PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
J. Celedon and Celedon Law on brief for petitioner.
Kathryn M. McKinney, Attorney, Office of Immigration
Litigation, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Stephen J. Flynn, Assistant
Director, Office of Immigration Litigation, on brief for
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
HOWARD, CHIEF JUDGE.
Josefina Arelis Ruiz-Guerrero ("Ruiz"), a native
and citizen of the Dominican Republic, appeals the order of
the Board of Immigration Appeals ("BIA" or
"Board") denying her request for deferral of
removal under the United Nations Convention Against Torture
("CAT"). After a careful review of the record, we
deny the petition.
first entered the United States in 2006. She was removed on
April 2, 2013, after a 2010 conviction in Massachusetts for
distribution of a controlled substance. She re-entered the
country on August 10, 2016, but was again arrested in
connection with a controlled substance offense. As a result,
her prior removal order was reinstated.
sought deferral of removal under the CAT. Her claim was
based on domestic abuse that she suffered at the hands of
Rafael Velázquez, her partner of fifteen years.
Velázquez lived with Ruiz in both the Dominican
Republic and the United States, but is currently residing in
the Dominican Republic after having been removed.
order to qualify for deferral of removal under the CAT, an
applicant must show that she is more likely than not to be
tortured upon return to her home country. 8 C.F.R. §
1208.17. The CAT defines "torture" as:
"[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a 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." 8 C.F.R. § 1208.18.
deferral applicants have a twofold burden. They must show (1)
that the harm they may suffer constitutes torture, and (2)
that the torture is more likely than not to occur upon
Immigration Judge ("IJ") found Ruiz to be credible
in describing her sustained abuse. Ruiz testified at her
merits hearing that she reported at least one instance of
abuse by Velázquez to the local police in the
Dominican Republic, but the police were unable to apprehend
him because he disappeared for about fifteen days. The IJ
also considered several documents regarding the pervasiveness
of violence against women in the Dominican Republic. The IJ
granted deferral of removal, saying that he lacked
"confidence that the applicant will not face a
likelihood of torture" upon removal and that he was
"not confident that the police would do anything to
prevent [Velázquez] from harming her."
reversed the IJ's determination, observing that the IJ
applied an incorrect legal standard. The BIA noted that
"[r]ather than determining whether the applicant met her
burden of proving a clear probability of torture by or at the
instigation of or with the consent or acquiescence" of
the government, the IJ merely considered whether he had
"confidence that [Ruiz] would not face torture if she
were to return to the Dominican Republic and whether the
police would protect her from her abuser." In applying
what it viewed as the proper CAT deferral standard, the Board
concluded that Ruiz did not meet her burden of establishing
that the government had acquiesced in her harm or would be
more likely than not to do so ...