Reyes-Sanchez v. U.S. Atty. Gen., No. 02-14584.
| Decision Date | 12 May 2004 |
| Docket Number | No. 02-14584. |
| Citation | 369 F.3d 1239 |
| Parties | Roberto Domingo REYES-SANCHEZ, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Eduardo A. Canal, Miami, FL, for Petitioner.
Shelley R. Goad, Linda S. Wendtland, John C. Cunningham, INS, Office of Imm. Lit., Washington, DC, Michelle Ressler, Miami, FL, for Respondents.
Petition for Review of an Order of the Board of Immigration Appeals.
Before TJOFLAT and MARCUS, Circuit Judges, and MUSGRAVE*, Judge.
Petitioner Roberto Domingo Reyes-Sanchez ("Reyes") is a native and citizen of Peru. The Board of Immigration Appeals ("BIA" or "Board") denied him relief under Article 3 of the United Nations Convention Against Torture ("CAT")1 and ordered him removed from the United States. We affirm.
Reyes arrived in the United States in March 1993 with a temporary nonimmigrant visa. After overstaying his visa, Reyes in December 1993 applied to the Immigration and Naturalization Service ("INS") for asylum. Over four years later, in April 1998, the INS denied Reyes's application and served him with a notice to appear before an immigration judge ("IJ") to show cause why he should not be removed.
Before the IJ, Reyes conceded removability but sought relief in the forms of asylum, withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1231(b)(3), and withholding of removal under the CAT. The IJ conducted an evidentiary hearing to determine the bases for Reyes's claims for relief. Reyes was the only witness to testify at this hearing.2 We relate the salient features of his testimony.
In 1991, Reyes opened a mini supermarket in his hometown of Lima, Peru. At this time, a Peruvian terrorist group, the Movimiento Revolucionario Tupac Amaru ("MRTA"), began to extort a "war tax" from him. Individuals identifying themselves as MRTA members called Reyes's home and business and told him where and when to bring the money and threatened to harm him and his family if he did not comply. Thus, every fifteen days, Reyes paid the MRTA roughly $400.
By September 1992, Reyes had become angered by the MRTA's destructive activities. When an MRTA member called to tell him where to drop off his usual payment, Reyes said that he would no longer pay the war tax. The caller dubbed Reyes a traitor and threatened his life and property.
On September 18, 1992, a man and woman entered Reyes's store wearing masks with MRTA logos. They held guns to Reyes and his wife and looted the store shelves and cash register, saying that they would take by force what Reyes refused to pay. When Reyes reported the incident, the police came to the store, verified the facts, checked for fingerprints, and collected MRTA leaflets the assailants had left behind. The police never apprehended anyone, however.3
Later that same week, two people followed Reyes's son, Carlos, as he left school. Concerned that he would be kidnaped, Carlos evaded his followers by fleeing to a nearby police car. A person identifying himself as an MRTA member called the next day and told Reyes "that his son had escaped this time, but [that] no one was free from [the MRTA]." Soon thereafter, Reyes closed his business and came to the United States.
The IJ found Reyes's testimony credible. She denied his requests for asylum and for withholding of removal under the INA,4 but granted him withholding of removal under the CAT.5 In the IJ's view, Reyes had proven, as required by 8 C.F.R. § 208.16(c)(2), that it was "more likely than not that he ... would be tortured if removed to" Peru, because (1) Reyes had suffered harm at the hands of the MRTA before arriving in the United States; (2) the police had not responded sufficiently to the MRTA's actions against him; (3) recent State Department reports showed that the Peruvian government had not fully "decimated" the MRTA, as reports in earlier years had suggested; (4) no particular area of Peru appeared free from the risk of MRTA activity; (5) Reyes "ha[d] heard of the terrorists tracking people to other areas" of the country; and (6) Reyes testified that after he arrived in the United States, terrorists killed a fellow shopkeeper in Peru.
The INS appealed the IJ's order, and the BIA sustained the appeal. The BIA implicitly assumed, for the sake of rendering its judgment, that Reyes proved he would suffer harm if removed to Peru. The alleged harm did not amount to "torture" in the Board's view, however. As the Board recognized, to constitute "torture" under the CAT, the harm the petitioner alleges 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." 8 C.F.R. § 208.18(a)(1). The BIA concluded that Reyes "failed to demonstrate prima facie eligibility for" CAT relief, since he had not proven that Peruvian officials would "deliberate[ly] accept[]" any harm Reyes might suffer upon his return to Peru.6 The Board ordered Reyes removed from the United States and Reyes brought this appeal.
The sole issue for our consideration is whether the BIA erred in setting aside the IJ's decision to grant Reyes withholding of removal under the CAT. As the regulations state, "[t]he burden of proof is on the applicant for withholding of removal under [the CAT] to establish that 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). "Torture" is
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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.
Id. § 208.18(a)(1). Acquiescence "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." Id. § 208.18(a)(7).
"We review only the Board's decision, except to the extent that it expressly adopts the IJ's opinion." Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Assuming for the sake of argument that Reyes proved he would suffer harm if removed to Peru, the BIA seized upon the issue of the Peruvian government's role in any such harm. We find no basis upon which to disturb the Board's judgment that Reyes failed to demonstrate that the Peruvian government would acquiesce in the harm Reyes fears he would suffer if returned to Peru.7
First, the Peruvian government did not acquiesce in the harm the MRTA inflicted upon Reyes in Peru. When MRTA members raided Reyes's store and assaulted him and his wife, the police came to the scene, verified the facts, took fingerprints, and collected the MRTA leaflets. Thus, Reyes is incorrect in claiming that the police "did nothing" to respond to the robbery and assault.8 That the police did not catch the culprits does not mean that they acquiesced in the harm. Indeed, were we to follow this reasoning, a person could obtain CAT relief merely because he was attacked by a gang of neighborhood thugs whom the police were unable to apprehend. The CAT does not extend so far.
Second, the Peruvian government does not presently acquiesce in the MRTA's activities. Upon analyzing the State Department reports the IJ admitted into the record, the BIA concluded that the Peruvian "[g]overnment actively, albeit not entirely successfully, combats the MRTA." The Board was entitled to rely heavily on these sources, see Rojas v. INS, 937 F.2d 186, 190 n. 1 (5th Cir.1991) (), and did not misinterpret them. The record amply supports the BIA's determination.
In sum, the Board did not err in concluding that Reyes failed to make a prima facie case under the CAT. The IJ based her decision largely upon (1) Reyes's conclusory allegations that the MRTA would harm him if he returned to Peru, and (2) an erroneous conclusion that the Peruvian government would acquiesce in this harm. Assuming for the sake of argument that the IJ was correct as to the first determination (a generous assumption indeed), the BIA properly concluded that she erred as to the second. In effect, the BIA determined that "[t]here is ... no evidence from which to infer that any harm suffered upon return would be ... with the ... acquiescence of" the government. Guzman v. INS, 327 F.3d 11, 17 (1st Cir.2003) (marks omitted). We agree. The relief Reyes seeks is beyond the CAT's reach.
To continue reading
Request your trial
-
Cadet v. Bulger, No. 03-14565.
...with jurisdiction over a petition for review of the BIA's judgment denying an alien's CAT claim and affirming a removal order. Reyes-Sanchez, 369 F.3d at 1240 n. 1. As noted earlier, Cadet's petition for review of the BIA's decision denying his CAT claims was dismissed by this Court for wan......
-
Priva v. U.S. Attorney Gen.
...C.F.R. § 208.31(c). The applicant bears the burden of proof for establishing entitlement to CAT relief. See Reyes-Sanchez v. U.S. Att'y Gen. , 369 F.3d 1239, 1242 (11th Cir. 2004) ; Lingeswaran v. U.S. Att'y Gen. , 969 F.3d 1278, 1293 (11th Cir. 2020).In the CAT context, "[t]orture must be ......
-
Auguste v. Ridge
...Cir.1979)). Several circuits have already determined that the CAT is not self-executing. See, e.g., Reyes-Sanchez v. United States Attorney Gen., 369 F.3d 1239, 1240 n. 1 (11th Cir.2004); Saint Fort v. Ashcroft, 329 F.3d 191, 202 (1st Cir.2003); Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir.2......
-
U.S.A v. Belfast
...395 F.3d 123, 132 n. 7 (3d Cir.2005). We have previously recognized that the CAT is not self-executing. Reyes-Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1240 n. 1 (11th Cir.2004). 2. Congress also enacted other statutes in response to the CAT. The Foreign Affairs Reform and Restructuring Ac......
-
The Convention Against Torture and Non-refoulement in U.s. Courts
...torture of citizens by third parties.”) (internal quotations omitted). 170. See id. at 872-83. 171. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239 (11th Cir. 2004). 172. See id. at 1243. 2021] CAT AND NON-REFOULEMENT IN U.S. COURTS 725 prevent it.”173 Six years later, the Second Circui......