De Carvalho v. Garland, 18 F.4th 66

Background

Petitioner Janito DeCarvalho, a native of Cape Verde and former Cape Verde police officer, became a conditional permanent resident in the U.S.; in 2015 he was convicted in Massachusetts of possession with intent to distribute oxycodone and sentenced to 3.5 years.
DHS commenced removal proceedings based on the drug-trafficking conviction (an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)).
The IJ (while DeCarvalho proceeded pro se) told him his conviction made him eligible only for CAT deferral, found the conviction to be a "particularly serious crime," and denied withholding of removal; the IJ also denied CAT relief on the merits (no likely torture with government acquiescence).
The BIA affirmed the CAT denial and, relying on Matter of Y-L-, treated drug-trafficking aggravated felonies as particularly serious crimes barring withholding absent "extraordinary and compelling circumstances."
On appeal, the government disavowed any claim that drug-trafficking convictions are a per se bar and agreed remand was required because the IJ told the pro se petitioner he was categorically ineligible for withholding; the First Circuit vacated the withholding bar and remanded for a new hearing, but denied the CAT claim.

Issues

Issue	DeCarvalho's Argument	Government's Argument	Held
Whether Matter of Y-L- effectively creates a categorical rule that all drug‑trafficking aggravated felonies are "particularly serious crimes" (removing withholding eligibility)	Y-L- operates as a per se rule beyond the statute and is an unreasonable interpretation; court should reject it	The government does not defend a categorical rule; it treats Y-L- as creating a strong but rebuttable presumption and says individualized determinations are required	Court remanded: vacated BIA's withholding bar so agency can make individualized findings (remand for rebuttal of Y-L- presumption)
Whether the IJ erred procedurally by telling a pro se respondent he was eligible only for CAT relief (thus denying opportunity to rebut presumption)	IJ misled DeCarvalho and deprived him of the chance to rebut Y-L-; remand required	Government concedes IJ's statement was wrong and agrees remand is appropriate	Court agreed remand necessary for a new hearing because of the IJ's erroneous advising of the pro se respondent
Whether statute requires an additional, separate finding that the alien is a "danger to the community" beyond labeling the offense "particularly serious"	The statute requires an individualized dangerousness determination; conviction alone does not suffice	Government relies on precedent treating a finding that an offense is particularly serious as also establishing dangerousness	Court left this question to the BIA on remand, noting prior precedent but declining to resolve it in the first instance
Whether substantial evidence and correct standard support denial of CAT deferral (likelihood of torture and government acquiescence)	DeCarvalho argued it is more likely than not he would be tortured by criminals or former colleagues and that the government would acquiesce	Government and BIA argued record shows time lapse, protections for his sister, prosecutions, and no evidence of government acquiescence; BIA reviewed factual findings for clear error	Court affirmed CAT denial: BIA correctly applied standards, factual findings supported by substantial evidence (no likely torture with government acquiescence)

Key Cases Cited

Quintero v. Garland, 998 F.3d 612 (4th Cir. 2021) (remand for further factfinding and reconsideration appropriate)
Miguel‑Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) (upholding a strong rebuttable presumption under Matter of Y‑L‑)
Valerio‑Ramirez v. Sessions, 882 F.3d 289 (1st Cir. 2018) (treating a finding that an offense is particularly serious as indicating dangerousness)
Velerio‑Ramirez v. Lynch, 808 F.3d 111 (1st Cir. 2015) (discussing BIA factors and "danger to the community" inquiry)
Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019) (CAT standard and elements of torture)
Agustin v. Whitaker, 914 F.3d 43 (1st Cir. 2019) (substantial‑evidence review of BIA factual findings)
Ruiz‑Guerrero v. Whitaker, 910 F.3d 572 (1st Cir. 2018) (record compels contrary conclusion standard)
Granada‑Rubio v. Lynch, 814 F.3d 35 (1st Cir. 2016) (government acquiescence analysis)