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Media Alerts - Luis Antonio Dutton-Myrie v. the Attorney General of the United States of America - Third Circuit
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May 2, 2017
  Luis Antonio Dutton-Myrie v. the Attorney General of the United States of America - Third Circuit
Headline: Third Circuit Requires Review of Willful Blindness in CAT Analysis Regarding Acquiescence to Torture

Area of Law: Convention Against Torture, Acquiescence

Issues Presented: What standard should the Board of Immigration Appeals use in assessing acquiescence to torture under the Convention Against Torture?

Brief Summary:

Dutton-Myrie appealed a decision from the Board of Immigration Appeals ("BIA") which dismissed his claim that the Panamanian government was willfully blind to torturous acts against him. The Third Circuit found that the BIA did not thoroughly review the circumstantial evidence or the potential for willful blindness de novo in its ruling. The Third Circuit remanded with instructions to consider circumstantial evidence that may establish willful blindness.

Extended Summary:

Luis Antonio Dutton-Myrie petitioned for review of a ruling by the Board of Immigration Appeals ("BIA") dismissing his appeal of the decision by an Immigration Judge ("IJ") that he is ineligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Dutton-Myrie contends that the BIA erred in affirming the IJ's conclusion that the government of Panama would not be willfully blind to torturous acts against him and incorrectly stated what constitutes acquiescence to torture by Panamanian officials. In addition, Dutton-Myrie contends that the IJ is biased against him and violated his due process rights. The Third Circuit found that the Board did not apply the correct legal standard under the Convention Against Torture ("CAT") and remanded.

Dutton-Myrie is a citizen of Panama who came to the US on a visitor's visa in 1991 and overstayed that visa. In 2005, the Government apprehended and deported him to Panama. A few days after his return to Panama, a group of men stabbed him in the neck so he fled the country and re-entered the US. In 2007, the Government apprehended him again and charged him with illegal re-entry. In 2012, the US Department of Homeland Security reinstated the final order of removal but an asylum officer found he expressed a reasonable fear of returning to Panama and referred him to an IJ. Dutton-Myrie filed an application for deferral of removal under the CAT based on his claim that members of the Mara Salvatrucha ("MS-13") gang would likely torture him if he returned. Dutton-Myrie's close relatives started a gang in Panama and many of his male family members have been targeted and killed by MS-13.

The IJ found Dutton-Myrie to be credible but determined that he failed to establish that Panamanian officials would consent or acquiescence to the harm he feared and denied his CAT claim. Dutton-Myrie went before the same IJ four times, and appealed four times. The BIA vacated and remanded the first three times but affirmed the fourth decision. The Third Circuit first turned to the Convention Against Torture and noted the burden of proof is on the petitioner to produce evidence that it is more likely than not that he or she would be tortured. To establish acquiescence, an applicant must demonstrate that a public official was aware of the torture and breached the legal responsibility to intervene and prevent it, which can also be shown if the government willfully blinded itself to such activities.

The Third Circuit reviewed Dutton-Myrie's claim that the BIA erred in reviewing for clear error the IJ's conclusion that the Panamanian government would not acquiesce to torture. The IJ must conduct a two-part analysis. First, the IJ makes a factual finding as to how the public officials will act in response to the harm the petitioner fears. Next, the IJ assesses whether the likely response from public officials qualifies as acquiescence. The BIA should review the first part for clear error, but must review the second part de novo. The BIA found no clear error in the IJ's finding that the government of Panama would not be acquiescent to any torture but it should have also determined de novo whether the evidentiary findings were sufficient to establish acquiescence. The BIA should have considered willful blindness before concluding the government conduct would not qualify as acquiescence.

The BIA must consider circumstantial evidence of willful blindness. The BIA needs to consider relevant evidence to determine if harm Dutton-Myrie fears will be met with a "blind eye" by authorities. The regulations do not require actual knowledge of specific torturous acts. The Third Circuit remanded with instructions to consider circumstantial evidence that may establish willful blindness. The Third Circuit did not comment on the due process claim but noted the case "may be ripe for reassignment [to a different IJ]if further fact-finding is necessary."

Find the full opinion at:

http://www2.ca3.uscourts.gov/opinarch/161599p.pdf

Panel: Ambro, Chagares, and Fuentes, Circuit Judges

Argument Date: November 16, 2016

Date of Issued Opinion: April 28, 2017

Docket Number: No. 16-1599

Decided: Remanded

Case Alert Author: Jessica Wood

Counsel:

Nathanael P. Kibler (argued), Counsel for Petitioner

Benjamin C. Mizer, Bernard A. Joseph, Jason Wisecup, Erica B. Miles, Counsel for Respondent

Author of Opinion: Ambro, Circuit Judge

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/02/2017 04:06 PM     3rd Circuit  

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