NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-1217
___________
RAFAEL IGNACIO GUERRERO,
a/k/a RAFAEL IGNACIO GUERRO-SANCHEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A076-736-498)
Immigration Judge: Honorable Roxanne C. Hladylowycz
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 18, 2016
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: November 30, 2016)
___________
AMENDED OPINION*
___________
PER CURIAM
Rafael Guererro, proceeding pro se and in forma pauperis, petitions for review of
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
the Board of Immigration Appeals’ (BIA) final order of removal. For the following
reasons, we will grant the petition for review.
I.
Guerrero, a citizen of Mexico, attempted to enter the United States in January
1998 by presenting a fraudulent birth certificate. An immigration officer at the border
determined that he was inadmissible for having sought admission by fraud or
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)(i), and immediately returned him to
Mexico pursuant to an expedited removal order, see id. § 1225(b)(1). Guerrero re-
entered the United States illegally on an unknown date.
In April 2012, Guerrero was arrested for his role in an eastern Idaho drug
trafficking organization. Guerrero pleaded guilty to conspiracy to distribute in excess of
50 grams of methamphetamine, and was sentenced to forty-two months’ imprisonment.
See 21 U.S.C. §§ 846, 841(a)(1). The Department of Homeland Security (DHS) then
reinstated the expedited removal order issued against him in 1998. At that time, Guerrero
expressed a fear of returning to Mexico and was referred to a DHS asylum officer for a
reasonable-fear interview. See 8 C.F.R. § 241.8(e). Following the interview, the asylum
officer determined that Guerrero’s fear of persecution was reasonable and referred the
matter to an Immigration Judge (IJ). See id. § 1208.31(b)-(e). Guerrero requested
deferral of removal under the Convention Against Torture (CAT).1 See id. § 1208.16.
1
Guerrero also applied for withholding of removal under 8 U.S.C. § 1231(b)(3). The IJ
later determined that he was ineligible for such relief because his drug trafficking
conviction was a “particularly serious crime” within the meaning of 8 U.S.C.
2
At the hearing, Guerrero testified that he was afraid to return to Mexico because
members of a drug cartel based in Sinaloa were looking for him. Guerrero explained that
prior to his arrest in 2012, he had been helping the cartel transport drugs into the country.
During this time, one of his drivers disappeared with money owed to the cartel.
According to Guerrero, the cartel held him responsible for the theft and threatened him.
Guerrero further testified that, while he was serving his federal sentence in the
United States, members of the cartel in his home state of Sonora had kidnapped and
beaten his brother. The kidnappers warned Guerrero’s brother that they were awaiting
Guerrero’s return. Guerrero testified that his brother had filed a police report (which
Guerrero submitted into evidence), but claimed that the police did not investigate the
crime or make any arrests.
Guerrero told the court that law enforcement in Mexico would not be able to
protect him if he were forced to return because the Mexican government has been
infiltrated by the Sinaloa cartel. In support of these allegations, Guerrero submitted
several reports issued by the State Department, including its 2014 Report on Human
Rights Practices for Mexico, its 2015 International Narcotics Control Strategy Report on
Mexico, as well as a Travel Warning issued on May 5, 2015. He also submitted a
number of news articles concerning cartels and corruption in Mexico.
Following the hearing, the IJ determined that Guerrero had failed to meet his
burden under the CAT because he had not demonstrated that it was more likely than not
§ 1231(b)(3)(B)(ii). Guerrero did not seek administrative review of his withholding
claim, and he does not attempt to obtain review of it here.
3
that he would be tortured by, or with the acquiescence of, the Mexican government if
forced to return. See 8 C.F.R. § 1208.16(c)(2). Guerrero filed an administrative appeal.
Upon review, the BIA affirmed the IJ’s decision and dismissed the appeal.2
Guerrero now petitions for review of the BIA’s order.
II.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). “When,
as here, the BIA affirms an IJ’s decision and adds analysis of its own, we review both the
IJ’s and the BIA’s decisions.” Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir. 2012).
We review the agency’s factual findings for substantial evidence, Cheng v. Att’y Gen.,
623 F.3d 175, 182 (3d Cir. 2010), and uphold those findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). “We review de novo constitutional claims or questions of law and the
application of law to facts with appropriate agency deference.” Yusupov v. Att’y Gen.,
650 F.3d 968, 977 (3d Cir. 2011).
The CAT prevents the United States government from removing an alien to a
country where an alien will face torture. See 8 C.F.R. § 1208.16(c)(2). To meet his
burden under the CAT, the applicant bears the burden of establishing, through objective
evidence, “that it is more likely than not” that he will be tortured if removed. 8 C.F.R.
2
In affirming the IJ’s decision, the BIA declined to consider two news articles that
Guerrero had submitted for the first time on appeal, and further declined to remand the
matter for the IJ to consider them in the first instance. Guerrero does not challenge those
rulings here.
4
§ 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). “Torture is
defined as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining . . . information or a
confession, punish[ment] . . . for an act, . . . intimidat[ion] or coerci[on], or for any reason
based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).
The implementing regulations make clear that torture must be “inflicted by or at
the instigation of or with the consent or acquiescence of” an official person. 8 C.F.R.
§ 1208.18(a)(1) (emphasis added). The “acquiescence” requirement is met when “the
public official, prior to the activity constituting torture, ha[s] awareness of such activity
and thereafter breach[es] his or her legal responsibility to intervene to prevent such
activity.” 8 C.F.R. § 1208.18(a)(7). Notably, however, such “awareness” need not be
actual awareness. Rather, this Court has held that a government acquiesces to torture if it
is “willfully blind” to such activities; “[f]or purposes of CAT claims, acquiescence to
torture requires only that government officials remain willfully blind to torturous conduct
and breach their legal responsibility to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d
58, 70 (3d Cir. 2007); see also Roye v. Att’y Gen., 693 F.3d 333, 343-44 (3d Cir. 2012).
Guerrero claims that he will be tortured if forced to return to Mexico because the
Sinaloa cartel is looking for him and the government will not, or cannot, protect him.
The IJ found Guerrero generally credible, and did not dispute his testimony that his
brother had been targeted by men looking for Guerrero. In addition, after reviewing the
country conditions evidence, the IJ recognized that the Sinaloa cartel is one of the most
powerful and violent criminal organizations in Mexico, and that there are high rates of
5
violence in Guerrero’s home state. The IJ also recognized that the Mexican government
has struggled to control the extreme violence of the cartel and government corruption.
Nonetheless, the IJ concluded that, even if Guerrero were able to demonstrate that he
likely would be tortured by the Sinaloa cartel if forced to return to Mexico, he had not
demonstrated that the government would acquiesce in such torture because the Mexican
government is making efforts to combat the drug cartels and root out corruption. The
BIA agreed.
The agency construed the “acquiescence” standard too narrowly. In emphasizing
the Mexican government’s efforts to combat the drug cartels and root out corruption, the
IJ assumed that as long as the government is attempting to help its citizens, Guerrero
cannot establish that a public official or other person acting in an official capacity would
acquiesce in his torture at the hands of the cartel. We have recognized, however, that the
“awareness” prong of acquiescence can be met by a showing that some elements of the
government are in a collusive relationship with the torturers—even if the government
generally opposes the groups. See, e.g., Pieschacon-Villegas v. Att’y Gen., 671 F.3d
303, 312 (3d Cir. 2011) (remanding to determine, inter alia, whether petitioner could
establish acquiescence despite evidence that the Colombian government had made efforts
to demobilize the FARC and AUC and control corruption); Gomez-Zuluaga v. Att’y
Gen., 527 F.3d 330, 351 (3d Cir. 2008) (holding that two government representatives
each telling the petitioner that “there was nothing they could do to protect her” from the
FARC “may be circumstantial evidence that the Colombian government was willfully
blind to such treatment and that to pursue official assistance would have been futile”);
6
Silva-Rengifo, 473 F.3d at 69-70 (rejecting BIA’s conclusion that acquiescence requires
actual knowledge of torturous activity, and remanding for determination as to whether
record demonstrated that public officials in Colombia would turn a blind eye to violence
by paramilitary and guerilla forces) (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th
Cir. 2003) (remanding to consider evidence that Chinese police accepted bribes from, and
socialized with, snakeheads, and that the Chinese government fails to prosecute officials
charged with human rights offenses)). In light of this precedent, the BIA erred by failing
to consider whether the record evidence of the violence caused by the Sinaloa cartel and
corruption of law enforcement officials demonstrated that it is more likely than not that
Guerrero will be tortured “by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.” 8 C.F.R. §
1208.18(a)(1). If it is, Guerrero may have met his burden under the CAT.
III.
We have considered the Government’s arguments in opposition to the petition for
review, and conclude that they lack merit. Accordingly, for these reasons set forth above,
we will grant the petition for review, vacate the BIA’s order, and remand for further
consideration in light of this opinion.3
3
In affirming the IJ’s decision, the BIA stated as follows: “Although the applicant may
reasonably fear harm in Mexico by members of a drug cartel or by corrupt police officers,
the [IJ’s] conclusion that the record does not indicate that it is more likely than not that he
will face torture by or with the acquiescence (to include the concept of willful blindness)
of an official of the government of Mexico upon return to that country is not clearly
erroneous.” (AR000002) (emphasis added). Upon remand, the BIA should clarify
whether there is a legal component to the acquiescence determination giving rise to de
7
novo agency review. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA reviews
questions of law de novo, but findings of fact under a “clearly erroneous” standard”).
8