James Turkson v. Eric Holder, Jr. , 667 F.3d 523 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES AMOAH TURKSON, 
Petitioner,
v.
 No. 10-1984
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an
Order of the Board of Immigration Appeals.
Argued: September 20, 2011
Decided: January 26, 2012
Before AGEE and DIAZ, Circuit Judges, and
John A. GIBNEY, Jr., United States District Judge for the
Eastern District of Virginia, sitting by designation.
Petition for review granted; vacated and remanded by pub-
lished opinion. Judge Gibney wrote the opinion, in which
Judge Agee and Judge Diaz joined.
COUNSEL
ARGUED: Timothy William Loose, GIBSON, DUNN &
CRUTCHER, LLP, Los Angeles, California, for Petitioner.
Charles S. Greene, III, UNITED STATES DEPARTMENT
2 TURKSON v. HOLDER
OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Marshall R. King, GIBSON, DUNN & CRUT-
CHER, LLP, New York, New York, for Petitioner. Tony
West, Assistant Attorney General, Civil Division, Ethan B.
Kanter, Senior Litigation Counsel, Office of Immigration Liti-
gation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
GIBNEY, District Judge:
This immigration case presents an issue regarding the stan-
dard of review to be applied by an administrative appellate
panel. Facing deportation, petitioner James Amoah Turkson
("Turkson") asked an immigration judge ("IJ") to defer his
removal because Turkson believed he would be tortured if
returned to his native Ghana. The IJ ruled that Turkson would
likely face torture in Ghana, and therefore deferred Turkson’s
removal. The Department of Homeland Security ("DHS")
appealed the IJ’s ruling to the Board of Immigration Appeals
("BIA").
On appeal, the BIA reviewed all aspects of the IJ’s decision
de novo and reversed the IJ’s decision. The BIA erred in
reviewing the IJ’s factual findings under the de novo standard
of review instead of under the clearly erroneous standard pre-
scribed by its governing regulations. We therefore grant Turk-
son’s petition for review, vacate the BIA’s decision, and
remand for further proceedings consistent with this opinion.
I. Material Facts and Procedural History
Turkson was born in Ghana. He was subjected to violence
in his native country while distributing pamphlets for the
political party of which his father was a leader. To escape the
TURKSON v. HOLDER 3
violence, he came to the United States on a false passport in
1995. He later married a United States citizen, and became a
permanent legal resident.
Turkson committed a number of crimes in the United
States. Most recently, Turkson was convicted of possession of
marijuana with intent to distribute. Because of that conviction,
DHS initiated proceedings to remove him from the United
States. DHS can remove aliens who become aggravated fel-
ons under 8 U.S.C. § 1227(a)(2)(A)(iii), or who have
a controlled substance conviction under 8 U.S.C.
§ 1227(a)(2)(B)(i). The parties agree that these provisions jus-
tify Turkson’s removal.
An alien subject to removal, however, can contest his
removal if he can show that he will likely face torture in his
native country. Turkson applied for asylum, withholding of
removal, and deferral of removal1 under the United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment ("CAT"). The IJ found
him ineligible for asylum and withholding of removal based
on his criminal record,2 but granted deferral of removal under
the CAT.
The IJ made detailed factual findings. He found the testi-
mony of Turkson and his brother, regarding brutality in
Ghana, to be credible. Specifically, the IJ accepted Turkson’s
1
An important difference between withholding of removal and deferral
of removal is the ease in which the deferral may be terminated. To termi-
nate withholding of removal, the government must move to reopen the
case, meet the standards for reopening, and establish by a preponderance
of the evidence that the alien is no longer eligible for withholding. In con-
trast, the regulations provide a streamlined termination process for deferral
of removal. See 64 Fed. Reg. 8478-01; see also 8 C.F.R.
§ 1208.17(d),(e),(f).
2
See 8 U.S.C. § 1158(b)(2)(ii) (asylum); 8 C.F.R. § 1208.16(d)(2) (with-
holding of removal under CAT). Turkson does not challenge the IJ’s find-
ing of ineligibility.
4 TURKSON v. HOLDER
evidence that, in 1995, government officials had brutally
questioned Turkson about his "political activities." As part of
their interrogation, they forced him to walk on his knees and
punched him until he lost consciousness. Turkson suffered a
broken wrist, lacerations requiring stitches, a six inch scar on
his back, and a knife wound.
The IJ also found that political violence continues to this
day in Ghana. The political landscape, he determined, is char-
acterized by "vigilante" violence. Prison conditions are harsh.
Rural areas remain "violent" and "brutal." While cities are
less violent, the IJ found that this fact would not make it any
less likely that Turkson would be tortured. Throughout
Ghana, police remain involved in political activity, and con-
tinue to use excessive force, characterized by the IJ as "police
brutality."
Based on these determinations, the IJ found that Turkson
had been the victim of torture before he left Ghana in 1995.
The IJ also found that "it is more likely than not that he would
be detained by the police if returned to Ghana." Further, the
IJ also decided that it is more likely than not that Turkson
would be tortured "because of the excessive use of force by
police officers in Ghana." Based on these findings, the IJ
ordered the deferral of Turkson’s removal.
DHS appealed to the BIA, which considered de novo
whether it was more likely than not that Turkson would be
tortured upon return to Ghana. The BIA panel largely disre-
garded the testimony of Turkson and his brother and con-
cluded that Turkson would not likely be tortured if returned.
The BIA therefore vacated the IJ’s ruling, and on October 25,
2010, Turkson was removed to Ghana. Turkson now petitions
this Court for review of the BIA’s rulings.
II. The Convention Against Torture and Its
Implementation
The United States is a party to the CAT. Under Article 3
of the Convention, parties agree not to deport "a person to
TURKSON v. HOLDER 5
another State where there are substantial grounds for believ-
ing that he would be in danger of being subjected to torture."
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted
Dec. 10, 1984, art. 3, 23 I.L.M. 1027, 1028.
"Torture" is a term of art under the CAT, with a specific
legal definition. The CAT defines 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 obtaining from him or a
third person information or a confession[,] 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, or for any reason
based on discrimination of any kind, when such pain
or suffering 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. It does
not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.
Id. at 1027.3
Before removal, aliens are entitled to a hearing before an
IJ. See generally 8 C.F.R. §§ 1208.16-1208.18. In that
removal proceeding, the alien may apply for relief under the
CAT. 8 U.S.C. § 1229a. To warrant CAT protection, an alien
3
The CAT is not self-executing. See Mironescu v. Costner, 480 F.3d
664, 666 (4th Cir. 2007). Congress therefore enacted the Foreign Affairs
and Restructuring Act ("FARR"), Pub. L. No. 105-277, Div. G, 112 Stat.
2681-82 (Oct. 21, 1998), to implement it. See id. at 666-67; see also
Pierre v. Attorney General, 528 F.3d 180, 185-86 (3d Cir. 2008) (en
banc). Thus, Turkson’s claim is technically a claim under FARR, but for
purposes of this opinion, we shall refer to it as a CAT claim. This practice
is in accordance with other circuits. See, e.g., Pierre, 528 F.3d at 186 n.5
(citation omitted).
6 TURKSON v. HOLDER
must prove, first, that it is more likely than not that he will be
tortured if removed to the proposed country of removal and,
second, that this torture will occur at the hands of government
or with the consent or acquiescence of government. 8 C.F.R.
§ 1208.16(c)(2).
While the burden of proof lies with the alien to establish his
right to relief under the CAT, "[t]he testimony of the appli-
cant, if credible, may be sufficient to sustain the burden of
proof without corroboration." 8 C.F.R. § 1208.16(c)(2). The
regulations direct the trier of fact to consider "all evidence rel-
evant to the possibility of future torture." Id. § 1208.16(c)(3).
If the IJ determines that the petitioner is more likely than not
to be tortured upon removal, the petitioner is entitled to pro-
tection under the CAT, either in the form of withholding of
removal or deferral of removal. Id. § 1208.16(c)(4). The peti-
tioner will be granted withholding of removal, unless one of
the exceptions requiring a mandatory denial of withholding of
removal is triggered.4 Id. In that event, the petitioner’s
removal shall be deferred, rather than withheld. Id.
DHS or the alien may appeal the IJ’s determination to the
BIA. Either party may appeal a final determination of the BIA
to a federal court of appeals. 8 U.S.C. § 1252(a)(4); see also
8 C.F.R. § 1208.18(d) (stating that judicial review of claims
for protection from removal under the CAT shall only be
made "as part of the review of a final order of removal pursu-
ant to section 242 of the [FARR] Act").
III. Discussion
The BIA applied the wrong standard of review to the IJ’s
factual findings. In doing so, the BIA failed to follow its own
regulations as well as the case law interpreting those regula-
tions.
4
As discussed supra note 2, Turkson is ineligible for withholding of
removal as a consequence of his marijuana conviction.
TURKSON v. HOLDER 7
Because Turkson was subject to a removal order by reason
of having committed an aggravated felony, our jurisdiction to
review the BIA’s order is limited. See 8 U.S.C.
§§ 1251(a)(2)(C), 1227(a)(2)(A)(iii). We review the petition
only to the extent that it raises questions of law or constitu-
tional claims. See 8 U.S.C. § 1252(a)(2)(C)-(D).
We review the BIA’s legal determinations de novo. Hui
Zheng v. Holder, 562 F.3d 647, 651 (4th Cir. 2009). That
review, however, is subject to agency deference pursuant to
Chevron v. Natural Resources Defense Council, Inc., 467
U.S. 837, 844 (1984). The BIA’s interpretation of its own
governing regulations is "controlling unless plainly erroneous
or inconsistent with the regulation." Auer v. Robbins, 519
U.S. 452, 461 (1997) (citations omitted).
The BIA is the highest administrative tribunal on immigra-
tion and nationality matters. Before 2002, the BIA reviewed
all aspects of an IJ’s decision de novo. In 2002, however, the
applicable regulations were amended, which changed the
scope of review as to the factual findings of an IJ. 8 C.F.R.
§§ 1003.1(d)(i)-(ii), 1003.3(f).
8 C.F.R. § 1003.1(d)(i) now states: "The Board will not
engage in de novo review of findings of fact determined by
an immigration judge. Facts determined by the immigration
judge, including findings as to credibility of testimony, shall
be reviewed only to determine whether the findings of the
immigration judge are clearly erroneous." As to other matters,
8 C.F.R. § 1003.1(d)(ii) provides: "The Board may review
questions of law, discretion, and judgment and all other issues
in appeals from decisions of immigration judges de novo."
Thus, the regulations establish two different levels of
review. To reverse an IJ’s factual finding, the BIA must deter-
mine that such a finding is clearly erroneous. In contrast,
however, the BIA may substitute its opinion for that of the IJ
on issues of "law, discretion, and judgment." This rule stems
8 TURKSON v. HOLDER
from a sensible understanding of the roles and abilities of the
two bodies. IJs hear witnesses and determine the credibility of
evidence. The BIA reviews a paper record, devoid of the
nuances of weighing evidence first hand. The IJ is thus in a
better position to make factual determinations than the BIA
acting in an appellate capacity. While largely deferring to
those factual determinations, however, the BIA can exercise
its independent judgment to evaluate not only the legal signif-
icance of the facts but also the ultimate conclusions to which
those facts lead.
The explanatory comments accompanying the 2002 regula-
tion amendments underscore this interpretation of the scope of
review. "The clearly erroneous standard reflects the major
role of immigration judges under the Act and implementing
regulations as determiners of fact." 67 Fed. Reg. 54878,
54889. The explanatory comments further note that the
"clearly erroneous" standard is not unique to reviewing deci-
sions of immigration judges, but rather, constitutes the scope
of review generally applicable to "factfinding by trial courts."
Id.The explanatory comments also provide some guidance as
to whether the likelihood of a future occurrence constitutes a
factual or a legal determination. In the analogous setting of
cancellation of removal,5 the comments support the view that
findings as to the likelihood of a future occurrence constitute
factual findings: "[T]hose facts that a respondent claims make
up ‘exceptional and extremely unusual hardship’ . . . will be
reviewed by the Board only to determine if the immigration
judge’s determination was clearly erroneous." Id. 54890. The
"exceptional and extremely unusual hardship" inquiry neces-
sarily turns on predicted outcomes and hardships.
5
Cancellation of removal is an immigration remedy under which an
alien can apply for permanent residence in the United States under certain
circumstances. See 8 U.S.C. § 1229B.
TURKSON v. HOLDER 9
In Turkson’s case, the IJ made both factual determinations
and legal judgments. Factually, he found that Turkson had
previously suffered brutal violence in Ghana on account of his
political beliefs; that political violence still occurs with gov-
ernment sanction; that Ghana’s police use excessive, and
sometimes fatal, force; and that if Turkson returned to Ghana,
he would likely be subject to violence, detention by the
police, and police brutality. As to a legal judgment, the IJ
applied the CAT’s definition of torture to the facts, and found
and concluded that Turkson’s prior experiences and antici-
pated treatment met the CAT definition of torture.
Upon review, the BIA failed to follow the scope of review
as established by 8 C.F.R. § 1003.1(d)(1) and subjected the
IJ’s entire decision to de novo review. The BIA redetermined
the facts found by the IJ by applying its own de novo analysis
of the facts in the record and according no deference to the
IJ’s findings. The BIA did so by rejecting the testimony of
Turkson and his witness, finding certain written evidence
more credible, and rejecting the IJ’s conclusions that political
violence and police brutality existed in Ghana and that Turk-
son would likely face such brutality if returned to Ghana. In
doing so, the BIA committed error as a matter of law because
it failed to apply the appropriate standard of review.
The Third Circuit addressed precisely this issue in Kaplun
v. Attorney General, 602 F. 3d 260 (3d Cir. 2010). Like this
case, Kaplun involved a determination whether an alien
would face torture upon return to his native country. The IJ
had determined that the alien would be tortured, but the BIA
overturned the IJ’s decision, applying de novo review to that
finding. The Third Circuit parsed the question of the likeli-
hood of future torture into two distinct determinations: what
would likely happen if the alien was removed, and whether
the likely occurrence would amount to "torture" as defined in
the CAT. The court held that the former determination is fac-
tual and BIA review of that determination is subject to the
clearly erroneous standard set forth in 8 C.F.R.
10 TURKSON v. HOLDER
§ 1003.1(d)(ii). The latter determination is a legal judgment,
applying the law to decided facts, to which the BIA applies
a de novo standard of review.
Although we have not addressed the precise issue presented
here and in Kaplun, we have applied Kaplun in a slightly dif-
ferent immigration context. In Crespin-Valladares v. Holder,
632 F.3d 117 (4th Cir. 2011), this Court remanded the case to
the BIA because the BIA applied the wrong standard of
review to the IJ’s factual findings. In Crespin-Valladares, the
petitioner applied for asylum, fearing persecution because of
his familial relationships if he were removed to El Salvador.
The IJ found, among other things, that the government in El
Salvador had failed to control gang violence and that a main
reason the petitioner was targeted for persecution by gang
members was because of his uncle’s cooperation with the
government. Id. at 121. The BIA reversed the decision. In
doing so, the BIA gave no deference to the IJ’s finding that
gang members targeted the petitioner because of his affiliation
with his uncle, finding instead that the petitioner himself was
targeted to intimidate him from testifying against gang mem-
bers. Id. at 127.
This Court found the BIA’s review of the IJ’s decision
improper: "The BIA disagreed with the IJ not because it
rejected the IJ’s legal interpretation of undisputed facts;
rather, the BIA took the contrary view of the gang members’
motivations—a classic factual question." Id. (emphasis
added). We held that the BIA could not simply substitute its
own factual findings for those of the IJ.
In Crespin-Valladares, as in this case, the BIA granted dis-
positive weight to a State Department report—in that case,
saying that the government in El Salvador had focused on
suppressing gang violence—and failed to examine other evi-
dence to determine whether the IJ’s finding was clearly erro-
neous. Relying on Kaplun, we rejected the BIA’s approach.
"Whether a government is unable or unwilling to control pri-
TURKSON v. HOLDER 11
vate actors . . . is a factual question that must be resolved
based on the record in each case." Id. at 128 (citation and
internal quotation marks omitted; emphasis added). Parenthet-
ically, the Court noted: "[A] finding of fact by an IJ includes
expressions of likelihood based on testimony . . . and/ or doc-
umentary evidence." Id. at 129 (quoting Kaplun, 602 F.3d at
260).
As in Crespin-Valladares, the BIA should have applied the
clearly erroneous standard to the factual determinations of the
IJ in this case: what happened to Turkson before he emigrated
from Ghana, what the current political climate and practices
are in Ghana, and what will likely happen to Turkson if he
returns to Ghana. In contrast, whether Turkson’s likely future
mistreatment amounts to "torture" under CAT is a legal ques-
tion which the BIA is properly entitled to review de novo.
To justify the BIA’S de novo review of the IJ’s entire deci-
sion, the government tries to recast a finding of likely future
mistreatment as something other than a factual finding. The
government argues that, because the predicted events obvi-
ously have not occurred, a conclusion about them is not a fac-
tual finding. This simplistic view of what constitutes a "fact"
ignores not only the applicable regulations but also this
Court’s jurisprudence.
In two immigration cases, we have held that an IJ’s predic-
tions of future conditions are factual findings entitled to defer-
ence under the clearly erroneous standard. See Saintha v.
Mukasey, 516 F.3d 243 (4th Cir. 2008); Haoua v. Gonzales,
472 F.3d 227 (4th Cir. 2007). Those cases specifically
addressed the likelihood of future events occurring (respec-
tively, whether the Haitian government would acquiesce in
torture and the percentage chance of suffering female genital
mutilation upon removal). We held that those determinations
were factual findings. As we have noted, even Black’s Law
Dictionary recognizes that while facts include historical facts,
they are not limited to them. See Crespin-Valladares, 632
12 TURKSON v. HOLDER
F.3d at 128 ("‘[Facts] include not just tangible things, actual
occurrences, and relationships, but also states of mind such as
intentions and opinion.’" (quoting Black’s Law Dictionary
669 (9th ed. 2009)). In short, we have held that the likelihood
of future mistreatment is a factual determination. Under the
amended regulations and our case law, such factual determi-
nations are only reviewable by the BIA under the clearly erro-
neous standard.6
Here, the IJ determined the present factual likelihood of a
future event occurring. As the Kaplun court held, that the
future event might not occur does not make the prediction any
less a factual finding. Kaplun, 602 F.3d at 269. The govern-
ment’s reliance on this Court’s decisions in Massis v.
Mukasey, 549 F.3d 631 (4th Cir. 2008), and Lin v. Mukasey,
517 F.3d 685 (4th Cir. 2008), to support its argument that the
BIA was correct in applying the de novo standard is unavail-
ing. Massis simply acknowledges that the BIA may review de
novo the IJ’s "application of the law to th[e] facts." 548 F.3d
at 635 n.6. Here, however, the parties do not dispute that once
the BIA accepts all of the IJ’s non-clearly erroneous factual
findings regarding the treatment that Turkson is likely to
receive if removed to Ghana, the BIA is free to review de
novo whether that treatment meets the legal definition of tor-
ture. Massis, therefore, does not further the government’s
cause in any meaningful way.
6
Our jurisprudence routinely treats future predictions as factual findings
even outside of the immigration context. For instance, as noted in Kaplun,
expert witnesses in medical malpractice cases frequently testify about
future disability and pain and suffering. "When the jury chooses to believe
the expert’s predictions, it makes a factual finding that the plaintiff will
be unable to perform certain tasks in the future and will experience some
degree of pain and suffering." Kaplun, 602 F.3d at 270 (emphasis added).
The Kaplun court termed such findings "inferential facts," because they
are based on prior experience. The Kaplun court’s view as to likely future
mistreatment is entirely consistent with the explanatory comments—facts
regarding undue hardship in the context of removal are necessarily "infer-
ential facts" as they involve predictions of the future consequences stem-
ming from the removal.
TURKSON v. HOLDER 13
The government cites Lin for the proposition that the regu-
lations do not prohibit the BIA from making factual determi-
nations from an existing record during de novo review. See
Lin, 517 F.3d at 693. This Court’s holding in Lin, however,
dealt with the BIA’s alleged "impermissible fact-finding in
violation of 8 C.F.R. § 1003.1(d)(3)" rather than the standard
of review the BIA should apply pursuant to
§§ 1003.1(d)(3)(i), (ii). At issue here is not whether the BIA
may find additional facts, but rather whether the BIA may
summarily reject the IJ’s factual findings without first deter-
mining that the IJ clearly erred.
Neither Massis nor Lin governs this case. More impor-
tantly, the BIA’s regulations and the explanatory notes
accompanying them clearly delineate the bifurcated standard
of review that applies to this case, and support our conclusion
that predictions regarding a petitioner’s likely future mistreat-
ment are factual in nature.
We hold that a decision regarding a petitioner’s likely
future mistreatment is a factual determination, subject to BIA
review under the clearly erroneous standard. The BIA’s deci-
sion to subject the IJ’s factual findings to de novo review is
contrary to the plain language of the governing regulation and
is therefore not controlling. See Auer, 519 U.S. at 461.
IV. Conclusion
Applying Kaplun and the applicable regulations here, the
BIA should have addressed two sets of questions with differ-
ent standards. First, the BIA should have examined the record
to determine if the IJ’s factual findings were clearly errone-
ous. The factual findings subject to this deferential level of
review include the IJ’s pronouncements about what happened
to Turkson in Ghana in 1995, what conditions currently exist
in the country, and how Turkson will likely be treated upon
his return. Second, under a de novo standard of review, the
BIA should have applied the CAT definition to the IJ’s factual
14 TURKSON v. HOLDER
findings to determine whether the predicted conduct amounts
to "torture."7
For the reasons stated above, the Court grants the petition
for review, vacates the decision of the BIA and remands the
matter to the BIA for further consideration in accordance with
this opinion.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
7
To be clear, we do not mean to dictate any particular outcome on
remand. Rather, we simply instruct the BIA to review the IJ’s order under
the proper standard as articulated in this opinion.