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.
The opinion of the court was delivered by: Kahn, District Judge
Argued: December 21, 2009
Before: POOLER and CALABRESI, Circuit Judges, and KAHN, District Judge.*fn1
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. § 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.
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) 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 remandedthe 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 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 ...