Doe v. Holder
651 F.3d 824
| 8th Cir. | 2011Background
- Doe, a Mexican native, seeks deferral of removal under the CAT after a California drug conviction deemed an aggravated felony.
- DHS ordered removal to Mexico following an expedited removal proceeding.
- Doe testified to fear of torture or persecution by Mexican police espoused by a corrupt unit, Espartaco.
- IJ found Doe credible but deemed his testimony not persuasive due to lack of detail and dates.
- BIA affirmed, holding Doe’s testimony was unpersuasive and that authorities’ involvement or acquiescence was not shown.
- Petition for review filed; Doe challenges the BIA’s legal standard and due process claims while remaining in removal proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA applied the correct legal standard to credit Doe’s testimony | Doe argues BIA treated credibility as all-encompassing | Doe contends BIA weighed persuasiveness after credibility | No reversible error; BIA credited credibility but found testimony unpersuasive under record. |
| Whether BIA/IJ applied CAT standards correctly | Doe claims standard required showing future torture by authorities | Board applied correct standard requiring authorities’ involvement or acquiescence | Held that BIA applied the correct standard and Dok’s evidence failed to show likelihood of torture. |
| Whether any due process violation occurred due to handling of evidence | Doe alleges incomplete consideration of evidence and scars/Country Reports | Record showed IJ considered evidence; BIA not required to discuss every item | No due process violation; substantial consideration shown and presumption of regularity applies. |
| Whether exhaustion/waiver prevents review of CAT issue on appeal | Doe contends CAT issue raised; BIA did address it | Administrative exhaustion not jurisdictionally required for all CAT claims | Review permissible; issues properly presented on appeal. |
Key Cases Cited
- In re Y-L-, 23 I. & N. Dec. 270 (A.G. 2002), 23 I. & N. Dec. 270 (AG 2002) (agency precedent on burdens and proceedings under CAT/withholding)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (rogue officers’ acquiescence may satisfy acquiescence standards)
- Aden v. Holder, 589 F.3d 1040 (9th Cir. 2009) (credibility may be present yet not persuasive when weighed against record)
- Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. 2008) (testimony credibility vs persuasiveness in CAT/withholding)
- Chong v. Dist. Dir., I.N.S., 264 F.3d 378 (3d Cir. 2001) (live controversy despite removal during review)
- Freeman v. Holder, 596 F.3d 952 (8th Cir. 2010) (de novo review of questions of law in CAT cases)
- Jin Yi Liao v. Holder, 558 F.3d 152 (2d Cir. 2009) (presumption of regularity; Board need not discuss every piece of evidence)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (rogue police acquiescence concept in CAT)
- Hanan v. Mukasey, 519 F.3d 760 (8th Cir. 2008) (due process and evidentiary considerations in immigration appeals)