Nelson Quinteros v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 18-3750

____________

NELSON QUINTEROS,

Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A079-029-001)

Immigration Judge: John P. Ellington

Argued on September 24, 2019

Before: MCKEE, AMBRO and ROTH, Circuit Judges

(Opinion filed: December 17, 2019)

Damon C. Andrews (ARGUED)

Kirkland & Ellis

1301 Pennsylvania Avenue, N.W.

Washington, DC 20004

Alexa M. Siegel

P.O. Box 65

Baldwin, MD 21013

Nathanael P. Kibler

Baker Donelson Bearman Caldwell & Berkowitz

265 Brookview Centre Way

Suite 600

Knoxville, TN 37828

Counsel for Petitioner

Rachel L. Browning

Virginia M. Lum, Esq. (ARGUED)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION

2

ROTH, Circuit Judge:

This is a petition for review of a final order of removal.

The Board of Immigration Appeals found that Nelson

Quinteros committed an aggravated felony and failed to show

entitlement to relief under the Convention Against Torture

(CAT). Quinteros argues that the Board committed two errors:

First, the Board erred in finding that his conviction for

conspiracy to commit assault with a dangerous weapon was an

aggravated felony under the Immigration and Nationality Act

(INA); second, the Board erred in applying our precedent on

the Convention Against Torture. For the reasons that follow,

we will vacate the Board’s decision and remand for further

proceedings consistent with this opinion.

I.

Nelson Quinteros and his mother came to the United

States from El Salvador in 2001, when he was eight-years-old.

They settled in New York. When he was thirteen, Quinteros

joined the gang MS-13. He has a New York Yankees tattoo

that he asserts symbolizes that his particular gang is based in

New York.

In 2011, Quinteros was indicted for conspiracy to

commit assault with a dangerous weapon under 18 U.S.C. §

1959(a)(6). Quinteros and other gang members discussed over

the phone that they would assault members of Surenos, a rival

gang. Quinteros drove other gang members to a Surenos

location, but the Surenos “backed down.” 1 No assault took

1

AR 1057–58.

3

place. Quinteros later pled guilty to conspiracy to commit

assault with a dangerous weapon. He was sentenced to thirty

months’ imprisonment.

In prison, Quinteros left MS-13 to follow Christianity.

When he told other MS-13 members in prison that he was no

longer in the gang, they would reply with statements like,

“Well, when you get deported and you go back to El Salvador,

things are going to change. There’s no getting out over there.” 2

When Quinteros’s sentence ended, the Department of

Homeland Security (DHS) initiated removal proceedings.

DHS placed Quinteros in expedited proceedings after it

determined that Quinteros had been convicted of an aggravated

felony under the Immigration and Nationality Act (INA). In

2014, Quinteros was issued a Form I-851 Notice of Intent to

Issue a Final Administrative Removal Order. The Form I-851

charged Quinteros as removable for having committed an

aggravated felony under 8 U.S.C. § 1101(a)(43)(F), (U), and

(J) and allowed Quinteros to contest his removability. He

checked the box to contest his deportability and indicated he

would attach documents supporting his request. He failed to

follow up with additional documentation.

Quinteros then sought withholding of removal. An

asylum officer determined that Quinteros demonstrated a

reasonable fear that he would be tortured in El Salvador. The

officer referred Quinteros to an Immigration Judge (IJ).

Before the IJ, Quinteros attempted to show that he

would be tortured in El Salvador. He also sought to show that

2

Id. at 560 l. 20–21.

4

the police would, at the very least, be unlikely to protect him

and, at worst, would directly perpetrate violence against him.

Quinteros testified on his own behalf and presented the

testimony of Dr. Thomas Boerman, a country conditions

expert. Quinteros also relied on several studies and reports.

Most relevant for this appeal, Quinteros submitted a study from

the Harvard Law School International Human Rights Clinic

(Harvard study) that discussed the perception and treatment of

individuals with tattoos in El Salvador.

A. Quinteros’s Testimony

Quinteros gave several reasons why he would be

recognizable as a gang member in El Salvador. He

“anticipate[d] that he would be readily identified as a deportee

because of his distinct accent and his ‘NY Yankees’ tattoo.” 3

He testified that he knows seventy other gang members, who

have been deported to El Salvador, and has cousins in MS-13.

Quinteros also offered anecdotal evidence that other

former gang members, deported to El Salvador, had been

harassed or killed. Quinteros did not believe that the police

would protect him. He testified that other MS-13 members in

New York had sent money to the police in El Salvador to

secure protection for the gang there. He thought that the police

would not get involved in gang-on-gang violence because the

police would have little to gain.

B. Dr. Boerman’s Testimony

Dr. Boerman testified as an expert on conditions in El

3

Id. at 461.

5

Salvador and corroborated much of Quinteros’s testimony. He

detailed several iterations of largely ineffectual Salvadoran

government policies to combat gang violence. First, he

described a set of 2003 laws that criminalized gang

membership, resulting in the arrest of 20,000 people.

Ultimately, however, few people were charged for gang

offenses. These laws remain on the books, but at the time of

Dr. Boerman’s testimony in 2015, he testified that most arrests

of suspected gang members resulted in a short period of

detention and no charges. When charges are filed, gang

members are usually acquitted “because of the effect of witness

intimidation, terrorization, and murder.” 4

Then came a gang truce from 2012 to 2014 that

appeared to have decreased homicides. But this truce was

discredited after authorities discovered a substantial “increase

in the use of clandestine cemeteries.” 5 Some researchers

believe that the supposed truce actually strengthened the gangs

and increased violence.

In 2014, a new president attempted to implement a new

anti-gang policy. That plan also stalled. Although the

government has labeled the gangs, including MS-13, “terrorist

groups,” 6 and has authorized the use of El Salvador’s anti-

terrorism laws to combat them, it is not clear whether the

government has implemented these laws.

Dr. Boerman also described a “‘disconnect’ between

4

Id. at 674.

5

Id. at 666.

6

Id. at 670.

6

official policy and actual practice.” 7 For example, although

trained on human rights, some “officers have sought

permission to form groups that carry out assassinations as an

official state function.” 8 According to Dr. Boerman, the

Salvadoran government no longer investigates police killings

of gang members.

Dr. Boerman detailed a special risk of harm for former

gang members. When the U.S. deports an individual, it

provides the country to which the deportee is returning with the

deportee’s gang affiliation and information about his tattoos.

Dr. Boerman provided anecdotal evidence that immigration

officers, police, and military in El Salvador have subjected

suspected gang members to physical violence during the

customs process. Gang members and police easily identify

newcomers to a community and take great pains to determine

their background, including stripping them down to check for

tattoos. Dr. Boerman also stated that a New York Yankees

tattoo is “commonly recognized as gang affiliated from the

United States, in the east coast.” 9 The police or a gang would

interpret that tattoo “as gang related.” 10 Efforts to remove the

tattoo would result in scarring that would likewise raise

suspicions of gang affiliation.

C. Agency Proceedings

After conducting hearings, the IJ denied Quinteros’s

7

Id. at 466.

8

Id.

9

Id. at 683.

10

Id. at 683–84.

7

request for relief under the Convention Against Torture (CAT).

The IJ found that Quinteros “ha[d] shown a clear likelihood

that he would be killed or tortured by members of MS-13 and

[rival] gangs” 11 but had not shown that the Salvadoran police

would be willfully blind to that torture. The IJ found that the

“escalating violence” in El Salvador, although “alarming,” was

“stemming from war-like conditions” and did “not necessarily

mean that the government is abdicating its responsibility to

protect the public.” 12

The IJ also determined that Quinteros’s crime was an

aggravated felony. The IJ applied the modified categorical

approach and found that Quinteros’s crime was a crime of

violence, as defined in 18 U.S.C. § 16(b), and that conspiracy

did not require an overt act. 13

Quinteros appealed the IJ’s CAT findings, making no

mention of the aggravated felony finding. The BIA affirmed.

Quinteros appealed. We granted the government’s request to

remand, in light of our decision in Myrie v. Attorney General, 14

in order to determine if the Salvadoran government, more

likely than not, would acquiesce in Quinteros’s torture by gang

members

On remand, both Quinteros and the government offered

11

Id. at 477.

12

Id. at 479.

13

A crime of violence is an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F), and a conspiracy to commit a crime of

violence is an aggravated felony under 8 U.S.C. §

1101(a)(43)(U).

14

855 F.3d 509 (3d Cir. 2017).

8

additional, updated evidence on conditions in El Salvador.

Because the effect of Quinteros’s evidence was essentially the

same, the second IJ adopted the first IJ’s finding that Quinteros

had shown a likelihood of being killed or tortured by gangs and

similarly found that the Salvadoran officials’ likely response

would not constitute acquiescence. The IJ noted that he had

reviewed Quinteros’s prior and current testimony, Dr.

Boerman’s prior testimony and written declaration, and all

other supporting materials in conjunction with United States

Department of State country condition reports. 15 The IJ rested

his findings on the new efforts El Salvador was taking to

combat gang violence and the lack of evidence that a Yankees

tattoo was a gang symbol.

Quinteros appealed to the Board. While his appeal was

pending, the Supreme Court in Sessions v. Dimaya 16

invalidated 18 U.S.C. § 16(b), as unconstitutionally vague.

Quinteros moved to remand based on Dimaya. The Board then

determined that, because Quinteros was in expedited removal

proceedings, he could not challenge his status as an aggravated

felon. 17 In a footnote, the Board noted that Quinteros was

subject to expedited removal proceedings because he

committed an aggravated felony under 8 U.S.C. §

1101(a)(43)(F), (U), and (J). 18 To accept such logic would

15

AR 130.

16

138 S.Ct. 1204 (2018).

17

AR 8.

18

Section 1101(a)(43)(J) classifies certain racketeering

offenses as aggravated felonies. Although the DHS Notice of

Intent listed subsections (F), (U), and (J) as the basis for its

aggravated felony finding, the first IJ found Quinteros

removable only under (F) and (U).

9

render it impossible for anyone in such a situation to challenge

their status before the BIA.

The Board affirmed the denial of Quinteros’s CAT

claim. In doing so, the Board reversed the IJ’s finding on the

likelihood of torture as clearly erroneous, questioning whether

Quinteros would even be recognized as a current or former

gang member. The Board also noted that Quinteros had not

shown that his tattoo was visible or that it would signify to

others that he was a current or former gang member. The

Board agreed with the IJ that Quinteros failed to show

acquiescence by state actors, noting the new “extraordinary

measures” El Salvador was taking “to combat gang

violence.” 19

Quinteros petitioned this Court for review of the finding

that his conviction is an aggravated felony and, in light of

Dimaya, of the Board’s denial of his motion to remand.

Quinteros also alleges that the Board committed legal error in

denying CAT relief.

II.

We have jurisdiction over final orders of removal under

8 U.S.C. § 1252(a)(1). The government argues that where, as

here, the agency has found that an alien committed an

aggravated felony, we have no jurisdiction under 8 U.S.C. §

1252(a)(2)(C) to review the removal order. Nevertheless, we

retain jurisdiction over “constitutional claims or questions of

19

AR 6.

10

law.” 20 If “the BIA issues a decision on the merits and not

simply a summary affirmance, we review the BIA’s, and not

the IJ’s, decision.” 21 We also review those portions of the IJ

decision that the Board adopts or defers to. 22

III.

A. This Court has jurisdiction to consider whether

Quinteros was convicted of an aggravated felony.

The first question we must answer is whether we have

jurisdiction to hear Quinteros’s challenge to the aggravated

felony finding. The government argues that Quinteros failed

to exhaust his administrative remedies because he did not

challenge the aggravated felony finding in response to the

initial notice of intent to issue a final administrative removal

order. Quinteros argues that he did all that was required: He

checked the box on the BIA form that indicated he disagreed

with the finding of removability. 23 Although generally an alien

20

8 U.S.C. § 1252(a)(2)(C), (D).

21

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).

22

Id. See also Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.

2005).

23

The parties’ arguments highlight a circuit split over what an

alien must do on appeal to have properly preserved a challenge

to DHS’s aggravated felony finding. The Eleventh Circuit held

that failure to contest one’s classification as an aggravated

felon in response to a final administrative removal order

deprives the reviewing court of jurisdiction because the alien

has not exhausted administrative remedies. Malu v. United

States Att’y Gen., 764 F.3d 1282, 1289 (11th Cir. 2014). The

11

is required to exhaust his administrative remedies—a

jurisdictional requirement 24—an agency revives an alien’s

unexhausted claim when it sua sponte considers an issue. 25

Here, the first IJ sua sponte determined that Quinteros’s

conviction was for an aggravated felony under §

1101(a)(43)(F) and (U).

Although Quinteros did not challenge on appeal the IJ’s

aggravated felony finding, he did file a motion to remand to the

IJ, challenging his removability as an aggravated felon. The

Board considered this motion to remand and concluded that

Quinteros could not challenge the aggravated felon

determination in expedited removal proceedings. Because the

Board had the opportunity to consider Quinteros’s challenge to

his removability as an aggravated felon and declined to do so

Fourth Circuit held that an alien in expedited removal

proceedings can raise only factual challenges in administrative

proceedings and so the reviewing court has jurisdiction over

legal challenges to removability “in the first instance on

appeal.” Etienne v. Lynch, 813 F.3d 135, 138 (4th Cir. 2015).

The Fifth and Seventh Circuits have held similarly. Valdiviez-

Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013);

Victoria-Faustino v. Sessions, 865 F.3d 869, 873 (7th Cir.

2017). We need not wade into this circuit split because here,

the agency took up Quinteros’s challenge sua sponte.

24

Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005). A

court cannot hear a claim unless “an alien has exhausted all

administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1).

25

Lin v. Att’y Gen. of United States, 543 F.3d 114, 123–25 (3d

Cir. 2008).

12

on the merits, the aggravated felony issue is exhausted for

purposes of appeal. 26

Moreover, we always retain jurisdiction to determine

our own jurisdiction. 27 As we have said before, this principle

extends to “jurisdiction to address [the] jurisdictional

prerequisite . . . of . . . ‘whether an alien was convicted of a

non-reviewable aggravated felony.’” 28 We will therefore first

determine whether Quinteros was convicted of an aggravated

felony. Our review of this issue is “de novo as it implicates a

purely legal question.” 29

B. Quinteros did not commit an aggravated felony.

DHS charged Quinteros as deportable for being

convicted of an aggravated felony under 2 U.S.C.

1101(a)(43)(F), (J), and (U). Subsection (F) applies to a crime

of violence using the definition in 18 U.S.C. § 16. 30 Subsection

26

We have previously found jurisdiction where a party

includes an issue in the Notice of Appeal to the BIA but fails

to include the issue in the brief to the BIA and the BIA does

not address the issue. See Hoxha v. Holder, 559 F.3d 157, 158,

161 (3d Cir. 2009).

27

Restrepo v. Att’y Gen. of United States, 617 F.3d 787, 790

(3d Cir. 2010) (quoting Stubbs v. Att’y Gen., 452 F.3d 251, 253

n.4 (3d Cir. 2006)).

28

Restrepo, 617 F.3d at 790.

29

Id.

30

Section 16 defines crime of violence as: “(a) on offense that

has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or (b)

13

(J) applies to several racketeering offenses. Subsection (U)

applies to an “attempt or conspiracy to commit” an aggravated

felony.

When determining whether a particular offense is an

aggravated felony, we apply the categorical approach. 31 Under

the strict categorical approach, we compare the state statute of

conviction with “the federal statute enumerating categories of

crimes” without regard to “the underlying facts.” 32 In applying

the categorical approach, we are to “presume that the

conviction ‘rested upon [nothing] more than the least of th[e]

acts’ criminalized, and then determine whether even those acts

are encompassed by the generic federal offense.” 33

Quinteros was convicted under 18 U.S.C. § 1959(a)(6).

That section states:

(a) Whoever, as consideration for the

receipt of, or as consideration for a

promise or agreement to pay,

any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the person

or property of another may be used in the course of committing

the offense.”

31

See Moncrieffe v. Holder, 569 U.S. 184, 188 (2013); United

States v. Dahl, 833 F.3d 345, 349 (3d Cir. 2016) (discussing

categorical approach as applying to both federal and state

convictions).

32

Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004).

33

Moncrieffe, 569 U.S. at 191 (2013) (quoting Johnson v.

United States, 559 U.S. 133, 137 (2010)) (alterations in

original).

14

anything of pecuniary value from

an enterprise engaged in

racketeering activity, or for the

purpose of gaining entrance to or

maintaining or increasing position

in an enterprise engaged in

racketeering activity, murders,

kidnaps, maims, assaults with a

dangerous weapon, commits

assault resulting in serious bodily

injury upon, or threatens to

commit a crime of violence against

any individual in violation of the

laws of any State or the United

States, or attempts or conspires so

to do, shall be punished—

...

(6) for attempting or conspiring to

commit a crime involving

maiming, assault with a dangerous

weapon, or assault resulting in

serious bodily injury . . . .” 34

Because Quinteros’s statute of conviction is “an

alternatively phrased statute,” we must first “determine

whether its listed items are elements or means.” 35 If the

alternatives are elements, some of which would qualify as an

aggravated felony and some of which would not, then the

modified categorical approach applies, and we can look to

34

18 U.S.C. § 1959(a)(6).

35

Mathis v. United States, 136 S.Ct. 2243, 2256 (2016).

15

documents, related to the crime as committed, to determine

“which of the enumerated alternatives played a part in the

[petitioner’s] prior conviction, and then compare that element

(along with all others) to those of the generic crime.” 36

1. Quinteros’s conviction was not a crime of violence

under § 1101(a)(43)(F).

Section 1101(a)(43)(F) employs the crime of violence

definition from 18 U.S.C. § 16. The first IJ found that §

1959(a)(6) constituted a crime of violence as defined in

§ 16(b). Because the Supreme Court found that § 16(b) was

unconstitutionally vague, the IJ’s aggravated felony finding

based on § 16(b) cannot stand. 37

Neither could Quinteros’s conviction be a crime of

violence under § 16(a), a ground the first IJ did not consider.

Section 16(a) defines a crime of violence as “an offense that

has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” 38

Looking at the least culpable conduct, an individual could be

convicted of conspiracy under 18 U.S.C. § 1959(a)(6) without

the use, attempted use, or threatened use of physical force.

36

Id.

37

Because we hold that the IJ’s aggravated felony finding

under § 16(b) was in error after Sessions v. Dimaya, 138 S.Ct.

1204, we need not address whether the Board’s denial of

Quinteros’s motion to remand was error.

38

18 U.S.C. § 16(a).

16

2. Quinteros’s conviction was not a conspiracy or

attempt to commit a crime of violence under §

1101(a)(43)(U).

Next, we determine if Quinteros was convicted of an

aggravated felony under § 1101(a)(43)(U) for “an attempt

or conspiracy to commit” a crime of violence. 39 Using the

categorical approach, we compare the statute of conviction,

§ 1959(a)(6), with generic conspiracy as used in the INA, §

1101(a)(43)(U). A conviction under § 1959(a)(6) does not

require an overt act in furtherance of the conspiracy. 40 We

must determine whether the INA’s generic definition of

conspiracy requires an overt act. We hold that it does.

39

8 U.S.C. § 1101(a)(43)(U).

40

Generally, where the statutory text “does not expressly make

the commission of an overt act an element of the conspiracy

offense, the government need not prove an overt act to obtain

a conviction.” Whitfield v. United States, 543 U.S. 209, 214

(2005). See also United States v. Salahuddin, 765 F.3d 329,

339 (3d Cir. 2014) (declining to find an overt act requirement

for Hobbs Act conspiracy where the statute “makes no mention

of a required act”). Other Circuits examining § 1959(a)(6), or

similar subsections, have generally not required an overt act.

See, e.g., United States v. McCollum, 885 F.3d 300, 309 (4th

Cir. 2018) (finding that 18 U.S.C. § 1959(a)(5) does not require

an overt act); United States v. Diaz, 176 F.3d 52 (2d Cir. 1999)

(finding no overt act required for § 1959(a)(6)). Only in an

unpublished Ninth Circuit opinion did a panel note that the jury

had to be unanimous on an overt act for a conviction under §

1959(a)(6). See United States v. Franco, 745 F. App’x 285,

287 (9th Cir. 2018).

17

The government argues that the BIA’s interpretation of

§ 1101(a)(43)(U) is entitled to deference. 41 Generally,

Chevron principles apply “to an agency’s consistent

interpretation of the statute it administers,” 42 including the

INA. 43 “[T]he issue of Chevron deference to the BIA’s

evaluation of criminal statutes in light of the INA has generated

some controversy and confusion.” 44 We defer to the agency’s

reasonable interpretation of a statute only if the text of the

statute is “unclear” and we cannot “discern congressional

intent by utilizing various tools of statutory construction.”45

We find no reason to defer to the BIA here because the

meaning of “conspiracy” in § 1101(a)(43)(U) of the INA is

unambiguous when employing the ordinary tools of statutory

construction.

41

The government relies primarily on Matter of Richardson,

25 I&N Dec. 226 (BIA 2010).

42

Matter of Seidman, 37 F.3d 911, 924 (3d Cir. 1994).

43

See Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir. 2001).

“[U]npublished, single-member BIA decisions are not entitled

to Chevron deference.” Mahn v. Att’y Gen. of United States,

767 F.3d 170, 173 (3d Cir. 2014). But, here, the IJ relied on

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010), a

published decision of a panel of the Board that held that

conspiracy under § 1101(a)(43)(U) does not require an overt

act.

44

Lewin v. Att’y Gen. of United States, 885 F.3d 165, 169 (3d

Cir. 2018). At least once, we unhesitatingly applied Chevron

and deferred to the BIA’s reasonable interpretation of the INA.

Restrepo, 617 F.3d at 796.

45

Restrepo, 617 F.3d at 792.

18

Where Congress has not specifically defined a word in

a statute, we presume the common law definition applies. 46

But the presumption that a term be given its common-law

meaning does not apply when the common law “meaning is

obsolete or inconsistent with the statute’s purpose.” 47 In those

instances, the approach taken “in the criminal codes of most

states” replaces the common law definition. 48 We have stated

before that, when determining the elements of the generic

crime, we look to “the Model Penal Code (MPC), state laws,

and learned treatises.” 49 But “the most important factor in

defining the generic version of an offense is the approach of

the majority of state statutes defining the crime.” 50 We

therefore contrast the common law definition of conspiracy

with the majority of states’ definition of conspiracy and hold

that conspiracy in § 1101(a)(43)(U) requires an overt act.

At common law, the crime of conspiracy was complete

46

See Taylor v. United States, 495 U.S. 575, 592 (1990) (citing

Morissette v. United States, 342 U.S. 246, 263 (1952)).

47

Taylor, 495 U.S. at 594.

48

Id. at 598. The Supreme Court in Taylor applied this

approach to interpreting 18 U.S.C. § 924(e) for purposes of

sentencing enhancement. Later, the Supreme Court applied

this same principle to interpreting “theft offense” under the

INA. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190

(2007).

49

United States v. Graves, 877 F.3d 494, 502 (3d Cir. 2017)

(interpreting the career offender provisions of the Sentencing

Guidelines).

50

Id. at 504.

19

upon the making of an agreement. 51 But now, the large

majority of states also require an overt act. 52 So does the

MPC. 53 Although some courts have continued to apply the

common law definition, 54 the meaning of conspiracy has

changed. The overt act requirement was an attempt to rein in

expansive conspiracy liability, 55 “guarding against the

punishment of evil intent alone, and . . . assur[ing] that a

criminal agreement actually existed.” 56 We think this change

significant and apply the modern overt act requirement

reflected in the statutes of a majority of states and the MPC.

Because Quinteros’s conviction under 18 U.S.C. § 1959(a)(6)

does not require an overt act, his conviction is not a categorical

match for conspiracy under the INA. Thus he is not an

aggravated felon under Subsection U.

3. Quinteros’s conviction was not a racketeering offense

under § 1101(a)(43)(J).

The government has argued that we need not reach the

51

United States v. Shabani, 513 U.S. 10, 13–14 (1994)

(quoting Nash v. United States, 229 U.S. 373, 378 (1913)).

52

United States v. Garcia-Santana, 774 F.3d 528, 534–35 (9th

Cir. 2014) (“A survey of state conspiracy statutes reveals that

the vast majority demand an overt act to sustain conviction.”).

53

See Model Penal Code § 5.03(5) (Am. Law Inst. 1985)

(requiring overt acts for all crimes “other than a felony of the

first or second degree”).

54

Etienne, 813 F.3d at 145.

55

Garcia-Santana, 774 F.3d at 536–37.

56

Id. at 537.

20

question of whether Quinteros was convicted of an aggravated

felony for purposes of § 1101(a)(43)(J). The Board noted in a

footnote, without explaining its reasoning, that Quinteros’s

conviction was an aggravated felony under § 1101(a)(43)(J).

Although DHS had included this charge in the Form I-851, this

was not a ground that either the IJ or the BIA had previously

addressed in the proceedings. Generally, “[w]hen deficiencies

in the BIA’s decision make it impossible for us to meaningfully

review its decision, we must vacate that decision and remand

so that the BIA can further explain its reasoning.” 57 But where,

as here, the BIA has failed to conduct the categorical approach

and the BIA’s application of the categorical approach would

not be accorded deference, we have considered the question de

novo. 58 So too here.

Quinteros’s conviction for conspiracy to commit assault

with a dangerous weapon is not an aggravated felony as

defined in § 1101(a)(43)(J). Subsection J makes an aggravated

felony any offense described in 18 U.S.C. §§ 1084, 1955, or

1962. Sections 1084 and 1955 deal only with gambling-related

offenses—for which Quinteros’s conviction cannot be a

categorical match. This leaves offenses described in 18 U.S.C.

§ 1962, which fall under the general category of racketeering

offenses. Although Quinteros’s statute of conviction for

conspiracy to commit assault with a dangerous weapon bears

the title of “violent crimes in aid of racketeering activity,” §

57

Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). See

also Cruz v. Att’y Gen. of United States, 452 F.3d 240, 249 (3d

Cir. 2006) (“Where a BIA opinion leaves the scope of our

jurisdiction in question, we will remand the case to the BIA for

further consideration.”).

58

See Singh v. Ashcroft, 383 F.3d 144 at 152.

21

1959(a)(6) has little in common with the offenses in § 1962.

Section 1962 has four subsections. Subsection (a)

relates to receiving and investing money from a racketeering

enterprise. Quinteros’s conviction does not have as an element

the investing of money. Subsections (b) and (c) require “a

pattern of racketeering activity or collection of unlawful

debt.” 59 Racketeering activity is defined as “any act or threat

involving murder, kidnapping, gambling, arson, robbery,

bribery, extortion, dealing in obscene matter, or dealing in a

controlled substance or listed chemical” 60 or any of a number

of offenses defined in other statutes—of which § 1959 is not

one. Nor does Quinteros’s conviction under § 1959(a)(6) have

as an element conduct that would meet the more general

descriptions of racketeering activity. Lastly, subsection (d)

criminalizes a conspiracy to violate the foregoing provisions of

§ 1962, but because Quinteros’s conviction does not meet the

requirements of subsections (a) through (c), he likewise could

not have been convicted under § 1962(d). Thus, Quinteros’s

conviction is not a categorical match for any of the statutory

offenses listed in § 1101(a)(43)(J) and is not an aggravated

felony.

C. The BIA erred in its CAT finding.

Having determined that Quinteros did not commit an

aggravated felony, we will remand this case to the Board.

However, before remanding, we need to discuss the standard

to be applied by the Board in determining state acquiescence.

59

18 U.S.C. § 1962(b), (c).

60

18 U.S.C. § 1961(1).

22

Quinteros argues that the Board erred in applying the standard

we enunciated in Myrie 61 because the Board failed to make the

required findings and applied the wrong legal standard for state

acquiescence. Quinteros’s argument that the Board applied the

wrong legal standard for acquiescence is a legal challenge that

we review de novo, 62 as is our review of the sufficiency of the

Board’s findings under the standard we enunciated in Myrie. 63

Quinteros also argues that the Board erred by ignoring

evidence relevant to the Myrie analysis. Generally, an agency

is required to consider “all evidence relevant to the possibility

of future torture,” 64 but “the IJ and BIA need not ‘discuss every

piece of evidence mentioned by an asylum applicant.’” 65

Although it is usually sufficient to say, as the IJ did here, that

“[a]ll evidence and testimony has been considered, even if not

specifically addressed in the decision below,” 66 the agency

“may not ignore evidence favorable to the alien.” 67 And “[i]f

[evidence] is to be disregarded, we need to know why.” 68 We

will examine whether the IJ ignored evidence under each prong

61

855 F.3d 509.

62

Pieschacon-Villegas v. Att’y Gen. of United States, 671 F.3d

303 (3d Cir. 2011).

63

See Green v. Att’y Gen. of United States, 694 F.3d 503 (3d

Cir. 2012).

64

Green, 694 F.3d at 508 (quoting 8 C.F.R. § 1208.16(c)(3)).

65

Green, 694 F.3d at 509 (quoting Huang v. Att’y Gen. of the

United States, 620 F.3d 372, 388 (3d Cir. 2010)).

66

AR 127. See Green, 694 F.3d at 509.

67

Huang, 620 F.3d at 388 (citing Espinosa-Cortez v. Att’y

Gen., 607 F.3d 101, 107 (3d Cir. 2010)).

68

Myrie, 855 F.3d at 518.

23

of Myrie.

Myrie set forth two prongs that the Board must answer

when evaluating a CAT claim. First, the agency must

determine “whether an applicant has met the burden of

establishing that it is more likely than not [the alien] would be

tortured if removed.” 69 Second, the agency asks whether

public officials will acquiesce in the likely treatment. 70 We

will examine the errors under each prong of Myrie in turn.

1. Errors under Myrie Prong 1

Quinteros argues that the Board failed to determine

what would likely happen to him upon his return to El Salvador

and whether what would likely happen would constitute

torture. Under prong one, the agency determines whether an

alien would likely be “tortured if removed.” 71 Answering that

question requires two steps: (1) the agency must examine

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

the agency must decide whether “what is likely to happen

amount[s] to the legal definition of torture.” 72

69

Myrie, 855 F.3d at 516.

70

Id.

71

Myrie, 855 F.3d at 516.

72

Id. “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

24

Quinteros argues that the Board erred in ignoring

numerous pieces of evidence in evaluating his CAT claim. In

reversing the IJ’s finding that Quinteros would likely be

tortured or killed in El Salvador, the Board made three

findings. First, the Board concluded that Quinteros had not

shown that he was likely to “be identified either as a current or

former gang member.” 73 Second, the Board found that his

tattoo was not likely to be discovered because it can be covered

while in public. And third, the Board concluded that there was

insufficient evidence that a New York Yankees tattoo was a

recognized gang symbol.

The Board erred in ignoring evidence about Quinteros’s

tattoo. The Board concluded that gang members would not be

able to identify Quinteros based on his tattoo because his tattoo

could be covered by clothing. But the Board made no mention

of the practice that Quinteros, Dr. Boerman, and the Harvard

study discussed: Police and gangs force suspected gang

members to strip down so they can search them for tattoos. The

Board also erred in ignoring evidence about the significance of

Quinteros’s tattoo. The Board stated that Quinteros had not

introduced evidence “[a]part from his own testimony and the

testimony of his expert witness” regarding the significance of

his New York Yankees tattoo. 74 Yet the Harvard study spoke

at length about the significance of tattoos. 75 That is grounds

F.3d 123, 151 (3d Cir. 2005) (citing Matter of J–E–, 23 I. & N.

Dec. 291, 297 (BIA 2002)).

73

AR 5.

74

AR 6.

75

Although the Harvard study did not address the significance

of a New York Yankees tattoo specifically, it discussed the

25

for a remand. 76

Quinteros’s argument that the Board failed to determine

what would likely happen to him upon return to El Salvador

and whether that would constitute torture is not quite as clear-

cut. Quinteros’s theory of why he would be harmed upon

returning to El Salvador was premised on state and nonstate

actors recognizing his gang affiliation and acting, or failing to

act, based on it. But even though the Board found that others

were not likely to recognize Quinteros as a gang member, the

Board was required to determine whether what was “likely to

happen” would constitute torture. 77 Because, however, the

Board failed to consider evidence that would have undermined

its conclusion that Quinteros was unlikely to be recognized as

a gang member, the Board must conduct its Myrie analysis

anew.

2. Errors under Myrie Prong 2

Quinteros also argues that neither the Board nor the IJ

made any factual findings as to how public officials would

significance of tattoos generally, including that “individuals

with tattoos, gang-related or not, often fear being targeted for

arbitrary arrests and detentions in El Salvador.” AR 1265.

76

See Green, 694 F.3d at 508–09.

77

See Myrie, 855 F.3d at 516 (quoting Kaplun v. Att’y Gen.,

602 F.3d at 271) (noting that when the IJ makes a

determination under the first prong of Myrie, “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 torture?”).

26

likely respond and that the Board and IJ applied the wrong

legal standard for acquiescence. In determining whether public

officials will acquiesce to torture, Myrie requires an analysis of

“how public officials will likely act in response to the harm the

petitioner fears” and “whether the likely response from public

officials qualifies as acquiescence.” 78

The Board primarily adopted the IJ’s reasoning as to

how public officials would likely respond. The IJ discussed

Quinteros’s testimony that the police are corrupt and infiltrated

by gangs and that Quinteros believed that his tattoo would be

taken as a gang signal. The Board and IJ discussed some

positive steps the Salvadoran government was taking to

combat gang violence. But neither the IJ nor the Board came

to a decision about how public officials would likely respond

to the treatment that Quinteros feared. That requires a remand.

Quinteros also claims that the Board and IJ applied the

wrong legal standard for acquiescence because they focused on

the government’s efforts rather than the results of those efforts.

The IJ determined that the Salvadoran government would not

acquiesce in Quinteros’s torture because of the government

had increased its efforts to address gang violence and reduce

corruption in the police force. Although the IJ noted the

uncertainty as to the success of these efforts, the IJ nevertheless

found that these increased efforts showed that the government

would not acquiesce in Quinteros’s torture. The Board adopted

this reasoning and again emphasized the Salvadoran

government’s positive efforts. We have previously made clear

to the BIA that a government can acquiesce in torture despite

78

Myrie, 855 F.3d at 516.

27

opposing the group inflicting the harm. 79 Indeed, although

“not dispositive of” whether a government acquiesced in

torture through willful blindness, “an applicant may be able to

establish governmental acquiescence in some circumstances,

even where the government is unable to protect its citizens

from persecution.” 80 The Board was required to consider

whether the government of El Salvador is capable of

preventing the harm Quinteros would likely face.

IV.

Having concluded that Quinteros’s conviction under 18

U.S.C. § 1959(a)(6) is not an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(F), (U), or (J), Quinteros is not removable as

charged. We therefore grant Quinteros’s petition for review

and vacate the Board’s final removal order, 81 and remand this

case to the Board for further proceedings consistent with this

opinion.

79

See, e.g., Pieschacon-Villegas, 671 F.3d at 312 (“[A]n

applicant can establish governmental acquiescence even if the

government opposes the paramilitary organization that is

engaged in torturous acts.”); Gomez-Zuluaga v. Att’y Gen. of

United States, 527 F.3d 330, 351 (3d Cir. 2008) (“The mere

fact that the Colombian government is engaged in a protracted

civil war with the FARC does not necessarily mean that it

cannot remain willfully blind to the torturous acts of the

FARC.”).

80

Pieschacon-Villegas, 671 F.3d at 311.

81

See, e.g., Borrome v. Att’y Gen., 687 F.3d 150, 163 (3d Cir.

2012) (holding that the petitioner was not convicted of an

aggravated felony and vacating the removal order).

28

McKEE, Circuit Judge, with whom Judges Ambro and Roth

join, concurring.

I join my colleagues’ thoughtful opinion in its entirety.

I write separately because I think it is as necessary as it is

important to emphasize the manner in which the BIA dismissed

Quinteros’ claim that he would be tortured (and perhaps killed)

if sent back to El Salvador. For reasons I will explain below,

it is difficult for me to read this record and conclude that the

Board was acting as anything other than an agency focused on

ensuring Quinteros’ removal rather than as the neutral and fair

tribunal it is expected to be. That criticism is harsh and I do

not make it lightly.

The BIA’s puzzling conclusions concerning Quinteros’

New York Yankees tattoo, although not the sole cause of my

concern, illustrate the reasons I feel compelled to write

separately. I will therefore begin by discussing the BIA’s

decision-making process concerning this tattoo.

I.

As Judge Roth notes, Quinteros testified that his New

York Yankees tattoo would identify him as a former gang

member. 1 He also produced corroborating testimony to that

effect from an expert witness and a study from the Harvard

Law School International Rights Clinic. The first Immigration

Judge to consider this evidence—which was apparently

undisputed by the government—did so carefully and ultimately

concluded that Quinteros “[h]as shown a clear likelihood that

he would be killed or tortured by members of MS-13 and 18th

Street gangs.” 2 This finding was affirmed by the BIA upon its

first review of Quinteros’ case, 3 and affirmed again by the

second IJ after we remanded for consideration in light of

1

Maj. Op. at 4-5.

2

JA125. The IJ also found the expert testimony convincing:

“Dr. Boerman’s testimony persuasively illustrates how the

Respondent could be mistaken for a gang member, since most

gang members have tattoos, and there is a large number of

MS-13 members in El Salvador . . .” Id.

3

JA130 (“We adopt and affirm the Immigration Judge’s

decision.”).

1

Myrie. 4 Thus, two IJs and a Board member had previously

examined and accepted this finding. Yet, for reasons that are

not at all apparent, the BIA suddenly reversed that conclusion

upon this fourth review.

In an explanation that is both baffling and dismaying,

the BIA now claims: “Apart from his own testimony and the

testimony of his expert witness, the record is devoid of any

objective evidence establishing that a person with a New York

Yankees tattoo without any other gang identifying marks will

be identified as a . . . gang member and subjected to torture.” 5

I am at a loss to understand what the BIA is referring to by

requiring “objective” evidence. The IJ whose order was being

reviewed had held that Quinteros was credible, stating: “Based

on a review of the totality of evidence, the Court finds that

Respondent’s testimony was consistent with the record and he

was forthright with the Court regarding his past membership in

MS-13 gang. Thus, the Court finds Respondent credible.” 6

Moreover, there was nothing to suggest that Quinteros’

testimony lacked credibility regarding any aspect of his fear of

MS-13 or how gang members would interpret his tattoo, and

neither IJ suggested anything to the contrary. 7

The BIA properly states the applicable standard of

review of an IJ’s credibility finding is “clear error,” 8 but

nowhere does it suggest any basis for finding such error in

either IJs’ determination. I am therefore unable to ascertain

any justification for the BIA’s sudden reversal after the three

previous cycles of review all arrived at the opposite

conclusion. I also remain baffled by the BIA’s usage of

“objective evidence.” The firsthand testimony of the victim of

any crime is probative evidence if it is credible 9—the issue is

4

JA14.

5

JA5 (emphasis added).

6

JA12.

7

See JA 14 (second IJ’s conclusion that Quinteros was

credible); JA118 (first IJ’s conclusion that Quinteros was

credible); see also Pet. Br. 41-42.

8

See BIA Opinion at JA2 (citing C.F.R. § 1003.1(d)(3)(i)).

9

For example, in statutory rape cases, fully half of the states

(including Pennsylvania, where Quinteros is being held) have

abolished their rules requiring corroboration. The victim’s

2

the credibility of the witness. Once a witness’s testimony is

found to be credible, it cannot arbitrarily be rejected merely to

achieve a particular result. Even more salient, the BIA’s

rejection of Quinteros’ credible testimony is inconsistent with

controlling precedent and the regulations governing CAT

relief. 10 Those regulations state: “[t]he testimony of the

applicant, if credible, may be sufficient to sustain the burden

of proof without corroboration.” 11 Thus, it is clear that

corroborative evidence may not be necessary. In this case,

where the testimony of the applicant is credible and is not

questioned in any way, there is no reason to need

corroboration.

Accordingly, Quinteros’ testimony should have been

sufficient proof of any dispute about his tattoo even if he could

be described as lacking objectivity. Moreover, there was

nothing offered to suggest that the expert witness or the report

of the Harvard Clinic was anything less than objective. It is

impossible to discern from the record why the BIA refused to

accept that external evidence. Moreover, given its apparent

disregard for these three distinct, previously accepted pieces of

evidence, I seriously doubt whether any evidence would have

been capable of changing the agency’s analysis. Thus, it is the

BIA’s own objectivity that concerns me here.

The agency’s discussion of the location of Quinteros’

tattoo heightens these concerns. First, the BIA expressed

account, if credible, is sufficient. See 18 PA. CONS. STAT. §

3106 (2018) (“The testimony of a complainant need not be

corroborated in prosecutions under [Pennsylvania criminal

law]. No instructions shall be given cautioning the jury to

view the complainant's testimony in any other way than that

in which all complainants' testimony is viewed.”); Vitauts M.

Gulbis, Annotation, Modern Status of Rule Regarding

Necessity for Corroboration of Victim's Testimony in

Prosecution for Sexual Offense, 31 A.L.R. 4th 120 § 4[a]

(1984).

10

See, e.g., Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d

582, 591 (3d Cir. 2011) (accepting as objective evidence the

testimony of the petitioner alone); Auguste v. Ridge, 395 F.3d

123, 134 (3d Cir. 2005) (accepting as “objective” the

“[e]vidence of past torture inflicted upon the applicant . . .”).

11

8 C.F.R. § 208.16.

3

skepticism because the record does not contain a photograph

of the tattoo, “or a description of its size and design.” 12 It

faulted Quinteros for not establishing that the tattoo is

“publicly visible,” and stated, “[t]he record simply indicates

that he has a tattoo on his right arm.” 13 Yet, the Government

never contested the existence of the tattoo and, as I have

explained, Quinteros’ testimony about it was accepted as

credible by the IJ.

Then the BIA objected that Quinteros never “clearly

specified the location of his New York Yankees tattoo and his

expert witness did not know its location.” 14 However, two

sentences later, the BIA states that “[t]he Record . . . simply

indicates that he [Quinteros] has a tattoo on his right arm.” 15

Therefore, not only was there never a dispute about the

existence of the tattoo, there was also no dispute as to its

location, and the BIA’s abortive suggestions to the contrary are

simply inconsistent with a fair and neutral analysis of

Quinteros’ claim. Finally, even if one sets that all aside, I can

find no reasonable basis for the BIA to suppose that the specific

design of the tattoo or testimony about its size was even

necessary. Whatever its exact appearance, it was uncontested

that it was a New York Yankees tattoo. And as noted by Judge

Roth, the record had established that awareness of gang use of

tattoos is so prevalent in El Salvador that individuals are

routinely forced by police and rival gangs to remove their

clothing for inspection of any tattoos that may be present. 16 It

therefore pains me to conclude that the BIA simply ignored

evidence in an effort to find that Quinteros’ tattoo would not

place him in peril as it was underneath his clothing. 17

II.

12

JA5.

13

JA5.

14

Id.

15

Id.

16

Maj. Op. at 22; see also JA61, 90-91, 162. Overlooking so

obvious an inference of danger—arising from the undisputed

existence of Quinteros’ tattoo—contradicts our directive that

“the BIA must provide an indication that it considered such

evidence, and if the evidence is rejected, an explanation as to

why . . .” Zhu v. Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014).

17

JA5.

4

As troubling as the mishandling of Quinteros’ evidence

might be standing alone, the BIA’s errors here are not an

isolated occurrence. There are numerous examples of its

failure to apply the binding precedent of this Circuit

delineating the proper procedure for evaluating CAT appeals. 18

Indeed, that framework has been mishandled, or simply absent,

from several BIA opinions in the two years since we explicitly

emphasized its importance in Myrie. 19

As Judge Roth explains, Myrie instituted a two-part

inquiry for evaluating whether a claim qualifies for relief under

CAT. She describes the steps required and the points which

must be addressed; 20 we normally accept the BIA’s well-

reasoned conclusions on each of these points, however,

“[t]he BIA must substantiate its decisions. We

will not accord the BIA deference where its

findings and conclusions are based on inferences

18

For our particular decisions on this topic, see Myrie v. Att’y

Gen., 855 F.3d 509 (3d Cir. 2017); Pieschacon-Villegas v.

Att’y Gen., 671 F.3d 303 (3d Cir. 2011).

19

Myrie, 855 F.3d at 516 (requiring the BIA to follow the

process we have delineated, as, “[i]n order for us to be able to

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

some insight into its reasoning.”) (quoting Awolesi v.

Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003)). Among the

examples of BIA error, see Serrano Vargas v. Att’y Gen., No.

17-2424, 2019 WL 5691807, at *2 (3d Cir. Nov. 4, 2019)

(finding it “unclear” whether the BIA followed our

precedent); Guzman v. Att’y Gen., 765 F. App’x. 721 (3d Cir.

2019) (finding ultimately non-determinative an incorrect

application of the Myrie and Pieschacon-Villegas standards

which had been summarily affirmed by the BIA); Zheng v.

Att’y Gen., 759 F. App’x. 127, 130 (3d Cir. 2019) (requiring

the appeals court to read between the lines of the BIA opinion

to understand whether the conclusion satisfied the Myrie test);

Antunez v. Att’y Gen., 729 F. App’x. 216, 223 (3d Cir. 2018)

(concluding the BIA applied the wrong standard of review

under Myrie).

20

Maj. Op, at 21.

5

or presumptions that are not reasonably

grounded in the record.” 21

In other words, the BIA cannot act arbitrarily. We

expect that it will “examine the relevant data and articulate a

satisfactory explanation for its actions, including a ‘rational

connection between the facts found and the choice made.’” 22

Here, as already seen, the BIA’s conclusions fell far short of

that low bar. According deference would therefore be to

compound a mistaken application of law.

The BIA’s misapplication of Myrie here is consistent

with other examples. Beginning with the first prong of Myrie’s

first question (what will happen if a petitioner is removed to

his or her country of origin), the BIA ignored evidence in the

record. I have already discussed much of its tattoo analysis. 23

Similarly, the BIA simplistically concluded that because

Quinteros left El Salvador when he was a boy, he would not be

recognized by El Salvadorian gangs upon his return. 24 That

conclusion was clearly contradicted in the record by credible

and undisputed evidence that Quinteros knows “at least 70”

current or former gang members in the United States who were

deported to El Salvador and would recognize him there. 25 The

BIA was required to at least review the evidence Quinteros

offered and provide a non-arbitrary reason for rejecting it. 26

21

Kang v. Att’y Gen., 611 F.3d 157, 167 (3d Cir. 2010)

(quoting Sheriff v. Att'y Gen., 587 F.3d 584, 589 (3d Cir.

2009)).

22

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington

Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

23

JA5.

24

JA4. The BIA strangely maintains in the face of the

evidence presented that “[Quinteros] has not clearly

articulated exactly how anyone in El Salvador will remember

or recognize him . . .” id.

25

JA63-64.

26

Huang, 620 F.3d at 388 (“The BIA simply failed to address

any evidence that, if credited, would lend support to

[Petitioner’s case], and thus the decision does not reflect a

consideration of the record as a whole.”).

6

And the errors do not stop there. Because it had not

substantively addressed the testimony offered above, the BIA

was left without substantive findings on which to determine

Question II of the Myrie framework: does what will likely

happen to a petitioner amount to torture? As Judge Roth makes

clear, the BIA is required to conduct both steps of the Myrie

analysis. 27 By declining to reach clear findings of what would

happen upon removal, the BIA prevented itself from then being

able to determine whether those results met the legal standard

for torture. The Myrie framework cannot be so easily evaded.

Lastly, to briefly reiterate Judge Roth’s important

observations regarding Myrie’s second prong, 28 a proper

inquiry must “take[] into account our precedent that an

applicant can establish governmental acquiescence even if the

government opposes the [group] engaged in torturous acts.” 29

This is only logical, as few countries admit to torturing and

killing their citizens, even when privately condoning such

conduct. Thus, if we simply took countries at their word, there

would barely be anywhere on the globe where CAT could

apply. We have previously made clear that this is the proper

inquiry to determine acquiescence and have remanded based

on the BIA’s failure to look past the stated policies of a given

government. 30 Other Circuit Courts of Appeals have done the

same. 31 The BIA is thus on notice that results, not press

27

Maj. Op, at 23 (citing Myrie, 855 F.3d at 516).

28

Maj. Op, at 24-25.

29

Pieschacon-Villegas v. Att’y Gen., 671 F.3d 303, 312

(2011).

30

See, e.g., Guerrero v. Att’y Gen., 672 F. App’x 188, 191

(3d Cir. 2016) (per curiam); Torres-Escalantes v. Att’y Gen.,

632 F. App’x 66, 69 (3d Cir. 2015) (per curiam).

31

Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir.

2017); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1140

(7th Cir. 2015) (“[I]t is success rather than effort that bears on

the likelihood of the petitioner’s being killed or tortured if

removed”); Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir.

2013) (“If public officials at the state and local level in

Mexico would acquiesce in any torture [petitioner] is likely to

suffer, this satisfies CAT’s requirement that a public official

acquiesce in the torture, even if the federal government . . .

would not similarly acquiescence.”); De La Rosa v. Holder,

7

releases or public statements, are what drive the test for

acquiescence under Myrie.

III.

In Quinteros’ case, as has happened before, “[t]he

BIA’s opinion frustrates our ability to reach any conclusion . .

.” 32 In Cruz, we stated that “the BIA’s cursory analysis ignored

the central argument in [Petitioner’s] motion to reopen that he

was no longer removable for committing a crime of moral

turpitude.” 33 In Kang, we disapproved when “[t]he BIA

ignored overwhelming probative evidence . . . its findings were

not reasonably grounded in the record and thus . . . . [t]he BIA's

determination was not based on substantial evidence.” 34 In

Huang, we complained when “[t]he BIA’s analysis [did] little

more than cherry-pick a few pieces of evidence, state why that

evidence does not support a well-founded fear of persecution

and conclude that [petitioner’s] asylum petition therefore lacks

merit. That is selective rather than plenary review.” 35 There

are simply too many additional examples of such errors to feel

confident in an administrative system established for the fair

and just resolution of immigration disputes. 36 Most disturbing,

598 F.3d 103, 110 (2d Cir. 2010) (“[I]t is not clear . . . why

the preventative efforts of some government actors should

foreclose the possibility of government acquiescence, as a

matter of law, under the CAT.”).

32

Cruz v. Att’y Gen., 452 F.3d 240, 248 (3d Cir. 2006).

33

Id.

34

Kang, 611 F.3d at 167.

35

Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010).

36

See, e.g., Huang Bastardo-Vale v. Att’y Gen., 934 F.3d 255,

259 n.1 (3d Cir. 2019) (en banc) (castigating the BIA for its

“blatant disregard of the binding regional precedent . . .”);

Mayorga v. Att’y Gen., 757 F.3d 126, 134-35 (3d Cir. 2014)

(reversing a BIA decision without remand and observing that

“[i]deally the BIA would have provided more analysis,

explaining why it accepted the IJ’s (erroneous) reasoning . .

.”) (alteration in original); Quao Lin Dong v. Att’y Gen., 638

F.3d 223, 229 (3d Cir. 2011) (finding the BIA “erred by

misapplying the law regarding when corroboration is

necessary . . .”); Gallimore v. Att’y Gen., 619 F.3d 216, 221

(3d Cir. 2010) (holding that “[t]he BIA's analysis in all

likelihood rests on an historically inaccurate premise . . . . the

8

these failures gravely affect the rights of petitioners, such as

Quinteros, who allege that they will face torture or death if

removed to their country of origin.

IV.

Although the BIA is “[n]ot a statutory body . . .” 37 it has

been described as “[t]he single most important decision-maker

in the immigration system.” 38 I doubt that any court or any

other administrative tribunal so regularly addresses claims of

life-changing significance, often involving consequences of

life and death. It is therefore particularly important that the

opinions of the BIA fairly and adequately resolve the legal

arguments raised by the parties and render decisions based only

upon the record and the law.

I understand and appreciate that the BIA’s task is made

more difficult by the incredible caseload foisted upon it, and

the fact that BIA members (and IJs for that matter) are

horrendously overworked. 39 But administrative shortcomings

BIA's opinion fails adequately to explain its reasoning and, in

any event, appears incorrect as a matter of law.”). Nor is this

a concern of recent vintage, the BIA has been on notice for

well over a decade. See, e.g., Kayembe v. Ashcroft, 334 F.3d

231, 238 (3d Cir. 2003) (“[T]he BIA in this case has failed

even to provide us with clues that would indicate why or how

[petitioner] failed to meet his burden of proof. As a result,

‘the BIA’s decision provides us with no way to conduct our . .

. review.’”) (quoting Abdulai v. Ashcroft, 239 F.3d 542, 555

(3d Cir. 2001)); Abdulai, 239 F.3d at 555 (“[T]he availability

of judicial review (which is specifically provided in the INA)

necessarily contemplates something for us to review . . . . the

BIA's failure of explanation makes [this] impossible . . .”)

(emphasis in original).

37

Anna O. Law, THE IMMIGRATION BATTLE IN AMERICAN

COURTS 23 (2010) (citing unpublished internal history of the

BIA).

38

Andrew I. Schoenholtz, Refugee Protection in the United

States Post September 11, 36 COLUM. HUM. RTS. L. REV.

323, 353 (2005).

39

See Am. Bar Ass'n, Comm'n on Immigration, 2019 Update

Report: Reforming the Immigration System: Proposals to

Promote Independence, Fairness, Efficiency, and

9

can never justify denying the parties a fair and impartial

hearing, or excuse allowing adjudications to devolve into a

mere formality before removal.

I would like to be able to feel comfortable that the

lopsided outcomes in immigration proceedings 40 reflect the

merits of the claims for relief raised there rather than the

proverbial “rush to judgment.” Thus, on remand, I can only

hope that Quinteros’ claims are heard by more careful and

judicious ears than he was afforded in this appearance.

Professionalism in the Adjudication of Removal Cases, Vol.

1, 20-21 (2019), available at https://www.naij-

usa.org/images/uploads/newsroom/ABA_2019_reforming_th

e_immigration_system_volume_1.pdf (noting the continued

heavy caseload of the BIA, with an increasing number of

appeals likely in the near future, and a resulting tendency to

dispose of cases with single-member opinions that address

only a single issue in the case).

40

Jaya Ramji-Nogales, et al., Refugee Roulette: Disparities in

Asylum Adjudication, 60 STAN. L. REV. 295, 359-61 (2007)

(reporting that between 2001 and 2005, the BIA’s rate of

granting asylum fell by up to 84%, with some categories of

applicants receiving asylum only 5% of the time).

10