Family hardship caused by removal from the U.S.

United States 3rd Circuit Court of Appeals Reports

SILVA-RENGIFO v. ATTORNEY GENERAL, 04-4302 (3rd Cir.
1-9-2007) CARLOS SILVA-RENGIFO, Petitioner v. ATTORNEY
GENERAL OF THE UNITED STATES; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY Respondents. Nos. 04-4302, 05-3423.
United States Court of Appeals, Third Circuit. Argued
September 27, 2006. Opinion filed: January 9, 2007.

Consolidated Petitions for Review of a Final Order of
Removal From the Board of Immigration Appeals (A18 103
088).

ALEXANDER E. EISEMANN, ESQ. (Argued), South Salem, NY,
Attorney for Petitioner.

JONATHAN POTTER, ESQ. (Argued), DOUGLAS E. GINSBURG, ESQ.,
MARK S. DES NOYER, ESQ., WILLIAM C. PEACHEY, ESQ., U.S.
Department of Justice, Ben Franklin Station Washington,
D.C., Attorneys for Respondent

Before: McKEE and AMBRO, Circuit Judges, and RESTANI,[fn*]
Judge.

[fn*] Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by
designation.

OPINION

McKEE, Circuit Judge.

Carlos Silva-Rengifo petitions for review of an en banc
decision of the Board of Immigration Appeals denying his
motion to reopen. The government did not initially oppose
that motion. However, after the Board granted permission to
reopen, the government petitioned for en banc review by the
entire Board. The BIA’s en banc decision reversed the
decision to allow Silva-Rengifo to reopen his motion. The en
banc Board held that Silva-Rengifo had not established a
prima facie case for relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the “Convention” or the
“CAT”) because he had not shown governmental acquiescence in
the torturous conduct. For the reasons that follow, we will
reverse the BIA’s en banc decision and remand to the BIA
for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Silva-Rengifo, a 47-year-old husband and father of three,
entered the United States as a lawful permanent resident in
1968 when he was only 11 years old, and he has lived here
continuously for the past 38 years. In 1990, he was
convicted of possession of cocaine with intent to
distribute in state court in New Jersey, for which he was
sentenced to a period of incarceration of three and
one-half years.

As a result of that conviction, removal proceedings began
against him in June 1991. In 1993, after a full hearing, an
Immigration Judge found him removable and denied his
application for section 212(c) hardship relief.[fn1] The IJ
considered the equities that Silva-Rengifo presented, but
concluded that the equities and the evidence of family
hardship that would be caused by removal did not justify
relief under section 212(c). Silva-Rengifo appealed the
IJ’s decision to the BIA. The BIA rejected his appeal in
December 1993. Although the BIA held that Silva-Rengifo was
removable in 1993, the INS took no steps to remove him for
several years. Seven years later, on November 29, 2000, the
INS issued a Form I-166, or “bag-and-baggage” letter
(requiring aliens with final removal orders to report for
deportation by a specified date) implementing the BIA’s
1993 decision.

On July 26, 2001, Silva-Rengifo was arrested on a warrant
that issued after he failed to appear in response to the
Bag and Baggage letter.[fn2] Almost immediately thereafter,
on July 31, 2001, he filed a motion with the BIA asking it
to reopen or reconsider the 1993 decision so that he could
produce evidence that would establish his eligibility for
relief under the CAT. He argued that, due to changed
country conditions since the IJ’s 1993 decision, he would
face an unacceptable risk of death or serious injury if
removed to Colombia. The record before the Board included
documentary evidence of the changed country conditions,
including evidence of human rights abuses and extrajudicial
killings carried out by the government, kidnapings by
paramilitary and guerilla forces, and cooperation or
collusion between such groups and the government.[fn3]

The BIA granted the motion to reopen in part, and denied it
in part. The Board relied on St. Cyr, 533 U.S. 289 (2001)
to deny reopening Silva-Rengifo’s section 212(c)
application to present additional evidence of his
rehabilitation during the seven years since the initial BIA
decision. However, the Board granted the request for
consideration of relief under the CAT. The Board explained:

He also wishes the hearing to be reopened so that he can
apply for asylum and withholding of deportation to
Colombia. . . . [He] is barred . . . from filing an asylum
or CAT application unless he can show changed
circumstances in his country of nationality or
extraordinary circumstances relating to the delay.

* * *

The respondent has demonstrated changed circumstances in
his country of nationality. The background information
demonstrates a significant deterioration in society since
his hearing. His claim that he belongs to a persecuted
social group of foreign nationals or those perceived to
be foreign nationals is supported by the reports submitted
with this motion. Therefore, we find he has made a prima
facie case of a well-founded fear of persecution to
qualify for asylum. However, there is little evidence that
the government acquiesces in torture; this issue should
be developed at the hearing regarding whether he has not
demonstrated a (sic) eligibility for relief under the
Convention Against Torture. See Matter of S-V-, Interim
Decision 3430 (BIA 2000).

App. at 50. The Board thereafter entered an order granting
Silva-Rengifo’s motion to reopen, and remanded the appeal to
the IJ for further proceedings consistent with its opinion.

The government responded to the BIA’s partial grant of
relief by petitioning for en banc reconsideration of the
BIA’s order. As summarized in the BIA’s en banc decision,
the Department of Homeland Security (“DHS”) argued that
Silva-Rengifo’s application for relief was untimely, and
that he had not “set forth a prima facie case for
eligibility under the CAT since he did not show that he was
more likely than not to face torture by those acting with
the consent or acquiescence of public officials.” (citing 8
C.F.R. §§ 1208.18(a)(1),(7)).

The en banc Board rejected DHS’s claim that Silva-Rengifo’s
motion to reopen was untimely, stating: “We stand by our
previous finding that the respondent can demonstrate
changed country conditions as a basis for justifying the
late filing of his application for relief.” App. at 38.
(BIA en banc Decision 2004). However, the en banc Board
nevertheless held that allowing Silva-Rengifo to reopen was
error because he had not established that the Colombian
government acquiesces to torture. The Board explained:

The respondent, however, did not provide evidence of his
prima facie eligibility for relief under the Convention
Against Torture because he failed to show that any harm
that might befall him in Colombia would be meted out by
the government or by those acting with the consent or
actual acquiescence of the government. 8 C.F.R.
§§ 1208.18(a)(1), (7). Protection under the
Convention Against Torture does not extend to those who
are harmed by groups that the government is unable to
control. See Matter of S-V-, 22 I & N Dec. 1306 (BIA
2000).

App. at 38 (BIA en banc Decision 2004) (emphasis added). The
Board concluded that “because the record contain[ed] little
evidence that the [Colombian] government acquiesces in
torture of those perceived to be foreign, the respondent
has failed to demonstrate prima facie eligibility for
relief under the Convention Against Torture, and,
therefore, the motion to reopen should have been denied.”
Id. at 38-39 (internal quotation marks omitted).

Silva-Rengifo then filed the instant petition for review of
the en banc decision. He also filed for habeas corpus
relief in the United States District Court for the District
of New Jersey. He raised the following five claims for
relief in his petition for review: (1) the government had
waived any challenge to his prima facie case by failing to
initially oppose his motion to reopen; (2) the BIA erred in
concluding that he had not established a prima facie case;
(3) he was wrongly precluded from introducing additional
evidence of his rehabilitation and seeking reconsideration
of the BIA’s 1993 decision; (4) the INS was precluded from
enforcing the initial order of removal because of laches
and/or equitable estoppel; and (5) his underlying
conviction should not be considered an “aggravated felony”
for immigration purposes.

Pursuant to a motion by the government, Silva-Rengifo’s
habeas petition was transferred from the district court to
this court under the REAL ID Act of 2005, Pub.L. No.
109-13, div. B, 119 Stat. 231 (2005) (the “REAL ID Act”).
His original petition for review is consolidated with the
habeas petition which we must treat as a petition for
review, and both are now before us. Kamara v. Att’y Gen.,
420 F.3d 202, 210 (3d Cir. 2005).

II. JURISDICTION AND STANDARD OF REVIEW

A. Jurisdiction

Under the REAL ID Act, a petition for review is now the
exclusive means of judicial review of all orders of removal
except those issued pursuant to 8 U.S.C. §
1225(b)(1). See 8 U.S.C. § 1252(a)(5) (2005).
Moreover, all habeas corpus petitions filed by aliens
seeking relief from removal that were pending in the
district courts on the date the REAL ID Act became
effective (May 11, 2005) were converted to petitions for
review and transferred to the appropriate court of appeals.
See 8 U.S.C. § 1252(a)(5); see also Hernandez v.
Gonzales, 437 F.3d 341, 344 (3d Cir. 2006).[fn4]

Accordingly, we now have before us two petitions for
review. The first is the petition for review that
Silva-Rengifo filed in this court seeking review of the
BIA’s en banc denial of his motion to reopen. As noted,
there, the en banc Board denied the motion based upon its
conclusion that he had not demonstrated prima facie
eligibility for relief under the CAT. The second is the
converted habeas petition that Silva-Rengifo originally
filed in the district court, challenging the
constitutionality of the removal proceedings.

B. STANDARD OF REVIEW

Although Silva-Rengifo’s habeas corpus petition has now
been converted to a petition for review, our standard of
review remains the same. “A review for ‘constitutional
claims or questions of law,’ as described in §
106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. §
1252(a)(2)(D), mirrors our previously enunciated standard
of review over an alien’s habeas petition.” Kamara, 420
F.3d at 210-11. Thus, we review Silva-Rengifo’s
constitutional and legal questions de novo, id., but defer
to the BIA’s reasonable interpretations of statutes it is
charged with administering. INS v. Aguirre-Aguirre, 526
U.S. 415, 424 (1999); Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

The same standard applies to Silva-Rengifo’s petition for
review under the REAL ID Act. Prior to enactment of the
REAL ID Act, we would not have had jurisdiction to review
Silva-Rengifo’s claim because an alien who was removable
because of a conviction for an aggravated felony was
statutorily barred from petitioning a court of appeals for
review of the BIA’s finding that he was ineligible for CAT
relief. See 8 U.S.C. § 1252(a)(2)(c). However, the
REAL ID Act eliminated that barrier as to “constitutional
claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals.” See 8
U.S.C. § 1252(a)(2)(D); see also Kamara, 420 F.3d at
211 (noting that REAL ID Act’s jurisdictional grant
regarding appeals by aggravated felons extends not just to
legal determinations but also to application of law to
facts). Accordingly, we also afford de novo review to the
BIA’s en banc decision.

III. DISCUSSION

As noted above, the en banc BIA reversed the order
allowing Silva-Rengifo to reopen his case “because he
failed to show that any harm that might befall him in
Colombia would be meted out by the government or by those
acting with the consent or actual acquiescence of the
government.” App. at 38. (Citing 8 C.F.R. §§
1208.18(a)(1),(7), and its earlier decision in Matter of
S-V-, 22 I & N Dec. 1306 (BIA 2000)). Although
Silva-Rengifo raises four other issues in his petitions for
review, inasmuch as we will vacate the en banc decision
based upon its erroneous interpretation of the requirement
for governmental “acquiescence” under the CAT, we need not
rule on his remaining claims. Rather, we will dismiss them
without prejudice to Silva-Rengifo’s ability to raise those
arguments on remand to the Board.[fn5]

A. The Convention Against Torture

The United States signed the Convention Against Torture on
April 18, 1988, and the Senate ratified it on October 27,
1990. 136 Cong. Rec. S17, 486-501 (daily ed. Oct. 27,
1990). It became binding on the United States in November
of 1991, after President Clinton delivered the ratifying
documents to the United Nations. U.N. Doc. 571
Leg/SER.E/13.IV.9 (1995); Convention, art. 27(2). The
Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”) initiated the implementation of the Convention.
Pub.L. No. 105-277, div. G., tit. XXII, § 2242, 112
Stat. 2681-822 (codified at 8 U.S.C. § 1231 note).
That provision provides in part that “[n]o state [shall] . .
. expel, return (‘refouler’) or extradite a person to
another state where there are substantial grounds for
believing that he would be in danger of being subjected to
torture.” Id. Accordingly, it became “the policy of the
United States not to expel . . . or otherwise effect the
involuntary return of any person to a country in which there
are substantial grounds for believing the person would be
in danger of being subjected to torture. . . .” Id.; see
also Li v. Ashcroft, 312 F.3d 1094, 1103 (9th Cir. 2002).

“An applicant for relief on the merits under [Article 3 of]
the Convention Against Torture bears the burden of
establishing ‘that it is more likely than not that he or
she would be tortured if removed to the proposed country of
removal.'” Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d
Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). “The
United States Senate specified this standard, as well as
many of the other standards that govern relief under the
Convention, in the several ‘understandings’ that it imposed
on the United States’ ratification of the Convention
Against Torture.” Id. at 175 (citations omitted). Unlike
with asylum or withholding of removal, an alien seeking
relief under the CAT need not establish that he/she is a
“refugee” and therefore need not establish that torture is
inflicted “on account of” any protected status. See Amanfi
v. Ashcroft, 328 F.3d. 719, 725 (3d Cir. 2003) (“A petition
for protection under the Convention Against Torture differs
significantly from petitions for asylum or withholding of
removal because the alien need not demonstrate that he will
be tortured on account of a particular belief or immutable
characteristic.”). Rather, he/she must establish a
likelihood of being subjected to torturous acts 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(a)(1)
(2006) (emphasis added).

“Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her
legal responsibility to intervene to prevent such
activity.” 8 C.F.R. § 1208.18(a)(7). If an alien
produces sufficient evidence to satisfy that burden,
withholding of removal or deferring of removal is
mandatory. 8 C.F.R. §§ 1208.16 § .18.
However, as shall become clear from our discussion, the
alien need not establish actual knowledge by government
officials of torturous conduct particular to the petitioner.

As noted at the outset, in denying Silva-Rengifo’s motion
to reopen, the en banc BIA reversed the Board’s 2001
decision. The en banc Board relied upon the language of
section 1208.18(a)(1) of the Convention’s implementing
regulations together with the Board’s decision in Matter of
S-V-, 22 I & N Dec. 1306 (BIA 2000). The Board reasoned
that Silva-Rengifo had not established that any torture he
might be subjected to “would be meted out by the government
or those acting with the consent or actual acquiescence of
the government,” and that the Convention “does not extend
to those who are harmed by groups the government is unable
to control.” App. at 38 (emphasis added).

We cannot accept the Board’s conclusion that the
acquiescence that must be established under the CAT
requires actual knowledge of torturous activity as required
in Matter of S-V-. Similarly, although a government’s
ability to control a particular group may be relevant to an
inquiry into governmental acquiescence under the CAT, that
inquiry does not turn on a government’s “ability to control”
persons or groups engaging in torturous activity. See, e.g.
Tunis v. Gonzales, 447 F.3d 547, 551 (7th Cir. 2006)
(finding the issue of the Sierra Leone government’s ability
to control torture by private individuals irrelevant where
the torturous activity — female circumcision
— was legal and well-known to the government, thus
concluding the applicant for relief under the CAT had
satisfied her burden). The CAT does not require an alien to
prove that the government in question approves of torture,
or that it consents to it. Rather, as the court concluded
in Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003),
an alien can satisfy the burden established for CAT relief
by producing sufficient evidence that the government in
question is willfully blind to such activities. See id.
(holding that Congress has made clear that the correct
inquiry under the Convention is whether an applicant can
show that public officials demonstrate “willful blindness”
to the torture of their citizens by third parties).[fn6] A
closer look at the decision in Zheng illustrates this
point.

Zheng, a native of China, petitioned for review of an
Immigration Judge’s decision denying his claim for relief
under the CAT. Zheng had introduced evidence that he had
been smuggled out of China by “snakeheads,” professional
smugglers who were part of “an enormous organization” that
was very powerful and pervasive. 332 F.3d at 1189. An
expert testified that people who failed to pay their debts
to those smugglers faced death or torture including
dismemberment. Id. at 1189 n. 5. Evidence showed that the
People’s Republic of China “would not protect” its citizens
from the wrath of snakeheads because “the existence of the
snakeheads as a criminal syndicate was not acknowledged by
[the government].” Id. Interceding on behalf of the
syndicate’s victims would be tantamount to an admission
that the syndicate existed and cause the government to
“‘lose face,’ which ‘the Chinese government simply [was]
not going to do . . .’.” Id. (ellipsis in original).

Zheng testified that he was beaten and tortured by the
snakeheads on board the boat bound for the United States
and that he had been a material witness against some of
these snakeheads in a criminal proceeding following his
arrival in the continental United States from Guam. Id. at
1189-90. He reported both the torture and the names of the
seamen involved in transporting him from China to Guam to
United States officials. Id. at 1190. After doing so, he
was approached by a snakehead while waiting to use the
restroom and told to be careful as he might “be dead for
sure.” Id. Although Zheng had not feared reprisal while
remaining under the protection of the United States
government, he testified that if returned to China he would
be killed or tortured by snakeheads or their associates and
he therefore requested withholding of removal under the
CAT. The IJ found that Zheng had testified credibly. Id. at
1191.

To establish that the Chinese government acquiesced in the
actions of the snakeheads, Zheng offered evidence of
collusion between snakeheads and government officials. This
included testimony about an instance where Zheng saw
snakeheads give three cartons of cigarettes to police at
the harbor before his group was allowed to board the boat
they were smuggled out on, and evidence of several
instances of socializing between government officials and
snakeheads. Id. at 1190-91. Zheng argued that this
established official participation in the smuggling.

The government opposed relief from removal, arguing that
Zheng’s testimony established nothing more than some
collusion between local government or provincial officials,
and that this did not establish acquiescence on the part of
the Chinese government. The government’s position was
strengthened by a State Department Country Report on China
stating that it appeared to be taking “active measures to
target people smugglers [and that]. . . . several scores of
people smugglers and [government officials] reportedly
[had] been convicted, fired from jobs, or expelled from the
Communist Party.” Id. at 1191.

The IJ rejected the government’s argument based upon his
conclusion that Zheng’s testimony established that the
government acquiesced to torture within the meaning of the
CAT. The IJ granted withholding of removal under the CAT,
explaining that Zheng’s evidence established “that the
government condones or at least is not willing to interfere
and, in a way, acquiesces to the smugglers’ conduct.” Id.
The INS appealed to the BIA. “The issue presented to the
BIA was whether [Zheng] failed to demonstrate acquiescence
of a public official or other person acting in an official
capacity as required by 8 C.F.R. 208.18.” Id. at 1191
(internal quotation marks omitted).

“The INS argued that the Chinese government turning a blind
eye to its citizens being smuggled out of the country was
not tantamount to acquiescence to torture.” Id. at 1192.
The INS attempted to rigidly compartmentalize the illegal
actions of the snakeheads by claiming that,

[e]ven if some Chinese police take bribes to let refugees
pass through checkpoints, this is a purely non-violent and
relatively benign offense. It does not raise any
inference whatsoever that such bribe-takers would be
amenable to violence; i.e., that with prior knowledge they
would allow the commission of acts of . . . torture. . . .

Id. (internal quotation marks and original brackets omitted,
emphasis in original). The BIA sustained the INS’s appeal,
relying upon its decision in Matter of S-V-. The BIA
concluded that even if factions within the Chinese
government colluded in the snakehead’s smuggling and took
no action to stop it, that did not establish that the
government acquiesced in torture. Zheng petitioned for
review to the Court of Appeals for the Ninth Circuit.

The resolution of Zheng’s petition for review “hinge[d] on
the interpretation of the term acquiescence as used in 8
C.F.R. 208.18.” Zheng, 332 F.3d at 1194 (emphasis in
original). The Court of Appeals rejected the rationale of
Matter of S-V-, and held that the Board’s interpretation of
“acquiescence” “impermissibly narrows Congress’ clear
intent in implementing relief under the Convention Against
Torture.” Id. The court concluded that Zheng did not have
to establish the government’s “actual knowledge” of
torturous conduct as Matter of S-V- required. Rather, the
court held that Zheng could establish the requisite
governmental acquiescence by showing that government
officials were willfully blind to the activities of the
snakeheads. We agree. We therefore reject the Board’s
reliance on Matter of S-V- here.

In Matter of S-V-, the BIA reviewed the removal order of a
Colombian national who was residing in the United States as
a lawful permanent resident when he was convicted of a
crime of violence. The Board concluded he was removable,
and the alien sought relief arguing that, if returned to
Colombia, “he would be in danger from nongovernmental
guerrilla, narcotrafficking, and paramilitary groups in
Colombia. . . . [He claimed that] the guerillas finance
their operations through kidnaping . . . [and] that he
would be a target for kidnapers because he [had] family in
the United States and [was] unable to speak Spanish
correctly.” 22 I & N Dec. at 1307. He submitted country
reports and newspaper articles “detailing the violence,
including kidnaping . . . [and] a Department of State
travel warning stating that United States citizens have
been the victims of threats, kidnaping, hijacking, and
murder. . . .” as well as other reports and documentation.
Id.

The BIA ruled that S-V- had not met his burden of
demonstrating that he was eligible for relief under the CAT
because he had not shown that the Colombian government’s
failure to protect its citizens “[was] the result of
deliberate acceptance of the guerillas’ activities.” Id. at
1313. The Board noted that torturous conduct must be
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.'” Id. at 1311 (quoting 8 C.F.R.
§ 208.18(a)(1)).

Zheng’s rejection of Matter of S-V- clarified the correct
standard for “acquiescence” as set forth in the legislative
history of the enactment of the CAT. A brief review of the
Convention’s implementing legislation confirms that
Congress intended that relief under the Convention not be
limited to situations where public officials have actual
knowledge of torturous activity.

The CAT was submitted to the Senate by President Ronald
Reagan for advice and consent on May 23, 1988. See S. Exec.
Rep. 101-30, at 35 (1990). Along with the Convention, the
President proposed 17 conditions, including an
understanding that acquiescence meant that the “‘public
official, prior to the activity constituting torture, [must]
have knowledge of such activity and thereafter breach his
legal responsibility to intervene to prevent such
activity.'” Khouzam v. Ashcroft, 361 F.3d 161, 170 (2d Cir.
2004) (emphasis added) (quoting S. Exec. Rep. 101-30, at 15
(1990)). However, upon review of the proposed conditions,
the Senate Foreign Relations Committee was concerned that
“knowledge” was too limiting and “created the impression
that the United States was not serious in its commitment to
end torture worldwide.” Id.; see also S. Exec. Rep. 101-30,
at 4 (1990). These concerns were addressed two years later
when the first President Bush administration submitted a
revised and reduced list of proposed conditions. Id. The
revised list contained an understanding of the definition
of acquiescence that required that an official have only
“awareness” of the torturous activity, rather than
“knowledge.” Id.

The Senate Foreign Relations Committee reported that this
change w as intended to make it clear that both actual
knowledge and ‘willful blindness’ fall within the
definition of the term ‘acquiescence.’ The Senate adopted
a resolution of advice and consent to ratification of the
Convention on October 27, 1990, subject to the revised
reservations, understandings, and declarations.

Khouzam, 361 F.3d at 170-71 (quotations and citations
omitted) (emphasis added). The regulations reflect this
intention. See C.F.R. § 208.18(a)(7) (requiring
awareness, not knowledge of torturous activity). Notably,
when President Clinton ultimately deposited the instrument
of ratification with the United Nations on October 21,
1994, he included the Senate’s understandings in the
instrument of ratification. See 1830 U.N.T.S. 320, 321
(1994).

As noted above, FARRA implements U.S. obligations under the
CAT. Pub.L. No. 105-277, div. G., tit. XXII, § 2242,
112 Stat. 2681-822 (codified at 8 U.S.C. § 1231
note). The first section of FARRA, § 2242(a),
contains a general statement of congressional policy not to
return persons to countries where there are substantial
grounds for believing the person would be in danger of
being subjected to torture.[fn7] The following section,
§ 2242(b), which substantively implements the
Convention, directs “the heads of the appropriate agencies”
to “prescribe regulations to implement the obligations of
the United States under Article 3 of the [Convention],
subject to any reservations, understandings, declarations,
and provisos contained in the United States Senate
resolution of ratification of the Convention.” 8 U.S.C.A.
§ 1231 note. Hence, the Convention and its
accompanying regulations must be read in conjunction with
the understandings prescribed by the Senate, which make
clear that the definition of “acquiescence” includes both
actual knowledge and “willful blindness.”[fn8]

As in Zheng, the court in Khouzam also recognized the
import of the implementing legislation and senatorial
understandings of the Convention in analyzing the legal
standard for “acquiescence” under the CAT. In Khouzam, the
Second Circuit granted relief to an Egyptian seeking
protection under the Convention on review of a final Board
order. 361 F.3d 161. Khouzam was an alien who was suspected
by Egyptian authorities of having committed a murder. Id.
at 163. He petitioned for relief from removal to Egypt
based on evidence that Egyptian police routinely exacted
confessions from accused criminals through torture. Id. at
169. The BIA had rejected his claim, concluding that relief
under the CAT requires consent or approval of government
officials.[fn9] Id. at 169-70. The court found this standard
too high and reversed the BIA’s decision, holding that
relief under the CAT does not require “consent or approval”
to torturous conduct, but instead “requires only that
government officials know of or remain willfully blind to
an act and thereafter breach their legal responsibility to
prevent it.” Id. at 171 (emphasis added).

The error in Matter of S-V- may have arisen from the
Board’s assumption that Congress “meant to exclude or
modify” the legal effect of the Convention upon
implementation. See 22 I & N Dec. at 1312. Based on this
premise, the BIA interpreted the implementing legislation
as “limiting,” rather than expanding or simply clarifying,
the section of the CAT which defines torturous acts as
those committed with the consent or acquiescence of a
public official. See id. Such an assumption is contrary to
legislative history.

By attaching the aforementioned understanding, the Senate
could hardly have made it clearer that it did not intend
“acquiescence” in the Convention to require a showing that
the government in question was actually aware of the
conduct that constitutes torture. Rather, an alien seeking
relief under the CAT can establish that the government in
question acquiesces to torture by showing that the
government is willfully blind to a group’s activities. Any
more restrictive reading of the CAT would be inconsistent
with the fact that the Senate ratified the Convention only
after attaching an understanding that acquiescence does not
require “actual knowledge.” See S. Exec. Rep. 101-30, at 36
(1990).

“To interpret the term acquiescence as the BIA did . . .
misconstrues and ignores the clear Congressional intent
quoted by the BIA merely a paragraph above its restrictive
holding.” Zheng, 332 F.3d at 1196. “The definition of
torture has been properly left not to the INS, but to
Congress, which instructed the INS to ‘prescribe regulations
to implement the obligations of the United States under
Article 3 of the [Convention] subject to any reservations,
understandings, declarations, and provisions contained in
the United States Senate resolution of ratification of the
Convention.” Id. (brackets and emphasis in original).

Here, the record establishes that Silva-Rengifo produced
evidence that may support a finding that the Colombian
government is in a collusive relationship with certain
groups that engage in torture. The evidence may also
support a finding that the Colombian government actually
participates in the type of torture he fears, in that it
fails to prosecute officials and groups charged with human
rights offenses. In his motion to reopen, Silva-Rengifo
alleged:

Government forces continued to commit numerous, serious
abuses, including extrajudicial killings, at a level that
was roughly similar to that of 1998. Despite some
prosecutions and convictions, the authorities rarely
brought officers of the security forces and the police
charged with human rights offenses to justice, and
impunity remains a problem . . . Paramilitary forces find
a ready support base within the military and police . . .
[There were n]o results reported in the investigation
into cooperation between [the government’s anti-kidnaping]
squads and illegal paramilitary groups . . .
Paramilitary groups were also responsible for kidnapings.

A.R. at 330, 338 (citing 1999 Country Reports on Human
Rights Practices, released by the Bureau of Democracy,
Human Rights, and Labor, U.S. Dept. of State, February 25,
2000).[fn10] Government participation in torture certainly
suffices to establish acquiescence under the CAT, but it is
not necessary. Evidence that officials turn a blind eye to
certain groups’ torturous conduct is no less probative of
government acquiescence.

We thus reject the reasoning in Matter of S-V- and the
rationale of the en banc Board in denying Silva-Rengifo’s
motion to reopen. In this regard we join our sister
circuits. The “willful blindness” standard has been adopted
by those courts of appeals that have addressed the legal
standard for the “acquiescence” under the CAT.[fn11] In
addition to Zheng in the Ninth Circuit and Khouzam in the
Second, the Fourth, Fifth and Sixth Circuits have adopted
the “wilful blindness” standard for acquiescence. See
Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th Cir. 2004)
(“awareness includes both actual knowledge and willful
blindness.”) (citing Zheng, 332 F.3d at 1194) (quotations
omitted); Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th
Cir. 2002);[fn12] Ali v. Reno, 237 F.3d 591 (6th Cir. 2001).

We are persuaded both by the the foregoing history of the
Convention’s implementing legislation, and the sound logic
of our sister circuit courts of appeals, that the
definition of “acquiescence” adopted in Matter of S-V- was
the wrong legal standard to apply. For purposes of CAT
claims, acquiescence to torture requires only that
government officials remain willfully blind to torturous
conduct and breach their legal responsibility to prevent
it. Accordingly, we conclude that the Board’s en banc
decision adopted an incorrect legal standard in requiring
official “consent” or “actual acquiescence” rather than
willful blindness as set out in the Convention’s
implementing regulations.

B. Necessity of a Remand

Based on the Supreme Court’s decision in INS v. Ventura,
537 U.S. 12 (2002) (per curiam), we do not review the
evidence under the correct standard for acquiescence to
determine if there is substantial evidence to support the
BIA’s conclusion that Silva-Rengifo does not qualify for
relief under the Convention. Rather, we must remand to the
BIA to give the BIA the first opportunity to apply the
correct standard of acquiescence. See id. at 16 (“Generally
speaking, a court of appeals should remand a case to an
agency for decision of a matter that statutes place
primarily in agency hands.”); see also Zheng at 1197
(remanding to the BIA to apply the correct standard of
“acquiescence”).

IV. Conclusion

For the reasons set forth above, we grant Silva-Rengifo’s
petition for review, vacate the final order of removal, and
remand to the BIA for further proceedings consistent with
this opinion, which rejects the Board’s erroneous reliance
on Matter of S-V-. Silva-Rengifo’s remaining claims are
dismissed without prejudice and may be raised on remand for
resolution by the Board or on further remand to the
Immigration Judge.

[fn1] Discretionary withholding of removal under former 8
U.S.C. § 1182(c) (1994) is known as “section 212(c)
relief.” Relief in the form of a waiver of inadmissibility
under this section of the Act was eliminated by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-54C (1996).
But see INS v. St. Cyr, 533 U.S. 289, 326 (2001).

[fn2] There is a dispute about whether Silva-Rengifo
received that letter and whether it was properly mailed to
him.

[fn3] Silva-Rengifo also attached proof that he barely spoke
Spanish, had no contacts in Colombia, and that his entire
family, including his wife and children, all resided in the
United States. This evidence was included to support
reconsideration of his request for 212(c) relief by the
Board and his claim that he should be allowed to present
additional evidence of further rehabilitation since the
IJ’s 1993 rejection of his request for equitable relief
under § 212(c).

[fn4] Cases so transferred are not subject to the thirty-day
filing deadline in section 242(b)(1) of the Immigration and
Nationality Act. REAL ID Act § 106(c); 8 U.S.C.
§ 1252(a)(5); see also Kamara, 420 F.3d at 210.

[fn5] As noted above, the BIA stated that it was reversing
its prior ruling because the record contained “little
evidence that the Colombian government acquiesces in
torture of those perceived to be foreign,” and because
Silva-Rengifo had therefore “failed to demonstrate a prima
facie eligibility for relief under the Convention. . . .”
Both explanations turn on the meaning of “acquiescence” in
the CAT.

[fn6] Governmental acquiescence under the Torture Convention
has been defined to include governments who are unable and
unwilling to protect their citizens from persecution. See,
e.g., Orenelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th
Cir. 2006) (Under the CAT “[i]t is enough that public
officials could have inferred the alleged torture was
taking place, remained willfully blind to it, or simply
stood by because of their inability or unwillingness to
oppose it.”) (citing Zheng, 332 F.3d at 1195 n. 8); see
also KRISTEN B. ROSATI, THE UNITED NATIONS CONVENTION
AGAINST TORTURE :A SELF-EXECUTING TREATY THAT PREVENTS THE
REMOVAL OF PERSONS INELIGIBLE FOR ASYLUM AND WITHHOLDING OF
REMOVAL, 26 Denv. J. Int’l L. & Pol’y 533, 539 (1998);
compare Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)
(to establish eligibility for asylum, an applicant must
demonstrate past persecution that is “committed by the
government or forces the government is unable or unwilling
to control”).

[fn7] That condition is clearly satisfied if an alien can
establish sufficient collusion between groups in the
country, or factions within the government itself, whose
actions are tolerated, if not condoned, by those in
government.

[fn8] In addition to the language of the Convention itself
and the Senate’s understandings, the Convention’s drafting
history also supports this conclusion. The Second Circuit
notes that the consent or approval requirement would have
been more consistent with the text first proposed by Sweden
in 1979. Khouzam, 361 F.3d at 171. It was the United States
that proposed broadening this text to include acquiescence.
Id. (citing J. HERMAN BURGERS & HANS DANELIUS, THE UNITED
NATIONS CONVENTION AGAINST TORTURE 4-42 (1988)). The text
suggested by the United States would have defined “public
official” in Article 2 of the Convention to include those
who “fail to take appropriate measures to prevent or
suppress torture when such person has knowledge or should
have knowledge that torture has or is being committed and
has the authority or is in a position to take such
measures. . . .” Burgers & Danelius, Supra, at 42 (emphasis
added).

[fn9] The court reversed the BIA deportation order on two
bases, only one of which concerns our analysis here. The
first basis for the court’s reversal was the BIA’s finding
that Khouzam was fleeing from prosecution of a crime and
therefore that any acts perpetrated against him would arise
from a lawful sanction and therefore did not constitute
torture. The court found such a conclusion “patently
erroneous.” Khouzam, 361 F.3d at 169. The court observed
that “[i]t would totally eviscerate the CAT . . . [if] once
someone is accused of a crime it is a legal impossibility
for any abuse inflicted on that person to constitute
torture.” Id.

[fn10] In the analogous context of an asylum application, we
have acknowledged that the Colombian government “has done
little to address the problem of links between its military
and paramilitary groups.” Vente v. Gonzales, 415 F.3d 296,
302 n. 5 (3d Cir. 2005) (quoting Human Rights Watch, The
“Sixth Division”: Military-[P]aramilitary Ties and U.S.
Policy in Colombia, Sept. 2001).

[fn11] The Court of Appeals for the Eighth Circuit has not
directly addressed the meaning of “acquiescence,” although
the issue has been presented to that court. In
Perinpanathan v. INS, 310 F.3d 594 (8th Cir. 2002), the
court held that the petitioner could not successfully argue
that he feared torture by the insurgent group, the
“Liberation Tigers of Tamil Elam,” because the Tigers are an
illegal terrorist organization, “and its participants
cannot be considered government officials.” 310 F.3d at
599. However, it is clear that the CAT is not limited to
torture inflicted by government officials.

[fn12] The Court of Appeals for the Fifth Circuit recently
affirmed the holding in Ontunez-Tursios, in Chen v.
Gonzales, No. 05-60379, 2006 WL 3374974 (5th Cir. Nov. 22,
2006).