Juliana Arreaga Bravo v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-3300
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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: December 23, 2021)
_____________
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
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 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
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weighing of the evidence. This was error. As a result, we will vacate the BIA’s final
order of removal and remand with instructions to reinstate the decision of the IJ.
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.
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 a town called Malacatan. Arreaga-Bravo stated that
while living in Malacatan, she worked in Talisman, a dangerous town near the Mexican
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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
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
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because the 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 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
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the acquiescence of the government. The BIA explained that the IJ had speculated in
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).
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.
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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 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.
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:
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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 Malicatan, 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 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.”).
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
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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 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 the
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 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.
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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.
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 Guatemala.” A.R. 85–
86. The IJ first invoked Arreaga-Bravo’s own experience as support:
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[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 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 corruption, is indicative of
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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-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 with instructions to reinstate the IJ’s 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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