Argued: October 31, 2018
Petition for Review of an Order of the Board of Immigration
Abraham Fernando Carpio, CARPIO LAW FIRM, LLC, Hyattsville,
Maryland, for Petitioner. Sara J. Bayram, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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.
MOTZ, KEENAN, and HARRIS, Circuit Judges.
Harris, Circuit Judge.
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.
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.
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.
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, ...