James Turkson v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES AMOAH TURKSON, 

Petitioner,

v.

 No. 10-1984

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an

Order of the Board of Immigration Appeals.

Argued: September 20, 2011

Decided: January 26, 2012

Before AGEE and DIAZ, Circuit Judges, and

John A. GIBNEY, Jr., United States District Judge for the

Eastern District of Virginia, sitting by designation.

Petition for review granted; vacated and remanded by pub-

lished opinion. Judge Gibney wrote the opinion, in which

Judge Agee and Judge Diaz joined.

COUNSEL

ARGUED: Timothy William Loose, GIBSON, DUNN &

CRUTCHER, LLP, Los Angeles, California, for Petitioner.

Charles S. Greene, III, UNITED STATES DEPARTMENT

2 TURKSON v. HOLDER

OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Marshall R. King, GIBSON, DUNN & CRUT-

CHER, LLP, New York, New York, for Petitioner. Tony

West, Assistant Attorney General, Civil Division, Ethan B.

Kanter, Senior Litigation Counsel, Office of Immigration Liti-

gation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

GIBNEY, District Judge:

This immigration case presents an issue regarding the stan-

dard of review to be applied by an administrative appellate

panel. Facing deportation, petitioner James Amoah Turkson

("Turkson") asked an immigration judge ("IJ") to defer his

removal because Turkson believed he would be tortured if

returned to his native Ghana. The IJ ruled that Turkson would

likely face torture in Ghana, and therefore deferred Turkson’s

removal. The Department of Homeland Security ("DHS")

appealed the IJ’s ruling to the Board of Immigration Appeals

("BIA").

On appeal, the BIA reviewed all aspects of the IJ’s decision

de novo and reversed the IJ’s decision. The BIA erred in

reviewing the IJ’s factual findings under the de novo standard

of review instead of under the clearly erroneous standard pre-

scribed by its governing regulations. We therefore grant Turk-

son’s petition for review, vacate the BIA’s decision, and

remand for further proceedings consistent with this opinion.

I. Material Facts and Procedural History

Turkson was born in Ghana. He was subjected to violence

in his native country while distributing pamphlets for the

political party of which his father was a leader. To escape the

TURKSON v. HOLDER 3

violence, he came to the United States on a false passport in

1995. He later married a United States citizen, and became a

permanent legal resident.

Turkson committed a number of crimes in the United

States. Most recently, Turkson was convicted of possession of

marijuana with intent to distribute. Because of that conviction,

DHS initiated proceedings to remove him from the United

States. DHS can remove aliens who become aggravated fel-

ons under 8 U.S.C. § 1227(a)(2)(A)(iii), or who have

a controlled substance conviction under 8 U.S.C.

§ 1227(a)(2)(B)(i). The parties agree that these provisions jus-

tify Turkson’s removal.

An alien subject to removal, however, can contest his

removal if he can show that he will likely face torture in his

native country. Turkson applied for asylum, withholding of

removal, and deferral of removal1 under the United Nations

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment ("CAT"). The IJ found

him ineligible for asylum and withholding of removal based

on his criminal record,2 but granted deferral of removal under

the CAT.

The IJ made detailed factual findings. He found the testi-

mony of Turkson and his brother, regarding brutality in

Ghana, to be credible. Specifically, the IJ accepted Turkson’s

1

An important difference between withholding of removal and deferral

of removal is the ease in which the deferral may be terminated. To termi-

nate withholding of removal, the government must move to reopen the

case, meet the standards for reopening, and establish by a preponderance

of the evidence that the alien is no longer eligible for withholding. In con-

trast, the regulations provide a streamlined termination process for deferral

of removal. See 64 Fed. Reg. 8478-01; see also 8 C.F.R.

§ 1208.17(d),(e),(f).

2

See 8 U.S.C. § 1158(b)(2)(ii) (asylum); 8 C.F.R. § 1208.16(d)(2) (with-

holding of removal under CAT). Turkson does not challenge the IJ’s find-

ing of ineligibility.

4 TURKSON v. HOLDER

evidence that, in 1995, government officials had brutally

questioned Turkson about his "political activities." As part of

their interrogation, they forced him to walk on his knees and

punched him until he lost consciousness. Turkson suffered a

broken wrist, lacerations requiring stitches, a six inch scar on

his back, and a knife wound.

The IJ also found that political violence continues to this

day in Ghana. The political landscape, he determined, is char-

acterized by "vigilante" violence. Prison conditions are harsh.

Rural areas remain "violent" and "brutal." While cities are

less violent, the IJ found that this fact would not make it any

less likely that Turkson would be tortured. Throughout

Ghana, police remain involved in political activity, and con-

tinue to use excessive force, characterized by the IJ as "police

brutality."

Based on these determinations, the IJ found that Turkson

had been the victim of torture before he left Ghana in 1995.

The IJ also found that "it is more likely than not that he would

be detained by the police if returned to Ghana." Further, the

IJ also decided that it is more likely than not that Turkson

would be tortured "because of the excessive use of force by

police officers in Ghana." Based on these findings, the IJ

ordered the deferral of Turkson’s removal.

DHS appealed to the BIA, which considered de novo

whether it was more likely than not that Turkson would be

tortured upon return to Ghana. The BIA panel largely disre-

garded the testimony of Turkson and his brother and con-

cluded that Turkson would not likely be tortured if returned.

The BIA therefore vacated the IJ’s ruling, and on October 25,

2010, Turkson was removed to Ghana. Turkson now petitions

this Court for review of the BIA’s rulings.

II. The Convention Against Torture and Its

Implementation

The United States is a party to the CAT. Under Article 3

of the Convention, parties agree not to deport "a person to

TURKSON v. HOLDER 5

another State where there are substantial grounds for believ-

ing that he would be in danger of being subjected to torture."

United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, adopted

Dec. 10, 1984, art. 3, 23 I.L.M. 1027, 1028.

"Torture" is a term of art under the CAT, with a specific

legal definition. The CAT defines torture as:

any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a per-

son for such purposes as obtaining from him or a

third person information or a confession[,] punishing

him for an act he or a third person has committed or

is suspected of having committed, or intimidating or

coercing him or a third person, or for any reason

based on discrimination of any kind, when such pain

or suffering 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. It does

not include pain or suffering arising only from,

inherent in or incidental to lawful sanctions.

Id. at 1027.3

Before removal, aliens are entitled to a hearing before an

IJ. See generally 8 C.F.R. §§ 1208.16-1208.18. In that

removal proceeding, the alien may apply for relief under the

CAT. 8 U.S.C. § 1229a. To warrant CAT protection, an alien

3

The CAT is not self-executing. See Mironescu v. Costner, 480 F.3d

664, 666 (4th Cir. 2007). Congress therefore enacted the Foreign Affairs

and Restructuring Act ("FARR"), Pub. L. No. 105-277, Div. G, 112 Stat.

2681-82 (Oct. 21, 1998), to implement it. See id. at 666-67; see also

Pierre v. Attorney General, 528 F.3d 180, 185-86 (3d Cir. 2008) (en

banc). Thus, Turkson’s claim is technically a claim under FARR, but for

purposes of this opinion, we shall refer to it as a CAT claim. This practice

is in accordance with other circuits. See, e.g., Pierre, 528 F.3d at 186 n.5

(citation omitted).

6 TURKSON v. HOLDER

must prove, first, that it is more likely than not that he will be

tortured if removed to the proposed country of removal and,

second, that this torture will occur at the hands of government

or with the consent or acquiescence of government. 8 C.F.R.

§ 1208.16(c)(2).

While the burden of proof lies with the alien to establish his

right to relief under the CAT, "[t]he testimony of the appli-

cant, if credible, may be sufficient to sustain the burden of

proof without corroboration." 8 C.F.R. § 1208.16(c)(2). The

regulations direct the trier of fact to consider "all evidence rel-

evant to the possibility of future torture." Id. § 1208.16(c)(3).

If the IJ determines that the petitioner is more likely than not

to be tortured upon removal, the petitioner is entitled to pro-

tection under the CAT, either in the form of withholding of

removal or deferral of removal. Id. § 1208.16(c)(4). The peti-

tioner will be granted withholding of removal, unless one of

the exceptions requiring a mandatory denial of withholding of

removal is triggered.4 Id. In that event, the petitioner’s

removal shall be deferred, rather than withheld. Id.

DHS or the alien may appeal the IJ’s determination to the

BIA. Either party may appeal a final determination of the BIA

to a federal court of appeals. 8 U.S.C. § 1252(a)(4); see also

8 C.F.R. § 1208.18(d) (stating that judicial review of claims

for protection from removal under the CAT shall only be

made "as part of the review of a final order of removal pursu-

ant to section 242 of the [FARR] Act").

III. Discussion

The BIA applied the wrong standard of review to the IJ’s

factual findings. In doing so, the BIA failed to follow its own

regulations as well as the case law interpreting those regula-

tions.

4

As discussed supra note 2, Turkson is ineligible for withholding of

removal as a consequence of his marijuana conviction.

TURKSON v. HOLDER 7

Because Turkson was subject to a removal order by reason

of having committed an aggravated felony, our jurisdiction to

review the BIA’s order is limited. See 8 U.S.C.

§§ 1251(a)(2)(C), 1227(a)(2)(A)(iii). We review the petition

only to the extent that it raises questions of law or constitu-

tional claims. See 8 U.S.C. § 1252(a)(2)(C)-(D).

We review the BIA’s legal determinations de novo. Hui

Zheng v. Holder, 562 F.3d 647, 651 (4th Cir. 2009). That

review, however, is subject to agency deference pursuant to

Chevron v. Natural Resources Defense Council, Inc., 467

U.S. 837, 844 (1984). The BIA’s interpretation of its own

governing regulations is "controlling unless plainly erroneous

or inconsistent with the regulation." Auer v. Robbins, 519

U.S. 452, 461 (1997) (citations omitted).

The BIA is the highest administrative tribunal on immigra-

tion and nationality matters. Before 2002, the BIA reviewed

all aspects of an IJ’s decision de novo. In 2002, however, the

applicable regulations were amended, which changed the

scope of review as to the factual findings of an IJ. 8 C.F.R.

§§ 1003.1(d)(i)-(ii), 1003.3(f).

8 C.F.R. § 1003.1(d)(i) now states: "The Board will not

engage in de novo review of findings of fact determined by

an immigration judge. Facts determined by the immigration

judge, including findings as to credibility of testimony, shall

be reviewed only to determine whether the findings of the

immigration judge are clearly erroneous." As to other matters,

8 C.F.R. § 1003.1(d)(ii) provides: "The Board may review

questions of law, discretion, and judgment and all other issues

in appeals from decisions of immigration judges de novo."

Thus, the regulations establish two different levels of

review. To reverse an IJ’s factual finding, the BIA must deter-

mine that such a finding is clearly erroneous. In contrast,

however, the BIA may substitute its opinion for that of the IJ

on issues of "law, discretion, and judgment." This rule stems

8 TURKSON v. HOLDER

from a sensible understanding of the roles and abilities of the

two bodies. IJs hear witnesses and determine the credibility of

evidence. The BIA reviews a paper record, devoid of the

nuances of weighing evidence first hand. The IJ is thus in a

better position to make factual determinations than the BIA

acting in an appellate capacity. While largely deferring to

those factual determinations, however, the BIA can exercise

its independent judgment to evaluate not only the legal signif-

icance of the facts but also the ultimate conclusions to which

those facts lead.

The explanatory comments accompanying the 2002 regula-

tion amendments underscore this interpretation of the scope of

review. "The clearly erroneous standard reflects the major

role of immigration judges under the Act and implementing

regulations as determiners of fact." 67 Fed. Reg. 54878,

54889. The explanatory comments further note that the

"clearly erroneous" standard is not unique to reviewing deci-

sions of immigration judges, but rather, constitutes the scope

of review generally applicable to "factfinding by trial courts."

Id.

The explanatory comments also provide some guidance as

to whether the likelihood of a future occurrence constitutes a

factual or a legal determination. In the analogous setting of

cancellation of removal,5 the comments support the view that

findings as to the likelihood of a future occurrence constitute

factual findings: "[T]hose facts that a respondent claims make

up ‘exceptional and extremely unusual hardship’ . . . will be

reviewed by the Board only to determine if the immigration

judge’s determination was clearly erroneous." Id. 54890. The

"exceptional and extremely unusual hardship" inquiry neces-

sarily turns on predicted outcomes and hardships.

5

Cancellation of removal is an immigration remedy under which an

alien can apply for permanent residence in the United States under certain

circumstances. See 8 U.S.C. § 1229B.

TURKSON v. HOLDER 9

In Turkson’s case, the IJ made both factual determinations

and legal judgments. Factually, he found that Turkson had

previously suffered brutal violence in Ghana on account of his

political beliefs; that political violence still occurs with gov-

ernment sanction; that Ghana’s police use excessive, and

sometimes fatal, force; and that if Turkson returned to Ghana,

he would likely be subject to violence, detention by the

police, and police brutality. As to a legal judgment, the IJ

applied the CAT’s definition of torture to the facts, and found

and concluded that Turkson’s prior experiences and antici-

pated treatment met the CAT definition of torture.

Upon review, the BIA failed to follow the scope of review

as established by 8 C.F.R. § 1003.1(d)(1) and subjected the

IJ’s entire decision to de novo review. The BIA redetermined

the facts found by the IJ by applying its own de novo analysis

of the facts in the record and according no deference to the

IJ’s findings. The BIA did so by rejecting the testimony of

Turkson and his witness, finding certain written evidence

more credible, and rejecting the IJ’s conclusions that political

violence and police brutality existed in Ghana and that Turk-

son would likely face such brutality if returned to Ghana. In

doing so, the BIA committed error as a matter of law because

it failed to apply the appropriate standard of review.

The Third Circuit addressed precisely this issue in Kaplun

v. Attorney General, 602 F. 3d 260 (3d Cir. 2010). Like this

case, Kaplun involved a determination whether an alien

would face torture upon return to his native country. The IJ

had determined that the alien would be tortured, but the BIA

overturned the IJ’s decision, applying de novo review to that

finding. The Third Circuit parsed the question of the likeli-

hood of future torture into two distinct determinations: what

would likely happen if the alien was removed, and whether

the likely occurrence would amount to "torture" as defined in

the CAT. The court held that the former determination is fac-

tual and BIA review of that determination is subject to the

clearly erroneous standard set forth in 8 C.F.R.

10 TURKSON v. HOLDER

§ 1003.1(d)(ii). The latter determination is a legal judgment,

applying the law to decided facts, to which the BIA applies

a de novo standard of review.

Although we have not addressed the precise issue presented

here and in Kaplun, we have applied Kaplun in a slightly dif-

ferent immigration context. In Crespin-Valladares v. Holder,

632 F.3d 117 (4th Cir. 2011), this Court remanded the case to

the BIA because the BIA applied the wrong standard of

review to the IJ’s factual findings. In Crespin-Valladares, the

petitioner applied for asylum, fearing persecution because of

his familial relationships if he were removed to El Salvador.

The IJ found, among other things, that the government in El

Salvador had failed to control gang violence and that a main

reason the petitioner was targeted for persecution by gang

members was because of his uncle’s cooperation with the

government. Id. at 121. The BIA reversed the decision. In

doing so, the BIA gave no deference to the IJ’s finding that

gang members targeted the petitioner because of his affiliation

with his uncle, finding instead that the petitioner himself was

targeted to intimidate him from testifying against gang mem-

bers. Id. at 127.

This Court found the BIA’s review of the IJ’s decision

improper: "The BIA disagreed with the IJ not because it

rejected the IJ’s legal interpretation of undisputed facts;

rather, the BIA took the contrary view of the gang members’

motivations—a classic factual question." Id. (emphasis

added). We held that the BIA could not simply substitute its

own factual findings for those of the IJ.

In Crespin-Valladares, as in this case, the BIA granted dis-

positive weight to a State Department report—in that case,

saying that the government in El Salvador had focused on

suppressing gang violence—and failed to examine other evi-

dence to determine whether the IJ’s finding was clearly erro-

neous. Relying on Kaplun, we rejected the BIA’s approach.

"Whether a government is unable or unwilling to control pri-

TURKSON v. HOLDER 11

vate actors . . . is a factual question that must be resolved

based on the record in each case." Id. at 128 (citation and

internal quotation marks omitted; emphasis added). Parenthet-

ically, the Court noted: "[A] finding of fact by an IJ includes

expressions of likelihood based on testimony . . . and/ or doc-

umentary evidence." Id. at 129 (quoting Kaplun, 602 F.3d at

260).

As in Crespin-Valladares, the BIA should have applied the

clearly erroneous standard to the factual determinations of the

IJ in this case: what happened to Turkson before he emigrated

from Ghana, what the current political climate and practices

are in Ghana, and what will likely happen to Turkson if he

returns to Ghana. In contrast, whether Turkson’s likely future

mistreatment amounts to "torture" under CAT is a legal ques-

tion which the BIA is properly entitled to review de novo.

To justify the BIA’S de novo review of the IJ’s entire deci-

sion, the government tries to recast a finding of likely future

mistreatment as something other than a factual finding. The

government argues that, because the predicted events obvi-

ously have not occurred, a conclusion about them is not a fac-

tual finding. This simplistic view of what constitutes a "fact"

ignores not only the applicable regulations but also this

Court’s jurisprudence.

In two immigration cases, we have held that an IJ’s predic-

tions of future conditions are factual findings entitled to defer-

ence under the clearly erroneous standard. See Saintha v.

Mukasey, 516 F.3d 243 (4th Cir. 2008); Haoua v. Gonzales,

472 F.3d 227 (4th Cir. 2007). Those cases specifically

addressed the likelihood of future events occurring (respec-

tively, whether the Haitian government would acquiesce in

torture and the percentage chance of suffering female genital

mutilation upon removal). We held that those determinations

were factual findings. As we have noted, even Black’s Law

Dictionary recognizes that while facts include historical facts,

they are not limited to them. See Crespin-Valladares, 632

12 TURKSON v. HOLDER

F.3d at 128 ("‘[Facts] include not just tangible things, actual

occurrences, and relationships, but also states of mind such as

intentions and opinion.’" (quoting Black’s Law Dictionary

669 (9th ed. 2009)). In short, we have held that the likelihood

of future mistreatment is a factual determination. Under the

amended regulations and our case law, such factual determi-

nations are only reviewable by the BIA under the clearly erro-

neous standard.6

Here, the IJ determined the present factual likelihood of a

future event occurring. As the Kaplun court held, that the

future event might not occur does not make the prediction any

less a factual finding. Kaplun, 602 F.3d at 269. The govern-

ment’s reliance on this Court’s decisions in Massis v.

Mukasey, 549 F.3d 631 (4th Cir. 2008), and Lin v. Mukasey,

517 F.3d 685 (4th Cir. 2008), to support its argument that the

BIA was correct in applying the de novo standard is unavail-

ing. Massis simply acknowledges that the BIA may review de

novo the IJ’s "application of the law to th[e] facts." 548 F.3d

at 635 n.6. Here, however, the parties do not dispute that once

the BIA accepts all of the IJ’s non-clearly erroneous factual

findings regarding the treatment that Turkson is likely to

receive if removed to Ghana, the BIA is free to review de

novo whether that treatment meets the legal definition of tor-

ture. Massis, therefore, does not further the government’s

cause in any meaningful way.

6

Our jurisprudence routinely treats future predictions as factual findings

even outside of the immigration context. For instance, as noted in Kaplun,

expert witnesses in medical malpractice cases frequently testify about

future disability and pain and suffering. "When the jury chooses to believe

the expert’s predictions, it makes a factual finding that the plaintiff will

be unable to perform certain tasks in the future and will experience some

degree of pain and suffering." Kaplun, 602 F.3d at 270 (emphasis added).

The Kaplun court termed such findings "inferential facts," because they

are based on prior experience. The Kaplun court’s view as to likely future

mistreatment is entirely consistent with the explanatory comments—facts

regarding undue hardship in the context of removal are necessarily "infer-

ential facts" as they involve predictions of the future consequences stem-

ming from the removal.

TURKSON v. HOLDER 13

The government cites Lin for the proposition that the regu-

lations do not prohibit the BIA from making factual determi-

nations from an existing record during de novo review. See

Lin, 517 F.3d at 693. This Court’s holding in Lin, however,

dealt with the BIA’s alleged "impermissible fact-finding in

violation of 8 C.F.R. § 1003.1(d)(3)" rather than the standard

of review the BIA should apply pursuant to

§§ 1003.1(d)(3)(i), (ii). At issue here is not whether the BIA

may find additional facts, but rather whether the BIA may

summarily reject the IJ’s factual findings without first deter-

mining that the IJ clearly erred.

Neither Massis nor Lin governs this case. More impor-

tantly, the BIA’s regulations and the explanatory notes

accompanying them clearly delineate the bifurcated standard

of review that applies to this case, and support our conclusion

that predictions regarding a petitioner’s likely future mistreat-

ment are factual in nature.

We hold that a decision regarding a petitioner’s likely

future mistreatment is a factual determination, subject to BIA

review under the clearly erroneous standard. The BIA’s deci-

sion to subject the IJ’s factual findings to de novo review is

contrary to the plain language of the governing regulation and

is therefore not controlling. See Auer, 519 U.S. at 461.

IV. Conclusion

Applying Kaplun and the applicable regulations here, the

BIA should have addressed two sets of questions with differ-

ent standards. First, the BIA should have examined the record

to determine if the IJ’s factual findings were clearly errone-

ous. The factual findings subject to this deferential level of

review include the IJ’s pronouncements about what happened

to Turkson in Ghana in 1995, what conditions currently exist

in the country, and how Turkson will likely be treated upon

his return. Second, under a de novo standard of review, the

BIA should have applied the CAT definition to the IJ’s factual

14 TURKSON v. HOLDER

findings to determine whether the predicted conduct amounts

to "torture."7

For the reasons stated above, the Court grants the petition

for review, vacates the decision of the BIA and remands the

matter to the BIA for further consideration in accordance with

this opinion.

PETITION FOR REVIEW GRANTED;

VACATED AND REMANDED

7

To be clear, we do not mean to dictate any particular outcome on

remand. Rather, we simply instruct the BIA to review the IJ’s order under

the proper standard as articulated in this opinion.