Wednesday, January 28, 2026
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Paez Argues Majority Doesn’t Grasp Potential of Torture Looms If Man Is Deported
Ninth Circuit’s Majority Finds Requirements of Convention Against Torture Are Not Met Based on Beating of Petitioner by a Gang Seeking Money
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday denied review of an order by the Board of Immigration Appeals dismissing an appeal from an immigration judge’s decision that a man, his partner, and their infant daughter are to be deported to their native country, El Salvador, drawing a protest from Judge Richard Paez that further consideration should be given to the claim that torture will be inflicted if they are sent home.
Circuit Judge Roopali H. Desai and Senior Circuit Judge M. Margaret McKeown signed a memorandum opinion saying that Franklin Enoc Rodriguez-Santamaria and the other petitioners failed to show entitlement to relief under the Convention Against Torture (“CAT”).
While Rodriguez-Santamaria was beaten by gang members in El Salvador, they said, the requisite showing of “a nexus between the harm and a protected ground” such as membership in a “particular social group” had not been made nor was there any indication of a prospect of future “torture by or with the acquiescence of the government.”
Paez’s Opinion
Paez noted that Rodriguez-Santamaria’s declaration relates that gang members, in seeking to extort money from him, tied him and beat him and threatened that if he did not pay, the fetus would be yanked from the womb of his partner and chopped into pieces and that he would then be killed. The jurist wrote:
“His wife was eight months pregnant at the time. And Petitioners fled El Salvador just four days after this encounter. Rodriguez-Santamaria broke down on the witness stand when recounting the threat and the court adjourned for a break to allow him to recover.
“This was torture. If threatening to pull your unborn child from your wife’s womb and cut it into thirteen pieces in front of you does not amount to the intentional infliction of severe ‘mental pain or suffering’—while tied up and beaten, after multiple other threats and demands for payment—it is difficult to imagine what does….And Rodriguez-Santamaria’s testimony evinces his ‘prolonged mental harm,’… setting his case apart from other CAT cases based primarily on threats.”
Government’s Involvement
Addressing the requirement of government acquiescence, Paez, a former Los Angeles Municipal Court presiding judge, said:
“That low bar is met here. There is record evidence that the President of El Salvador, Nayib Bukele, negotiated with gangs over a period of years—including MS-13, the gang that threatened and beat Rodriguez-Santamaria—about reducing violence before elections to boost his chances at reelection, implying acquiescence in gang violence outside of pre-election windows. The President’s staff later deleted the records of these negotiations. This record evidence, alongside reports that President Bukele’s government has been generally ineffective at controlling gang violence, likely compels the conclusion that El Salvador has turned a willful blind eye to gang violence of the sort that Petitioners would likely experience upon their return.”
Paez only partially dissented. He agreed with Desai and McKeown that Rodriguez-Santamaria’s claims for asylum and withholding of removal did not warrant further attention.
The case is Rodriguez-Santamaria v. Bondi, 24-389.
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