Nelson Quinteros v. Attorney General United States
945 F.3d 772
3rd Cir.2019Background
- Nelson Quinteros, brought from El Salvador at age 8, joined MS‑13 as a teenager and later converted to Christianity in prison.
- In 2011 he pled guilty to conspiracy to commit assault with a dangerous weapon under 18 U.S.C. § 1959(a)(6); he transported co‑conspirators but no assault occurred; sentenced to 30 months.
- DHS placed him in expedited removal as an aggravated felon under INA § 1101(a)(43)(F), (U), and (J); Quinteros sought withholding/CAT protection and an asylum officer found reasonable fear.
- Immigration Judges found Quinteros credible and that gangs were likely to kill/torture him, but concluded Salvadoran officials would not acquiesce; an IJ also found his conviction an aggravated felony relying on § 16(b).
- After the BIA affirmed denial of CAT relief and Sessions v. Dimaya invalidated § 16(b), the Third Circuit reviewed whether Quinteros’s § 1959(a)(6) conviction was an aggravated felony and whether the BIA properly applied the Myrie CAT framework.
- The Third Circuit held the conviction is not an aggravated felony under (F), (U), or (J), found the BIA’s CAT analysis deficient, vacated the removal order, and remanded for further proceedings.
Issues
| Issue | Quinteros’ Argument | Government’s Argument | Held |
|---|---|---|---|
| Jurisdiction to review aggravated‑felony classification | Quinteros argued he preserved challenge and the agency considered the issue so court may review | Govt argued §1252(a)(2)(C) bars review of removal orders once agency finds aggravated felony | Court: Jurisdiction exists to decide this legal issue because agency addressed it and courts retain authority over legal questions and their own jurisdiction |
| Whether §1959(a)(6) is a crime of violence under INA §1101(a)(43)(F) (via 18 U.S.C. §16) | §1959(a)(6) can be a crime of violence | Govt relied on IJ/BIA finding using §16(b) definition | Court: Not an aggravated felony under (F); §16(b) was invalidated by Dimaya and §1959(a)(6) need not involve the force element of §16(a) |
| Whether §1959(a)(6) is an attempt/conspiracy to a crime of violence under INA §1101(a)(43)(U) (overt‑act issue) | Conspiracy conviction qualifies because statute criminalizes conspiracy | Govt urged deference to BIA that conspiracy under INA need not require overt act | Court: INA’s generic conspiracy requires an overt act (majority of states & MPC); §1959(a)(6) does not require an overt act, so not a categorical match under (U) |
| Whether §1959(a)(6) is a racketeering offense under INA §1101(a)(43)(J) | Quinteros argued §1959(a)(6) does not match the §1962 racketeering offenses listed in (J) | Govt pointed to agency footnote asserting §1101(a)(43)(J) applies | Court: §1959(a)(6) is not a categorical match to §1962 offenses; (J) does not apply |
| BIA’s application of CAT/Myrie standard and state acquiescence | Quinteros argued BIA ignored evidence (tattoo, expert, Harvard study) and applied wrong acquiescence test focusing on government efforts rather than results | Govt relied on BIA/IJ findings that El Salvador was taking extraordinary steps and tattoo significance/visibility was uncertain | Court: BIA’s CAT decision reversed for inadequate findings and misapplication of Myrie; remand required for proper factual findings on likelihood of torture and state acquiescence |
Key Cases Cited
- Myrie v. Att'y Gen., 855 F.3d 509 (3d Cir. 2017) (establishes two‑prong CAT framework: likelihood of torture and state acquiescence)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated 18 U.S.C. § 16(b) as unconstitutionally vague)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means for categorical approach)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach and "least culpable conduct" presumption)
- Whitfield v. United States, 543 U.S. 209 (2005) (overt act requirement discussion for conspiracy statutes)
- Etienne v. Lynch, 813 F.3d 135 (3d Cir. 2015) (on reviewability of legal challenges to removability in expedited proceedings)
- Pieschacon‑Villegas v. Att'y Gen., 671 F.3d 303 (3d Cir. 2011) (governmental acquiescence may exist even if government opposes persecuting group)
- Restrepo v. Att'y Gen., 617 F.3d 787 (3d Cir. 2010) (courts review BIA legal conclusions de novo and assess jurisdiction questions)