PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Olen for petitioner.
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
Lynch, Selya, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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. By 2017, however, his U visa had expired
and the government again initiated removal proceedings
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
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
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).
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, ...