Luis Dutton Myrie v. Attorney General United State

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1599

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LUIS ANTONIO DUTTON MYRIE,

Petitioner

v.

THE ATTORNEY GENERAL

UNITED STATES OF AMERICA,

Respondent

________________

On Petition for Review of a Final Order

of the Board of Immigration Appeals

Immigration Judge: Honorable Walter A. Durling

(No. A070-851-548)

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Argued November 16, 2016

Before: AMBRO, CHAGARES,

and FUENTES, Circuit Judges

(Opinion filed: April 28, 2017)

Nathanael P. Kibler (Argued)

Baker Donelson Bearman Caldwell & Berkowitz

265 Brookview Centre Way, Suite 600

Knoxville, TN 37828

Counsel for Petitioner

Benjamin C. Mizer

Principal Deputy Assistant Attorney General

Civil Division

Bernard A. Joseph

Senior Litigation Counsel

Jason Wisecup

Erica B. Miles (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

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OPINION OF THE COURT

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AMBRO, Circuit Judge

Petitioner Luis Antonio Dutton-Myrie petitions for

review of a ruling by the Board of Immigration Appeals

(“BIA” or “Board”) dismissing his appeal of the decision by

an Immigration Judge (“IJ”) that he is ineligible for deferral

of removal under the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

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Punishment. S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85

(“CAT”). Dutton-Myrie contends that the Board erred in

affirming the IJ’s conclusion that the government of Panama

would not be willfully blind to torturous acts against him and,

in any event, stated incorrectly what constitutes acquiescence

to torture by Panamanian officials. He also asserts that the IJ

is biased against him and this, among other things, violated

his due process rights.

We conclude that the BIA did not apply the correct

legal standard under the CAT and should have reviewed the

IJ’s application of this standard de novo. We remand on these

grounds. While we reserve judgment on Dutton-Myrie’s due

process claim, we express concern that the IJ’s opinion

suggests such frustration with this case (which appears to

have nine lives) that the Board should consider assigning it to

a new IJ if further fact-finding is necessary.

I. Facts and Procedural History

a. Dutton-Myrie’s background

Dutton-Myrie is a native and citizen of Panama who

came to the United States on a visitor’s visa in 1991 and

remained after his visa expired six months later. In the early

1990s he pled guilty to cocaine-related offenses and criminal

attempt to commit escape.

In 1998 the former Immigration and Naturalization

Service charged Dutton-Myrie as removable for overstaying

his visa and as an alien convicted of an aggravated felony for

trafficking in a controlled substance. An IJ sustained the

charges against him and ordered him removed to Panama.

Government agents began the process of deporting Dutton-

Myrie, but he de-boarded the plane undetected before it left

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the United States and continued to live in this country without

legal status.

The Government apprehended Dutton-Myrie in 2005

and deported him to Panama. A few days after he returned,

the record indicates that a group of men came to his ex-

girlfriend’s apartment and stabbed him in the neck. He fled

the country and re-entered the United States through its

southern border.

The Government apprehended Dutton-Myrie a second

time in 2007 and charged him with illegal re-entry. He

ultimately pled guilty to these charges and was sentenced to

time served.1 The Government then transferred him to the

custody of Immigration and Customs Enforcement (“ICE”).

b. Removal proceedings before the Immigration

Judge

The United States Department of Homeland Security

reinstated in 2012 the final order of removal against Dutton-

Myrie. However, an asylum officer found he expressed a

reasonable fear of returning to Panama and referred him to an

IJ. Dutton-Myrie filed an application for deferral of removal

under the CAT based on his claim that members of the Mara

Salvatrucha (“MS-13”) gang would likely torture him if he

returned to Panama.

Dutton-Myrie represented himself at the hearing on his

application. He testified that his uncle, Reginaldo, and his

brother, Ricardo, started a gang called La Banda del Norte in

the 1980s in his hometown of Colón, Panama. Over time the

1

He was also sentenced to two years of supervised

release in the event that he was not immediately deported to

Panama.

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gang spread beyond Colón, entering into feuds with rival

gangs, including the MS-13. Dutton-Myrie claimed that

members of the Panamanian MS-13 were responsible for

beating Reginaldo to death in Brooklyn, New York, in 1992,

and for murdering Ricardo in Panama four years later.

According to Dutton-Myrie, the MS-13 targeted male

family members living in Panama because of their kinship

ties to Reginaldo and Ricardo: in 1995, Dutton-Myrie’s

brother Jose was drowned; his brother Nelson was beaten and

stabbed in 1997; his brother Arnaldo was shot in 2001, was

attacked again in 2004, and died in 2009 after members of the

MS-13 shot him 21 times; and in 2010 his brother Regelio

was shot twice but survived.

Dutton-Myrie further testified that gang members

attacked him immediately after he arrived in Panama in 2005.

A former girlfriend in Panama submitted an affidavit attesting

that she called the police to report the attack, but no officer

came to investigate. Dutton-Myrie then fled the country. He

stated that he believed the police were either bribed by the

MS-13 or were unwilling to protect his family, and he

supported this conclusion with record evidence of his

brothers’ deaths and testimonial evidence that the

investigations into the murders and violent attacks remained

unresolved. Dutton-Myrie also submitted a letter from the

Panamanian Department of Public Safety confirming the

deaths of his family members, stating that his surviving

family members receive death threats, and referencing a

complaint that his mother made reporting threats to her

children’s lives.

The IJ found Dutton-Myrie to be credible, accepting as

true his testimony that the gang had killed several of his

family members and that police had not prosecuted anyone

for these crimes. Though expressing “concerns for [the]

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safety” of Dutton Myrie if he were removed to Panama, the IJ

nonetheless determined that he failed to establish that

Panamanian officials would consent or acquiesce to the harm

he feared and thus denied his CAT claim.

c. The BIA’s first ruling

Dutton-Myrie appealed the IJ’s conclusion that he was

not eligible for CAT relief. The BIA affirmed, holding that

“[t]he evidence d[id] not establish that the Panamanian

government acquiesces to torture by gangs, as the term has

been interpreted by the Third Circuit, but rather shows that it

has been actively trying to combat them.”

d. The Government requests remand

Dutton-Myrie petitioned our Court for review. The

Attorney General filed a motion to remand to “allow the

Board to reconsider and/or clarify the bases for its . . .

decision in light of Pieschacon-Villegas v. Att’y Gen. of the

U.S., 671 F.3d 303, 311-14 (3d Cir. 2011).” We granted this

motion and remanded the case to the BIA, whereupon it

vacated its first decision and remanded to the IJ.

e. The Immigration Judge’s second decision and

the BIA’s second ruling

The IJ issued a second ruling in 2013. He again

denied CAT relief. Though the IJ found that Dutton-Myrie’s

“credibility [was] not at issue,” CAT protection remained

unavailable because he determined Dutton-Myrie had not

established that the Panamanian government “permit[ted] a

certain level of gang violence in order to inflict severe pain or

suffering on him.” On appeal, Dutton-Myrie argued the IJ

applied an erroneous legal standard for acquiescence by

requiring him to show the Panamanian government intended

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that he be tortured.

The Board sustained the appeal. It agreed that the

specific intent requirement applies only to those who commit

acts of torture, whereas an applicant need only show willful

blindness to establish acquiescence to the torture by others. It

also noted that the IJ failed to consider evidence relevant to

the likelihood of future harm. The Board therefore found it

“necessary to again remand [for the IJ] to reassess whether

[Dutton-Myrie] established acquiescence” despite the

Panamanian government’s opposition to the MS-13, as well

as “evidence of future torture.”

f. The IJ’s third decision and the Board’s remand

The IJ denied relief a third time in 2014. There he

relied on independent research he put into evidence, including

a 2011 Panama Crime and Safety Report and an article from

Panama Digest, which he found suggested the MS-13 gang

was a “recent phenomenon” in Panama. The IJ further

deviated from his prior two findings of credibility, stating

instead that the evidence cast “serious doubt on the veracity

of [Dutton-Myrie]’s claim that MS-13 lay behind the

devastation to his family.” The IJ discounted the letter from

the Department of Public Safety in Panama as unverified. He

then concluded without discussion that the evidence was

insufficient to establish willful blindness.

Dutton-Myrie appealed, and once again the Board

ordered a remand to the IJ for further proceedings. It held

that he erred in (1) questioning Dutton-Myrie’s credibility

despite finding him credible in prior proceedings, (2) failing

to notify Dutton-Myrie that further corroboration was

required, and (3) relying on an internet search that was not

part of the record of proceedings. The Board directed the IJ

on remand “again [to] determine whether [Dutton-Myrie]

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established acquiescence, as well as evidence of the

likelihood of future torture.”

g. The IJ’s fourth decision and the Board’s

affirmance

On remand, the IJ requested that both parties respond

to the country conditions evidence the IJ introduced

previously. The record contains notice of a hearing, yet the

BIA cannot locate a transcript of the hearing and the

Government now contests Dutton-Myrie’s claim that it

occurred. In his fourth decision, the IJ concluded that there

was no rebuttal of the evidence suggesting that the MS-13

had only recently begun to infiltrate Panama and opined that

he was “wholly unconvinced” that the group had attacked

Dutton-Myrie and his brothers. Yet the IJ specifically

stepped back from any adverse credibility determination as

the legal basis for his decision. Instead, he relied on his

conclusion that Dutton-Myrie could not establish the

Panamanian government would acquiesce to the harm he

alleged and cited the absence of corroborating evidence that

the MS-13 was responsible for the deaths of Dutton-Myrie’s

family members or that it was operating in Panama when the

attacks occurred. The IJ also found that Panama was actively

combating gangs and that Dutton-Myrie could not establish

that it was unwilling or unable to protect him because he had

not reported the 2005 attack to the police and presented no

further evidence that a public official was “willing to do him

harm or [to] acquiesce in someone else doing him harm.”

Once again, Dutton-Myrie appealed the IJ’s decision,

and here the BIA dismissed the appeal. It discerned no clear

error in the IJ’s finding that the Panamanian government fell

short of acquiescing to torture. The Board supported this

conclusion by citing to the IJ’s findings that (1) “Panama

‘actively engage[s]’ against criminal gangs and combats

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crime,” and (2) “although the applicant was attacked in

February 2005, he never reported the incident to police.” The

BIA also rejected Dutton-Myrie’s due process claims, finding

insufficient evidence that the IJ harbored personal bias

against Dutton-Myrie or that the IJ failed to consider relevant

evidence. While the Board recognized that “the [IJ] did not

specifically reference a letter from the Department of Public

Safety in Panama [confirming his family members’ deaths,

stating that his surviving family members continue to receive

death threats, and referencing his mother’s complaint

reporting threats to her children’s lives],” the Board

concluded that “this [was] insufficient to establish that the [IJ]

did not consider this evidence.” Another petition for review

followed.

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(1) to

review a final order of the BIA denying CAT relief.

However, because Dutton-Myrie is subject to removal based

on an aggravated-felony conviction, the statute constrains our

jurisdiction to “constitutional claims or questions of law,” as

“factual or discretionary determinations are outside of our

scope of review.” Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d

Cir. 2008) (en banc) (referring to the provisions of 8 U.S.C. §

1252(a)(2)(C)-(D)).

Constitutional claims or questions of law we review de

novo. Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 63 (3d Cir.

2007). Where the BIA affirms and partially reiterates the IJ's

discussions and determinations, we look to both decisions.

Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). If the

Board relies only on some of the grounds given for denying

relief, we review only these grounds. Chukwu v. Att’y Gen.,

484 F.3d 185, 193 (3d Cir. 2007).

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III. Analysis

a. The Convention Against Torture

Article 3 of the CAT provides that “[n]o State Party

shall expel, return . . . or extradite a person to another State

where there are substantial grounds for believing that he

would be in danger of being subjected to torture.” “The

burden of proof is on the applicant . . . to establish 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). “For an act to constitute torture under the

[CAT] and the implementing regulations, it must be: (1) an

act causing severe 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.” Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.

2005) (citing Matter of J–E–, 23 I. & N. Dec. 291, 297 (BIA

2002)). “If an alien produces sufficient evidence to satisfy

that burden, withholding of removal or deferring of removal

[under the CAT] is mandatory.” Silva–Rengifo, 473 F.3d at

64 (citing 8 C.F.R. §§ 1208.16–18).

To establish acquiescence, an applicant must

demonstrate that, prior to the activity constituting torture, a

public official was aware of it and thereafter breached the

legal responsibility to intervene and prevent it. 8 C.F.R.

§ 1208.18(a)(7). The applicant can meet this standard even

where the government does not have actual knowledge of the

torturous activity if he “produc[es] sufficient evidence that

the government [] is willfully blind to such activities.” Silva–

Rengifo, 473 F.3d at 65; see also Gomez–Zuluaga v. Att’y

Gen., 527 F.3d 330, 350 (3d Cir. 2008) (quoting Silva–

Rengifo, 473 F.3d at 65). “[A]ll evidence relevant to the

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possibility of future torture shall be considered.” 8 C.F.R. §

1206.16(c)(3); see Pieschacon-Villegas, 671 F.3d at 310.

Circumstantial evidence may establish acquiescence to

targeted acts of violence even when the government has an

official policy or is engaged in a campaign of opposition

against the entity the applicant fears. See id. at 312; Gomez-

Zuluaga, 527 F.3d at 351.

b. The BIA applied the incorrect standard of

review to the IJ’s determination that Dutton-

Myrie could not establish government

acquiescence to the torture he fears.

Dutton-Myrie argues that the BIA erred in reviewing

for clear error the IJ’s conclusion that the Panamanian

government would not acquiesce to torture. True enough, the

Code of Federal Regulations directs the Board to review the

IJ’s findings of fact for clear error, 8 C.F.R. § 1003.1

(d)(3)(i), but its authority to review questions of law,

discretion, and judgment is de novo, id. at § 1003.1(d)(3)(ii);

see also In re Cabrera, 241 I. & N. Dec. 459, 460 (BIA 2008)

(interpreting the regulation as providing de novo review of

questions of law or mixed questions of law and fact). We

agree with Dutton-Myrie that the question of whether likely

government conduct equates to acquiescence is a mixed

question of law and fact under our decision in Kaplun v. Att’y

Gen., 602 F.3d 260 (3d. Cir. 2010). What this means is that

the Board should review without deference the ultimate

conclusion that the findings of fact do not meet the legal

standard.

To determine whether an applicant has met the burden

of establishing that it is more likely than not he would be

tortured if removed, the IJ must address two questions: “(1)

what is likely to happen to the petitioner if removed; and (2)

does what is likely to happen amount to the legal definition of

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torture?” Id. at 271. In the first part of the inquiry, the IJ

reviews the evidence and determines future events more

likely than not to occur. These findings are “made up of

facts” and are “distin[ct] from [their] legal effect.” Id. at 269

(citing Black’s Law Dictionary 669 (9th ed. 2009)).

Accordingly, the Board reviews these factual findings for

clear error. Id. at 269-71. The IJ then determines whether the

likely harm qualifies as torture under the governing

regulations, and the Board reviews this legal conclusion de

novo. Id. at 271.

In assessing whether an applicant has established that

public officials will acquiesce to the feared tortuous acts of a

non-state actor, the IJ also must conduct a two-part analysis.

First, the IJ makes a factual finding or findings as to how

public officials will likely act in response to the harm the

petitioner fears. Next, the IJ assesses whether the likely

response from public officials qualifies as acquiescence under

the governing regulations. As above with respect to

determinations of torture, this second part of the inquiry is a

legal question. While the Board reviews the first part for

clear error, it must review the second de novo.

To the extent a dictum in Kaplun suggested that

whether the government would acquiesce was a factual

question, id. at 272, it addressed only the first component of

the inquiry into acquiescence: how the government would

likely act in response to the harm the applicant fears. We

clarify that the IJ must then apply the legal standard for

acquiescence to determine whether this response establishes

that a public official was “aware[] of [the torturous] activity”

and subsequently breaches his or her “legal responsibility to

intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).

In colloquial terms, the question might be: Is the official

willfully blind?

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The Board stated that it found “no clear error in the

Immigration Judge’s finding that the government of Panama

would not be acquiescent to any torture.” While the Board

was correct in reviewing for clear error the IJ’s factual

findings (that the government actively engages against

criminal gangs and that Dutton-Myrie did not provide the

police notice that the gang attacked him in the past), it should

have determined de novo whether these findings were

sufficient to establish acquiescence.

Although it is possible that the BIA considered the

appropriate willful blindness standard before concluding that

the IJ’s factual findings on likely government conduct would

not qualify as acquiescence to torture as a matter of law, we

cannot tell from the BIA’s short decision whether this is

indeed the case. “In order for us to be able to give

meaningful review to the BIA’s decision, we must have some

insight into its reasoning.” Awolesi v. Ashcroft, 341 F.3d 227,

232 (3d Cir. 2003). In any subsequent opinions in this case,

the BIA should endeavor to explain clearly which conclusions

of the IJ it is reviewing and which standard it is applying in so

doing.

While we recognize this error may have resulted from

a miscommunication on our part, the Board’s decision

illustrates why we must remand. Because the Board did not

conduct the second step of this two-part analysis, we have

little insight into the basis for its determination that the IJ’s

opinion “clearly reflects that he used the proper ‘willful

blindness’ standard in relation to the issue of acquiescence.”

In support of its conclusion, the Board provides only a

citation to a portion of the IJ’s opinion where he neither

defines willful blindness nor indicates why Dutton-Myrie’s

evidence of willful blindness was insufficient to establish

acquiescence. While the IJ states that he is incorporating his

“prior references to the CAT standards,” and that he “already

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addressed” the holding of Pieschacon-Villegas in prior

rulings, the Board found that the IJ failed to apply our

holdings on acquiescence in Pieschacon-Villegas and Roye v.

Att’y Gen., 693 F.3d 333 (3d Cir. 2012), in those rulings.

Remand in this instance will give the Board an opportunity to

provide a reasoned basis for its conclusion as to whether

Dutton-Myrie can establish the necessary elements of torture.

c. On remand, the Board must consider

circumstantial evidence of willful blindness.

The regulations require the Agency to consider all

evidence relevant to the possibility of future torture. See 8

C.F.R. § 1206.16(c)(3); Pieschacon-Villegas, 671 F.3d at

315-317. Circumstantial evidence that public officials are

willfully blind may establish acquiescence to future torture.

Hence the Board must consider it.

Dutton-Myrie submitted circumstantial evidence via

live testimony and sworn letters attesting that the Panamanian

government had not taken steps to protect him or his family in

the past and would likely continue to breach the duty to

intervene in the future. In particular, he submitted a letter

from the Panamanian Public Safety Department attesting to

continued threats to his family members and that his mother

lodged grievances about these threats with public officials.

For the IJ not to reference this letter, and then for the BIA to

intuit that somehow he considered it in concluding against

Dutton-Myrie, is simply too speculative an inference to draw.

We also cannot conclude based on the record before us

that the Board considered other relevant circumstantial

evidence. Dutton-Myrie submitted an affidavit from his

former girlfriend in which she stated that she reported the

2005 incident to the police. The Board did not address this

evidence, but stated that the IJ’s decision clearly reflects that

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he applied the proper willful blindness standard with a

citation to the final page of his opinion where he dismissed

Dutton-Myrie’s former girlfriend’s testimony as “not

verified.” Why a signed affidavit did not qualify as verified

testimonial evidence escapes us. If it is to be disregarded, we

need to know why.

Dutton-Myrie also testified about the futility of

reporting to the police. In his first decisions, the IJ found this

testimony credible and never notified Dutton-Myrie of a

subsequent view otherwise. In any event, because this

evidence is relevant to determining if the harm he fears will

be met with a “blind eye” by authorities, the Board needed to

consider it.

We also disagree with the Board’s reliance on two

factual findings in support its conclusion that the IJ did not err

in finding no government acquiescence to torture. It affirmed

on the grounds that (1) “the record indicates that the

government of Panama ‘actively engage[s]’ against criminal

gangs and combats crime,” and (2) “although the applicant

was attacked in February, 2005, he never reported the

incident to police.” However, neither one of these

circumstances, either alone or with the other, precludes an

applicant from establishing that the government was willfully

blind. “[A]n applicant can establish governmental

acquiescence even if the government opposes the []

organization that is engaged in torturous acts.” Pieschacon-

Villegas, 671 F.3d at 312. And nowhere do the regulations

require actual knowledge of specific torturous acts against the

applicant.

When the Board has relied on the failure to report

crimes to show the absence of actual knowledge by a

government official, along with the government’s active

opposition to the group the petitioner fears, in concluding a

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petitioner cannot establish acquiescence, we have nonetheless

remanded with instructions to consider circumstantial

evidence that may establish willful blindness. See Gomez-

Zuluaga, 527 F.3d at 351; Silva-Rengifo, 473 F.3d at 70; see

also Bhatt v. Att’y Gen., 608 F. App’x 93, 98 (3d Cir. 2015).

Thus we grant the petition for review and remand for further

proceedings consistent with this opinion.

We conclude with a comment on Dutton-Myrie’s due

process claim that the IJ deprived him of his right to a fair

hearing before a neutral arbiter.2 We do not decide it, but

note our impression that this case, as it is becoming the

immigration version of Dickens’s Jarndyce and Jarndyce,

may be ripe for reassignment if further fact-finding is

necessary.

2

We do not reach Dutton-Myrie’s claim that his due process

rights were violated by the failure to prepare a record of

remand proceedings.

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