Background
Rot Mythong, a native and citizen of Cambodia, sought review of a Board of Immigration Appeals order dismissing his appeal from an Immigration Judge’s denial of deferral of removal under the Convention Against Torture. Mythong argued he faced torture in Cambodia due to his belief in free speech, his status as an outsider from the United States, and his history as a convict who served twenty-nine years in a United States prison.
The court’s reasoning
The court found the Immigration Judge erred by requiring Mythong to prove each theory of torture individually rather than assessing the total probability of torture from all sources. The court also held the Judge failed to consider highly probative evidence regarding Mythong’s status as a criminal deportee. The court rejected the dissent’s argument that the record showed the outcome would be the same, noting that the Judge’s application of an incorrect legal standard precluded a finding that the law dictated the result.
CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible CAT claims.
Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 (9th Cir. 2022)
The dissent
What it means going forward
The case is remanded to the agency to reassess the Convention Against Torture claim using the correct aggregate risk standard and by explicitly considering the petitioner’s criminal history.