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Samayoa Cabrera v. Barr

United States Court of Appeals, First Circuit

October 1, 2019

JUAN ALECIO SAMAYOA CABRERA, Petitioner,
v.
WILLIAM P. BARR, [*] Attorney General, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Randy Olen for petitioner.

          Sarah K. Pergolizzi, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Kohsei Ugumori, Senior Litigation Counsel, were on brief, for respondent.

          Before Lynch, Selya, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Juan Alecio Samayoa Cabrera ("Samayoa"), a citizen of Guatemala who arrived in the United States without admission or parole, petitions for review from a ruling by the Board of Immigration Appeals ("BIA") rejecting his request for deferral of removal pursuant to the Convention Against Torture ("CAT"). We deny the petition in part and dismiss it in part.

         I.

         In 1992, Samayoa entered the United States from Guatemala without inspection. Soon thereafter, he applied for asylum. His application was rejected by the immigration judge ("IJ"), who instead granted him voluntary departure contingent on him leaving the country within 60 days and ordered him removed if he failed to do so. The BIA then affirmed that ruling, and we denied his petition for review from the BIA's decision. See Samayoa Cabrera v. Ashcroft, 367 F.3d 10 (1st Cir. 2004). Samayoa's removal proceedings were conditionally terminated in 2011 after he obtained a temporary U visa, which permitted him to remain in the United States.[1] By 2017, however, his U visa had expired and the government again initiated removal proceedings against him.

         In those proceedings, Samayoa conceded that he had entered this country without admission or parole, see 8 U.S.C. § 1182(a)(6)(A)(i), but sought various forms of relief from removal. By the time of his removal hearing before the IJ, Samayoa had narrowed those claims for relief to just one: deferral of removal under the CAT. The IJ rejected that request for relief, however, and the BIA then affirmed the IJ's ruling. Samayoa now petitions for review from the BIA's decision.

         II.

         To make out a successful CAT claim, Samayoa must show that it is "more likely than not that he . . . would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2). For these purposes, "torture" is defined as:

(1) an act causing severe physical or mental pain or suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) not arising from lawful sanctions.

Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004) (quoting Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004)); see also 8 C.F.R. § 1208.18(a).

         Samayoa based his CAT claim before the IJ on the contention that he is alleged (falsely, in his view) to have committed a number of war crimes while he served as a paramilitary leader during the Guatemalan Civil War in the 1980s. Samayoa contended that, in consequence of those allegations and his resulting notoriety in Guatemala, if he were removed there, he would be either targeted and tortured by guerilla groups or imprisoned and then tortured while in prison. In his petition for review, however, ...


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