                                                               NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                              _____________

                                      No. 07-2137
                                     _____________


                                     IMEH I. JONES,
                                                  Petitioner
                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                             _____________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                  (No. A90-668-783)
                      Immigration Judge: Hon. Walter A. Durling
                                    _____________

                                  Argued April 13, 2010

      Before: SLOVITER and NYGAARD, Circuit Judges, and RESTANI * , Judge

                                 (Filed: October 18, 2010)


Alexander J. Urbelis (Argued)
Justin B. Perri
Michael D. Rips
Steptoe & Johnson
New York, NY 10019

      Attorneys for Petitioner




      *
           Hon. Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
R. Alexander Goring (Argued)
Peter D. Keisler
Jeffrey J. Bernstein
Gregory G. Katsas
Tony West
Richard M. Evans
Thomas W. Hussey
Michelle G. Latour
Virginia M. Lum
United States Department of Justice
Office of Immigration Litigation, Civil Division
Washington, D.C. 20044

       Attorneys for Respondent




                                         OPINION


SLOVITER, Circuit Judge.

       Imeh I. Jones has filed a petition for review of a final order of removal of the

Board of Immigration Appeals (“BIA”). We must decide whether the BIA applied the

appropriate standard of review of the decision of the Immigration Judge (“IJ”) in light of

our recent decision in Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010).

                                             I.

       Jones, a native and citizen of Nigeria, entered the United States in 1981 as a

nonimmigrant. He adjusted his status to that of a lawful permanent resident in 1992.

Since arriving in this country, Jones earned a Ph.D in economics, became Chief Financial

Officer of the Washington D.C. Department of Health and raised three children. Jones



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brought his mother to the United States from Nigeria to be treated for cancer. According

to Jones, he “ran up a substantial amount of debt in trying to pay for the medical needs of

his mother.” Pet’r’s Supplemental Br. at 3. In order to pay his debts, Jones stole money

from the New York City Department of Health and Mental Hygiene over the course of

three years and ultimately pled guilty to four counts of “Theft Concerning a Program

Receiving Federal Funds” in violation of 18 U.S.C. § 666(a)(1)(A). A.R. at 575.

       The Department of Homeland Security (“DHS”) commenced removal proceedings

against Jones on October 26, 2005, charging Jones with removability pursuant to the

Immigration and Nationality Act (“INA” or “the Act”) § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii), for being convicted of an aggravated felony. The IJ found Jones

removable, but granted his application for withholding of removal under the Convention

Against Torture (“CAT”), and alternatively granted Jones deferral of removal under the

CAT in the event that Jones was found statutorily ineligible for withholding on appeal.

       Jones and DHS both appealed to the BIA, which vacated the IJ’s decision with

regard to both bases for CAT protection. Specifically, the BIA found Jones statutorily

ineligible for withholding of removal under the CAT for having been convicted of a

particularly serious crime. The BIA also vacated the decision of the IJ with regard to

deferral of removal under the CAT, finding that there was “insufficient evidence” to

support the IJ’s determination that Jones would more likely than not be detained and

tortured if returned to Nigeria. This petition for review followed.



                                             3
                                              II.

       This court has jurisdiction to review final orders of removal under INA § 242, 8

U.S.C. § 1252, amended by REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat.

231, 305 (2005). Because Jones was convicted of an aggravated felony as defined under

the Act, our review is limited to “constitutional claims or questions of law . . . .” INA §

242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).

       Following oral argument, this court directed the parties to submit contemporaneous

memoranda as to the effect of our recent decision in Kaplun v. Att’y Gen., 602 F.3d 260

(3d Cir. 2010).1 In Kaplun, we held that when the BIA reviews an IJ’s determination

regarding whether torture is likely if an alien is removed to his or her country of origin, as

is the case here, it must examine separately the “two distinct parts to the mixed question .

. . .” Id. at 271. The two parts are: (1) what is likely to happen to the petitioner if

removed, a factual question subject to clear error review by the BIA; and (2) whether

what is likely to happen rises to the level of torture, a legal question reviewed de novo by

the BIA. Id.

       Jones argues that Kaplun compels a reversal of the BIA decision because the BIA

did not review for clear error the factual question of what was likely to happen to Jones

upon deportation, instead using terms like “no substantial basis in the record,” “no

       1
        This court granted the Government’s motion to hold this case in abeyance while the
Government sought rehearing in Kaplun. The petition for rehearing was denied and the
mandate issued on August 4, 2010. As such, the Government agrees that disposition is now
appropriate.

                                               4
persuasive evidence,” and “unsubstantiated” without clearly setting forth the standard.

Pet’r’s Mem. of Law with Respect to Kaplun, at 2. Jones argues that the BIA conflated

the two separate inquiries delineated in Kaplun and supplanted its own judgment rather

than deferring to the IJ. He asserts further that the BIA mischaracterized evidence in the

record; namely, Jones’ testimony regarding whether the Nigerian authorities were aware

of his convictions in the United States. Although not binding on this court’s reading of

the BIA decision, Jones also argues that the Government has conceded that the BIA

engaged in a de novo review of the IJ’s factual findings, relying on the now overruled

precedent Matter of V-K-, 24 I. & N. Dec. 500 (BIA 2008).

       The Government argues that Kaplun does not alter the ultimate conclusion because

even if the BIA applied what is now the incorrect standard of review, Jones failed to

established a likelihood of detention and torture on the record before the agency under

either standard. The IJ relied on several factors in determining that Jones was likely to be

detained and tortured upon his arrival in Nigeria, including evidence that Jones was

convicted of a crime in the United States, that foreign crimes are held prosecutable

offenses under Nigerian law, and that there is a widespread use of torture in Nigeria to

gain confessions of those accused of crimes. In light of the record before the BIA and the

IJ’s detailed opinion, we will remand to the BIA so that it can apply the proper standard

of review. In doing so, it must explain why the IJ’s decision was clearly erroneous on the

facts or erred as a matter of law, if it so holds. Because we do not address the underlying



                                             5
facts in this case, we need not address the new evidence presented by Jones; we leave that

issue to the BIA on remand.

       The Government argues that a remand would be futile in light of this court’s

decision in Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005). Jones counters that Auguste is

inapposite because Auguste held that deplorable prison conditions alone do not rise to the

level of torture whereas here Jones argued that he would be subjected to torture by prison

officials for the purpose of extracting a confession. We agree that the Auguste decision is

inapplicable. Moreover, the BIA did not decide whether what would happen to Jones if

he were detained in Nigeria rises to the level of torture because it found, employing a now

incorrect standard of review, that it was unlikely that Jones would be detained at all.

       Because the BIA applied the incorrect standard of review with respect to the

likelihood of torture, relevant to both bases for CAT protection, we need not resolve

whether Jones’ conviction constitutes a particularly serious crime rendering him ineligible

for CAT withholding.

                                            III.

       For the reasons set forth, we remand this matter to the Board of Immigration

Appeals for reconsideration in light of this court’s decision in Kaplun v. Att’y Gen., 602

F.3d 260 (3d Cir. 2010).




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