Guity Casildo v. Garland ( 2021 )

Case: 19-60322 Document: 00515921922 Page: 1 Date Filed: 07/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 1, 2021
No. 19-60322
Lyle W. Cayce
Summary Calendar Clerk
Juan Carlos Guity Casildo,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A077-008-511
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Juan Carlos Guity Casildo, a native and citizen of Honduras, sought
to enter the United States without proper documentation in 2017. Pertinent
to this appeal, he requested relief from removal under the Convention
Against Torture (CAT). To prevail on his CAT claim, he must show that it
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60322
is “more likely than not that [he] will be tortured upon return to his
homeland.” Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014); see 8 C.F.R.
§ 1208.16(c)(2). He also must show that the torture will be intentionally
“inflicted by, or at the instigation of, or with the consent or acquiescence of,
a public official acting in an official capacity or other person acting in an
official capacity.” § 1208.18(a)(1); see Iruegas-Valdez v. Yates, 846 F.3d 806,
812 (5th Cir. 2017). The required state involvement can occur absent state
sanction where torturous acts are committed “under color of law,” such as
when a corrupt police officer abuses power while clothed with the state’s
authority. Iruegas-Valdez, 846 F.3d at 812-13 (citing Garcia).
The immigration judge (IJ) did “not dispute that corrupt police may
try to kill [Guity Casildo] or his family because he tried to report [threats and
extortion] to the authorities.” But the IJ then concluded that Guity Casildo
had “not established that any harm done to him would be with the consent
or acquiescence of the government” where testimony showed “that the
government is not turning a blind eye to police corruption.” The IJ did not
mention the color-of-law theory of state involvement.
The Board of Immigration Appeals (BIA) dismissed Guity Casildo’s
initial appeal based on its view that the IJ had not found torture to be more
likely than not, despite the IJ’s “may try to kill” observation. In an appeal
from that decision, Guity Casildo v. Whitaker, No. 18-60466, we granted a
joint motion for a remand to allow the BIA to reconsider whether Guity
Casildo showed the requisite likelihood or torture in light of the IJ’s “may try
to kill” statement, and if so, whether state involvement was established under
the color-of-law rule. Nonetheless, without further briefing in an April 2019
order, the BIA simply repeated its finding that the IJ’s “may try to kill”
statement was a finding that Guity Casildo had failed to establish the requisite
likelihood of torture. In December 2019, the BIA reiterated this reasoning
when it denied Guity Casildo’s motion to reconsider or reopen.
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Consequently, the BIA has not addressed the question of the applicability of
the color-of-law rule regarding state involvement in torture. See Iruegas-
Valdez, 846 F.3d at 812-13 (citing Garcia).
Guity Casildo has filed timely petitions for review of the BIA’s April
2019 decision on appeal and its December 2019 denial of reconsideration or
reopening. Factual findings, including those pertaining to the denial of CAT
relief, are reviewed for substantial evidence, which means that the petitioner
has “the burden of showing that the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion.” Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006). Nonetheless, the BIA’s decision must
reflect “meaningful consideration of the relevant substantial evidence.”
Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996). Further, the BIA may
“not engage in de novo review of findings of fact,” but may only review the
IJ’s findings, which it does for clear error. 8 C.F.R. § 1003.1(d)(3)(i);
Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir. 2009). Also, the
BIA may not make actual findings in the first instance. § 1003.1(d)(3)(iv).
Read in context, the IJ’s observation “that corrupt police may try to
kill” Guity Casildo is ambiguous at best. It could mean that torture by rogue
police was likely but ultimately irrelevant due to the lack of state involvement,
or it could constitute no affirmative finding regarding the likelihood of torture
because the IJ did not need to make such a finding, again due to the lack of
state involvement. If the statement constituted no finding by the IJ, then the
BIA acted ultra vires by making its factual finding in the first instance. See 8
C.F.R. § 1003.1(d)(3)(iv). If the IJ’s statement was a finding of fact on the
likelihood of torture, then the BIA engaged in a prohibited de novo review of
that finding. See § 1003.1(d)(3)(i); Alvarado de Rodriguez v. Holder, 585 F.3d
227, 234 (5th Cir. 2009). In either case, the BIA’s finding was not supported
by “substantial evidence.” See Chen, 470 F.3d at 1134; Abdel-Masieh, 73 F.3d
at 585.
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The parties agree that a remand is the best alternative where the BIA
has made an unauthorized or inadequately supported factual finding on the
likelihood of torture, thereby leaving unresolved whether the IJ failed to
apply the rule-of-law theory of state involvement in torture. Accordingly, we
conclude that the prudent course is to remand the case to the BIA. See Zhu
v. Ashcroft, 382 F.3d 521, 527 (5th Cir. 2004) (holding that this court is “free
to vacate and remand when we simply cannot determine based upon a review
of the IJ’s decision why the applicant was denied relief”); see also Pena
Oseguera v. Barr, 936 F.3d 249, 251 (5th Cir. 2019) (remanding in the interest
of clarity). We further order the BIA to remand the case to the IJ for a clear
factual finding on the likelihood of torture and for the IJ’s clarification, if
necessary, on the question of state involvement in light of the color-of-law
rule. See Wu v. Holder, 571 F.3d 467, 470 (5th Cir. 2009). In light of this
decision, we need not address the BIA’s denial of the motion for
reconsideration, the ruling challenged by Guity Casildo’s second petition for
review. See Siwe v. Holder, 742 F.3d 603, 613-14 & n.2 (5th Cir. 2014).
PETITION GRANTED; VACATED AND REMANDED
WITH INSTRUCTIONS TO REMAND
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