                                              NOT PRECEDENTIAL

  FOR THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 14-1485
                   _____________

              RITA KHILEN BHATT,

                                             Petitioner

                          v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

                                             Respondent



       On Petition for Review of an Order of the
            Board of Immigration Appeals
            (Agency No.: A089-241-900)
     Immigration Judge: Honorable Walter Durling


             Argued on January 22, 2015


Before: RENDELL, SMITH and KRAUSE, Circuit Judges


            (Opinion filed: April 2, 2015)
Valerie A. Burch, Esq. (ARGUED)
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101

              Counsel for Petitioner



Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Andrew B. Insenga, Esq. (ARGUED)
Virginia M. Lum, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent




                                       O P I N I O N*



RENDELL, Circuit Judge:

       Petitioner Rita Bhatt is an Indian national who petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision to deny withholding of removal relief under the

United Nations Convention Against Torture (“CAT”). Bhatt applied for CAT relief on


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
the basis that her marriage outside of her caste caused her to suffer torture at the hands of

her family. The Immigration Judge (“IJ”) granted her application, but the BIA reversed,

finding that Bhatt had not demonstrated that the Indian government would “acquiesce” in

any future torture she may experience if she were removed to India. Bhatt now argues

that the BIA applied the wrong standard of review of the IJ’s decision, and its order

should be vacated. Specifically, Bhatt avers that the BIA failed to give appropriate

deference to the IJ’s findings under the clear error standard of review and

misapprehended the definition of governmental “acquiescence” in determining the

likelihood of her future torture. As the meaning of “acquiescence” is a legal matter, we

have jurisdiction to review the BIA’s ruling.1 For the reasons outlined below, we

conclude that the BIA used the incorrect analysis regarding what constitutes

“acquiescence” in reversing the IJ, and therefore, we must reverse and remand to the BIA

to address the likelihood of government acquiescence using the correct analysis.


1
  Respondent asserts that this Court lacks jurisdiction over Bhatt’s petition because she
has raised no legal or constitutional questions in her claim, and therefore, under 8 U.S.C.
§ 1252(a)(2)(C), this Court may not review Bhatt’s final order of removal. Subsection
(C) of § 1252(a)(2) divests courts of jurisdiction over final orders of removal of any alien
removable because of a criminal conviction. Subsection (D), however, permits judicial
review of constitutional issues and issues of law. Because Bhatt’s removal order was
issued based on her plea of nolo contendre to her aggravated assault charge, Bhatt must
raise legal issues on appeal in order to evoke our jurisdiction. As we conclude that the
BIA’s analysis both misapplied the clear error standard of review and misapprehended
the meaning of “acquiescence,” we are addressing legal issues and properly exercising
our jurisdiction. See Roye v. Att’y Gen. of U.S., 693 F.3d 333, 339 (3d Cir. 2012)
(holding that whether BIA properly applied the clear error standard of review and the
standard for likelihood of torture with government acquiescence each constitute legal
questions providing basis for appellate jurisdiction); see also Pieschacon-Villegas v. Att’y
Gen. of U.S., 671 F.3d 303, 311 (3d Cir. 2011).

                                              3
                                   I.   BACKGROUND

       Bhatt is a 41-year-old citizen of India and member of the Sudhra caste, one of the

lowest castes in India. She married her husband, a member of the highest, Brahmin,

caste. Both families disapproved of the relationship and hers took extreme measures to

end it—namely, her brother locked her in a room for a week and beat her, releasing her

only after she promised never to see her husband again. She suffered several bruises

from the beatings, and visited a hospital after her release, where she was prescribed

painkillers. She never reported her beating to the police, explaining that she did not trust

that they would help her because the police are corrupt, only act if given a bribe (which

she was unable to provide), and generally do not interfere in what they characterize as

“family disputes.” She also feared that going to the police would escalate the situation

and cause her more harm.

       Bhatt and her husband then fled to another town in India. However, her brother

located them and came to their home with the intent of harming her husband, unable to

do so only because her husband was not home at the time. The couple then made

arrangements to flee to the United States. Bhatt was able to enter the United States

shortly thereafter on a fraudulent visa, but her husband remained in India. Bhatt claimed

that her brother then made a thinly veiled attempt to harm or kill her husband while he

was still in India by getting him in a car accident. Her husband survived and made it to

the United States two years after her. Neither have been lawfully admitted or left the

United States since that time.



                                             4
       In 2009, Bhatt was charged under Pennsylvania law with aggravated assault,

endangering the welfare of children, simple assault, and recklessly endangering another

person. In September 2010, Bhatt pled nolo contendre to the aggravated assault charge

and received a sentence of between two and a half years to five years in prison. These

removal proceedings followed.

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

against Bhatt, and she sought deferral of removal based on Article 3 of CAT because she

feared torture in India based on her past experiences and her inter-caste marriage. The IJ

granted her application, and the case was initially appealed to the BIA, which remanded

for specific fact finding as to the likelihood of torture, specifically, the likelihood that

Bhatt would encounter her family upon return to India, the possibility of relocation, and

the specific mistreatment she is likely to suffer if she were returned to India. On remand,

the IJ granted her application a second time.

       The IJ concluded that Bhatt had met her burden of proof to establish the likelihood

of being tortured by her family if she were to return to India because of her inter-caste

marriage. He noted that to qualify for withholding of removal under CAT, an applicant

must demonstrate that it is more likely than not that he or she will be tortured if removed

to the country at issue. He reasoned that the acquiescence of a public official, a necessary

element to obtain CAT relief, does not require that the government have actual

knowledge of torturous conduct, but can be satisfied by showing that the foreign

government is willfully blind to the conduct in question, or has breached its legal



                                                5
responsibility to prevent such torture. (A.R. 149 (citing Silva-Rengifo v. Atty’s Gen. of

U.S., 473 F.3d 58, 70 (3d Cir. 2007)).)

       The IJ found Bhatt to be credible, and that her testimony was internally consistent

with known country conditions in India. For example, the IJ found credible and

significant Bhatt’s testimony that the reason she did not report her captivity or the fact

that her brother beat her was her “fear of escalating an already bad situation, and because

she knew the police never intervened in family disputes.” (A.R. 148.) The IJ also made

extensive findings as to the country conditions, demonstrating the likelihood that Bhatt

would be subjected to torture and that the government would fail to act in this gender-

based situation, and concluded that while the government is not “uncaring,” it is

“apathetic to the point of maintaining a de facto policy of discrimination and violence

against women.” (A.R. 150.) The IJ also found this to be the case in spite of the Indian

government’s “sometimes public protestations to the contrary.” (A.R. 70.) The IJ

therefore concluded that “given the long history of violence against women with little

accountability of the perpetrators, and with minimal police protections to the victims, the

acquiescence of the Indian government to [Bhatt’s] likely torture is present.” (A.R. 151

(citing Silva-Rengifo, 473 F.3d 58).) DHS appealed to the BIA.

       The BIA did not take issue with the IJ’s ruling that the harm Bhatt had

experienced in the past at the hands of her brother was severe enough to be considered

torture, nor did it note any disagreement with his finding that she would more likely than

not suffer conduct that rose to that same level in the future if returned to her home

country. However, the BIA did disagree with the IJ’s determination that Bhatt would

                                              6
likely experience torture with governmental acquiescence if returned to India. The BIA

noted that “it is an applicant’s burden to show that she more likely than not 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’ upon removal,” and held that Bhatt had not

met this burden. (A.R. 5 (citing 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)).)

       The BIA concluded that Bhatt did not prove “that a public official in India more

likely than not would acquiesce in her torture” (A.R. 5) for two reasons: first, it stated,

“the record does not indicate any official complicity in the past incident involving her

brother, even to the extent of turning a blind eye,” and that “[Bhatt] did not report the

incident to the police, who thus were not given an opportunity to respond.” (Id.) Second,

it stated, “the background evidence indicates that the Indian Constitution guarantees a

right to equality regardless of gender or caste and the Indian government is actively

working to protect and promote inter-caste marriages by, for example, offering bonuses

for those who enter into such marriages and calling for harsher penalties for inter-caste

crimes and honor killings . . . . The Supreme Court of India has instructed state

governments to ‘root out’ honor killings and punish officials who fail to act against

offenders . . . . That these efforts by the Indian government have met with limited success

is insufficient to conclude that a police officer or other government official likely would

turn a blind eye to the applicant’s torture.” (A.R. 5-6.)

       Although purporting to review for clear error, the BIA did not address the IJ’s

finding that, despite its official policies, India remains “apathetic to the point of

maintaining a de facto policy of discrimination and violence against women.” (A.R.

                                               7
150.) Moreover, although the BIA did not disturb the IJ’s credibility findings, it did not

acknowledge, much less discuss, Bhatt’s testimony that she did not report the domestic

violence because she feared reprisal and knew the police would not intervene. (A.R. 23.)

Rather, the BIA reasoned that because Bhatt did not report her abuse to the police and

because the Indian government had an official policy against the treatment Bhatt

experienced, the IJ clearly erred when it found that the Indian government was likely to

acquiesce to her torture. Having concluded the element of acquiescence was absent, the

BIA held that Bhatt could not be eligible for relief under CAT.

                                    II.   DISCUSSION

       Where, as here, the BIA overturns the IJ’s decision, we review the BIA’s decision.

Pierre v. Att’y Gen. of U.S., 528 F.3d 180, 184 (3d Cir. 2008); Abdulai v. Aschroft, 239

F.3d 542, 548-49 (3d Cir. 2001). We review the BIA’s legal determinations de novo,

subject to Chevron, but because the petitioner is subject to removal based on her

aggravated felony conviction, our jurisdiction is limited to constitutional claims or

questions of law and “factual or discretionary determinations are outside our scope of

review.” Pierre, 528 F.3d at 184; see 8 U.S.C. § 1252(a)(2)(C)-(D).

       The Convention Against Torture does not require an alien to prove that the

government in question approves of torture, or that it consents to it; rather, 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. 8 U.S.C. § 1231; 8 C.F.R.

§ 1208.18(a)(1); Silva-Rengifo, 473 F.3d at 70. Acquiescence also does not require that

the government have actual knowledge of the torturous activity; instead, governmental

                                              8
acquiescence may be shown “by producing sufficient evidence that the government in

question is willfully blind to such activities.” Pieschacon, 671 F.3d at 311; Silva-

Rengifo, 473 F.3d at 65.

         The issue before the BIA was whether the factual findings of the IJ were clearly

erroneous, or whether the IJ had made an error in applying the law to the facts. If the

latter, it could review de novo. While the BIA indicated that it reviewed for clear error—

and indeed found “clear error” by the IJ—its application of the standard was wrong and

its reasoning was misguided. To find clear error, the BIA must consider the evidence

before the IJ, and conclude that “on the entire evidence [it] is left with the definite and

firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S.

364, 395 (1984). The BIA’s review must reflect a “meaningful consideration of the

record as a whole,” and it “must explain why the record warrants a different conclusion

than the one reached by the IJ.” Huang v. Att’y Gen. of U.S., 620 F.3d 372, 387 (3d Cir.

2010).

         Instead of undertaking this clear error review of the IJ’s findings regarding the

Indian government’s acquiescence to Bhatt’s likely torture if she were returned to India,

the BIA here appears simply to have ignored the evidence that was before the IJ. In

reviewing the country conditions, the BIA focused on the government’s official

policies—as set forth in India’s Constitution, and the “instructions” of the Supreme

Court—while largely ignoring the IJ’s findings regarding the evidence of actual country

conditions. The BIA then concluded: “That these efforts by the Indian government has

                                               9
been met with limited success is insufficient to conclude that a police officer or other

government official likely would turn a blind eye to the applicant’s torture.” (A.R. 5-6.)

And in reviewing Bhatt’s testimony, the BIA concluded that Bhatt’s failure to give the

police the opportunity to respond to her past torture materially undermined her case but

did not address Bhatt’s testimony explaining her reasons for declining to report her abuse,

which the IJ found credible.

       The BIA’s conclusions are in conflict with what we and other courts have said are

appropriate considerations in determining whether a government will likely acquiesce in

a petitioner’s torture. As to the petitioner’s need to have notified the government of her

torture, and its specific knowledge thereof, in Silva-Rengifo, we articulated a new

standard for acquiescence in this Circuit, holding that government acquiescence no longer

required actual knowledge of torturous conduct. 473 F.3d at 65. While evidence that a

petitioner did notify police, and they did nothing, can support the claim, specific

knowledge by the government need not be shown. Rather, willful blindness may be

proven by other evidence, which may include testimony like petitioner offered here as to

her reasons for declining to report. The BIA did not take issue with the IJ’s credibility

finding concerning this or other aspects of the petitioner’s testimony, yet it failed to

acknowledge, much less discuss, that evidence before concluding the IJ clearly erred.

       Perhaps the more fundamental flaw in the BIA’s analysis was its focus on

government efforts rather than actual conduct, i.e., the results of those efforts. In

Pieschacon, we held that the Colombian government’s official opposition to FARC (the

Revolutionary Armed Forced of Columbia) did not bar a showing of acquiescence to

                                              10
torture. Because the Colombian government was still aware of FARC’s activities and

willfully blind to those activities—that is, it knew about what FARC was doing generally,

and did nothing to stop it—it was acquiescing to the torture that FARC inflicted. 671

F.3d at 311-12. A government’s policies to root out torturous activity are also not

dispositive of the issue of whether such torturous activity occurs with acquiescence. See

Zheng v. Ashcroft, 332 F.3d 1186, 1194-97 (9th Cir. 2003).

       We conclude that the BIA misapplied the clear evidence standard of review and

misconstrued what determines “acquiescence”—i.e., actual conditions and conduct that

would be present and occur rather than dogma or court “instructions” that amount to no

more than the government’s position or efforts—and, thus, erred in applying the law to

the facts. Accordingly, we will remand for the BIA to conduct the appropriate analysis in

the first instance.2




2
  In INS v. Ventura, 537 U.S. 12 (2002), the Supreme Court instructed that we are not to
review the evidence presented by Bhatt under the correct standard for acquiescence to
determine if there is substantial evidence to support the BIA’s conclusion that Bhatt does
not qualify for CAT relief. Rather, we remand to the BIA to give it 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 Silva-Rengifo, 473 F.3d at 71 (remanding to the
BIA to apply the correct standard of “acquiescence”); Zheng, 332 F.3d at 1197 (same).

                                            11
