                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1217
                                       ___________

                           RAFAEL IGNACIO GUERRERO,
                    a/k/a RAFAEL IGNACIO GUERRO-SANCHEZ,
                                          Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA
                   ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A076-736-498)
                Immigration Judge: Honorable Roxanne C. Hladylowycz
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 18, 2016

              Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                           (Opinion filed: November 30, 2016)
                                      ___________

                                 AMENDED OPINION*
                                    ___________

PER CURIAM

       Rafael Guererro, proceeding pro se and in forma pauperis, petitions for review of



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
the Board of Immigration Appeals’ (BIA) final order of removal. For the following

reasons, we will grant the petition for review.

                                             I.

       Guerrero, a citizen of Mexico, attempted to enter the United States in January

1998 by presenting a fraudulent birth certificate. An immigration officer at the border

determined that he was inadmissible for having sought admission by fraud or

misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)(i), and immediately returned him to

Mexico pursuant to an expedited removal order, see id. § 1225(b)(1). Guerrero re-

entered the United States illegally on an unknown date.

       In April 2012, Guerrero was arrested for his role in an eastern Idaho drug

trafficking organization. Guerrero pleaded guilty to conspiracy to distribute in excess of

50 grams of methamphetamine, and was sentenced to forty-two months’ imprisonment.

See 21 U.S.C. §§ 846, 841(a)(1). The Department of Homeland Security (DHS) then

reinstated the expedited removal order issued against him in 1998. At that time, Guerrero

expressed a fear of returning to Mexico and was referred to a DHS asylum officer for a

reasonable-fear interview. See 8 C.F.R. § 241.8(e). Following the interview, the asylum

officer determined that Guerrero’s fear of persecution was reasonable and referred the

matter to an Immigration Judge (IJ). See id. § 1208.31(b)-(e). Guerrero requested

deferral of removal under the Convention Against Torture (CAT).1 See id. § 1208.16.



1
  Guerrero also applied for withholding of removal under 8 U.S.C. § 1231(b)(3). The IJ
later determined that he was ineligible for such relief because his drug trafficking
conviction was a “particularly serious crime” within the meaning of 8 U.S.C.
                                              2
       At the hearing, Guerrero testified that he was afraid to return to Mexico because

members of a drug cartel based in Sinaloa were looking for him. Guerrero explained that

prior to his arrest in 2012, he had been helping the cartel transport drugs into the country.

During this time, one of his drivers disappeared with money owed to the cartel.

According to Guerrero, the cartel held him responsible for the theft and threatened him.

       Guerrero further testified that, while he was serving his federal sentence in the

United States, members of the cartel in his home state of Sonora had kidnapped and

beaten his brother. The kidnappers warned Guerrero’s brother that they were awaiting

Guerrero’s return. Guerrero testified that his brother had filed a police report (which

Guerrero submitted into evidence), but claimed that the police did not investigate the

crime or make any arrests.

       Guerrero told the court that law enforcement in Mexico would not be able to

protect him if he were forced to return because the Mexican government has been

infiltrated by the Sinaloa cartel. In support of these allegations, Guerrero submitted

several reports issued by the State Department, including its 2014 Report on Human

Rights Practices for Mexico, its 2015 International Narcotics Control Strategy Report on

Mexico, as well as a Travel Warning issued on May 5, 2015. He also submitted a

number of news articles concerning cartels and corruption in Mexico.

       Following the hearing, the IJ determined that Guerrero had failed to meet his

burden under the CAT because he had not demonstrated that it was more likely than not

§ 1231(b)(3)(B)(ii). Guerrero did not seek administrative review of his withholding
claim, and he does not attempt to obtain review of it here.


                                              3
that he would be tortured by, or with the acquiescence of, the Mexican government if

forced to return. See 8 C.F.R. § 1208.16(c)(2). Guerrero filed an administrative appeal.

Upon review, the BIA affirmed the IJ’s decision and dismissed the appeal.2

       Guerrero now petitions for review of the BIA’s order.

                                             II.

       We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). “When,

as here, the BIA affirms an IJ’s decision and adds analysis of its own, we review both the

IJ’s and the BIA’s decisions.” Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir. 2012).

We review the agency’s factual findings for substantial evidence, Cheng v. Att’y Gen.,

623 F.3d 175, 182 (3d Cir. 2010), and uphold those findings “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). “We review de novo constitutional claims or questions of law and the

application of law to facts with appropriate agency deference.” Yusupov v. Att’y Gen.,

650 F.3d 968, 977 (3d Cir. 2011).

       The CAT prevents the United States government from removing an alien to a

country where an alien will face torture. See 8 C.F.R. § 1208.16(c)(2). To meet his

burden under the CAT, the applicant bears the burden of establishing, through objective

evidence, “that it is more likely than not” that he will be tortured if removed. 8 C.F.R.



2
 In affirming the IJ’s decision, the BIA declined to consider two news articles that
Guerrero had submitted for the first time on appeal, and further declined to remand the
matter for the IJ to consider them in the first instance. Guerrero does not challenge those
rulings here.


                                             4
§ 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). “Torture is

defined as any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining . . . information or a

confession, punish[ment] . . . for an act, . . . intimidat[ion] or coerci[on], or for any reason

based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

       The implementing regulations make clear that torture must be “inflicted by or at

the instigation of or with the consent or acquiescence of” an official person. 8 C.F.R.

§ 1208.18(a)(1) (emphasis added). The “acquiescence” requirement is met when “the

public official, prior to the activity constituting torture, ha[s] awareness of such activity

and thereafter breach[es] his or her legal responsibility to intervene to prevent such

activity.” 8 C.F.R. § 1208.18(a)(7). Notably, however, such “awareness” need not be

actual awareness. Rather, this Court has held that a government acquiesces to torture if it

is “willfully blind” to such activities; “[f]or purposes of CAT claims, acquiescence to

torture requires only that government officials remain willfully blind to torturous conduct

and breach their legal responsibility to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d

58, 70 (3d Cir. 2007); see also Roye v. Att’y Gen., 693 F.3d 333, 343-44 (3d Cir. 2012).

       Guerrero claims that he will be tortured if forced to return to Mexico because the

Sinaloa cartel is looking for him and the government will not, or cannot, protect him.

The IJ found Guerrero generally credible, and did not dispute his testimony that his

brother had been targeted by men looking for Guerrero. In addition, after reviewing the

country conditions evidence, the IJ recognized that the Sinaloa cartel is one of the most

powerful and violent criminal organizations in Mexico, and that there are high rates of

                                               5
violence in Guerrero’s home state. The IJ also recognized that the Mexican government

has struggled to control the extreme violence of the cartel and government corruption.

Nonetheless, the IJ concluded that, even if Guerrero were able to demonstrate that he

likely would be tortured by the Sinaloa cartel if forced to return to Mexico, he had not

demonstrated that the government would acquiesce in such torture because the Mexican

government is making efforts to combat the drug cartels and root out corruption. The

BIA agreed.

       The agency construed the “acquiescence” standard too narrowly. In emphasizing

the Mexican government’s efforts to combat the drug cartels and root out corruption, the

IJ assumed that as long as the government is attempting to help its citizens, Guerrero

cannot establish that a public official or other person acting in an official capacity would

acquiesce in his torture at the hands of the cartel. We have recognized, however, that the

“awareness” prong of acquiescence can be met by a showing that some elements of the

government are in a collusive relationship with the torturers—even if the government

generally opposes the groups. See, e.g., Pieschacon-Villegas v. Att’y Gen., 671 F.3d

303, 312 (3d Cir. 2011) (remanding to determine, inter alia, whether petitioner could

establish acquiescence despite evidence that the Colombian government had made efforts

to demobilize the FARC and AUC and control corruption); Gomez-Zuluaga v. Att’y

Gen., 527 F.3d 330, 351 (3d Cir. 2008) (holding that two government representatives

each telling the petitioner that “there was nothing they could do to protect her” from the

FARC “may be circumstantial evidence that the Colombian government was willfully

blind to such treatment and that to pursue official assistance would have been futile”);

                                              6
Silva-Rengifo, 473 F.3d at 69-70 (rejecting BIA’s conclusion that acquiescence requires

actual knowledge of torturous activity, and remanding for determination as to whether

record demonstrated that public officials in Colombia would turn a blind eye to violence

by paramilitary and guerilla forces) (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th

Cir. 2003) (remanding to consider evidence that Chinese police accepted bribes from, and

socialized with, snakeheads, and that the Chinese government fails to prosecute officials

charged with human rights offenses)). In light of this precedent, the BIA erred by failing

to consider whether the record evidence of the violence caused by the Sinaloa cartel and

corruption of law enforcement officials demonstrated that it is more likely than not that

Guerrero will be tortured “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). If it is, Guerrero may have met his burden under the CAT.

                                             III.

       We have considered the Government’s arguments in opposition to the petition for

review, and conclude that they lack merit. Accordingly, for these reasons set forth above,

we will grant the petition for review, vacate the BIA’s order, and remand for further

consideration in light of this opinion.3



3
  In affirming the IJ’s decision, the BIA stated as follows: “Although the applicant may
reasonably fear harm in Mexico by members of a drug cartel or by corrupt police officers,
the [IJ’s] conclusion that the record does not indicate that it is more likely than not that he
will face torture by or with the acquiescence (to include the concept of willful blindness)
of an official of the government of Mexico upon return to that country is not clearly
erroneous.” (AR000002) (emphasis added). Upon remand, the BIA should clarify
whether there is a legal component to the acquiescence determination giving rise to de
                                               7
novo agency review. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA reviews
questions of law de novo, but findings of fact under a “clearly erroneous” standard”).
                                            8
