Suarez-Valenzuela v. Holder

• Decision Date: 24 April 2013
• Docket Number: No. 12–1019.,12–1019.
• Citation: 714 F.3d 241
• Parties: Dario SUAREZ–VALENZUELA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

714 F.3d 241

Dario SUAREZ–VALENZUELA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1019.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 29, 2013.

Decided: April 24, 2013.

ARGUED:Jesse Reuben Heath, Peter Andres, Baker & McKenzie, LLP, Washington, D.C., for Petitioner. Derek C. Julius, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:David J. Laing, Baker & McKenzie, LLP, Washington, D.C., for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, DUNCAN, and FLOYD, Circuit Judges.

Petition denied by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

OPINION

FLOYD, Circuit Judge:

Petitioner Dario Suarez–Valenzuela is a citizen of Peru who entered the United States without inspection in 1999. After Suarez–Valenzuela was convicted of petit larceny, the government issued an Administrative Order of Removal. Suarez–Valenzuela was able to apply for protection under the Convention Against Torture (CAT) because he expressed a fear that Peruvian government officials would torture him if he returned to Peru. An immigration judge granted Suarez–Valenzuela's application for withholding of removal to Peru, but the Board of Immigration Appeals (BIA) reversed. Suarez–Valenzuela appealed, contending that the BIA applied the wrong standard when evaluating his case and that its conclusions were not supported by substantial evidence. We now deny Suarez–Valenzuela's petition.

I.

A.

In 1997, Suarez–Valenzuela appeared on a Peruvian talk show called the “Lara Bazzo Show” after being recruited by the show's investigator, Jason. Although Suarez–Valenzuela was promised items in exchange for his appearance, he never received them. Suarez–Valenzuela complained to Jason, who spoke with Bazzo. When Bazzo refused to provide the items, Suarez–Valenzuela and Jason threatened to report her to a rival television station.

After Suarez–Valenzuela and Jason threatened Bazzo, four men in a white van approached them to intimidate Jason. Each of the men possessed weapons and badges identifying himself as a police officer. Suarez–Valenzuela recognized one of the men as Luis, a police officer who allegedly worked for Bazzo. The men began arguing with Suarez–Valenzuela and Jason, and Luis hit Jason with his gun. Jason fell, injured his head, and died moments later. Luis then shot Suarez–Valenzuela in the foot.

Following the altercation, Suarez–Valenzuela was taken to the hospital and remained there for nearly two weeks. Police officers visited him at the hospital and offered him money in exchange for his silence regarding the circumstances of the shooting. Suarez–Valenzuela refused to accept their offer and told the authorities that Luis killed Jason.

The police asked Suarez–Valenzuela to testify at Luis's trial for Jason's murder, and Suarez–Valenzuela agreed. Several months before the trial, Luis stabbed Suarez–Valenzuela in the chest to prevent him from testifying. Nevertheless, Suarez–Valenzuela ultimately testified against Luis, who was convicted and sentenced to fifteen years of imprisonment, although he served only three months of that sentence. Suarez–Valenzuela testified that he does not know whether Luis remained employed as a police officer following his conviction.

After his release, Luis went to Suarez–Valenzuela's mother's house in an attempt to find Suarez–Valenzuela. Luis allegedly “destroyed” the house. Suarez–Valenzuela initially went to live with his grandmother in order to avoid Luis. Although Luis did not confront Suarez–Valenzuela at his grandmother's house, Suarez–Valenzuela continues to fear for his safety because he believes that the police can use a national identity database to locate him anywhere in Peru. Suarez–Valenzuela left Peru for the United States in 1998 and illegally entered the United States in January 1999.

Following Suarez–Valenzuela's departure from Peru, Luis visited Suarez–Valenzuela's mother's house several times with another individual and threatened to kill Suarez–Valenzuela. Suarez–Valenzuela explained that he was unaware whether the other individual was a police officer. Luis visited the house for the last time in 2008. Luis made the same threats to Suarez–Valenzuela's father in 1999.

B.

On February 17, 2010, Suarez–Valenzuela was convicted of misdemeanor petit larceny. The Department of Homeland Security (DHS) subsequently issued an Administrative Order of Removal based on Suarez–Valenzuela's conviction and his immigration status. Because Suarez–Valenzuela expressed a fear of returning to Peru, DHS stayed his removal and conducted a “reasonable fear interview.” The DHS asylum officer who conducted the interview concluded that Suarez–Valenzuela had demonstrated a reasonable fear of torture.

Suarez–Valenzuela's case was referred to an immigration judge. The immigration judge found Suarez–Valenzuela credible and determined that he was subjected to torture when he was shot, stabbed, and threatened. The immigration judge also noted that, according to the State Department's Country Reports on Human Rights Practices for Peru, the police regularly threaten victims and witnesses of human rights abuses, and the perpetrators of those abuses are rarely punished. Although the immigration judge recognized that security forces have developed human rights training, implementation has been slow and security forces are reluctant to provide information about human rights abuses. The immigration judge also found that it was not feasible for Suarez–Valenzuela to relocate within Peru due to the country's national identity database, which would allow the individuals who tortured him to determine his whereabouts. In light of this information, the immigration judge found that it was more likely than not that government officials would torture Suarez–Valenzuela or acquiesce to his torture if he returned to Peru. The judge therefore granted Suarez–Valenzuela's application for withholding of removal to Peru under the CAT.

DHS appealed the immigration judge's order granting Suarez–Valenzuela's application. On December 6, 2011, the BIA sustained the appeal and vacated the immigration judge's order. The BIA found that the Peruvian government's attempts to mitigate corruption had created an environment that was not conducive to officials' acquiescence to or participation in torture. The BIA also noted that Suarez–Valenzuela had not established that Luis remained employed as a police officer. Finally, the BIA held that there was no indication that government officials have used or will use the national identity database to locate and torture witnesses. The government has since removed Suarez–Valenzuela to Peru.

Suarez–Valenzuela filed a timely petition for review. On appeal, Suarez–Valenzuela contends that the BIA applied the wrong standard when evaluating his case and that substantial evidence did not support its conclusions. We have jurisdiction pursuant to 8 U.S.C. § 1252 and 28 U.S.C. § 2349(a).

II.

To qualify for protection under the CAT, an applicant bears the burden of showing 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. § 1208.16(c)(2). In relevant part, the CAT's implementing regulations define “torture” as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ... 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 ... 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.§ 1208.18(a)(1). A public official acquiesces to torture when, “prior to the activity constituting torture, [he or she] ha[s] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.” Id.§ 1208.18(a)(7). Although evidence of past torture is relevant, it does not create a presumption that an applicant will be tortured in the future. See Niang v. Gonzales, 422 F.3d 1187, 1202 (10th Cir.2005). Instead, immigration judges should consider evidence of past torture, evidence of “gross, flagrant or mass violations of human rights,” the country's conditions, and whether the applicant could relocate to a part of the country where he or she is unlikely to be tortured. 8 C.F.R. § 1208.16(c)(3).

This Court reviews decisions to deny CAT relief for substantial evidence. See Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir.2007). Under this standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will reverse the BIA's decision only if “the evidence ... presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias–Zacarias, 502 U.S. 478, 483–84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir.2002).

III.

We turn first to Suarez–Valenzuela's argument that the BIA applied the wrong standard when determining whether government officials would acquiesce to his torture. “A court of appeals ‘is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.’ Rather, ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’ ” INS v. Orlando Ventura, 537 U.S. 12, 16–17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (citation omitted) (quoting Fla. ...