Suarez-Valenzuela v. Holder, No. 12-1019

Decided: April 24, 2013

The Fourth Circuit affirmed the Board of Immigration Appeals’ (BIA) denial of Suarez-Valenzuela’s application for withholding of removal under the Convention Against Torture (CAT).  The Fourth Circuit held that the BIA applied the appropriate standard when evaluating Suarez-Valenzuela’s case, and that the BIA’s conclusions were supported by substantial evidence.

Suarez-Valenzuela is a Peruvian citizen that illegally entered the United States in January of 1999. Suarez-Valenzuela left Peru following a series of altercations and threats stemming from a talk show appearance in 1997. Suarez-Valenzuela and the show’s investigator threatened to report the show’s host to a rival television network when Suarez-Valenzuela did not receive items that he was promised in exchange for his appearance. Shortly thereafter, uniformed police officers approached Suarez-Valenzuela and the show’s investigator and threatened them. One of the officers, who Suarez-Valenzuela recognized as working for the talk show host, shot him in the foot and hit the show’s investigator with a gun, killing the investigator instantly. Although the officer was convicted for the killing, he only served three months of a fifteen-year sentence. Subsequently, the officer retained his job with the police and continued intimidating Suarez-Valenzuela and his family. Fearing for his safety, Suarez-Valenzuela fled to the United States in January of 1999. In February 2010, Suarez-Valenzuela was convicted of misdemeanor petit larceny. Based on the conviction and his immigration status, the Department of Homeland Security (DHS) issued an Administrative Order of Removal. DHS referred Suarez-Valenzuela’s case to an immigration judge who found that, under CAT, it was not feasible for Suarez-Valenzuela to relocate to Peru because Suarez-Valenzuela reasonably feared that he would be subjected to torture. DHS appealed the immigration judge’s order to the Board of Immigration Appeals (BIA), who reversed the immigration judge. Suarez-Valenzuela filed a petition for review of the BIA Order.

On appeal, Suarez-Valenzuela first argued that the BIA wrongfully applied the “willful acceptance” rather than the “willful blindness” standard to satisfy the CAT requirement that torture is committed with the “acquiescence of a public official.” Under the “willful acceptance” standard, the applicant must demonstrate that government officials had actual knowledge of his or her torture to satisfy CAT. On the other hand, under the “willful blindness” standard the applicant satisfies the acquiescence requirement by showing actual knowledge or that government officials “turn a blind eye to torture.” The Fourth Circuit agreed with Suarez-Valenzuela that “willful blindness” could satisfy CAT’s acquiescence requirement, but held that the BIA did not impose the actual knowledge requirement of the “willful acceptance” standard as argued by Suarez-Valenzuela.

Suarez-Valenzuela’s next argued that the BIA’s denial of CAT protection was not supported by substantial evidence. The Fourth Circuit disagreed. The Fourth Circuit first concluded that the BIA reasonably relied on State Department reports showing that country conditions and human rights violations have improved in Peru. Next, the Court found that BIA was justified in finding that the Peruvian government did not acquiesce to any torture committed by the officer.  The Court determined that based on the officer’s considerable efforts to prevent Suarez-Valenzuela from testifying and the officer’s ultimate conviction, the BIA could reasonably conclude that the government did not acquiesce in Suarez-Valenzuela’s past torture. Finally, the Fourth Circuit concluded that Suarez-Valenzuela failed to appeal the final determination that he could safely relocate within Peru, waiving his right to challenge the BIA’s determination on that ground. Therefore, the Fourth Circuit affirmed the BIA’s denial of Suarez-Valenzuela’s petition for review.

Full Opinion

– Wesley B. Lambert

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