Circuit Judges
Circuit Judges
Circuit Judges
and (2) the BIA failed to take into account evidence in the
record demonstrating that, if Pieschacon-Villegas is removed
to Colombia, he will more likely than not be tortured with the
acquiescence of a public official. We will grant the petition
and remand to the BIA.
I. BACKGROUND
Pieschacon-Villegas was born in 1969 and is a
Colombian native and citizen. He has entered and left the
United States on a number of occasions. Pieschacon-Villegas
last entered the United States as a special parolee in
December 2007. One of Pieschacon-Villegass siblings lives
in the United States and his other siblings and his parents live
in Colombia.
From 1996 until 2003, Pieschacon-Villegas received
fees for laundering Colombian drug traffickers money. In
1999, Federal Bureau of Investigation (FBI) agents in New
Jersey learned about Pieschacon-Villegass involvement in
money laundering during an undercover investigation. The
FBI was aware that Pieschacon-Villegas was involved in a
transaction with a major drug operation in 1999, in which he
made wire transfers totaling $218,467. He was subsequently
arrested and indicted for his involvement in that money
laundering scheme.
On August 21, 2003, Pieschacon-Villegas pled guilty
to conspiracy to commit money laundering, in violation of 18
U.S.C. 1956(h), for those 1999 transfers. He agreed to
cooperate with the FBI and he was released on an unsecured
bond. His conviction and sentencing were deferred.
agents suggested that, if she valued her life and the life of her
children, she should not go back to Colombia because of
these threats.
On December 27, 2007, Pieschacon-Villegas traveled
to the United States and was arrested on a bail revocation
charge because FBI agents believed Pieschacon-Villegas was
involved in money laundering outside of the parameters of his
FBI cooperation. On June 11, 2008, Pieschacon-Villegas
pled guilty to money laundering based on the 1999 transfers
referenced his 2003 plea agreement. He was sentenced to
thirty months of incarceration.
On November 18, 2008, the Department of Homeland
Security (DHS) served Pieschacon-Villegas with a Notice
to Appear, charging him with being removable from the
United States because: (1) he was an alien who had been
convicted of acts which constituted a crime involving moral
turpitude, see Immigration and Nationality Act (INA)
212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I); (2) he was
an alien who the Attorney General knows, or has reason to
believe, has engaged in money laundering, as described in 18
U.S.C. 1956 and 1957, INA 212(a)(2)(I)(i), 8 U.S.C.
1182(a)(2)(I)(i); and (3) he was an applicant for admission to
the United States who did not possess a valid entry document,
see INA 212(a)(7)(A)(i)(I), 8 U.S.C. 1182(a)(7)(A)(i)(I).
On February 18, 2009, Pieschacon-Villegas appeared
before the IJ and conceded removability. On or about April
10, 2009, Pieschacon-Villegas submitted an application for
deferral of removal under the CAT.
A.
IJ Decision
BIA Decision
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Pierre v. Atty Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en
banc) (quoting 8 U.S.C. 1252(a)(2)(C)-(D)) (internal
quotation marks omitted). Additionally, as the government
concedes,7 this Court has jurisdiction to determine whether
the Board adjudicated Pieschacon-Villegass application for
deferral of removal under an incorrect legal standard.
The government mischaracterizes the BIAs decision,
at least in part, when it contends that the BIA applied the
correct legal standard.
Despite acknowledging that
government acquiescence can be demonstrated by showing
that the government is willfully blind to torturous activities,
the BIA incorrectly stated that a number of specific
circumstances cannot constitute acquiescence. Furthermore,
the BIA misapplied the legal standard by ignoring evidence
relevant to determining whether Pieschacon-Villegas will
more likely than not be subjected to torture upon removal.
Although the BIA has discretion to hold that this evidence is
insufficient to meet Pieschacon-Villegass burden, the BIA
lacks authority to ignore this evidence altogether.
When the BIA issues its own decision on the merits,
rather than a summary affirmance, we review its decision, not
that of the IJ. Sheriff v. Atty Gen., 587 F.3d 584, 588 (3d
Cir. 2009). We review legal determinations de novo, subject
to the principles of deference articulated in Chevron v. Nat.
Res. Def. Council, 467 U.S. 837, 844 (1984). Briseno-Flores
v. Atty Gen., 492 F.3d 226, 228 (3d Cir. 2007).
Id.
7
(Respondents Br. at 20.)
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III. ANALYSIS
A.
Article 3 of CAT
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Acquiescence
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