Luis REYES-REYES, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
No. 03-72100.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 13, 2004. Filed Sept. 13, 2004.
384 F.3d 782
APPENDIX A
053
ed. Under the circumstances, we remand for resentencing on an open record. See United States v. Matthews, 278 F.3d 880, 885 (9th Cir.2002) (en banc) (recognizing that, “as a general matter, if a district court errs in sentencing, we will remand for resentencing on an open record“).
Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.
Before McKEOWN, BYBEE, Circuit Judges, and BREYER,* District Judge.
Opinion by Judge McKEOWN; Concurrence by Judge BYBEE.
McKEOWN, Circuit Judge:
Luis Reyes-Reyes petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because Reyes‘s asylum claim was denied as untimely, we lack jurisdiction to reach its merits. We have jurisdiction, however, to review the BIA‘s denial of his withholding and CAT claims. Because the immigration judge (IJ) invoked the wrong standard in analyzing both of these claims, we grant the petition and remand for further consideration.
Luis Reyes-Reyes, a citizen of El Salvador, fled to the United States as a teenager twenty-five years ago. Motivated by fear of persecution, Reyes entered this country unlawfully and never legalized his presence. Faced now with the immigration consequences of his undocumented status, Reyes continues to fear persecution should he return to El Salvador.
Reyes is a homosexual male with a female sexual identity. He dresses and looks like a woman, wearing makeup and a woman‘s hairstyle. Although Reyes has not undergone sex reassignment surgery, he has had a characteristically female appearance, mannerisms, and gestures for the past sixteen years. He has a “deep female identity” and has gone by female names such as Josephine, Linda, and Cukita. Reyes is currently in custody, where he is held separately from the other inmates for his own protection.
Reyes‘s original reasons for leaving El Salvador involve disturbingly violent circumstances. When Reyes was thirteen and living with his family in San Salvador, he was kidnaped by a group of men, taken to a remote location in the mountains, and raped and beaten because of his homosexual orientation.1 Reyes‘s attackers threatened future brutality if he reported their actions. Fearing reprisal, he never told his family or the authorities about these crimes. Believing that “homosexuals are not welcome in my home country,” Reyes fled El Salvador after he turned seventeen.
Reyes now faces the prospect of return to El Salvador. Removal proceedings were commenced after Reyes‘s undocumented presence came to the attention of immigration authorities. In 2002, Reyes appeared pro se before an IJ, conceded removability, and applied for asylum, relief under the CAT, and withholding of removal. At the hearing, Reyes explained his fears about returning to El Salvador and related the story of his kidnaping and rape and explained his fears that if he returns to El Salvador, he will be discriminated against, abused, raped, or possibly even killed because of his appearance and sexual orientation. The IJ questioned Reyes repeatedly about why he failed to report the crimes and whether “anyone in the Government or acting on behalf of the Government of El Salvador [would] want to torture you.”
At the conclusion of the proceedings, the judge denied Reyes‘s applications for withholding and CAT relief on the merits, and denied his asylum petition as untimely filed. In an oral decision, the IJ explained that Reyes had failed to satisfy the requirements of the law because he “has failed to state that anyone in the government or acting on behalf of the government tortured him.” The IJ also ruled that Reyes had failed to establish past persecution for the purposes of withholding of removal under
Sometime later, Reyes obtained pro bono representation and filed an appeal
DISCUSSION
This case presents a series of discrete legal issues. Although the parties argue at length over inclusion in the record of evidence of El Salvador‘s country conditions and political climate and the merits of Reyes‘s claim, we need not address these disputes because our resolution of the justiciable issues rests on the ground that the BIA employed an erroneous legal standard in evaluating Reyes‘s application.
The slight quirk presented by our review of the BIA‘s bare affirmance without opinion of the IJ‘s decision requires us to apply the well-known “simple but fundamental rule of administrative law“: We “must judge the propriety of such action solely by the grounds invoked by the agency.” Securities & Exchange Comm‘n v. Chenery Corp., 332 U.S. 194, 196 (1947). Thus, although the agency‘s summary affirmance under
I. JURISDICTION OVER THE ASYLUM CLAIM
Aliens present in the United States may apply for asylum under
Reyes filed his asylum petition on July 8, 2002, well beyond the one-year deadline, and the IJ determined that Reyes was “subject to the one year bar and, therefore, ineligible for asylum under Section
II. CONVENTION AGAINST TORTURE
The question we consider is whether the IJ applied the correct legal standard under the CAT by requiring Reyes to prove that he suffered torture at the hands of a government agent. Under the implementing regulations of the CAT, an applicant qualifies for withholding of removal if “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
Torture is not limited to acts that occur “under public officials’ custody or physical control.” See Azanor, 364 F.3d at 1019. To the contrary, “a petitioner may qualify for withholding of removal by showing that he or she would likely suffer torture while under private parties’ exclusive custody or physical control.” Id. (emphasis in original). If the torture is at the hands of private individuals, the petitioner‘s burden is to show the government‘s “consent or acquiescence.”
Here, the judge applied to Reyes a standard even more stringent than the one urged by the INS and rejected by the court in Zheng. According to the immigration judge, “To establish withholding or deferral of removal under Article 3 of the Convention Against Torture, an alien must establish that it is more likely than not that he or she would be tortured in the country of removal by someone in the government or acting on behalf of the government if returned to that country. ... [The] Torture Convention requires that someone in the government or acting on behalf of the government torture the respondent.” He went on to add that the “Torture Convention requires that someone in the government or acting on behalf of the government torture the respondent.” In other words, the judge required Reyes to show that he would suffer torture “by or at the instigation of” the government. See
Under
We note that remand, besides being the proper legal course, is the route favored by important policy concerns. The BIA‘s decision is not only at odds with Congress‘s intent, it is inconsistent with its own governing regulations. In the face of this type of error, we share the view of our colleagues in the Second Circuit: “Careless observance by an agency of its own administrative processes weakens its effectiveness in the eyes of the public because it exposes the possibility of favoritism and of inconsistent application of the law.” See Montilla v. INS, 926 F.2d 162, 169 (2d Cir.1991). When the BIA at times acknowledges the “consent or acquiescence” prong of the regulation, see, e.g., Matter of S-V-, 22 I. & N. Dec. 1306 (BIA 2000), and at times disregards it, see, e.g., Azanor, 364 F.3d at 1019, the net result is unpredictability and irregularity that undermines public confidence in the immigration process. Remand is thus doubly appropriate here because it enhances public faith in the adjudicative system and creates an incentive for the agency to consistently apply a coherent set of rules. See Montilla, 926 F.2d at 169 (“As a practical matter, to remand for agency compliance with its own rules would actively encourage such compliance.“).
III. WITHHOLDING OF REMOVAL
Independent of the success of the asylum and CAT claims, Reyes may not be removed to El Salvador if his “life or freedom would be threatened in that country because of [his] ... membership in a particular social group.”
Indeed, he failed to address in any way whether any public official might have been “aware[] of such activity and thereafter breach[ed] his or her legal responsibility to intervene to prevent such activity.”
We decline to reach Reyes‘s additional argument that reversal is proper because the immigration judge imposed a per se rule requiring a victim of persecution to report the act.3 In our view, our decision better tracks the path of judicial caution; upon remand, the BIA will have ample opportunity to reconsider Reyes‘s withholding and CAT claims in light of all of the evidence in the record. See Ventura, 537 U.S. at 17 (“The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.“); cf. Ramirez-Alejandre v. Ashcroft, 320 F.3d 858, 864 (9th Cir.2003) (explaining that in a related context, the BIA does not “act[] as a traditional appellate administrative body” but is “vested with the authority to exercise the discretion ... to consider the facts as they exist[] at the time of the BIA decision“).
Accordingly, the petition is DISMISSED in part, GRANTED in part, and the case is REMANDED. Costs on appeal shall be awarded to the petitioner.
BYBEE, Circuit Judge, concurring and concurring in the judgment:
I join Part I of the court‘s opinion and agree with much of what is written in Parts II and III, but I do not join those sections. I nevertheless agree that the petition should be granted and the matter remanded to the BIA.
INS‘s regulations implementing the Convention Against Torture define torture as severe pain or suffering, intentionally inflicted on a person “at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The principal opinion faults the immigration judge for requiring Reyes-Reyes to prove that he was tortured or will be tortured by someone in the government of El Salvador if he is returned. According to the opinion, “the IJ effectively excised the phrase ‘or with the consent or acquiescence of’ from the regulation.” Maj. op. at 787. I do not believe that the IJ misstated the rule, although he could have been more clear at the outset. The IJ‘s oral opinion, as quoted in the principal opinion, states that “an alien must establish that it is more likely than not that he or she would be tortured in the country of removal by someone in the government or acting on behalf of the government if returned to that country.” Maj. op. at 787. In the same paragraph, however, the IJ went on: “Torture must be inflicted by or at the instigation of a public official or someone acting in an official capacity, or it must be inflicted with the consent or acquiescence of a public official, or person acting in an official capacity.” (Emphasis added). That is a complete and correct statement of the law.
The IJ rejected Reyes-Reyes claims because the IJ found that Reyes-Reyes “never reported [his kidnaping and rape] to anyone.” Because he was only 13 at the time of this horrific incident he “never reported these incidents to his family nor the police ... because of the threat of these street individuals. He felt that he might be hit or something worse would happen to him.” When the IJ “questioned [Reyes-Reyes] and asked [him] if anyone in the government or acting on behalf of the government would want to torture him,” he answered “no” and “testified that the only individuals that would want to harm him are the thieves on the streets.” The IJ concluded that to qualify for withholding of removal, Reyes-Reyes “would have had to [have] reported [the incidents] to an official or to a family member and they would have had to refuse to act upon his outcry.” The IJ found that Reyes-Reyes had failed to meet his burden of proof.
The fault in the record is the IJ‘s failure to address whether any public official might have been “aware[] of such activity and thereafter breach[ed] his or her legal responsibility to intervene to prevent such activity.”