United States Court of Appeals For the First Circuit

No. 20-1711

JANITO DECARVALHO,

Petitioner,

v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Lipez, and Kayatta, Circuit Judges.

Trina Realmuto, with whom Tiffany Lieu, National Immigration Litigation Alliance, Jennifer Klein, and Committee for Public Counsel Services were on brief, for petitioner. Marie V. Robinson, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, and Andrew N. O'Malley, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

November 17, 2021

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr. KAYATTA, Circuit Judge. The Board of Immigration

Appeals (BIA) held that Janito DeCarvalho's conviction for

possession of oxycodone with intent to distribute in violation of

Mass. Gen. Laws ch. 94C, § 32A(a), constitutes a "particularly

serious crime" that makes him ineligible for withholding of

removal. See

(b)(3)(B)(ii). The BIA also denied

DeCarvalho's application for deferral of removal under the

Convention Against Torture (CAT). DeCarvalho petitions for review

of the BIA's decisions, principally arguing that the Attorney

General's decision in Matter of Y-L- unlawfully presumes that all

aggravated felonies involving trafficking in controlled substances

are particularly serious crimes. See

, 274–75

(U.S. Att'y Gen. 2002). We deny his petition for review insofar

as he seeks CAT relief. We grant the petition in part, however,

because the immigration judge (IJ) informed DeCarvalho, who was

proceeding pro se, that he was eligible for potential relief only

under the CAT. In so doing, the IJ treated DeCarvalho's conviction

for drug trafficking as if it were a per se bar to withholding of

removal, a position that the government now disavows on appeal.

We remand to the agency with instructions to give DeCarvalho a new

hearing to determine whether he is entitled to withholding of

removal.

- 2 - I.

DeCarvalho is a native and citizen of Cape Verde.

Between 2001 and 2003, DeCarvalho served as an officer in Cape

Verde's national police force. In 2004, DeCarvalho left Cape Verde

and came to the United States on a tourist visa. After his visa

expired, DeCarvalho remained in the United States and was granted

conditional permanent resident status in 2012. In 2015, DeCarvalho

was convicted in state court of several offenses, including

possession with intent to distribute oxycodone in violation of

Mass. Gen. Laws ch. 94C, § 32A(a). He was sentenced to three and

a half years' imprisonment.

Citing his oxycodone conviction as a basis for

removability pursuant to

(a)(2)(A)(iii), the

Department of Homeland Security initiated removal proceedings

against DeCarvalho approximately two years after he completed his

prison term. DeCarvalho appeared pro se before an IJ. The IJ

informed DeCarvalho that "because of [his] drug trafficking

conviction, [he was] only eligible to apply for . . . deferral

under the [CAT]."

The IJ held a hearing on DeCarvalho's application for

deferral of removal under the CAT. After DeCarvalho and his

brother testified, the IJ confirmed his earlier pronouncement that

DeCarvalho's prior conviction rendered him ineligible for any

relief other than deferral of removal under the CAT. As to the

- 3 - matter of withholding from removal, the IJ found that DeCarvalho

had been convicted of a "particularly serious crime" under

(b)(3)(B)(ii), rendering him ineligible to apply for

withholding.

The IJ then analyzed whether DeCarvalho was eligible for

deferral of removal under the CAT. DeCarvalho claimed that he

faced potential harm from several sources: members of a criminal

organization seeking retribution against his sister for testifying

against them; criminals whom DeCarvalho had arrested when he worked

as a police officer; and his former supervisors in the police

force. Finding him credible, the IJ nevertheless concluded that

DeCarvalho had not shown that it was more likely than not that he

would be tortured by or with the acquiescence of government

officials upon returning to Cape Verde.

Still proceeding pro se, DeCarvalho appealed to the BIA.

The BIA adopted and affirmed the IJ's decision denying CAT relief.

Citing Matter of Y–L–, the BIA also found that "[t]he conviction

for a drug trafficking offense is also a particularly serious crime

barring the respondent from withholding of removal." DeCarvalho

then filed a timely petition for review with this court.

Now represented by counsel, DeCarvalho makes two basic

arguments that we will consider in turn: that the IJ and the BIA

erred in finding that his prior conviction rendered him ineligible

for withholding; and that the IJ and BIA also erred in denying his

- 4 - request for CAT protection.1 We have jurisdiction to review the

constitutional and legal questions raised in this petition.

(a)(2)(D).

II.

A.

A noncitizen is ineligible for withholding of removal

"if the Attorney General decides" that the noncitizen, "having

been convicted by a final judgment of a particularly serious

crime[,] is a danger to the community of the United States."

(b)(3)(B)(ii). The statute further provides that:

[A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious crime.

§ 1231(b)(3)(B). The definition of "aggravated felony"

includes "illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug trafficking

1 DeCarvalho also argues that the IJ and the BIA lacked jurisdiction over his removal proceedings because he received a Notice to Appear that lacked the date and time of his hearing. He recognizes, however, that we have already rejected the argument that such defects preclude the exercise of jurisdiction over removal proceedings. See Goncalves Pontes v. Barr,

, 5– 7 (1st Cir. 2019).

- 5 - crime (as defined in section 924(c) of Title 18)."

(a)(43)(B).

DeCarvalho does not dispute that his drug trafficking

conviction satisfies this definition of an "aggravated felony."

And the government agrees that because DeCarvalho was sentenced to

fewer than five years of imprisonment, his conviction does not

qualify automatically as a particularly serious crime under the

first sentence of the text block-quoted above. So the key question

is whether the Attorney General has lawfully determined that

notwithstanding the length of DeCarvalho's sentence, his

aggravated felony conviction is for a "particularly serious

crime."

The BIA answered "yes" to this question by pointing to

the Attorney General's opinion in Matter of Y-L-, which established

a presumption that an aggravated felony involving drug trafficking

is a particularly serious crime even if it does not result in a

sentence of five or more years. 23 I. & N. Dec. at 273–75. That

presumption may only be rebutted by a showing of "extraordinary

and compelling circumstances."

. Specifically, the

noncitizen must show that the felony conviction in question

involved, "at a minimum":

(1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal

- 6 - activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.

at 276–77.

DeCarvalho argues that Matter of Y-L- represents an

unreasonable interpretation and application of the Attorney

General's authority under section 1231(b)(3)(B), and therefore

cannot be sustained as a matter of deference otherwise due under

Chevron, U.S.A., Inc. v. NRDC,

(1984). DeCarvalho's

argument proceeds in two parts. First, he contends that Matter of

Y-L- effectively operates as a per se rule rather than a

presumption. After all, he notes, the government does not point

to even a single instance in which the so-called presumption has

been overcome.2 Second, DeCarvalho argues that the first sentence

2The government cites Diaz v. Holder, in which the IJ determined that the noncitizen rebutted the presumption.

, 736–37 (10th Cir. 2012). But, the BIA overturned that decision on appeal, and the Tenth Circuit affirmed.

at 737– 38 (concluding the BIA did not abuse its discretion because it "engaged in an individualized determination"). The closest instance (though not cited by the government) appears to be a statement not by any IJ, but by the Third Circuit panel in Lavira v. Attorney General, that the "facts of this offense appear to place him squarely within the [Matter of Y-L- exception]."

(3d Cir. 2007), overruled on other grounds by Pierre v. Att'y Gen.,

(3d Cir. 2008) (en banc). But that statement was made only in vacating a BIA

- 7 - of section 1231(b)(3)(B) limits the universe of offenses that may

be treated as per se particularly serious crimes to aggravated

felonies resulting in sentences of imprisonment of five or more

years. Because DeCarvalho was sentenced to fewer than five years,

he contends that the Attorney General lacks the authority to treat

him as per se ineligible for withholding of removal.

In response, the government eschews any contention that

the Attorney General has the discretion under

section 1231(b)(3)(B)(ii) to determine that convictions for drug

trafficking are categorically convictions for particularly serious

crimes if the term of imprisonment falls short of five years.

Rather, the government argues only that Matter of Y-L- merely

provides a strong presumption that nevertheless can be overcome

through individualized determinations. And, it explains, creating

a strong but rebuttable presumption is a reasonable application of

the statute. See Miguel-Miguel v. Gonzales,

(9th Cir. 2007) (holding that the authority to create this

presumption is a reasonable interpretation of the statute).

Consistent with that position, the government agrees

with DeCarvalho's alternative argument; i.e., that if Matter of

Y-L- does not effectively categorize all drug trafficking

decision to the contrary because (as here) the IJ had not considered the matter. There is no indication that the noncitizen succeeded on remand in rebutting the presumption.

- 8 - convictions as convictions for particularly serious crimes, then

the IJ erred in telling the pro se DeCarvalho prior to any hearing

that he was not eligible for withholding. Hence, the government

agrees that remand is required.

That position poses something of a puzzle for

DeCarvalho. If we were to proceed now and agree with DeCarvalho

that Matter of Y-L- effectively creates a categorical rule, he

could lose -- and a remand become useless -- if we were to find

that the Attorney General could adopt such a categorical rule. On

the other hand, neither the Attorney General nor the BIA here has

claimed the statutory authority to deem a crime categorically

particularly serious.

Given the foregoing partially-aligned positions of the

parties, we think it best to take this a step at a time. We will

vacate and remand the finding that DeCarvalho is not eligible for

withholding. See Quintero v. Garland,

(4th Cir.

2021) (remanding for "further fact-finding and reconsideration").3

On remand, DeCarvalho will then have an opportunity to see if he

can rebut Matter of Y-L-'s so-called presumption, and the

government will have the opportunity to supplement the record with

any evidence that the presumption can be overcome. See Miguel-

3 DeCarvalho requests reassignment to a different IJ on remand. We express no view on whether this case should be reassigned.

- 9 - Miguel,

("Presumably . . . there will be some cases

in which [the Matter of Y-L-] exception applies.").4 Should

DeCarvalho lose on remand based on Matter of Y-L-, he will then

still have the opportunity to challenge Matter of Y-L- on appeal.

This will also provide the Attorney General with an

opportunity to consider whether, based on the experience of two

decades and Congress's increasingly nuanced view of drug

trafficking offenses,5 Matter of Y-L- may have turned out to over-

shoot the mark.

B.

DeCarvalho makes a separate argument based on the text

of section 1231(b)(3)(B)(ii). He points out that the statute

renders a person ineligible for withholding "if the Attorney

General decides" that the person "having been convicted by a final

judgment of a particularly serious crime is a danger to the

community." (emphasis supplied). DeCarvalho contends that this

text plainly requires the Attorney General to find not just that

DeCarvalho committed a particularly serious crime, but that he is

4 The government assures us that there are cases in which noncitizens have fit within the presumption, although none are in this record. Remand will provide a full opportunity for the government and the BIA to survey those rare cases. 5 See, e.g., First Step Act,

,

, 5220–21 (2018); Fair Sentencing Act, Pub. L. No. 111- 220, 124 Stat 2372(2010).

- 10 - also a danger to the community, a finding that might be belied by

his behavior since he was released from prison several years ago.

The government responds to this argument in a footnote,

contending that our decision in Valerio-Ramirez v. Sessions,

(1st Cir. 2018), rejected this precise argument.

Valerio-Ramirez did indeed describe as "upheld" the BIA's

interpretation that a person found to have been convicted of a

particularly serious crime "necessarily represents a danger to the

community."

at 295 (quoting Velerio-Ramirez v. Lynch,

, 115 n.7 (1st Cir. 2015)). But the BIA's criteria for

labeling a crime particularly serious in that case included

"whether the type and circumstances of the crime indicate that the

alien will be a danger to the community."

at 115 (quoting

Matter of Frentescu,

(BIA 1982)

(describing this inquiry as the "most important[]")). For that

scheme, the court concluded that "no separate dangerousness

assessment is required."

Matter of Y-L-, by contrast,

arguably does not so incorporate a finding that the noncitizen

will be a danger to the community into its consideration of what

is presumed to be a particularly serious crime.

What the BIA makes of this, we do not know. The

government does not argue that DeCarvalho failed to raise the

issue, but the BIA certainly says nothing of it in its opinion.

Given that we are remanding on the question of whether DeCarvalho's

- 11 - conviction renders him ineligible for withholding, we leave

further consideration of this related argument to the BIA in the

first instance. Velerio-Ramirez,

("[W]hen the BIA

has not spoken on an issue that the statute has placed in its

hands, remand is appropriate to give the BIA an opportunity to

address the issue in the first instance.").

III.

We turn next to DeCarvalho's claim for deferral of

removal under the CAT. When the BIA's decision adopts parts of

the IJ's decision and adds its own analysis, we review the two

decisions together. See Guerrero v. Holder,

(1st

Cir. 2012). To succeed on a CAT claim, DeCarvalho must show that

it is "more likely than not that he . . . would be tortured if

removed to the proposed country of removal."

(c)(2). For purposes of evaluating a CAT claim, torture

is defined as:

(1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.

Samayoa Cabrera v. Barr,

(1st Cir. 2019) (quoting

Settenda v. Ashcroft,

(1st Cir. 2004)); see also

(a).

- 12 - DeCarvalho argues that he would be subjected to torture

upon his return to Cape Verde for three reasons: First, his sister

testified against certain "criminal organizations;" second, people

he arrested as a police officer between 2001 and 2003 threatened

him; and, third, a police superintendent was angry with him because

he left the police force without permission and did not create the

proper paperwork.

As to the first reason, the IJ pointed out that the Cape

Verde government is protecting his sister and is prosecuting the

crimes, which means he failed to establish that the criminal

organizations would harm him with the acquiescence of the

government. As to the second reason, the IJ found that the last

such threat was over thirteen years ago and that there is no reason

to suspect that those who made the threat would seek him out for

torture today. Finally, as to the third reason, the IJ was not

convinced that the police superintendent would seek out DeCarvalho

eighteen years later to torture him for not following proper

procedures when he left the police force.

The BIA affirmed. In rejecting DeCarvalho's CAT claim,

the BIA stated:

Based on our review of the record, we discern no clear error in the [IJ]'s determination that it is not more likely than not that the respondent would be tortured in Cape Verde by individuals previously arrested by the respondent while he was a police officer, his former police superintendent, or criminal

- 13 - organizations that his sister testified against. See Matter of Z-Z-O-,

(BIA 2015) ("[A]n Immigration Judge's predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review."). We also agree with the [IJ] that the evidence does not demonstrate that the Cape Verdean authorities would acquiesce in, consent to, or exhibit willful blindness to any torture of respondent by private actors. See Granada-Rubio v. Lynch,

(1st Cir. 2016).

(record citations omitted) (emphasis added).

DeCarvalho first argues that the BIA applied the wrong

standard of review to the IJ's decision. He then argues that its

decision is in any event unsupported by substantial evidence. We

address these arguments in turn.

A.

DeCarvalho argues that the BIA failed to apply the proper

standard of review because its decision referred only to the

absence of "clear error" in the IJ's determination about the

likelihood that DeCarvalho would be tortured if removed to Cape

Verde. He argues that whether he would be subject to "torture"

justifying CAT relief is a question of law that the BIA should

have decided de novo. See Matter of R-A-F-,

(U.S. Att'y Gen. 2020).

In so arguing, DeCarvalho glosses over the several

components of a "torture" finding and misapprehends the bases on

which the IJ and then the BIA denied DeCarvalho's request for

- 14 - relief. In assessing whether CAT relief is appropriate, an IJ

makes findings of fact (e.g., whether a person is likely to suffer

a particular harm and the role of the foreign government in causing

or allowing that harm) and also determines how the law applies to

those facts (e.g., whether such harm rises to the level of torture

and whether the government's role renders the harm "by or at the

instigation of or with the consent or acquiescence of a public

official," Samayoa Cabrera,

(citation omitted)).

The BIA reviews the former for clear error and the latter de novo.

See

at 382–83; see also Matter of Z-Z-O-,

,

590–91 (BIA 2015).

Here, DeCarvalho points to two sources of alleged

torture: people he long ago arrested, and criminals against whom

his sister testified.6 As to the arrestees, the IJ was unpersuaded

that they would even seek out DeCarvalho, much less harm him with

the acquiescence of the government. This determination about the

likelihood that harm would befall DeCarvalho upon his return was

a finding of fact, not a legal conclusion as to whether any such

harm would qualify as torture. The BIA therefore appropriately

reviewed that finding for clear error. See Al Amiri v. Rosen, 985

6 Before the IJ and the BIA, DeCarvalho also claimed that his former supervisors in the police force posed a threat to him. He has not renewed that argument before this court, and it is therefore waived. Marquez-Paz v. Barr,

(1st Cir. 2020).

- 15 - F.3d 1, 8 (1st Cir. 2021) (affirming the BIA's determination that

the IJ did not "clearly err" in concluding that applicant's

proffered evidence did not show "that it is more likely than not

that he will suffer" the harm he feared).

As to harm at the hands of the criminal organizations

against whom his sister testified, the IJ found that, even if such

harm transpired, it would not be "on behalf of or with the

acquiescence of the government," which had prosecuted those

organizations and taken steps to protect his sister. DeCarvalho

contends that this conclusion was largely if not entirely a

determination of law. He then argues that the BIA erred by

reviewing it only for clear error.

We disagree with his description of what the BIA did.

When the BIA does not expressly specify the standard of review it

is applying, we have concluded that the BIA applied the proper

test when the agency's decision calls the IJ's determination

"correct" and "cite[s] legal authority for its conclusion."

Samayoa Cabrera,

. Here, the BIA stated that it

"also agree[d] with the [IJ]" on the issue of government

acquiescence and cited to this court's precedent as support. This

- 16 - suggests not deference to, but rather alignment with, the IJ's

assessment of DeCarvalho's proffered evidence of acquiescence.7

For these reasons, we reject DeCarvalho's arguments that

the BIA applied an incorrect standard of review when evaluating

DeCarvalho's CAT claim.

B.

We turn finally to DeCarvalho's argument that

substantial evidence did not support the denial of CAT relief. We

will uphold the BIA's findings "if they are 'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.'" Agustin v. Whitaker,

(1st Cir. 2019) (quoting Touch v. Holder,

, 37–38 (1st

Cir. 2009)). A BIA decision lacks the support of substantial

evidence when the record compels a conclusion contrary to the one

reached by the agency. See Ruiz-Guerrero v. Whitaker,

(1st Cir. 2018).

DeCarvalho contends on this appeal that if he were

returned to Cape Verde, he would more likely than not be tortured

by either people whom he had previously arrested as a police

7DeCarvalho additionally contends that the BIA's use of the word "also" implied that the BIA only agreed with the IJ's determination subject to the "clear error" standard of review employed as to the other sources of claimed harm. We think this places far too much weight on the word "also" and ignores the plain meaning of "agree." If anything, the BIA's statement that it "also agree[d]" with the IJ's conclusion signals even more clearly that it likely agreed with the IJ's findings of fact, as well.

- 17 - officer or members of a crime organization seeking retribution

against his sister. We find that the record before the agency

does not compel a finding that he is more likely than not to be

tortured upon returning to Cape Verde.

We start with DeCarvalho's claim that people he arrested

as a police officer pose an ongoing threat to him. He points to

threatening social media messages he received from some of these

individuals in 2005 and 2006. DeCarvalho argues that these people

were prosecuted for serious crimes and are thus likely to present

a danger to DeCarvalho if he is returned to Cape Verde. And he

contends that because these individuals were sending him messages

over a year after he departed Cape Verde, there is reason to think

the threat to him persists.

The IJ was unpersuaded that there are any people "that

[DeCarvalho] arrested who are currently looking for him today or

would seek him out to torture him today." The record does not

compel a contrary conclusion. The passage of over a decade since

the last threatening message to DeCarvalho weakens any inference

that the people whom he arrested continue to pose a threat to him.

DeCarvalho's claim that he is likely to be tortured by

the criminal organization pursuing his sister arguably presents a

closer question, but substantial evidence also supports the

rejection of that claim. At the hearing before the IJ, DeCarvalho

explained that his sister had testified against members of a

- 18 - criminal organization in exchange for a more lenient sentence on

drug trafficking charges. According to DeCarvalho, the criminal

organization attempted to kill his sister by carrying out a drive-

by shooting at her home. After the shooting, Cape Verdean police

placed DeCarvalho's sister in protective custody. One of

DeCarvalho's brothers testified that their mother had received

death threats and that someone had gone to their mother's house to

kill her. DeCarvalho's mother subsequently left Cape Verde to

live in the United States with DeCarvalho's brother.

As we have already explained, above, the BIA agreed with

the IJ's determination that DeCarvalho failed to establish that

the criminal organization threatening DeCarvalho's sister would be

acting on the government's behalf or with its acquiescence if the

same organization was to harm DeCarvalho. In so concluding, the

IJ acknowledged that DeCarvalho's sister was in danger in Cape

Verde and that his mother feared harm but emphasized that the Cape

Verdean government was protecting DeCarvalho's sister and was

prosecuting the organization that threatened her.

The BIA supportably found that Cape Verde's government

would not acquiesce in, consent to, or exhibit willful blindness

to any harm to DeCarvalho that the criminal organization might

cause. The government's efforts to protect DeCarvalho's sister

cut against the suggestion that the government would acquiesce to

the criminal organization's potential actions against him.

- 19 - DeCarvalho cannot show that a contrary conclusion is

required. DeCarvalho argues that the threat to his mother

indicates that he is likely to become a target himself. And he

contends that the Cape Verdean government's efforts to protect his

sister do not show that Cape Verde will use its limited law

enforcement resources to protect him. But these concerns about

how the Cape Verdean police will prioritize DeCarvalho's

protection and the overall effectiveness of its law enforcement

efforts do not compel the conclusion that Cape Verde has acquiesced

to violent acts by the criminal organization. DeCarvalho has not

shown that Cape Verde's government will not continue to prosecute

the organization and resist its efforts to intimidate witnesses

against it.

For these reasons, we conclude that substantial evidence

supports the denial of DeCarvalho's claim for CAT relief.

IV.

The petition for review is denied in part, insofar as

DeCarvalho seeks deferral of removal under the Convention Against

Torture, and granted in part, insofar as the BIA deemed DeCarvalho

ineligible for withholding of removal. We vacate the denial of

withholding and remand for further proceedings consistent with

this opinion.

- 20 -