Rafael Guerrero v. Attorney General United State
658 F. App'x 178
| 3rd Cir. | 2016Background
- Guerrero, a Mexican citizen, entered the U.S. in 1998 with a fraudulent birth certificate and was expelled under an expedited removal order.
- He re-entered illegally on an unknown date and, in 2012, was arrested for conspiracy to distribute methamphetamine and sentenced to 42 months.
- DHS reinstated the 1998 expedited removal; Guerrero expressed fear of returning and was referred to a DHS asylum officer for a reasonable-fear interview.
- The asylum officer found his fear reasonable and referred him to an Immigration Judge, who considered a deferral of removal under the CAT.
- The IJ found Guerrero failed to show likelihood of torture necessary under CAT; the BIA affirmed; Guerrero sought review in this court.
- The court ultimately remands, holding the BIA erred in limiting acquiescence to general government efforts and will consider whether the Mexican government is powerless to protect Guerrero.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CAT acquiescence standard interpretation | Guerrero argues acquiescence can be shown by willful blindness | Government argues acquiescence requires active or actual intervention | Remand for de novo review on acquiescence standard |
| Impact of potential collusion or impotence of government | Guerrero argues some government officials collude or are willfully blind | BIA concluded government efforts suffice to prevent torture | Remand to evaluate collusive relationships and powerlessness |
| De novo review on legal questions | (Guerrero not explicit here) | BIA reviews questions of law de novo; findings of fact under clear error | Remand to clarify legal component of acquiescence and conduct de novo review as appropriate |
Key Cases Cited
- Silva-Rengifo v. Att’y Gen., 473 F.3d 58 (3d Cir. 2007) (acquiescence can be willful blindness even without actual knowledge of torture)
- Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303 (3d Cir. 2011) (remand to determine acquiescence evidence in collusive government contexts)
- Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330 (3d Cir. 2008) (government representatives stating inability to protect may show acquiescence)
- Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (remand to consider evidence of state complicity or non-intervention)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) (establishes more-than-not standard for CAT)
- Roye v. Att’y Gen., 693 F.3d 333 (3d Cir. 2012) (discusses acquiescence doctrine and government awareness)