                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2007

Silva-Rengifo v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-4302




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
               _____________________

                  Nos: 04-4302, 05-3423
                 _____________________

               CARLOS SILVA-RENGIFO,

                               Petitioner

                              v.

              ATTORNEY GENERAL
      OF THE UNITED STATES; UNITED STATES
      DEPARTMENT OF HOMELAND SECURITY

                            Respondents
                  ____________________

   Consolidated Petitions for Review Of a Final Order of
                         Removal
         From the Board of Immigration Appeals
                       (A18 103 088)
                 ____________________

                Argued September 27, 2006

     Before: McKEE and AMBRO, Circuit Judges, and
                  RESTANI,* Judge

                 _____________________

              (Opinion filed: January 9, 2007)
                _____________________




*Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
ALEXANDER E. EISEMANN, ESQ. (Argued)
188 Spring Street,
South Salem, NY 10590
Attorney for Petitioner


JONATHAN POTTER, ESQ. (Argued)
DOUGLAS E. GINSBURG, ESQ.
MARK S. DES NOYER, ESQ.
WILLIAM C. PEACHEY, ESQ.
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent




                         OPINION




McKEE, Circuit Judge.

      Carlos Silva-Rengifo petitions for review of an en banc

decision of the Board of Immigration Appeals denying his

motion to reopen. The government did not initially oppose that

motion. However, after the Board granted permission to reopen,

the government petitioned for en banc review by the entire

Board. The BIA’s en banc decision reversed the decision to

allow Silva-Rengifo to reopen his motion. The en banc Board

held that Silva-Rengifo had not established a prima facie case

for relief under the United Nations Convention Against Torture

                              2
and Other Cruel, Inhuman or Degrading Treatment or

Punishment (the “Convention” or the “CAT”) because he had

not shown governmental acquiescence in the torturous conduct.

For the reasons that follow, we will reverse the BIA’s en banc

decision and remand to the BIA for further proceedings

consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

       Silva-Rengifo, a 47-year- old husband and father of three,

entered the United States as a lawful permanent resident in 1968

when he was only 11 years old, and he has lived here

continuously for the past 38 years. In 1990, he was convicted of

possession of cocaine with intent to distribute in state court in

New Jersey, for which he was sentenced to a period of

incarceration of three and one-half years.

       As a result of that conviction, removal proceedings began

against him in June 1991. In 1993, after a full hearing, an

Immigration Judge found him removable and denied his

application for section 212(c) hardship relief.1         The IJ


       1
        Discretionary withholding of removal under former 8
U.S.C. § 1182(c) (1994) is known as “section 212(c) relief.”
Relief in the form of a waiver of inadmissibility under this
section of the Act was eliminated by the Illegal Immigration

                                3
considered the equities that Silva-Rengifo presented, but

concluded that the equities and the evidence of family hardship

that would be caused by removal did not justify relief under

section 212(c). Silva-Rengifo appealed the IJ’s decision to the

BIA. The BIA rejected his appeal in December 1993. Although

the BIA held that Silva-Rengifo was removable in 1993, the INS

took no steps to remove him for several years. Seven years

later, on November 29, 2000, the INS issued a Form I-166, or

“bag-and-baggage” letter (requiring aliens with final removal

orders to report for deportation by a specified date)

implementing the BIA’s 1993 decision.

       On July 26, 2001, Silva-Rengifo was arrested on a

warrant that issued after he failed to appear in response to the

Bag and Baggage letter.2 Almost immediately thereafter, on

July 31, 2001, he filed a motion with the BIA asking it to reopen

or reconsider the 1993 decision so that he could produce

evidence that would establish his eligibility for relief under the



Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. No. 104-208, 110 Stat. 3009-54C (1996). But see INS v.
St. Cyr, 533 U.S. 289, 326 (2001).
       2
         There is a dispute about whether Silva-Rengifo received
that letter and whether it was properly mailed to him.

                                4
CAT. He argued that, due to changed country conditions since

the IJ’s 1993 decision, he would face an unacceptable risk of

death or serious injury if removed to Colombia. The record

before the Board included documentary evidence of the changed

country conditions, including evidence of human rights abuses

and extrajudicial killings carried out by the government,

kidnapings by paramilitary and guerilla forces, and cooperation

or collusion between such groups and the government.3

       The BIA granted the motion to reopen in part, and denied

it in part. The Board relied on St. Cyr, 533 U.S. 289 (2001) to

deny reopening Silva-Rengifo’s section 212(c) application to

present additional evidence of his rehabilitation during the seven

years since the initial BIA decision.      However, the Board

granted the request for consideration of relief under the CAT.

The Board explained:

       He also wishes the hearing to be reopened so that he can


       3
         Silva-Rengifo also attached proof that he barely spoke
Spanish, had no contacts in Colombia, and that his entire family,
including his wife and children, all resided in the United States.
This evidence was included to support reconsideration of his
request for 212(c) relief by the Board and his claim that he
should be allowed to present additional evidence of further
rehabilitation since the IJ’s 1993 rejection of his request for
equitable relief under § 212(c).

                                5
       apply for asylum and withholding of deportation to
       Colombia . . . . [He] is barred . . . from filing an asylum
       or CAT application unless he can show changed
       circumstances in his country of nationality or
       extraordinary circumstances relating to the delay.

                              ***

       The respondent has demonstrated changed circumstances
       in his country of nationality. The background information
       demonstrates a significant deterioration in society since
       his hearing. His claim that he belongs to a persecuted
       social group of foreign nationals or those perceived to be
       foreign nationals is supported by the reports submitted
       with this motion. Therefore, we find he has made a
       prima facie case of a well-founded fear of persecution to
       qualify for asylum. However, there is little evidence that
       the government acquiesces in torture; this issue should be
       developed at the hearing regarding whether he has not
       demonstrated a (sic) eligibility for relief under the
       Convention Against Torture. See Matter of S-V-, Interim
       Decision 3430 (BIA 2000).


App. at 50. The Board thereafter entered an order granting

Silva-Rengifo’s motion to reopen, and remanded the appeal to

the IJ for further proceedings consistent with its opinion.

       The government responded to the BIA’s partial grant of

relief by petitioning for en banc reconsideration of the BIA’s

order. As summarized in the BIA’s en banc decision, the

Department of Homeland Security (“DHS”) argued that Silva-

Rengifo’s application for relief was untimely, and that he had

not “set forth a prima facie case for eligibility under the CAT

                                6
since he did not show that he was more likely than not to face

torture by those acting with the consent or acquiescence of

public officials.” (citing 8 C.F.R. §§ 1208.18(a)(1),(7)).

       The en banc Board rejected DHS’s claim that Silva-

Rengifo’s motion to reopen was untimely, stating: “We stand by

our previous finding that the respondent can demonstrate

changed country conditions as a basis for justifying the late

filing of his application for relief.” App. at 38. (BIA en banc

Decision 2004). However, the en banc Board nevertheless held

that allowing Silva-Rengifo to reopen was error because he had

not established that the Colombian government acquiesces to

torture. The Board explained:

              The respondent, however, did not provide
       evidence of his prima facie eligibility for relief under the
       Convention Against Torture because he failed to show
       that any harm that might befall him in Colombia would
       be meted out by the government or by those acting with
       the consent or actual acquiescence of the government. 8
       C.F.R. §§ 1208.18(a)(1), (7). Protection under the
       Convention Against Torture does not extend to those
       who are harmed by groups that the government is unable
       to control. See Matter of S-V-, 22 I&N Dec. 1306 (BIA
       2000).

App. at 38 (BIA en banc Decision 2004) (emphasis added). The

Board concluded that “because the record contain[ed] little

evidence that the [Colombian] government acquiesces in torture

                                7
of those perceived to be foreign, the respondent has failed to

demonstrate prima facie eligibility for relief under the

Convention Against Torture, and, therefore, the motion to

reopen should have been denied.”        Id. at   38-39 (internal

quotation marks omitted).

       Silva-Rengifo then filed the instant petition for review of

the en banc decision. He also filed for habeas corpus relief in

the United States District Court for the District of New Jersey.

He raised the following five claims for relief in his petition for

review: (1) the government had waived any challenge to his

prima facie case by failing to initially oppose his motion to

reopen; (2) the BIA erred in concluding that he had not

established a prima facie case; (3) he was wrongly precluded

from introducing additional evidence of his rehabilitation and

seeking reconsideration of the BIA’s 1993 decision; (4) the INS

was precluded from enforcing the initial order of removal

because of laches and/or equitable estoppel; and (5) his

underlying conviction should not be considered an “aggravated

felony” for immigration purposes.

       Pursuant to a motion by the government, Silva-Rengifo’s

habeas petition was transferred from the district court to this

                                8
court under the REAL ID Act of 2005, Pub. L. No. 109-13, div.

B, 119 Stat. 231 (2005) (the “REAL ID Act”). His original

petition for review is consolidated with the habeas petition

which we must treat as a petition for review, and both are now

before us. Kamara v. Att’y Gen., 420 F.3d 202, 210 (3d Cir.

2005).

   II. JURISDICTION AND STANDARD OF REVIEW

                         A. Jurisdiction

         Under the REAL ID Act, a petition for review is now the

exclusive means of judicial review of all orders of removal

except those issued pursuant to 8 U.S.C. §1225(b)(1). See 8

U.S.C. § 1252(a)(5) (2005).          Moreover, all habeas corpus

petitions filed by aliens seeking relief from removal that were

pending in the district courts on the date the REAL ID Act

became effective (May 11, 2005) were converted to petitions for

review and transferred to the appropriate court of appeals. See

8 U.S.C. § 1252(a)(5); see also Hernandez v. Gonzales, 437

F.3d 341, 344 (3d Cir. 2006).4


         4
         Cases so transferred are not subject to the thirty-day
filing deadline in section 242(b)(1) of the Immigration and
Nationality Act. REAL ID Act § 106(c); 8 U.S.C.
§ 1252(a)(5); see also Kamara, 420 F.3d at 210.

                                 9
       Accordingly, we now have before us two petitions for

review. The first is the petition for review that Silva-Rengifo

filed in this court seeking review of the BIA’s en banc denial of

his motion to reopen. As noted, there, the en banc Board denied

the motion based upon its conclusion that he had not

demonstrated prima facie eligibility for relief under the CAT.

The second is the converted habeas petition that Silva-Rengifo

originally   filed    in   the   district court, challenging   the

constitutionality of the removal proceedings.

                 B. STANDARD OF REVIEW

       Although Silva-Rengifo’s habeas corpus petition has now

been converted to a petition for review, our standard of review

remains the same. “A review for ‘constitutional claims or

questions of law,’ as described in § 106(a)(1)(A)(iii) of the

REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our previously

enunciated standard of review over an alien's habeas petition.”

Kamara, 420 F.3d at 210-11. Thus, we review Silva-Rengifo’s

constitutional and legal questions de novo, id., but defer to the

BIA’s reasonable interpretations of statutes it is charged with

administering.       INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

                                  10
467 U.S. 837, 842-43 (1984).

       The same standard applies to Silva-Rengifo’s petition for

review under the REAL ID Act. Prior to enactment of the

REAL ID Act, we would not have had jurisdiction to review

Silva-Rengifo’s claim because an alien who was removable

because of a conviction for an aggravated felony was statutorily

barred from petitioning a court of appeals for review of the

BIA's finding that he was ineligible for CAT relief. See 8

U.S.C. § 1252(a)(2)(c). However, the REAL ID Act eliminated

that barrier as to “constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court

of appeals.” See 8 U.S.C. § 1252(a)(2)(D); see also Kamara,

420 F.3d at 211 (noting that REAL ID Act’s jurisdictional grant

regarding appeals by aggravated felons extends not just to legal

determinations but also to application of law to facts).

Accordingly, we also afford de novo review to the BIA’s en

banc decision.

                      III. DISCUSSION

       As noted above, the en banc BIA reversed the order

allowing Silva-Rengifo to reopen his case “because he failed to

show that any harm that might befall him in Colombia would be

                               11
meted out by the government or by those acting with the consent

or actual acquiescence of the government.” App. at 38. (Citing

8 C.F.R. §§ 1208.18(a)(1),(7), and its earlier decision in Matter

of S-V-, 22 I&N Dec. 1306 (BIA 2000)). Although Silva-

Rengifo raises four other issues in his petitions for review,

inasmuch as we will vacate the en banc decision based upon its

erroneous interpretation of the requirement for governmental

“acquiescence” under the CAT, we need not rule on his

remaining claims.     Rather, we will dismiss them without

prejudice to Silva-Rengifo’s ability to raise those arguments on

remand to the Board.5

            A. The Convention Against Torture

       The United States signed the Convention Against Torture

on April 18, 1988, and the Senate ratified it on October 27,

1990. 136 Cong. Rec. S17, 486-501 (daily ed. Oct. 27, 1990).

It became binding on the United States in November of 1991,



       5
          As noted above, the BIA stated that it was reversing its
prior ruling because the record contained “little evidence that the
Colombian government acquiesces in torture of those perceived
to be foreign,” and because Silva-Rengifo had therefore “failed
to demonstrate a prima facie eligibility for relief under the
Convention . . . .” Both explanations turn on the meaning of
“acquiescence” in the CAT.

                                12
after President Clinton delivered the ratifying documents to the

United Nations. U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995);

Convention, art. 27(2).       The Foreign Affairs Reform and

Restructuring      Act   of   1998   (“FARRA”)     initiated   the

implementation of the Convention. Pub. L. No. 105-277, div.

G., tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C.

§ 1231 note). That provision provides in part that “[n]o state

[shall] . . . expel, return (‘refouler’) or extradite a person to

another state where there are substantial grounds for believing

that he would be in danger of being subjected to torture.” Id.

Accordingly, it became “the policy of the United States not to

expel . . . or otherwise effect the involuntary return of any

person to a country in which there are substantial grounds for

believing the person would be in danger of being subjected to

torture . . . .” Id.; see also Li v. Ashcroft, 312 F.3d 1094, 1103

(9th Cir. 2002).

       “An applicant for relief on the merits under [Article 3 of]

the Convention Against Torture bears the burden of establishing

‘that it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.’” Sevoian v.

Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002) (quoting 8

                                13
C.F.R. § 208.16(c)(2)). “The United States Senate specified this

standard, as well as many of the other standards that govern

relief under the Convention, in the several ‘understandings’ that

it imposed on the United States’ ratification of the Convention

Against Torture.” Id. at 175 (citations omitted). Unlike with

asylum or withholding of removal, an alien seeking relief under

the CAT need not establish that he/she is a “refugee” and

therefore need not establish that torture is inflicted “on account

of” any protected status. See Amanfi v. Ashcroft, 328 F.3d. 719,

725   (3d Cir. 2003) (“A petition for protection under the

Convention Against Torture differs significantly from petitions

for asylum or withholding of removal because the alien need not

demonstrate that he will be tortured on account of a particular

belief or immutable characteristic.”).       Rather, he/she must

establish a likelihood of being subjected to torturous acts

inflicted “by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 1208.18(a)(1) (2006) (emphasis

added).

       “Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have awareness

                                14
of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.” 8 C.F.R. §

1208.18(a)(7). If an alien produces sufficient evidence to satisfy

that burden, withholding of removal or deferring of removal is

mandatory. 8 C.F.R. §§ 1208.16 - .18. However, as shall

become clear from our discussion, the alien need not establish

actual knowledge by government officials of torturous conduct

particular to the petitioner.

       As noted at the outset, in denying Silva-Rengifo’s motion

to reopen, the en banc BIA reversed the Board’s 2001 decision.

The en banc Board relied upon the language of section

1208.18(a)(1) of the Convention’s implementing regulations

together with the Board’s decision in Matter of S-V-, 22 I&N

Dec. 1306 (BIA 2000). The Board reasoned that Silva-Rengifo

had not established that any torture he might be subjected to

“would be meted out by the government or those acting with the

consent or actual acquiescence of the government,” and that the

Convention “does not extend to those who are harmed by groups

the government is unable to control.” App. at 38 (emphasis

added).

       We cannot accept the Board’s conclusion that the

                                15
acquiescence that must be established under the CAT requires

actual knowledge of torturous activity as required in Matter of

S-V-. Similarly, although a government’s ability to control a

particular group may be relevant to an inquiry into governmental

acquiescence under the CAT, that inquiry does not turn on a

government’s “ability to control” persons or groups engaging in

torturous activity. See, e.g. Tunis v. Gonzales, 447 F.3d 547,

551 (7th Cir. 2006) (finding the issue of the Sierra Leone

government’s ability to control torture by private individuals

irrelevant    where     th e   torturous     a c t i v i t y— f e m a l e

circumcision—was legal and well-known to the government,

thus concluding the applicant for relief under the CAT had

satisfied her burden). The CAT does not require an alien to

prove that the government in question approves of torture, or

that it consents to it. Rather, as the court concluded in Zheng v.

Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003), an alien can

satisfy the burden established for CAT relief by producing

sufficient evidence that the government in question is willfully

blind to such activities. See id. (holding that Congress has made

clear that the correct inquiry under the Convention is whether an

applicant can show that public officials demonstrate “willful

                               16
blindness” to the torture of their citizens by third parties). 6 A

closer look at the decision in Zheng illustrates this point.

       Zheng, a native of China, petitioned for review of an

Immigration Judge’s decision denying his claim for relief under

the CAT. Zheng had introduced evidence that he had been

smuggled out of China by “snakeheads,” professional smugglers

who were part of “an enormous organization” that was very

powerful and pervasive. 332 F.3d at 1189. An expert testified

that people who failed to pay their debts to those smugglers

faced death or torture including dismemberment. Id. at 1189

n.5. Evidence showed that the People’s Republic of China



       6
           Governmental acquiescence under the Torture
Convention has been defined to include governments who are
unable and unwilling to protect their citizens from persecution.
See, e.g., Orenelas-Chavez v. Gonzales, 458 F.3d 1052, 1060
(9th Cir. 2006) (Under the CAT “[i]t is enough that public
officials could have inferred the alleged torture was taking
place, remained willfully blind to it, or simply stood by because
of their inability or unwillingness to oppose it.”) (citing Zheng,
332 F.3d at 1195 n.8); see also K RISTEN B. R OSATI, T HE U NITED
N ATIONS C ONVENTION A GAINST T ORTURE: A S ELF-E XECUTING
T REATY T HAT P REVENTS T HE R EMOVAL OF P ERSONS INELIGIBLE
FOR A SYLUM AND W ITHHOLDING OF R EMOVAL, 26 Denv. J. Int'l
L. & Pol'y 533, 539 (1998); compare Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002) (to establish eligibility for asylum, an
applicant must demonstrate past persecution that is “committed
by the government or forces the government is unable or
unwilling to control”).

                               17
“would not protect” its citizens from the wrath of snakeheads

because “the existence of the snakeheads as a criminal syndicate

was not acknowledged by [the government].” Id. Interceding

on behalf of the syndicate’s victims would be tantamount to an

admission that the syndicate existed and cause the government

to “‘lose face,’ which ‘the Chinese government simply [was] not

going to do . . .’.” Id. (ellipsis in original).

       Zheng testified that he was beaten and tortured by the

snakeheads on board the boat bound for the United States and

that he had been a material witness against some of these

snakeheads in a criminal proceeding following his arrival in the

continental United States from Guam. Id. at 1189-90. He

reported both the torture and the names of the seamen involved

in transporting him from China to Guam to United States

officials. Id. at 1190. After doing so, he was approached by a

snakehead while waiting to use the restroom and told to be

careful as he might “be dead for sure.” Id. Although Zheng had

not feared reprisal while remaining under the protection of the

United States government, he testified that if returned to China

he would be killed or tortured by snakeheads or their associates

and he therefore requested withholding of removal under the

                                 18
CAT. The IJ found that Zheng had testified credibly. Id. at

1191.

        To establish that the Chinese government acquiesced in

the actions of the snakeheads, Zheng offered evidence of

collusion between snakeheads and government officials. This

included testimony about an instance where Zheng saw

snakeheads give three cartons of cigarettes to police at the

harbor before his group was allowed to board the boat they were

smuggled out on, and evidence of several instances of

socializing between government officials and snakeheads. Id.

at 1190-91.     Zheng argued that this established official

participation in the smuggling.

        The government opposed relief from removal, arguing

that Zheng’s testimony established nothing more than some

collusion between local government or provincial officials, and

that this did not establish acquiescence on the part of the

Chinese government.        The government’s position was

strengthened by a State Department Country Report on China

stating that it appeared to be taking “active measures to target

people smugglers [and that] . . . . several scores of people

smugglers and [government officials] reportedly [had] been

                              19
convicted, fired from jobs, or expelled from the Communist

Party.” Id. at 1191.

        The IJ rejected the government’s argument based upon

his conclusion that Zheng’s testimony established that the

government acquiesced to torture within the meaning of the

CAT. The IJ granted withholding of removal under the CAT,

explaining that Zheng’s evidence established “that the

government condones or at least is not willing to interfere and,

in a way, acquiesces to the smugglers’ conduct.” Id. The INS

appealed to the BIA. “The issue presented to the BIA was

whether [Zheng] failed to demonstrate acquiescence of a public

official or other person acting in an official capacity as required

by 8 C.F.R. 208.18.” Id. at 1191 (internal quotation marks

omitted).

       “The INS argued that the Chinese government turning a

blind eye to its citizens being smuggled out of the country was

not tantamount to acquiescence to torture.” Id. at 1192. The

INS attempted to rigidly compartmentalize the illegal actions of

the snakeheads by claiming that,

       [e]ven if some Chinese police take bribes to let refugees
       pass through checkpoints, this is a purely non-violent and
       relatively benign offense. It does not raise any inference

                                20
       whatsoever that such bribe-takers would be amenable to
       violence; i.e., that with prior knowledge they would
       allow the commission of acts of . . . torture . . . .

Id. (internal quotation marks and original brackets omitted,

emphasis in original). The BIA sustained the INS’s appeal,

relying upon its decision in Matter of S-V-. The BIA concluded

that even if factions within the Chinese government colluded in

the snakehead’s smuggling and took no action to stop it, that did

not establish that the government acquiesced in torture. Zheng

petitioned for review to the Court of Appeals for the Ninth

Circuit.

       The resolution of Zheng’s petition for review “hinge[d]

on the interpretation of the term acquiescence as used in 8

C.F.R. 208.18.” Zheng, 332 F.3d at 1194 (emphasis in original).

The Court of Appeals rejected the rationale of Matter of S-V-,

and held that the Board’s interpretation of “acquiescence”

“impermissibly narrows Congress’ clear intent in implementing

relief under the Convention Against Torture.” Id. The court

concluded that Zheng did not have to establish the government’s

“actual knowledge” of torturous conduct as Matter of S-V-

required. Rather, the court held that Zheng could establish the

requisite   governmental    acquiescence    by   showing     that

                               21
government officials were willfully blind to the activities of the

snakeheads. We agree. We therefore reject the Board’s reliance

on Matter of S-V- here.

        In Matter of S-V-, the BIA reviewed the removal order of

a Colombian national who was residing in the United States as

a lawful permanent resident when he was convicted of a crime

of violence. The Board concluded he was removable, and the

alien sought relief arguing that, if returned to Colombia, “he

would    be   in   danger from      nongovernmental guerrilla,

narcotrafficking, and paramilitary groups in Colombia . . . . [He

claimed that] the guerillas finance their operations through

kidnaping . . . [and] that he would be a target for kidnapers

because he [had] family in the United States and [was] unable

to speak Spanish correctly.”        22 I&N Dec. at 1307.       He

submitted country reports and newspaper articles “detailing the

violence, including kidnaping . . . [and] a Department of State

travel warning stating that United States citizens have been the

victims of threats, kidnaping, hijacking, and murder . . . .” as

well as other reports and documentation. Id.

        The BIA ruled that S-V- had not met his burden of

demonstrating that he was eligible for relief under the CAT

                               22
because he had not shown that the Colombian government’s

failure to protect its citizens “[was] the result of deliberate

acceptance of the guerillas’ activities.” Id. at 1313. The Board

noted that torturous conduct must be inflicted “‘by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.’” Id. at

1311 (quoting 8 C.F.R. § 208.18(a)(1)).

       Zheng’s rejection of Matter of S-V- clarified the correct

standard for “acquiescence” as set forth in the legislative history

of the enactment of the CAT.            A brief review of the

Convention’s implementing legislation confirms that Congress

intended that relief under the Convention not be limited to

situations where public officials have actual knowledge of

torturous activity.

       The CAT was submitted to the Senate by President

Ronald Reagan for advice and consent on May 23, 1988. See S.

Exec. Rep. 101-30, at 35 (1990). Along with the Convention,

the   President   proposed     17    conditions,   including    an

understanding that acquiescence meant that the “‘public official,

prior to the activity constituting torture, [must] have knowledge

of such activity and thereafter breach his legal responsibility to

                                23
intervene to prevent such activity.’” Khouzam v. Ashcroft, 361

F.3d 161, 170 (2d Cir. 2004) (emphasis added) (quoting S. Exec.

Rep. 101-30, at 15 (1990)). However, upon review of the

proposed conditions, the Senate Foreign Relations Committee

was concerned that “knowledge” was too limiting and “created

the impression that the United States was not serious in its

commitment to end torture worldwide.” Id.; see also S. Exec.

Rep. 101-30, at 4 (1990). These concerns were addressed two

years later when the first President Bush administration

submitted a revised and reduced list of proposed conditions. Id.

The revised list contained an understanding of the definition of

acquiescence that required that an official have only

“awareness” of the torturous activity, rather than “knowledge.”

Id.

       The Senate Foreign Relations Committee reported that
       this change was intended to make it clear that both actual
       knowledge and ‘willful blindness' fall within the
       definition of the term ‘acquiescence.’ The Senate
       adopted a resolution of advice and consent to ratification
       of the Convention on October 27, 1990, subject to the
       revised reservations, understandings, and declarations.

Khouzam, 361 F.3d at 170-71 (quotations and citations omitted)

(emphasis added). The regulations reflect this intention. See

C.F.R. § 208.18(a)(7) (requiring awareness, not knowledge of

                               24
torturous activity). Notably, when President Clinton ultimately

deposited the instrument of ratification with the United Nations

on October 21, 1994, he included the Senate’s understandings

in the instrument of ratification. See 1830 U.N.T.S. 320, 321

(1994).

       As noted above, FARRA implements U.S. obligations

under the CAT. Pub. L. No. 105-277, div. G., tit. XXII, § 2242,

112 Stat. 2681-822 (codified at 8 U.S.C. § 1231 note). The first

section of FARRA, § 2242(a), contains a general statement of

congressional policy not to return persons to countries where

there are substantial grounds for believing the person would be

in danger of being subjected to torture.7 The following section,

§ 2242(b), which substantively implements the Convention,

directs “the heads of the appropriate agencies” to “prescribe

regulations to implement the obligations of the United States

under Article 3 of the [Convention], subject to any reservations,

understandings, declarations, and provisos contained in the

United States Senate resolution of ratification of the


       7
         That condition is clearly satisfied if an alien can
establish sufficient collusion between groups in the country, or
factions within the government itself, whose actions are
tolerated, if not condoned, by those in government.

                               25
Convention.” 8 U.S.C.A. § 1231 note. Hence, the Convention

and its accompanying regulations must be read in conjunction

with the understandings prescribed by the Senate, which make

clear that the definition of “acquiescence” includes both actual

knowledge and “willful blindness.” 8

       As in Zheng, the court in Khouzam also recognized the

import of the implementing legislation and senatorial

understandings of the Convention in analyzing the legal

standard for “acquiescence” under the CAT. In Khouzam, the

Second Circuit granted relief to an Egyptian seeking protection

under the Convention on review of a final Board order. 361

F.3d 161.    Khouzam was an alien who was suspected by


       8
          In addition to the language of the Convention itself and
the Senate’s understandings, the Convention’s drafting history
also supports this conclusion. The Second Circuit notes that the
consent or approval requirement would have been more
consistent with the text first proposed by Sweden in 1979.
Khouzam, 361 F.3d at 171. It was the United States that
proposed broadening this text to include acquiescence. Id.
(citing J. H ERMAN B URGERS & H ANS D ANELIUS, T HE U NITED
N ATIONS C ONVENTION A GAINST T ORTURE 4-42 (1988)). The
text suggested by the United States would have defined “public
official” in Article 2 of the Convention to include those who
“fail to take appropriate measures to prevent or suppress torture
when such person has knowledge or should have knowledge that
torture has or is being committed and has the authority or is in
a position to take such measures . . . .” Burgers & Danelius,
Supra, at 42 (emphasis added).

                               26
Egyptian authorities of having committed a murder. Id. at 163.

He petitioned for relief from removal to Egypt based on

evidence that Egyptian police routinely exacted confessions

from accused criminals through torture. Id. at 169. The BIA

had rejected his claim, concluding that relief under the CAT

requires consent or approval of government officials.9 Id. at

169-70. The court found this standard too high and reversed the

BIA’s decision, holding that relief under the CAT does not

require “consent or approval” to torturous conduct, but instead

“requires only that government officials know of or remain

willfully blind to an act and thereafter breach their legal

responsibility to prevent it.” Id. at 171 (emphasis added).

       The error in Matter of S-V- may have arisen from the

Board’s assumption that Congress “meant to exclude or modify”




       9
          The court reversed the BIA deportation order on two
bases, only one of which concerns our analysis here. The first
basis for the court’s reversal was the BIA’s finding that
Khouzam was fleeing from prosecution of a crime and therefore
that any acts perpetrated against him would arise from a lawful
sanction and therefore did not constitute torture. The court
found such a conclusion “patently erroneous.” Khouzam, 361
F.3d at 169. The court observed that “[i]t would totally
eviscerate the CAT . . . [if] once someone is accused of a crime
it is a legal impossibility for any abuse inflicted on that person
to constitute torture.” Id.

                               27
the legal effect of the Convention upon implementation. See 22

I&N Dec. at 1312. Based on this premise, the BIA interpreted

the implementing legislation as “limiting,” rather than

expanding or simply clarifying, the section of the CAT which

defines torturous acts as those committed with the consent or

acquiescence of a public official. See id. Such an assumption

is contrary to legislative history.

       By attaching the aforementioned understanding, the

Senate could hardly have made it clearer that it did not intend

“acquiescence” in the Convention to require a showing that the

government in question was actually aware of the conduct that

constitutes torture. Rather, an alien seeking relief under the

CAT can establish that the government in question acquiesces

to torture by showing that the government is willfully blind to a

group’s activities. Any more restrictive reading of the CAT

would be inconsistent with the fact that the Senate ratified the

Convention only after attaching an understanding that

acquiescence does not require “actual knowledge.” See S.

Exec. Rep. 101-30, at 36 (1990).

       “To interpret the term acquiescence as the BIA did . . .

misconstrues and ignores the clear Congressional intent quoted

                                28
by the BIA merely a paragraph above its restrictive holding.”

Zheng, 332 F.3d at 1196. “The definition of torture has been

properly left not to the INS, but to Congress, which instructed

the INS to ‘prescribe regulations to implement the obligations

of the United States under Article 3 of the [Convention] subject

to any reservations, understandings, declarations, and provisions

contained in the United States Senate resolution of ratification

of the Convention.” Id. (brackets and emphasis in original).

       Here, the record establishes that Silva-Rengifo produced

evidence that may support a finding that the Colombian

government is in a collusive relationship with certain groups that

engage in torture. The evidence may also support a finding that

the Colombian government actually participates in the type of

torture he fears, in that it fails to prosecute officials and groups

charged with human rights offenses. In his motion to reopen,

Silva-Rengifo alleged:

       Government forces continued to commit numerous,
       serious abuses, including extrajudicial killings, at a level
       that was roughly similar to that of 1998. Despite some
       prosecutions and convictions, the authorities rarely
       brought officers of the security forces and the police
       charged with human rights offenses to justice, and
       impunity remains a problem . . . Paramilitary forces find
       a ready support base within the military and police . . .
       [There were n]o results reported in the investigation into

                                29
       cooperation between [the government’s anti-kidnaping]
       squads and illegal paramilitary groups . . . Paramilitary
       groups were also responsible for kidnapings.

A.R. at 330, 338 (citing 1999 Country Reports on Human Rights

Practices, released by the Bureau of Democracy, Human Rights,

and Labor, U.S. Dept. of State, February 25, 2000).10

Government participation in torture certainly suffices to

establish acquiescence under the CAT, but it is not necessary.

Evidence that officials turn a blind eye to certain groups’

torturous conduct is no less probative of government

acquiescence.

       We thus reject the reasoning in Matter of S-V- and the

rationale of the en banc Board in denying Silva-Rengifo’s

motion to reopen. In this regard we join our sister circuits. The

“willful blindness” standard has been adopted by those courts of

appeals that have addressed the legal standard for the




       10
           In the analogous context of an asylum application, we
have acknowledged that the Colombian government “has done
little to address the problem of links between its military and
paramilitary groups.” Vente v. Gonzales, 415 F.3d 296, 302 n.5
(3d Cir. 2005) (quoting Human Rights Watch, The “Sixth
Division”: Military-[P]aramilitary Ties and U.S. Policy in
Colombia, Sept. 2001).

                               30
“acquiescence” under the CAT.11 In addition to Zheng in the

Ninth Circuit and Khouzam in the Second, the Fourth, Fifth and

Sixth Circuits have adopted the “wilful blindness” standard for

acquiescence. See Lopez-Soto v. Ashcroft, 383 F.3d 228, 240

(4th Cir. 2004) (“awareness includes both actual knowledge and

willful blindness.”) (citing Zheng, 332 F.3d at 1194) (quotations

omitted); Ontunez-Tursios v. Ashcroft, 303 F.3d 341 (5th Cir.

2002);12 Ali v. Reno, 237 F.3d 591 (6th Cir. 2001).

       We are persuaded both by the the foregoing history of the

Convention’s implementing legislation, and the sound logic of

our sister circuit courts of appeals, that the definition of

“acquiescence” adopted in Matter of S-V- was the wrong legal

standard to apply. For purposes of CAT claims, acquiescence



       11
          The Court of Appeals for the Eighth Circuit has not
directly addressed the meaning of “acquiescence,” although the
issue has been presented to that court. In Perinpanathan v. INS,
310 F.3d 594 (8th Cir. 2002), the court held that the petitioner
could not successfully argue that he feared torture by the
insurgent group, the “Liberation Tigers of Tamil Elam,” because
the Tigers are an illegal terrorist organization, “and its
participants cannot be considered government officials.” 310
F.3d at 599. However, it is clear that the CAT is not limited to
torture inflicted by government officials.
       12
         The Court of Appeals for the Fifth Circuit recently
affirmed the holding in Ontunez-Tursios, in Chen v. Gonzales,
No. 05-60379, 2006 WL 3374974 (5th Cir. Nov. 22, 2006).

                               31
to torture requires only that government officials remain

willfully blind to torturous conduct and breach their legal

responsibility to prevent it. Accordingly, we conclude that the

Board’s en banc decision adopted an incorrect legal standard in

requiring official “consent” or “actual acquiescence” rather than

willful blindness as set out in the Convention’s implementing

regulations.

                  B. Necessity of a Remand

       Based on the Supreme Court’s decision in INS v.

Ventura, 537 U.S. 12 (2002) (per curiam), we do not review the

evidence under the correct standard for acquiescence to

determine if there is substantial evidence to support the BIA’s

conclusion that Silva-Rengifo does not qualify for relief under

the Convention. Rather, we must remand to the BIA to give the

BIA the first opportunity to apply the correct standard of

acquiescence. See id. at 16 (“Generally speaking, a court of

appeals should remand a case to an agency for decision of a

matter that statutes place primarily in agency hands.”); see also

Zheng at 1197 (remanding to the BIA to apply the correct

standard of “acquiescence”).

                       IV. Conclusion

                               32
       For the reasons set forth above, we grant Silva-Rengifo’s

petition for review, vacate the final order of removal, and

remand to the BIA for further proceedings consistent with this

opinion, which rejects the Board’s erroneous reliance on Matter

of S-V-.   Silva-Rengifo’s remaining claims are dismissed

without prejudice and may be raised on remand for resolution by

the Board or on further remand to the Immigration Judge.




                              33
