Jose Fuentes-Pineda, a native of El Salvador and former member of the Barrio 18 gang, sought deferral of removal under the Convention Against Torture after being convicted of murder and unlawfully entering the United States. He testified that he was tortured by Salvadoran police on two occasions and feared future torture due to his gang affiliation and the country's 'state of exception' policy. The Immigration Judge found his testimony generally credible but ruled that the evidence did not show a clear probability of future torture, noting that while prison conditions are poor, they are not specifically intended to inflict torture. The Board of Immigration Appeals adopted the Immigration Judge's opinion, and Fuentes-Pineda petitioned the Fifth Circuit for review.
Judge Ho, writing for the panel, applied the substantial evidence standard, which requires that factual findings be upheld unless the evidence compels a contrary conclusion. The court addressed two primary issues. First, regarding prison conditions, the court affirmed that under the Convention Against Torture, torture requires specific intent to inflict severe pain or suffering. The Immigration Judge found that while El Salvador's prisons suffer from overcrowding and poor conditions, there was no evidence that the government specifically intended these conditions to torture detainees. The court noted that the State Department's 2024 report indicated the government was taking credible steps to punish officials for human rights abuses, and that social media statements by officials regarding gang members reflected moral judgment rather than an intent to torture. Second, regarding the petitioner's individual risk, the court found the Immigration Judge's determination that it was speculative to assume the same officers who tortured Fuentes-Pineda in the past would target him again was supported by the record. The court reasoned that the 'state of exception' might actually decrease the risk of targeted torture because the government can detain gang affiliates for any reason without needing to inflict harm to secure confessions. The court emphasized that isolated instances of past torture do not establish a clear probability of future torture without evidence of specific targeting.
The petition for review is denied, and the BIA's order denying deferral of removal stands. Fuentes-Pineda remains subject to removal to El Salvador. The decision clarifies that poor prison conditions in El Salvador do not automatically constitute torture under the Convention Against Torture absent specific intent, and that past torture does not guarantee future torture if there is no evidence of specific targeting by the same actors.
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