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Ruiz-Guerrero v. Whitaker

United States Court of Appeals, First Circuit

December 12, 2018

JOSEFINA ARELIS RUIZ-GUERRERO, Petitioner,
v.
MATTHEW G. WHITAKER, [*] ACTING UNITED STATES ATTORNEY GENERAL, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Eloa 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 respondent.

          Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.

          HOWARD, CHIEF JUDGE.

         Petitioner 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.

         I.

         Ruiz 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.

         Ruiz sought deferral of removal under the CAT.[1] 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.

         In 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.

         Therefore, 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 removal.

         An 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."

         The BIA 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 ...


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