Juliana Arreaga Bravo v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-3300
______________
JULIANA MARTIREZ ARREAGA BRAVO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Decision
And Order of the Board of Immigration Appeals
(BIA-1: A209-004-970)
Immigration Judge: Dinesh C. Verma
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 13, 2021
Before: MCKEE, GREENAWAY, JR., and RESTREPO,
Circuit Judges
(Filed: March 2, 2022)
_____________
OPINION
______________
Brett A. Tarver
Troutman Pepper
600 Peachtree Street, N.E.
Suite 2500, Bank of America Plaza
Atlanta, GA 30308
Anthony C. Vale
Troutman Pepper Hamilton Sanders
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Attorneys for Petitioner
Merrick Garland, Attorney General
Lindsay Marshall
Jeffrey R. Meyer
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
2
GREENAWAY, JR., Circuit Judge.
When an Immigration Judge (“IJ”) makes findings of
fact in relation to an individual’s petition for relief under the
Convention Against Torture (“CAT”), the Board of
Immigration Appeals (“BIA”), in reviewing the IJ’s decision,
must defer to the IJ’s factual findings unless they are clearly
erroneous.
Here, the IJ held that Petitioner Juliana Martirez
Arreaga-Bravo demonstrated that she will more likely than
not experience torture if she returns to Guatemala, and that
the Guatemalan government would acquiesce in such torture.
The IJ thus granted her application for CAT relief and
ordered withholding of removal. The Department of
Homeland Security appealed, and the BIA reversed—
instituting a removal order. In coming to its conclusion, the
BIA explained that it was not “sufficiently persuade[d]” that
Arreaga-Bravo faces a particularized risk of torture and that it
3
was “unable to agree” with the IJ’s conclusions. A.R. 5.
Rather than defer to the IJ’s factual findings and review for
clear error, the BIA inserted itself into the factfinder role and
disagreed with the IJ’s weighing of the evidence. This was
error. As a result, we will vacate the BIA’s final order of
removal and remand for further proceedings consistent with
this opinion.
I. BACKGROUND
Arreaga-Bravo is a thirty-one-year-old woman from
Tacana, Guatemala. She arrived in the United States in May
2016. Shortly after entering the country, the Department of
Homeland Security began removal proceedings by issuing a
Notice to Appear (“NTA”). At a Master Calendar hearing in
December 2016, Arreaga-Bravo admitted to the factual
allegations in the NTA. In May 2017, she applied for asylum
and withholding of removal under CAT.
4
Arreaga-Bravo claimed that she had fled Guatemala to
escape harassment and sexual violence by the Mara 18 gang.
She testified that violence against women is prevalent in
Guatemala. To support this claim, she discussed the rape of
her older sister, who was fifteen years old at the time of the
incident. Arreaga-Bravo noted the rape was not reported to
the police because the nearest police station was four hours
away. After the incident, Arreaga-Bravo’s family moved to a
town called Amorisan. Arreaga-Bravo alleged that after
moving, her youngest sister was raped by a man. Arreaga-
Bravo stated that there was a police report filed, but the police
never investigated the complaint further or arrested the man
for rape. Arreaga-Bravo also alleged that the rapist’s mother
offered her family a bribe, which the family turned down and
also reported to the police.
Arreaga-Bravo explained that after the incident with
her younger sister, her family once again moved, this time, to
5
a town called Malacatan. Arreaga-Bravo stated that while
living in Malacatan, she worked in Talisman, a dangerous
town near the Mexican border. In her amended affidavit,
Arreaga-Bravo detailed an event in which a friend in
Talisman was raped by multiple men while working.
As for her own experiences, Arreaga-Bravo discussed
an event in which a man came inside her store and asked how
much it would cost to sleep with her. She alleged that in
early 2016, she was targeted by Mara 18 gang members to be
enlisted to become a gang member’s girlfriend. Arreaga-
Bravo refused and from that point she began to receive
threatening messages. Arreaga-Bravo was told that
eventually she would have to capitulate to the gang’s
demands. The harassment against her escalated until one day,
two men grabbed her on the street, pulled out a knife, and
threatened to kill her unless she surrendered to the gang.
Arreaga-Bravo described this event as the impetus for her
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fleeing to the United States. She testified that she did not
relocate within the country because she felt that the Mara 18
gang would threaten her wherever she lived and that if she
returned to Guatemala, gang members would find her and kill
her.
In April 2018, the IJ issued a thorough and well-
reasoned twenty-four-page decision. The IJ found that
Arreaga-Bravo was generally credible, candid, and
forthcoming. As for Arreaga-Bravo’s claim for asylum, the IJ
found that she had not established past persecution or well-
founded fear of future persecution because her proposed
social groups—“Guatemalan women,” “Young Guatemalan
females,” and “Guatemalan females subjected to gang
recruitment who refuse such recruitment”—did not qualify as
particular social groups sufficient to obtain relief. The IJ
explained that Arreaga-Bravo’s complaints of harassment did
not rise to the level of past persecution because the
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harassment was not “imminent, concrete and menacing” as to
cause actual harm. A.R. 76 (quoting Chavarria v. Gonzalez,
446 F.3d 508, 518 (3d Cir. 2006)).
But as for her withholding of removal claim under
CAT, the IJ found that it is more likely than not that Arreaga-
Bravo will be harmed if she returns to Guatemala. The IJ
assessed that based on the evidence—including events
experienced by Arreaga-Bravo, her sisters, and friend, and a
country conditions report outlining that Guatemala has the
third highest rate of femicide in the world—Arreaga-Bravo
was vulnerable and would more likely than not be raped or
killed in Guatemala.
The IJ further found that, based on evidence presented,
the Guatemalan government would acquiesce in Arreaga-
Bravo’s torture. The IJ explained that evidence presented—
including the police not filing charges against her younger
sister’s rapist and country conditions evidence showing that
8
the Guatemalan government cannot control violence against
women—was enough to establish the government would
acquiesce in the torture of Arreaga-Bravo. The IJ noted that
while the Guatemalan government has passed a law to combat
violence against women, the law is not fully prosecuted, and
did not preclude the finding that the government would still
acquiesce to torture. Accordingly, the IJ granted Arreaga-
Bravo’s application for CAT relief.
The Government appealed the IJ’s decision. Before
reviewing the IJ’s findings, the BIA acknowledged that it was
reviewing findings of fact for clear error, including any
credibility determinations, and reviewing de novo all other
issues. The BIA found that Arreaga-Bravo had not
established eligibility for protection under CAT, concluding
that the record did not support that it was more likely than not
that she would be tortured with the acquiescence of the
government. The BIA explained that the IJ had speculated in
9
determining Arreaga-Bravo’s likelihood of torture. The BIA
explained that, while the country conditions report evidenced
violence against women in Guatemala generally, it was not
persuaded that Arreaga-Bravo faced a particularized risk of
harm. As such, the BIA held it was “unable to uphold” the
IJ’s decision granting the application for protection under
CAT. A.R. 5. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction under 8 C.F.R. §
1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a).
For findings of fact, the BIA is required to apply a
clearly erroneous standard of review to the IJ’s
determinations, 8 C.F.R. § 1003.1(d)(3)(i), and a de novo
standard of review to the IJ’s decisions of law, 8 C.F.R. §
1003.1(d)(3)(ii). We review de novo whether the agency
properly analyzed the applicant’s CAT protection claim. See
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019).
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III. DISCUSSION
Arreaga-Bravo argues that the BIA erred in rejecting
the IJ’s factual finding that it was more likely than not that
she would be tortured if she returned to Guatemala. She also
maintains that the BIA applied the wrong standard of review
to the IJ’s finding that the Guatemalan government will
acquiesce in that torture.
A. LIKELIHOOD OF FUTURE TORTURE
We agree with Arreaga-Bravo that the BIA failed to
apply the clearly erroneous standard in reversing the IJ’s
factual determination on the likelihood of future torture.
To qualify for relief under CAT, an individual must
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); see Kaplun v. Att’y Gen., 602 F.3d
260, 268 (3d Cir. 2010). Torture is defined as “an extreme
form of cruel and inhuman treatment and does not include
11
lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. §
1208.18(a)(2). Likelihood of future torture is “a mixed
question of law and fact” which requires “the IJ [to] address
two questions: ‘(1) what is likely to happen if the petitioner is
removed; and (2) does what is likely to happen amount to the
legal definition of torture?’” Myrie v. Att’y Gen., 855 F.3d
509, 516 (3d Cir. 2017) (quoting Kaplun, 602 F.3d at 271).
In support of her CAT claim, Arreaga-Bravo provided:
her own testimony; an amended affidavit describing her
experiences; police and medical reports on the 2005 rape of
her sister in Malacatan; news articles describing the existent
country conditions in Guatemala; and the declarations of
three experts about gender-based violence in Guatemala and
the effect of trauma on an asylum applicant’s ability to recall
and recount his or her experiences.
12
The IJ made a factual determination that Arreaga-
Bravo would “more likely than not . . . be raped or killed if
she returned to Guatemala.” A.R. 84. The IJ explained that
Arreaga-Bravo’s “childhood, adolescence, and early
adulthood in Guatemala were plagued with instances of
violence against women.” A.R. 84-85. The IJ detailed these
events:
When [Arreaga-Bravo] was very young, her
older sister was raped by a gang member while
they were living in La Batalia. Years later,
[Arreaga-Bravo’s] younger sister was also raped
by a known gang member while they were living
in Amorisan. When [Arreaga-Bravo] began
working in Talisman, a border town close to
Mexico, men often propositioned her for sex, and
her friend, who sold ice cream in Talisman, was
raped by multiple gang members. When
[Arreaga-Bravo] moved to Mal[a]catan, her and
her friend were held up at gunpoint and, on
another occasion, gang members broke into her
family’s home and stole all of their valuables.
Beginning in 2016, Mara 18 attempted to recruit
[Arreaga-Bravo] to be the girlfriend of one of
their gang members. When [Arreaga-Bravo]
refused, she started receiving threatening phone
messages. [Arreaga-Bravo] changed her
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telephone number, but the gang members
somehow found her new number and continued
sending her messages. Two Mara 18 gang
members subsequently approached [Arreaga-
Bravo] on the street, held her a[t] knifepoint, and
threatened to kill her and her family if she
refused to join their gang. [Arreaga-Bravo] fled
Guatemala shortly after this incident in April
2016.
A.R. 85.
These events, combined with country conditions
evidence presented about the “persistent” and “lethal violence
against women” in Guatemala, led the IJ to find that Arreaga-
Bravo had satisfied her burden of establishing likelihood of
future torture. A.R. 85; see id. (“[Arreaga-Bravo’s] prior
encounters with Mara 18, coupled with her sisters’ instances
of past torture, her inability to internally relocate, and her
return to a country with a staggering rate of violence against
women, makes it more likely than not that [Arreaga-Bravo]
would be raped or killed in Guatemala.”).
14
In reviewing this finding on appeal, the BIA concluded
“that the record does not support that it is more likely than not
that [Arreaga-Bravo] will be tortured in Guatemala.” A.R. 4.
The BIA acknowledged the horrific incidents involving
Arreaga-Bravo’s sisters and friend. But it noted that “the
record is unclear” if there are ongoing problems related to
Arreaga-Bravo’s sisters. A.R. 4–5. It explained that “the
absence of past torture and sufficiently individualized
evidence that it is more likely than not that specifically
[Arreaga-Bravo] will be tortured” means it is “unable to agree
with the Immigration Judge’s predictive finding.” A.R. 5-6.
And overall, “on this record, the overall evidence does not
sufficiently persuade us that [Arreaga-Bravo] faces a
particularized risk of torture.” A.R. 5.
We have explained that a finding is clearly erroneous
“when . . . the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
15
committed.” United States v. Murray, 821 F.3d 386, 391 (3d
Cir. 2016) (internal quotation marks and citation omitted).
But if “there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” Fed. Trade Comm’n v. AbbVie Inc., 976 F.3d
327, 368 (3d Cir. 2020) (internal quotation marks and citation
omitted). That is the case here.
It was not the BIA’s role to determine whether it
agreed with the IJ’s weighing of the evidence in Arreaga-
Bravo’s favor. Its role was to point to findings by the IJ that
were “an obvious, plain, gross, significant, or manifest error
or miscalculation.” Mendoza-Ordonez v. Att’y Gen., 869 F.3d
164, 169 (3d Cir. 2017) (internal quotation marks and citation
omitted).1 Rather than do this, the BIA substituted its view of
1
The only instance in which the BIA seemingly applied clear
error review was in addressing whether Arreaga-Bravo would
be “an ideal target for gang recruitment.” A.R. 4. The BIA
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the evidence for that of the IJ, rather than reviewing for clear
error, and concluded that it was “not sufficiently persuade[d]”
with the IJ’s conclusion. A.R. 5. But the clear error
“standard plainly does not entitle a reviewing court to reverse
the finding of the trier of fact simply because it is convinced
that it would have decided the case differently.” Alimbaev v.
Att’y Gen., 872 F.3d 188, 195 (3d Cir. 2017) (quoting
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)).
B. GOVERNMENT ACQUIESENCE
The BIA’s misapplication of the clearly erroneous
standard also plagued its analysis of the IJ’s determination
about government acquiescence.
held that the IJ’s description of Arreaga-Bravo “as a single
female” was “clearly erroneous” because “the record reflects
that she is no longer single.” A.R. 4. But as Arreaga-Bravo
correctly points out, “[n]ot only is there no such evidence in
the record, but this small point does not provide sufficient
reasoning to overturn the IJ’s broader findings.” Pet’r’s Br.
24.
17
In Myrie, we explained that:
In assessing whether an applicant has established
that public officials will acquiesce to the feared
tortuous [sic] 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. . . . While the Board reviews the first
part for clear error, it must review the second de
novo.
855 F.3d at 516-17. The BIA and the IJ “must answer” both
prongs “when evaluating a CAT claim,” and they “may not
ignore evidence favorable to the alien.” Quinteros, 945 F.3d
at 786.
The IJ determined that “[b]ased on the evidence before
the Court . . . the Guatemalan government would remain
willfully blind to the tortuous [sic] actions carried out by
gangs and other criminal organizations against women in
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Guatemala.” A.R. 85–86. The IJ first invoked Arreaga-
Bravo’s own experience as support:
[Arreaga-Bravo] credibly testified that her
younger sister . . . was raped by a known gang
member in 2005. [Arreaga-Bravo’s] parents
reported the rape to the police, but, despite
providing medical proof of the rape and
identifying the individual responsible, the police
stopped investigating [the] rape. Shortly before
this, the mother of [Arreaga-Bravo’s sister’s]
rapist bribed [Arreaga-Bravo’s] mother to drop
the charges. When [Arreaga-Bravo]’s mother
refused the bribe, [Arreaga-Bravo] heard rumors
that the mother of [Arreaga-Bravo’s sister’s]
rapist then bribed the police to drop the charges.
[The] rapist was never arrested and no charges
were filed against him.
A.R. 86.
Then, the IJ expounded on the country conditions
evidence in the record, which bolstered the IJ’s conclusion
that the Guatemalan government would remain willfully blind
to foreseeable torture of Arreaga-Bravo. The IJ noted that
statistics continue to show “one woman killed every twelve
hours” and “a new case of sexual violence reported every
19
forty-six minutes,” A.R. 86 (citing the 2016 Human Rights
Report), and the government’s efforts to prosecute these
crimes remain poor. See A.R. 87 (“In 2011, more than
20,000 cases were filed with the courts under the 2008 Law
Against Femicide, however, less than three percent of those
cases resulted in a judgment”).
On appeal, the BIA held that “the record does not
support that it is more likely than not that [Arreaga-Bravo]
will be tortured ‘by or at the instigation of or with the consent
of a public official or other person acting in an official
capacity.’” A.R. 5 (citing 8 C.F.R. § 1208.18(a)(7)). The
BIA noted that there was no evidence that Arreaga-Bravo was
“harmed by a government official.” A.R. 5. The BIA added
that it is “unclear whether [Arreaga-Bravo] ever reported her
own mistreatments to the police,” and that the “record does
not support that the younger sister’s incident from more than
a decade earlier, which allegedly involved police bribery and
20
corruption, is indicative of government acquiescence
involving [Arreaga-Bravo].” A.R. 5. It therefore concluded
that “the overall evidence is insufficient to show that the
police would specifically fail to act, or that their inability to
provide assistance would constitute ‘consent or acquiescence’
under the regulations.’” A.R. 5.
Again, the BIA improperly reviewed the IJ’s factual
findings. In accordance with 8 C.F.R. § 1003.1(d)(3)(i), the
BIA needed to review the IJ’s finding of fact on the
government acquiescence question for clear error. But the
BIA did not state that it was clearly erroneous for the IJ to
find that the Guatemalan government would be unable to
protect Arreaga-Bravo from the serious harm he found she
was likely to suffer if removed back to Guatemala. Instead,
the BIA seemed to review de novo the IJ’s factual findings as
to how the government is likely to respond to Arreaga-
21
Bravo’s harm.2 This was error. The BIA stepped out of the
bounds of its permissible role.
IV. CONCLUSION
Given the strength and rigor of the IJ’s underlying
opinion, along with the BIA having exceeded its proper scope
of review, we will vacate the BIA’s final order of removal
and remand for further proceedings consistent with this
opinion.
2
In its opposition brief, the Government appears to admit as
such. Resp’t’s Br. 29 (“[T]he Board reviewed de novo the
Immigration Judge’s determination that the Guatemalan
authorities would acquiesce to Petitioner’s torture by Mara
18.”).
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