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Quinteros v. Attorney General of United States

United States Court of Appeals, Third Circuit

December 17, 2019

NELSON QUINTEROS, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

          Argued on September 24, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A079-029-001) Immigration Judge: John P. Ellington

          Damon C. Andrews (ARGUED) Kirkland & Ellis, Nathanael P. Kibler, Baker Donelson Bearman Caldwell & Berkowitz Counsel for Petitioner

          Rachel L. Browning Virginia M. Lum, Esq. (ARGUED) United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: MCKEE, AMBRO and ROTH, Circuit Judges

          OPINION

          ROTH, CIRCUIT JUDGE.

         This is a petition for review of a final order of removal. The Board of Immigration Appeals found that Nelson Quinteros committed an aggravated felony and failed to show entitlement to relief under the Convention Against Torture (CAT). Quinteros argues that the Board committed two errors: First, the Board erred in finding that his conviction for conspiracy to commit assault with a dangerous weapon was an aggravated felony under the Immigration and Nationality Act (INA); second, the Board erred in applying our precedent on the Convention Against Torture. For the reasons that follow, we will vacate the Board's decision and remand for further proceedings consistent with this opinion.

         I.

         Nelson Quinteros and his mother came to the United States from El Salvador in 2001, when he was eight-years-old. They settled in New York. When he was thirteen, Quinteros joined the gang MS-13. He has a New York Yankees tattoo that he asserts symbolizes that his particular gang is based in New York.

         In 2011, Quinteros was indicted for conspiracy to commit assault with a dangerous weapon under 18 U.S.C. § 1959(a)(6). Quinteros and other gang members discussed over the phone that they would assault members of Surenos, a rival gang. Quinteros drove other gang members to a Surenos location, but the Surenos "backed down."[1] No assault took place. Quinteros later pled guilty to conspiracy to commit assault with a dangerous weapon. He was sentenced to thirty months' imprisonment.

         In prison, Quinteros left MS-13 to follow Christianity. When he told other MS-13 members in prison that he was no longer in the gang, they would reply with statements like, "Well, when you get deported and you go back to El Salvador, things are going to change. There's no getting out over there."[2]

         When Quinteros's sentence ended, the Department of Homeland Security (DHS) initiated removal proceedings. DHS placed Quinteros in expedited proceedings after it determined that Quinteros had been convicted of an aggravated felony under the Immigration and Nationality Act (INA). In 2014, Quinteros was issued a Form I-851 Notice of Intent to Issue a Final Administrative Removal Order. The Form I-851 charged Quinteros as removable for having committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), (U), and (J) and allowed Quinteros to contest his removability. He checked the box to contest his deportability and indicated he would attach documents supporting his request. He failed to follow up with additional documentation.

         Quinteros then sought withholding of removal. An asylum officer determined that Quinteros demonstrated a reasonable fear that he would be tortured in El Salvador. The officer referred Quinteros to an Immigration Judge (IJ).

         Before the IJ, Quinteros attempted to show that he would be tortured in El Salvador. He also sought to show that the police would, at the very least, be unlikely to protect him and, at worst, would directly perpetrate violence against him. Quinteros testified on his own behalf and presented the testimony of Dr. Thomas Boerman, a country conditions expert. Quinteros also relied on several studies and reports. Most relevant for this appeal, Quinteros submitted a study from the Harvard Law School International Human Rights Clinic (Harvard study) that discussed the perception and treatment of individuals with tattoos in El Salvador.

         A. Quinteros's Testimony

         Quinteros gave several reasons why he would be recognizable as a gang member in El Salvador. He "anticipate[d] that he would be readily identified as a deportee because of his distinct accent and his 'NY Yankees' tattoo."[3]He testified that he knows seventy other gang members, who have been deported to El Salvador, and has cousins in MS-13.

         Quinteros also offered anecdotal evidence that other former gang members, deported to El Salvador, had been harassed or killed. Quinteros did not believe that the police would protect him. He testified that other MS-13 members in New York had sent money to the police in El Salvador to secure protection for the gang there. He thought that the police would not get involved in gang-on-gang violence because the police would have little to gain.

         B. Dr. Boerman's Testimony

         Dr. Boerman testified as an expert on conditions in El Salvador and corroborated much of Quinteros's testimony. He detailed several iterations of largely ineffectual Salvadoran government policies to combat gang violence. First, he described a set of 2003 laws that criminalized gang membership, resulting in the arrest of 20, 000 people. Ultimately, however, few people were charged for gang offenses. These laws remain on the books, but at the time of Dr. Boerman's testimony in 2015, he testified that most arrests of suspected gang members resulted in a short period of detention and no charges. When charges are filed, gang members are usually acquitted "because of the effect of witness intimidation, terrorization, and murder."[4]

         Then came a gang truce from 2012 to 2014 that appeared to have decreased homicides. But this truce was discredited after authorities discovered a substantial "increase in the use of clandestine cemeteries."[5] Some researchers believe that the supposed truce actually strengthened the gangs and increased violence.

         In 2014, a new president attempted to implement a new anti-gang policy. That plan also stalled. Although the government has labeled the gangs, including MS-13, "terrorist groups, "[6] and has authorized the use of El Salvador's anti-terrorism laws to combat them, it is not clear whether the government has implemented these laws.

         Dr. Boerman also described a "'disconnect' between official policy and actual practice."[7] For example, although trained on human rights, some "officers have sought permission to form groups that carry out assassinations as an official state function."[8] According to Dr. Boerman, the Salvadoran government no longer investigates police killings of gang members.

         Dr. Boerman detailed a special risk of harm for former gang members. When the U.S. deports an individual, it provides the country to which the deportee is returning with the deportee's gang affiliation and information about his tattoos. Dr. Boerman provided anecdotal evidence that immigration officers, police, and military in El Salvador have subjected suspected gang members to physical violence during the customs process. Gang members and police easily identify newcomers to a community and take great pains to determine their background, including stripping them down to check for tattoos. Dr. Boerman also stated that a New York Yankees tattoo is "commonly recognized as gang affiliated from the United States, in the east coast."[9] The police or a gang would interpret that tattoo "as gang related."[10] Efforts to remove the tattoo would result in scarring that would likewise raise suspicions of gang affiliation.

         C. Agency Proceedings

         After conducting hearings, the IJ denied Quinteros's request for relief under the Convention Against Torture (CAT). The IJ found that Quinteros "ha[d] shown a clear likelihood that he would be killed or tortured by members of MS-13 and [rival] gangs"[11] but had not shown that the Salvadoran police would be willfully blind to that torture. The IJ found that the "escalating violence" in El Salvador, although "alarming," was "stemming from war-like conditions" and did "not necessarily mean that the government is abdicating its responsibility to protect the public."[12]

         The IJ also determined that Quinteros's crime was an aggravated felony. The IJ applied the modified categorical approach and found that Quinteros's crime was a crime of violence, as defined in 18 U.S.C. § 16(b), and that conspiracy did not require an overt act.[13]

         Quinteros appealed the IJ's CAT findings, making no mention of the aggravated felony finding. The BIA affirmed. Quinteros appealed. We granted the government's request to remand, in light of our decision in Myrie v. Attorney General, [14]in order to determine if the Salvadoran government, more likely than not, would acquiesce in Quinteros's torture by gang members

         On remand, both Quinteros and the government offered additional, updated evidence on conditions in El Salvador. Because the effect of Quinteros's evidence was essentially the same, the second IJ adopted the first IJ's finding that Quinteros had shown a likelihood of being killed or tortured by gangs and similarly found that the Salvadoran officials' likely response would not constitute acquiescence. The IJ noted that he had reviewed Quinteros's prior and current testimony, Dr. Boerman's prior testimony and written declaration, and all other supporting materials in conjunction with United States Department of State country condition reports.[15] The IJ rested his findings on the new efforts El Salvador was taking to combat gang violence and the lack of evidence that a Yankees tattoo was a gang symbol.

         Quinteros appealed to the Board. While his appeal was pending, the Supreme Court in Sessions v. Dimaya[16]invalidated 18 U.S.C. § 16(b), as unconstitutionally vague. Quinteros moved to remand based on Dimaya. The Board then determined that, because Quinteros was in expedited removal proceedings, he could not challenge his status as an aggravated felon.[17] In a footnote, the Board noted that Quinteros was subject to expedited removal proceedings because he committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), (U), and (J).[18] To accept such logic would render it impossible for anyone in such a situation to challenge their status before the BIA.

         The Board affirmed the denial of Quinteros's CAT claim. In doing so, the Board reversed the IJ's finding on the likelihood of torture as clearly erroneous, questioning whether Quinteros would even be recognized as a current or former gang member. The Board also noted that Quinteros had not shown that his tattoo was visible or that it would signify to others that he was a current or former gang member. The Board agreed with the IJ that Quinteros failed to show acquiescence by state actors, noting the new "extraordinary measures" El Salvador was taking "to combat gang violence."[19]

         Quinteros petitioned this Court for review of the finding that his conviction is an aggravated felony and, in light of Dimaya, of the Board's denial of his motion to remand. Quinteros also alleges that the Board committed legal error in denying CAT relief.

         II.

         We have jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1). The government argues that where, as here, the agency has found that an alien committed an aggravated felony, we have no jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to review the removal order. Nevertheless, we retain jurisdiction over "constitutional claims or questions of law."[20] If "the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA's, and not the IJ's, decision."[21] We also review those portions of the IJ decision that the Board adopts or defers to.[22]

         III.

         A. This Court has jurisdiction to consider whether Quinteros was convicted of an aggravated felony.

         The first question we must answer is whether we have jurisdiction to hear Quinteros's challenge to the aggravated felony finding. The government argues that Quinteros failed to exhaust his administrative remedies because he did not challenge the aggravated felony finding in response to the initial notice of intent to issue a final administrative removal order. Quinteros argues that he did all that was required: He checked the box on the BIA form that indicated he disagreed with the finding of removability.[23] Although generally an alien is required to exhaust his administrative remedies-a jurisdictional requirement[24]-an agency revives an alien's unexhausted claim when it sua sponte considers an issue.[25]Here, the first IJ sua sponte determined that Quinteros's conviction was for an aggravated felony under § 1101(a)(43)(F) and (U).

         Although Quinteros did not challenge on appeal the IJ's aggravated felony finding, he did file a motion to remand to the IJ, challenging his removability as an aggravated felon. The Board considered this motion to remand and concluded that Quinteros could not challenge the aggravated felon determination in expedited removal proceedings. Because the Board had the opportunity to consider Quinteros's challenge to his removability as an aggravated felon and declined to do so on the merits, the aggravated felony issue is exhausted for purposes of appeal.[26]

         Moreover, we always retain jurisdiction to determine our own jurisdiction.[27] As we have said before, this principle extends to "jurisdiction to address [the] jurisdictional prerequisite . . . of . . . 'whether an alien was convicted of a non-reviewable aggravated felony.'"[28] We will therefore first determine whether Quinteros was convicted of an aggravated felony. Our review of this issue is "de novo as it implicates a purely legal question."[29]

         B. Quinteros did not commit an aggravated felony.

         DHS charged Quinteros as deportable for being convicted of an aggravated felony under 2 U.S.C. 1101(a)(43)(F), (J), and (U). Subsection (F) applies to a crime of violence using the definition in 18 U.S.C. § 16.[30] Subsection (J) applies to several racketeering offenses. Subsection (U) applies to an "attempt or conspiracy to commit" an aggravated felony.

         When determining whether a particular offense is an aggravated felony, we apply the categorical approach.[31] Under the strict categorical approach, we compare the state statute of conviction with "the federal statute enumerating categories of crimes" without regard to "the underlying facts."[32] In applying the categorical approach, we are to "presume that the conviction 'rested upon [nothing] more than the least of th[e] acts' criminalized, and then determine whether even those acts are encompassed by the generic federal offense."[33]

         Quinteros was convicted under 18 U.S.C. § 1959(a)(6). That section states:

(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished- . . .
(6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury . . . ."[34]

         Because Quinteros's statute of conviction is "an alternatively phrased statute," we must first "determine whether its listed items are elements or means."[35] If the alternatives are elements, some of which would qualify as an aggravated felony and some of which would not, then the modified categorical approach applies, and we can look to documents, related to the crime as committed, to determine "which of the enumerated alternatives played a part in the [petitioner's] prior conviction, and then compare that element (along with all others) to those of the generic crime."[36]

         1. Quinteros's conviction was not a crime of violence under § 1101(a)(43)(F).

         Section 1101(a)(43)(F) employs the crime of violence definition from 18 U.S.C. § 16. The first IJ found that § 1959(a)(6) constituted a crime of violence as defined in § 16(b). Because the Supreme Court found that § 16(b) was unconstitutionally vague, the IJ's aggravated felony finding based on § 16(b) cannot stand.[37]

         Neither could Quinteros's conviction be a crime of violence under § 16(a), a ground the first IJ did not consider. Section 16(a) defines a crime of violence as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another."[38]Looking at the least culpable conduct, an individual could be convicted of conspiracy under 18 U.S.C. § 1959(a)(6) without the use, attempted use, or threatened use of physical force.

         2. Quinteros's conviction was not a conspiracy or attempt to commit a crime of violence under § 1101(a)(43)(U).

         Next, we determine if Quinteros was convicted of an aggravated felony under § 1101(a)(43)(U) for "an attempt or conspiracy to commit" a crime of violence.[39] Using the categorical approach, we compare the statute of conviction, § 1959(a)(6), with generic conspiracy as used in the INA, § 1101(a)(43)(U). A conviction under § 1959(a)(6) does not require an overt act in furtherance of the conspiracy.[40] We must determine whether the INA's generic definition of conspiracy requires an overt act. We hold that it does.

         The government argues that the BIA's interpretation of § 1101(a)(43)(U) is entitled to deference.[41] Generally, Chevron principles apply "to an agency's consistent interpretation of the statute it administers, "[42] including the INA.[43] "[T]he issue of Chevron deference to the BIA's evaluation of criminal statutes in light of the INA has generated some controversy and confusion."[44] We defer to the agency's reasonable interpretation of a statute only if the text of the statute is "unclear" and we cannot "discern congressional intent by utilizing various tools of statutory construction."[45]We find no reason to defer to the BIA here because the meaning of "conspiracy" in § 1101(a)(43)(U) of the INA is unambiguous when employing the ordinary tools of statutory construction.

         Where Congress has not specifically defined a word in a statute, we presume the common law definition applies.[46]But the presumption that a term be given its common-law meaning does not apply when the common law "meaning is obsolete or inconsistent with the statute's purpose."[47] In those instances, the approach taken "in the criminal codes of most states" replaces the common law definition.[48] We have stated before that, when determining the elements of the generic crime, we look to "the Model Penal Code (MPC), state laws, and learned treatises."[49] But "the most important factor in defining the generic version of an offense is the approach of the majority of state statutes defining the crime."[50] We therefore contrast the common law definition of conspiracy with the majority of states' definition of conspiracy and hold that conspiracy in § 1101(a)(43)(U) requires an overt act.

         At common law, the crime of conspiracy was complete upon the making of an agreement.[51] But now, the large majority of states also require an overt act.[52] So does the MPC.[53] Although some courts have continued to apply the common law definition, [54] the meaning of conspiracy has changed. The overt act requirement was an attempt to rein in expansive conspiracy liability, [55] "guarding against the punishment of evil intent alone, and . . . assur[ing] that a criminal agreement actually existed."[56] We think this change significant and apply the modern overt act requirement reflected in the statutes of a majority of states and the MPC. Because Quinteros's conviction under 18 U.S.C. § 1959(a)(6) does not require an overt act, his conviction is not a categorical match for conspiracy under the INA. Thus he is not an aggravated felon under Subsection U.

         3. Quinteros's conviction was not a racketeering offense under § 1101(a)(43)(J).

         The government has argued that we need not reach the question of whether Quinteros was convicted of an aggravated felony for purposes of § 1101(a)(43)(J). The Board noted in a footnote, without explaining its reasoning, that Quinteros's conviction was an aggravated felony under § 1101(a)(43)(J). Although DHS had included this charge in the Form I-851, this was not a ground that either the IJ or the BIA had previously addressed in the proceedings. Generally, "[w]hen deficiencies in the BIA's decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning."[57] But where, as here, the BIA has failed to conduct the categorical approach and the BIA's application of the categorical approach would not be accorded deference, we have considered the question de novo.[58] So too here.

         Quinteros's conviction for conspiracy to commit assault with a dangerous weapon is not an aggravated felony as defined in § 1101(a)(43)(J). Subsection J makes an aggravated felony any offense described in 18 U.S.C. §§ 1084, 1955, or 1962. Sections 1084 and 1955 deal only with gambling-related offenses-for which Quinteros's conviction cannot be a categorical match. This leaves offenses described in 18 U.S.C. § 1962, which fall under the general category of racketeering offenses. Although Quinteros's statute of conviction for conspiracy to commit assault with a dangerous weapon bears the title of "violent crimes in aid of racketeering activity," § 1959(a)(6) has little in common with the offenses in § 1962.

         Section 1962 has four subsections. Subsection (a) relates to receiving and investing money from a racketeering enterprise. Quinteros's conviction does not have as an element the investing of money. Subsections (b) and (c) require "a pattern of racketeering activity or collection of unlawful debt."[59] Racketeering activity is defined as "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical"[60] or any of a number of offenses defined in other statutes-of which § 1959 is not one. Nor does Quinteros's conviction under § 1959(a)(6) have as an element conduct that would meet the more general descriptions of racketeering activity. Lastly, subsection (d) criminalizes a conspiracy to violate the foregoing provisions of § 1962, but because Quinteros's conviction does not meet the requirements of subsections (a) through (c), he likewise could not have been convicted under § 1962(d). Thus, Quinteros's conviction is not a categorical match for any of the statutory offenses listed in § 1101(a)(43)(J) and is not an aggravated felony.

         C. The BIA erred in its CAT finding.

         Having determined that Quinteros did not commit an aggravated felony, we will remand this case to the Board. However, before remanding, we need to discuss the standard to be applied by the Board in determining state acquiescence. Quinteros argues that the Board erred in applying the standard we enunciated in Myrie[61] because the Board failed to make the required findings and applied the wrong legal standard for state acquiescence. Quinteros's argument that the Board applied the wrong legal standard for acquiescence is a legal challenge that we review de novo, [62] as is our review of the sufficiency of the Board's findings under the standard we enunciated in Myrie.[63]

         Quinteros also argues that the Board erred by ignoring evidence relevant to the Myrie analysis. Generally, an agency is required to consider "all evidence relevant to the possibility of future torture, "[64] but "the IJ and BIA need not 'discuss every piece of evidence mentioned by an asylum applicant.'"[65]Although it is usually sufficient to say, as the IJ did here, that "[a]ll evidence and testimony has been considered, even if not specifically addressed in the decision below, "[66] the agency "may not ignore evidence favorable to the alien."[67] And "[i]f [evidence] is to be disregarded, we need to know why."[68] We will examine whether the IJ ignored evidence under each prong of Myrie.

         Myrie set forth two prongs that the Board must answer when evaluating a CAT claim. First, the agency must determine "whether an applicant has met the burden of establishing that it is more likely than not [the alien] would be tortured if removed."[69] Second, the agency asks whether public officials will acquiesce in the likely treatment.[70] We will examine the errors under each prong of Myrie in turn.

         1. Errors under Myrie Prong 1

         Quinteros argues that the Board failed to determine what would likely happen to him upon his return to El Salvador and whether what would likely happen would constitute torture. Under prong one, the agency determines whether an alien would likely be "tortured if removed."[71] Answering that question requires two steps: (1) the agency must examine "what is likely to happen to the petitioner if removed" and (2) the agency must decide whether "what is likely to happen amount[s] to the legal definition of torture."[72]

         Quinteros argues that the Board erred in ignoring numerous pieces of evidence in evaluating his CAT claim. In reversing the IJ's finding that Quinteros would likely be tortured or killed in El Salvador, the Board made three findings. First, the Board concluded that Quinteros had not shown that he was likely to "be identified either as a current or former gang member."[73] Second, the Board found that his tattoo was not likely to be discovered because it can be covered while in public. And third, the Board concluded that there was insufficient evidence that a New York Yankees tattoo was a recognized gang symbol.

         The Board erred in ignoring evidence about Quinteros's tattoo. The Board concluded that gang members would not be able to identify Quinteros based on his tattoo because his tattoo could be covered by clothing. But the Board made no mention of the practice that Quinteros, Dr. Boerman, and the Harvard study discussed: Police and gangs force suspected gang members to strip down so they can search them for tattoos. The Board also erred in ignoring evidence about the significance of Quinteros's tattoo. The Board stated that Quinteros had not introduced evidence "[a]part from his own testimony and the testimony of his expert witness" regarding the ...


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