501 F. App'x 734
10th Cir.2012Background
- Diaz, Guatemalan citizen, seeks review of BIA decision reversing IJ grant of CAT withholding.
- Diaz conceded removability after drug offense conviction; sought restriction on removal and CAT relief.
- IJ found under Y-L- factors and unusual circumstances that offense not particularly serious; found likely torture with government acquiescence.
- BIA vacated IJ, held Diaz’s drug offense was a particularly serious crime and denied CAT deferral.
- BIA deemed Diaz not personally at risk and rejected expert and country-conditions evidence as insufficient to prove torture with official acquiescence.
- Court reviews BIA abuse of discretion and CAT deferral eligibility; petitions denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Diaz convicted of a particularly serious crime? | Diaz argues all Y-L- factors show de minimis offense. | BIA found two Y-L- factors missing, supporting categorization as particularly serious. | BIA did not abuse discretion; upheld finding of particularly serious crime. |
| Did Diaz qualify for deferral of removal under CAT despite CAT withholding denial? | Diaz contends expert and country-conditions show likelihood of torture with acquiescence. | BIA found no particularized risk; general conditions insufficient and expert testimony outside scope. | BIA's deferral denial affirmed; no individual risk shown. |
| Did BIA adequately explain departure from Y-L- and rely on proper circumstances? | Diaz claims BIA ignored some Y-L- criteria and failed to justify departure. | BIA considered two required circumstances and provided reasons for presumption; no need to analyze all six. | No abuse; BIA provided rational, individualized reasoning. |
Key Cases Cited
- In re Y-L-, 23 I. & N. Dec. 270 (2002) (presumption drug-trafficking crimes are particularly serious; six-factor test)
- Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) (recognizes strong presumption of psc for drug offenses)
- Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (substantial-evidence review standard for agency factual findings)
- Cruz-Funez v. Gonzales, 406 F.3d 1187 (10th Cir. 2005) (acquiescence standard for torture claims; reliance on official conduct)
- Valdiviezo-Galdamez v. Att’y Gen. of U.S., 663 F.3d 582 (3d Cir. 2011) (requires specific grounds showing personal risk; general patterns insufficient)
- Brue v. Gonzales, 464 F.3d 1227 (10th Cir. 2006) (agency discretion in finding particularly serious crime reviewed for legal standards)
- Kechkar v. Gonzales, 500 F.3d 1080 (10th Cir. 2007) (abuse-of-discretion review standard for agency determinations)