Luis Dutton Myrie v. Attorney General United State , 855 F.3d 509 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-1599
________________
LUIS ANTONIO DUTTON MYRIE,
Petitioner
v.
THE ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Walter A. Durling
(No. A070-851-548)
________________
Argued November 16, 2016
Before: AMBRO, CHAGARES,
and FUENTES, Circuit Judges
(Opinion filed: April 28, 2017)
Nathanael P. Kibler (Argued)
Baker Donelson Bearman Caldwell & Berkowitz
265 Brookview Centre Way, Suite 600
Knoxville, TN 37828
Counsel for Petitioner
Benjamin C. Mizer
Principal Deputy Assistant Attorney General
Civil Division
Bernard A. Joseph
Senior Litigation Counsel
Jason Wisecup
Erica B. Miles (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Petitioner Luis Antonio Dutton-Myrie petitions for
review of a ruling by the Board of Immigration Appeals
(“BIA” or “Board”) dismissing his appeal of the decision by
an Immigration Judge (“IJ”) that he is ineligible for deferral
of removal under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
2
Punishment. S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85
(“CAT”). Dutton-Myrie contends that the Board erred in
affirming the IJ’s conclusion that the government of Panama
would not be willfully blind to torturous acts against him and,
in any event, stated incorrectly what constitutes acquiescence
to torture by Panamanian officials. He also asserts that the IJ
is biased against him and this, among other things, violated
his due process rights.
We conclude that the BIA did not apply the correct
legal standard under the CAT and should have reviewed the
IJ’s application of this standard de novo. We remand on these
grounds. While we reserve judgment on Dutton-Myrie’s due
process claim, we express concern that the IJ’s opinion
suggests such frustration with this case (which appears to
have nine lives) that the Board should consider assigning it to
a new IJ if further fact-finding is necessary.
I. Facts and Procedural History
a. Dutton-Myrie’s background
Dutton-Myrie is a native and citizen of Panama who
came to the United States on a visitor’s visa in 1991 and
remained after his visa expired six months later. In the early
1990s he pled guilty to cocaine-related offenses and criminal
attempt to commit escape.
In 1998 the former Immigration and Naturalization
Service charged Dutton-Myrie as removable for overstaying
his visa and as an alien convicted of an aggravated felony for
trafficking in a controlled substance. An IJ sustained the
charges against him and ordered him removed to Panama.
Government agents began the process of deporting Dutton-
Myrie, but he de-boarded the plane undetected before it left
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the United States and continued to live in this country without
legal status.
The Government apprehended Dutton-Myrie in 2005
and deported him to Panama. A few days after he returned,
the record indicates that a group of men came to his ex-
girlfriend’s apartment and stabbed him in the neck. He fled
the country and re-entered the United States through its
southern border.
The Government apprehended Dutton-Myrie a second
time in 2007 and charged him with illegal re-entry. He
ultimately pled guilty to these charges and was sentenced to
time served.1 The Government then transferred him to the
custody of Immigration and Customs Enforcement (“ICE”).
b. Removal proceedings before the Immigration
Judge
The United States Department of Homeland Security
reinstated in 2012 the final order of removal against Dutton-
Myrie. However, an asylum officer found he expressed a
reasonable fear of returning to Panama and referred him to an
IJ. Dutton-Myrie filed an application for deferral of removal
under the CAT based on his claim that members of the Mara
Salvatrucha (“MS-13”) gang would likely torture him if he
returned to Panama.
Dutton-Myrie represented himself at the hearing on his
application. He testified that his uncle, Reginaldo, and his
brother, Ricardo, started a gang called La Banda del Norte in
the 1980s in his hometown of Colón, Panama. Over time the
1
He was also sentenced to two years of supervised
release in the event that he was not immediately deported to
Panama.
4
gang spread beyond Colón, entering into feuds with rival
gangs, including the MS-13. Dutton-Myrie claimed that
members of the Panamanian MS-13 were responsible for
beating Reginaldo to death in Brooklyn, New York, in 1992,
and for murdering Ricardo in Panama four years later.
According to Dutton-Myrie, the MS-13 targeted male
family members living in Panama because of their kinship
ties to Reginaldo and Ricardo: in 1995, Dutton-Myrie’s
brother Jose was drowned; his brother Nelson was beaten and
stabbed in 1997; his brother Arnaldo was shot in 2001, was
attacked again in 2004, and died in 2009 after members of the
MS-13 shot him 21 times; and in 2010 his brother Regelio
was shot twice but survived.
Dutton-Myrie further testified that gang members
attacked him immediately after he arrived in Panama in 2005.
A former girlfriend in Panama submitted an affidavit attesting
that she called the police to report the attack, but no officer
came to investigate. Dutton-Myrie then fled the country. He
stated that he believed the police were either bribed by the
MS-13 or were unwilling to protect his family, and he
supported this conclusion with record evidence of his
brothers’ deaths and testimonial evidence that the
investigations into the murders and violent attacks remained
unresolved. Dutton-Myrie also submitted a letter from the
Panamanian Department of Public Safety confirming the
deaths of his family members, stating that his surviving
family members receive death threats, and referencing a
complaint that his mother made reporting threats to her
children’s lives.
The IJ found Dutton-Myrie to be credible, accepting as
true his testimony that the gang had killed several of his
family members and that police had not prosecuted anyone
for these crimes. Though expressing “concerns for [the]
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safety” of Dutton Myrie if he were removed to Panama, the IJ
nonetheless determined that he failed to establish that
Panamanian officials would consent or acquiesce to the harm
he feared and thus denied his CAT claim.
c. The BIA’s first ruling
Dutton-Myrie appealed the IJ’s conclusion that he was
not eligible for CAT relief. The BIA affirmed, holding that
“[t]he evidence d[id] not establish that the Panamanian
government acquiesces to torture by gangs, as the term has
been interpreted by the Third Circuit, but rather shows that it
has been actively trying to combat them.”
d. The Government requests remand
Dutton-Myrie petitioned our Court for review. The
Attorney General filed a motion to remand to “allow the
Board to reconsider and/or clarify the bases for its . . .
decision in light of Pieschacon-Villegas v. Att’y Gen. of the
U.S., 671 F.3d 303, 311-14 (3d Cir. 2011).” We granted this
motion and remanded the case to the BIA, whereupon it
vacated its first decision and remanded to the IJ.
e. The Immigration Judge’s second decision and
the BIA’s second ruling
The IJ issued a second ruling in 2013. He again
denied CAT relief. Though the IJ found that Dutton-Myrie’s
“credibility [was] not at issue,” CAT protection remained
unavailable because he determined Dutton-Myrie had not
established that the Panamanian government “permit[ted] a
certain level of gang violence in order to inflict severe pain or
suffering on him.” On appeal, Dutton-Myrie argued the IJ
applied an erroneous legal standard for acquiescence by
requiring him to show the Panamanian government intended
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that he be tortured.
The Board sustained the appeal. It agreed that the
specific intent requirement applies only to those who commit
acts of torture, whereas an applicant need only show willful
blindness to establish acquiescence to the torture by others. It
also noted that the IJ failed to consider evidence relevant to
the likelihood of future harm. The Board therefore found it
“necessary to again remand [for the IJ] to reassess whether
[Dutton-Myrie] established acquiescence” despite the
Panamanian government’s opposition to the MS-13, as well
as “evidence of future torture.”
f. The IJ’s third decision and the Board’s remand
The IJ denied relief a third time in 2014. There he
relied on independent research he put into evidence, including
a 2011 Panama Crime and Safety Report and an article from
Panama Digest, which he found suggested the MS-13 gang
was a “recent phenomenon” in Panama. The IJ further
deviated from his prior two findings of credibility, stating
instead that the evidence cast “serious doubt on the veracity
of [Dutton-Myrie]’s claim that MS-13 lay behind the
devastation to his family.” The IJ discounted the letter from
the Department of Public Safety in Panama as unverified. He
then concluded without discussion that the evidence was
insufficient to establish willful blindness.
Dutton-Myrie appealed, and once again the Board
ordered a remand to the IJ for further proceedings. It held
that he erred in (1) questioning Dutton-Myrie’s credibility
despite finding him credible in prior proceedings, (2) failing
to notify Dutton-Myrie that further corroboration was
required, and (3) relying on an internet search that was not
part of the record of proceedings. The Board directed the IJ
on remand “again [to] determine whether [Dutton-Myrie]
7
established acquiescence, as well as evidence of the
likelihood of future torture.”
g. The IJ’s fourth decision and the Board’s
affirmance
On remand, the IJ requested that both parties respond
to the country conditions evidence the IJ introduced
previously. The record contains notice of a hearing, yet the
BIA cannot locate a transcript of the hearing and the
Government now contests Dutton-Myrie’s claim that it
occurred. In his fourth decision, the IJ concluded that there
was no rebuttal of the evidence suggesting that the MS-13
had only recently begun to infiltrate Panama and opined that
he was “wholly unconvinced” that the group had attacked
Dutton-Myrie and his brothers. Yet the IJ specifically
stepped back from any adverse credibility determination as
the legal basis for his decision. Instead, he relied on his
conclusion that Dutton-Myrie could not establish the
Panamanian government would acquiesce to the harm he
alleged and cited the absence of corroborating evidence that
the MS-13 was responsible for the deaths of Dutton-Myrie’s
family members or that it was operating in Panama when the
attacks occurred. The IJ also found that Panama was actively
combating gangs and that Dutton-Myrie could not establish
that it was unwilling or unable to protect him because he had
not reported the 2005 attack to the police and presented no
further evidence that a public official was “willing to do him
harm or [to] acquiesce in someone else doing him harm.”
Once again, Dutton-Myrie appealed the IJ’s decision,
and here the BIA dismissed the appeal. It discerned no clear
error in the IJ’s finding that the Panamanian government fell
short of acquiescing to torture. The Board supported this
conclusion by citing to the IJ’s findings that (1) “Panama
‘actively engage[s]’ against criminal gangs and combats
8
crime,” and (2) “although the applicant was attacked in
February 2005, he never reported the incident to police.” The
BIA also rejected Dutton-Myrie’s due process claims, finding
insufficient evidence that the IJ harbored personal bias
against Dutton-Myrie or that the IJ failed to consider relevant
evidence. While the Board recognized that “the [IJ] did not
specifically reference a letter from the Department of Public
Safety in Panama [confirming his family members’ deaths,
stating that his surviving family members continue to receive
death threats, and referencing his mother’s complaint
reporting threats to her children’s lives],” the Board
concluded that “this [was] insufficient to establish that the [IJ]
did not consider this evidence.” Another petition for review
followed.
II. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to
review a final order of the BIA denying CAT relief.
However, because Dutton-Myrie is subject to removal based
on an aggravated-felony conviction, the statute constrains our
jurisdiction to “constitutional claims or questions of law,” as
“factual or discretionary determinations are outside of our
scope of review.” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d
Cir. 2008) (en banc) (referring to the provisions of 8 U.S.C. §
1252(a)(2)(C)-(D)).
Constitutional claims or questions of law we review de
novo. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 63 (3d Cir.
2007). Where the BIA affirms and partially reiterates the IJ's
discussions and determinations, we look to both decisions.
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). If the
Board relies only on some of the grounds given for denying
relief, we review only these grounds. Chukwu v. Att’y Gen.,
484 F.3d 185, 193 (3d Cir. 2007).
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III. Analysis
a. The Convention Against Torture
Article 3 of the CAT provides that “[n]o State Party
shall expel, return . . . or extradite a person to another State
where there are substantial grounds for believing that he
would be in danger of being subjected to torture.” “The
burden of proof is on the applicant . . . to establish that it is
more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. §
1208.16(c)(2). “For an act to constitute torture under the
[CAT] and the implementing regulations, it must be: (1) an
act causing severe physical or mental pain or suffering; (2)
intentionally inflicted; (3) for an illicit or 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.” Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.
2005) (citing Matter of J–E–, 23 I. & N. Dec. 291, 297 (BIA
2002)). “If an alien produces sufficient evidence to satisfy
that burden, withholding of removal or deferring of removal
[under the CAT] is mandatory.” Silva–Rengifo, 473 F.3d at
64 (citing 8 C.F.R. §§ 1208.16–18).
To establish acquiescence, an applicant must
demonstrate that, prior to the activity constituting torture, a
public official was aware of it and thereafter breached the
legal responsibility to intervene and prevent it. 8 C.F.R.
§ 1208.18(a)(7). The applicant can meet this standard even
where the government does not have actual knowledge of the
torturous activity if he “produc[es] sufficient evidence that
the government [] is willfully blind to such activities.” Silva–
Rengifo, 473 F.3d at 65; see also Gomez–Zuluaga v. Att’y
Gen., 527 F.3d 330, 350 (3d Cir. 2008) (quoting Silva–
Rengifo, 473 F.3d at 65). “[A]ll evidence relevant to the
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possibility of future torture shall be considered.” 8 C.F.R. §
1206.16(c)(3); see Pieschacon-Villegas, 671 F.3d at 310.
Circumstantial evidence may establish acquiescence to
targeted acts of violence even when the government has an
official policy or is engaged in a campaign of opposition
against the entity the applicant fears. See id. at 312; Gomez-
Zuluaga, 527 F.3d at 351.
b. The BIA applied the incorrect standard of
review to the IJ’s determination that Dutton-
Myrie could not establish government
acquiescence to the torture he fears.
Dutton-Myrie argues that the BIA erred in reviewing
for clear error the IJ’s conclusion that the Panamanian
government would not acquiesce to torture. True enough, the
Code of Federal Regulations directs the Board to review the
IJ’s findings of fact for clear error, 8 C.F.R. § 1003.1
(d)(3)(i), but its authority to review questions of law,
discretion, and judgment is de novo, id. at § 1003.1(d)(3)(ii);
see also In re Cabrera, 241 I. & N. Dec. 459, 460 (BIA 2008)
(interpreting the regulation as providing de novo review of
questions of law or mixed questions of law and fact). We
agree with Dutton-Myrie that the question of whether likely
government conduct equates to acquiescence is a mixed
question of law and fact under our decision in Kaplun v. Att’y
Gen., 602 F.3d 260 (3d. Cir. 2010). What this means is that
the Board should review without deference the ultimate
conclusion that the findings of fact do not meet the legal
standard.
To determine whether an applicant has met the burden
of establishing that it is more likely than not he would be
tortured if removed, the IJ must address two questions: “(1)
what is likely to happen to the petitioner if removed; and (2)
does what is likely to happen amount to the legal definition of
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torture?” Id. at 271. In the first part of the inquiry, the IJ
reviews the evidence and determines future events more
likely than not to occur. These findings are “made up of
facts” and are “distin[ct] from [their] legal effect.” Id. at 269
(citing Black’s Law Dictionary 669 (9th ed. 2009)).
Accordingly, the Board reviews these factual findings for
clear error. Id. at 269-71. The IJ then determines whether the
likely harm qualifies as torture under the governing
regulations, and the Board reviews this legal conclusion de
novo. Id. at 271.
In assessing whether an applicant has established that
public officials will acquiesce to the feared tortuous acts of a
non-state actor, the IJ also must conduct a two-part analysis.
First, the IJ makes a factual finding or findings as to how
public officials will likely act in response to the harm the
petitioner fears. Next, the IJ assesses whether the likely
response from public officials qualifies as acquiescence under
the governing regulations. As above with respect to
determinations of torture, this second part of the inquiry is a
legal question. While the Board reviews the first part for
clear error, it must review the second de novo.
To the extent a dictum in Kaplun suggested that
whether the government would acquiesce was a factual
question, id. at 272, it addressed only the first component of
the inquiry into acquiescence: how the government would
likely act in response to the harm the applicant fears. We
clarify that the IJ must then apply the legal standard for
acquiescence to determine whether this response establishes
that a public official was “aware[] of [the torturous] activity”
and subsequently breaches his or her “legal responsibility to
intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).
In colloquial terms, the question might be: Is the official
willfully blind?
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The Board stated that it found “no clear error in the
Immigration Judge’s finding that the government of Panama
would not be acquiescent to any torture.” While the Board
was correct in reviewing for clear error the IJ’s factual
findings (that the government actively engages against
criminal gangs and that Dutton-Myrie did not provide the
police notice that the gang attacked him in the past), it should
have determined de novo whether these findings were
sufficient to establish acquiescence.
Although it is possible that the BIA considered the
appropriate willful blindness standard before concluding that
the IJ’s factual findings on likely government conduct would
not qualify as acquiescence to torture as a matter of law, we
cannot tell from the BIA’s short decision whether this is
indeed the case. “In order for us to be able to give
meaningful review to the BIA’s decision, we must have some
insight into its reasoning.” Awolesi v. Ashcroft, 341 F.3d 227,
232 (3d Cir. 2003). In any subsequent opinions in this case,
the BIA should endeavor to explain clearly which conclusions
of the IJ it is reviewing and which standard it is applying in so
doing.
While we recognize this error may have resulted from
a miscommunication on our part, the Board’s decision
illustrates why we must remand. Because the Board did not
conduct the second step of this two-part analysis, we have
little insight into the basis for its determination that the IJ’s
opinion “clearly reflects that he used the proper ‘willful
blindness’ standard in relation to the issue of acquiescence.”
In support of its conclusion, the Board provides only a
citation to a portion of the IJ’s opinion where he neither
defines willful blindness nor indicates why Dutton-Myrie’s
evidence of willful blindness was insufficient to establish
acquiescence. While the IJ states that he is incorporating his
“prior references to the CAT standards,” and that he “already
13
addressed” the holding of Pieschacon-Villegas in prior
rulings, the Board found that the IJ failed to apply our
holdings on acquiescence in Pieschacon-Villegas and Roye v.
Att’y Gen., 693 F.3d 333 (3d Cir. 2012), in those rulings.
Remand in this instance will give the Board an opportunity to
provide a reasoned basis for its conclusion as to whether
Dutton-Myrie can establish the necessary elements of torture.
c. On remand, the Board must consider
circumstantial evidence of willful blindness.
The regulations require the Agency to consider all
evidence relevant to the possibility of future torture. See 8
C.F.R. § 1206.16(c)(3); Pieschacon-Villegas, 671 F.3d at
315-317. Circumstantial evidence that public officials are
willfully blind may establish acquiescence to future torture.
Hence the Board must consider it.
Dutton-Myrie submitted circumstantial evidence via
live testimony and sworn letters attesting that the Panamanian
government had not taken steps to protect him or his family in
the past and would likely continue to breach the duty to
intervene in the future. In particular, he submitted a letter
from the Panamanian Public Safety Department attesting to
continued threats to his family members and that his mother
lodged grievances about these threats with public officials.
For the IJ not to reference this letter, and then for the BIA to
intuit that somehow he considered it in concluding against
Dutton-Myrie, is simply too speculative an inference to draw.
We also cannot conclude based on the record before us
that the Board considered other relevant circumstantial
evidence. Dutton-Myrie submitted an affidavit from his
former girlfriend in which she stated that she reported the
2005 incident to the police. The Board did not address this
evidence, but stated that the IJ’s decision clearly reflects that
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he applied the proper willful blindness standard with a
citation to the final page of his opinion where he dismissed
Dutton-Myrie’s former girlfriend’s testimony as “not
verified.” Why a signed affidavit did not qualify as verified
testimonial evidence escapes us. If it is to be disregarded, we
need to know why.
Dutton-Myrie also testified about the futility of
reporting to the police. In his first decisions, the IJ found this
testimony credible and never notified Dutton-Myrie of a
subsequent view otherwise. In any event, because this
evidence is relevant to determining if the harm he fears will
be met with a “blind eye” by authorities, the Board needed to
consider it.
We also disagree with the Board’s reliance on two
factual findings in support its conclusion that the IJ did not err
in finding no government acquiescence to torture. It affirmed
on the grounds that (1) “the record indicates that the
government of Panama ‘actively engage[s]’ against criminal
gangs and combats crime,” and (2) “although the applicant
was attacked in February, 2005, he never reported the
incident to police.” However, neither one of these
circumstances, either alone or with the other, precludes an
applicant from establishing that the government was willfully
blind. “[A]n applicant can establish governmental
acquiescence even if the government opposes the []
organization that is engaged in torturous acts.” Pieschacon-
Villegas, 671 F.3d at 312. And nowhere do the regulations
require actual knowledge of specific torturous acts against the
applicant.
When the Board has relied on the failure to report
crimes to show the absence of actual knowledge by a
government official, along with the government’s active
opposition to the group the petitioner fears, in concluding a
15
petitioner cannot establish acquiescence, we have nonetheless
remanded with instructions to consider circumstantial
evidence that may establish willful blindness. See Gomez-
Zuluaga, 527 F.3d at 351; Silva-Rengifo, 473 F.3d at 70; see
also Bhatt v. Att’y Gen., 608 F. App’x 93, 98 (3d Cir. 2015).
Thus we grant the petition for review and remand for further
proceedings consistent with this opinion.
We conclude with a comment on Dutton-Myrie’s due
process claim that the IJ deprived him of his right to a fair
hearing before a neutral arbiter.2 We do not decide it, but
note our impression that this case, as it is becoming the
immigration version of Dickens’s Jarndyce and Jarndyce,
may be ripe for reassignment if further fact-finding is
necessary.
2
We do not reach Dutton-Myrie’s claim that his due process
rights were violated by the failure to prepare a record of
remand proceedings.
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