Nelson Quinteros v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-3750
____________
NELSON QUINTEROS,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A079-029-001)
Immigration Judge: John P. Ellington
Argued on September 24, 2019
Before: MCKEE, AMBRO and ROTH, Circuit Judges
(Opinion filed: December 17, 2019)
Damon C. Andrews (ARGUED)
Kirkland & Ellis
1301 Pennsylvania Avenue, N.W.
Washington, DC 20004
Alexa M. Siegel
P.O. Box 65
Baldwin, MD 21013
Nathanael P. Kibler
Baker Donelson Bearman Caldwell & Berkowitz
265 Brookview Centre Way
Suite 600
Knoxville, TN 37828
Counsel for Petitioner
Rachel L. Browning
Virginia M. Lum, Esq. (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION
2
ROTH, Circuit Judge:
This is a petition for review of a final order of removal.
The Board of Immigration Appeals found that Nelson
Quinteros committed an aggravated felony and failed to show
entitlement to relief under the Convention Against Torture
(CAT). Quinteros argues that the Board committed two errors:
First, the Board erred in finding that his conviction for
conspiracy to commit assault with a dangerous weapon was an
aggravated felony under the Immigration and Nationality Act
(INA); second, the Board erred in applying our precedent on
the Convention Against Torture. For the reasons that follow,
we will vacate the Board’s decision and remand for further
proceedings consistent with this opinion.
I.
Nelson Quinteros and his mother came to the United
States from El Salvador in 2001, when he was eight-years-old.
They settled in New York. When he was thirteen, Quinteros
joined the gang MS-13. He has a New York Yankees tattoo
that he asserts symbolizes that his particular gang is based in
New York.
In 2011, Quinteros was indicted for conspiracy to
commit assault with a dangerous weapon under 18 U.S.C. §
1959(a)(6). Quinteros and other gang members discussed over
the phone that they would assault members of Surenos, a rival
gang. Quinteros drove other gang members to a Surenos
location, but the Surenos “backed down.” 1 No assault took
1
AR 1057–58.
3
place. Quinteros later pled guilty to conspiracy to commit
assault with a dangerous weapon. He was sentenced to thirty
months’ imprisonment.
In prison, Quinteros left MS-13 to follow Christianity.
When he told other MS-13 members in prison that he was no
longer in the gang, they would reply with statements like,
“Well, when you get deported and you go back to El Salvador,
things are going to change. There’s no getting out over there.” 2
When Quinteros’s sentence ended, the Department of
Homeland Security (DHS) initiated removal proceedings.
DHS placed Quinteros in expedited proceedings after it
determined that Quinteros had been convicted of an aggravated
felony under the Immigration and Nationality Act (INA). In
2014, Quinteros was issued a Form I-851 Notice of Intent to
Issue a Final Administrative Removal Order. The Form I-851
charged Quinteros as removable for having committed an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F), (U), and
(J) and allowed Quinteros to contest his removability. He
checked the box to contest his deportability and indicated he
would attach documents supporting his request. He failed to
follow up with additional documentation.
Quinteros then sought withholding of removal. An
asylum officer determined that Quinteros demonstrated a
reasonable fear that he would be tortured in El Salvador. The
officer referred Quinteros to an Immigration Judge (IJ).
Before the IJ, Quinteros attempted to show that he
would be tortured in El Salvador. He also sought to show that
2
Id. at 560 l. 20–21.
4
the police would, at the very least, be unlikely to protect him
and, at worst, would directly perpetrate violence against him.
Quinteros testified on his own behalf and presented the
testimony of Dr. Thomas Boerman, a country conditions
expert. Quinteros also relied on several studies and reports.
Most relevant for this appeal, Quinteros submitted a study from
the Harvard Law School International Human Rights Clinic
(Harvard study) that discussed the perception and treatment of
individuals with tattoos in El Salvador.
A. Quinteros’s Testimony
Quinteros gave several reasons why he would be
recognizable as a gang member in El Salvador. He
“anticipate[d] that he would be readily identified as a deportee
because of his distinct accent and his ‘NY Yankees’ tattoo.” 3
He testified that he knows seventy other gang members, who
have been deported to El Salvador, and has cousins in MS-13.
Quinteros also offered anecdotal evidence that other
former gang members, deported to El Salvador, had been
harassed or killed. Quinteros did not believe that the police
would protect him. He testified that other MS-13 members in
New York had sent money to the police in El Salvador to
secure protection for the gang there. He thought that the police
would not get involved in gang-on-gang violence because the
police would have little to gain.
B. Dr. Boerman’s Testimony
Dr. Boerman testified as an expert on conditions in El
3
Id. at 461.
5
Salvador and corroborated much of Quinteros’s testimony. He
detailed several iterations of largely ineffectual Salvadoran
government policies to combat gang violence. First, he
described a set of 2003 laws that criminalized gang
membership, resulting in the arrest of 20,000 people.
Ultimately, however, few people were charged for gang
offenses. These laws remain on the books, but at the time of
Dr. Boerman’s testimony in 2015, he testified that most arrests
of suspected gang members resulted in a short period of
detention and no charges. When charges are filed, gang
members are usually acquitted “because of the effect of witness
intimidation, terrorization, and murder.” 4
Then came a gang truce from 2012 to 2014 that
appeared to have decreased homicides. But this truce was
discredited after authorities discovered a substantial “increase
in the use of clandestine cemeteries.” 5 Some researchers
believe that the supposed truce actually strengthened the gangs
and increased violence.
In 2014, a new president attempted to implement a new
anti-gang policy. That plan also stalled. Although the
government has labeled the gangs, including MS-13, “terrorist
groups,” 6 and has authorized the use of El Salvador’s anti-
terrorism laws to combat them, it is not clear whether the
government has implemented these laws.
Dr. Boerman also described a “‘disconnect’ between
4
Id. at 674.
5
Id. at 666.
6
Id. at 670.
6
official policy and actual practice.” 7 For example, although
trained on human rights, some “officers have sought
permission to form groups that carry out assassinations as an
official state function.” 8 According to Dr. Boerman, the
Salvadoran government no longer investigates police killings
of gang members.
Dr. Boerman detailed a special risk of harm for former
gang members. When the U.S. deports an individual, it
provides the country to which the deportee is returning with the
deportee’s gang affiliation and information about his tattoos.
Dr. Boerman provided anecdotal evidence that immigration
officers, police, and military in El Salvador have subjected
suspected gang members to physical violence during the
customs process. Gang members and police easily identify
newcomers to a community and take great pains to determine
their background, including stripping them down to check for
tattoos. Dr. Boerman also stated that a New York Yankees
tattoo is “commonly recognized as gang affiliated from the
United States, in the east coast.” 9 The police or a gang would
interpret that tattoo “as gang related.” 10 Efforts to remove the
tattoo would result in scarring that would likewise raise
suspicions of gang affiliation.
C. Agency Proceedings
After conducting hearings, the IJ denied Quinteros’s
7
Id. at 466.
8
Id.
9
Id. at 683.
10
Id. at 683–84.
7
request for relief under the Convention Against Torture (CAT).
The IJ found that Quinteros “ha[d] shown a clear likelihood
that he would be killed or tortured by members of MS-13 and
[rival] gangs” 11 but had not shown that the Salvadoran police
would be willfully blind to that torture. The IJ found that the
“escalating violence” in El Salvador, although “alarming,” was
“stemming from war-like conditions” and did “not necessarily
mean that the government is abdicating its responsibility to
protect the public.” 12
The IJ also determined that Quinteros’s crime was an
aggravated felony. The IJ applied the modified categorical
approach and found that Quinteros’s crime was a crime of
violence, as defined in 18 U.S.C. § 16(b), and that conspiracy
did not require an overt act. 13
Quinteros appealed the IJ’s CAT findings, making no
mention of the aggravated felony finding. The BIA affirmed.
Quinteros appealed. We granted the government’s request to
remand, in light of our decision in Myrie v. Attorney General, 14
in order to determine if the Salvadoran government, more
likely than not, would acquiesce in Quinteros’s torture by gang
members
On remand, both Quinteros and the government offered
11
Id. at 477.
12
Id. at 479.
13
A crime of violence is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F), and a conspiracy to commit a crime of
violence is an aggravated felony under 8 U.S.C. §
1101(a)(43)(U).
14
855 F.3d 509 (3d Cir. 2017).
8
additional, updated evidence on conditions in El Salvador.
Because the effect of Quinteros’s evidence was essentially the
same, the second IJ adopted the first IJ’s finding that Quinteros
had shown a likelihood of being killed or tortured by gangs and
similarly found that the Salvadoran officials’ likely response
would not constitute acquiescence. The IJ noted that he had
reviewed Quinteros’s prior and current testimony, Dr.
Boerman’s prior testimony and written declaration, and all
other supporting materials in conjunction with United States
Department of State country condition reports. 15 The IJ rested
his findings on the new efforts El Salvador was taking to
combat gang violence and the lack of evidence that a Yankees
tattoo was a gang symbol.
Quinteros appealed to the Board. While his appeal was
pending, the Supreme Court in Sessions v. Dimaya 16
invalidated 18 U.S.C. § 16(b), as unconstitutionally vague.
Quinteros moved to remand based on Dimaya. The Board then
determined that, because Quinteros was in expedited removal
proceedings, he could not challenge his status as an aggravated
felon. 17 In a footnote, the Board noted that Quinteros was
subject to expedited removal proceedings because he
committed an aggravated felony under 8 U.S.C. §
1101(a)(43)(F), (U), and (J). 18 To accept such logic would
15
AR 130.
16
138 S. Ct. 1204 (2018).
17
AR 8.
18
Section 1101(a)(43)(J) classifies certain racketeering
offenses as aggravated felonies. Although the DHS Notice of
Intent listed subsections (F), (U), and (J) as the basis for its
aggravated felony finding, the first IJ found Quinteros
removable only under (F) and (U).
9
render it impossible for anyone in such a situation to challenge
their status before the BIA.
The Board affirmed the denial of Quinteros’s CAT
claim. In doing so, the Board reversed the IJ’s finding on the
likelihood of torture as clearly erroneous, questioning whether
Quinteros would even be recognized as a current or former
gang member. The Board also noted that Quinteros had not
shown that his tattoo was visible or that it would signify to
others that he was a current or former gang member. The
Board agreed with the IJ that Quinteros failed to show
acquiescence by state actors, noting the new “extraordinary
measures” El Salvador was taking “to combat gang
violence.” 19
Quinteros petitioned this Court for review of the finding
that his conviction is an aggravated felony and, in light of
Dimaya, of the Board’s denial of his motion to remand.
Quinteros also alleges that the Board committed legal error in
denying CAT relief.
II.
We have jurisdiction over final orders of removal under
8 U.S.C. § 1252(a)(1). The government argues that where, as
here, the agency has found that an alien committed an
aggravated felony, we have no jurisdiction under 8 U.S.C. §
1252(a)(2)(C) to review the removal order. Nevertheless, we
retain jurisdiction over “constitutional claims or questions of
19
AR 6.
10
law.” 20 If “the BIA issues a decision on the merits and not
simply a summary affirmance, we review the BIA’s, and not
the IJ’s, decision.” 21 We also review those portions of the IJ
decision that the Board adopts or defers to. 22
III.
A. This Court has jurisdiction to consider whether
Quinteros was convicted of an aggravated felony.
The first question we must answer is whether we have
jurisdiction to hear Quinteros’s challenge to the aggravated
felony finding. The government argues that Quinteros failed
to exhaust his administrative remedies because he did not
challenge the aggravated felony finding in response to the
initial notice of intent to issue a final administrative removal
order. Quinteros argues that he did all that was required: He
checked the box on the BIA form that indicated he disagreed
with the finding of removability. 23 Although generally an alien
20
8 U.S.C. § 1252(a)(2)(C), (D).
21
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
22
Id. See also Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.
2005).
23
The parties’ arguments highlight a circuit split over what an
alien must do on appeal to have properly preserved a challenge
to DHS’s aggravated felony finding. The Eleventh Circuit held
that failure to contest one’s classification as an aggravated
felon in response to a final administrative removal order
deprives the reviewing court of jurisdiction because the alien
has not exhausted administrative remedies. Malu v. United
States Att’y Gen., 764 F.3d 1282, 1289 (11th Cir. 2014). The
11
is required to exhaust his administrative remedies—a
jurisdictional requirement 24—an agency revives an alien’s
unexhausted claim when it sua sponte considers an issue. 25
Here, the first IJ sua sponte determined that Quinteros’s
conviction was for an aggravated felony under §
1101(a)(43)(F) and (U).
Although Quinteros did not challenge on appeal the IJ’s
aggravated felony finding, he did file a motion to remand to the
IJ, challenging his removability as an aggravated felon. The
Board considered this motion to remand and concluded that
Quinteros could not challenge the aggravated felon
determination in expedited removal proceedings. Because the
Board had the opportunity to consider Quinteros’s challenge to
his removability as an aggravated felon and declined to do so
Fourth Circuit held that an alien in expedited removal
proceedings can raise only factual challenges in administrative
proceedings and so the reviewing court has jurisdiction over
legal challenges to removability “in the first instance on
appeal.” Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015).
The Fifth and Seventh Circuits have held similarly. Valdiviez-
Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013);
Victoria-Faustino v. Sessions, 865 F.3d 869, 873 (7th Cir.
2017). We need not wade into this circuit split because here,
the agency took up Quinteros’s challenge sua sponte.
24
Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005). A
court cannot hear a claim unless “an alien has exhausted all
administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1).
25
Lin v. Att’y Gen. of United States, 543 F.3d 114, 123–25 (3d
Cir. 2008).
12
on the merits, the aggravated felony issue is exhausted for
purposes of appeal. 26
Moreover, we always retain jurisdiction to determine
our own jurisdiction. 27 As we have said before, this principle
extends to “jurisdiction to address [the] jurisdictional
prerequisite . . . of . . . ‘whether an alien was convicted of a
non-reviewable aggravated felony.’” 28 We will therefore first
determine whether Quinteros was convicted of an aggravated
felony. Our review of this issue is “de novo as it implicates a
purely legal question.” 29
B. Quinteros did not commit an aggravated felony.
DHS charged Quinteros as deportable for being
convicted of an aggravated felony under 2 U.S.C.
1101(a)(43)(F), (J), and (U). Subsection (F) applies to a crime
of violence using the definition in 18 U.S.C. § 16. 30 Subsection
26
We have previously found jurisdiction where a party
includes an issue in the Notice of Appeal to the BIA but fails
to include the issue in the brief to the BIA and the BIA does
not address the issue. See Hoxha v. Holder, 559 F.3d 157, 158,
161 (3d Cir. 2009).
27
Restrepo v. Att’y Gen. of United States, 617 F.3d 787, 790
(3d Cir. 2010) (quoting Stubbs v. Att’y Gen., 452 F.3d 251, 253
n.4 (3d Cir. 2006)).
28
Restrepo, 617 F.3d at 790.
29
Id.
30
Section 16 defines crime of violence as: “(a) on offense that
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b)
13
(J) applies to several racketeering offenses. Subsection (U)
applies to an “attempt or conspiracy to commit” an aggravated
felony.
When determining whether a particular offense is an
aggravated felony, we apply the categorical approach. 31 Under
the strict categorical approach, we compare the state statute of
conviction with “the federal statute enumerating categories of
crimes” without regard to “the underlying facts.” 32 In applying
the categorical approach, we are to “presume that the
conviction ‘rested upon [nothing] more than the least of th[e]
acts’ criminalized, and then determine whether even those acts
are encompassed by the generic federal offense.” 33
Quinteros was convicted under 18 U.S.C. § 1959(a)(6).
That section states:
(a) Whoever, as consideration for the
receipt of, or as consideration for a
promise or agreement to pay,
any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person
or property of another may be used in the course of committing
the offense.”
31
See Moncrieffe v. Holder, 569 U.S. 184, 188 (2013); United
States v. Dahl, 833 F.3d 345, 349 (3d Cir. 2016) (discussing
categorical approach as applying to both federal and state
convictions).
32
Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004).
33
Moncrieffe, 569 U.S. at 191 (2013) (quoting Johnson v.
United States, 559 U.S. 133, 137 (2010)) (alterations in
original).
14
anything of pecuniary value from
an enterprise engaged in
racketeering activity, or for the
purpose of gaining entrance to or
maintaining or increasing position
in an enterprise engaged in
racketeering activity, murders,
kidnaps, maims, assaults with a
dangerous weapon, commits
assault resulting in serious bodily
injury upon, or threatens to
commit a crime of violence against
any individual in violation of the
laws of any State or the United
States, or attempts or conspires so
to do, shall be punished—
...
(6) for attempting or conspiring to
commit a crime involving
maiming, assault with a dangerous
weapon, or assault resulting in
serious bodily injury . . . .” 34
Because Quinteros’s statute of conviction is “an
alternatively phrased statute,” we must first “determine
whether its listed items are elements or means.” 35 If the
alternatives are elements, some of which would qualify as an
aggravated felony and some of which would not, then the
modified categorical approach applies, and we can look to
34
18 U.S.C. § 1959(a)(6).
35
Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).
15
documents, related to the crime as committed, to determine
“which of the enumerated alternatives played a part in the
[petitioner’s] prior conviction, and then compare that element
(along with all others) to those of the generic crime.” 36
1. Quinteros’s conviction was not a crime of violence
under § 1101(a)(43)(F).
Section 1101(a)(43)(F) employs the crime of violence
definition from 18 U.S.C. § 16. The first IJ found that §
1959(a)(6) constituted a crime of violence as defined in
§ 16(b). Because the Supreme Court found that § 16(b) was
unconstitutionally vague, the IJ’s aggravated felony finding
based on § 16(b) cannot stand. 37
Neither could Quinteros’s conviction be a crime of
violence under § 16(a), a ground the first IJ did not consider.
Section 16(a) defines a crime of violence as “an offense that
has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” 38
Looking at the least culpable conduct, an individual could be
convicted of conspiracy under 18 U.S.C. § 1959(a)(6) without
the use, attempted use, or threatened use of physical force.
36
Id.
37
Because we hold that the IJ’s aggravated felony finding
under § 16(b) was in error after Sessions v. Dimaya, 138 S. Ct.
1204, we need not address whether the Board’s denial of
Quinteros’s motion to remand was error.
38
18 U.S.C. § 16(a).
16
2. Quinteros’s conviction was not a conspiracy or
attempt to commit a crime of violence under §
1101(a)(43)(U).
Next, we determine if Quinteros was convicted of an
aggravated felony under § 1101(a)(43)(U) for “an attempt
or conspiracy to commit” a crime of violence. 39 Using the
categorical approach, we compare the statute of conviction,
§ 1959(a)(6), with generic conspiracy as used in the INA, §
1101(a)(43)(U). A conviction under § 1959(a)(6) does not
require an overt act in furtherance of the conspiracy. 40 We
must determine whether the INA’s generic definition of
conspiracy requires an overt act. We hold that it does.
39
8 U.S.C. § 1101(a)(43)(U).
40
Generally, where the statutory text “does not expressly make
the commission of an overt act an element of the conspiracy
offense, the government need not prove an overt act to obtain
a conviction.” Whitfield v. United States, 543 U.S. 209, 214
(2005). See also United States v. Salahuddin, 765 F.3d 329,
339 (3d Cir. 2014) (declining to find an overt act requirement
for Hobbs Act conspiracy where the statute “makes no mention
of a required act”). Other Circuits examining § 1959(a)(6), or
similar subsections, have generally not required an overt act.
See, e.g., United States v. McCollum, 885 F.3d 300, 309 (4th
Cir. 2018) (finding that 18 U.S.C. § 1959(a)(5) does not require
an overt act); United States v. Diaz, 176 F.3d 52 (2d Cir. 1999)
(finding no overt act required for § 1959(a)(6)). Only in an
unpublished Ninth Circuit opinion did a panel note that the jury
had to be unanimous on an overt act for a conviction under §
1959(a)(6). See United States v. Franco, 745 F. App’x 285,
287 (9th Cir. 2018).
17
The government argues that the BIA’s interpretation of
§ 1101(a)(43)(U) is entitled to deference. 41 Generally,
Chevron principles apply “to an agency’s consistent
interpretation of the statute it administers,” 42 including the
INA. 43 “[T]he issue of Chevron deference to the BIA’s
evaluation of criminal statutes in light of the INA has generated
some controversy and confusion.” 44 We defer to the agency’s
reasonable interpretation of a statute only if the text of the
statute is “unclear” and we cannot “discern congressional
intent by utilizing various tools of statutory construction.”45
We find no reason to defer to the BIA here because the
meaning of “conspiracy” in § 1101(a)(43)(U) of the INA is
unambiguous when employing the ordinary tools of statutory
construction.
41
The government relies primarily on Matter of Richardson,
25 I&N Dec. 226 (BIA 2010).
42
Matter of Seidman, 37 F.3d 911, 924 (3d Cir. 1994).
43
See Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir. 2001).
“[U]npublished, single-member BIA decisions are not entitled
to Chevron deference.” Mahn v. Att’y Gen. of United States,
767 F.3d 170, 173 (3d Cir. 2014). But, here, the IJ relied on
Matter of Richardson, 25 I&N Dec. 226 (BIA 2010), a
published decision of a panel of the Board that held that
conspiracy under § 1101(a)(43)(U) does not require an overt
act.
44
Lewin v. Att’y Gen. of United States, 885 F.3d 165, 169 (3d
Cir. 2018). At least once, we unhesitatingly applied Chevron
and deferred to the BIA’s reasonable interpretation of the INA.
Restrepo, 617 F.3d at 796.
45
Restrepo, 617 F.3d at 792.
18
Where Congress has not specifically defined a word in
a statute, we presume the common law definition applies. 46
But the presumption that a term be given its common-law
meaning does not apply when the common law “meaning is
obsolete or inconsistent with the statute’s purpose.” 47 In those
instances, the approach taken “in the criminal codes of most
states” replaces the common law definition. 48 We have stated
before that, when determining the elements of the generic
crime, we look to “the Model Penal Code (MPC), state laws,
and learned treatises.” 49 But “the most important factor in
defining the generic version of an offense is the approach of
the majority of state statutes defining the crime.” 50 We
therefore contrast the common law definition of conspiracy
with the majority of states’ definition of conspiracy and hold
that conspiracy in § 1101(a)(43)(U) requires an overt act.
At common law, the crime of conspiracy was complete
46
See Taylor v. United States, 495 U.S. 575, 592 (1990) (citing
Morissette v. United States, 342 U.S. 246, 263 (1952)).
47
Taylor, 495 U.S. at 594.
48
Id. at 598. The Supreme Court in Taylor applied this
approach to interpreting 18 U.S.C. § 924(e) for purposes of
sentencing enhancement. Later, the Supreme Court applied
this same principle to interpreting “theft offense” under the
INA. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190
(2007).
49
United States v. Graves, 877 F.3d 494, 502 (3d Cir. 2017)
(interpreting the career offender provisions of the Sentencing
Guidelines).
50
Id. at 504.
19
upon the making of an agreement. 51 But now, the large
majority of states also require an overt act. 52 So does the
MPC. 53 Although some courts have continued to apply the
common law definition, 54 the meaning of conspiracy has
changed. The overt act requirement was an attempt to rein in
expansive conspiracy liability, 55 “guarding against the
punishment of evil intent alone, and . . . assur[ing] that a
criminal agreement actually existed.” 56 We think this change
significant and apply the modern overt act requirement
reflected in the statutes of a majority of states and the MPC.
Because Quinteros’s conviction under 18 U.S.C. § 1959(a)(6)
does not require an overt act, his conviction is not a categorical
match for conspiracy under the INA. Thus he is not an
aggravated felon under Subsection U.
3. Quinteros’s conviction was not a racketeering offense
under § 1101(a)(43)(J).
The government has argued that we need not reach the
51
United States v. Shabani, 513 U.S. 10, 13–14 (1994)
(quoting Nash v. United States, 229 U.S. 373, 378 (1913)).
52
United States v. Garcia-Santana, 774 F.3d 528, 534–35 (9th
Cir. 2014) (“A survey of state conspiracy statutes reveals that
the vast majority demand an overt act to sustain conviction.”).
53
See Model Penal Code § 5.03(5) (Am. Law Inst. 1985)
(requiring overt acts for all crimes “other than a felony of the
first or second degree”).
54
Etienne, 813 F.3d at 145.
55
Garcia-Santana, 774 F.3d at 536–37.
56
Id. at 537.
20
question of whether Quinteros was convicted of an aggravated
felony for purposes of § 1101(a)(43)(J). The Board noted in a
footnote, without explaining its reasoning, that Quinteros’s
conviction was an aggravated felony under § 1101(a)(43)(J).
Although DHS had included this charge in the Form I-851, this
was not a ground that either the IJ or the BIA had previously
addressed in the proceedings. Generally, “[w]hen deficiencies
in the BIA’s decision make it impossible for us to meaningfully
review its decision, we must vacate that decision and remand
so that the BIA can further explain its reasoning.” 57 But where,
as here, the BIA has failed to conduct the categorical approach
and the BIA’s application of the categorical approach would
not be accorded deference, we have considered the question de
novo. 58 So too here.
Quinteros’s conviction for conspiracy to commit assault
with a dangerous weapon is not an aggravated felony as
defined in § 1101(a)(43)(J). Subsection J makes an aggravated
felony any offense described in 18 U.S.C. §§ 1084, 1955, or
1962. Sections 1084 and 1955 deal only with gambling-related
offenses—for which Quinteros’s conviction cannot be a
categorical match. This leaves offenses described in 18 U.S.C.
§ 1962, which fall under the general category of racketeering
offenses. Although Quinteros’s statute of conviction for
conspiracy to commit assault with a dangerous weapon bears
the title of “violent crimes in aid of racketeering activity,” §
57
Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). See
also Cruz v. Att’y Gen. of United States, 452 F.3d 240, 249 (3d
Cir. 2006) (“Where a BIA opinion leaves the scope of our
jurisdiction in question, we will remand the case to the BIA for
further consideration.”).
58
See Singh v. Ashcroft, 383 F.3d 144 at 152.
21
1959(a)(6) has little in common with the offenses in § 1962.
Section 1962 has four subsections. Subsection (a)
relates to receiving and investing money from a racketeering
enterprise. Quinteros’s conviction does not have as an element
the investing of money. Subsections (b) and (c) require “a
pattern of racketeering activity or collection of unlawful
debt.” 59 Racketeering activity is defined as “any act or threat
involving murder, kidnapping, gambling, arson, robbery,
bribery, extortion, dealing in obscene matter, or dealing in a
controlled substance or listed chemical” 60 or any of a number
of offenses defined in other statutes—of which § 1959 is not
one. Nor does Quinteros’s conviction under § 1959(a)(6) have
as an element conduct that would meet the more general
descriptions of racketeering activity. Lastly, subsection (d)
criminalizes a conspiracy to violate the foregoing provisions of
§ 1962, but because Quinteros’s conviction does not meet the
requirements of subsections (a) through (c), he likewise could
not have been convicted under § 1962(d). Thus, Quinteros’s
conviction is not a categorical match for any of the statutory
offenses listed in § 1101(a)(43)(J) and is not an aggravated
felony.
C. The BIA erred in its CAT finding.
Having determined that Quinteros did not commit an
aggravated felony, we will remand this case to the Board.
However, before remanding, we need to discuss the standard
to be applied by the Board in determining state acquiescence.
59
18 U.S.C. § 1962(b), (c).
60
18 U.S.C. § 1961(1).
22
Quinteros argues that the Board erred in applying the standard
we enunciated in Myrie 61 because the Board failed to make the
required findings and applied the wrong legal standard for state
acquiescence. Quinteros’s argument that the Board applied the
wrong legal standard for acquiescence is a legal challenge that
we review de novo, 62 as is our review of the sufficiency of the
Board’s findings under the standard we enunciated in Myrie. 63
Quinteros also argues that the Board erred by ignoring
evidence relevant to the Myrie analysis. Generally, an agency
is required to consider “all evidence relevant to the possibility
of future torture,” 64 but “the IJ and BIA need not ‘discuss every
piece of evidence mentioned by an asylum applicant.’” 65
Although it is usually sufficient to say, as the IJ did here, that
“[a]ll evidence and testimony has been considered, even if not
specifically addressed in the decision below,” 66 the agency
“may not ignore evidence favorable to the alien.” 67 And “[i]f
[evidence] is to be disregarded, we need to know why.” 68 We
will examine whether the IJ ignored evidence under each prong
61
855 F.3d 509.
62
Pieschacon-Villegas v. Att’y Gen. of United States, 671 F.3d
303 (3d Cir. 2011).
63
See Green v. Att’y Gen. of United States, 694 F.3d 503 (3d
Cir. 2012).
64
Green, 694 F.3d at 508 (quoting 8 C.F.R. § 1208.16(c)(3)).
65
Green, 694 F.3d at 509 (quoting Huang v. Att’y Gen. of the
United States, 620 F.3d 372, 388 (3d Cir. 2010)).
66
AR 127. See Green, 694 F.3d at 509.
67
Huang, 620 F.3d at 388 (citing Espinosa-Cortez v. Att’y
Gen., 607 F.3d 101, 107 (3d Cir. 2010)).
68
Myrie, 855 F.3d at 518.
23
of Myrie.
Myrie set forth two prongs that the Board must answer
when evaluating a CAT claim. First, the agency must
determine “whether an applicant has met the burden of
establishing that it is more likely than not [the alien] would be
tortured if removed.” 69 Second, the agency asks whether
public officials will acquiesce in the likely treatment. 70 We
will examine the errors under each prong of Myrie in turn.
1. Errors under Myrie Prong 1
Quinteros argues that the Board failed to determine
what would likely happen to him upon his return to El Salvador
and whether what would likely happen would constitute
torture. Under prong one, the agency determines whether an
alien would likely be “tortured if removed.” 71 Answering that
question requires two steps: (1) the agency must examine
“what is likely to happen to the petitioner if removed” and (2)
the agency must decide whether “what is likely to happen
amount[s] to the legal definition of torture.” 72
69
Myrie, 855 F.3d at 516.
70
Id.
71
Myrie, 855 F.3d at 516.
72
Id. “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
24
Quinteros argues that the Board erred in ignoring
numerous pieces of evidence in evaluating his CAT claim. In
reversing the IJ’s finding that Quinteros would likely be
tortured or killed in El Salvador, the Board made three
findings. First, the Board concluded that Quinteros had not
shown that he was likely to “be identified either as a current or
former gang member.” 73 Second, the Board found that his
tattoo was not likely to be discovered because it can be covered
while in public. And third, the Board concluded that there was
insufficient evidence that a New York Yankees tattoo was a
recognized gang symbol.
The Board erred in ignoring evidence about Quinteros’s
tattoo. The Board concluded that gang members would not be
able to identify Quinteros based on his tattoo because his tattoo
could be covered by clothing. But the Board made no mention
of the practice that Quinteros, Dr. Boerman, and the Harvard
study discussed: Police and gangs force suspected gang
members to strip down so they can search them for tattoos. The
Board also erred in ignoring evidence about the significance of
Quinteros’s tattoo. The Board stated that Quinteros had not
introduced evidence “[a]part from his own testimony and the
testimony of his expert witness” regarding the significance of
his New York Yankees tattoo. 74 Yet the Harvard study spoke
at length about the significance of tattoos. 75 That is grounds
F.3d 123, 151 (3d Cir. 2005) (citing Matter of J–E–, 23 I. & N.
Dec. 291, 297 (BIA 2002)).
73
AR 5.
74
AR 6.
75
Although the Harvard study did not address the significance
of a New York Yankees tattoo specifically, it discussed the
25
for a remand. 76
Quinteros’s argument that the Board failed to determine
what would likely happen to him upon return to El Salvador
and whether that would constitute torture is not quite as clear-
cut. Quinteros’s theory of why he would be harmed upon
returning to El Salvador was premised on state and nonstate
actors recognizing his gang affiliation and acting, or failing to
act, based on it. But even though the Board found that others
were not likely to recognize Quinteros as a gang member, the
Board was required to determine whether what was “likely to
happen” would constitute torture. 77 Because, however, the
Board failed to consider evidence that would have undermined
its conclusion that Quinteros was unlikely to be recognized as
a gang member, the Board must conduct its Myrie analysis
anew.
2. Errors under Myrie Prong 2
Quinteros also argues that neither the Board nor the IJ
made any factual findings as to how public officials would
significance of tattoos generally, including that “individuals
with tattoos, gang-related or not, often fear being targeted for
arbitrary arrests and detentions in El Salvador.” AR 1265.
76
See Green, 694 F.3d at 508–09.
77
See Myrie, 855 F.3d at 516 (quoting Kaplun v. Att’y Gen.,
602 F.3d at 271) (noting that when the IJ makes a
determination under the first prong of Myrie, “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 torture?”).
26
likely respond and that the Board and IJ applied the wrong
legal standard for acquiescence. In determining whether public
officials will acquiesce to torture, Myrie requires an analysis of
“how public officials will likely act in response to the harm the
petitioner fears” and “whether the likely response from public
officials qualifies as acquiescence.” 78
The Board primarily adopted the IJ’s reasoning as to
how public officials would likely respond. The IJ discussed
Quinteros’s testimony that the police are corrupt and infiltrated
by gangs and that Quinteros believed that his tattoo would be
taken as a gang signal. The Board and IJ discussed some
positive steps the Salvadoran government was taking to
combat gang violence. But neither the IJ nor the Board came
to a decision about how public officials would likely respond
to the treatment that Quinteros feared. That requires a remand.
Quinteros also claims that the Board and IJ applied the
wrong legal standard for acquiescence because they focused on
the government’s efforts rather than the results of those efforts.
The IJ determined that the Salvadoran government would not
acquiesce in Quinteros’s torture because of the government
had increased its efforts to address gang violence and reduce
corruption in the police force. Although the IJ noted the
uncertainty as to the success of these efforts, the IJ nevertheless
found that these increased efforts showed that the government
would not acquiesce in Quinteros’s torture. The Board adopted
this reasoning and again emphasized the Salvadoran
government’s positive efforts. We have previously made clear
to the BIA that a government can acquiesce in torture despite
78
Myrie, 855 F.3d at 516.
27
opposing the group inflicting the harm. 79 Indeed, although
“not dispositive of” whether a government acquiesced in
torture through willful blindness, “an applicant may be able to
establish governmental acquiescence in some circumstances,
even where the government is unable to protect its citizens
from persecution.” 80 The Board was required to consider
whether the government of El Salvador is capable of
preventing the harm Quinteros would likely face.
IV.
Having concluded that Quinteros’s conviction under 18
U.S.C. § 1959(a)(6) is not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F), (U), or (J), Quinteros is not removable as
charged. We therefore grant Quinteros’s petition for review
and vacate the Board’s final removal order, 81 and remand this
case to the Board for further proceedings consistent with this
opinion.
79
See, e.g., Pieschacon-Villegas, 671 F.3d at 312 (“[A]n
applicant can establish governmental acquiescence even if the
government opposes the paramilitary organization that is
engaged in torturous acts.”); Gomez-Zuluaga v. Att’y Gen. of
United States, 527 F.3d 330, 351 (3d Cir. 2008) (“The mere
fact that the Colombian government is engaged in a protracted
civil war with the FARC does not necessarily mean that it
cannot remain willfully blind to the torturous acts of the
FARC.”).
80
Pieschacon-Villegas, 671 F.3d at 311.
81
See, e.g., Borrome v. Att’y Gen., 687 F.3d 150, 163 (3d Cir.
2012) (holding that the petitioner was not convicted of an
aggravated felony and vacating the removal order).
28
McKEE, Circuit Judge, with whom Judges Ambro and Roth
join, concurring.
I join my colleagues’ thoughtful opinion in its entirety.
I write separately because I think it is as necessary as it is
important to emphasize the manner in which the BIA dismissed
Quinteros’ claim that he would be tortured (and perhaps killed)
if sent back to El Salvador. For reasons I will explain below,
it is difficult for me to read this record and conclude that the
Board was acting as anything other than an agency focused on
ensuring Quinteros’ removal rather than as the neutral and fair
tribunal it is expected to be. That criticism is harsh and I do
not make it lightly.
The BIA’s puzzling conclusions concerning Quinteros’
New York Yankees tattoo, although not the sole cause of my
concern, illustrate the reasons I feel compelled to write
separately. I will therefore begin by discussing the BIA’s
decision-making process concerning this tattoo.
I.
As Judge Roth notes, Quinteros testified that his New
York Yankees tattoo would identify him as a former gang
member. 1 He also produced corroborating testimony to that
effect from an expert witness and a study from the Harvard
Law School International Rights Clinic. The first Immigration
Judge to consider this evidence—which was apparently
undisputed by the government—did so carefully and ultimately
concluded that Quinteros “[h]as shown a clear likelihood that
he would be killed or tortured by members of MS-13 and 18th
Street gangs.” 2 This finding was affirmed by the BIA upon its
first review of Quinteros’ case, 3 and affirmed again by the
second IJ after we remanded for consideration in light of
1
Maj. Op. at 4-5.
2
JA125. The IJ also found the expert testimony convincing:
“Dr. Boerman’s testimony persuasively illustrates how the
Respondent could be mistaken for a gang member, since most
gang members have tattoos, and there is a large number of
MS-13 members in El Salvador . . .” Id.
3
JA130 (“We adopt and affirm the Immigration Judge’s
decision.”).
1
Myrie. 4 Thus, two IJs and a Board member had previously
examined and accepted this finding. Yet, for reasons that are
not at all apparent, the BIA suddenly reversed that conclusion
upon this fourth review.
In an explanation that is both baffling and dismaying,
the BIA now claims: “Apart from his own testimony and the
testimony of his expert witness, the record is devoid of any
objective evidence establishing that a person with a New York
Yankees tattoo without any other gang identifying marks will
be identified as a . . . gang member and subjected to torture.” 5
I am at a loss to understand what the BIA is referring to by
requiring “objective” evidence. The IJ whose order was being
reviewed had held that Quinteros was credible, stating: “Based
on a review of the totality of evidence, the Court finds that
Respondent’s testimony was consistent with the record and he
was forthright with the Court regarding his past membership in
MS-13 gang. Thus, the Court finds Respondent credible.” 6
Moreover, there was nothing to suggest that Quinteros’
testimony lacked credibility regarding any aspect of his fear of
MS-13 or how gang members would interpret his tattoo, and
neither IJ suggested anything to the contrary. 7
The BIA properly states the applicable standard of
review of an IJ’s credibility finding is “clear error,” 8 but
nowhere does it suggest any basis for finding such error in
either IJs’ determination. I am therefore unable to ascertain
any justification for the BIA’s sudden reversal after the three
previous cycles of review all arrived at the opposite
conclusion. I also remain baffled by the BIA’s usage of
“objective evidence.” The firsthand testimony of the victim of
any crime is probative evidence if it is credible 9—the issue is
4
JA14.
5
JA5 (emphasis added).
6
JA12.
7
See JA 14 (second IJ’s conclusion that Quinteros was
credible); JA118 (first IJ’s conclusion that Quinteros was
credible); see also Pet. Br. 41-42.
8
See BIA Opinion at JA2 (citing C.F.R. § 1003.1(d)(3)(i)).
9
For example, in statutory rape cases, fully half of the states
(including Pennsylvania, where Quinteros is being held) have
abolished their rules requiring corroboration. The victim’s
2
the credibility of the witness. Once a witness’s testimony is
found to be credible, it cannot arbitrarily be rejected merely to
achieve a particular result. Even more salient, the BIA’s
rejection of Quinteros’ credible testimony is inconsistent with
controlling precedent and the regulations governing CAT
relief. 10 Those regulations state: “[t]he testimony of the
applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.” 11 Thus, it is clear that
corroborative evidence may not be necessary. In this case,
where the testimony of the applicant is credible and is not
questioned in any way, there is no reason to need
corroboration.
Accordingly, Quinteros’ testimony should have been
sufficient proof of any dispute about his tattoo even if he could
be described as lacking objectivity. Moreover, there was
nothing offered to suggest that the expert witness or the report
of the Harvard Clinic was anything less than objective. It is
impossible to discern from the record why the BIA refused to
accept that external evidence. Moreover, given its apparent
disregard for these three distinct, previously accepted pieces of
evidence, I seriously doubt whether any evidence would have
been capable of changing the agency’s analysis. Thus, it is the
BIA’s own objectivity that concerns me here.
The agency’s discussion of the location of Quinteros’
tattoo heightens these concerns. First, the BIA expressed
account, if credible, is sufficient. See 18 PA. CONS. STAT. §
3106 (2018) (“The testimony of a complainant need not be
corroborated in prosecutions under [Pennsylvania criminal
law]. No instructions shall be given cautioning the jury to
view the complainant's testimony in any other way than that
in which all complainants' testimony is viewed.”); Vitauts M.
Gulbis, Annotation, Modern Status of Rule Regarding
Necessity for Corroboration of Victim's Testimony in
Prosecution for Sexual Offense, 31 A.L.R. 4th 120 § 4[a]
(1984).
10
See, e.g., Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d
582, 591 (3d Cir. 2011) (accepting as objective evidence the
testimony of the petitioner alone); Auguste v. Ridge, 395 F.3d
123, 134 (3d Cir. 2005) (accepting as “objective” the
“[e]vidence of past torture inflicted upon the applicant . . .”).
11
8 C.F.R. § 208.16.
3
skepticism because the record does not contain a photograph
of the tattoo, “or a description of its size and design.” 12 It
faulted Quinteros for not establishing that the tattoo is
“publicly visible,” and stated, “[t]he record simply indicates
that he has a tattoo on his right arm.” 13 Yet, the Government
never contested the existence of the tattoo and, as I have
explained, Quinteros’ testimony about it was accepted as
credible by the IJ.
Then the BIA objected that Quinteros never “clearly
specified the location of his New York Yankees tattoo and his
expert witness did not know its location.” 14 However, two
sentences later, the BIA states that “[t]he Record . . . simply
indicates that he [Quinteros] has a tattoo on his right arm.” 15
Therefore, not only was there never a dispute about the
existence of the tattoo, there was also no dispute as to its
location, and the BIA’s abortive suggestions to the contrary are
simply inconsistent with a fair and neutral analysis of
Quinteros’ claim. Finally, even if one sets that all aside, I can
find no reasonable basis for the BIA to suppose that the specific
design of the tattoo or testimony about its size was even
necessary. Whatever its exact appearance, it was uncontested
that it was a New York Yankees tattoo. And as noted by Judge
Roth, the record had established that awareness of gang use of
tattoos is so prevalent in El Salvador that individuals are
routinely forced by police and rival gangs to remove their
clothing for inspection of any tattoos that may be present. 16 It
therefore pains me to conclude that the BIA simply ignored
evidence in an effort to find that Quinteros’ tattoo would not
place him in peril as it was underneath his clothing. 17
II.
12
JA5.
13
JA5.
14
Id.
15
Id.
16
Maj. Op. at 22; see also JA61, 90-91, 162. Overlooking so
obvious an inference of danger—arising from the undisputed
existence of Quinteros’ tattoo—contradicts our directive that
“the BIA must provide an indication that it considered such
evidence, and if the evidence is rejected, an explanation as to
why . . .” Zhu v. Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014).
17
JA5.
4
As troubling as the mishandling of Quinteros’ evidence
might be standing alone, the BIA’s errors here are not an
isolated occurrence. There are numerous examples of its
failure to apply the binding precedent of this Circuit
delineating the proper procedure for evaluating CAT appeals. 18
Indeed, that framework has been mishandled, or simply absent,
from several BIA opinions in the two years since we explicitly
emphasized its importance in Myrie. 19
As Judge Roth explains, Myrie instituted a two-part
inquiry for evaluating whether a claim qualifies for relief under
CAT. She describes the steps required and the points which
must be addressed; 20 we normally accept the BIA’s well-
reasoned conclusions on each of these points, however,
“[t]he BIA must substantiate its decisions. We
will not accord the BIA deference where its
findings and conclusions are based on inferences
18
For our particular decisions on this topic, see Myrie v. Att’y
Gen., 855 F.3d 509 (3d Cir. 2017); Pieschacon-Villegas v.
Att’y Gen., 671 F.3d 303 (3d Cir. 2011).
19
Myrie, 855 F.3d at 516 (requiring the BIA to follow the
process we have delineated, as, “[i]n order for us to be able to
give meaningful review to the BIA’s decision, we must have
some insight into its reasoning.”) (quoting Awolesi v.
Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003)). Among the
examples of BIA error, see Serrano Vargas v. Att’y Gen., No.
17-2424, 2019 WL 5691807, at *2 (3d Cir. Nov. 4, 2019)
(finding it “unclear” whether the BIA followed our
precedent); Guzman v. Att’y Gen., 765 F. App’x. 721 (3d Cir.
2019) (finding ultimately non-determinative an incorrect
application of the Myrie and Pieschacon-Villegas standards
which had been summarily affirmed by the BIA); Zheng v.
Att’y Gen., 759 F. App’x. 127, 130 (3d Cir. 2019) (requiring
the appeals court to read between the lines of the BIA opinion
to understand whether the conclusion satisfied the Myrie test);
Antunez v. Att’y Gen., 729 F. App’x. 216, 223 (3d Cir. 2018)
(concluding the BIA applied the wrong standard of review
under Myrie).
20
Maj. Op, at 21.
5
or presumptions that are not reasonably
grounded in the record.” 21
In other words, the BIA cannot act arbitrarily. We
expect that it will “examine the relevant data and articulate a
satisfactory explanation for its actions, including a ‘rational
connection between the facts found and the choice made.’” 22
Here, as already seen, the BIA’s conclusions fell far short of
that low bar. According deference would therefore be to
compound a mistaken application of law.
The BIA’s misapplication of Myrie here is consistent
with other examples. Beginning with the first prong of Myrie’s
first question (what will happen if a petitioner is removed to
his or her country of origin), the BIA ignored evidence in the
record. I have already discussed much of its tattoo analysis. 23
Similarly, the BIA simplistically concluded that because
Quinteros left El Salvador when he was a boy, he would not be
recognized by El Salvadorian gangs upon his return. 24 That
conclusion was clearly contradicted in the record by credible
and undisputed evidence that Quinteros knows “at least 70”
current or former gang members in the United States who were
deported to El Salvador and would recognize him there. 25 The
BIA was required to at least review the evidence Quinteros
offered and provide a non-arbitrary reason for rejecting it. 26
21
Kang v. Att’y Gen., 611 F.3d 157, 167 (3d Cir. 2010)
(quoting Sheriff v. Att'y Gen., 587 F.3d 584, 589 (3d Cir.
2009)).
22
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
23
JA5.
24
JA4. The BIA strangely maintains in the face of the
evidence presented that “[Quinteros] has not clearly
articulated exactly how anyone in El Salvador will remember
or recognize him . . .” id.
25
JA63-64.
26
Huang, 620 F.3d at 388 (“The BIA simply failed to address
any evidence that, if credited, would lend support to
[Petitioner’s case], and thus the decision does not reflect a
consideration of the record as a whole.”).
6
And the errors do not stop there. Because it had not
substantively addressed the testimony offered above, the BIA
was left without substantive findings on which to determine
Question II of the Myrie framework: does what will likely
happen to a petitioner amount to torture? As Judge Roth makes
clear, the BIA is required to conduct both steps of the Myrie
analysis. 27 By declining to reach clear findings of what would
happen upon removal, the BIA prevented itself from then being
able to determine whether those results met the legal standard
for torture. The Myrie framework cannot be so easily evaded.
Lastly, to briefly reiterate Judge Roth’s important
observations regarding Myrie’s second prong, 28 a proper
inquiry must “take[] into account our precedent that an
applicant can establish governmental acquiescence even if the
government opposes the [group] engaged in torturous acts.” 29
This is only logical, as few countries admit to torturing and
killing their citizens, even when privately condoning such
conduct. Thus, if we simply took countries at their word, there
would barely be anywhere on the globe where CAT could
apply. We have previously made clear that this is the proper
inquiry to determine acquiescence and have remanded based
on the BIA’s failure to look past the stated policies of a given
government. 30 Other Circuit Courts of Appeals have done the
same. 31 The BIA is thus on notice that results, not press
27
Maj. Op, at 23 (citing Myrie, 855 F.3d at 516).
28
Maj. Op, at 24-25.
29
Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 312
(2011).
30
See, e.g., Guerrero v. Att’y Gen., 672 F. App’x 188, 191
(3d Cir. 2016) (per curiam); Torres-Escalantes v. Att’y Gen.,
632 F. App’x 66, 69 (3d Cir. 2015) (per curiam).
31
Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir.
2017); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1140
(7th Cir. 2015) (“[I]t is success rather than effort that bears on
the likelihood of the petitioner’s being killed or tortured if
removed”); Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir.
2013) (“If public officials at the state and local level in
Mexico would acquiesce in any torture [petitioner] is likely to
suffer, this satisfies CAT’s requirement that a public official
acquiesce in the torture, even if the federal government . . .
would not similarly acquiescence.”); De La Rosa v. Holder,
7
releases or public statements, are what drive the test for
acquiescence under Myrie.
III.
In Quinteros’ case, as has happened before, “[t]he
BIA’s opinion frustrates our ability to reach any conclusion . .
.” 32 In Cruz, we stated that “the BIA’s cursory analysis ignored
the central argument in [Petitioner’s] motion to reopen that he
was no longer removable for committing a crime of moral
turpitude.” 33 In Kang, we disapproved when “[t]he BIA
ignored overwhelming probative evidence . . . its findings were
not reasonably grounded in the record and thus . . . . [t]he BIA's
determination was not based on substantial evidence.” 34 In
Huang, we complained when “[t]he BIA’s analysis [did] little
more than cherry-pick a few pieces of evidence, state why that
evidence does not support a well-founded fear of persecution
and conclude that [petitioner’s] asylum petition therefore lacks
merit. That is selective rather than plenary review.” 35 There
are simply too many additional examples of such errors to feel
confident in an administrative system established for the fair
and just resolution of immigration disputes. 36 Most disturbing,
598 F.3d 103, 110 (2d Cir. 2010) (“[I]t is not clear . . . why
the preventative efforts of some government actors should
foreclose the possibility of government acquiescence, as a
matter of law, under the CAT.”).
32
Cruz v. Att’y Gen., 452 F.3d 240, 248 (3d Cir. 2006).
33
Id.
34
Kang, 611 F.3d at 167.
35
Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010).
36
See, e.g., Huang Bastardo-Vale v. Att’y Gen., 934 F.3d 255,
259 n.1 (3d Cir. 2019) (en banc) (castigating the BIA for its
“blatant disregard of the binding regional precedent . . .”);
Mayorga v. Att’y Gen., 757 F.3d 126, 134-35 (3d Cir. 2014)
(reversing a BIA decision without remand and observing that
“[i]deally the BIA would have provided more analysis,
explaining why it accepted the IJ’s (erroneous) reasoning . .
.”) (alteration in original); Quao Lin Dong v. Att’y Gen., 638
F.3d 223, 229 (3d Cir. 2011) (finding the BIA “erred by
misapplying the law regarding when corroboration is
necessary . . .”); Gallimore v. Att’y Gen., 619 F.3d 216, 221
(3d Cir. 2010) (holding that “[t]he BIA's analysis in all
likelihood rests on an historically inaccurate premise . . . . the
8
these failures gravely affect the rights of petitioners, such as
Quinteros, who allege that they will face torture or death if
removed to their country of origin.
IV.
Although the BIA is “[n]ot a statutory body . . .” 37 it has
been described as “[t]he single most important decision-maker
in the immigration system.” 38 I doubt that any court or any
other administrative tribunal so regularly addresses claims of
life-changing significance, often involving consequences of
life and death. It is therefore particularly important that the
opinions of the BIA fairly and adequately resolve the legal
arguments raised by the parties and render decisions based only
upon the record and the law.
I understand and appreciate that the BIA’s task is made
more difficult by the incredible caseload foisted upon it, and
the fact that BIA members (and IJs for that matter) are
horrendously overworked. 39 But administrative shortcomings
BIA's opinion fails adequately to explain its reasoning and, in
any event, appears incorrect as a matter of law.”). Nor is this
a concern of recent vintage, the BIA has been on notice for
well over a decade. See, e.g., Kayembe v. Ashcroft, 334 F.3d
231, 238 (3d Cir. 2003) (“[T]he BIA in this case has failed
even to provide us with clues that would indicate why or how
[petitioner] failed to meet his burden of proof. As a result,
‘the BIA’s decision provides us with no way to conduct our . .
. review.’”) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 555
(3d Cir. 2001)); Abdulai, 239 F.3d at 555 (“[T]he availability
of judicial review (which is specifically provided in the INA)
necessarily contemplates something for us to review . . . . the
BIA's failure of explanation makes [this] impossible . . .”)
(emphasis in original).
37
Anna O. Law, THE IMMIGRATION BATTLE IN AMERICAN
COURTS 23 (2010) (citing unpublished internal history of the
BIA).
38
Andrew I. Schoenholtz, Refugee Protection in the United
States Post September 11, 36 COLUM. HUM. RTS. L. REV.
323, 353 (2005).
39
See Am. Bar Ass'n, Comm'n on Immigration, 2019 Update
Report: Reforming the Immigration System: Proposals to
Promote Independence, Fairness, Efficiency, and
9
can never justify denying the parties a fair and impartial
hearing, or excuse allowing adjudications to devolve into a
mere formality before removal.
I would like to be able to feel comfortable that the
lopsided outcomes in immigration proceedings 40 reflect the
merits of the claims for relief raised there rather than the
proverbial “rush to judgment.” Thus, on remand, I can only
hope that Quinteros’ claims are heard by more careful and
judicious ears than he was afforded in this appearance.
Professionalism in the Adjudication of Removal Cases, Vol.
1, 20-21 (2019), available at https://www.naij-
usa.org/images/uploads/newsroom/ABA_2019_reforming_th
e_immigration_system_volume_1.pdf (noting the continued
heavy caseload of the BIA, with an increasing number of
appeals likely in the near future, and a resulting tendency to
dispose of cases with single-member opinions that address
only a single issue in the case).
40
Jaya Ramji-Nogales, et al., Refugee Roulette: Disparities in
Asylum Adjudication, 60 STAN. L. REV. 295, 359-61 (2007)
(reporting that between 2001 and 2005, the BIA’s rate of
granting asylum fell by up to 84%, with some categories of
applicants receiving asylum only 5% of the time).
10