Pieschacon-Villegas v. Attorney Gen. of the United States

Decision Date05 December 2011
Docket NumberNo. 09–4719.,09–4719.
Citation671 F.3d 303
CourtU.S. Court of Appeals — Third Circuit
PartiesRicardo PIESCHACON–VILLEGAS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

OPINION TEXT STARTS HERE

Albania C. Almanzar (argued), Bronx, NY, for Petitioner.

David V. Bernal, Jesse M. Bless (argued), Aaron R. Petty, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Ricardo Pieschacon–Villegas (Pieschacon–Villegas) petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) dismissing his appeal of the Immigration Judge's (“IJ”) denial of his request for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). Pieschacon–Villegas seeks this Court's review because he asserts that: (1) the BIA used an incorrect legal standard for determining whether torture would be inflicted with the acquiescence of the Colombian government and (2) the BIA failed to take into account evidence in the record demonstrating that, if Pieschacon–Villegas is removed to Colombia, he will more likely than not be tortured with the acquiescence of a public official. We will grant the petition and remand to the BIA.

I. BACKGROUND

Pieschacon–Villegas was born in 1969 and is a Colombian native and citizen. He has entered and left the United States on a number of occasions. Pieschacon–Villegas last entered the United States as a special parolee in December 2007. One of Pieschacon–Villegas's siblings lives in the United States and his other siblings and his parents live in Colombia.

From 1996 until 2003, Pieschacon–Villegas received fees for laundering Colombian drug traffickers' money. In 1999, Federal Bureau of Investigation (“FBI”) agents in New Jersey learned about Pieschacon–Villegas's involvement in money laundering during an undercover investigation. The FBI was aware that Pieschacon–Villegas was involved in a transaction with a major drug operation in 1999, in which he made wire transfers totaling $218,467. He was subsequently arrested and indicted for his involvement in that money laundering scheme.

On August 21, 2003, Pieschacon–Villegas pled guilty to conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), for those 1999 transfers. He agreed to cooperate with the FBI and he was released on an unsecured bond. His conviction and sentencing were deferred.

Pieschacon–Villegas cooperated with the FBI from 2003 to 2007. During this time period, the FBI paid him $4,000 per month for the expenses he incurred during his cooperation. (App. at 461.) As a cooperator, Pieschacon–Villegas bought drugs and delivered money to help the FBI build cases against drug traffickers. The targeted drug traffickers worked for, or were associated with, the Autodefensas Unidas de Colombia (“AUC”), a paramilitary group. Pieschacon–Villegas worked from Colombia and would come to the United States to carry out transactions. The Colombian Department of Administration Security (“DAS”) was aware that Pieschacon–Villegas was collaborating with the FBI.

In 2007, Pieschacon–Villegas was arrested upon returning to Colombia from the United States for failure to pay a fine a number of years earlier. Pieschacon–Villegas paid the fine, but remained in jail for twenty-two days.

This incident in jail provides the critical backdrop for Pieschacon–Villegas's petition for review. He posited that his arrest and jailing were to facilitate his murder by the AUC. Pieschacon–Villegas testified 1 that Colombian jails are managed by the AUC and the Fuerzas Armadas Revolucionarias de Colombia—Ejercito del Pueblo (“FARC”), another paramilitary group, and that the DAS informed AUC members of his incarceration so he would be harmed or killed.

On the day Pieschacon–Villegas was to be released from jail, he was led to a room to meet with his attorney. However, Pieschacon–Villegas's attorney was not in the room when Pieschacon–Villegas arrived there. Instead, Pieschacon–Villegas saw a man whom he did not recognize, so Pieschacon–Villegas left the room, went back to his cell, and called an associate who had also cooperated with the FBI. His associate brought an armored car to pick Pieschacon–Villegas up from jail. Pieschacon–Villegas asserted in his asylum application and during his testimony that when he tried to leave prison that day he saw people whom he had dealt with in the AUC waiting outside in vehicles. Pieschacon–Villegas testified that he thought these men were there to kill him, so he went back inside the jail and a prison official allowed the armored car into the prison to pick him up. Police officers who arrived on the scene said that the armored car had been involved in a crime. Pieschacon– Villegas testified that the allegation that the armored car had been involved in a crime was a ploy to ensure that police officers would kill him during a pursuit or provide false justification for his murder if he had left jail in that car.

Pieschacon–Villegas's actual attorney then called the military leader of the city and municipality, Barranquilla, in which the jail is located. The military leader sent a police escort to take Pieschacon–Villegas to the police station and dismissed the charge regarding the armored car being involved in a crime.

During the time Pieschacon–Villegas was in jail, the FBI arrested and extradited four alleged drug traffickers, including Miguel Amezquita (“Amezquita”), who had worked with Pieschacon–Villegas in the money laundering business.2 Pieschacon–Villegas also contends that when the four men were arrested they all knew of his collaboration with the FBI. According to Pieschacon–Villegas, Amezquita accused him of cooperating with the FBI and wrote a letter to other money launderers saying that he was a “rat” and that he would be killed. IJ Removal Proceedings Decision at 13 (July 30, 2009).

The record of the removal proceedings also includes sworn declarations from Nelson Malpica Rodriguez (“Rodriguez”) and Pieschacon–Villegas's wife and his mother. Each of them swore that numerous notes threatening the lives of Pieschacon–Villegas and his family had been delivered to Pieschacon–Villegas's mother's building.3 Pieschacon–Villegas produced for the record the asylum application his wife submitted, in which she states that FBI agents suggested that, if she valued her life and the life of her children, she should not go back to Colombia because of these threats.

On December 27, 2007, Pieschacon–Villegas traveled to the United States and was arrested on a bail revocation charge because FBI agents believed Pieschacon–Villegas was involved in money laundering outside of the parameters of his FBI cooperation. On June 11, 2008, Pieschacon–Villegas pled guilty to money laundering based on the 1999 transfers referenced his 2003 plea agreement. He was sentenced to thirty months of incarceration.

On November 18, 2008, the Department of Homeland Security (“DHS”) served Pieschacon–Villegas with a Notice to Appear, charging him with being removable from the United States because: (1) he was an alien who had been convicted of acts which constituted a crime involving moral turpitude, see Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I); (2) he was an alien who the Attorney General knows, or has reason to believe, has engaged in money laundering, as described in 18 U.S.C. §§ 1956 and 1957, INA § 212(a)(2)(I)(i), 8 U.S.C. § 1182(a)(2)(I)(i); and (3) he was an applicant for admission to the United States who did not possess a valid entry document, see INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

On February 18, 2009, Pieschacon–Villegas appeared before the IJ and conceded removability. On or about April 10, 2009, Pieschacon–Villegas submitted an application for deferral of removal under the CAT.

A. IJ Decision

In addition to Pieschacon–Villegas's testimony before the IJ regarding prior threats and alleged attempts to harm him, he testified that he would be killed by members of the AUC or the FARC if he returned to Colombia.

On July 30, 2009, the IJ issued a decision denying Pieschacon–Villegas deferral of removal. The IJ described Pieschacon–Villegas's testimony and other exhibits and reports submitted by both parties on Colombian country conditions. The IJ noted exhibits stating that, although the Colombian government has attempted to demobilize paramilitary groups and has claimed that all such organizations have been demobilized, a number of the groups (AUC and FARC) are still active, despite the illegality of membership.

The record before the IJ also included information indicating that a number of government officials were being investigated for alleged links to paramilitary groups. Further, twenty-seven army officers, including three generals, four colonels, and the head of the army had been fired or forced to resign due to civil rights violations. Additionally, nineteen military personnel had been charged with murder, forced disappearance, or false testimony.

The Colombian government had acknowledged that security forces had been responsible for extrajudicial executions in Soacha. The military often claimed jurisdiction over these cases but would close the cases without serious investigation. As a result, Colombian President Álvaro Uribe stated that the Soacha killings would be investigated by civilian courts.

The IJ noted that it was “clear that the government of Colombia is struggling with corruption” and “officials sometimes engaged in corrupt practices with impunity.” IJ Removal Proceedings Decision at 19 (July 30, 2009). Some members of government security forces may have directly participated in paramilitary atrocities. The IJ continued that “any actions taken by government officials...

To continue reading

Request your trial
66 cases
  • United States v. Cain, s. 09–0707–cr (L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 31, 2012
    ......Baczynski, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western ......
  • Quinteros v. Attorney Gen. of the U.S., 18-3750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 17, 2019
    ...F.3d 144 at 152.59 18 U.S.C. § 1962(b), (c).60 18 U.S.C. § 1961(1).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. § 120......
  • Nasrallah v. Barr
    • United States
    • United States Supreme Court
    • June 1, 2020
    ...Gourdet v. Holder , 587 F.3d 1, 5 (CA1 2009) ; Ortiz-Franco v. Holder , 782 F.3d 81, 88 (CA2 2015) ; Pieschacon-Villegas v. Attorney General of U. S. , 671 F.3d 303, 309–310 (CA3 2011) ; Oxygene v. Lynch , 813 F.3d 541, 545 (CA4 2016) ; Escudero-Arciniega v. Holder , 702 F.3d 781, 785 (CA5 ......
  • Ortiz-Franco v. Holder
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 1, 2015
    ...felony, we dismiss Escudero's petition for review of the BIA's denial of ... protection under the CAT.”); Pieschacon–Villegas v. Att'y Gen., 671 F.3d 303, 309–10 (3d Cir.2011) (“This Court would lack jurisdiction to consider” petitioner's “disagreement with the BIA's determination that he f......
  • Request a trial to view additional results
1 books & journal articles
  • The Convention Against Torture and Non-refoulement in U.s. Courts
    • United States
    • Georgetown Immigration Law Journal No. 35-3, April 2021
    • April 1, 2021
    ...court that reviewed it. See, e.g., Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003); Pieschacon-Villegas v. Att’y Gen. of U.S., 671 F.3d 303, 309–12 (3d Cir. 2011); Hakim v. Holder, 628 F. 3d 151, 155 (5th Cir. 2010); Aguilar-Ramos v. Holder, 594 F.3d 701, 706 (9th Cir. 2010); Diaz v.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT