De Carvalho v. Garland ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1711
JANITO DECARVALHO,
Petitioner,
v.
MERRICK B. GARLAND,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Trina Realmuto, with whom Tiffany Lieu, National Immigration
Litigation Alliance, Jennifer Klein, and Committee for Public
Counsel Services were on brief, for petitioner.
Marie V. Robinson, with whom Jeffrey Bossert Clark, Acting
Assistant Attorney General, Civil Division, Cindy S. Ferrier,
Assistant Director, Office of Immigration Litigation, and Andrew
N. O'Malley, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.
November 17, 2021
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr.
KAYATTA, Circuit Judge. The Board of Immigration
Appeals (BIA) held that Janito DeCarvalho's conviction for
possession of oxycodone with intent to distribute in violation of
Mass. Gen. Laws ch. 94C, § 32A(a), constitutes a "particularly
serious crime" that makes him ineligible for withholding of
removal. See 8 U.S.C. § 1231(b)(3)(B)(ii). The BIA also denied
DeCarvalho's application for deferral of removal under the
Convention Against Torture (CAT). DeCarvalho petitions for review
of the BIA's decisions, principally arguing that the Attorney
General's decision in Matter of Y-L- unlawfully presumes that all
aggravated felonies involving trafficking in controlled substances
are particularly serious crimes. See 23 I. & N. Dec. 270, 274–75
(U.S. Att'y Gen. 2002). We deny his petition for review insofar
as he seeks CAT relief. We grant the petition in part, however,
because the immigration judge (IJ) informed DeCarvalho, who was
proceeding pro se, that he was eligible for potential relief only
under the CAT. In so doing, the IJ treated DeCarvalho's conviction
for drug trafficking as if it were a per se bar to withholding of
removal, a position that the government now disavows on appeal.
We remand to the agency with instructions to give DeCarvalho a new
hearing to determine whether he is entitled to withholding of
removal.
- 2 -
I.
DeCarvalho is a native and citizen of Cape Verde.
Between 2001 and 2003, DeCarvalho served as an officer in Cape
Verde's national police force. In 2004, DeCarvalho left Cape Verde
and came to the United States on a tourist visa. After his visa
expired, DeCarvalho remained in the United States and was granted
conditional permanent resident status in 2012. In 2015, DeCarvalho
was convicted in state court of several offenses, including
possession with intent to distribute oxycodone in violation of
Mass. Gen. Laws ch. 94C, § 32A(a). He was sentenced to three and
a half years' imprisonment.
Citing his oxycodone conviction as a basis for
removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), the
Department of Homeland Security initiated removal proceedings
against DeCarvalho approximately two years after he completed his
prison term. DeCarvalho appeared pro se before an IJ. The IJ
informed DeCarvalho that "because of [his] drug trafficking
conviction, [he was] only eligible to apply for . . . deferral
under the [CAT]."
The IJ held a hearing on DeCarvalho's application for
deferral of removal under the CAT. After DeCarvalho and his
brother testified, the IJ confirmed his earlier pronouncement that
DeCarvalho's prior conviction rendered him ineligible for any
relief other than deferral of removal under the CAT. As to the
- 3 -
matter of withholding from removal, the IJ found that DeCarvalho
had been convicted of a "particularly serious crime" under 8 U.S.C.
§ 1231(b)(3)(B)(ii), rendering him ineligible to apply for
withholding.
The IJ then analyzed whether DeCarvalho was eligible for
deferral of removal under the CAT. DeCarvalho claimed that he
faced potential harm from several sources: members of a criminal
organization seeking retribution against his sister for testifying
against them; criminals whom DeCarvalho had arrested when he worked
as a police officer; and his former supervisors in the police
force. Finding him credible, the IJ nevertheless concluded that
DeCarvalho had not shown that it was more likely than not that he
would be tortured by or with the acquiescence of government
officials upon returning to Cape Verde.
Still proceeding pro se, DeCarvalho appealed to the BIA.
The BIA adopted and affirmed the IJ's decision denying CAT relief.
Citing Matter of Y–L–, the BIA also found that "[t]he conviction
for a drug trafficking offense is also a particularly serious crime
barring the respondent from withholding of removal." DeCarvalho
then filed a timely petition for review with this court.
Now represented by counsel, DeCarvalho makes two basic
arguments that we will consider in turn: that the IJ and the BIA
erred in finding that his prior conviction rendered him ineligible
for withholding; and that the IJ and BIA also erred in denying his
- 4 -
request for CAT protection.1 We have jurisdiction to review the
constitutional and legal questions raised in this petition. 8
U.S.C. § 1252(a)(2)(D).
II.
A.
A noncitizen is ineligible for withholding of removal
"if the Attorney General decides" that the noncitizen, "having
been convicted by a final judgment of a particularly serious
crime[,] is a danger to the community of the United States." 8
U.S.C. § 1231(b)(3)(B)(ii). The statute further provides that:
[A]n alien who has been convicted of an
aggravated felony (or felonies) for which the
alien has been sentenced to an aggregate term
of imprisonment of at least 5 years shall be
considered to have committed a particularly
serious crime. The previous sentence shall
not preclude the Attorney General from
determining that, notwithstanding the length
of the sentence imposed, an alien has been
convicted of a particularly serious crime.
Id. § 1231(b)(3)(B). The definition of "aggravated felony"
includes "illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug trafficking
1 DeCarvalho also argues that the IJ and the BIA lacked
jurisdiction over his removal proceedings because he received a
Notice to Appear that lacked the date and time of his hearing. He
recognizes, however, that we have already rejected the argument
that such defects preclude the exercise of jurisdiction over
removal proceedings. See Goncalves Pontes v. Barr, 938 F.3d 1, 5–
7 (1st Cir. 2019).
- 5 -
crime (as defined in section 924(c) of Title 18)." 8 U.S.C.
§ 1101(a)(43)(B).
DeCarvalho does not dispute that his drug trafficking
conviction satisfies this definition of an "aggravated felony."
And the government agrees that because DeCarvalho was sentenced to
fewer than five years of imprisonment, his conviction does not
qualify automatically as a particularly serious crime under the
first sentence of the text block-quoted above. So the key question
is whether the Attorney General has lawfully determined that
notwithstanding the length of DeCarvalho's sentence, his
aggravated felony conviction is for a "particularly serious
crime."
The BIA answered "yes" to this question by pointing to
the Attorney General's opinion in Matter of Y-L-, which established
a presumption that an aggravated felony involving drug trafficking
is a particularly serious crime even if it does not result in a
sentence of five or more years. 23 I. & N. Dec. at 273–75. That
presumption may only be rebutted by a showing of "extraordinary
and compelling circumstances." Id. at 274. Specifically, the
noncitizen must show that the felony conviction in question
involved, "at a minimum":
(1) a very small quantity of controlled
substance; (2) a very modest amount of money
paid for the drugs in the offending
transaction; (3) merely peripheral
involvement by the alien in the criminal
- 6 -
activity, transaction, or conspiracy; (4) the
absence of any violence or threat of violence,
implicit or otherwise, associated with the
offense; (5) the absence of any organized
crime or terrorist organization involvement,
direct or indirect, in relation to the
offending activity; and (6) the absence of any
adverse or harmful effect of the activity or
transaction on juveniles.
Id. at 276–77.
DeCarvalho argues that Matter of Y-L- represents an
unreasonable interpretation and application of the Attorney
General's authority under section 1231(b)(3)(B), and therefore
cannot be sustained as a matter of deference otherwise due under
Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). DeCarvalho's
argument proceeds in two parts. First, he contends that Matter of
Y-L- effectively operates as a per se rule rather than a
presumption. After all, he notes, the government does not point
to even a single instance in which the so-called presumption has
been overcome.2 Second, DeCarvalho argues that the first sentence
2The government cites Diaz v. Holder, in which the IJ
determined that the noncitizen rebutted the presumption. 501 F.
App'x 734, 736–37 (10th Cir. 2012). But, the BIA overturned that
decision on appeal, and the Tenth Circuit affirmed. Id. at 737–
38 (concluding the BIA did not abuse its discretion because it
"engaged in an individualized determination").
The closest instance (though not cited by the government)
appears to be a statement not by any IJ, but by the Third Circuit
panel in Lavira v. Attorney General, that the "facts of this
offense appear to place him squarely within the [Matter of Y-L-
exception]." 478 F.3d 158, 165 (3d Cir. 2007), overruled on other
grounds by Pierre v. Att'y Gen., 528 F.3d 180, 189 (3d Cir. 2008)
(en banc). But that statement was made only in vacating a BIA
- 7 -
of section 1231(b)(3)(B) limits the universe of offenses that may
be treated as per se particularly serious crimes to aggravated
felonies resulting in sentences of imprisonment of five or more
years. Because DeCarvalho was sentenced to fewer than five years,
he contends that the Attorney General lacks the authority to treat
him as per se ineligible for withholding of removal.
In response, the government eschews any contention that
the Attorney General has the discretion under
section 1231(b)(3)(B)(ii) to determine that convictions for drug
trafficking are categorically convictions for particularly serious
crimes if the term of imprisonment falls short of five years.
Rather, the government argues only that Matter of Y-L- merely
provides a strong presumption that nevertheless can be overcome
through individualized determinations. And, it explains, creating
a strong but rebuttable presumption is a reasonable application of
the statute. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 948
(9th Cir. 2007) (holding that the authority to create this
presumption is a reasonable interpretation of the statute).
Consistent with that position, the government agrees
with DeCarvalho's alternative argument; i.e., that if Matter of
Y-L- does not effectively categorize all drug trafficking
decision to the contrary because (as here) the IJ had not
considered the matter. There is no indication that the noncitizen
succeeded on remand in rebutting the presumption.
- 8 -
convictions as convictions for particularly serious crimes, then
the IJ erred in telling the pro se DeCarvalho prior to any hearing
that he was not eligible for withholding. Hence, the government
agrees that remand is required.
That position poses something of a puzzle for
DeCarvalho. If we were to proceed now and agree with DeCarvalho
that Matter of Y-L- effectively creates a categorical rule, he
could lose -- and a remand become useless -- if we were to find
that the Attorney General could adopt such a categorical rule. On
the other hand, neither the Attorney General nor the BIA here has
claimed the statutory authority to deem a crime categorically
particularly serious.
Given the foregoing partially-aligned positions of the
parties, we think it best to take this a step at a time. We will
vacate and remand the finding that DeCarvalho is not eligible for
withholding. See Quintero v. Garland, 998 F.3d 612, 644 (4th Cir.
2021) (remanding for "further fact-finding and reconsideration").3
On remand, DeCarvalho will then have an opportunity to see if he
can rebut Matter of Y-L-'s so-called presumption, and the
government will have the opportunity to supplement the record with
any evidence that the presumption can be overcome. See Miguel-
3 DeCarvalho requests reassignment to a different IJ on
remand. We express no view on whether this case should be
reassigned.
- 9 -
Miguel, 500 F.3d at 947 ("Presumably . . . there will be some cases
in which [the Matter of Y-L-] exception applies.").4 Should
DeCarvalho lose on remand based on Matter of Y-L-, he will then
still have the opportunity to challenge Matter of Y-L- on appeal.
This will also provide the Attorney General with an
opportunity to consider whether, based on the experience of two
decades and Congress's increasingly nuanced view of drug
trafficking offenses,5 Matter of Y-L- may have turned out to over-
shoot the mark.
B.
DeCarvalho makes a separate argument based on the text
of section 1231(b)(3)(B)(ii). He points out that the statute
renders a person ineligible for withholding "if the Attorney
General decides" that the person "having been convicted by a final
judgment of a particularly serious crime is a danger to the
community." (emphasis supplied). DeCarvalho contends that this
text plainly requires the Attorney General to find not just that
DeCarvalho committed a particularly serious crime, but that he is
4 The government assures us that there are cases in which
noncitizens have fit within the presumption, although none are in
this record. Remand will provide a full opportunity for the
government and the BIA to survey those rare cases.
5 See, e.g., First Step Act, Pub. L. No. 115-391, § 401, 132
Stat. 5194, 5220–21 (2018); Fair Sentencing Act, Pub. L. No. 111-
220, 124 Stat 2372(2010).
- 10 -
also a danger to the community, a finding that might be belied by
his behavior since he was released from prison several years ago.
The government responds to this argument in a footnote,
contending that our decision in Valerio-Ramirez v. Sessions, 882
F.3d 289, 296 (1st Cir. 2018), rejected this precise argument.
Valerio-Ramirez did indeed describe as "upheld" the BIA's
interpretation that a person found to have been convicted of a
particularly serious crime "necessarily represents a danger to the
community." Id. at 295 (quoting Velerio-Ramirez v. Lynch, 808
F.3d 111, 115 n.7 (1st Cir. 2015)). But the BIA's criteria for
labeling a crime particularly serious in that case included
"whether the type and circumstances of the crime indicate that the
alien will be a danger to the community." Id. at 115 (quoting
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)
(describing this inquiry as the "most important[]")). For that
scheme, the court concluded that "no separate dangerousness
assessment is required." Id. Matter of Y-L-, by contrast,
arguably does not so incorporate a finding that the noncitizen
will be a danger to the community into its consideration of what
is presumed to be a particularly serious crime.
What the BIA makes of this, we do not know. The
government does not argue that DeCarvalho failed to raise the
issue, but the BIA certainly says nothing of it in its opinion.
Given that we are remanding on the question of whether DeCarvalho's
- 11 -
conviction renders him ineligible for withholding, we leave
further consideration of this related argument to the BIA in the
first instance. Velerio-Ramirez, 808 F.3d at 117 ("[W]hen the BIA
has not spoken on an issue that the statute has placed in its
hands, remand is appropriate to give the BIA an opportunity to
address the issue in the first instance.").
III.
We turn next to DeCarvalho's claim for deferral of
removal under the CAT. When the BIA's decision adopts parts of
the IJ's decision and adds its own analysis, we review the two
decisions together. See Guerrero v. Holder, 667 F.3d 74, 76 (1st
Cir. 2012). To succeed on a CAT claim, DeCarvalho must show that
it is "more likely than not that he . . . would be tortured if
removed to the proposed country of removal." 8 C.F.R.
§ 1208.16(c)(2). For purposes of evaluating a CAT claim, torture
is defined as:
(1) an act causing severe physical or mental
pain or suffering; (2) intentionally
inflicted; (3) for a proscribed purpose;
(4) by or at the instigation of or with the
consent or acquiescence of a public official
who has custody or physical control of the
victim; and (5) not arising from lawful
sanctions.
Samayoa Cabrera v. Barr, 939 F.3d 379, 382 (1st Cir. 2019) (quoting
Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004)); see also
8 C.F.R. § 1208.18(a).
- 12 -
DeCarvalho argues that he would be subjected to torture
upon his return to Cape Verde for three reasons: First, his sister
testified against certain "criminal organizations;" second, people
he arrested as a police officer between 2001 and 2003 threatened
him; and, third, a police superintendent was angry with him because
he left the police force without permission and did not create the
proper paperwork.
As to the first reason, the IJ pointed out that the Cape
Verde government is protecting his sister and is prosecuting the
crimes, which means he failed to establish that the criminal
organizations would harm him with the acquiescence of the
government. As to the second reason, the IJ found that the last
such threat was over thirteen years ago and that there is no reason
to suspect that those who made the threat would seek him out for
torture today. Finally, as to the third reason, the IJ was not
convinced that the police superintendent would seek out DeCarvalho
eighteen years later to torture him for not following proper
procedures when he left the police force.
The BIA affirmed. In rejecting DeCarvalho's CAT claim,
the BIA stated:
Based on our review of the record, we discern
no clear error in the [IJ]'s determination
that it is not more likely than not that the
respondent would be tortured in Cape Verde by
individuals previously arrested by the
respondent while he was a police officer, his
former police superintendent, or criminal
- 13 -
organizations that his sister testified
against. See Matter of Z-Z-O-, 26 I. & N.
Dec. 586, 590 (BIA 2015) ("[A]n Immigration
Judge's predictive findings of what may or may
not occur in the future are findings of fact,
which are subject to a clearly erroneous
standard of review."). We also agree with the
[IJ] that the evidence does not demonstrate
that the Cape Verdean authorities would
acquiesce in, consent to, or exhibit willful
blindness to any torture of respondent by
private actors. See Granada-Rubio v. Lynch,
814 F.3d 35, 39 (1st Cir. 2016).
(record citations omitted) (emphasis added).
DeCarvalho first argues that the BIA applied the wrong
standard of review to the IJ's decision. He then argues that its
decision is in any event unsupported by substantial evidence. We
address these arguments in turn.
A.
DeCarvalho argues that the BIA failed to apply the proper
standard of review because its decision referred only to the
absence of "clear error" in the IJ's determination about the
likelihood that DeCarvalho would be tortured if removed to Cape
Verde. He argues that whether he would be subject to "torture"
justifying CAT relief is a question of law that the BIA should
have decided de novo. See Matter of R-A-F-, 27 I. & N. Dec. 778,
779 (U.S. Att'y Gen. 2020).
In so arguing, DeCarvalho glosses over the several
components of a "torture" finding and misapprehends the bases on
which the IJ and then the BIA denied DeCarvalho's request for
- 14 -
relief. In assessing whether CAT relief is appropriate, an IJ
makes findings of fact (e.g., whether a person is likely to suffer
a particular harm and the role of the foreign government in causing
or allowing that harm) and also determines how the law applies to
those facts (e.g., whether such harm rises to the level of torture
and whether the government's role renders the harm "by or at the
instigation of or with the consent or acquiescence of a public
official," Samayoa Cabrera, 939 F.3d at 382 (citation omitted)).
The BIA reviews the former for clear error and the latter de novo.
See id. at 382–83; see also Matter of Z-Z-O-, 26 I. & N. Dec. 586,
590–91 (BIA 2015).
Here, DeCarvalho points to two sources of alleged
torture: people he long ago arrested, and criminals against whom
his sister testified.6 As to the arrestees, the IJ was unpersuaded
that they would even seek out DeCarvalho, much less harm him with
the acquiescence of the government. This determination about the
likelihood that harm would befall DeCarvalho upon his return was
a finding of fact, not a legal conclusion as to whether any such
harm would qualify as torture. The BIA therefore appropriately
reviewed that finding for clear error. See Al Amiri v. Rosen, 985
6 Before the IJ and the BIA, DeCarvalho also claimed that
his former supervisors in the police force posed a threat to him.
He has not renewed that argument before this court, and it is
therefore waived. Marquez-Paz v. Barr, 983 F.3d 564, 565 (1st
Cir. 2020).
- 15 -
F.3d 1, 8 (1st Cir. 2021) (affirming the BIA's determination that
the IJ did not "clearly err" in concluding that applicant's
proffered evidence did not show "that it is more likely than not
that he will suffer" the harm he feared).
As to harm at the hands of the criminal organizations
against whom his sister testified, the IJ found that, even if such
harm transpired, it would not be "on behalf of or with the
acquiescence of the government," which had prosecuted those
organizations and taken steps to protect his sister. DeCarvalho
contends that this conclusion was largely if not entirely a
determination of law. He then argues that the BIA erred by
reviewing it only for clear error.
We disagree with his description of what the BIA did.
When the BIA does not expressly specify the standard of review it
is applying, we have concluded that the BIA applied the proper
test when the agency's decision calls the IJ's determination
"correct" and "cite[s] legal authority for its conclusion."
Samayoa Cabrera, 939 F.3d at 383. Here, the BIA stated that it
"also agree[d] with the [IJ]" on the issue of government
acquiescence and cited to this court's precedent as support. This
- 16 -
suggests not deference to, but rather alignment with, the IJ's
assessment of DeCarvalho's proffered evidence of acquiescence.7
For these reasons, we reject DeCarvalho's arguments that
the BIA applied an incorrect standard of review when evaluating
DeCarvalho's CAT claim.
B.
We turn finally to DeCarvalho's argument that
substantial evidence did not support the denial of CAT relief. We
will uphold the BIA's findings "if they are 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.'" Agustin v. Whitaker, 914 F.3d 43, 45
(1st Cir. 2019) (quoting Touch v. Holder, 568 F.3d 32, 37–38 (1st
Cir. 2009)). A BIA decision lacks the support of substantial
evidence when the record compels a conclusion contrary to the one
reached by the agency. See Ruiz-Guerrero v. Whitaker, 910 F.3d
572, 575 (1st Cir. 2018).
DeCarvalho contends on this appeal that if he were
returned to Cape Verde, he would more likely than not be tortured
by either people whom he had previously arrested as a police
7DeCarvalho additionally contends that the BIA's use of the
word "also" implied that the BIA only agreed with the IJ's
determination subject to the "clear error" standard of review
employed as to the other sources of claimed harm. We think this
places far too much weight on the word "also" and ignores the plain
meaning of "agree." If anything, the BIA's statement that it "also
agree[d]" with the IJ's conclusion signals even more clearly that
it likely agreed with the IJ's findings of fact, as well.
- 17 -
officer or members of a crime organization seeking retribution
against his sister. We find that the record before the agency
does not compel a finding that he is more likely than not to be
tortured upon returning to Cape Verde.
We start with DeCarvalho's claim that people he arrested
as a police officer pose an ongoing threat to him. He points to
threatening social media messages he received from some of these
individuals in 2005 and 2006. DeCarvalho argues that these people
were prosecuted for serious crimes and are thus likely to present
a danger to DeCarvalho if he is returned to Cape Verde. And he
contends that because these individuals were sending him messages
over a year after he departed Cape Verde, there is reason to think
the threat to him persists.
The IJ was unpersuaded that there are any people "that
[DeCarvalho] arrested who are currently looking for him today or
would seek him out to torture him today." The record does not
compel a contrary conclusion. The passage of over a decade since
the last threatening message to DeCarvalho weakens any inference
that the people whom he arrested continue to pose a threat to him.
DeCarvalho's claim that he is likely to be tortured by
the criminal organization pursuing his sister arguably presents a
closer question, but substantial evidence also supports the
rejection of that claim. At the hearing before the IJ, DeCarvalho
explained that his sister had testified against members of a
- 18 -
criminal organization in exchange for a more lenient sentence on
drug trafficking charges. According to DeCarvalho, the criminal
organization attempted to kill his sister by carrying out a drive-
by shooting at her home. After the shooting, Cape Verdean police
placed DeCarvalho's sister in protective custody. One of
DeCarvalho's brothers testified that their mother had received
death threats and that someone had gone to their mother's house to
kill her. DeCarvalho's mother subsequently left Cape Verde to
live in the United States with DeCarvalho's brother.
As we have already explained, above, the BIA agreed with
the IJ's determination that DeCarvalho failed to establish that
the criminal organization threatening DeCarvalho's sister would be
acting on the government's behalf or with its acquiescence if the
same organization was to harm DeCarvalho. In so concluding, the
IJ acknowledged that DeCarvalho's sister was in danger in Cape
Verde and that his mother feared harm but emphasized that the Cape
Verdean government was protecting DeCarvalho's sister and was
prosecuting the organization that threatened her.
The BIA supportably found that Cape Verde's government
would not acquiesce in, consent to, or exhibit willful blindness
to any harm to DeCarvalho that the criminal organization might
cause. The government's efforts to protect DeCarvalho's sister
cut against the suggestion that the government would acquiesce to
the criminal organization's potential actions against him.
- 19 -
DeCarvalho cannot show that a contrary conclusion is
required. DeCarvalho argues that the threat to his mother
indicates that he is likely to become a target himself. And he
contends that the Cape Verdean government's efforts to protect his
sister do not show that Cape Verde will use its limited law
enforcement resources to protect him. But these concerns about
how the Cape Verdean police will prioritize DeCarvalho's
protection and the overall effectiveness of its law enforcement
efforts do not compel the conclusion that Cape Verde has acquiesced
to violent acts by the criminal organization. DeCarvalho has not
shown that Cape Verde's government will not continue to prosecute
the organization and resist its efforts to intimidate witnesses
against it.
For these reasons, we conclude that substantial evidence
supports the denial of DeCarvalho's claim for CAT relief.
IV.
The petition for review is denied in part, insofar as
DeCarvalho seeks deferral of removal under the Convention Against
Torture, and granted in part, insofar as the BIA deemed DeCarvalho
ineligible for withholding of removal. We vacate the denial of
withholding and remand for further proceedings consistent with
this opinion.
- 20 -