In removal proceeding in which alien (native of Honduras) argued that he was entitled to withholding of removal and CAT relief based on claim that he experienced police torture in Honduras in 1994, Ct. of Appeals lacked jurisdiction to review Bd.’s denial of alien’s application for withholding removal, where Bd. found that alien’s 1996 conviction for statutory rape was “particularly serious” crime, which in turn precluded alien from obtaining such relief. Section 1252(a)(2)(B)(ii) of INA prohibits review of Bd.’s discretionary determination that alien’s conviction was particularly serious crime in absence of alien raising any constitutional or legal question, and alien’s contention on review was nothing more than request to re-examine factors used to determine whether instant conviction was particularly serious crime. However, alien was entitled to remand for reconsideration of Bd.’s denial of alien’s CAT application for deferral of removal, where: (1) IJ had initially granted such relief, after finding likelihood that alien would be tortured if removed to Honduras; and (2) Bd. improperly used de novo standard instead of clear error standard when reversing IJ’s determination. Fact that Bd. identified one erroneous factual determination made by IJ did not entitle Bd. to use de novo standard for all factual determinations made by IJ, where correct finding on subject factual determination did not render IJ’s order granting CAT relief implausible or illogical.
Download Estrada-Martinez v. Lynch
Estrada fled Honduras in 1994 after police there detained and tortured him. An immigration judge granted Estrada relief from removal, finding that he will more likely than not face torture if he is removed to Honduras. The Board of Immigration Appeals reversed, finding Estrada not eligible for withholding of removal because he was convicted in an Illinois state court of statutory rape in 1996, a crime the Board deemed “particularly serious.” The Seventh Circuit remanded, finding that the BIA applied the wrong standard of review. While Estrada may be ineligible for “withholding of removal,” under the Immigration Act, 8 U.S.C. 1231(b)(3)(A), or the Convention Against Torture, he may be eligible for “deferral of removal” under only the Convention. The immigration judge found it more likely than not that Estrada will be tortured if he is removed to Honduras. The Board was required to review that factual finding only for clear error, not de novo.
