Case Information
*1 Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: November 30, 2016)
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AMENDED OPINION [*]
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PER CURIAM
Rafael Guererro, proceeding pro se and in forma pauperis, petitions for review of *2 the Board of Immigration Appeals’ (BIA) final order of removal. For the following reasons, we will grant the petitiоn for review.
I.
Guerrero, a citizen of Mexico, attempted to enter the United States in January 1998 by presenting a fraudulent birth certificate. An immigration officer at the border determined that he was inadmissible for having sought admission by fraud or misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)(i), and immediately returned him to Mexico pursuant to an expedited removal order, see id. § 1225(b)(1). Guerrero re- entered the United States illegally on an unknown date.
In Aрril 2012, Guerrero was arrested for his role in an eastern Idaho drug trafficking organization. Guerrero pleaded guilty to conspiracy to distribute in excess of 50 grams of methamphetamine, and was sentenced to forty-two months’ imprisonment. See 21 U.S.C. §§ 846, 841(a)(1). The Department of Homeland Security (DHS) then reinstated the expedited removal order issued against him in 1998. At that time, Guerrero expressed a fear of returning to Mexico and was rеferred to a DHS asylum officer for a reasonable-fear interview. See 8 C.F.R. § 241.8(e). Following the interview, the asylum officer determined that Guerrero’s fear of persecution was reasonable and referred the matter to an Immigration Judge (IJ). See id. § 1208.31(b)-(e). Guerrero requested deferral of removal under the Convention Against Torture (CAT). [1] See id. § 1208.16. *3 At the hearing, Guerrero testified that he was afraid to return to Mexico because membеrs of a drug cartel based in Sinaloa were looking for him. Guerrero explained that prior to his arrest in 2012, he had been helping the cartel transport drugs into the country. During this time, one of his drivers disappeared with mоney owed to the cartel. According to Guerrero, the cartel held him responsible for the theft and threatened him.
Guerrero further testified that, while he was serving his federal sentence in the United States, members of the cartel in his home state of Sonora had kidnapped and beaten his brother. The kidnappers warned Guerrero’s brother that they were awaiting Guerrero’s return. Guerrero testified that his brother had filed a рolice report (which Guerrero submitted into evidence), but claimed that the police did not investigate the crime or make any arrests.
Guerrero told the court that law enforcement in Mexico would not be able to protect him if he were forced to return because the Mexican government has been infiltrated by the Sinaloa cartel. In support of these allegations, Guerrero submitted several reports issued by the State Department, including its 2014 Report on Human Rights Practices for Mexico, its 2015 International Narcotics Control Strategy Report on Mexico, as well as a Travel Warning issued on May 5, 2015. He also submittеd a number of news articles concerning cartels and corruption in Mexico.
Following the hearing, the IJ determined that Guerrero had failed to meet his burden under the CAT because he had not demonstrated that it was more likely than not § 1231(b)(3)(B)(ii). Guerrero did not seek administrative review of his withholding claim, and he does not attempt to obtain review of it here.
that he would be tortured by, or with the acquiescence of, the Mexican gоvernment if forced to return. See 8 C.F.R. § 1208.16(c)(2). Guerrero filed an administrative appeal. Upon review, the BIA affirmed the IJ’s decision and dismissed the appeal. [2]
Guerrero now petitions for review of the BIA’s order.
II.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). “Whеn,
as here, the BIA affirms an IJ’s decision and adds analysis of its own, we review both the
IJ’s and the BIA’s decisions.” Martinez v. Att’y Gen.,
§ 1252(b)(4)(B). “We review de novo constitutional claims or questions of law and the
application of law to facts with appropriate agency deference.” Yusupov v. Att’y Gen.,
The CAT prevents the United States government from removing an alien to a
country where an alien will face torture. See 8 C.F.R. § 1208.16(c)(2). To meet his
burden under the CAT, the aрplicant bears the burden of establishing, through objective
evidence, “that it is more likely than not” that he will be tortured if removed. 8 C.F.R.
*5
§ 1208.16(c)(2); see Sevoian v. Ashcroft,
The implementing regulations make clear that torture must be “inflicted by or at
the instigation of or with the consent or acquiescence of” an official person. 8 C.F.R.
§ 1208.18(a)(1) (emphasis added). The “acquiescеnce” requirement is met when “the
public official, prior to the activity constituting torture, ha[s] awareness of such activity
and thereafter breach[es] his or her legal responsibility to intervene to prevent such
activity.” 8 C.F.R. § 1208.18(a)(7). Notably, however, such “awareness” need not be
actual awareness. Rather, this Court has held that a government acquiesces to torture if it
is “willfully blind” to such activities; “[f]or purposes of CAT claims, aсquiescence to
torture requires only that government officials remain willfully blind to torturous conduct
and breach their legal responsibility to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d
58, 70 (3d Cir. 2007); see also Roye v. Att’y Gen.,
The agency construed the “acquiescence” standard too narrowly. In emphasizing
the Mexican government’s efforts to combat the drug cartels and root out corruption, the
IJ assumed that as lоng as the government is attempting to help its citizens, Guerrero
cannot establish that a public official or other person acting in an official capacity would
acquiesce in his torture at the hands оf the cartel. We have recognized, however, that the
“awareness” prong of acquiescence can be met by a showing that some elements of the
government are in a collusive relationshiр with the torturers—even if the government
generally opposes the groups. See, e.g., Pieschacon-Villegas v. Att’y Gen., 671 F.3d
303, 312 (3d Cir. 2011) (remanding to determine, inter alia, whether petitioner could
establish acquiescence despite evidence that the Colombian government had made efforts
to demobilize the FARC and AUC and control corruption); Gomez-Zuluaga v. Att’y
Gen.,
III.
We have considered the Government’s arguments in opрosition to the petition for review, and conclude that they lack merit. Accordingly, for these reasons set forth above, we will grant the petition for review, vacate the BIA’s order, and remand for further cоnsideration in light of this opinion. [3]
*8 novo agency review. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA reviews questions of law de novo, but findings of fact under a “clearly erroneous” standard”).
Notes
[*] This disposition is not an opinion of the full Court and pursuаnt to I.O.P. 5.7 does not constitute binding precedent.
[1] Guerrero also applied for withholding of removal under 8 U.S.C. § 1231(b)(3). The IJ later determined that he was ineligible for such relief because his drug trafficking conviction was a “pаrticularly serious crime” within the meaning of 8 U.S.C.
[2] In affirming the IJ’s decision, the BIA declined to consider two news articles that Guerrero had submitted for the first time on appeal, and further declined to remand the matter for the IJ to consider them in the first instance. Guerrero does not challenge those rulings here.
[3] In affirming the IJ’s decision, the BIA stated as follows: “Although the applicant may reasonably fear harm in Mexico by members of a drug cartel or by corrupt police officers, the [IJ’s] conclusion that the record does not indicate that it is more likely than not that he will face torture by or with the acquiescence (to include the concept of willful blindness) of an official of the government of Mexico upon return to that country is not clearly erroneous.” (AR000002) (emphasis added). Upon remand, the BIA should clarify whether there is a legal component to the acquiescence determination giving rise to de