Reyes-Reyes v. Ashcroft

• Citation: 384 F.3d 782
• Decision Date: 13 September 2004
• Docket Number: No. 03-72100.,03-72100.
• Parties: Luis REYES-REYES, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

384 F.3d 782

Luis REYES-REYES, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-72100.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2004.

Filed September 13, 2004.

Carter C. White, King Hall Civil Rights Clinic, University of California School of Law, Davis, California; Robert T. Grieg, Anil Kalhan, and Joseph Landau, Cleary Gottlieb, Steen & Hamilton, New York, New York, for the petitioner.

Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-973-761.

Before McKEOWN, BYBEE, Circuit Judges, and BREYER,^* District Judge.

Opinion by Judge McKEOWN; Concurrence by Judge BYBEE.

McKEOWN, Circuit Judge:

Luis Reyes-Reyes petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because Reyes's asylum claim was denied as untimely, we lack jurisdiction to reach its merits. We have jurisdiction, however, to review the BIA's denial of his withholding and CAT claims. Because the immigration judge (IJ) invoked the wrong standard in analyzing both of these claims, we grant the petition and remand for further consideration.

BACKGROUND

Luis Reyes-Reyes, a citizen of El Salvador, fled to the United States as a teenager twenty-five years ago. Motivated by fear of persecution, Reyes entered this country unlawfully and never legalized his presence. Faced now with the immigration consequences of his undocumented status, Reyes continues to fear persecution should he return to El Salvador.

Reyes is a homosexual male with a female sexual identity. He dresses and looks like a woman, wearing makeup and a woman's hairstyle. Although Reyes has not undergone sex reassignment surgery, he has had a characteristically female appearance, mannerisms, and gestures for the past sixteen years. He has a "deep female identity" and has gone by female names such as Josephine, Linda, and Cukita. Reyes is currently in custody, where he is held separately from the other inmates for his own protection.

Reyes's original reasons for leaving El Salvador involve disturbingly violent circumstances. When Reyes was thirteen and living with his family in San Salvador, he was kidnaped by a group of men, taken to a remote location in the mountains, and raped and beaten because of his homosexual orientation.¹ Reyes's attackers threatened future brutality if he reported their actions. Fearing reprisal, he never told his family or the authorities about these crimes. Believing that "homosexuals are not welcome in my home country," Reyes fled El Salvador after he turned seventeen.

Reyes now faces the prospect of return to El Salvador. Removal proceedings were commenced after Reyes's undocumented presence came to the attention of immigration authorities. In 2002, Reyes appeared pro se before an IJ, conceded removability, and applied for asylum, relief under the CAT, and withholding of removal. At the hearing, Reyes explained his fears about returning to El Salvador and related the story of his kidnaping and rape and explained his fears that if he returns to El Salvador, he will be discriminated against, abused, raped, or possibly even killed because of his appearance and sexual orientation. The IJ questioned Reyes repeatedly about why he failed to report the crimes and whether "anyone in the Government or acting on behalf of the Government of El Salvador [would] want to torture you."

At the conclusion of the proceedings, the judge denied Reyes's applications for withholding and CAT relief on the merits, and denied his asylum petition as untimely filed. In an oral decision, the IJ explained that Reyes had failed to satisfy the requirements of the law because he "has failed to state that anyone in the government or acting on behalf of the government tortured him." The IJ also ruled that Reyes had failed to establish past persecution for the purposes of withholding of removal under 8 U.S.C. § 1231(b). The judge did not make an adverse credibility finding.

Sometime later, Reyes obtained pro bono representation and filed an appeal with the Board of Immigration Appeals (BIA), attaching to his brief numerous excerpts from human rights organizations, government and news sources detailing El Salvador's hostile political and cultural climate towards male homosexuals with female identity. Reyes also filed a motion to remand, attaching several pieces of new evidence, including the affidavit of an expert on Latin American culture. In a one-judge order, the BIA summarily affirmed the IJ's decision pursuant to 8 C.F.R. § 1003.1(e)(4), and denied Reyes's motion to remand. Reyes now petitions for review of the BIA's decision.

DISCUSSION

This case presents a series of discrete legal issues. Although the parties argue at length over inclusion in the record of evidence of El Salvador's country conditions and political climate and the merits of Reyes's claim, we need not address these disputes because our resolution of the justiciable issues rests on the ground that the BIA employed an erroneous legal standard in evaluating Reyes's application.

The slight quirk presented by our review of the BIA's bare affirmance without opinion of the IJ's decision requires us to apply the well-known "simple but fundamental rule of administrative law": We "must judge the propriety of such action solely by the grounds invoked by the agency." Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Thus, although the agency's summary affirmance under 8 C.F.R. § 1003.1(e)(4) "only means that the BIA deemed any errors by the IJ to be harmless," Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1013 (9th Cir.2003) (describing the analogous process pursuant to 8 C.F.R. § 1003.1(a)(7)), as a practical matter, we may review only the reasoning presented by the IJ. See Chenery, 332 U.S. at 196, 67 S.Ct. 1575 ("[T]he court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis."). In effect, when the BIA invokes its summary affirmance procedures, it pays for the opacity of its decision by taking on the "risk [of reversal] ... in declining to articulate a different or alternate basis for the decision" should the "reasoning proffered by the IJ [prove] faulty." Falcon Carriche, 335 F.3d at 1014. In this posture, we review de novo the IJ's legal conclusions. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004).

I. JURISDICTION OVER THE ASYLUM CLAIM

Aliens present in the United States may apply for asylum under 8 U.S.C. § 1158(a)(1) so long as they file their application "within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). If the alien arrived before April 1, 1997, he has one year from that date to file. 8 C.F.R. § 1208.4(a)(2)(ii). Judicial review of decisions made under § 1158(a)(2) is completely foreclosed. See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)."); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001) ("[W]e need only determine whether the IJ acted under section 1158(a)(2).... [If so,] under section 1158(a)(3), we lack jurisdiction to review the IJ's determination that [the applicant] failed to file his asylum application within one year of his arrival in the United States.").

Reyes filed his asylum petition on July 8, 2002, well beyond the one-year deadline, and the IJ determined that Reyes was "subject to the one year bar and, therefore, ineligible for asylum under Section [1158(a)(2)]." We therefore lack jurisdiction to review this decision.

II. CONVENTION AGAINST TORTURE

The question we consider is whether the IJ applied the correct legal standard under the CAT by requiring Reyes to prove that he suffered torture at the hands of a government agent. Under the implementing regulations of the CAT, an applicant qualifies for withholding of removal if "it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). In evaluating the likelihood of future torture, the IJ must consider evidence of past torture. 8 C.F.R. § 208.16(c)(3)(i). "Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for ... any reason based on discrimination of any kind ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1).

Torture is not limited to acts that occur "under public officials' custody or physical control." See Azanor, 364 F.3d at 1019. To the contrary, "a petitioner may qualify for withholding of removal by showing that he or she would likely suffer torture while under private parties' exclusive custody or physical control." Id. (emphasis in original). If the torture is at the hands of private individuals, the petitioner's burden is to show the government's "consent or acquiescence." 8 C.F.R. § 208.18(a)(1). "Acquiescence," we have recently explained, is not limited to "actual knowledge, or willful acceptance"; the "willful blindness" of government officials suffices. Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir.2003). In Zheng, we underscored Congress's intent to create a broad definition of "acquiescence of a public official [to torture]" against the BIA's attempt to narrow its scope. Id. at 1196 ("The Convention does not require, as the INS purports, the government to `knowingly acquiesce' to such torture.").

Here, the judge applied to Reyes a standard even more stringent than the one urged by the INS and rejected by the court in Zhen...