maryland, H.H. became involved with the MS-13 gang. He was arrested for gang-related activity in 2005 and eventually charged with racketeering and robbery. He pleaded guilty to a Racketeer Influenced and Corrupt Organizations Act ("RICO") charge and was sentenced to 15 years' incarceration. In or around 2006, H.H. began to …
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