Matter of E- A-, 26 I&N Dec. 1 (BIA 2012) and 3rd Cir remand


Published on

Published in: News & Politics, Travel
  • Be the first to comment

  • Be the first to like this

No Downloads
Total Views
On Slideshare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Matter of E- A-, 26 I&N Dec. 1 (BIA 2012) and 3rd Cir remand

  1. 1. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766 Matter of E-A-, Applicant Decided September 11, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threw stones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.FOR APPLICANT: Michael Lehach, New York, New York, EsquireFOR THE DEPARTMENT OF HOMELAND SECURITY: Megan A. Berry, AssociateLegal AdvisorBEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.MALPHRUS, Board Member: The applicant has appealed from a decision of the Immigration Judge datedNovember 17, 2008, denying his applications for asylum and withholdingof removal under sections 208(b)(1) and 241(b)(3)(A) of the Immigrationand Nationality Act, 8 U.S.C. §§ 1158(b)(1) and 1231(b)(3)(A) (2006), andfor protection under the Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment, adopted and opened forsignature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51,at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; forthe United States Apr. 18, 1988) (“Convention Against Torture”). TheImmigration Judge determined that the applicant had committed a seriousnonpolitical crime in Cote d’Ivoire prior to arriving in the United States, whichrendered him ineligible for the requested relief pursuant to sections208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Act and 8 C.F.R. § 1208.16(d)(2)(2012). The appeal will be dismissed. 1
  2. 2. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766 I. FACTUAL AND PROCEDURAL HISTORY The applicant, a native and citizen of Cote d’Ivoire, arrived in theUnited States on January 14, 2000, as a stowaway and claimed that he fearedbeing returned to his country. His case was referred to an Immigration Judge.1 In immigration proceedings, the applicant testified that he was a memberof the youth group of the Democratic Party of Cote d’Ivoire (“PDCI”) and wasemployed as a driver for the PDCI from 1994 to 1999. The applicant said thatin 1994, while the PDCI controlled the Government, he was among a groupof members who were sent “to make trouble” at events of the opposition party,the Ivoirian Popular Front (“FPI”), in an attempt to “taint the image” of the FPIamong the general public. He and others in the group dressed in a mannersimilar to members of the FPI and intermingled among them at public FPIdemonstrations. On five or six occasions in 1994, the applicant participated as a memberof this group while it burned passenger buses and cars, threw stones, pushedbaskets of food off the heads of merchants as they walked on the streets, andthrew merchandise off of merchants’ tables in the market. He testified thatno one was ever hurt as a result, even when they set fire to the busesand parked cars. He explained that they would force the buses to stopby constructing roadblocks of wood and then require the passengers to exitbefore setting the vehicles on fire, always making sure no one was left inside.The applicant also stated that he was afraid he would lose his job with theparty if he refused to participate. The applicant argues that his actions in Cote d’Ivoire did not rise to thelevel of a serious nonpolitical crime as contemplated by sections208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Act. He asserts that theImmigration Judge erred in finding that the political intentions of his actionswere outweighed by their criminal or common law nature, claiming that hisconduct consisted of minor acts of vandalism that were engaged in solely fora political purpose.1 The Immigration Judge initially denied the applicant’s applications for relief in a decisiondated November 30, 2000. The applicant’s appeal was dismissed by the Board on March 13,2002. The proceedings were subsequently reopened, further testimony was taken in 2003,and the Immigration Judge issued a decision on March 4, 2004, again denying the requestedrelief. We summarily affirmed that decision on October 20, 2005. Upon petition for review,the United States Court of Appeals for the Third Circuit granted the applicant’s petition andremanded for the Board to analyze whether the applicant had committed a seriousnonpolitical crime in Cote d’Ivoire and to consider the question of changed countryconditions. Ehoan v. Att’y Gen. of U.S., 209 F. App’x 103 (3d Cir. 2006). On August 13,2007, we remanded the record to the Immigration Judge for further proceedings. 2
  3. 3. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766 II. ANALYSIS A. Legal Standard Under the Act, an alien is barred from obtaining asylum and withholdingof removal when “there are serious reasons for believing that thealien committed a serious nonpolitical crime” before arriving in theUnited States. Section 208(b)(2)(A)(iii) of the Act (asylum); see also section241(b)(3)(B)(iii) (withholding of removal). We have explained that“[i]n evaluating the political nature of a crime, we consider it important thatthe political aspect of the offense outweigh its common law character. Thiswould not be the case if the crime is grossly out of proportion to the politicalobjective or if it involves acts of an atrocious nature.” Matter of McMullen,19 I&N Dec. 90, 97-98 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986). Thus, we first consider whether the criminal conduct is of “an atrociousnature.” Id. at 98. If not, we balance the seriousness of the criminal actsagainst the political aspect of the conduct to determine whether the criminalnature of the applicant’s acts outweighs their political character. INSv. Aguirre-Aguirre, 526 U.S. 415, 429-31 (1999). An analysis of the political nature includes an assessment whether (1) theact or acts were directed at a governmental entity or political organization,as opposed to a private or civilian entity; (2) they were directed towardmodification of the political organization of the State; and (3) there is a closeand direct causal link between the crime and its political purpose. SeeMcMullen v. INS, 788 F.2d 591, 597-98 (9th Cir. 1986), overruled on othergrounds by Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005);see also Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). “Even in a casewith a clear causal connection, a lack of proportion between means and endsmay still render a crime nonpolitical.” INS v. Aguirre-Aguirre, 526 432; see also Efe v. Ashcroft, 293 F.3d at 906 (finding that killing a policeofficer at a political demonstration was a serious nonpolitical crime becausethe conduct was disproportionate to the political objectives). The evaluationof a serious nonpolitical crime is conducted on a case-by-case basisconsidering the facts and circumstances presented. We interpret “serious reasons for believing” to be equivalent to probablecause, as have the circuit courts that have considered this question.Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011); Khouzam v. Ashcroft, 361F.3d 161, 165-66 (2d Cir. 2004). In this case it is undisputed that theapplicant’s testimony during the immigration hearing was sufficientto establish probable cause to believe that he was involved in the criminalconduct at issue. See Go v. Holder, 640 F.3d at 1053; Guo Qi Wang v. Holder,583 F.3d 86, 91 (2d Cir. 2009); see also Efe v. Ashcroft, 293 F.3d at 905-06. 3
  4. 4. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766 B. Application of the Legal Standard The applicant testified that he and others in his group threw stones, burnedbuses and cars, pushed baskets off the heads of merchants, and threwmerchandise off merchants’ tables. The actions described by the applicantinclude crimes generally recognized in the United States as assault, aggravatedassault, recklessly endangering another person, terroristic threats, arson, andcriminal mischief. See Model Penal Code §§ 211.1–.3, 220.1, 220.3 (Westlawthrough 2011). However, the conduct was not solely criminal in nature and was notdesigned simply to terrorize the public. Instead, it had some political characterand motive, because by appearing to be members of the FPI, the PDCI groupintended to tarnish the image of the opposition in the minds of the public andhelp prevent the opposition from coming to power. See Berhane v. Holder,606 F.3d 819, 823 (6th Cir. 2010) (stating that throwing rocks at the policein a show of force in opposition to the ruling government and in support of theopposition party’s principles established a political motive). Thus, contraryto the DHS’s argument, this is not a case where the criminal scheme had nopolitical aspect or political objective. INS v. Aguirre-Aguirre, 526 U.S. at 429. We agree with the applicant that the conduct in this case does not involveacts of an “atrocious nature” such as murder or terrorism. Cf. Matterof McMullen, 19 I&N Dec. at 98 (noting that terrorism in the form of randombombings of civilian targets is widely viewed as atrocious in nature).See generally Khouzam v. Ashcroft, 361 F.3d at 166 (holding that the applicanthad committed a serious nonpolitical crime where there was reason to believehe committed a murder in Egypt). However, weighing the seriousness of the criminal conduct against itspolitical nature, we conclude that the applicant’s criminal conduct wasdisproportionate to its political character and that he therefore committeda serious nonpolitical crime. Some of the acts, such as throwing rocks, wouldnot alone meet the definition of a serious nonpolitical crime. But whenconsidered together with the applicant’s other actions, particularly the burningof buses and cars, the activity reaches the level of serious criminal conduct thatwould trigger the bar under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii)of the Act.22 The weighing is a much easier task when there is no clear political motive to seriouscriminal conduct. See Guo Qi Wang v. Holder, 583 F.3d at 91 (noting that there is noindication that the applicant’s scheme to harvest and sell organs of deceased inmates hadany political aspect or political objective); Go v. Holder, 640 F.3d at 1052 (noting that theapplicant did not show that his drug trafficking offense had some political aspect or politicalobjective). 4
  5. 5. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766 The conduct in this case is similar to the aggregate actions foundto constitute a serious nonpolitical crime in INS v. Aguirre-Aguirre. There thealien and others within his group of party members burned buses, brokewindows, assaulted police, and attacked police cars in protest againstgovernment policies and actions. INS v. Aguirre-Aguirre, 526 U.S. at 421-22.Before setting fire to the buses, they ordered the passengers to leave, and thosewho refused were assaulted or tied with ropes. Id. The Supreme Courtaffirmed the Board’s conclusion “that the violence and destructiveness of thecrimes, and their impact on civilians, were disproportionate to [their]acknowledged political objectives.” Id. at 431. The primary difference in this case and INS v. Aguirre-Aguirre is that theapplicant testified that the group never caused physical injury to anyone,including the civilians removed from buses. However, serious physical harmto civilians is not required for a finding of a serious nonpolitical crime. Evenif all the passengers were removed from the vehicles unharmed, this does notin itself undercut the serious nature of the crimes. We consider not only what actually resulted from the fires, but also thedanger and risk that is inherent in acts of arson. The burning of transit vehiclesand private cars on public streets after forcing out the occupants was highlydangerous conduct that placed innocent people at substantial risk of deathor serious bodily injury. See generally United States v. Farish, 535 F.3d 815,825 (8th Cir. 2008) (stating that for purposes of the Sentencing Guidelines,starting fires in homes created a substantial risk of death or serious bodilyinjury to people, even though no one was inside at the time or was actuallyinjured by the fires). The fact that civilians were placed at risk of serious harmis a significant consideration in our analysis. See Matter of McMullen, 19 I&NDec. at 98 (viewing “the civilian status of the victims as significant”).3 Moreover, the PDCI group’s destructive behavior would very likely bedisruptive to the day-to-day living and economic activity of the public at largein a country such as Cote d’Ivoire, which has a challenging economic climateand where a large informal sector of the economy consists of many smallfarms, roadside and street side shops, and urban workshops. See, e.g., the3 We have also found burglary and robbery to be serious nonpolitical crimes. See Matterof Ballester-Garcia, 17 I&N Dec. 592, 595-96 (BIA 1980), modified on other grounds,Matter of Gonzales, 19 I&N Dec. 682, 685 n.3 (BIA 1988); Matter of Rodriguez-Palma,17 I&N Dec. 465, 469-70 (BIA 1980), modified on other grounds, Matter of Gonzales,19 I&N Dec. 682, 685 n.3 (BIA 1988). It is relevant in assessing the serious criminal natureof these offenses that they are not simply minor property offenses but, instead, involvea substantial risk of violence and harm to persons. 5
  6. 6. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State,Cote d’Ivoire Country Reports for Human Right Practices – 2006 (March 6,2007), available at,included in the record of proceedings. In Cote d’Ivoire it would be much moredifficult to replace the property that was damaged, including buses andpersonal vehicles, than in, for example, the United States or Canada, and theeconomic and psychological impact of the loss on the public would have beensignificantly more detrimental. See generally INS v. Aguirre-Aguirre, 526U.S. at 421 (noting that “the amount of bus fare represents a significant portionof many Guatemalans’ annual living expense, and a rise in fares may imposesubstantial economic hardship”). While the PDCI group’s conduct had an overall political objectiveof damaging the reputation of the opposition party, its disruptive acts were notdirected at deterring oppressive action of a ruling governmental entity. Forexample, the group was not trying to prevent the Government from disruptingan opposition political rally. Instead, the harmful acts were aimed at membersof the general public, who did not appear to be allied with any particularpolitical party. In addition, the group’s method of attempting to taint the reputation of theFPI party is not a typical form of political activity that would likely havea clear, direct impact, so the political character of the group’s activityis lessened. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 754-55 (8th Cir.2004) (affirming an Immigration Judge’s finding of a serious nonpoliticalcrime where the applicant “was involved in burning buses which served thecivilian population,” because although the protests involved politicalissues, “burning civilian buses was not a direct attack upon governmentactivities”). Although the criminal conduct here was similar to that in INSv. Aguirre-Aguirre, the link between the crime and the political purpose is lessclear and direct. In that case, the protests were in direct oppositionto specific government policies regarding the cost of public transportationin an impoverished nation. The “political” action of the PDCI group wassimply to try to discredit the FPI party in the minds of the public by engagingin deceptive misconduct that the group hoped would be attributed to theopposing party. The applicant argues that his actions cannot be considered a serious crimebecause he should only be held responsible for pushing merchandise off theheads of merchants, which is all that he admitted to personally engagingin during the last hearing on March 13, 2008. However, this is not consistentwith the Immigration Judge’s 2008 decision, where she found thathe “participated” in all of the activities. Specifically, she stated: “In priortestimony [in May 2003], Applicant admitted that he threw stones, burnedbuses and cars, pushed baskets off the heads of merchants, and threw 6
  7. 7. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766merchandise off merchants’ tables. During testimony at the March 13, 2008hearing, the applicant testified again he participated in these activities.” Shethen assumed for the sake of argument that he participated in these activitiesonly five or six times in total, as he had admitted in 2008, as opposed to overa 5- to 6-year period, as he had testified during the prior hearing in 2003. Shedid not change any other factual findings, including her prior determinationthat he had personally engaged in all of the activities.4 Moreover, the applicanthas not shown that the Immigration Judge’s factual findings are clearlyerroneous. In any event, the applicant was not a mere bystander during these eventsand was not simply a group member who was absent and disengaged fromthese activities while they were being perpetrated.5 His involvement andparticipation in the group’s criminal acts materially contributed to its abilityto accomplish the destructive behavior. Additionally, we are unpersuaded by the applicant’s claims that he wasforced to assist in these acts because he was being watched by party leaders.See Urbina-Mejia v. Holder, 597 F.3d 360, 369 (6th Cir. 2010) (affirming thefinding that the applicant was not coerced into committing serious nonpoliticalcrimes as a member of a gang while a juvenile).6 His claimed fear of losinghis job or being thrown in prison if he did not participate was speculative and4 The applicant changed his testimony in 2008, not only as to the number of timeshe participated in the group’s conduct, but also as to the extent of his direct personalinvolvement in its activities. Specifically, in 2003 he said he put wood on the road and setfire to the buses. But he later changed his testimony to say that he did not personally “setfire to a bus,” although he continued to admit that he “was part of the group who wasburning” buses. The applicant’s only explanation for this change was a general assertionthat the interpretation of his prior testimony must have been erroneous. However, theImmigration Judge was not required to adopt that explanation. See Matter of D-R-, 25 I&NDec. 445, 455 (BIA 2011). This is especially true here because the Immigration Judge hadthe interpretation in the prior transcript evaluated for accuracy and concluded that it wascorrect. Moreover, the evidence only need establish probable cause to conclude that theapplicant engaged in these activities. This is not a high threshold, and it was clearly metbased on his 2003 testimony.5 As noted, the applicant claimed in his 2008 testimony that he did not personally “set fireto a bus,” but he still conceded that he “was part of the group who was burning” buses andsaid he was “present” and “in the group” of “people doing this” to buses, as well as to cars.6 The analysis of the criminal nature of the applicant’s conduct could be different if the factsindicated that he was acting in self-defense by, for example, fighting back when beatenby police during a political demonstration. See Berhane v. Holder, 606 F.3d at 825; cf. Efev. Ashcroft, 293 F.3d at 906 (rejecting the claim of self-defense, which was belied by thefact that the applicant left a demonstration, found a knife at a house, and returned to killan officer). However, self-defense is not an issue in this case. 7
  8. 8. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766not based on any specific, credible threat or any evidence that such actions hadbeen carried out on others similarly situated to him. The applicant’sgeneralized fear is not sufficient to show that he would have suffered anydire consequences, such as serious physical harm or economic persecution,if he had refused to participate in the group. Moreover, his expressed concernover losing his employment with the party if he did not participate in thecrimes indicates an economic motivation, which further undermines the extentof the political nature of his conduct. Finally, the applicant’s claim that he has a well-founded fear of persecutionis not a factor in determining whether he has committed a serious nonpoliticalcrime. INS v. Aguirre-Aguirre, 526 U.S. at 425-28. It is the political natureof the activity, not the risk of persecution, that is balanced against the alien’scriminal conduct. Id.; see also Matter of Rodriguez-Coto, 19 I&N Dec. 208,209-10 (BIA 1985), modified on other grounds, Matter of Gonzales, 19 I&NDec. 682, 685 n.3 (BIA 1988). Moreover, a serious nonpolitical crime analysisunder the Act is not governed by the provisions of the Office of the UnitedNations High Commissioner for Refugees, Handbook on Procedures andCriteria for Determining Refugee Status Under the 1951 Convention and the1967 Protocol Relating to the Status of Refugees (Geneva, 1992). INSv. Aguirre-Aguirre, 526 U.S. at 427-28; see also Matter of Q-T-M-T-, 21 I&NDec. 639, 649-50 & n.5 (BIA 1996) (noting that the Handbook is advisory butis not binding). III. CONCLUSION In summary, our inquiry in this case is whether the applicant’s criminalconduct is disproportionate to, and thus outweighs, its political nature. INSv. Aguirre-Aguirre, 526 U.S. at 430-31. We conclude that there was somepolitical character to the applicant’s conduct. As a member of a PDCI group,he burned passenger buses and cars, threw stones, and disrupted the economicactivity of merchants in the market, while pretending to be members of the FPIparty, in an attempt to discredit the opposition political party. Although therewere some political aspects to these actions, they were also, in fact, crimesagainst persons and property. When considered separately, many of theseindividual acts would not reach the level of a serious nonpolitical crime.However, the circumstances and cumulative effect of the multiple violent,destructive, and destabilizing acts, particularly the intentional acts of arson thatplaced innocent civilians at risk of serious harm, are sufficient to trigger theserious nonpolitical crime bar. Each case must be viewed based on its own facts, and we consider thecircumstances of this case to be at the outer limits of what would constitutea serious nonpolitical crime. But based on the totality of the record, we agree 8
  9. 9. Cite as 26 I&N Dec. 1 (BIA 2012) Interim Decision #3766with the Immigration Judge that the criminal nature of the applicant’s conductoutweighs its political character. INS v. Aguirre-Aguirre, 526 U.S. at 428-30.We therefore conclude that the applicant is ineligible for asylum, withholdingof removal, and withholding under the Convention Against Torture. Sections208(b)(2)(A)(iii), 241(b)(3)(B)(iii) of the Act; 8 C.F.R. § 1208.16(d)(2). An alien who is found to have committed a particularly serious crime is notprecluded from seeking deferral of removal under the Convention AgainstTorture. See 8 C.F.R. § 1208.17 (2012). In remanding this case, the ThirdCircuit determined that substantial evidence in the record supported theImmigration Judge’s finding on March 3, 2004, that the Cote d’IvoireGovernment would not likely torture the applicant or acquiescence in historture. During oral argument, the applicant withdrew this application,conceding that current country conditions in Cote d’Ivoire would not supporta grant of relief on this basis. Accordingly, the applicant’s appeal will be dismissed. ORDER: The appeal is dismissed. 9
  10. 10. NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 05-5091 ________________ AMANLAMAN EHOAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent ________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A77 626 810) ________________ Submitted Under Third Circuit LAR 34.1(a) October 10, 2006 BEFORE: RENDELL, AMBRO and ROTH, Circuit Judges (Filed: December 20, 2006) ________________ OPINION ________________PER CURIAM Amanlaman Ehoan, a native and citizen of Cote d’Ivoire, arrived in the United
  11. 11. States in 2000 and sought political asylum and withholding of removal. The ImmigrationJudge (“IJ”) denied relief, and in 2002 the Board of Immigration Appeals (“BIA”)affirmed. Thereafter, the BIA granted Ehoan’s motion to reopen the removal proceedingsand the IJ heard additional evidence in support of Ehoan’s application. The IJ found thatEhoan had committed “serious non-political crimes” and therefore was ineligible forasylum and withholding of removal. The IJ also found that Ehoan had not satisfied hisburden of proving eligibility for a deferral of removal. The BIA summarily affirmedwithout opinion.1 I. A petitioner is subject to the mandatory denial of his application for asylum andwithholding of removal if there are “serious reasons for believing that [he] has committeda serious nonpolitical crime” in another country prior to his arrival in the United States. 8U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii). The BIA generally defines “seriousnonpolitical crime” as conduct in which the criminal nature of the offense outweighs itspolitical aspects. Matter of McMullen, 19 I. & N. Dec. 90, 97-98 (BIA 1984);Immigration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 429 (1999)(approving of McMullen test). This “formulation does not purport to provide acomprehensive definition, . . . and the full elaboration of [the] standard . . . await[s]further cases . . . .” Aguirre-Aguirre, 526 U.S. at 429. 1 As we write primarily for the parties, we will discuss below only those facts relevantto the disposition of this case. 2
  12. 12. Although we recognize that the BIA may issue summary affirmances withoutopinion, it must do so pursuant to its regulations and its decision to summarily affirm issubject to judicial review. See Smriko v. Ashcroft, 387 F.3d 279, 295-96 (3d Cir. 2004).The regulations permit a BIA member to affirm without opinion if the “issues . . . aresquarely controlled by existing [BIA] or federal court precedent and do not involve theapplication of precedent to a novel factual situation” or if the “factual and legal issues . . .are not so substantial that the case warrants the issuance of a written opinion.” 8 C.F.R. §1003.1(e)(4)(i). Neither condition was satisfied in this case. We have not found anycases with facts sufficiently close to those presented here—particularly given thatEhoan’s activities, unlike those at issue in Aguirre-Aguirre, did not involve physicallyharming anyone —to warrant a finding that the case is “squarely controlled” by priorprecedent. Aguirre-Aguirre, 526 U.S. at 429. In addition, the Supreme Court stated inAguirre-Aguirre that this area of law is only partially developed. Id. Also the issue inthis case is not insubstantial. As stated by the Supreme Court: judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations. A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions. 3
  13. 13. Aguirre-Aguirre, 526 U.S. at 425.2 Accordingly, we conclude that the BIA’s decision to affirm without issuing awritten opinion, given the specific circumstances of this case, was arbitrary andcapricious. See Smriko, 387 F.3d at 296. We will therefore grant the petition for reviewas to the asylum and withholding of removal claims and remand to the BIA for furtherproceedings.3 II. A petitioner subject to the mandatory denial of withholding of removal shall begranted a temporary deferral of removal to the proposed country of removal if he isotherwise entitled to protection under the Convention Against Torture (“Convention”). 8C.F.R. § 1208.17(a). To be entitled to protection under the Convention, a petitioner mustdemonstrate that it is more likely than not that he will be tortured if removed to thecountry of proposed removal. 8 C.F.R. § 1208.16(c)(2). Torture is an extreme form ofcruel and inhuman treatment “inflicted by or at the instigation of or with the consent oracquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. §1208.18(a)(1). Acquiescence requires that “prior to the activity constituting torture, [theofficial has] awareness of such activity and thereafter breach[s] his . . . legal 2 For these reasons, we decline to consider overlooking the improper streamlining andreviewing the IJ’s decision on the merits. See Smriko, 387 F.3d at 296, n.11 (recognizingthat other courts have found that in some cases it makes no practical difference whetherthe BIA improperly streamlined its review). 3 We express no opinion as to Ehoan’s eligibility for asylum and withholding ofremoval. 4
  14. 14. responsibility to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). Ehoan testified that in 1990, while a member of the Democratic Party of CotedIvoire (“PDCI”), he was abducted by soldiers who were supporters of the Front PopulairIvoirien (“FPI”), an opposing party. A.R. 129-132. Ehoan was beaten and raped by thesoldiers and forced to lie down on a hot road and stare at the sun in the middle of theafternoon. A.R. 133-38. Later, Ehoan’s uncle, an army commander, came to the site.A.R. 139. The soldiers learned that Ehoan was the commander’s nephew, and Ehoan wasreleased. A.R. 140. Ehoan’s uncle subsequently told Ehoan that he did not report theincident to the soldiers’ superiors because once the soldiers knew they had beenidentified, they would seek to catch Ehoan again and kill him. A.R. 141-42.Nonetheless, Ehoan’s uncle told Ehoan that he would not be harmed again, and Ehoanwas not harmed prior to leaving Cote d’Ivoire. A.R. 150-51, 157-58. The IJ found thatEhoan had not demonstrated that the rape was inflicted by or at the instigation oracquiescence of government officials. A.R. 102-03. We review the IJ’s factual findings under the substantial evidence standard,4whereby the findings are upheld “unless any reasonable adjudicator would be compelledto conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d379, 381 (3d Cir. 2005). We have reviewed the record and find that the IJ’s finding about 4 Unlike the finding that Ehoan had committed a ‘serious non-political crime’, thisclaim does not present a “novel factual situation” or raise an issue that necessarilywarrants a written opinion by the BIA. Accordingly, we will review the IJ’s opinion. Cf.Smriko, 387 F.3d at 296. 5
  15. 15. the lack of involvement or acquiescence by the government is supported by substantialevidence such that a reasonable adjudicator would not be compelled to find otherwise.Furthermore, Ehoan’s reliance on Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) ismisplaced. In Khouzam the court noted that the “routine nature” of the torture by policeacting in their private capacities in conjunction with the criminal justice system providesevidence that higher-level officials acquiesced in the conduct. Id. at 171. In this case, noevidence was provided that FPI soldiers routinely raped PDCI members. The IJ, however, failed to address the evidence that Ehoan submitted showing thatconditions had changed in Cote d’Ivoire so as to increase the likelihood that he would besubjected to torture upon his return. Reading the transcript of the IJ hearing, it appearsthat there was some confusion as to whether the BIA granted the motion to reopen on thebasis of this evidence, as the only evidence that the BIA addressed in its order regardedEhoan’s 1990 rape. The record shows that Ehoan submitted evidence of changedconditions with the motion to reopen, that he addresses those conditions in the motionitself, and that the BIA did not affirmatively indicate that it was only partially grantingEhoan’s motion. Moreover, the IJ admitted changed conditions evidence in her hearingafter the BIA reopened the case. As we have held, we simply cannot meaningfullyreview the IJ and BIA’s decisions when they fail to address key issues. See Cruz v. Att’yGen. of the U.S., 452 F.3d 240, 248-49 (3d Cir. 2006). Accordingly, we will also grant the petition for review as to the deferral of 6
  16. 16. removal claim.5 5 We express no opinion as to the merits of Ehoan’s claim that subsequent eventsindicate that he will be tortured upon his removal. 7