Argued: September 24, 2015.
Petition for Review of an Order of the Board of Immigration Appeals. No. A073-223-323.
For Rufino Antonio Estrada-Martinez, Petitioner: Robert Stuart Whitehill, Attorney, Fox Rothschild LLP, Pittsburgh, PA.
For LORETTA E. LYNCH, Attorney General of the United States, Respondent: OIL, Attorney, Jocelyn Wright, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
Hamilton, Circuit Judge.
Petitioner Rufino Antonio Es-trada-Martinez faces removal to Honduras, a country that he fled in 1994 after police there detained and tortured him. An immigration judge granted Estrada relief from removal, finding that he will more likely than not face torture if he is removed to Honduras. The Board of Immigration Appeals disagreed regarding the likelihood that Estrada will be tortured, so it reversed the judge's grant of relief. Estrada has petitioned for review. He claims both eligibility for " withholding of removal" under the Immigration and Nationality Act (" the Act" ) and the United Nations Convention Against Torture (" the Convention" ) and eligibility for " deferral of removal" under only the Convention.
Estrada is not eligible for withholding of removal because he was convicted in an Illinois state court of statutory rape in 1996, and the Board has characterized his conviction as " particularly serious." Committing a crime that the Attorney General deems " particularly serious" bars withholding of removal under the Act and the Convention. We do not have jurisdiction to review that discretionary judgment unless a petitioner presents a legal or constitutional question, and Estrada's attempt to frame his challenge to the " particularly serious crime" determination as a legal issue is not persuasive.
Estrada may well be eligible, however, for deferral of removal under the Convention. As noted, the immigration judge found it more likely than not that Estrada will be tortured if he is removed to Honduras. The Board was required to review that factual finding only for clear error, not de novo. 8 C.F.R. § 1003.1(d)(3)(i); Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015). In this case the Board failed to apply the clear error standard of review, so we reverse the Board with respect to Estrada's request for deferral of removal. We remand for reconsideration of the immigration judge's decision under the correct standard of review.
I. The Legal Framework
A brief explanation of the relevant statutes and regulations will be helpful before we lay out the facts of Estrada's case. Estrada seeks relief from removal under three provisions of law: (1) withholding of removal under the Act, 8 U.S.C. § 1231(b)(3)(A); (2) withholding of removal under the Convention, 8 C.F.R. § 1208.16(c); and (3) deferral of removal under the Convention, 8 C.F.R. § 1208.17(a).
Commission of a crime that the Attorney General finds to be " particularly serious" bars withholding of removal under both the Act and the Convention. 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Aggravated felonies punished by at least five years of imprisonment are automatically " particularly serious." The Attorney General also has authority to determine that other criminal convictions are " particularly serious." 8 U.S.C. § 1231(b)(3)(B). In finding that a crime is " particularly serious," immigration authorities may examine " the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction." In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). In some cases, however, the Board has instead " focused exclusively on the elements of the offense, i.e., the nature of the crime." Id.
Even where an unauthorized immigrant has committed a " particularly serious crime," however, deferral of removal under the Convention remains available if he will " more likely than not" be tortured if removed to the particular country. 8 C.F.R. § § 1208.16(c)(4) & 1208.17(a), In making this determination, immigration authorities must consider all relevant evidence including: (1) " Evidence of past torture inflicted upon the applicant; " (2) " Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; " (3) " Evidence of gross, flagrant or mass violations of human rights within the country of removal," and (4) " Other relevant information regarding conditions in the country of removal." Id., § § 1208.16(c)(3) & 1208.17(a).
II. Factual Background
In 1993, Estrada led a peasant land takeover in Honduras. The land that he and his comrades occupied belonged to a retired military colonel, Avilio Martinez. Honduran police arrested Estrada and thirteen of his comrades, holding Estrada for two months. During that time, Estrada was tortured. His jailers beat him severely, sometimes to the point of unconsciousness. They suffocated him by putting a bag over his head, pushed his head under water to simulate drowning, subjected him to electric shocks, and threatened the lives of his family, including his two young children.
Shortly after his release from police detention and torture, a friend warned Estrada about a suspicious vehicle near Estrada's home, and his home was ransacked while he was away. Fearing for his safety, Estrada at first relocated within Honduras but then fled to Mexico and ...