holding that, when a noncitizen has committed certain types of crimes, the INA limits review of final orders of removal to constitutional claims and questions of law, including “the application of a legal standard to undisputed or established facts”
How later courts described this case
- holding that, when a noncitizen has committed certain types of crimes, the INA limits review of final orders of removal to constitutional claims and questions of law, including “the application of a legal standard to undisputed or established facts”
- distinguishing between waiver and forfeiture
- “We find that the respondent’s offense is a particularly serious crime based solely on its elements, i.e., that the offense by its ‘nature’ is a particularly serious one.”
- instructing that after determining that the elements of the crime can potentially bring it within the ambit of a particularly serious crime, all reliable information can be considered to determine if a crime is particularly serious
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-2095
_____________
JAYEOLA SAMUEL AMOS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a
Decision of the Board of Immigration Appeals
A097-998-310
Immigration Judge: Nicholas A. Martz
_______________
Argued May 20, 2024
Before: RESTREPO, FREEMAN, and McKEE, Circuit
Judges
(Opinion filed: October 1, 2025)
A. Patrick DeSabato
Colleen E. Doherty [ARGUED]
Kevin A. Feeley
Mary E. Levy
Tessa L. Polsky
Temple University
Beasley School of Law
1719 N Broad Street
Philadelphia, PA 19122
Jessica Rickabaugh
Tucker Law Group
1801 Market Street
Ten Penn Center, Suite 2500
Philadelphia, PA 19103
Counsel for Petitioner
Merrick B. Garland
Joannabelle Aquino
Robert P. Coleman, III
Sarah E. Witri [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
McKEE, Circuit Judge.
2
Jayeola Samuel Amos is a native and citizen of
Nigeria. He seeks relief from the Board of Immigration
Appeals’ final order of removal denying him asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”).1
Amos argues that: (1) his due process right to a fair
and full hearing was denied because an interpreter was not
provided at his immigration hearing; (2) the BIA misapplied
the legal standard for determining whether a conspiracy to
commit passport fraud constitutes a particularly serious crime
within the meaning of the Immigration and Nationality Act
(“INA”)2; (3) the BIA erroneously denied him CAT relief by
failing to conduct a proper analysis of government
acquiescence pursuant to Myrie v. Attorney General3 and to
engage in the Abdulai v. Ashcroft4 corroboration inquiry;5 and
(4) the Immigration Judge failed to satisfy its obligation to
1
Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S.
85.
2
INA § 241(b)(3)(B)(ii) (codified at 8 U.S.C. §
1231(b)(3)(B)(ii)).
3
Myrie v. Att’y Gen., 855 F.3d 509, 516–17 (3d Cir. 2017).
4
Abdulai v. Ashcroft, 239 F.3d 542, 551–55 (3d Cir. 2001),
superseded by statute on other grounds by, REAL ID Act of
2005, Pub. L. No. 109-13, Div. B, Tit. 1, sec. 101 119 Stat.
305, 310, as recognized in Saravia v. Att’y Gen., 905 F.3d
729, 736 (3d Cir. 2018).
5
Amos raises corroboration as a standalone issue. Because
this issue goes to his eligibility for CAT relief, we find it
appropriate to analyze it alongside the Myrie claim.
3
inform him of his eligibility for waiver of inadmissibility
under 8 U.S.C. § 1182(h).
For the reasons explained below, we will grant Amos’s
petition for review as to all claims except for his due process
claim. Although we find that Amos’s due process claim is
not established on this record, we nevertheless agree that
Immigration Judges must provide interpreter services when
necessary to afford a meaningful immigration hearing. We
also agree that the BIA misapplied the legal standard used to
make a particularly serious crime determination. We agree
with both parties that the BIA failed to conduct a proper
Myrie v. Attorney General analysis when assessing Amos’s
CAT claim.6 We further find that the BIA erred in declining
to remand to the IJ Amos’s claim that he is apparently eligible
for relief under 8 U.S.C. § 1182(h).
We will vacate the BIA’s decision and remand for
further consideration consistent with this opinion. The BIA
should stay Amos’s removal pending its decision on remand.
I. Background
Amos first came to the United States and gained lawful
permanent resident status in 2005.7 He met his long-term
partner, Abosede Olutoye, in 2008. They have four children,
6
The government concedes that “[t]he Court should remand
the petition for review with respect to CAT protection,” and
suggests that we “stay Amos’s removal pending a decision in
this matter by the Board.” Gov’t Suppl. Br. 45-46.
7
United States Citizenship and Immigration Services
(“USCIS”) twice denied his Form N-400 Application for
Naturalization, first in 2008 and then in 2015. AR 20.
4
all of whom are United States citizens. Prior to the
conviction that led to his removal proceedings, Amos worked
as a licensed practical nurse.
Between May of 2013 and April of 2014, Amos and
three others conspired to submit fraudulent United States
passport applications to acquire passports for noncitizens.
The scheme generated approximately $19,528.42 for Amos
and his co-conspirators. He was arrested in 2016,
subsequently pleaded guilty to conspiracy to commit passport
fraud, and was sentenced to twenty-seven months
imprisonment. Shortly after his sentence was imposed, Amos
fled to Canada. He remained in Canada for five months
before being arrested and returned to the United States.
In October 2020, while Amos was incarcerated in
Pennsylvania, the Department of Homeland Security served
him with a Notice to Appear for removal proceedings. He
was charged with inadmissibility under INA §
212(a)(2)(A)(i)(I) for committing or conspiring to commit a
crime involving moral turpitude. In the removal proceeding
that followed, the IJ sustained the charge of inadmissibility.
Two months later, Amos—through counsel—filed
applications for asylum, withholding of removal, and
cancellation of removal.
At an ensuing hearing before another IJ, Amos
testified about incidents of past persecution and articulated a
fear of future persecution and torture if removed to Nigeria.
He explained that when he lived in Nigeria, he served as the
union chairman for bank employees. Between 1997 and
5
2001, members of the OPC, a militia group in Nigeria,8
targeted Amos for negotiating favorable compensation for
bank employees. He testified that on one occasion, militia
members who claimed to be acting on behalf of the Nigerian
government kidnapped and beat him, put a gun to his head,
cut his cheek with a knife, and left him on the side of the
road, resulting in his hospitalization. He reported the incident
to law enforcement, but the police were “unable to arrest
anyone.”9
On another occasion, Amos returned home to find his
apartment burned to the ground. He discovered a note in his
work office purportedly from the OPC militia group in which
they claimed responsibility for destroying his home. Again,
Amos filed a police report. Again, no one was arrested.
Amos submitted affidavits from his brother, mother, and
fellow union members to corroborate his testimony about
these incidents. His mother’s sworn statement explained that
as recently as 2019, “strange men” went to her house,
threatened her, and inquired about Amos’s whereabouts.10
In addition to Amos’s testimony, the IJ heard
testimony from his long-term partner, Olutoye. The IJ denied
8
Although the Record does not elucidate what the OPC
militia group is, Amos refers to the group as both the “Oodua
Progressive Congress,” AR 14 (Amos Opening Br. to BIA),
and the “Oodua People’s Congress,” AR 1235 (Amos
Credible-Interview Form). He further maintained that the
OPC “are militia hired by government officials who work for
the banks.” AR 522.
9
AR 70.
10
AR 527.
6
Amos’s applications for asylum, withholding of removal, and
cancellation of removal after finding that Amos’s and
Olutoye’s testimonies lacked credibility. Although the IJ
denied Amos relief on credibility grounds, the IJ also reached
independent grounds to support its denial. It denied Amos’s
application for cancellation of removal as a matter of
discretion after finding that the adverse factors in his case
outweighed the hardships Amos claimed would result from
his removal.11 The IJ also concluded that Amos had
committed a particularly serious crime, and therefore, was
statutorily barred from asylum and withholding of removal.
Finally, the IJ determined that Amos had not met his burden
of establishing that he would be tortured if removed to
Nigeria, and that the government would acquiesce to any such
torture.
11
In support of this claim for relief, Amos offered testimony
regarding hardship his children would suffer were he
deported. He presented testimony that, prior to his
incarceration, he was actively engaged in his children’s care.
Olutoye also presented testimony to that effect. She was later
impeached by the government with a prior immigration form
in which she had asserted that Amos was not actively
involved in his children’s care. The IJ believed these
inconsistencies undermined Amos’s claim that his deportation
would cause hardship to his children. The BIA affirmed that
finding and also found that Amos would not have received a
Waiver of Inadmissibility, a separate form of relief available
under 8 U.S.C. § 1182(h)(1)(B). While Amos does not seek
review of the order denying cancellation of removal, the issue
of hardship is relevant to the BIA’s rejection of his claim that
he is eligible for waiver of removal under 8 U.S.C. §
1182(h)(1)(B). See infra in II(E) at 26.
7
On appeal, the BIA found that the absence of a
language interpreter did not deny Amos due process to a full
and fair hearing because it was not convinced that Amos’s
witness had a language barrier. After considering the
elements of the general conspiracy statute, 18 U.S.C. § 371,
the BIA further affirmed the IJ’s finding that the facts and
circumstances surrounding Amos’s conspiracy to commit
passport fraud constituted a particularly serious crime. It also
declined to remand for the IJ to consider a waiver of
inadmissibility under 8 U.S.C. § 1182(h)(1)(B) because it
believed that the hardship requirement for such relief was
“more stringent” than the standard for cancellation of removal
and “because discretion would not have been exercised
favorably in any event.”12 Finally, it held that Amos did not
show that he suffered torture at the instigation or
acquiescence of the government, and agreed with the IJ that
Amos’s fear of future torture was “entirely speculative.”13
The BIA affirmed the IJ’s decision in its entirety.
This timely petition for review followed.
II. Discussion14
12
AR 8.
13
AR 9.
14
Even where, as here, a noncitizen has committed a type of
crime set forth in 8 U.S.C. § 1252(a)(2)(C), we have
jurisdiction to review final orders of removal under 8 U.S.C.
§§ 1252(a)(1) and (a)(2)(D) to the extent the petition for
review raises constitutional claims or questions of law.
Guerrero-Lasprilla v. Barr, 589 U.S. 221, 224-25 (2020).
8
A. The Government’s Challenge to
Jurisdiction.
The government insists that we lack jurisdiction to
review the BIA’s denial of Amos’s applications for relief
because Amos has been convicted of a crime that triggers a
statutory provision limiting our review to only constitutional
claims or questions of law. Yet, this petition raises legal
questions that are subject to our review.15 Amos claims he
was denied due process by the IJ’s failure to identify and
address his sole witness’ limited English language
proficiency. He further claims the BIA committed legal error
when it held that he was convicted of a particularly serious
crime based on his conspiracy violation under 18 U.S.C. §
371 without also considering the elements of the object of the
conspiracy—here, passport fraud under 18 U.S.C. § 1542.
We also have jurisdiction to review legal and factual
challenges to orders denying relief under the Convention
Against Torture. Patel v. Garland, 596 U.S. 328, 340 (2022).
If “the BIA affirms an IJ’s decision and adds analysis of its
own, we review both the IJ’s and the BIA’s decisions” in
tandem. Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir.
2012) (citing Dia v. Ashcroft, 353 F.3d 228, 243 (3d Cir.
2003)). In which case, we will reference the BIA—or
agency—decision when discussing the issues generally, and
we will reference the IJ’s opinion only “when necessary.”
Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 229 n.1 (3d Cir.
2011).
15
See 8 U.S.C. § 1252(a)(2)(D); Guerrero-Lasprilla, 589
U.S. at 340.
9
These are clearly questions of law that we have jurisdiction to
review.16
B. Amos’s Due Process Claim.
We start with Amos’s constitutional claim that the IJ’s
failure to investigate and cure his sole witness’ alleged
language barrier violated due process. The IJ found that
Amos’s testimony and that of his witness, Olutoye, lacked
credibility and denied Amos’s applications for relief. Amos
does not challenge the substance of the IJ’s credibility
determination. Rather, he argues that the IJ’s failure to
evaluate whether his witness needed an interpreter
substantially prejudiced his ability to reasonably present his
case and deprived him of a fair hearing. His claim is based
on his assertion that Olutoye had limited English proficiency
and thus required an interpreter.
“The Fifth Amendment protects the liberty of all
persons within our borders, including [noncitizens] in
immigration proceedings who are entitled to due process of
law—that is, a meaningful opportunity to be heard—before
being deported.”17 “Throughout all phases of deportation
proceedings,” due process requires “a full and fair hearing
that allows [petitioners] a reasonable opportunity to present
16
Guerrero-Lasprilla, 589 U.S. at 225 (holding that, when a
noncitizen has committed certain types of crimes, the INA
limits review of final orders of removal to constitutional
claims and questions of law, including “the application of a
legal standard to undisputed or established facts”).
17
Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 211 (3d Cir.
2017).
10
evidence on their behalf[.]”18 It entitles a petitioner to (1)
factfinding based on record evidence produced before the IJ
and disclosed to the petitioner; (2) the ability to make
arguments on his or her own behalf; and (3) the right to “an
individualized determination of [his/her] interests.”19
To state a due process claim, a petitioner must show
that s/he suffered substantial prejudice as a result of not being
able to reasonably present her/his case.20 To demonstrate
substantial prejudice, the petitioner need not prove s/he would
have qualified for relief from removal “but for the alleged
violation.”21 Rather, s/he is only required to show that the
violation of a procedural protection had the potential to affect
the outcome of the proceeding.22 “[W]e must consider the
record in relation to the potential grounds for asserted relief”
to determine whether the alleged due process violation could
have affected the outcome.23 Our review is plenary.24
1.
18
Id. at 213 (internal quotations omitted).
19
Abdulai, 239 F.3d at 549.
20
Freza v. Att’y Gen., 49 F.4th 293, 298 (3d Cir. 2022)
(quoting Serrano-Alberto, 859 F.3d at 213).
21
Serrano-Alberto, 859 F.3d at 213 (citing Cham v. Att'y
Gen., 445 F.3d 683, 694 (3d Cir. 2006)).
22
Id. (quoting Cham, 445 F.3d at 694).
23
Freza, 49 F.4th at 298-99 (quoting Serrano-Alberto, 859
F.3d at 213).
24
Serrano-Alberto, 859 F.3d at 213.
11
“[L]anguage barriers can make effective
communication impossible,”25 and thus undermine the
fairness of removal proceedings. Accordingly, when the
record shows that an IJ cannot adequately understand
testimony, there is a significant risk that an applicant for relief
will not be able to fairly present her/his claims to the IJ.
Moreover, difficulties in communication can cause an IJ to
doubt the veracity of a witness and thus lead to an unfair
adverse credibility determination that will often prejudice the
outcome of the proceedings.26
As we explained in B.C. v. Attorney General:27
The stakes in removal
proceedings—whether a
noncitizen will be deported—
could hardly be higher. But
despite the high stakes, the
outcomes of these proceedings
sometimes turn on minutiae.
Small inconsistencies in a
noncitizen’s testimony can doom
even those cases that might
otherwise warrant relief. To
ensure testimony is not unfairly
characterized as inconsistent, a
noncitizen must be able to
communicate effectively with the
officials deciding his case. . . [O]ur
Court has long recognized the
25
B.C. v. Att’y Gen., 12 F.4th 306, 308 (3d Cir. 2021).
26
See id. at 315.
27
Id. at 308.
12
importance of a competent
interpreter to ensure the fairness of
proceedings to individuals who do
not speak English.
The need for effective communication obviously
extends beyond the petitioner and includes her/his witnesses.
Failure to provide an interpreter when it becomes apparent
that an applicant or a witness is unable to communicate
effectively undermines the fairness and reliability of the
proceeding, and thus constitutes a denial of due process.
Nevertheless, the record before us does not support Amos’s
claim that language difficulties prevented his witness from
effectively communicating with the IJ.
To start, Amos’s counsel represented to the IJ that
Olutoye “will testify for about 30 minutes in the English
language.”28 Such a representation, of course, will not
absolve an IJ of its obligation to verify language proficiency
throughout removal proceedings if it subsequently appears
that a communications problem exists. However, no such
problem appears on this record. The transcript shows that
Olutoye was responsive to sophisticated questioning and
provided competent answers. When asked to explain how to
operate a nebulizer machine, for example, she provided a
comprehensive description of its mechanics and purpose.29
Likewise, when the government pressed Olutoye on
her statement that she would have to move to Nigeria if Amos
was deported, she clarified the difference between choosing
28
AR 508.
29
AR 370.
13
to leave the United States and needing to leave given the
challenges inherent in raising four children as a single
mother.30 And when questioned on a prior inconsistent
statement she made about Amos’s parenting, she ably
rebutted the government’s attempt to establish a discrepancy
between her earlier statement and her testimony that day. She
explained that she did not believe Amos was completely
unhelpful with their children. Instead, she clarified that while
he assists, his assistance is different than hers.31
Amos nevertheless argues that certain incidents
suggest a language barrier. Specifically, he believes that
forty-eight instances where “indiscernible” is written in
Olutoye’s hearing transcript, and moments where Olutoye
spoke in fragments, offered contradictory answers, was cut
off by the government, and asked the IJ to repeat a question,
are all indicative of language barrier.32 We are unpersuaded.
The incongruous answers Amos points to are less
contradictions than they are indications of Olutoye’s intent to
clarify the statements on which the government sought to
impeach her.33 Moreover, her answers were not unresponsive
30
See AR 425-26.
31
AR 443 (“He would assist. Not like me. Not like I do.”).
32
Amos Opening Br. 33.
33
For example, the government asked Olutoye if it is true that
she fears both the danger of remaining in the United States
without Amos more than the danger of moving to Nigeria
with Amos. Olutoye’s “No” response can reasonably be
interpreted as her acknowledging that the government
misunderstood her point. Moments later, she clarified that
she wants Amos to remain in the United States to help her
raise their children and would feel as though she has no
14
to the government’s questions. She effectively explained
potential inconsistencies between her testimony and her
answers on the immigration forms she had completed in the
past. By contrast with B.C. v. Attorney General, where an
applicant was asked “How did you get on the airplane?” and
responded “Cameroon,”34 Amos does not point to any such
non sequitur answers in Olutoye’s testimony.
Amos does correctly note many “indiscernible”
indications throughout Olutoye’s hearing transcript. The
inclusion of “indiscernible” in a transcript means the court
reporter was unable to decipher what Olutoye said, and thus
did not try to transcribe parts of her testimony. We agree that
an “unusually large amount of ‘indiscernible’ testimony”
entries may well suggest a language barrier.35 That is
especially significant when “coupled with other readily
apparent indicia of misunderstandings.”36 However, we find
no such other readily apparent indicia here, and the omissions
in the transcript did not adversely impact Amos’s ability to
present his case to the IJ.37
choice but to move to Nigeria if he was deported—given the
strains inherent in raising four children on a single, limited
income. AR 425.
34
See B.C., 12 F.4th at 317.
35
Id. at 318.
36
Id.
37
McLeod v. I.N.S., 802 F.2d 89, 94-95 (3d Cir. 1986)
(finding the poor quality of the removal hearing transcripts
reprehensible but concluding the faulty transcripts did not
bear on the applicant’s ability to state his claim for relief).
15
We nevertheless stress that it is critically important
that IJs take steps to ensure that anyone who testifies at an
immigration hearing is afforded an interpreter when
circumstances suggest a communications issue that could
undermine a petitioner’s right to a full and fair hearing. Here,
however, Amos has not shown that having an interpreter had
“the potential for affecting the outcome of [the] deportation
proceedings.”38 Significantly, his attorney’s representation
that Olutoye would be able to communicate in English, paired
with the totality of her testimony, establish the absence of any
language difficulties that would rise to the level of a due
process violation.
C. The BIA’s Particularly Serious Crime
Determination.
Amos further argues that the BIA erred in how it
determined that his conviction was a particularly serious
crime under the INA. The BIA has developed a two-part test
to determine whether a crime of conviction is particularly
serious.39 Our review of the BIA’s application of law to fact
is plenary.40
38
Serrano-Alberto, 859 F.3d at 213 (citing Cham, 445 F.3d at
694).
39
See In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007)
(instructing that after determining that the elements of the
crime can potentially bring it within the ambit of a
particularly serious crime, all reliable information can be
considered to determine if a crime is particularly serious).
40
Luziga v. Att’y Gen., 937 F.3d 244, 252 n.9 (3d Cir. 2019).
16
1.
The government argues that Amos did not exhaust this
claim before the BIA.
“[I]f the petitioner makes some effort, however insufficient,
that puts the agency on notice of a straightforward issue, the
requirement is satisfied.”41 And even if a petitioner fails to
raise an issue before the BIA, the exhaustion requirement is
excused if the BIA actually considered the issue on its own
initiative.42
While the BIA is not required “to guess which issues
have been presented and which have not, the petitioner is not
required to state precisely the alleged error.”43 That is
especially true when, as here, the BIA considered the IJ’s
application of the two-part test on its own. Because the BIA
considered Amos’s contention that his conspiracy conviction
does not constitute a particularly serious crime under the
INA, we may consider Amos’s claim of error.
2.
Amos was convicted of conspiracy to commit passport
fraud in violation of 18 U.S.C. § 371, by conspiring to violate
18 U.S.C. § 1542.44 He claims the BIA misapplied the legal
41
Id. at 251 (internal citation omitted) (explaining that our
exhaustion policy is a liberal one).
42
Nkomo v. Att’y Gen., 986 F.3d 268, 273 (3d Cir. 2021).
43
Id. at 272 (internal quotation marks omitted).
44
Plea Agreement, AR 1090 (listing the 18 U.S.C. § 371
charge as the “Offense of Conviction” and 18 U.S.C. § 1542
as providing the “Elements of the Offense[]”).
17
standard used to make a particularly serious crime
determination by failing to “consider the object of [his]
conspiracy conviction as an element of his offense.”45 We
find that the BIA erred at step one for failing to consider the
elements of the substantive offense of passport fraud.
The INA bars granting asylum or withholding of
removal to noncitizens who, “having been convicted by final
judgment of a particularly serious crime, constitute a danger
to the community of the United States.”46 Section
241(b)(3)(B) of the INA further provides that anyone who is
convicted of an aggravated felony, and sentenced to at least
five years imprisonment, is considered to have committed a
particularly serious crime.47 The particularly serious crime
classification, however, is not limited to aggravated
felonies.48 When an offense is not an aggravated felony, the
agency, “in its exercise of delegated adjudicatory authority . .
. decides whether an offense is particularly serious,” which
determines whether the conviction precludes relief from
removal.49
45
Amos Opening Br. 38.
46
See INA § 208(b)(2)(A)(ii) (codified at 8 U.S.C. §
1158(b)(2)(A)(ii) and governing applications for asylum);
INA § 241(b)(3)(B)(ii) (codified at 8 U.S.C. §
1231(b)(3)(B)(ii) and governing applications for withholding
of removal).
47
8 U.S.C. § 1231(b)(3)(B) (flush language).
48
In re N-A-M-, 24 I. & N. Dec. at 337 (“We hold that a
particularly serious crime need not be an aggravated
felony.”).
49
Luziga, 937 F.3d at 252 (citing 8 U.S.C § 1231(b)(3)(B)).
18
The BIA has developed methods for making that
determination—culminating into what became the two-part
test established by In re N-A-M-.50 In Matter of Frentescu,
the BIA created a factors test to determine if a conviction was
particularly serious within the meaning of the INA.51 It
concluded that such determinations have to be made “on a
case-by-case basis.”52 Four years later, in Matter of
Carballe,53 the BIA refined the particularly serious crime
framework. There, the BIA reasoned that a crime is
particularly serious if the “nature of the crime is one which
indicates that the [noncitizen] poses a danger to the
community.”54 The BIA stressed that “[t]he focus here is on
the crime that was committed.”55
In In re N-A-M-, the BIA incorporated the Frentescu
factors into what is today the two-part test for making a
particularly serious crime determination. At step one, the
agency examines the elements of the crime of conviction to
determine whether they “potentially bring the offense within
50
See generally 24 I. & N. Dec. 336 (BIA 2007).
51
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)
(“[W]e look to such factors as the nature of the conviction,
the circumstances and underlying facts of the conviction, the
type of sentence imposed, and, most importantly, whether the
type and circumstances of the crime indicate that the
[applicant for relief] will be a danger to the community.”).
52
Id.
53
Matter of Carballe, 19 I. & N. Dec. 357 (BIA 1986).
54
Id. at 360.
55
Id.
19
the ambit of a particularly serious crime.”56 Looking to the
correct statute at this step is critical because, if the elements
do not potentially bring the offense within a category of a
particularly serious crime, “the individual facts and
circumstances of the offense are of no consequence, and the
[noncitizen] would not be barred from a grant of withholding
of removal.”57 At step two, the agency can consider “all
reliable information” to decide whether a person’s conduct in
committing the offense rose to the level of a particularly
serious crime.58 “Reliable information” may include “the
actual circumstances of the crime, well beyond what was
disclosed by the elements.”59
When a conspiracy conviction is based on a
substantive offense, the agency must consider the elements of
that offense at step one of its inquiry. Here, the agency
should have started its analysis with the elements delineated
in section 1542, in addition to those in the general conspiracy
statute at section 371. Section 371 is incredibly broad and
sweeps within its wide reach any illegal agreement to engage
in conduct that constitutes an offense against the United
States. Yet not all conspiracies are created equal. A
conspiracy to steal a book of stamps from a post office
56
In re N-A-M-, 24 I. & N. Dec. at 342; see also id. at 343
(“We find that the respondent’s offense is a particularly
serious crime based solely on its elements, i.e., that the
offense by its ‘nature’ is a particularly serious one.”).
57
Luziga, 937 F.3d at 253 (citing In re N-A-M-, 24 I. & N.
Dec. at 342).
58
In re N-A-M-, 24 I. & N. Dec. at 342.
59
Id. (citing Matter of L-S-, 22 I. & N. Dec. 645, 654-56 (BIA
1999)).
20
counter is not the same as a conspiracy to kill a postal worker.
The seriousness of a conviction is not established merely
because the offender agreed (i.e. “conspired”) to do
something that was illegal or to do something that was legal
by illegal means. Accordingly, the inquiry into whether a
conspiracy conviction constitutes a particularly serious
offense under the INA cannot be resolved solely by focusing
on the crime of conspiracy as set forth in 18 U.S.C. § 371.
It also must consider the elements of the underlying
substantive offense. But when it does, it must account for the
“significant difference between agreeing to [commit a
substantive offense] and . . . carrying it out.”60 After all, a
conviction for a conspiracy to commit a substantive offense
does not require proof of all of the elements of the substantive
offense.61 It does not even require proof that the defendant
committed any overt acts in furtherance of the substantive
offense.62
The agency only proceeds to step two if the elements
of the conspiracy, considered together with elements of the
offense that was the object of the conspiracy, potentially
constitute a particularly serious crime. Then, at step two, the
agency can consider the noncitizen’s specific conduct when
committing the offense. Here, the BIA’s failure to consider
the elements of conspiracy to commit passport fraud under 18
U.S.C. § 371 alongside the elements of 18 U.S.C. § 1542
requires remand. On remand, the BIA must first determine
whether the elements of both statutes potentially rise to the
60
Annor v. Garland, 95 F.4th 820, 828 (4th Cir. 2024).
61
Id.
62
Id.
21
level of a particularly serious crime. “Only then may it
proceed to consider the facts and circumstances” of Amos’s
offense.63 Otherwise, the inquiry ends at step one. And at
step one the BIA may not consider “a hybrid of the elements
and facts” of Amos’s conviction.”64
D. The BIA’s Denial of Relief under the
Convention Against Torture.
Amos further claims that the BIA erred in affirming
the denial of CAT relief by misapplying our Myrie
framework65 and failing to conduct an appropriate Abdulai
inquiry.66 We agree. Moreover, (to its credit) the
government concedes that “[t]he Court should remand the
petition for review with respect to CAT protection.”67
1.
CAT relief is appropriate when an applicant
establishes “that it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal.”68 We previously explained:
For an act to constitute torture
under [CAT] and the
implementing regulations, it must
be: (1) an act causing severe
63
See Luziga, 937 F.3d at 254.
64
Id.
65
Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017).
66
Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001).
67
Gov’t Suppl. Br. 45.
68
Myrie, 855 F.3d at 515 (citing 8 C.F.R. § 208.16(c)(2)).
22
physical or mental pain or
suffering; (2) intentionally
inflicted; (3) for an illicit or
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.69
To determine whether an applicant has met his burden
in proving that he is more likely than not to be tortured if
removed, the agency must conduct a two-part inquiry. First,
it must determine “what is likely to happen to the petitioner if
removed.”70 Second, it asks whether “what is likely to
happen amount[s] to the legal definition of torture[.]”71 To
determine whether an applicant has met his burden of
establishing government acquiescence to the alleged torture,
the agency conducts a separate two-part analysis. First, it
“makes a factual finding or findings as to how public officials
will likely act in response to the harm the petitioner fears.72
Second, it considers whether “the likely response from public
officials qualifies as acquiescence under the governing
regulations.”73 When making that assessment, it considers
whether the public official was aware of the torture and
69
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005) (citing
Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002)).
70
Myrie, 855 F.3d at 516.
71
Id. (quoting Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d
Cir. 2010)).
72
Id.
73
Id.
23
breached its legal responsibility to intervene and prevent the
torture.74 Our review of whether the BIA misapplied the legal
standard we enunciated in Myrie is plenary.75
Here, the BIA uncritically adopted the IJ’s holding that
Amos did not suffer torture and provided insufficient
evidence to support finding government involvement or
acquiescence. It reasoned that Amos “did not show that he
suffered ‘torture’ in the past where he was kidnapped and
assaulted by members of the OPC militia.”76 But it did not
consider all factual evidence before it to determine what
would happen if Amos were to return to Nigeria. The BIA
ignored an affidavit from Amos’s mother in which she stated
that men “searched and scattered” her house and inquired
about Amos’s whereabouts in 2019.77 Likewise, it ignored
Amos’s brother’s affidavit in which he attested that, on two
occasions, his mother was threatened and accosted by men
searching for Amos. Further, the BIA noted the incidents
Amos describe occurred two decades ago and reasoned that it
was “entirely speculative [that] anyone would now seek to
torture the respondent.”78 Of course, any future prediction is,
by definition, speculative. Denying protection merely
because such predictions lack certainty would undermine the
relief CAT was intended to bestow.
The BIA also noted that Amos could not identify the
OPC members that harmed him, nor did he see who set fire to
74
Id. at 517.
75
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019).
76
AR 9.
77
AR 527.
78
AR 9.
24
his house. The BIA implies that Amos’s inability to identify
the persecutors demonstrates his inability to prove
government instigation or acquiescence. The fact that Amos
cannot identify his perpetrators cannot, alone, undermine his
claim of government involvement or acquiescence. If that
were true, the protections intended under the CAT could be
undermined by the mere fact of persecutors wearing masks
and hiding their identity. Even stating such a proposition
demonstrates its absurdity. CAT relief cannot turn on
whether purveyors of fear and violence take time to identify
themselves. Even in the most repressive of societies, those
who commit atrocities are not likely to leave calling cards
behind that reveal their identities.
We realize, of course, that proving government
involvement or acquiescence may be more difficult absent
proof of the identity of the persecutors. However, it is not
impossible. In some cases, circumstantial evidence may be
sufficient to establish government involvement or
acquiescence in acts of persecution or torture, such as
evidence that the government was aware of torture and failed
to intervene.79 Practical difficulties must not be allowed to
make proof so impossible that victims of torture (or
79
See e.g., Myrie, 855 F.3d at 516-17 (explaining that
“[c]ircumstantial evidence may establish acquiescence to
targeted acts of violence” and “[c]ircumstantial evidence that
public officials are willfully blind may establish acquiescence
to future torture”); Gomez-Zuluaga v. Att’y Gen., 527 F.3d
330, 351 (3d Cir. 2008) (remanding for further consideration
of circumstantial evidence that government officials were
willfully blind to the petitioner’s alleged torture).
25
persecution) are condemned to suffer its horrendous
consequences.
The government concedes that the BIA did not
“consider all the evidence of past harm in the record” 80 and
asks us to give the BIA the opportunity to consider record
evidence of recent incidents of alleged torture. We will
remand for reconsideration of Amos’s CAT claim under
Myrie.
2.
Amos also argues that “the IJ’s failure to conduct an
Abdulai inquiry fatally impacted the CAT analysis.”81 He
asks us to remand to the IJ to conduct a proper corroboration
determination. The government did not respond to this
argument in its briefing and therefore forfeited any
objection.82
In Abdulai v. Ashcroft, we held that “the BIA may
sometimes require otherwise-credible applicants to supply
corroborating evidence” to meet their burden of proving
80
Gov’t Suppl. Br. 46.
81
Amos Opening Br. 24.
82
Beazer E., Inc. v. Mead Corp., 412 F.3d 429, 437 n.11 (3d
Cir. 2005) (observing that an appellee who “fail[s] to respond
to an appellant’s argument in favor of reversal [forfeits] any
objections not obvious to the court to specific points urged by
the [appellant]” (second alteration in original) (citation
omitted)); see also Barna v. Bd. of Sch. Directors of Panther
Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir. 2017)
(distinguishing between waiver and forfeiture).
26
entitlement to relief.83 Abdulai requires an IJ to (1) identify
“the facts for which ‘it is reasonable to expect
corroboration’”; (2) inquire “as to whether the applicant has
provided information corroborating the relevant facts; and, if
he or she has not”; (3) assess “whether the applicant has
adequately explained his or her failure to do so.”84
The IJ mentioned Abdulai without engaging in its
inquiry and found that Amos had not established “it is more
likely than not that he would be tortured in Nigeria at the
instigation of, or with the consent or acquiescence of, a public
official” because the “record lacks any history of torture . . .
by the government.”85 It further found that Amos’s fears of
torture were based on incidents that occurred more than
twenty years earlier, thus rendering his fears of torture upon
removal speculative.
The BIA affirmed the denial of Amos’s CAT claim
because the IJ found insufficient record evidence to
corroborate Amos’s testimony that he was tortured at the
direction, or with the acquiescence, of the Nigerian
government. It also failed to conduct any inquiry under
Abdulai.
83
Abdulai, 239 F.3d at 554.
84
Id.
85
AR 80. The IJ further noted that Amos could not name the
individuals who kidnapped him, beat him, or burned down his
apartment. As we explained, supra in II(D)(1), the fact that
petitioners cannot identify the names or identities of their
persecutors is not sufficient to deny relief from removal.
27
As noted above, the government conceded the BIA did
not consider “more recent incidents described in letters from
[Amos’s] mother, brother, and a fellow union member.”86
There is no explanation for the failure to consider this
evidence. As the BIA reconsiders Amos’s CAT claim under
Myrie on remand, it must also consider whether the evidence
Amos raised was corroborative under Abdulai.
E. Eligibility for Waiver of Inadmissibility
Under 8 U.S.C. § 1182(h).
Finally, Amos argues that the IJ failed to advise him of
his “prima facie eligibility for a waiver of inadmissibility
under 8 U.S.C. § 1182(h)(1)(B).”87
Under § 1182(h), the Attorney
General in his[/her] discretion may
waive [a noncitizen’s]
inadmissibility for a crime of
moral turpitude if the [noncitizen]
is a spouse, parent, or child of a
United States citizen . . . and can
show that denial of admission
would cause extreme hardship to
the citizen[.]88
86
Gov’t Suppl. Br. 46.
87
Amos Opening Br. 54.
88
De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.
2002); see also 8 C.F.R. § 1240.1(a)(1)(ii) (“In any removal
proceeding pursuant to section 240 of the [INA—which
governs removal proceedings], the immigration judge shall
have the authority to . . . determine applications under [8
C.F.R. § 212(h)—which governs waiver of inadmissibility]”).
28
A noncitizen is apparently eligible for relief under
section 1182(h)(1)(B) when s/he meets the threshold
requirement by demonstrating that s/he is the “spouse, parent,
son, or daughter of a citizen of the United States or an alien
lawfully admitted for permanent residence.”89 Failure to
“inform [a petitioner] of his or her apparent eligibility” for
relief is a regulatory violation.90 Amos satisfies section
1182(h)(1)(B)’s threshold requirement because the record
shows that he is the father of four United States-citizen
children. Thus, the IJ was obligated to inform him of such
relief.91
Amos has further shown that the IJ’s failure to inform
him of his apparent eligibility had the potential to affect the
outcome of the proceeding.92 The BIA concluded that Amos
was not prejudiced in part because a waiver of inadmissibility
89
United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th
Cir. 2001).
90
See 8 C.F.R. § 1240.11(a)(2) (“The [IJ] shall inform the
alien of his or her apparent eligibility to apply for any of the
benefits enumerated in this chapter and shall afford the alien
an opportunity to make application during the hearing[.]”).
91
See Moran-Enriquez v. I.N.S., 884 F.2d 420, 422 (9th Cir.
1989); Hassan v. I.N.S., 927 F.2d 465, 467 (9th Cir. 1991)
(finding that petitioner “clearly meets the threshold
requirement” of 8 U.S.C. § 1182(h)(1)(B) “as both the spouse
and the parent of American citizens”).
92
See Serrano-Alberto, 859 F.3d at 213; Aquino v. Att’y Gen.,
53 F.4th 761, 766 (3d Cir. 2022) (applying Serrano-Alberto’s
prejudice test to violations of immigration regulations that did
not protect fundamental rights).
29
under section 1182(h)(1)(B) has more stringent requirements
than those for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1)(D). But the BIA got that backwards.
A waiver of inadmissibility under section
1182(h)(1)(B) requires “extreme hardship”93 to qualifying
family members, while cancellation of removal under section
1229b(b)(1)(D) requires “exceptional and extremely unusual
hardship”94 to qualifying family members. The latter is
“plainly” a higher bar than the former.95 So the IJ’s
determination that Amos was ineligible for cancellation of
removal did not rule out his eligibility for a waiver of
inadmissibility. And neither we nor the BIA can rule out that
the IJ would have exercised his discretion favorably with
respect to such relief where Amos’s U.S. citizen children
have a variety of mental and physical disabilities and
diseases. Accordingly, Amos has shown prejudice, and we
will remand to the agency for further proceedings regarding a
waiver of inadmissibility under section 1182(h)(1)(B).
III. Conclusion
For these reasons, we will grant Amos’s petition in
part and remand to the BIA for reconsideration of (1) the
particularly serious crime determination; (2) CAT relief; and
(3) waiver of inadmissibility. We deny Amos’s petition to
review his due process claim.
93
See 8 U.S.C. § 1182(h)(1)(B).
94
See 8 U.S.C. § 1229b(b)(1)(D).
95
Wilkinson v. Att’y Gen., 131 F.4th 134, 143 (3d Cir. 2025);
Pareja v. Att’y Gen., 615 F.3d 180, 191–93 (3d Cir. 2010).
30