Rafael Guerrero v. Attorney General United State
672 F. App'x 188
| 3rd Cir. | 2016Background
- Guerrero, a Mexican national, was subject to an expedited removal in 1998 after using a fraudulent birth certificate and later reentered the U.S. unlawfully; in 2012 he was arrested and convicted for methamphetamine conspiracy and imprisoned.
- DHS reinstated the 1998 expedited removal; Guerrero expressed fear of return and, after a reasonable-fear interview, was referred for withholding/CAT protection proceedings.
- Guerrero testified cartel members (Sinaloa cartel) sought him, said a driver had stolen cartel money, threatened him, and that his brother was kidnapped and beaten while Guerrero was imprisoned; Guerrero submitted a police report and country-condition materials about cartel violence and corruption.
- The IJ found Guerrero credible and recognized serious cartel violence and corruption in Mexico but denied CAT relief, concluding Guerrero failed to show it was more likely than not he would be tortured with government acquiescence; the BIA affirmed.
- The Third Circuit granted review, held the BIA misapplied the acquiescence standard by focusing on general government efforts rather than whether parts of the government might be willfully blind or collusive, vacated and remanded for further consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Guerrero met CAT burden to show it is more likely than not he would be tortured on return | Guerrero: Sinaloa cartel seeks him; government is corrupt/will be unable or unwilling to stop torture; evidence shows police inaction and corruption | Government: Mexican government is taking steps to combat cartels and root out corruption; efforts negate acquiescence | Court: BIA erred; acquiescence can be shown by government willful blindness or collusion even if government generally opposes cartels; remand required |
| Proper legal standard for "acquiescence" under CAT | Guerrero: acquiescence includes willful blindness or collusive elements of government actors | Government: acquiescence requires more affirmative proof; government efforts undermine finding of acquiescence | Court: Agreed with Guerrero that acquiescence need not be actual awareness; willful blindness or collusion suffices |
| Whether IJ/BIA properly weighed country-condition and testimonial evidence | Guerrero: evidence (police report, State Department reports, news) supports likelihood of torture with acquiescence | Government: evidence insufficient to show government acquiescence | Court: Agency applied too narrow framing by emphasizing general government efforts and failed to consider whether selective collusion/willful blindness established acquiescence; remand ordered |
| Remedy after error in legal standard | Guerrero: requests remand for proper application of acquiescence test | Government: opposes reversal/remand | Court: Vacated BIA order and remanded for further consideration under correct legal standard |
Key Cases Cited
- Martinez v. Att'y Gen., 693 F.3d 408 (3d Cir.) (standard for reviewing combined BIA and IJ decisions)
- Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir.) (applicant must show it is more likely than not he will be tortured)
- Silva-Rengifo v. Att'y Gen., 473 F.3d 58 (3d Cir.) (acquiescence may be satisfied by government willful blindness)
- Pieschacon-Villegas v. Att'y Gen., 671 F.3d 303 (3d Cir.) (acquiescence can be found despite government efforts if collusive elements exist)
- Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330 (3d Cir.) (official statements of inability to protect can support willful blindness/acquiescence)
- Cheng v. Att'y Gen., 623 F.3d 175 (3d Cir.) (substantial-evidence review of agency factual findings)