United States Court of Appeals
For the First Circuit
No. 18-1923
JUAN ALECIO SAMAYOA CABRERA,
Petitioner,
v.
WILLIAM P. BARR,* Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Barron,
Circuit Judges.
Randy Olen for petitioner.
Sarah K. Pergolizzi, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, with whom Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Kohsei Ugumori,
Senior Litigation Counsel, were on brief, for respondent.
October 1, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Attorney General
Jefferson B. Sessions, III as the respondent.
BARRON, Circuit Judge. Juan Alecio Samayoa Cabrera
("Samayoa"), a citizen of Guatemala who arrived in the United
States without admission or parole, petitions for review from a
ruling by the Board of Immigration Appeals ("BIA") rejecting his
request for deferral of removal pursuant to the Convention Against
Torture ("CAT"). We deny the petition in part and dismiss it in
part.
I.
In 1992, Samayoa entered the United States from
Guatemala without inspection. Soon thereafter, he applied for
asylum. His application was rejected by the immigration judge
("IJ"), who instead granted him voluntary departure contingent on
him leaving the country within 60 days and ordered him removed if
he failed to do so. The BIA then affirmed that ruling, and we
denied his petition for review from the BIA's decision. See
Samayoa Cabrera v. Ashcroft, 367 F.3d 10 (1st Cir. 2004).
Samayoa's removal proceedings were conditionally terminated in
2011 after he obtained a temporary U visa, which permitted him to
remain in the United States.1 By 2017, however, his U visa had
expired and the government again initiated removal proceedings
against him.
1
A U visa is available to certain victims of crimes who
assist government officials in investigating or prosecuting those
crimes. See 8 U.S.C. § 1101(a)(15)(U).
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In those proceedings, Samayoa conceded that he had
entered this country without admission or parole, see 8 U.S.C.
§ 1182(a)(6)(A)(i), but sought various forms of relief from
removal. By the time of his removal hearing before the IJ, Samayoa
had narrowed those claims for relief to just one: deferral of
removal under the CAT. The IJ rejected that request for relief,
however, and the BIA then affirmed the IJ's ruling. Samayoa now
petitions for review from the BIA's decision.
II.
To make out a successful CAT claim, Samayoa must show
that it is "more likely than not that he . . . would be tortured
if removed to the proposed country of removal." 8 C.F.R.
§ 1208.16(c)(2). For these purposes, "torture" is defined as:
(1) an act causing severe physical or mental
pain or suffering; (2) intentionally
inflicted; (3) for a 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.
Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004) (quoting
Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)); see also 8
C.F.R. § 1208.18(a).
Samayoa based his CAT claim before the IJ on the
contention that he is alleged (falsely, in his view) to have
committed a number of war crimes while he served as a paramilitary
leader during the Guatemalan Civil War in the 1980s. Samayoa
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contended that, in consequence of those allegations and his
resulting notoriety in Guatemala, if he were removed there, he
would be either targeted and tortured by guerilla groups or
imprisoned and then tortured while in prison. In his petition for
review, however, Samayoa focuses on the imprisonment-based ground
for securing deferral of removal under the CAT. We thus focus
solely on that ground, too.2
A.
Samayoa first challenges the standard of review that the
BIA used to review the IJ's ruling. In doing so, he focuses in
part on the following portion of the BIA's ruling:
The Immigration Judge found that it was not
more likely than not that the respondent would
experience mistreatment rising to the level of
torture . . . if he were to return to Guatemala
. . . . An Immigration Judge's determination
on the probability of future events, including
events constituting torture, is a finding of
fact which is subject to clear error review by
the Board. We conclude that the respondent
has not established that the Immigration
Judge's determination regarding what is likely
to happen to the respondent upon his return to
Guatemala is clearly erroneous. Notably, much
of the respondent's fear concerning future
torture appears to be generalized and
unsupported, and relies on a series of
suppositions that are simply too speculative
2 To the extent that the petitioner attempts to argue that he
would face torture outside of prison upon removal to Guatemala,
his argument is waived. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").
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to meet the burden of proof for Convention
Against Torture protection.
(Internal citations omitted).
Samayoa argues that this passage reveals that the BIA
wrongly applied the highly deferential clear error standard of
review to the question of whether it would constitute torture to
subject him to the kind of treatment that he asserted that he would
be subject to in prison in Guatemala -- if, in fact, he were
subject to it. Samayoa contends that such a question -- because
it concerns what constitutes torture -- is properly viewed as a
legal one and thus one that is subject to de novo review.
Samayoa is right that, for the purposes of BIA review,
the IJ's "predictive findings of what may or may not occur in the
future are findings of fact . . . subject to a clearly erroneous
standard of review," Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590
(BIA 2015), while the question of whether those predicted events,
insofar as they occur, "meet the legal requirements for relief
from removal" is reviewed de novo, id. at 591; see also Liu Jin
Lin v. Holder, 723 F.3d 300, 307 (1st Cir. 2013). But, we do not
see how the portion of the BIA's opinion quoted above reveals that
the BIA failed to adhere to this distinction in reviewing the IJ's
decision.
In so concluding, we note that Samayoa conceded to the
BIA that poor prison conditions in Guatemala, on their own, were
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insufficient to make Samayoa eligible for CAT protection. But,
absent having made such a contention to the BIA, Samayoa would
have had to demonstrate to the BIA that the IJ had erred in
rejecting his contention that he was particularly likely to be
tortured because he would be targeted for harsher treatment than
other prisoners in consequence of who he was. And, in fact,
Samayoa attempted to show to the BIA that -- notwithstanding the
IJ's contrary determination -- he had established the basis for
making just that predictive finding.
Thus, when we consider the portion of the BIA's opinion
quoted above against this background, we conclude that the BIA's
opinion is best read to reveal in this passage that the BIA was
reviewing only the IJ's finding that Samayoa had not demonstrated
that he would experience distinctive treatment, as he had
contended. That finding, however, is properly reviewed only for
clear error precisely because it concerns only the factual accuracy
of Samayoa's predictive claim about the likelihood that he would
be treated differently from others. Accordingly, there is no
indication that the BIA was wrongly purporting to review for clear
error a legal determination as to whether, in the event that
Samayoa's predictive claim were accurate, the treatment that he
would then suffer would be severe enough to qualify as torture.
Samayoa separately challenges the BIA's affirmance of
the IJ's determination that, even assuming Samayoa's fears of
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mistreatment were to materialize, there would be insufficient
governmental involvement for the mistreatment to qualify as
torture under the CAT. Samayoa contends that, here too, the BIA
incorrectly reviewed the IJ's opinion for clear error where a de
novo analysis was required. But, while it is true that the BIA's
opinion does not explicitly spell out the standard of review it
applied on this point, we see no evidence that it reviewed the
IJ's conclusion for clear error, particularly where it found the
IJ's holding to be "correct[]" and cited legal authority for its
conclusion.
Accordingly, we reject Samayoa's standard-of-review-
based challenge. See Enwonwu v. Gonzáles, 232 F. App'x 11, 15
(1st Cir. 2007) (per curiam) (recognizing "the presumption of
regularity that attaches to the BIA's official acts").
B.
Samayoa next argues that the BIA erred in accepting the
IJ's determination that his testimony was not credible. But,
because we find that Samayoa failed to exhaust this aspect of his
challenge, we conclude that we lack jurisdiction to review the
BIA's acceptance of the adverse credibility finding that the IJ
made.
In contending that we do have jurisdiction over this
aspect of his challenge, Samayoa does not dispute that he failed
to make this argument in his appeal to the BIA or that
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"[o]rdinarily . . . an alien who neglects to present an issue to
the BIA fails to exhaust his administrative remedies with respect
to that issue and, thus, places it beyond our jurisdictional
reach," Mazariegos-Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013);
see also 8 U.S.C. § 1252(d)(1) (exhaustion requirement).
Nonetheless, he contends that the government relied on the IJ's
adverse credibility finding in arguing to the BIA that the IJ's
ruling should be affirmed and that the BIA then affirmed that
finding on the merits. See Mazariegos-Paiz, 734 F.3d at 63
(permitting a finding of exhaustion where "the agency has elected
to address in sufficient detail the merits of a particular issue").
But, once again, we do not agree with how Samayoa reads
the BIA's opinion. With respect to this issue, the BIA's opinion
states only the following:
Initially, we observe that on appeal, the
respondent does not challenge the Immigration
Judge's finding that the "overwhelming
evidence shows" that the respondent is not
credible. Accordingly, we find no clear error
in the Immigration Judge's adverse credibility
finding.
(Internal citation omitted). These two sentences -- given the use
of the word "[a]ccordingly" to join them -- show that the BIA
affirmed the IJ's adverse credibility finding only because Samayoa
had not contested it. Thus, we lack jurisdiction to review the
BIA's acceptance of the IJ's adverse credibility finding, see id.
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at 62-63, and so we must dismiss the petition insofar as it seeks
review of it.
C.
Samayoa's final challenge is to the evidentiary basis
for the IJ's ruling, as affirmed by the BIA, that he failed to
show that he was more likely than not to be tortured if he were
removed to Guatemala. In pressing this evidentiary challenge,
Samayoa contends that the ruling may not be sustained, even if we
consider only the documentary evidence that he submitted in his
removal proceedings. But, once again, we disagree.
Samayoa appears to recognize that his imprisonment-based
challenge to the IJ's ruling that he failed to show that he was
more likely than not to be tortured rises and falls on the strength
of the evidence in the record that distinguishes the treatment
that he would likely suffer while imprisoned in Guatemala from the
treatment that the average prisoner in that country would likely
endure. After all, at oral argument, Samayoa's attorney made clear
that Samayoa does not contend that conditions in Guatemalan prisons
are such that all prisoners incarcerated there are more likely to
be tortured than not. Moreover, he expressly denied making such
a claim to the BIA. He therefore failed to exhaust this line of
argument, see 8 U.S.C. § 1252(d)(1), and his claim in front of us
must rest on his assertion that he faces a particularized risk of
torture above and beyond the typical prisoner in Guatemala. Thus,
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his challenge is, of necessity, only to the evidentiary basis for
a factual finding, not a legal one, which the BIA determined was
not clearly erroneous.
As we have explained, "where the BIA has adopted or
affirmed the IJ's findings, the factual findings at issue before
us on appeal from the BIA's decision remain the factual findings
of the IJ." Rosales Justo v. Sessions, 895 F.3d 154, 161 (1st
Cir. 2018). In consequence, "we do not draw a distinction between
the two for the purposes of the standard of review." Id. Instead,
"we review the factual findings -- which were originally made by
the IJ but affirmed by the BIA -- under the substantial evidence
standard, rejecting them only if the evidence in the record compels
a contrary result." Id.3
Samayoa's effort to show that the record compels the
conclusion that he in particular is likely to be tortured if
imprisoned in Guatemala -- which is the showing that he must make
to demonstrate that the IJ's determination, affirmed by the BIA,
lacked substantial evidence to support it -- is not persuasive.
Samayoa does point to documentary evidence that shows that he is
alleged to have committed crimes in Guatemala, that the government
has issued warrants for his arrest, and that he would be targeted
3 We have sometimes "referred to the findings we are reviewing
as the 'BIA's factual findings,' when it would be more precise to
describe them as the findings of the IJ that have been adopted or
affirmed by the BIA." Rosales Justo, 895 F.3d at 161–62.
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for prosecution in that country if he were removed there. But,
although this evidence is specific to Samayoa, it concerns only
his likelihood of being imprisoned in Guatemala and not his
likelihood of being singled out once imprisoned there for
especially harsh treatment in comparison to other inmates in that
country. Accordingly, Samayoa fails to show that the record
compels a finding other than the one that the IJ reached, which
means that we must reject this third aspect of his challenge as
well.4
III.
The petition for review is denied in part and dismissed
in part.
4 Samayoa also highlights social media posts condemning him.
But nothing in the record suggests that the individuals who made
the posts or anyone associated with them intend to torture Samayoa
in prison, much less that they have the means to do so.
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Samayoa Cabrera v. Barr
Combined Opinion