De La Rosa v. Holder

09-3099-ag
De La Rosa v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

December Term, 2009

(Argued: December 21, 2009 Decided: February 25, 2010
Amended: February 25, 2010)
Docket No. 09-3099-ag

Marino De La Rosa,

Petitioner,

– v. –

Eric H. Holder, Jr., Attorney General,

Respondent.

Before: CALABRESI, and POOLER Circuit Judges,
and KAHN, District Judge.*

Petition for review of decisions by the Board of Immigration Appeals (“BIA”) reversing
an immigration judge’s (“IJ”) grant of deferral of removal and affirming a subsequnt order of
removal against petitioner pursuant to the Convention Against Torture (“CAT”). The BIA’s
order is VACATED, and the case is REMANDED to the BIA for further proceedings consistent
with this opinion.

Alexander Arandia, Arandia & Arandia, Forest Hills N.Y.,
for Petitioner.

*
The Honorable Lawrence E. Kahn, United States District Court Judge for the Northern
District of New York, sitting by designation.

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 Tony West, Assistant Attorney General, Civil Division,
John S. Hogan, Senior Litigation Counsel, Aimee J
Frederickson, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Washington, D.C.,
for Respondent.

Kahn, District Judge:

Petitioner Marino De La Rosa, a native of the Dominican Republic, appeals from the June

22, 2009, final decision and order of the Board of Immigration Appeals (“BIA”) affirming the

October 8, 2008, decision of Immigration Judge (“IJ”) Helen Sichel denying De La Rosa’s

application for deferral of removal under the Convention Against Torture (“CAT”), and ordering

his removal from the United States to the Dominican Republic. See United Nations Convention

Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,

Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

The IJ issued that October 8, 2008, order of removal following a May 22, 2008, decision

by the BIA reversing and vacating the IJ’s June 22, 2006, decision granting deferral of removal,

and remanding De La Rosa’s record to the IJ for the sole purpose of ordering removal. On

appeal, De La Rosa argues that he has shown a sufficient likelihood that he would be subject to

torture upon removal to the Dominican Republic, and that the BIA erred in reversing the June 22,

2006, decision of the IJ.

We find the BIA committed error in its review of the IJ’s factual findings and of the

evidentiary record in De La Rosa. The BIA may not engage in fact-finding during an appeal

from the decision of IJ, and may only review the IJ’s factual findings for clear error. 8 C.F.R. §

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1003.1(d)(3(I). The BIA employed an improper standard of review by considering the

evidentiary record in De La Rosa’s case and by finding facts inconsistent with the findings of the

IJ. On this basis, the BIA concluded that the “weight of the evidence” did not show that it is

more likely than not De La Rosa would be tortured upon removal. Additionally, the BIA may

have rested its decision on an alternative ground, concluding that the IJ’s factual findings and De

La Rosa’s submissions, as a matter of law, necessarily precluded a finding of government

acquiescence to torture. Due to our concerns with the BIA’s treatment of the “government

acquiescence” standard for torture under the CAT, we remand to the BIA for precedential

consideration of this issue.

Therefore, we vacate the BIA’s June 22, 2009 and May 22, 2008, decisions, and we

remand De La Rosa’s record to the BIA for further proceedings consistent with the Court’s

opinion. Given the amount of time this panel has spent with this case, we shall retain jurisdiction

over any post-remand appeal that may be made.

I. BACKGROUND

De La Rosa, born in the Dominican Republic in 1964, entered the United States in 1982

to play professional baseball. Based on the sponsorship of his then-wife, a United States citizen,

he was admitted to the United States on November 12, 1989 as a lawful permanent resident.

Removal proceedings were initiated against De La Rosa in December of 2001 after he pled guilty

in to the crime of conspiracy to distribute and possess, with intent to distribute, cocaine and

heroin, in violation of Sections 846, 846(a)(1), 841(a)(1), and 841(b)(1)(A) of Title 21 of the

United States Code. He was charged with removability pursuant to Sections 237(a)(2)(A)(iii)

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and 237(a)(2)(B)(I) of the Immigration and Nationality Act due to his status as an alien convicted

of an aggravated felony and as an alien who, after admission, was convicted of a violation

involving a controlled substance. De La Rosa was found ineligible for asylum and withholding

of removal on February 4, 2003, because of his conviction for a serious crime.

Over the next several years, he sought relief under Article 3 of the CAT and gave

testimony in support of that application to the IJ, ultimately resulting in the June 22, 2006,

decision and order granting him deferral of removal pursuant to 8 C.F.R. §§ 1208.16(c)(4) and

1208.17(a). The BIA reversed and remanded the IJ’s decision with the instruction to issue an

order of removal. Following the IJ’s compliance with that instruction, the BIA dismissed De La

Rosa’s appeal, and De LaRosa filed the petition for review now before this Court. That appeal

was expedited, and the Court has granted a temporary stay of removal pending its disposition.

De La Rosa’s claim for relief under Article 3 of the CAT revolve around his cooperation

with federal prosecutors following his arrest for involvement in a drug trafficking conspiracy. By

assisting the government, De La Rosa obtained a significant downward departure in his own

sentencing and facilitated the conviction of other individuals, including a Dominican national

named Jonas Brito (“Brito”). De La Rosa contends that he will more likely than not be tortured

or killed upon removal to the Dominican Republic due to a number of facts, including: the

express, repeated desire of Brito and others to kill him; the presence of Brito’s family and

contacts currently in the Dominican Republic, including a brother in the government; the

corruption and ineffectiveness of the Dominican authorities; and the pattern of Dominican

government involvement in unlawful killings.

To establish entitlement to relief under the CAT, De La Rosa bears the burden of proving

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that it is more likely than not that removal will cause him to be subject to torture. Torture is

defined as the infliction of severe pain or suffering by, at the instigation of, or with the consent or

acquiescence of a public official. See C.F.R. §§ 1208.16, 1208.17, 1208.18, § 1208.18(a)(1). In

the June 22, 2006, decision granting De La Rosa deferral of removal, the IJ determined that De

La Rosa met that burden, having “demonstrated that it is more likely than not that the Dominican

police will show willful blindness to, or even actively participate in, torturing and/or killing

[him]. Both the May 22, 2008, BIA decision reversing the IJ and the June 22, 2009, BIA

decision dismissing De La Rosa’s appeal rejected this conclusion, finding that the “weight of the

evidence simply does not indicate that it is ‘more likely than not’ that he will be tortured,” and

that “the evidence fails to show that the government would acquiesce in acts to torture him.”

II. DISCUSSION

As an initial matter, the REAL ID1 Act of 2005 limits our jurisdiction to review final

orders of removal against individuals removable for having committed crimes involving a

controlled substance to constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(C),

(D). We have found this section to so limit our jurisdiction in withholding of removal cases. See

Pierre v. Gonzales, 502 F.3d 109, 111-13 (2d Cir. 2007). We have also assumed, without

discussion, that section 1252(a)(2)(C) is applicable to deferral of removal claims under the CAT.

E.g., Poole v. Mukasey, 522 F.3d 259, 262 (2d Cir. 2008). We have not, however, expressly held

that the section is applicable to deferral claims. It should be noted that the Ninth Circuit draws a

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Rearing and Empowering America for Longevity against acts of International
Destruction

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distinction between withholding and deferral claims, treating the jurisdictional limits imposed by

section 1252(a)(2)(C) as inapplicable if the conviction does not provide the basis of the IJ’s

decision on relief under the CAT. See Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084, n.3 (9th

Cir. 2008) (distinguishing Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (9th Cir. 2004) and stating

that “‘[w]hen an IJ does not rely on an alien’s conviction in denying CAT relief and instead

denies relief on the merits, none of the jurisdiction-stripping provisions. . . apply to divest this

court of jurisdiction.’” (quoting Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007))). In the

instant case, we need not address this jurisdictional issue because the appeal raises only questions

of law.

a. BIA’s Standard of Review of IJ’s Factual Findings

Since September 25, 2002, the BIA has been bound to review the factual findings of

immigration judges only for clear error. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

289 (2d Cir. 2006). “The Board will not engage in de novo review of findings of fact determined

by an immigration judge. Facts determined by the immigration judge, including findings as to

the credibility of testimony, shall be reviewed only to determine whether the findings of the

immigration judge are clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). The BIA did not comply

with this regulatory command in reviewing the IJ’s factual findings, but rather applied a standard

that substantially deviated from clear error and may have been de novo. Whatever the precise

level of review undertaken by the BIA with respect to the IJ’s factual findings in De La Rosa’s

case, it constituted error.

In its May 22, 2008, decision reversing the IJ’s determination of De La Rosa’s CAT

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claim, the BIA articulated its standard of review as that of determining “the weight of the

evidence.” In exercising this review, the BIA appears to have made its own factual findings

based on “all evidence.” In doing so, the BIA’s characterization of facts deriving from the

evidentiary record is demonstratively at odds with factual findings made by the IJ, including

several directly inconsistent findings. For example, the BIA deviated from the IJ’s factual

findings when it determined that De La Rosa failed to establish that Brito’s family would be able

to identify De La Rosa or that such persons would even seek him out in the Dominican Republic.

Id. Other than concluding that the IJ “erroneously granted the respondent’s application for

deferral,” the BIA did not indicate or explain how the IJ may have committed clear error.

The standard of review entailed by “weight of the evidence” cannot be squared with

review for clear error in this Circuit. See Ceraseo v. Motiva Enterp., LLC, 326 F.3d 303, 316-17

(2d Cir. 2003) (distinguishing clearly erroneous findings, which is a ground for reversal, from

“weight of the evidence,” which cannot be such a ground). Indeed, “weight of the evidence” is

often equated across circuits with a de novo inquiry into the preponderance of the evidence. See,

e.g., Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1033, 1040 (10th Cir. 2006) (“The

preponderance of the evidence standard requires the party with the burden of proof to support its

position with the greater weight of the evidence.”); Jazz Photo Power Corp. v. United States, 439

F.3d 1344, 1350 (Fed. Cir. 2006) (stating that “we have defined preponderance of the evidence in

civil actions to mean ‘the greater weight of evidence, evidence which is more convincing than the

evidence which is offered in opposition to it.’”) (citation omitted); United States v. Garcia-

Guizar, 160 F.3d 511, 523 n.9 (9th Cir. 1998) (“A preponderance of the evidence means the

greater weight of the evidence.”); Lowry v. Alabama Power Co., 483 F.3d 1184, 1209 (11th Cir.

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2007) (same). But see MBH Commodity Advisors, Inc. v. Commodity Futures Trading

Comm’n, 250 F.3d 1052, 1060-1061 (7th Cir. 2001) (distinguishing “weight of the evidence”

review from a “de novo” review involving new factual findings and the possibility of new

evidence in the context of the Commodities Exchange Act, 7 U.S.C. § 21). While the Court does

not review the factual findings of the IJ and the BIA, it is apparent that, as a matter of law, the

BIA’s “weight of the evidence” review of the IJ’s findings does not conform to the dictates of 8

C.F.R. § 1003.1(d)(3)(i).

The improper standard of review used by the BIA is the type of error that requires

remand. We have said that “[i]t is precisely because factfinding in both the asylum and

withholding contexts is expressly committed to the discretion of the Executive Office of

Immigration Review (“EOIR”) that, when those findings rely upon legal errors, the appropriate

remedy is generally to vacate those finding and remand to the BIA for reconsideration of an

applicant’s claim.” La Hua Lin v. United States Dep’t of Justice, 453 F.3d 99, 106 (2d Cir.

2006). Minor errors, however, do not require remand. See Cao He Lin v. United States Dep’t of

Justice, 428 F.3d 391, 401 (2d Cir. 2005). Remand is unnecessary if it would be pointless or

futile, such as where there is an alternative and sufficient basis for the result, the error is

tangential to non-erroneous reasoning, or the overwhelming evidence makes the same decision

inevitable. See also Xiao Ji Chen v. United States Dep’t of Justice, 434 F.3d 144, 161 (2d Cir.

2006). The general rule is that the Court must be “confident that the agency would reach the

same result upon a reconsideration cleansed of errors.” La Hua Lin, 453 F.3d at 107.

Absent an alternative and sufficient ground for the BIA’s decision, the error in the

standard of review requires remand. In view of the IJ’s factual findings which may support a

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decision in De La Rosa’s favor, as well as the new evidence submitted by De La Rosa to the BIA

on appeal,2 the Court finds that the BIA, applying the proper standard of review for clear error,

could conclude that it is more likely than not that De La Rosa would be tortured upon removal to

the Dominican Republic within the meaning of the CAT.

However, our review of the BIA decisions reveals that the BIA may have an alternative

basis for its reversal of the June 22, 2006, IJ decision and dismissal of De La Rosa’s appeal.

Accordingly, we must proceed to review this possible alternative ground, which if sufficient to

support the BIA’s decision, would insulate the BIA’s error. Cao He Lin, 428 F.3d at 401.

b. Government Acquiescence

The BIA may have denied De La Rosa’s CAT application for an alternative reason. The

BIA’s opinion implies that, as a matter of law, the evidence in the case precluded a finding of

government acquiescence. The BIA explained: “evidence he provides on appeal includes several

police investigations and arrests related to his complaints. . . . Therefore, the evidence fails to

show that the government would acquiesce in acts to torture him, or that it would be unable or

unwilling to fulfill its duty to protect him.” This implies that the existence of some government

actors attempting to prevent torture is sufficient to negate the fact that other government actors

would be complicit in that torture, even when evidence strongly indicates that the government as

2
The BIA received and considered new evidence submitted by De La Rosa on appeal,
finding that it actually undermined his claim. This procedure was inconsistent with 8 C.F.R. §
1003.1(d)(3)(iv), which states that “[e]xcept for taking administrative notice of commonly
known facts such as current events or the contents of official documents, the Board will not
engage in factfinding in the course of deciding appeals.” The proper course for the BIA would
have been to either reject the evidence without consideration or move, sua sponte, to reopen the
case before the IJ with the additional evidence.

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a whole would be unable to prevent the torture from occurring. Such an understanding of

government acquiescence would, of course, provide an alternative ground for denying De La

Rosa’s CAT application. It is not entirely clear, however, to what extent the BIA order fully

adopts this view or rests its outcome upon it.

Article 3 of the CAT prohibits the deportation of any person to a country where it is more

likely than not that “[the individual] would be in danger of being subjected to torture.” Article 3,

1465 U.N.T.S. 85 (CAT).3 For pain and suffering to be cognizable as torture under the CAT, as

set forth in Article 1 of the Convention, it must be “inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.”

Article 1, 1465 U.N.T.S. 85 (CAT). The CAT’s implementing regulations clarify, and the Senate

voted for ratification with the understanding that, “[a]cquiescence of a public official requires

that the public official, prior to the activity constituting torture, have awareness of such activity

and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8

C.F.R. § 208.18; 136 Cong. Rec. 36, 198 (1990). Thus we have held that “torture requires only

that government officials know of or remain willfully blind to an act and thereafter breach their

legal responsibility to prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

Given this background, we are concerned with the BIA’s legal conclusion that the evidence

submitted by De La Rosa precludes the possibility of government acquiescence to his torture.

The IJ made a series of factual findings bearing on the actual involvement of Dominican

government actors in the possible killing of De La Rosa. These include findings that Brito has

3
Article 3 of CAT uses the language “substantial ground for believing that” rather than
“more likely than not that.” The Senate ratified the CAT with the understanding that the latter
standard would operate in place of the former. See 136 Cong. Rec. 36, 198 (1990).

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contacts in the Dominican government, that Brito’s brother is an official in that government, and

that this brother had met De La Rosa and is able to recognize him. The IJ also found that Brito

told a co-defendant of De La Rosa that he has brothers in the Dominican army. Id. Additionally,

the IJ received the most recent United States State Department Report on the Dominican

Republic, taking notice that it documented widespread corruption within the government and

police force, including infiltration by criminals and involvement in drug trafficking. Finally, De

La Rosa submitted evidence to the BIA indicating that Brito is present in the Dominican

Republic with the intent to kill De La Rosa and that the Dominican government lacks the

resources to prevent De La Rosa’s murder upon his removal to the country.

Despite this array of factual findings and submissions on appeal, the BIA concluded that

the evidence fails to show that the Dominican government would acquiesce in the torture of De

La Rosa, apparently on the basis that De La Rosa introduced evidence that some persons within

the government had taken steps to prevent his torture. Without discussion, the BIA appears to

have assumed that the activity of these actors overrides both the complicity of other government

actors and the general corruption and ineffectiveness of the Dominican government in preventing

unlawful killings. We have significant doubts about this view of what may constitute

government acquiescence.

In short, it is not clear to this Court why the preventative efforts of some government

actors should foreclose the possibility of government acquiescence, as a matter of law, under the

CAT. Where a government contains officials that would be complicit in torture, and that

government, on the whole, is admittedly incapable of actually preventing that torture, the fact that

some officials take action to prevent the torture would seem neither inconsistent with a finding of

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government acquiescence nor necessarily responsive to the question of whether torture would be

“inflicted by or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” Article 1, 1465 U.N.T.S. 85 (CAT); see also 8

C.F.R. § 208.18.

In light of the Court’s concern with the BIA’s application of the “government

acquiescence” legal standard, we find it appropriate to remand the instant case for additional

analysis and discussion of that question. The Supreme Court has stated that “[g]enerally

speaking, a court of appeals should remand a case to an agency for decision of a matter that

statutes place primarily in agency hands.” Immigration and Naturalization Serv. v. Ventura, 537

U.S. 12, 16 (2002). At this juncture, the proper course is for the BIA to make a considered

judgment on the application of the government acquiescence standard in the category of

circumstances at issue. “The agency can bring its expertise to bear upon the matter; it can

evaluate the evidence; it can make an initial determination; and, in doing so, it can, through

informed discussion and analysis, help a court later determine whether its decision exceeds the

leeway that the law provides.” Id. at 17; see also Yuanliang Liu v. United States Dep’t of Justice,

455 F.3d 106 (2d Cir. 2006) (explaining prudential reasons for remand to the BIA, whether or not

administrative law principles require it). Accordingly, we ask that the BIA issue a precedential

opinion on whether, as a matter of law, a government may acquiesce to a person’s torture where

(1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3)

the government is admittedly unable to actually prevent the torture from taking place.

III. CONCLUSION

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 The law is not clear as to whether the BIA’s implication or assumption that De La Rosa’s

evidence precludes a finding of government acquiescence would provide an alternative and

sufficient basis on which to uphold the BIA’s May 22, 2008 and June 22, 2009 orders.

Therefore, the BIA’s misapplication of the standard of review with respect to the IJ’s factual

findings requires that we vacate the BIA’s orders denying De La Rosa deferral of removal and

dismissing his appeal, and that we remand De La Rosa’s record back to the BIA. This panel

retains jurisdiction over any post-remand appeal that the parties may make.

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