Jose Iruegas-Valdez v. Loretta Lynch

Case: 15-60532 Document: 00513845791 Page: 1 Date Filed: 01/23/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fif h Circuit

No. 15-60532 FILED

January 23, 2017

Lyle W. Cayce

JOSE IRUEGAS-VALDEZ, also known as Jose Iruegas, Clerk

Petitioner

v.

SALLY Q. YATES, ACTING U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Jose Iruegas-Valdez (“Iruegas-Valdez”) appeals the Board of

Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”)

denial of his application for withholding of removal and relief under the

Convention Against Torture (“CAT”). For the reasons below, we VACATE the

decision of the BIA and REMAND with instructions to apply the appropriate

legal standards.

I

In 1975, one-year-old Iruegas-Valdez, a Mexican national, entered the

United States with his parents as a lawful permanent resident. In 1997, he

was convicted of possession of a controlled substance and removed from the

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No. 15-60532

United States. He remained in Mexico for only two days before re-entering the

country illegally. Ten years later, he was again removed after being convicted

of aggravated assault with a deadly weapon and serving three years

imprisonment.

Iruegas-Valdez again re-entered the United States illegally but was

quickly apprehended by the Department of Homeland Security (“DHS”). He

was convicted of being unlawfully present in the United States and, after

completing his sentence, was returned to DHS for removal procedures. He

claimed asylum and requested a reasonable fear interview. The asylum officer

conducting the interview found Iruegas-Valdez to be “credible” and to have a

reasonable fear of persecution in his home country. The case was then referred

to an IJ for determination.

At the hearing, Iruegas-Valdez testified that he is afraid to return to

Mexico because two of his cousins, Jose Luis Garza and Hector Moreno,

betrayed a drug cartel known as the Zetas. Garza is related to Iruegas-Valdez

through his father, Garza’s uncle having married Iruegas-Valdez’s first cousin,

Alma Perez Iruegas. Moreno is Iruegas-Valdez’s second cousin on his mother’s

side. Both Garza and Moreno had been high-ranking members of the Zetas

before they fled to the United States with five million dollars in cash and some

of the Zetas’ ledger books and became informants for the Drug Enforcement

Administration in 2011. Iruegas-Valdez claimed that the cartel retaliated by

massacring members of Garza and Moreno’s family: “The Zetas . . . sent 50

trunks [sic] of people to in [sic] the Coahuila, where I was born. They went to

town, and they picked up a lot of my family members.” He testified that at least

ten of his close family members were killed, including his first cousin Arnoldo

Perez Iruegas Velasco, who was beheaded, and Arnoldo’s wife who was eight

months pregnant at the time. Iruegas-Valdez claims that at least 200 people

associated with Garza’s and Moreno’s households were executed and that the

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cartel continues to “look for individuals, family members, as we speak.”

Iruegas-Valdez also claimed that local police participated in the massacre.

Iruegas-Valdez provided the IJ with numerous newspaper articles that

describe the attacks and specifically list some of his family members among

the deceased. Iruegas-Valdez’s mother, Maria Teresa Alonso Valdez (“Maria

Alonso”), also testified at the hearing, and the IJ found her to be credible.

The IJ held that Iruegas-Valdez was statutorily barred from seeking

asylum because he had previously been convicted of an aggravated felony. But

the IJ found that Iruegas-Valdez was still “eligible to apply for withholding of

removal” because “the nature of the offense, the length of the sentence imposed

. . . , and the circumstances under which this particular crime occurred does

not support a finding that [Iruegas-Valdez] was convicted of a particularly

serious crime.”

The IJ then denied Iruegas-Valdez’s application for withholding of

removal “[p]rimarily” because “the Respondent failed to testify credibility

[sic].” The IJ also denied Iruegas-Valdez’s application for withholding of

removal under CAT.

On appeal, the BIA affirmed the IJ’s decision, specifically holding that

Iruegas-Valdez had “not established that [the IJ’s] adverse credibility

determination [was] clearly erroneous.” The BIA did not consider whether the

additional evidence proffered by Iruegas-Valdez was enough to satisfy his

burden of proof independent from his testimony, holding instead that because

“the applicant’s testimony is not credible, he has failed to satisfy his burden of

proof for withholding of removal.” Iruegas-Valdez timely appealed.

II

We have “authority to review only an order of the BIA, not the IJ, unless

the IJ’s decision has some impact on the BIA’s decision.” Mikhael v. INS, 115

F.3d 299, 302 (5th Cir. 1997).

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On a petition for review of an order of the BIA, we review factual findings

“to determine if they are supported by substantial evidence in the record.” Id.

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). “Under substantial

evidence review, we may not reverse the BIA’s factual determinations unless

we find not only that the evidence supports a contrary conclusion, but that the

evidence compels it. In other words, the alien must show that the evidence was

so compelling that no reasonable factfinder could conclude against it.” Chun v.

INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam) (citations omitted). The BIA’s

legal determinations are reviewed de novo. Kompany v. Gonzales, 236 F. App’x

33, 37 (5th Cir. 2007) (per curiam).

III

As an initial matter, “8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction to

review final removal orders against aliens who are removable by reason of

having committed certain criminal offenses,” including aggravated felonies.

Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016); see also 8

U.S.C. § 1227(a)(2)(A)(iii). Because Iruegas-Valdez concedes that he is an

aggravated felon, we lack jurisdiction over his challenge to the BIA’s denial of

his application for withholding of removal and CAT relief, except to the extent

he raises legal or constitutional questions. See 8 U.S.C. § 1252(a)(2)(D).

Accordingly, we have no authority to consider Iruegas-Valdez’s argument that

the BIA lacked substantial evidence to support its conclusion that his

testimony was not credible.

By contrast, Iruegas-Valdez’s contention that he is more likely than not

to be persecuted on account of his membership in a particular social group is a

legal question we have jurisdiction to review, as is his argument that he is

eligible for protection under CAT. However, because the BIA failed to apply

the appropriate legal standards, we need not resolve these issues on the merits.

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A

Congress has forbidden the Attorney General from removing an alien

otherwise subject to deportation “to a country if the Attorney General decides

that the alien’s life or freedom would be threatened in that country because of

the alien’s race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien carries the burden of

proof in these proceedings. Id. § 1231(b)(3)(C). Here, Iruegas-Valdez argues

that he has satisfied that burden of proof.

The government contends that Iruegas-Valdez’s argument that—even

ignoring the applicant’s own testimony—he has established “that it is more

likely than not that he will be persecuted on account of his membership in a

social group consisting of ‘family of Hector Moreno and Jose Luis Garza,’ is not

properly before this Court.” We agree. The BIA based its denial of the

applicant’s petition for withholding of removal solely on the IJ’s credibility

determination: it did not consider the testimony of Maria Alonso or the

newspaper articles submitted to the IJ. As such, it did not decide whether

“family members of Moreno and Garza” constitute a particular social group or

whether Iruegas-Valdez’s fear of persecution is “on account of” his membership

in that particular social group. On the contrary, the BIA explicitly held that

“[g]iven the Immigration Judge’s adverse credibility finding, [it] need not

address the respondent’s challenge to the Immigration Judge’s determination

that the other proposed particular social group, family members of [Moreno

and Garza], is not valid.”

The Supreme Court addressed an almost identical situation in INS v.

Orlando Ventura, 537 U.S. 12 (2002) (per curiam). In that case, the BIA

“determined that respondent Fredy Orlando Ventura failed to qualify for . . .

statutory protection because any persecution that he faced when he left

Guatemala . . . was not ‘on account of’ a ‘political opinion.’” Id. at 13 (emphases

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omitted). The Ninth Circuit reversed but “went on to consider an alternative

argument that the Government had made before the Immigration Judge” but

which had not been considered by the BIA itself. Id.

The Supreme Court determined that this was a violation of “well-

established principles of administrative law.” Id. at 16. A “‘judicial judgment

cannot be made to do service for an administrative judgment.’ Nor can an

‘appellate court . . . intrude upon the domain which Congress has exclusively

entrusted to an administrative agency.’” Id. (alteration in original) (quoting

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). As such, “a court of appeals

should remand a case to an agency for decision of a matter that statutes place

primarily in agency hands.” Id.

Here, as in Ventura, the BIA specifically refused to consider an

alternative argument that had been raised before the IJ—namely that the

evidence external to Iruegas-Valdez’s testimony established that removal to

Mexico would put his life in jeopardy because he was a family member of

Moreno and Garza. Congress has explicitly delegated such determinations to

the Attorney General, not the courts. 8 U.S.C. § 1231(b)(3)(A). It would

therefore be a violation of “well-established principles of administrative law”

for us to reach this issue. Ventura, 537 U.S. at 16.

B

We likewise decline to consider whether Iruegas-Valdez is eligible for

relief under CAT because the BIA failed to apply the appropriate legal

standard. An applicant for withholding of removal under CAT bears the burden

of proving “that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).

“Torture” includes “any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person for such purposes as . . .

punishing him . . . for an act he . . . or a third person has committed or is

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suspected of having committed, or intimidating or coercing him . . . or a third

person.” Id. § 1208.18(a)(1). It includes “intentional infliction or threatened

infliction of severe physical pain or suffering,” as well as “threat[s] of imminent

death.” Id. § 1208.18(a)(4).

To qualify under CAT, the pain or suffering in question 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.” Id. § 1208.18(a)(1). A

public official acquiesces to torture when he or she has prior “awareness of such

activity and thereafter breach[es] his or her legal responsibility to intervene to

prevent such activity.” Id. § 1208.18(a)(7). An applicant may satisfy his burden

of proving acquiescence by demonstrating “a government’s willful blindness of

torturous activity.” Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (citing

Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)).

“Thus relief under the [CAT] requires a two part analysis—first, is it

more likely than not that the alien will be tortured upon return to his

homeland; and second, is there sufficient state action involved in that torture.”

Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (citing Tamara-Gomez v.

Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006)).

Failing to clearly bifurcate its CAT analysis, the BIA focused primarily

on the second prong, concluding that the applicant’s evidence did not prove

that the government would torture him: “while corruption and increased levels

of gang criminality exists [in Mexico], the government is actively fighting the

drug cartels.” In reaching this conclusion, the BIA seemed to adopt the analysis

of the IJ who listed various steps the government had taken since the Allende

massacre to stamp out the Zetas and their government lackeys: increasing the

number of federal troops, dismissing the entire municipal police force, and

arresting two local police officers for their alleged involvement in the attack.

The IJ then concluded that “[t]hese kinds of actions do not indicate that the

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Mexican government has simply looked the other way and willfully permitted

the Zetas to act with impunity.”

But “willful blindness” is not the only way to prove sufficient state action.

The regulations specifically list a number of different avenues which the BIA

failed to consider: torture occurs whenever severe physical or mental pain is

“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.” 8 C.F.R. §

1208.18(a)(1). “[G]overnment acquiescence need not necessarily be an officially

sanctioned state action; instead, an act is under color of law when it constitutes

a misuse of power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.” Garcia, 756

F.3d at 891-92. “[A]cts motivated by an officer’s personal objectives are ‘under

color of law’ when the officer uses his official capacity to further those

objectives.” Id. at 892 (citing Marmorato v. Holder, 376 F. App’x 380, 385 (5th

Cir. 2010) (per curiam)). Nor does our precedent require that the public official

in question “be the nation’s president or some other official at the upper

echelons of power. Rather . . . the use of official authority by low-level officials,

such a[s] police officers, can work to place actions under the color of law even

where they are without state sanction.” Id. (alterations in original) (quoting

Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009)).

Iruegas-Valdez has provided evidence that police officers were active

participants in the Allende massacre. He also provided evidence that the

governor of Coahuila, Humberto Moreira, was a close ally of the Zetas and

specifically allowed the attack. But neither the IJ nor the BIA considered

whether this evidence established that the applicant was more likely than not

to be tortured “by” or with the “consent of” government officials. This

constituted “error regarding what [Iruegas-Valdez] was required to show to

obtain CAT protection.” Id. at 893. Thus, we will “vacate the BIA’s decision and

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remand for the agency to properly consider this evidence under the under color

of law legal standard.” Id.

IV

In conclusion, we lack jurisdiction to review the BIA’s credibility

determination. With respect to the remaining issues, we VACATE the decision

of the BIA and REMAND for consideration pursuant to the appropriate legal

standards as detailed above.

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