Parada Calderon v. Blanche

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ALFREDO PARADA CALDERON, Nos. 24-7433 25-2204 Petitioner, Agency No. A092-078-794 v. TODD BLANCHE, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 19, 2026 San Francisco, California Filed August 28, 2026 Before: Kim McLane Wardlaw, Carlos T. Bea, and Gabriel P. Sanchez, Circuit Judges. Opinion by Judge Wardlaw; Dissent by Judge Bea 2 PARADA CALDERON V. BLANCHE SUMMARY * Immigration Granting Alfredo Parada Calderon’s petition for review of a decision of the Board of Immigration Appeals that denied his motion to reopen removal proceedings to submit additional evidence in support of his claim for protection under the Convention Against Torture (“CAT”), the panel held that the BIA erred by applying a “quantitative evidence” requirement and by failing to give reasoned consideration to Parada’s expert reports. The BIA found that Parada demonstrated a reasonable likelihood that he could be detained in El Salvador, as a deportee, under the crackdown on civil liberties known as the “State of Exception.” However, the BIA dismissed some of Parada’s evidence, including an expert report’s descriptions of “deplorable conditions of men in prison,” on the basis that “anecdotes—no matter how disturbing—can’t substitute for quantitative evidence, which is what CAT requires.” The panel wrote that Amici before this court had documented a growing and troubling trend in CAT adjudications: the demand for statistical or quantitative proof to establish that an applicant is more likely than not to be tortured. The panel concluded that the BIA’s imposition of this “quantitative evidence” requirement demonstrated a fundamental misunderstanding of CAT’s implementing regulations, which require the BIA to consider “all evidence * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  PARADA CALDERON V. BLANCHE 3 relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3). The BIA’s disregard of the unambiguous language of the regulations imposed a nearly insurmountable burden on Parada by requiring him to produce statistics of torture in El Salvador that likely do not exist or, if any do exist, are likely unreliable. The panel also concluded that the BIA erred by failing to give reasoned consideration to Parada’s expert reports. The BIA failed to discuss two of the three reports and, as to the one it discussed, the BIA dismissed the report as lacking the allegedly requisite “quantitative evidence.” The panel concluded that the record evidence compels the conclusion that Parada established a reasonable likelihood of showing, in a reopened proceeding, that he is more likely than not to be tortured if he were removed to El Salvador. The record reflected that officials directly perpetrate and acquiesce to widespread acts of torture and other abuses in Salvadoran prisons, including beatings, starvation, electric shocking, sexual assaults, the denial of medical treatment, and extrajudicial killings. Here, Parada’s individualized evidence—such as his criminal history, association with multiple gangs, and tattoos—was sufficient to establish prima facie eligibility for protection under CAT. The panel remanded to the BIA with instructions to grant his motion to reopen. In a concurrently filed memorandum disposition, the panel resolved Parada’s petition for review of the BIA’s denial of his applications for asylum, withholding of removal, and protection under CAT. Dissenting, Judge Bea wrote that the BIA did not impose a “quantitative evidence” requirement. Rather, the BIA 4 PARADA CALDERON V. BLANCHE recited verbatim a passage from this court’s decision in Benedicto v. Garland, 12 F.4th 1049 (9th Cir. 2021). Judge Bea wrote that, as a three-judge panel, it had no authority to overrule Benedicto, so it could not be that the BIA abuses its discretion when it correctly adheres to that precedent. Regarding consideration of Parada’s expert reports, Judge Bea wrote that the majority ignored the longstanding practice of presuming that public officers properly discharge their official duties. Judge Bea also wrote that this court— recognizing the realities of immigration proceedings—does not require the BIA to discuss each piece of evidence submitted. In Judge Bea’s view, the majority broke new ground because this court has repeatedly upheld denials of CAT applications based on similar State of Exception evidence and arguments, doing so in unpublished decisions without any noted dissents.  PARADA CALDERON V. BLANCHE 5 COUNSEL Genna E. Beier (argued) and Sean L. McMahon, Deputy Public Defenders; Matt Gonzalez, Chief Attorney; Manohar Raju, Public Defender; Office of the San Francisco Public Defender, San Francisco, California; for Petitioner. Anne R. Burley (argued) and Jennifer P. Williams, Trial Attorneys; Song Park, Assistant Director; Office of Immigration Litigation; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. Nancy Alexander, Lucas & Barba LLP, Portland, Oregon; Veronica Barba, Lucas & Barba LLP, Pasadena, California; for Amicus Curiae Refugees International. Ashley B. Vinson Crawford, Akin Gump Strauss Hauer & Feld LLP, San Francisco, California, for Amici Curiae Former Immigration Judges & Former Members of the Board of Immigration Appeals. Alletta S. Brenner and Sharila Stewart, Ashurst Perkins Coie US LLP, Portland, Oregon, for Amicus Curiae Graeme Blair. 6 PARADA CALDERON V. BLANCHE OPINION WARDLAW, Circuit Judge: This case is about the increasingly widespread misapplication of plain and unambiguous legal standards by our immigration courts. Alfredo Parada Calderon (“Parada”), a native and citizen of El Salvador, petitions for review of two separate decisions of the Board of Immigration Appeals (“BIA”). He first seeks review of the BIA’s dismissal of his appeal of an Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Separately, Parada seeks review of the BIA’s denial of his motion to reopen removal proceedings. We have jurisdiction over both petitions under 8 U.S.C. § 1252(a). The BIA committed two clear legal errors in its denial of Parada’s motion to reopen. First, in line with a growing and troubling trend across the Nation, the BIA held that, to obtain CAT protection, a petitioner must produce “quantitative evidence” and that, without such evidence, Parada could not meet his burden of showing that he was entitled to CAT protection. 1 Those misstatements of law demonstrate a 1 Several amici raised this increasingly common and erroneous practice by IJs and the BIA, including a brief filed on behalf of dozens of former immigration judges and judges of the BIA. See Brief for Former Immigration Judges & Former Members of the Board of Immigration Appeals as Amicus Curiae in Support of Petitioner (“Amicus Brief of Immigration Judges”), Parada Calderon v. Blanche, No. 25-2204, Dkt. No. 19; see also Brief for Professor Graeme Blair as Amicus Curiae in Support of Petitioner (“Amicus Brief of Professor Blair”), Parada Calderon v. Blanche, No. 25-2204, Dkt. No. 23; see Brief for Refugees  PARADA CALDERON V. BLANCHE 7 fundamental misunderstanding of CAT’s implementing regulations, which expressly require the BIA to consider “all evidence relevant to the possibility of future torture” in adjudicating a noncitizen’s CAT application. See 8 C.F.R. § 1208.16(c)(3). The BIA’s disregard of the unambiguous language of the regulations imposed a nearly insurmountable burden on Parada by requiring him to produce statistics of torture in El Salvador that likely do not exist or, if any do exist, are likely unreliable. Second, the BIA erred by failing to give reasoned consideration to Parada’s expert reports. See Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011). Under the correct legal standards, the record evidence compels the conclusion that Parada met the burden of showing that he has a “reasonable likelihood of [succeeding] on the merits” of his application in a reopened proceeding. See Fonseca Fonseca v. Garland, 76 F.4th 1176, 1181 (9th Cir. 2023) (citation modified). Accordingly, we grant Parada’s petition to review the BIA’s denial of his motion to reopen and remand to the BIA with instructions to grant his motion to reopen. 2 I. PROCEDURAL HISTORY Parada was placed in removal proceedings in 2023. An IJ denied his application for CAT protection in February 2024. On appeal, the BIA remanded the record to the IJ for International as Amicus Curiae in Support of Petitioner (“Amicus Brief of Refugees International”), Parada Calderon v. Blanche, No. 25-2204, Dkt. No. 14, at 3. We received no amicus briefs advocating in favor of a quantitative evidence requirement. 2 We resolve the issues presented in Petition No. 24-7433, seeking review of the BIA’s denial of Parada’s applications for asylum, withholding of removal, and protection under CAT, in a memorandum disposition, filed concurrently with this opinion. 8 PARADA CALDERON V. BLANCHE further proceedings because the IJ had erred by refusing to consider certain country conditions evidence and by failing to adequately explain why she had afforded reduced weight to an expert report. On remand, the IJ denied Parada’s request to reopen the record and denied his application for CAT protection. The BIA denied Parada’s appeal of that decision. Parada filed a petition for review of the BIA’s decision in our court. While his petition was pending, on February 24, 2025, Parada filed a motion to reopen his removal proceedings, seeking to submit additional evidence of torture in El Salvador. The motion, though filed two days after the 90- day deadline, was deemed timely after the BIA equitably tolled the deadline based on Parada’s lawyer’s ineffective assistance. The BIA denied his motion to reopen on the merits. The BIA acknowledged that Parada submitted “new evidence provid[ing] more recent information on the treatment of deportees upon return to El Salvador,” and found that Parada “demonstrated a reasonable likelihood that he could be detained in El Salvador under the current state of exception.” 3 However, the BIA dismissed some of the evidence Parada submitted in support of his motion to reopen, including an expert report’s descriptions of “deplorable conditions of men in prison,” on the basis that “anecdotes—no matter how disturbing—can’t substitute for 3 Parada’s individualized risk of being tortured is set against the backdrop of an extreme crackdown on civil liberties in El Salvador known as the “State of Exception.” In March 2022, Nayib Bukele, President of El Salvador, initiated the State of Exception: an emergency state of affairs that “limit[s] constitutional protections and grant[s] vast power to the country’s security forces.” See Amicus Brief of Refugees International, at 3.  PARADA CALDERON V. BLANCHE 9 quantitative evidence, which is what CAT requires.” The BIA rejected “the majority of the evidence” that Parada submitted on the grounds that this evidence was “not based on new or previously unavailable evidence but reflect[ed] the continuation of abuse of suspected gang members under the state of exception on March 27, 2022, which was prior to [Parada’s] individual hearing.” The BIA concluded, based on the evidence it did consider, that “the evidence does not show a reasonable likelihood that [Parada] would be able to establish that it is more likely than not that he would be tortured if detained,” and denied his motion to reopen. Parada petitioned for review of the BIA’s denial of his motion to reopen. II. STANDARD OF REVIEW We review the denial of a motion to reopen for abuse of discretion. 4 Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010). “An error of law is an abuse of discretion.” Id. Factual findings underlying the adjudication of a motion to reopen are reviewed for substantial evidence, while legal questions are reviewed de novo. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). We review the IJ’s denial of protection under CAT for substantial evidence. 4 A petitioner may file one motion to reopen within 90 days of the issuance of his final order of removal, or at any time if the motion is based on changed country conditions. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(3)–(4). A motion to reopen must establish prima facie eligibility for the relief sought—that is, the petitioner must show a “reasonable likelihood of success on the merits.” Fonseca-Fonseca, 76 F.4th at 1181 (citation modified). “The ‘reasonable likelihood’ standard requires a petitioner to show more than a mere possibility she will establish a claim for relief, but it does not require the petitioner to demonstrate she is more likely than not to prevail.” Id. at 1183. 10 PARADA CALDERON V. BLANCHE Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). III. DISCUSSION “[I]t [is] the policy of the United States not to [remove] any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.” Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (en banc) (per curiam) (citation modified) (citing 8 U.S.C. § 1231 note). Accordingly, the key question in evaluating a CAT claim is “whether [the noncitizen] has shown individual circumstances in his case that there is a likelihood he will face torture qualifying him for CAT.” Ridore v. Holder, 696 F.3d 907, 912 (9th Cir. 2012) (internal quotation marks and citation omitted). However, the nature of CAT is that it provides only limited protection from removal—nothing prevents the Government from removing a noncitizen “to a third country other than the country to which removal has been withheld or deferred.” See 8 C.F.R. § 1208.16(f). CAT thus strikes a delicate balance: regardless of the strength of the Government’s interest in removing a noncitizen, he cannot be removed to a country in which he is more likely than not to face torture with the consent or acquiescence of the government. Id. But CAT protection will not prevent the Government from removing him to a third country in which he is not more likely than not to face torture. Id. In this case, the BIA erred as a matter of law by requiring Parada to produce “quantitative evidence” of his likelihood of experiencing future torture in El Salvador. Such a requirement is irreconcilable with the nature of CAT protection, the plain text of CAT’s implementing regulations, and the Treaty’s purpose. See 8 C.F.R.  PARADA CALDERON V. BLANCHE 11 § 1208.16(c)(3). CAT requires an individualized inquiry based on all of the evidence in the record. Contrary to the suggestion of the dissent, even if Parada could come forward with “evidence that [more than] half of the detainees in El Salvador are tortured with government consent or acquiescence,” Dissent at 43, that would prove nothing about the individualized circumstances that render him particularly more likely than not to be tortured. Moreover, the BIA committed the paradigmatic error that we warned against in Cole v. Holder by failing to give reasoned explanation to the three expert reports offered by Parada. 659 F.3d at 771–72. The record compels the conclusion that Parada met his burden to prevail on a motion to reopen because he demonstrated “a reasonable likelihood that the petitioner would prevail on the merits if the motion to reopen were granted.” Fonseca-Fonseca, 76 F.4th at 1179. A. Quantitative Evidence i. Plain Text of the Implementing Regulations The United States “implemented the CAT as part of the Foreign Affairs Reform and Restructuring Act of 1998” (“FARRA”). Sridej v. Blinken, 108 F.4th 1088, 1090 (9th Cir. 2024). Under CAT’s implementing regulations, the BIA is required to consider “all evidence relevant to the possibility of future torture . . . including, but not limited to: (i) [e]vidence of past torture inflicted upon the applicant; (ii) [e]vidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (iii) [e]vidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and (iv) [o]ther relevant information regarding conditions in the country of removal.” 8 C.F.R. 12 PARADA CALDERON V. BLANCHE § 1208.16(c)(3); Uc Encarnacion v. Bondi, 156 F.4th 927, 941 (9th Cir. 2025) (“The regulations implementing CAT explicitly require the IJ to consider all evidence relevant to the possibility of future torture.” (citation modified)). CAT’s regulatory mandate is purposefully expansive and rejects a one-size-fits-all approach to establishing eligibility for relief. By requiring the agency to consider “all evidence relevant to the possibility of future torture,” 8 C.F.R. § 1208.16(c)(3) (emphasis added), Congress ensured that there is not only one single path to receiving protection under the Convention. 5 See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir. 2009) (“[T]he regulations that implement the CAT do not specify two routes . . . by which an applicant may establish [a] likelihood [of future torture]. Rather, the CAT regulations cast a wide evidentiary net, providing that ‘all evidence relevant to the possibility of future torture shall be considered.’” (quoting 8 C.F.R. § 1208.16(c)(3)) (internal citation omitted)). Accordingly, we have previously stated that “[a]n applicant may . . . satisfy the burden to receive CAT relief with evidence of country conditions alone.” Uc Encarnacion, 156 F.4th at 941. Expert witness testimony also can provide “highly probative [and] potentially dispositive evidence” that the BIA must consider in evaluating an application for protection under CAT. Cole, 659 F.3d at 772; see also Uc Encarnacion, 156 F.4th at 943 (“If the Board had accorded Petitioner’s expert testimony and country-conditions evidence any weight, it could have concluded that” he was eligible for protection under CAT.). 5 “All” means “the whole amount, quantity, or extent of,” or “as much as possible.” All, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/all [https://perma.cc/WNX9-YALB].  PARADA CALDERON V. BLANCHE 13 Similarly, CAT’s implementing regulations explicitly provide that “a petitioner’s credible testimony ‘may be sufficient to sustain the burden of proof without corroboration.’” Parada v. Sessions, 902 F.3d 901, 915 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.16(c)(2)). Having established that the BIA must consider all evidence of an applicant’s risk of torture, we turn to the burden itself: “The burden of proof is on the applicant . . . to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2) (emphasis added). We have long interpreted the “more likely than not” standard to require petitioners to show “a greater than fifty percent chance of torture.” Edu v. Holder, 624 F.3d 1137, 1145 n.16 (9th Cir. 2010); see also Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004) (A petitioner “has to show only a chance greater than fifty percent that he will be tortured if removed.”). While we have little doubt that this is the correct interpretation of that phrase, the BIA’s application of the “more likely than not” standard has strayed from the plain text and purpose of the regulations. Amici have documented a “growing and troubling trend” in CAT adjudications: the “demand for statistical or quantitative proof to establish that an applicant is ‘more likely than not’ to be tortured.” See Amicus Brief of Immigration Judges, at 1. In this case, the BIA rejected significant evidence of torture in El Salvador, explaining that: “While we do not condone the treatment described in the evidence presented, ‘[a]necdotes—no matter how disturbing—can’t substitute for quantitative evidence, which is what CAT requires.’” In imposing a quantitative evidence condition, the BIA conflated two distinct requirements in the regulation: (i) that the BIA must consider all types of 14 PARADA CALDERON V. BLANCHE evidence, and (ii) that a petitioner must produce evidence sufficient to satisfy the BIA that it is more likely than not, judged holistically, in light of all evidence in the record, that the individual petitioner will, himself, be tortured if removed. 8 C.F.R. § 1208.16(c)(2); see also Cole, 659 F.3d at 775 (the BIA must consider the “aggregate risk” of future torture). The plain text of CAT’s implementing regulations confirms that quantitative or statistical evidence is not required. Such a requirement is irreconcilable with the regulatory mandate that “all evidence relevant to the possibility of future torture shall be considered.” 8 C.F.R. § 1208.16(c)(3). Congress did not create a bespoke evidentiary standard whereby noncitizens must come into court armed with reports prepared by statisticians and country conditions experts prognosticating about the noncitizen’s exact numerical likelihood of being tortured. 6 Congress instructed the agency to perform a much less foreign task: Immigration judges must make “a reasoned, fact-based judgment that [the petitioner’s] torture is more 6 Judge Posner has repeatedly warned against such a rigid interpretation of the “more likely than not” standard. See Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135–36 (7th Cir. 2015) (“All that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given [noncitizen] will be tortured if removed from the United States. . . . How one translates all this vague information into a probability that the [noncitizen], if removed will be tortured . . . is a puzzler. Maybe probability is the wrong lens through which to view the problem. More likely than not is the standard burden of proof in civil cases (the preponderance standard) and rarely is the trier of fact asked to translate it into a probability (i.e., more than 50 percent).” (citation modified)); Velasquez-Banegas v. Lynch, 846 F.3d 258, 262 (7th Cir. 2017); Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 461 (7th Cir. 2004).  PARADA CALDERON V. BLANCHE 15 likely than not, based on the totality of the circumstances.” See Amicus Brief of Immigration Judges, at 7. 7 ii. Concerns with Statistical Evidence CAT’s implementing regulations do not elevate the significance or probative weight of statistical evidence above any other form of evidence in the record. Indeed, 7 The BIA and the Government rely heavily on a single line in Benedicto v. Garland, 12 F.4th 1049, 1065 (9th Cir. 2021): “Simply pointing to evidence of instances of torture, without more, cannot establish that Benedicto himself would ‘more likely than not’ be tortured on removal. Anecdotes—no matter how disturbing—can’t substitute for quantitative evidence, which is what CAT requires.” That line, taken out of context, would seem to prescribe a rule that is irreconcilable with CAT’s implementing guidelines. But the context reveals that Benedicto was merely summarizing the “more likely than not standard.” There, we held that Benedicto, who feared removal to the Dominican Republic based on alleged torture in police custody and prisons, failed to “quantif[y] the risk of that torture or ‘demonstrate . . . any regularity’ of such activity” in the Dominican Republic such that Benedicto himself was necessarily at risk of torture. Id. (citation modified). Moreover, we surveyed the evidence in the record and concluded that the Dominican Republic was addressing poor conditions in its prisons and, importantly, that there was no torturous intent on behalf of the Government with respect to abuses that did take place in its prisons. Id. at 1064–65. We acknowledged the existence of some degree of human rights violations in Dominican prisons and police custody but held that the substantial evidence standard was not met in light of countervailing evidence of improvements in prison conditions and widespread efforts to prosecute and discipline officers who engaged in police misconduct. Id. We therefore concluded that Benedicto did not face an individualized risk of torture. Id.; see also id. at 1063 n.10. Accordingly, Benedicto held that random anecdotes of torture cannot substitute for evidence pointing to an individualized risk of torture. Id. at 1065. Benedicto’s reference to “quantitative evidence” was merely a reference to the “more likely than not standard”—we did not discount Benedicto’s evidence because it was qualitative in nature, nor did we announce a rule that quantitative or statistical evidence is required under CAT. Id. 16 PARADA CALDERON V. BLANCHE amici provide compelling reasons to doubt the reliability of statistical evidence as an illustrative tool to estimate a noncitizen’s individualized risk of being tortured. See generally Amicus Brief of Professor Blair; see also Amicus Brief of Refugees International, at 3–8. The problems with relying on statistical evidence are at their most acute in repressive regimes, like El Salvador. See Amicus Brief of Professor Blair, at 15. As we have long recognized, “[t]here is nothing novel about the concept that persecutors [or torturers] cannot be expected to conform to arbitrary evidentiary rules.” Aguilera-Cota v. U.S. Immigr. & Nat’y Serv., 914 F.2d 1375, 1380 (9th Cir. 1990). Torturers and “[p]ersecutors are hardly likely to provide their victims with affidavits attesting to their acts of persecution.” Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1285 (9th Cir. 1984). And Parada “could hardly ask the authorities in El Salvador to certify that [he] would be persecuted [or tortured] should [he] return.” Zavala-Bonilla v. I.N.S., 730 F.2d 562, 565 (9th Cir. 1984). Accordingly, we have rejected interpretations of immigration statutes that would mechanically require submission of a specific type of evidence in support of a noncitizen’s application for relief. See id. at 567 (“[I]n considering the record as a whole, the BIA should bear in mind the difficulties [a noncitizen] encounters in providing proof of potential persecution” or torture.). Consistently, we have cautioned that “[a]djudicating a CAT claim will generally involve speculation about the likelihood of future events, and it will not be possible, or even desirable, to quantify probabilities precisely.” Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 n.1 (9th Cir. 2022) (emphasis added). A successful CAT claim cannot be made out without demonstrating that the  PARADA CALDERON V. BLANCHE 17 government is complicit in one of the most egregious forms of abuse known to mankind—torture. Governments complicit in such actions have strong incentives to suppress and manipulate any available data on the scope of their torturous practices. See Zavala-Bonilla, 730 F.2d at 565–67; Amicus Brief of Professor Blair, at 10–15. A rigid quantitative evidence requirement ignores the reality that “[t]he data and statistical methodology that would enable a percentage to be attached to a risk of torture simply do not exist.” See Rodriguez-Molinero, 808 F.3d at 1135. The unavailability of statistical evidence, a problem that is exasperated in countries in which torture is more—not less—likely to occur, counsels against requiring noncitizens to produce such evidence. See Velasquez-Banegas, 846 F.3d at 262 (Requiring quantitative evidence of a greater than fifty percent risk of persecution to establish eligibility for withholding of removal presents “an absurd example of line drawing, [and] it assumes unrealistically that such statistics can be computed.” Therefore, “it should be enough to entitle the applicant to [protection under CAT] if there is a substantial, albeit unquantifiable, probability that if deported he will be [tortured].” (emphasis added)). Such a requirement would eviscerate protections for the individuals who are most likely to be tortured. See Rodriguez-Molinero, 808 F.3d at 1135; Amicus Brief of Immigration Judges, at 7 (“No applicant can meaningfully quantify their personal risk of torture at the hands of clandestine security forces or within lawless detention systems where the state itself conceals the scale of its abuses. . . . CAT is meant to offer a last-resort, unconditional safeguard against torture. That purpose is impossible to reconcile with a regime in which protection turns on a judge’s ability to assign numerical probabilities to inherently unquantifiable risks.”); Amicus Brief of Refugees 18 PARADA CALDERON V. BLANCHE International, at 10 (explaining that the BIA’s “creat[ion] [of] a standard that the most at risk individuals would have particular difficulty meeting would be to nearly strike from existence the United States’s legal ratification of CAT and duly promulgated implementation regulations”). This record well captures the concern that statistical data may be unavailable or may underestimate the scope of torturous practices in the most repressive regimes. The record reflects that the Salvadoran government “intentionally manipulat[es] data” regarding homicide rates, see Expert Report of Professor Patrick McNamara (Feb. 24, 2025) (“2025 McNamara Report”), at ¶ 56, “releas[es] misinformation,” id., and engages in “affirmative efforts to obscure and downplay the widespread instances of torture committed in its detention facilities,” see Amicus Brief of Refugees International, at 7. The Salvadoran government also uses “mass graves to bury the dead in state custody” to further its “policy of withholding information about the deaths of prisoners in penal institutions.” See Cristosal, Silence is Not an Option: Research on the Practices of Torture, Death, and Failed Justice in the State of Exception (July 2024), at 11; see also Expert Report of Dr. Tommie Sue Mongomery (Feb. 21, 2025) (“Montgomery Report”), at ¶ 81 (Statistics on deaths in custody “are an extremely low count of the actual deaths inside the prisons under the [State of Exception]” because human rights organizations only report on deaths verified with the “family members of the deceased” and “independently verif[ied] by reviewing records of the national coroner’s office and/or funeral homes.” The statistics therefore do not reflect bodies buried in “clandestine cemeteries and mass graves.”); Amicus Brief of Refugees International, at 6–7 (describing extrajudicial executions and “the use of mass graves to conceal deaths in  PARADA CALDERON V. BLANCHE 19 detention”). Accordingly, “[i]t is practically impossible to have complete and accurate official data on arrests, homicides, femicides, prison population[s], Prosecutor’s Office investigations, judicial processes, or any other activity linked to the state of exception” in El Salvador. Cristosal, supra, at 14; see also Amicus Brief of Refugees International, at 3 (“The Salvadoran government has engaged in a multi-faceted strategy to both deny the public access to information about its security forces and detention centers as well as actively hide evidence of its abuses.”). 8 Moreover, unlike other forms of evidence, even when quantitative evidence captures broad trends of torture in the country of removal, it often will not be tailored to a noncitizen’s individual likelihood of being tortured. See 8 C.F.R. § 1208.16(c)(2) (“The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” (emphasis added)). For example, in its November 2024 decision denying Parada’s application for protection under CAT on the merits, the BIA concluded that Parada was unlikely to be tortured in a Salvadoran prison because “only a small percentage of individuals detained . . . reported harm.” In support of this conclusion, the BIA cited statistics showing that there were approximately 1,000 incidents of prisoners harmed compared with 70,000 individuals arrested during the State of Exception. Setting aside the unreliability of such statistics, those statistics shed little light on Parada’s 8 Although several human rights organizations and journalists have attempted to document human rights abuses under the State of Exception, El Salvador has threatened to arrest journalists “if they report on government abuses.” 2023 McNamara Report at ¶ 82. 20 PARADA CALDERON V. BLANCHE individual likelihood of being tortured. Parada, for example, faces a higher risk of torture than others because of his unique characteristics, such as his extensive tattoos, which signify his gang affiliation, his incarceration in the United States, and his killing of a member of a rival gang—a gang that could retaliate against Parada in a Salvadoran prison. 9 As amici put it: “The correct question is not ‘How often are Salvadoran arrestees tortured?’ but ‘What is the likelihood that someone with Mr. Parada Calderón’s background will be tortured if returned?’ That question cannot be answered by dividing two numbers. It requires reasoned judgment and consideration of the entire record.” Amicus Brief of Immigration Judges, at 13. It is clear, therefore, that it is neither possible nor desirable to require noncitizens to produce quantitative evidence of their statistical likelihood of being tortured in the country of removal. The BIA erred by imposing a quantitative evidence requirement in this case. 9 An example illustrates the problem with the BIA’s analysis. A tiny percentage of high school students each year join a collegiate athletics team after graduation. It certainly is not more likely than not that a randomly selected high school student will participate in collegiate athletics, even if the sample of students considered is limited to those who participated in high school athletics and are going to college. Taking an individual student’s characteristics into account, however, changes the picture. Consider a high school student who stands at six feet and seven inches tall, has played high school and club basketball for a decade, and won the state championship as a starter on his high school team. That particular student may be more likely than not to play collegiate athletics. We can only ascertain his likelihood of playing college basketball by taking his individual characteristics into account. So too here.  PARADA CALDERON V. BLANCHE 21 B. Reasoned Consideration of Experts Among the voluminous evidence submitted by Parada in support of his motion to reopen were three expert reports. See Montgomery Report; 2025 McNamara Report; Expert Report of Martin Flores (Feb. 24, 2025) (“Flores Report”). The BIA failed to discuss two of the expert reports, prepared by Dr. McNamara and Mr. Flores, entirely. As to the only expert report it discussed, the BIA acknowledged that “Dr. Montgomery’s report . . . described deplorable conditions of men in prison” but dismissed the specific evidence and analysis in her report on the ground that this evidence was “anecdot[al]” and “can’t substitute for quantitative evidence.” The BIA thus “failed to give reasoned consideration to the potentially dispositive testimony [of Parada’s three] experts,” which requires “remand for the agency to reconsider [his] CAT claim in light of the expert testimony.” Cole, 659 F.3d at 773. As a threshold matter, the BIA rejected “the majority of the evidence submitted” on the ground that the evidence was “not based on new or previously unavailable evidence but reflects the continuation of abuse of suspected gang members under the state of exception since its implementation on March 27, 2022, which was prior to the respondent’s individual hearing.” See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” (emphasis added)). The BIA failed to identify exactly what evidence it was rejecting on this basis. Regardless, a significant amount of the evidence that Parada presented, including all three expert reports, postdated the closing of his proceeding’s administrative record in 22 PARADA CALDERON V. BLANCHE February 2024, and thus was obviously unavailable at the time of his merits hearing. As we explain in Section III.C., Parada produced sufficient material and unavailable evidence to prevail on his motion to reopen. The Government defends the BIA’s failure to consider the expert reports. As to Mr. Flores’s report, the Government argues that Mr. Flores’s report was irrelevant because that report “focused on [Parada’s] risk of harm by Salvadoran gangs” and “the Board did not need to address [Parada’s] risk of harm from gang members in the absence of the requisite state action.” 10 As to Dr. McNamara’s report, the Government argues that “while the Board did not specifically cite to McNamara’s declaration, it both concluded that Parada had ‘demonstrated a reasonable likelihood that he could be detained in El Salvador under the current state of exception,’ and noted that ‘the conditions of confinement in Salvadoran prisons may be difficult and below the standards we expect in the United States,’ both aspects of [Parada’s] CAT claim about which McNamara opined.” The Government does not grapple with Parada’s argument that the BIA misread Dr. Montgomery’s report and made no more than a “passing mention” of her report while 10 The Government is mistaken that the BIA did not need to consider Parada’s risk of being tortured or killed by gang members inside of Salvadoran prisons as a separate source of torture. See Velasquez- Samayoa, 49 F.4th at 1155 (“[W]hen an applicant posits multiple theories for why he would be tortured, the Agency should consider the aggregate risk posed by all sources and grant CAT relief if the cumulative probability of torture is greater than 50 percent.”). The record contains significant evidence that the Salvadoran government regularly acquiesces to torture inflicted by gang members on other prisoners inside its facilities. See e.g., 2025 McNamara Report at ¶¶ 126–134.  PARADA CALDERON V. BLANCHE 23 rejecting the core of that report on the ground that it was not quantitative evidence. The Government’s arguments bypass the BIA’s “obligat[ion] to stat