Quinteros v. Attorney Gen. of the U.S.

• Decision Date: 17 December 2019
• Docket Number: No. 18-3750,18-3750
• Parties: Nelson QUINTEROS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

945 F.3d 772

Nelson QUINTEROS, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 18-3750

United States Court of Appeals, Third Circuit.

Argued on September 24, 2019

Opinion filed: December 17, 2019

OPINION

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 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 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 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 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 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 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. Dimaya¹⁶ 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 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...