Immigration – Government acquiescence in torture subject to de novo review

While the question of whether a government would acquiesce in torture is a question of fact for jurisdictional purposes, for purposes of an appeal, it is a mixed question of law and fact that is subject to de novo review.

Background

Petitioner Oscar Adilio Cruz-Quintanilla is a native of El Salvador and a legal permanent resident of the United States. He lawfully entered the country when he was 12 years old and was initiated into the MS-13 gang several years later. He left the gang in 2005.

In 2013, Cruz-Quintanilla was indicted by a grand jury for charges related to a home robbery. He was convicted on one count of reckless endangerment, one count of conspiracy to commit robbery with a dangerous weapon and one count of wearing, carrying, and transporting a handgun. After his release from prison, the Department of Homeland Security took him into custody and initiated removal proceedings based on the conspiracy to commit robbery and handgun charges.

Cruz-Quintanilla sought relief from removal under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. To obtain relief, Cruz-Quintanilla was required to demonstrate that it was more likely than not that, if removed, he would face severe pain and suffering that was intentionally inflicted and that this likely future mistreatment would occur at the hands of government or with the consent or acquiescence of government.

In June 2017, an immigration judge heard Cruz-Quintanilla’s case. While the judge agreed that Cruz-Quintanilla had valid concerns that he might be harmed by MS-13, she concluded that he failed demonstrate that it was more likely than not that he would be tortured with the consent or acquiescence of government.

The Board of Immigration Appeals dismissed Cruz-Quintanilla’s appeal on the ground that he failed to establish clear error in the factual findings of the immigration judge. Cruz-Quintanilla now petitions this court for review.

Analysis

Removal orders are not subject to judicial review except in a narrow set of cases where the challenge to the order raises constitutional claims or questions of law. Previous precedent in this circuit makes clear that the question of whether a government is likely to acquiesce in torture is a question of fact that this court lacks jurisdiction to hear.

This court does, however, have jurisdiction over Cruz-Quintanilla’s claim that the board applied the wrong standard of review when it affirmed the immigration judge’s decision.

The board reviews pure questions of fact under a clear error standard and reviews all other issues, including mixed questions of law and fact, de novo. The precedent in this circuit supports a conclusion that whether a government is likely to acquiesce in torture is a mixed question of law and fact that should be reviewed de novo.

While it is true that the issue of acquiescence to torture is a question of fact for jurisdictional purposes, it is appropriate to treat this issue differently when determining what standard of review should be applied by the board. Notably, it is clear that Congress intended the judiciary’s review of removal proceedings to be narrow in scope. The default position is that the executive branch, not the judiciary, should have the final word on matters of immigration, and exceptions to this default position should be limited.

Questions regarding the standard of review to be applied by the board do not raise such concerns. In fact, when it comes to standard of review, the default presumption is that issues should be reviewed de novo. The clear error standard of review for credibility determinations and findings of fact is an exception to the default that should be interpreted narrowly.

It is clearly that the board incorrectly applied a clear error standard of review when affirming the immigration judge’s decision.

Remanded.

Cruz-Quintanilla v. Whitaker (Lawyers Weekly Np. 001-036-19, 17 pp.) (Pamela Harris, J.) Case No. 17-2404. Feb. 1, 2019. From the Board of Immigration Appeals. Abraham Fernando Carpio for Petitioner; Sara J. Bayram for Respondent.