Dario Suarez-Valenzuela v. Eric Holder, Jr. , 714 F.3d 241 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARIO SUAREZ-VALENZUELA, 
Petitioner,
v.
 No. 12-1019
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an
Order of the Board of Immigration Appeals.
Argued: January 29, 2013
Decided: April 24, 2013
Before NIEMEYER, DUNCAN, and FLOYD,
Circuit Judges.
Petition denied by published opinion. Judge Floyd wrote the
opinion, in which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: Jesse Reuben Heath, Peter Andres, BAKER &
MCKENZIE, LLP, Washington, D.C., for Petitioner. Derek
C. Julius, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: David J.
Laing, BAKER & MCKENZIE, LLP, Washington, D.C., for
2 SUAREZ-VALENZUELA v. HOLDER
Petitioner. Stuart F. Delery, Acting Assistant Attorney Gen-
eral, Civil Division, Douglas E. Ginsburg, Assistant Director,
Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
OPINION
FLOYD, Circuit Judge:
Petitioner Dario Suarez-Valenzuela is a citizen of Peru who
entered the United States without inspection in 1999. After
Suarez-Valenzuela was convicted of petit larceny, the govern-
ment issued an Administrative Order of Removal. Suarez-
Valenzuela was able to apply for protection under the Con-
vention Against Torture (CAT) because he expressed a fear
that Peruvian government officials would torture him if he
returned to Peru. An immigration judge granted Suarez-
Valenzuela’s application for withholding of removal to Peru,
but the Board of Immigration Appeals (BIA) reversed.
Suarez-Valenzuela appealed, contending that the BIA applied
the wrong standard when evaluating his case and that its con-
clusions were not supported by substantial evidence. We now
deny Suarez-Valenzuela’s petition.
I.
A.
In 1997, Suarez-Valenzuela appeared on a Peruvian talk
show called the "Lara Bazzo Show" after being recruited by
the show’s investigator, Jason. Although Suarez-Valenzuela
was promised items in exchange for his appearance, he never
received them. Suarez-Valenzuela complained to Jason, who
spoke with Bazzo. When Bazzo refused to provide the items,
Suarez-Valenzuela and Jason threatened to report her to a
rival television station.
SUAREZ-VALENZUELA v. HOLDER 3
After Suarez-Valenzuela and Jason threatened Bazzo, four
men in a white van approached them to intimidate Jason.
Each of the men possessed weapons and badges identifying
himself as a police officer. Suarez-Valenzuela recognized one
of the men as Luis, a police officer who allegedly worked for
Bazzo. The men began arguing with Suarez-Valenzuela and
Jason, and Luis hit Jason with his gun. Jason fell, injured his
head, and died moments later. Luis then shot Suarez-
Valenzuela in the foot.
Following the altercation, Suarez-Valenzuela was taken to
the hospital and remained there for nearly two weeks. Police
officers visited him at the hospital and offered him money in
exchange for his silence regarding the circumstances of the
shooting. Suarez-Valenzuela refused to accept their offer and
told the authorities that Luis killed Jason.
The police asked Suarez-Valenzuela to testify at Luis’s trial
for Jason’s murder, and Suarez-Valenzuela agreed. Several
months before the trial, Luis stabbed Suarez-Valenzuela in the
chest to prevent him from testifying. Nevertheless, Suarez-
Valenzuela ultimately testified against Luis, who was con-
victed and sentenced to fifteen years of imprisonment,
although he served only three months of that sentence.
Suarez-Valenzuela testified that he does not know whether
Luis remained employed as a police officer following his con-
viction.
After his release, Luis went to Suarez-Valenzuela’s moth-
er’s house in an attempt to find Suarez-Valenzuela. Luis
allegedly "destroyed" the house. Suarez-Valenzuela initially
went to live with his grandmother in order to avoid Luis.
Although Luis did not confront Suarez-Valenzuela at his
grandmother’s house, Suarez-Valenzuela continues to fear for
his safety because he believes that the police can use a
national identity database to locate him anywhere in Peru.
Suarez-Valenzuela left Peru for the United States in 1998 and
illegally entered the United States in January 1999.
4 SUAREZ-VALENZUELA v. HOLDER
Following Suarez-Valenzuela’s departure from Peru, Luis
visited Suarez-Valenzuela’s mother’s house several times
with another individual and threatened to kill Suarez-
Valenzuela. Suarez-Valenzuela explained that he was
unaware whether the other individual was a police officer.
Luis visited the house for the last time in 2008. Luis made the
same threats to Suarez-Valenzuela’s father in 1999.
B.
On February 17, 2010, Suarez-Valenzuela was convicted of
misdemeanor petit larceny. The Department of Homeland
Security (DHS) subsequently issued an Administrative Order
of Removal based on Suarez-Valenzuela’s conviction and his
immigration status. Because Suarez-Valenzuela expressed a
fear of returning to Peru, DHS stayed his removal and con-
ducted a "reasonable fear interview." The DHS asylum officer
who conducted the interview concluded that Suarez-
Valenzuela had demonstrated a reasonable fear of torture.
Suarez-Valenzuela’s case was referred to an immigration
judge. The immigration judge found Suarez-Valenzuela credi-
ble and determined that he was subjected to torture when he
was shot, stabbed, and threatened. The immigration judge also
noted that, according to the State Department’s Country
Reports on Human Rights Practices for Peru, the police regu-
larly threaten victims and witnesses of human rights abuses,
and the perpetrators of those abuses are rarely punished.
Although the immigration judge recognized that security
forces have developed human rights training, implementation
has been slow and security forces are reluctant to provide
information about human rights abuses. The immigration
judge also found that it was not feasible for Suarez-
Valenzuela to relocate within Peru due to the country’s
national identity database, which would allow the individuals
who tortured him to determine his whereabouts. In light of
this information, the immigration judge found that it was
more likely than not that government officials would torture
SUAREZ-VALENZUELA v. HOLDER 5
Suarez-Valenzuela or acquiesce to his torture if he returned to
Peru. The judge therefore granted Suarez-Valenzuela’s appli-
cation for withholding of removal to Peru under the CAT.
DHS appealed the immigration judge’s order granting
Suarez-Valenzuela’s application. On December 6, 2011, the
BIA sustained the appeal and vacated the immigration judge’s
order. The BIA found that the Peruvian government’s
attempts to mitigate corruption had created an environment
that was not conducive to officials’ acquiescence to or partici-
pation in torture. The BIA also noted that Suarez-Valenzuela
had not established that Luis remained employed as a police
officer. Finally, the BIA held that there was no indication that
government officials have used or will use the national iden-
tity database to locate and torture witnesses. The government
has since removed Suarez-Valenzuela to Peru.
Suarez-Valenzuela filed a timely petition for review. On
appeal, Suarez-Valenzuela contends that the BIA applied the
wrong standard when evaluating his case and that substantial
evidence did not support its conclusions. We have jurisdiction
pursuant to 8 U.S.C. § 1252 and 28 U.S.C. § 2349(a).
II.
To qualify for protection under the CAT, an applicant bears
the burden of showing 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). In relevant part, the
CAT’s implementing regulations define "torture" as
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as . . . punishing him or her
for an act he or she or a third person has committed
or is suspected of having committed[ ] or intimidat-
ing or coercing him or her or a third person . . . when
such pain or suffering is inflicted by or at the instiga-
6 SUAREZ-VALENZUELA v. HOLDER
tion of or with the consent or acquiescence of a pub-
lic official or other person acting in an official
capacity.
Id. § 1208.18(a)(1). A public official acquiesces to torture
when, "prior to the activity constituting torture, [he or she]
ha[s] awareness of such activity and thereafter breach[es] his
or her legal responsibility to intervene to prevent such activ-
ity." Id. § 1208.18(a)(7). Although evidence of past torture is
relevant, it does not create a presumption that an applicant
will be tortured in the future. See Niang v. Gonzalez, 422 F.3d
1187, 1202 (10th Cir. 2005). Instead, immigration judges
should consider evidence of past torture, evidence of "gross,
flagrant or mass violations of human rights," the country’s
conditions, and whether the applicant could relocate to a part
of the country where he or she is unlikely to be tortured. 8
C.F.R. § 1208.16(c)(3).
This Court reviews decisions to deny CAT relief for sub-
stantial evidence. See Dankam v. Gonzalez, 495 F.3d 113, 124
(4th Cir. 2007). Under this standard, "administrative findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C.
§ 1252(b)(4)(B). We will reverse the BIA’s decision only if
"the evidence . . . presented was so compelling that no reason-
able factfinder could fail to find the requisite fear of persecu-
tion." INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992); see
also Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
III.
We turn first to Suarez-Valenzuela’s argument that the BIA
applied the wrong standard when determining whether gov-
ernment officials would acquiesce to his torture. "A court of
appeals ‘is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry.’ Rather, ‘the proper
course, except in rare circumstances, is to remand to the
SUAREZ-VALENZUELA v. HOLDER 7
agency for additional investigation or explanation.’" INS v.
Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam)
(citation omitted) (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985)) (pointing to BIA decisions as a
prime example of cases for which remand is appropriate).
Accordingly, if the BIA utilized the incorrect standard, we
should remand the case to allow the BIA to correct its error.
Suarez-Valenzuela contends that the BIA incorrectly uti-
lized the "willful acceptance" standard rather than the "willful
blindness" standard. Under the willful acceptance standard, an
applicant must demonstrate that government officials had
actual knowledge of his or her torture to satisfy the CAT’s
acquiescence requirement. See Zheng v. Ashcroft, 332 F.3d
1186, 1194 (9th Cir. 2003) (distinguishing willful acceptance
from willful blindness). By contrast, pursuant to the willful
blindness standard, government officials acquiesce to torture
when they have actual knowledge of or "turn a blind eye to
torture." See id. at 1196 (quoting Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 355 (5th Cir. 2002)) (internal quotation marks
omitted). Several courts—including this Court—have discred-
ited the willful acceptance standard, with many noting that it
does not reflect Congress’s intent in enacting the CAT. See
Hakim v. Holder, 628 F.3d 151, 156-57 (5th Cir. 2010); Silva-
Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d Cir. 2007); Amir
v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Lopez-Soto v.
Ashcroft, 383 F.3d 228, 240-41 (4th Cir. 2004), rehearing en
banc granted, (Jan. 13, 2005), review withdrawn pursuant to
settlement, (July 26, 2005); Khouzam v. Ashcroft, 361 F.3d
161, 170-71 (2d Cir. 2004); Zheng, 332 F.3d at 1194-96. For
example, as the Ninth Circuit explained in Zheng v. Ashcroft,
the Senate ratified a version of the Convention that
eliminated an understanding that acquiescence
required a public official’s knowledge and replaced
it with an understanding that acquiescence required
only a public official’s awareness. The Senate Com-
mittee on Foreign Relations expressly stated that the
8 SUAREZ-VALENZUELA v. HOLDER
purpose of requiring awareness, and not knowledge,
"is to make it clear that both actual knowledge and
‘willful blindness’ fall within the definition of the
term ‘acquiescence.’"
332 F.3d at 1195 (quoting Comm. on Foreign Relations, Con-
vention Against Torture & Other Cruel, Inhuman or Degrad-
ing Treatment or Punishment, S. Exec. Rep. 101-30, at 9
(1990)). We now reiterate this Court’s earlier holding that
willful blindness can satisfy the acquiescence component of
8 C.F.R. § 1208.18(a)(1).
To support his argument that the BIA wrongly applied the
willful acceptance standard rather than the willful blindness
standard, Suarez-Valenzuela emphasizes the BIA’s citation to
In re S-V-, 22 I. & N. Dec. 1306 (2000). The BIA parentheti-
cally summarized In re S-V-’s holding as "finding the appli-
cant must do more than show that the officials are aware of
the activity constituting torture but are powerless to stop it,
and must demonstrate that officials are willfully accepting of
the tortuous activities." This summary is consistent with the
willful acceptance standard, and other courts have recognized
that In re S-V- espouses the willful acceptance standard and
have rejected it for that reason. See Hakim, 628 F.3d at 155-
57; McIntosh v. Clement, 247 F. App’x 226, 227-28 (2d Cir.
2007); Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 293
(3d Cir. 2007); Amir, 467 F.3d at 927; Ochoa v. Gonzales,
406 F.3d 1166, 1172 (9th Cir. 2005). Rather than citing In re
S-V- for the willful acceptance standard itself, however, the
BIA cited it for the proposition that "[v]iolence committed by
individuals over whom the government has no reasonable
control does not fall within the purview of the [CAT]." Never-
theless, as Suarez-Valenzuela notes, the rule for which the
BIA cites In re S-V- is arguably related to the willful accep-
tance standard. See Silva-Rengifo, 473 F.3d at 65 (linking the
willful acceptance standard to the "government’s ‘ability to
control’ persons or groups engaging in torturous activity").
SUAREZ-VALENZUELA v. HOLDER 9
Consequently, our next task is to determine whether the BIA
actually applied the willful acceptance standard.
In reaching its conclusion that the government would not
more likely than not acquiesce to Suarez-Valenzuela’s torture
upon his return to Peru, the BIA applied the factors outlined
at 8 C.F.R. § 1208.16(c)(3). First, the BIA considered
"[e]vidence of gross, flagrant or mass violations of human
rights within the country of removal" and "[o]ther relevant
information regarding conditions in the country of removal"
when it evaluated the State Department’s Country Reports on
Human Rights Practices for Peru. Id. § 1208.16(c)(3)(iii)-(iv).
Second, the BIA looked at "[e]vidence of past torture inflicted
upon the applicant." Id. § 1208.16(c)(3)(i). Specifically, the
BIA evaluated the past conduct of Luis and his accomplices,
noting that the Peruvian government "prosecuted, convicted,
and incarcerated [Luis] for his crime." Finally, the BIA con-
sidered "[e]vidence that the applicant could relocate to a part
of the country of removal where he . . . is not likely to be tor-
tured," Id. § 1208.16(c)(3)(ii), paying special attention to
whether government officials had used the national identity
database to locate and torture Peruvian citizens.
Throughout this analysis, the BIA did not impose any kind
of actual knowledge requirement, indicating that its reasoning
was not consistent with the willful acceptance standard.
Instead, the BIA evaluated whether Suarez-Valenzuela’s
attacker was likely to repeat his behavior and whether the
government was likely to turn a blind eye to Suarez-
Valenzuela’s torture in light of its response to Luis’s earlier
conduct and the current country conditions. The BIA’s deci-
sion therefore conforms to the willful blindness standard, and
we need not remand the case to allow the BIA to correct its
analysis.
IV.
We turn next to Suarez-Valenzuela’s argument that the
BIA’s decision to deny CAT protection was not supported by
10 SUAREZ-VALENZUELA v. HOLDER
substantial evidence. As explained above, the BIA relied on
three key points when vacating the immigration judge’s deci-
sion: (1) country conditions and human rights violations in
Peru, as evinced by the State Department’s country report; (2)
evidence of Suarez-Valenzuela’s past torture; and (3) whether
Suarez-Valenzuela could safely relocate within Peru. For the
reasons outlined below, we hold that substantial evidence sup-
ports the BIA’s conclusions.
The BIA first determined that the country conditions in
Peru had improved since Suarez-Valenzuela left the country
in 1998. In particular, the BIA noted that the government
leadership had changed and that the government had "attemp-
t[ed] to cull corrupt individuals in positions of authority."
Although the BIA acknowledged that "the results might not
become effective instantaneously," it emphasized that "Peru
has taken proactive steps to eradicate corruption." In light of
these facts, the BIA concluded that "the applicant did not
demonstrate that the current government officials, acting in
their official capacity, will acquiesce or consent to his tor-
ture."
Suarez-Valenzuela argues that the BIA’s analysis of the
country conditions is inadequate for two reasons. First, he
asserts that the Peru Human Rights Commission’s (COM-
ISEDH) report takes a much less favorable view of Peru’s
treatment of torture victims than the State Department report
does and that the BIA should have taken the COMISEDH
report into account. Second, he argues that the BIA inappro-
priately cited Amilcar-Orellana v. Mukasey, 551 F.3d 86 (1st
Cir. 2008), for the proposition that government officials were
unlikely to acquiesce to his torture because Peru had acted to
eliminate corruption. Suarez-Valenzuela contends that
Amilcar-Orellana is inapplicable in this case because it dealt
with the Salvadoran government’s attempt to ameliorate gang
violence rather than its handling of corrupt officials such as
Luis. However, we do not find these counterarguments "so
compelling that no reasonable factfinder could fail to find the
SUAREZ-VALENZUELA v. HOLDER 11
requisite fear of persecution." Elias-Zacarias, 502 U.S. at
483-84. Furthermore, this Court has previously noted that
State Department reports are "highly probative evidence" of
conditions in foreign countries. See Gonahasa v. INS, 181
F.3d 538, 542 (4th Cir. 1999). We therefore conclude that the
BIA did not err in utilizing the State Department report as a
basis for concluding that Peruvian government officials are
unlikely to acquiesce to Suarez-Valenzuela’s torture.
The BIA next considered evidence of Suarez-Valenzuela’s
past torture and whether that torture was likely to reoccur.
The BIA noted that Suarez-Valenzuela had not established
that the government acquiesced to Luis’s behavior in the past
or would do so in the future. Although the BIA acknowledged
that the other officers who assisted Luis "may have acqui-
esced to the harm the applicant received by not intervening,"
the BIA considered these officers to be "rogue" because other
government officials denounced Luis’s behavior by prosecut-
ing, convicting, and incarcerating him.1 In fact, the BIA noted
that Luis tortured Suarez-Valenzuela to prevent him from tes-
tifying, indicating that he acted out of fear that the govern-
ment would punish him and not with any form of government
approval. Finally, the BIA explained that Suarez-Valenzuela
had not established that Luis’s future actions, if any, would be
on behalf of the government, noting that Suarez-Valenzuela
had not demonstrated that Luis remained a government
1
In addition to arguing that substantial evidence does not support the
BIA’s decision, Suarez-Valenzuela contends that we should find that the
BIA abused its discretion because it failed to give a reasoned explanation
for its finding that Luis and his accomplices were "rogue officers" who did
not act in an official capacity. Although we recognize that "[t]he BIA may
be held to have abused its discretion if it failed to offer a reasoned expla-
nation for its decision, or if it distorted or disregarded important aspects
of the applicant’s claim," Tassi v. Holder, 660 F.3d 710, 719 (4th Cir.
2011), the BIA offered a reasoned explanation that took into account
Suarez-Valenzula’s testimony regarding the behavior of Luis and his
cohorts. We therefore decline to hold that the BIA abused its discretion in
determining that Luis and his accomplices were "rogue officers."
12 SUAREZ-VALENZUELA v. HOLDER
employee following his imprisonment. Because Suarez-
Valenzuela’s testimony supports the BIA’s conclusions, we
find that substantial evidence supports its determination that
the Peruvian government was not complicit in Suarez-
Valenzuela’s past torture and was unlikely to acquiesce to his
future torture.
Finally, the BIA considered whether Suarez-Valenzuela
could safely relocate within Peru in light of the country’s
national identity database. The BIA noted that, in support of
his argument that government officials would use the national
identity database to locate and torture him, Suarez-Valenzuela
relied only on two Internet articles that explained how Peru-
vian authorities had used the database to track down criminals
in the past. The BIA concluded that Suarez-Valenzuela had
not proven that the government would provide information
from the database to Luis and that "[t]here is no evidence that
Peru’s national identity database has been used as the appli-
cant suggests." Suarez-Valenzuela does not challenge these
findings in his opening brief, although he raises the issue of
relocation in his reply brief.
Pursuant to Rule 28 of the Federal Rules of Appellate Pro-
cedure, "the argument [section of the brief] . . . must contain
. . . appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which
the appellant relies." Fed. R. App. P. 28(a)(9). This Court has
held that "[f]ailure to comply with the specific dictates of
[Rule 28] with respect to a particular claim triggers abandon-
ment of that claim on appeal." Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999). In A Helping Hand,
LLC v. Baltimore County, 515 F.3d 356 (4th Cir. 2008), this
Court noted that "[i]t is a well settled rule that contentions not
raised in the argument section of the opening brief are aban-
doned." Id. at 369 (quoting United States v. Al-Hamdi, 356
F.3d 564, 571 n.8 (4th Cir. 2004)). An appellant cannot rem-
edy the situation by raising the issue in his reply brief. See
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (per
SUAREZ-VALENZUELA v. HOLDER 13
curiam). Although "in rare circumstances, appellate courts, in
their discretion, may overlook [the rule that appellants aban-
don arguments that they do not raise in their opening briefs]
and others like it if they determine that a ‘miscarriage of jus-
tice’ would otherwise result," A Helping Hand, 515 F.3d at
369 (quoting Venkatraman v. REI Sys., Inc., 417 F.3d 418,
421 (4th Cir. 2005)), Suarez-Valenzuela "has not even
explained why [he] failed to raise th[is] argument[ ] earlier,
let alone why, absent our consideration, a miscarriage of jus-
tice would result," id. (holding that the appellant had failed to
overcome the rule regarding abandonment for this reason).
Consequently, by neglecting to challenge the BIA’s findings
regarding relocation in his opening brief, Suarez-Valenzuela
waived this argument.2
In the CAT context, applicants bear the burden of present-
ing evidence to show that relocation within the country of
removal is not possible. See 8 C.F.R. § 1208.16(c)(2)-(3);
Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004).
Suarez-Valenzuela has failed to meet this burden. In light of
Suarez-Valenzuela’s waiver of his relocation argument and
our determination that the State Department’s country report
and the circumstances of Suarez-Valenzuela’s past torture
support the BIA’s findings, we hold that substantial evidence
supports the BIA’s conclusion that it was not more likely than
not that the government would acquiesce to Suarez-
Valenzuela’s torture upon his return to Peru.
V.
For the foregoing reasons, we conclude that the BIA uti-
2
Suarez-Valenzuela also argues for the first time in his reply brief that
the BIA improperly reviewed the immigration judge’s factual findings
under a de novo standard of review rather than a clearly erroneous stan-
dard. Like Suarez-Valenzuela’s relocation challenge, we consider this
argument waived because he failed to raise it in his opening brief. We
therefore decline to address this argument.
14 SUAREZ-VALENZUELA v. HOLDER
lized the correct standard and that substantial evidence sup-
ports the BIA’s conclusions in this case. We therefore deny
Suarez-Valenzuela’s petition for review.
PETITION DENIED