To establish entitlement to relief under the CAT, a petitioner bears the burden of proving that it is more likely than not that removal will cause him to be subject to torture. Torture is defined as the infliction of severe pain or suffering by, at the instigation of, or with the consent or acquiescence of a public official.
The REAL ID Act of 2005 limits this court’s jurisdiction to review final orders of removal against individuals removable for having committed crimes involving a controlled substance to constitutional claims or questions of law. This court has found 8 U.S.C. §§ 1252(a)(2)(C),
(D), to so limit our jurisdiction in withholding of removal cases. This court also previously assumed, without discussion, that 8 U.S.C. § 1252(a)(2)(C) is applicable to deferral of removal claims under the CAT. This court has not, however, expressly held that the section is applicable to deferral claims. It should be noted that the Ninth Circuit draws a distinction between withholding and deferral claims, treating the jurisdictional limits imposed by section 1252(a)(2)(C) as inapplicable if the conviction does not provide the basis of the IJ’s decision on relief under the CAT.
Since September 25, 2002, the BIA has been bound to review the factual findings of IJs only for clear error. The BIA will not engage in de novo review of findings of fact determined by an IJ. Facts determined by an IJ, including findings as to the credibility of testimony, shall be reviewed by the BIA only to determine whether the findings of the IJ are clearly erroneous. Therefore, when the BIA did not comply with this regulatory command in reviewing the IJ’s factual findings, but rather applied a standard that substantially deviated from clear error and may have been de novo, whatever the precise level of review undertaken by the BIA with respect to the IJ’s factual findings in the petitioner’s case constitutes an error.
Where the BIA appears to have made its own factual findings based on “all evidence,” and where the BIA concluded that the IJ erroneously granted the petitioner’s application for deferral without indicating or explaining how the IJ may have committed clear error, this “weight of the evidence” standard of review conducted by the BIA cannot be squared with review for clear error of this circuit. Indeed, “weight of the evidence” is often equated across circuits with a de novo inquiry into the preponderance of the evidence. While this court does not review the factual findings of the IJ and the BIA, it is apparent that, as a matter of law, the BIA’s “weight of the evidence” review of the IJ’s findings does not conform to the dictates of 8 C.F.R. § 1003.1(d)(3)(i).
The improper standard of review used by the BIA is the type of error that requires remand. This court has said that it is precisely because factfinding in both the asylum and withholding contexts is expressly committed to the discretion of the EOIR that, when those findings rely upon legal errors, the appropriate remedy is generally to vacate those finding and remand to the BIA for reconsideration of an applicant’s claim.
Minor errors, however, do not require remand. Remand is unnecessary if it would be pointless or futile, such as where there is an alternative and sufficient basis for the result, the error is tangential to non-erroneous reasoning, or the overwhelming evidence makes the same decision inevitable. The general rule is that the Court must be confident that the agency would reach the same result upon a reconsideration cleansed of errors.
Absent an alternative and sufficient ground for the BIA’s decision, the error in the standard of review requires remand. In view of the IJ’s factual findings which may support a decision in the petitioner’s favor, as well as the new evidence submitted by him to the BIA on appeal, this court finds that the BIA, applying the proper standard of review for clear error, could conclude that it is more likely than not that the petitioner would be tortured upon removal to the Dominican Republic within the meaning of the CAT.
However, where this court’s review of the BIA decisions reveals that the BIA may have an alternative basis for its reversal of the IJ decision and dismissal of the petitioner’s appeal, this court must, accordingly, proceed to review this possible alternative ground, which if sufficient to support the BIA’s decision, would insulate the BIA’s error.
Where the BIA’s opinion implies that the existence of some government actors attempting to prevent torture is sufficient to negate the fact that other government actors would be complicit in that torture, even when evidence strongly indicates that the government as a whole would be unable to prevent the torture from occurring, but where it is not clear to what extent the BIA’s order fully adopts this view or rests its outcome upon it, it is appropriate to remand the case for additional analysis and discussion on this issue.
Article 3 of the CAT prohibits the deportation of any person to a country where it is more likely than not that the individual would be in danger of being subjected to torture. For pain and suffering to be cognizable as torture under the CAT, as set forth in Article 1 of the Convention, it must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The CAT’s implementing regulations clarify, and the Senate voted for ratification with the understanding that, acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity. Thus, this court has held that torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it. Given this background, this court is concerned with the BIA’s legal conclusion that the evidence submitted by the petitioner showing some police investigations and arrests relating to his complaint precludes the possibility of government acquiescence to his torture.
Where the IJ made a series of factual findings bearing on the actual involvement of Dominican government actors in the possible killing of the petitioner including findings that (1) a Dominican national named “Brito” has contacts in the Dominican government, (2) Brito’s brother is an official in that government, and (3) this brother had met the petitioner and is able to recognize him, (4) that Brito told a co-defendant of the petitioner that he has brothers in the Dominican army, and where the IJ received the most recent United States State Department Report on the Dominican Republic documenting widespread corruption within the government and police force, including infiltration by criminals and involvement in drug trafficking, this court has significant doubts of the BIA’s conclusion that the evidence fails to show that the Dominican government would acquiesce in the torture of the petitioner on the basis that the petitioner introduced evidence that some persons within the government had taken steps to prevent his torture. This is particularly when the petitioner also submitted evidence to the BIA indicating that Brito is present in the Dominican Republic with the intent to kill him and that the Dominican government lacks the resources to prevent his murder upon his removal to the country.
In short, it is not clear to this court why the preventative efforts of some government actors should foreclose the possibility of government acquiescence, as a matter of law, under the
CAT. Where a government contains officials that would be complicit in torture, and that government, on the whole, is admittedly incapable of actually preventing that torture, the fact that some officials take action to prevent the torture would seem neither inconsistent with a finding of government acquiescence nor necessarily responsive to the question of whether torture would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In light of this court’s concern with the BIA’s application of the “government acquiescence” legal standard, it is appropriate to remand the instant case for additional analysis and discussion of that question. The Supreme Court has stated that generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.
At this juncture, the proper course is for the BIA to make a considered judgment on the application of the government acquiescence standard in the category of circumstances at issue. The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides. Accordingly, this court asks that the BIA issue a precedential opinion on whether, as a matter of law, a government may acquiesce to a person’s torture where (1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3) the government is admittedly unable to actually prevent the torture from taking place.
The law is not clear as to whether the BIA’s implication or assumption that the petitioner’s evidence precludes a finding of government acquiescence would provide an alternative and sufficient basis on which to uphold the BIA’s orders. Therefore, the BIA’s misapplication of the standard of review with respect to the IJ’s factual findings requires that this court vacates the BIA’s orders denying the petitioner’s deferral of removal and dismissing his appeal, and that this court remands the petitioner’s record back to the BIA. This panel retains jurisdiction over any post-remand appeal that the parties may make.
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