Immigration Law Associates, PC

Third Circuit Vacates BIA Order for Removal on Basis that Torture Rule was Read ‘Too Narrowly’

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Guerrero v. AG United States, 2016 U.S. App. LEXIS 18766

Last week, the Third Circuit found that the Board of Immigration Appeals (BIA) interpreted the “acquiescence” standard under the Convention Against Torture (CAT) too narrowly.

Under CAT, the applicant bears the burden of establishing, under objective evidence, that “it is more likely than not” that he will be tortured if removed. 8 C.F.R. SS1208.16(c)(2) Torture must be “inflicted by or at the instigation of or with the consent or acquiescence of” an official person. 8 C.F.R.§ 1208.18(a)(1) The “acquiescence” requirement is met when “the public official, prior to the activity constituting torture, has awareness of such activity and [does not] intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7)

Both the Immigration Judge (IJ) and BIA agreed that even if Guerrero was able to establish that he would likely be tortured by the cartel upon his return to Mexico, he could not establish that Mexican officials would acquiesce in such torture because the government is making efforts to combat drug cartels and root out corruption.

However, the Third Circuit concluded that the argument lacked merit and stated that the “awareness” prong of acquiescence can be met by a showing that some elements of the government are in a collusive relationship with the torturers even if the government generally opposes the groups. Even if the Mexican government is working to combat drug cartels and root out corruption, it can still be powerless in containing the violence of the Sinaloa drug cartel and the corruption of the law enforcement officials, rendering it possible that Mexican officials “acquiesce” in the torture of Rafael Guerrero.

The entire opinion of the Third Circuit can be viewed here .


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