Barajas-Romero v. Lynch, No. 13-70520 (9th Cir. 2017)
Annotate this CasePetitioner seeks review of the BIA's affirmance of the IJ's denial of withholding of removal and denial of relief under the Convention Against Torture (CAT). The court rejected the BIA's decision to follow its own precedent in Matter of C-T-L, which held that the "one central reason" test for asylum applies to withholding, even though the withholding statute says merely "a reason." The court held that "a reason" is a less demanding standard than "one central reason." Because the BIA accepted the government’s view under the wrong standard, the court remanded to the BIA to decide the case under the correct standard: " a reason" rather than "one central reason." The court also concluded that the statute and regulations do not establish a “rogue official” exception to CAT relief. The court explained that the regulations say that torture has to be at the instigation of or with the consent or acquiescence of a public official or some other person acting in an official capacity. In this case, the record leaves no room for doubt the four policemen that attacked petitioner were public officials who themselves inflicted the torture. Because the BIA did not evaluate relocation under the no-burden-shifting standard, and applied the incorrect standard in assessing petitioner's withholding claim, the court remanded pursuant to INS v. Ventura. Accordingly, the court granted the petition.
Court Description: Immigration. The panel granted a petition for review, holding that the Board of Immigration Appeals erred in applying the REAL ID Act’s “one central reason” nexus standard, rather than the “a reason” standard, to an application for withholding of removal, and improperly placed the burden on petitioner to prove that he could not safely relocate within Mexico for purposes of Convention Against Torture protection relief. Declining to afford deference to the Board’s precedential decision in Matter of C-T-L, 25 I. & N. Dec. 341 (BIA 2010), the panel held that by amending the asylum statute to include the REAL ID Act’s “one central reason” nexus standard, but not similarly amending the withholding of removal statute, Congress did not intend for the “one central reason” standard to apply to withholding of removal claims. The panel explained further that the “a reason” standard applicable to withholding of removal claims requires weaker motives than the “one central reason” standard. The panel held that there is no “rogue official” exception for CAT relief, and that an applicant need show a likelihood of torture at the instigation of or with the consent or acquiescence of either a public official, or some other person acting in an official capacity. The panel explained that CAT relief may be based on the actions of off-duty police officers, even where they were not acting in an official capacity, so BARAJAS-ROMERO V. LYNCH 3 long as they carried out the acts or knowingly acquiesced in the acts. The panel held that although petitioner bore the ultimate burden to prove a likelihood of torture, the Board erred by placing the burden on petitioner to establish that he could not safely relocate within Mexico to avoid future harm. The panel remanded for the Board to reconsider the withholding claim applying the correct nexus standard, and to reconsider the CAT claim under the no-burden-shifting relocation standard.
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