                         REVISED March 24, 2017

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                               No. 15-60532                        January 23, 2017
                                                                     Lyle W. Cayce
JOSE IRUEGAS-VALDEZ, also known as Jose Iruegas,                          Clerk


            Petitioner

v.

SALLY Q. YATES, ACTING U. S. ATTORNEY GENERAL,

            Respondent




                   Petition for Review of an Order of the
                       Board of Immigration Appeals


Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
     Jose   Iruegas-Valdez    (“Iruegas-Valdez”)   appeals   the     Board           of
Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”)
denial of his application for withholding of removal and relief under the
Convention Against Torture (“CAT”). For the reasons below, we VACATE the
decision of the BIA and REMAND with instructions to apply the appropriate
legal standards.
                                 No. 15-60532


                                       I
      In 1975, one-year-old Iruegas-Valdez, a Mexican national, entered the
United States with his parents as a lawful permanent resident. In 1997, he
was convicted of possession of a controlled substance and removed from the
United States. He remained in Mexico for only two days before re-entering the
country illegally. Ten years later, he was again removed after being convicted
of aggravated assault with a deadly weapon and serving three years
imprisonment.
      Iruegas-Valdez again re-entered the United States illegally but was
quickly apprehended by the Department of Homeland Security (“DHS”). He
was convicted of being unlawfully present in the United States and, after
completing his sentence, was returned to DHS for removal procedures. He
claimed asylum and requested a reasonable fear interview. The asylum officer
conducting the interview found Iruegas-Valdez to be “credible” and to have a
reasonable fear of persecution in his home country. The case was then referred
to an IJ for determination.
      At the hearing, Iruegas-Valdez testified that he is afraid to return to
Mexico because two of his cousins, Jose Luis Garza and Hector Moreno,
betrayed a drug cartel known as the Zetas. Garza is related to Iruegas-Valdez
through his father, Garza’s uncle having married Iruegas-Valdez’s first cousin,
Alma Perez Iruegas. Moreno is Iruegas-Valdez’s second cousin on his mother’s
side. Both Garza and Moreno had been high-ranking members of the Zetas
before they fled to the United States with five million dollars in cash and some
of the Zetas’ ledger books and became informants for the Drug Enforcement
Administration in 2011. Iruegas-Valdez claimed that the cartel retaliated by
massacring members of Garza and Moreno’s family: “The Zetas . . . sent 50
trunks [sic] of people to in [sic] the Coahuila, where I was born. They went to
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town, and they picked up a lot of my family members.” He testified that at least
ten of his close family members were killed, including his first cousin Arnoldo
Perez Iruegas Velasco, who was beheaded, and Arnoldo’s wife who was eight
months pregnant at the time. Iruegas-Valdez claims that at least 200 people
associated with Garza’s and Moreno’s households were executed and that the
cartel continues to “look for individuals, family members, as we speak.”
Iruegas-Valdez also claimed that local police participated in the massacre.
      Iruegas-Valdez provided the IJ with numerous newspaper articles that
describe the attacks and specifically list some of his family members among
the deceased. Iruegas-Valdez’s mother, Maria Teresa Alonso Valdez (“Maria
Alonso”), also testified at the hearing, and the IJ found her to be credible.
      The IJ held that Iruegas-Valdez was statutorily barred from seeking
asylum because he had previously been convicted of an aggravated felony. But
the IJ found that Iruegas-Valdez was still “eligible to apply for withholding of
removal” because “the nature of the offense, the length of the sentence imposed
. . . , and the circumstances under which this particular crime occurred does
not support a finding that [Iruegas-Valdez] was convicted of a particularly
serious crime.”
      The IJ then denied Iruegas-Valdez’s application for withholding of
removal “[p]rimarily” because “the Respondent failed to testify credibility
[sic].” The IJ also denied Iruegas-Valdez’s application for withholding of
removal under CAT.
      On appeal, the BIA affirmed the IJ’s decision, specifically holding that
Iruegas-Valdez had “not established that [the IJ’s] adverse credibility
determination [was] clearly erroneous.” The BIA did not consider whether the
additional evidence proffered by Iruegas-Valdez was enough to satisfy his
burden of proof independent from his testimony, holding instead that because
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“the applicant’s testimony is not credible, he has failed to satisfy his burden of
proof for withholding of removal.” Iruegas-Valdez timely appealed.
                                        II
      We have “authority to review only an order of the BIA, not the IJ, unless
the IJ’s decision has some impact on the BIA’s decision.” Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997).
      On a petition for review of an order of the BIA, we review factual findings
“to determine if they are supported by substantial evidence in the record.” Id.
(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). “Under substantial
evidence review, we may not reverse the BIA’s factual determinations unless
we find not only that the evidence supports a contrary conclusion, but that the
evidence compels it. In other words, the alien must show that the evidence was
so compelling that no reasonable factfinder could conclude against it.” Chun v.
INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam) (citations omitted). The BIA’s
legal determinations are reviewed de novo. Kompany v. Gonzales, 236 F. App’x
33, 37 (5th Cir. 2007) (per curiam).
                                       III
      As an initial matter, “8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction to
review final removal orders against aliens who are removable by reason of
having committed certain criminal offenses,” including aggravated felonies.
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016); see also 8
U.S.C. § 1227(a)(2)(A)(iii). Because Iruegas-Valdez concedes that he is an
aggravated felon, we lack jurisdiction over his challenge to the BIA’s denial of
his application for withholding of removal and CAT relief, except to the extent
he raises legal or constitutional questions. See 8 U.S.C. § 1252(a)(2)(D).
Accordingly, we have no authority to consider Iruegas-Valdez’s argument that


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the BIA lacked substantial evidence to support its conclusion that his
testimony was not credible.
      By contrast, we have jurisdiction to review legal questions, including
whether the Board applied an inappropriate standard or failed to make
necessary findings. Iruegas-Valdez contends that the Board failed to address
whether, even without testimony, the record evidence demonstrates that he is
more likely than not to be persecuted on account of his membership in a
particular social group. He also contends that the Board failed to address
whether, regardless of government acquiescence, active participation by public
officials acting under color of law supports his eligibility for protection from
torture.
                                       A
      Congress has forbidden the Attorney General from removing an alien
otherwise subject to deportation “to a country if the Attorney General decides
that the alien’s life or freedom would be threatened in that country because of
the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien carries the burden of
proof in these proceedings. Id. § 1231(b)(3)(C). Here, Iruegas-Valdez argues
that he has satisfied that burden of proof.
      The government contends that Iruegas-Valdez’s argument that—even
ignoring the applicant’s own testimony—he has established “that it is more
likely than not that he will be persecuted on account of his membership in a
social group consisting of ‘family of Hector Moreno and Jose Luis Garza,’ is not
properly before this Court.” We agree. The BIA based its denial of the
applicant’s petition for withholding of removal solely on the IJ’s credibility
determination: it did not consider the testimony of Maria Alonso or the
newspaper articles submitted to the IJ. As such, it did not decide whether
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                                  No. 15-60532


“family members of Moreno and Garza” constitute a particular social group or
whether Iruegas-Valdez’s fear of persecution is “on account of” his membership
in that particular social group. On the contrary, the BIA explicitly held that
“[g]iven the Immigration Judge’s adverse credibility finding, [it] need not
address the respondent’s challenge to the Immigration Judge’s determination
that the other proposed particular social group, family members of [Moreno
and Garza], is not valid.”
      The Supreme Court addressed an almost identical situation in INS v.
Orlando Ventura, 537 U.S. 12 (2002) (per curiam). In that case, the BIA
“determined that respondent Fredy Orlando Ventura failed to qualify for . . .
statutory protection because any persecution that he faced when he left
Guatemala . . . was not ‘on account of’ a ‘political opinion.’” Id. at 13 (emphases
omitted). The Ninth Circuit reversed but “went on to consider an alternative
argument that the Government had made before the Immigration Judge” but
which had not been considered by the BIA itself. Id.
      The Supreme Court determined that this was a violation of “well-
established principles of administrative law.” Id. at 16. A “‘judicial judgment
cannot be made to do service for an administrative judgment.’ Nor can an
‘appellate court . . . intrude upon the domain which Congress has exclusively
entrusted to an administrative agency.’” Id. (alteration in original) (quoting
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). As such, “a court of appeals
should remand a case to an agency for decision of a matter that statutes place
primarily in agency hands.” Id.
      Here, as in Ventura, the BIA specifically refused to consider an
alternative argument that had been raised before the IJ—namely that the
evidence external to Iruegas-Valdez’s testimony established that removal to
Mexico would put his life in jeopardy because he was a family member of
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                                  No. 15-60532


Moreno and Garza. Congress has explicitly delegated such determinations to
the Attorney General, not the courts. 8 U.S.C. § 1231(b)(3)(A). It would
therefore be a violation of “well-established principles of administrative law”
for us to reach this issue. Ventura, 537 U.S. at 16.
                                        B
      We likewise decline to consider whether Iruegas-Valdez is eligible for
relief under CAT because the BIA failed to apply the appropriate legal
standard. An applicant for withholding of removal under CAT bears the burden
of proving “that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
“Torture” includes “any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as . . .
punishing him . . . for an act he . . . or a third person has committed or is
suspected of having committed, or intimidating or coercing him . . . or a third
person.” Id. § 1208.18(a)(1). It includes “intentional infliction or threatened
infliction of severe physical pain or suffering,” as well as “threat[s] of imminent
death.” Id. § 1208.18(a)(4).
      To qualify under CAT, the pain or suffering in question 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. § 1208.18(a)(1). A
public official acquiesces to torture when he or she has prior “awareness of such
activity and thereafter breach[es] his or her legal responsibility to intervene to
prevent such activity.” Id. § 1208.18(a)(7). An applicant may satisfy his burden
of proving acquiescence by demonstrating “a government’s willful blindness of
torturous activity.” Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (citing
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)).


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                                   No. 15-60532


      “Thus relief under the [CAT] requires a two part analysis—first, is it
more likely than not that the alien will be tortured upon return to his
homeland; and second, is there sufficient state action involved in that torture.”
Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (citing Tamara-Gomez v.
Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006)).
      Failing to clearly bifurcate its CAT analysis, the BIA focused primarily
on the second prong, concluding that the applicant’s evidence did not prove
that the government would torture him: “while corruption and increased levels
of gang criminality exists [in Mexico], the government is actively fighting the
drug cartels.” In reaching this conclusion, the BIA seemed to adopt the analysis
of the IJ who listed various steps the government had taken since the Allende
massacre to stamp out the Zetas and their government lackeys: increasing the
number of federal troops, dismissing the entire municipal police force, and
arresting two local police officers for their alleged involvement in the attack.
The IJ then concluded that “[t]hese kinds of actions do not indicate that the
Mexican government has simply looked the other way and willfully permitted
the Zetas to act with impunity.”
      But “willful blindness” is not the only way to prove sufficient state action.
The regulations specifically list a number of different avenues which the BIA
failed to consider: torture occurs whenever severe physical or mental pain is
“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). “[G]overnment acquiescence need not necessarily be an officially
sanctioned state action; instead, an act is under color of law when it constitutes
a misuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.” Garcia, 756
F.3d at 891-92. “[A]cts motivated by an officer’s personal objectives are ‘under
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color of law’ when the officer uses his official capacity to further those
objectives.” Id. at 892 (citing Marmorato v. Holder, 376 F. App’x 380, 385 (5th
Cir. 2010) (per curiam)). Nor does our precedent require that the public official
in question “be the nation’s president or some other official at the upper
echelons of power. Rather . . . the use of official authority by low-level officials,
such a[s] police officers, can work to place actions under the color of law even
where they are without state sanction.” Id. (alterations in original) (quoting
Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009)).
      Iruegas-Valdez has provided evidence that police officers were active
participants in the Allende massacre. He also provided evidence that the
governor of Coahuila, Humberto Moreira, was a close ally of the Zetas and
specifically allowed the attack. But neither the IJ nor the BIA considered
whether this evidence established that the applicant was more likely than not
to be tortured “by” or with the “consent of” government officials. This
constituted “error regarding what [Iruegas-Valdez] was required to show to
obtain CAT protection.” Id. at 893. Thus, we will “vacate the BIA’s decision and
remand for the agency to properly consider this evidence under the under color
of law legal standard.” Id.
                                         IV
      In conclusion, we lack jurisdiction to review the BIA’s credibility
determination. With respect to the remaining issues, we VACATE the decision
of the BIA and REMAND for consideration pursuant to the appropriate legal
standards as detailed above.




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