on September 24, 2019
Petition for Review of an Order of the Board of Immigration
Appeals (Agency No. A079-029-001) Immigration Judge: John P.
C. Andrews (ARGUED) Kirkland & Ellis,
Nathanael P. Kibler, Baker Donelson Bearman Caldwell &
Berkowitz Counsel for Petitioner
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
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.
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.
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." No assault took place.
Quinteros later pled guilty to conspiracy to commit assault
with a dangerous weapon. He was sentenced to thirty
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
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.
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).
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.
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."He testified that he knows seventy other
gang members, who have been deported to El Salvador, and has
cousins in MS-13.
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.
Dr. Boerman's Testimony
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
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." Some researchers believe
that the supposed truce actually strengthened the gangs and
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,
" 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.
Boerman also described a "'disconnect' between
official policy and actual practice." For example,
although trained on human rights, some "officers have
sought permission to form groups that carry out
assassinations as an official state
function." According to Dr. Boerman, the Salvadoran
government no longer investigates police killings of gang
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." The police or a gang would interpret that
tattoo "as gang related." Efforts to remove the
tattoo would result in scarring that would likewise raise
suspicions of gang affiliation.
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" 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."
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.
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, in order to determine if the Salvadoran
government, more likely than not, would acquiesce in
Quinteros's torture by gang members
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. 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.
appealed to the Board. While his appeal was pending, the
Supreme Court in Sessions v. Dimayainvalidated 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. 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). To accept such logic
would render it impossible for anyone in such a situation to
challenge their status before the BIA.
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."
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.
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." 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." We also review those portions of the IJ
decision that the Board adopts or defers to.
This Court has jurisdiction to consider whether Quinteros
was convicted of an aggravated felony.
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. Although
generally an alien is required to exhaust his administrative
remedies-a jurisdictional requirement-an agency
revives an alien's unexhausted claim when it sua
sponte considers an issue.Here, the first IJ sua
sponte determined that Quinteros's conviction was
for an aggravated felony under § 1101(a)(43)(F) and (U).
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.
we always retain jurisdiction to determine our own
jurisdiction. 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.'" 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."
Quinteros did not commit an aggravated felony.
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. Subsection (J) applies to several
racketeering offenses. Subsection (U) applies to an
"attempt or conspiracy to commit" an aggravated
determining whether a particular offense is an aggravated
felony, we apply the categorical approach. 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." 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
was convicted under 18 U.S.C. § 1959(a)(6). That section
(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 . . . ."
Quinteros's statute of conviction is "an
alternatively phrased statute," we must first
"determine whether its listed items are elements or
means." 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
Quinteros's conviction was not a crime of violence
under § 1101(a)(43)(F).
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
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."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.
Quinteros's conviction was not a conspiracy or attempt to
commit a crime of violence under § 1101(a)(43)(U).
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. 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. We must determine whether the INA's
generic definition of conspiracy requires an overt act. We
hold that it does.
government argues that the BIA's interpretation of §
1101(a)(43)(U) is entitled to deference. Generally, Chevron principles
apply "to an agency's consistent interpretation of
the statute it administers, " including the INA. "[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." 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."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.
Congress has not specifically defined a word in a statute, we
presume the common law definition applies.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." In those instances, the approach taken
"in the criminal codes of most states" replaces the
common law definition. 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." 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." 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.
common law, the crime of conspiracy was complete upon the
making of an agreement. But now, the large majority of states
also require an overt act. So does the MPC. Although some courts have continued to
apply the common law definition,  the meaning of conspiracy has changed.
The overt act requirement was an attempt to rein in expansive
conspiracy liability,  "guarding against the punishment of
evil intent alone, and . . . assur[ing] that a criminal
agreement actually existed." 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.
Quinteros's conviction was not a racketeering
offense under § 1101(a)(43)(J).
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." 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. So too here.
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.
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
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" 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.
The BIA erred in its CAT finding.
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 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,
 as is our review of the
sufficiency of the Board's findings under the standard we
enunciated in Myrie.
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, " but "the IJ and BIA need not
'discuss every piece of evidence mentioned by an asylum
applicant.'"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,
" the agency "may not
ignore evidence favorable to the alien." And "[i]f [evidence] is to be
disregarded, we need to know why." We will examine whether the IJ ignored
evidence under each prong of 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." Second, the
agency asks whether public officials will acquiesce in the
likely treatment. We will
examine the errors under each prong of Myrie in
Errors under Myrie Prong 1
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." 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."
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." 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.
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 ...