Luis Dutton Myrie v. Attorney General United State
855 F.3d 509
| 3rd Cir. | 2017Background
- Dutton-Myrie, a Panamanian national with prior criminal convictions, faced reinstated removal to Panama and applied for deferral of removal under the Convention Against Torture (CAT), claiming MS-13 would torture him if returned.
- He presented testimony and documentary evidence that multiple male relatives were killed or attacked over years and that Panamanian police failed to investigate or protect the family; a letter from Panama’s Public Safety Department corroborated deaths and ongoing threats.
- The IJ initially found Dutton-Myrie credible but denied CAT relief, concluding he failed to show Panamanian acquiescence to torture; the BIA affirmed, then vacated and remanded multiple times for further analysis.
- The IJ issued subsequent decisions (including adverse credibility shifts and reliance on country-condition materials), and the BIA repeatedly remanded for clarification or ordered the IJ to reassess acquiescence and consideration of corroborating evidence.
- On the last review, the BIA dismissed the appeal, agreeing with the IJ that the Panamanian government actively combats gangs and noting Dutton-Myrie had not reported the 2005 attack; Dutton-Myrie petitioned for review in this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA applied correct standard in reviewing IJ’s conclusion on government acquiescence to torture | BIA erred by reviewing the IJ’s legal conclusion for clear error; the ultimate question (whether facts meet legal standard of acquiescence/willful blindness) is a mixed question of law and reviewed de novo | BIA treated the IJ’s ultimate conclusion as a factual determination and reviewed for clear error | Court held BIA should have reviewed the legal component (whether facts establish acquiescence/willful blindness) de novo and remanded for proper analysis |
| Whether circumstantial evidence (past failures to protect, threats, Public Safety letter, affidavit) was properly considered | Dutton-Myrie argued such circumstantial evidence could show willful blindness/acquiescence and the Board/IJ failed to meaningfully consider it | Government and IJ emphasized Panama’s active efforts against gangs and that Dutton-Myrie did not report the 2005 attack | Court held the Board must consider circumstantial evidence of willful blindness on remand and cannot reject such evidence without explanation |
| Whether failure to report past attack precludes finding of acquiescence | Dutton-Myrie argued futility of reporting and prior findings accepted his testimony about reporting futility; failure to report does not preclude willful blindness finding | Government/IJ pointed to lack of police report as evidence of no official knowledge | Court held failure to report, by itself, does not preclude acquiescence; Board must evaluate in context and consider circumstantial evidence |
| Due process / IJ bias and record-of-remand proceedings | Dutton-Myrie asserted IJ bias and procedural defects (e.g., missing transcript of alleged hearing) undermined fairness | Government and BIA found insufficient evidence of bias and that record issues did not deny due process | Court declined to decide claim, expressed concern about IJ’s demeanor and multiple proceedings, and suggested possible reassignment if further fact-finding is needed |
Key Cases Cited
- Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303 (3d Cir. 2011) (circumstantial evidence may establish acquiescence; government opposition to persecutors does not foreclose CAT relief)
- Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010) (distinguishes factual findings about likely events from legal determination whether those facts constitute torture)
- Silva-Rengifo v. Att’y Gen., 473 F.3d 58 (3d Cir. 2007) (willful blindness standard for acquiescence; burden on applicant to show likelihood of torture)
- Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) (circumstantial evidence can establish acquiescence despite government opposition to persecuting group)
- Roye v. Att’y Gen., 693 F.3d 333 (3d Cir. 2012) (interpretive guidance on acquiescence and related standards)
- Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005) (elements of torture under CAT)
- Pierre v. Att’y Gen., 528 F.3d 180 (3d Cir. 2008) (jurisdictional limits on review of factual determinations for aggravated-felony removable aliens)