Unreported / Non-Citable
Background
Rolando Calderon, a Salvadoran national and former MS-13 member with a visible gang tattoo, moved to reopen removal proceedings after El Salvador began its 2022 State of Exception. He presented evidence of mass detention, extreme prison conditions, abuse by officials, and threats from active gang members because he had left MS-13.
The immigration judge accepted that Calderon was likely to be imprisoned if returned but concluded he had not made a prima facie showing that he would likely be tortured. The Board of Immigration Appeals agreed, treating much of the evidence as generalized prison-condition material.
The Court’s Holding
The Ninth Circuit granted the petition, vacated the Board’s decision, and remanded. At the reopening stage, Calderon did not need to prove ultimate entitlement to protection under the Convention Against Torture. He needed evidence that, if accepted, showed a reasonable likelihood of satisfying the standard.
His submissions were sufficiently particularized. They addressed intentional official abuse under the State of Exception, not overcrowding alone; the agency itself found detention likely; and his tattoo and former-member status created risks from both officials and imprisoned gang members beyond those faced by detainees generally. Because failure to establish a prima facie case was the agency’s sole reason for denial, it had to reconsider the motion.
Key Takeaways
- Changed-country-conditions motions may proceed without the ordinary time limit when supported by material new evidence.
- At reopening, prima facie eligibility is a lower threshold than winning CAT protection on the merits.
- Country reports become more powerful when tied to the applicant’s specific traits and likely detention pathway.
- Evidence of intentional abuse must be separated from harsh conditions caused only by neglect or scarcity.
Why It Matters
Immigration practitioners should build a chain from changed policy to likely custody, from custody to intentional mistreatment, and from the client’s individual characteristics to heightened risk. General human-rights reporting is rarely enough by itself. The ruling is nonprecedential, but it illustrates how individualized declarations, visible identifiers, prior threats, and current country evidence can combine to meet the reopening threshold.