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Cruz-Quintanilla v. Whitaker

United States Court of Appeals, Fourth Circuit

February 1, 2019

OSCAR ADILIO CRUZ-QUINTANILLA, Petitioner,
v.
MATTHEW G. WHITAKER, Acting Attorney General, Respondent.

          Argued: October 31, 2018

          On Petition for Review of an Order of the Board of Immigration Appeals.

         ARGUED:

          Abraham Fernando Carpio, CARPIO LAW FIRM, LLC, Hyattsville, Maryland, for Petitioner. Sara J. Bayram, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Chad A. Readler, Acting Assistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before MOTZ, KEENAN, and HARRIS, Circuit Judges.

          Pamela Harris, Circuit Judge.

         Oscar Adilio Cruz-Quintanilla, a native of El Salvador and legal permanent resident of the United States, faces removal as a result of two criminal convictions. As a former gang member, Cruz-Quintanilla fears he will be tortured if forced to return to El Salvador, and thus seeks relief under the Convention Against Torture. To qualify, he must establish not only that it is more likely than not that he will be tortured if removed, but also that the government will acquiesce in that torture. 8 C.F.R. § 1208.16(c)(2). An immigration judge denied Cruz-Quintanilla relief after holding that he had failed to demonstrate the requisite government acquiescence. The Board of Immigration Appeals, reviewing that determination as a factual finding subject to clear error review, affirmed.

         We conclude that the Board applied the wrong standard of review. Whether Cruz-Quintanilla established that the government would acquiesce in his torture under 8 C.F.R. § 1208.16(c)(2) is a mixed question of law and fact, and the immigration judge's determination that the evidence did not meet the relevant standard is a legal judgment subject to de novo review by the Board. Accordingly, we grant Cruz-Quintanilla's petition for review and remand so that the Board may review the immigration judge's determination under the proper standard.

         I.

         A.

         At the age of twelve, Oscar Adilio Cruz-Quintanilla lawfully entered the United States to live with his mother and stepfather in Montgomery County, Maryland. Two or three years later, members of the MS-13 gang recruited Cruz-Quintanilla to join their ranks. He agreed, and as part of his initiation into MS-13, received four tattoos indicating his gang affiliation. Several of the tattoos - including an "X3" (representing the number 13) on his forearm and an "NSL" (designating the clique to which he belonged) on his hand - are readily visible. Although MS-13 forbids members from leaving the group, Cruz-Quintanilla left the gang in 2005 after a rival gang member shot him in the foot.

         Cruz-Quintanilla continued to live in the Montgomery County area, and in 2013 a grand jury in Maryland state court indicted him in connection with a home robbery. A jury later convicted Cruz-Quintanilla on three counts: reckless endangerment; conspiracy to commit robbery with a dangerous weapon; and wearing, carrying, and transporting a handgun. Cruz-Quintanilla spent three years in prison as a result of these convictions. Following his release, ...


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