2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-5-2011

Ricardo Pieschacon-Villegas v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 09-4719

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Ricardo Pieschacon-Villegas v. Atty Gen USA" (2011). 2011 Decisions. Paper 23.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/23
1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4719

_____________

RICARDO PIESCHACON-VILLEGAS, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_____________

ON PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS

(BIA No. A079 191 076)

Immigration Judge: Honorable Andrew Arthur

______________

Argued February 8, 2011

______________

Before: JORDAN, GREENAWAY, JR., and STAPLETON, 

Circuit Judges.

(Opinion Filed: December 5, 2011)

______________
2

Albania C. Almanzar (argued)

177 East 161st Street 

Bronx, NY 10451

Counsel for Petitioner

David V. Bernal 

Jesse M. Bless (argued)

Aaron R. Petty

United States Department of Justice 

Office of Immigration Litigation, Civil Division 

P.O. Box 878 

Ben Franklin Station 

Washington, DC 20044

Counsel for Respondent

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Ricardo Pieschacon-Villegas (“Pieschacon-Villegas”)

petitions for review of a decision of the Board of Immigration

Appeals (“BIA” or “Board”) dismissing his appeal of the 

Immigration Judge‟s (“IJ”) denial of his request for deferral 

of removal under the United Nations Convention Against 

Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment (“CAT”). Pieschacon-Villegas seeks this Court‟s 

review because he asserts that: (1) the BIA used an incorrect 

legal standard for determining whether torture would be 

inflicted with the acquiescence of the Colombian government 
3

and (2) the BIA failed to take into account evidence in the 

record demonstrating that, if Pieschacon-Villegas is removed 

to Colombia, he will more likely than not be tortured with the

acquiescence of a public official. We will grant the petition

and remand to the BIA. 

I. BACKGROUND

Pieschacon-Villegas was born in 1969 and is a 

Colombian native and citizen. He has entered and left the 

United States on a number of occasions. Pieschacon-Villegas 

last entered the United States as a special parolee in 

December 2007. One of Pieschacon-Villegas‟s siblings lives 

in the United States and his other siblings and his parents live 

in Colombia. 

From 1996 until 2003, Pieschacon-Villegas received 

fees for laundering Colombian drug traffickers‟ money. In 

1999, Federal Bureau of Investigation (“FBI”) agents in New 

Jersey learned about Pieschacon-Villegas‟s involvement in 

money laundering during an undercover investigation. The 

FBI was aware that Pieschacon-Villegas was involved in a 

transaction with a major drug operation in 1999, in which he 

made wire transfers totaling $218,467. He was subsequently 

arrested and indicted for his involvement in that money 

laundering scheme.

On August 21, 2003, Pieschacon-Villegas pled guilty 

to conspiracy to commit money laundering, in violation of 18 

U.S.C. § 1956(h), for those 1999 transfers. He agreed to 

cooperate with the FBI and he was released on an unsecured 

bond. His conviction and sentencing were deferred. 
4

Pieschacon-Villegas cooperated with the FBI from 

2003 to 2007. During this time period, the FBI paid him 

$4,000 per month for the expenses he incurred during his 

cooperation. (App. at 461.) As a cooperator, PieschaconVillegas bought drugs and delivered money to help the FBI 

build cases against drug traffickers. The targeted drug 

traffickers worked for, or were associated with, the 

Autodefensas Unidas de Colombia (“AUC”), a paramilitary 

group. Pieschacon-Villegas worked from Colombia and 

would come to the United States to carry out transactions. 

The Colombian Department of Administration Security 

(“DAS”) was aware that Pieschacon-Villegas was 

collaborating with the FBI.

In 2007, Pieschacon-Villegas was arrested upon 

returning to Colombia from the United States for failure to 

pay a fine a number of years earlier. Pieschacon-Villegas 

paid the fine, but remained in jail for twenty-two days. 

This incident in jail provides the critical backdrop for 

Pieschacon-Villegas‟s petition for review. He posited that his 

arrest and jailing were to facilitate his murder by the AUC. 

Pieschacon-Villegas testified1that Colombian jails are 

managed by the AUC and the Fuerzas Armadas 

Revolucionarias de Colombia – Ejercito del Pueblo 

(“FARC”), another paramilitary group, and that the DAS 

informed AUC members of his incarceration so he would be 

harmed or killed.

 

1

This refers to Pieschacon-Villegas‟s testimony on July 30, 

2009 during the removal proceedings before the IJ. The IJ 

found Pieschacon-Villegas‟s testimony to be credible and the 

BIA did not disturb that finding.
5

On the day Pieschacon-Villegas was to be released 

from jail, he was led to a room to meet with his attorney. 

However, Pieschacon-Villegas‟s attorney was not in the room 

when Pieschacon-Villegas arrived there. Instead, PieschaconVillegas saw a man whom he did not recognize, so 

Pieschacon-Villegas left the room, went back to his cell, and 

called an associate who had also cooperated with the FBI. 

His associate brought an armored car to pick PieschaconVillegas up from jail. Pieschacon-Villegas asserted in his 

asylum application and during his testimony that when he 

tried to leave prison that day he saw people whom he had 

dealt with in the AUC waiting outside in vehicles. 

Pieschacon-Villegas testified that he thought these men were 

there to kill him, so he went back inside the jail and a prison 

official allowed the armored car into the prison to pick him 

up. Police officers who arrived on the scene said that the 

armored car had been involved in a crime. PieschaconVillegas testified that the allegation that the armored car had 

been involved in a crime was a ploy to ensure that police 

officers would kill him during a pursuit or provide false 

justification for his murder if he had left jail in that car. 

Pieschacon-Villegas‟s actual attorney then called the 

military leader of the city and municipality, Baranquilla, in 

which the jail is located. The military leader sent a police 

escort to take Pieschacon-Villegas to the police station and 

dismissed the charge regarding the armored car being 

involved in a crime. 

During the time Pieschacon-Villegas was in jail, the 

FBI arrested and extradited four alleged drug traffickers, 

including Miguel Amezquita (“Amezquita”), who had worked 
6

with Pieschacon-Villegas in the money laundering business.

2

 

Pieschacon-Villegas also contends that when the four men 

were arrested they all knew of his collaboration with the FBI. 

According to Pieschacon-Villegas, Amezquita accused him of 

cooperating with the FBI and wrote a letter to other money 

launderers saying that he was a “rat” and that he would be 

killed. IJ Removal Proceedings Decision at 13 (July 30, 

2009). 

The record of the removal proceedings also includes

sworn declarations from Nelson Malpica Rodriguez 

(“Rodriguez”) and Pieschacon-Villegas‟s wife and his 

mother. Each of them swore that numerous notes threatening 

the lives of Pieschacon-Villegas and his family had been 

delivered to Pieschacon-Villegas‟s mother‟s building.

3

Pieschacon-Villegas produced for the record the asylum 

application his wife submitted, in which she states that FBI 

 

2

Pieschacon-Villegas asserts that the FBI had obtained an 

arrest warrant for a fifth man, but that warrant was not 

executed.

3 Copies of a number of these notes were also included in the 

record. Translations of the notes include the following 

statements: “RICARDO PIESCHACON MRS AND 

CHILDREN MAY YOU REST IN PEACE,” (App. at 206); 

“many . . . will be waiting your arrival again. You fucked us 

but worse off will be you and your people,” (Id. at 210); “All 

the money in the world won‟t be enough to hide your woman, 

your children, brothers and mother. Poor „Cuchita,‟ with a 

son so gonnorhea [slang for vile or horrible] and on top of 

that, a frog [slang for rat],” (Id. at 212 (alterations in 

original)). One of the letters was signed, “YOUR EXFRIENDS.” (Id. at 208.)
7

agents suggested that, if she valued her life and the life of her 

children, she should not go back to Colombia because of 

these threats. 

On December 27, 2007, Pieschacon-Villegas traveled 

to the United States and was arrested on a bail revocation 

charge because FBI agents believed Pieschacon-Villegas was

involved in money laundering outside of the parameters of his 

FBI cooperation. On June 11, 2008, Pieschacon-Villegas 

pled guilty to money laundering based on the 1999 transfers 

referenced his 2003 plea agreement. He was sentenced to 

thirty months of incarceration. 

On November 18, 2008, the Department of Homeland 

Security (“DHS”) served Pieschacon-Villegas with a Notice 

to Appear, charging him with being removable from the 

United States because: (1) he was an alien who had been 

convicted of acts which constituted a crime involving moral 

turpitude, see Immigration and Nationality Act (“INA”) § 

212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I); (2) he was 

an alien who the Attorney General knows, or has reason to 

believe, has engaged in money laundering, as described in 18 

U.S.C. §§ 1956 and 1957, INA § 212(a)(2)(I)(i), 8 U.S.C. § 

1182(a)(2)(I)(i); and (3) he was an applicant for admission to 

the United States who did not possess a valid entry document, 

see INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

On February 18, 2009, Pieschacon-Villegas appeared 

before the IJ and conceded removability. On or about April 

10, 2009, Pieschacon-Villegas submitted an application for 

deferral of removal under the CAT. 
8

A. IJ Decision

In addition to Pieschacon-Villegas‟s testimony before 

the IJ regarding prior threats and alleged attempts to harm 

him, he testified that he would be killed by members of the 

AUC or the FARC if he returned to Colombia. 

On July 30, 2009, the IJ issued a decision denying 

Pieschacon-Villegas deferral of removal. The IJ described 

Pieschacon-Villegas‟s testimony and other exhibits and 

reports submitted by both parties on Colombian country 

conditions. The IJ noted exhibits stating that, although the 

Colombian government has attempted to demobilize 

paramilitary groups and has claimed that all such 

organizations have been demobilized, a number of the groups 

(AUC and FARC) are still active, despite the illegality of 

membership.

The record before the IJ also included information 

indicating that a number of government officials were being 

investigated for alleged links to paramilitary groups. Further,

twenty-seven army officers, including three generals, four 

colonels, and the head of the army had been fired or forced to 

resign due to civil rights violations. Additionally, nineteen 

military personnel had been charged with murder, forced 

disappearance, or false testimony. 

The Colombian government had acknowledged that 

security forces had been responsible for extrajudicial 

executions in Soacha. The military often claimed jurisdiction 

over these cases but would close the cases without serious 

investigation. As a result, Colombian President Álvaro Uribe 

stated that the Soacha killings would be investigated by 

civilian courts. 
9

The IJ noted that it was “clear that the government of 

Colombia is struggling with corruption” and “officials 

sometimes engaged in corrupt practices with impunity.” IJ 

Removal Proceedings Decision at 19 (July 30, 2009). Some 

members of government security forces may have directly 

participated in paramilitary atrocities. The IJ continued that 

“any actions taken by government officials in Colombia in 

support of paramilitary groups are in contradiction to 

government policy.” Id. at 20. 

The IJ found that Pieschacon-Villegas testified 

credibly regarding his cooperation with the FBI and working 

with individuals associated with the AUC. The IJ also 

believed Pieschacon-Villegas‟s assessment that his 

cooperation would endanger his life if he returned to 

Colombia. 

The IJ noted that he did not understand why 

Pieschacon-Villegas alleged that he would be harmed by the 

FARC4and found that any harm inflicted by the FARC would 

not be inflicted by, or at the instigation of, or with the consent 

or acquiescence of, the Colombian government. The IJ found 

that any harm inflicted on Pieschacon-Villegas by the AUC 

would be “„extrajudicial acts of brutality‟ by „isolated rogue 

agents . . . [committed] not only in contravention of 

[Colombia‟s] laws and policies . . . but committed despite 

authorities [sic] best efforts to root out such misconduct‟, and 

therefore, not torture as that term is defined.” Id. at 22–23

(citing In re Y-L-, A-G- and R-S-R-, 23 I. & N. Dec. 270, 283 

(BIA 2002)). 

 

4

Pieschacon-Villegas did not work with anyone who was 

associated with the FARC.
10

Because Pieschacon-Villegas was not harmed when he 

was in the Barranquilla prison and the police helped to protect 

him, the IJ found that Pieschacon-Villegas failed to carry his 

burden for deferral of removal. 

Pieschacon-Villegas appealed the IJ‟s decision to the 

BIA.

B. BIA Decision

On December 3, 2009, the BIA issued its decision 

dismissing Pieschacon-Villegas‟s appeal. Without citing any 

sources, the BIA noted that “[CAT] protection does not 

extend to persons who fear entities that a government is 

unable to control. To demonstrate acquiescence, the 

respondent must do more than show that the officials are 

simply aware of the activity constituting torture yet are 

powerless to stop it.” In re Pieschacon-Villegas, A049 191 

076, at 2 (BIA Dec. 3, 2009). The BIA referenced the 

country reports submitted to the IJ. The BIA agreed with the 

IJ‟s decision to deny deferral of removal because “the record 

reflects that the Colombian government actively opposes the 

organizations that the respondent fears. Thus, we reject the 

respondent‟s argument on appeal that the Colombian 

government would acquiesce to his torture under a willful 

blindness theory.” Id. (internal citation omitted). The BIA 

also noted that Pieschacon-Villegas failed to show a clear 

probability that he would be tortured while in the custody or 

control of the offender. The BIA continued that 

the existence of a consistent 

pattern of gross, flagrant, or mass 

violations of human rights in a 

particular country does not, as 
11

such, constitute sufficient grounds 

for determining that a particular 

person would be in danger of 

being subject to torture upon his 

return to that country. Specific 

grounds must exist that indicate 

the respondent would be 

personally at risk.

Id. (internal citation omitted).

Pieschacon-Villegas petitions for our review.5

 

5

Pieschacon-Villegas originally requested a Stay of Removal 

pending appeal which was granted. On March 28, 2011, 

Pieschacon-Villegas‟s counsel filed a motion to lift the Stay 

of Removal and indicated that Pieschacon-Villegas would 

await the results of the petition for review from abroad. In 

May 2011, after oral argument, we granted the motion to lift 

the Stay of Removal and, on May 23, 2011, PieschaconVillegas was removed to Colombia. Pieschacon-Villegas‟s 

removal does not moot his petition for review “[b]ecause a 

final order of removal creates „sufficient collateral 

consequences.‟” Gomez-Zuluaga v. Att'y Gen., 527 F.3d 

330, 339 n.4 (3d Cir. 2008) (citing Amanfi v. Ashcroft, 328 

F.3d 719, 724-25 n.1 (3d Cir. 2003)). “[S]ufficient collateral 

consequences” flow from a BIA order of removal to make an 

appeal a live case or controversy under Article III because an 

order of removal prevents the removed person from entering 

the United States for a period of years. Moi Chong v. District 

Director, I.N.S., 264 F.3d 378, 384-85 (3d Cir. 2001).
12

II. JURISDICTION and STANDARD OF REVIEW

This Court has jurisdiction to review final orders of 

removal issued by the BIA, pursuant to 8 U.S.C. § 1252(a). 

The government contends that petitioner‟s challenge amounts 

to a disagreement with the BIA‟s determination that he failed 

to sufficiently demonstrate that public officials in Colombia 

would likely acquiesce in his torture. This Court would lack 

jurisdiction to consider such a challenge. 8 U.S.C. § 

1252(a)(2)(C)-(D). This Court does, however, have 

jurisdiction over “constitutional claims or questions of law.”6 

 

6 Determining “what is likely to happen to the petitioner if 

removed” is a factual inquiry outside the scope of our review, 

but determining whether “what is likely to happen amount[s] 

to the legal definition of torture” is a legal question. Kaplun 

v. Att‟y Gen., 602 F.3d 260, 271 (3d Cir. 2010).

In Kaplun, we noted that

Torture is a term of art, and 

whether imprisonment, beating, 

and extortion are severe enough to 

rise to the level of torture is a 

legal question. While the 

underlying facts vary from 

petitioner to petitioner, the legal 

question remains the same: do the 

facts found by the IJ (and that the 

BIA determines are not clearly 

erroneous) meet the legal 

requirements for relief under the 

CAT?
13

Pierre v. Att‟y Gen., 528 F.3d 180, 184 (3d Cir. 2008) (en 

banc) (quoting 8 U.S.C. § 1252(a)(2)(C)-(D)) (internal 

quotation marks omitted). Additionally, as the government 

concedes,7this Court has jurisdiction to determine whether 

the Board adjudicated Pieschacon-Villegas‟s application for 

deferral of removal under an incorrect legal standard. 

The government mischaracterizes the BIA‟s decision,

at least in part, when it contends that the BIA applied the 

correct legal standard. Despite acknowledging that 

government acquiescence can be demonstrated by showing 

that the government is willfully blind to torturous activities, 

the BIA incorrectly stated that a number of specific

circumstances cannot constitute acquiescence. Furthermore, 

the BIA misapplied the legal standard by ignoring evidence 

relevant to determining whether Pieschacon-Villegas will 

more likely than not be subjected to torture upon removal. 

Although the BIA has discretion to hold that this evidence is 

insufficient to meet Pieschacon-Villegas‟s burden, the BIA 

lacks authority to ignore this evidence altogether. 

When the BIA issues its own decision on the merits, 

rather than a summary affirmance, we review its decision, not 

that of the IJ. Sheriff v. Att‟y Gen., 587 F.3d 584, 588 (3d 

Cir. 2009). We review legal determinations de novo, subject 

to the principles of deference articulated in Chevron v. Nat.

Res. Def. Council, 467 U.S. 837, 844 (1984). Briseno-Flores 

v. Att‟y Gen., 492 F.3d 226, 228 (3d Cir. 2007). 

 

Id.

7

(Respondent‟s Br. at 20.)
14

III. ANALYSIS

A. Article 3 of CAT

Under Article 3 of CAT, “[n]o State Party shall . . . 

expel, return („refouler‟) or extradite a person to another 

State where there are substantial grounds for believing that 

he would be in danger of being subjected to torture.” Art. 

3(1), S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. We 

have stated that

For an act to constitute torture 

under the [CAT] and the 

implementing regulations, it must 

be: (1) an act causing severe 

physical or mental pain or 

suffering; (2) intentionally 

inflicted; (3) for an illicit or 

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.

Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005). 

An applicant for relief under Article 3 of CAT “bears 

the burden of establishing „that it is more likely than not that 

he or she would be tortured if removed to the proposed 
15

country of removal.‟”8 Sevoian v. Ashcroft, 290 F.3d 166, 

174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). The 

applicant must establish that he or she, more likely than not,

will be subjected to torturous acts 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.” 8 

C.F.R. § 1208.18(a)(1) (2006). 

B. Acquiescence

“Acquiescence of a public official requires that the 

public official, prior to the activity constituting torture, have 

awareness of such activity and thereafter breach his or her 

legal responsibility to intervene and prevent such activity.” 8 

C.F.R. § 1208.18(a)(7). “If an alien produces sufficient 

evidence to satisfy that burden, withholding of removal or 

deferring of removal is mandatory.” Silva-Rengifo v. Att‟y 

Gen., 473 F.3d 58, 64 (3d Cir. 2007) (citing 8 C.F.R. §

1208.16–.18). 

The acquiescence that must be established for deferral 

of removal does not require that the government have actual 

knowledge of the torturous activity; instead, governmental 

acquiescence may be shown “by producing sufficient 

evidence that the government in question is willfully blind to 

such activities.” Id. at 65; see also Gomez-Zuluaga v. Att‟y 

Gen., 527 F.3d 330, 350 (3d Cir. 2008) (quoting SilvaRengifo, 473 F.3d at 65). 

 

8

“An „alien‟s testimony, if credible, may be sufficient to 

sustain the burden of proof without corroboration.‟” Kamara 

v. Att‟y Gen., 420 F.3d 202, 213 (3d Cir. 2005) (quoting 

Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003)). 
16

In its decision regarding Pieschacon-Villegas, the BIA 

made three unqualified statements regarding different 

circumstances under which a government is not willfully 

blind and does not acquiesce: (1) when a government is 

unable to control the entities carrying out the torture; (2) 

when a government actively opposes the entities that the 

applicant fears; and (3) when the only evidence is the 

existence of a pattern of flagrant or mass violations of human 

rights within the country.

i. Government Inability to Control

In its decision, the BIA stated that CAT “protection 

does not extend to persons who fear entities that a 

government is unable to control.” In re Pieschacon-Villegas, 

A049 191 076, at 2 (BIA Dec. 3, 2009). In Silva-Rengifo, 

however, we noted that, “although a government‟s ability to 

control a particular group may be relevant to an inquiry into 

governmental acquiescence under the CAT, that inquiry does 

not turn on a government‟s „ability to control‟ persons or 

groups engaging in torturous activity.” 473 F.3d at 65. 

In Gomez-Zuluaga, we reaffirmed the possibility that 

the Colombian government could be willfully blind and thus 

be found to have acquiesced, even if it was unable to control 

those engaged in torturous activity. 527 F.3d at 350–51. In 

that case, we held that two government representatives each 

telling the petitioner that “there was nothing they could do to 

protect her” from the FARC “may be circumstantial evidence 

that the Colombian government was willfully blind to such 

treatment and that to pursue official assistance would have 

been futile.” Id. at 351 (remanding to the BIA for 

consideration in light of the proper standard, namely that 

articulated in Silva-Rengifo).
17

The BIA‟s assumption that “[CAT] protection does not 

extend to persons who fear entities that a government is 

unable to control” contradicts our holdings in Silva-Rengifo

and Gomez-Zuluaga that a government‟s ability to control 

groups engaged in torturous activities may be relevant to, but 

is not dispositive of, an assessment of willful blindness. In re 

Pieschacon-Villegas, A049 191 076, at 2 (BIA Dec. 3, 2009). 

The BIA should conduct a review that takes into account our 

precedent that an applicant may be able to establish 

governmental acquiescence in some circumstances, even 

where the government is unable to protect its citizens from 

persecution.

ii. Government Opposes Entities Carrying 

out Torture

The BIA stated in its decision that it “reject[ed] 

[Pieschacon-Villegas‟s] argument on appeal that the 

Colombian government would acquiesce to his torture under 

a willful blindness theory” because “the record reflects that 

the Colombian government actively opposes the 

organizations that the respondent fears.” In re PieschaconVillegas, A049 191 076, at 2 (BIA Dec. 3, 2009) (internal 

citation omitted). We held, however, in Gomez-Zuluaga, that 

“[t]he mere fact that the Colombian government is engaged in 

a protracted civil war with the FARC does not necessarily 

mean that it cannot remain willfully blind to the torturous acts 

of the FARC.” 527 F.3d at 351. Gomez-Zuluaga had

submitted country reports stating that the Colombian 

government was aware that the FARC routinely tortured, 

mutilated, and killed people and that “paramilitaries 

sympathetic to the government often engage in similar 

activities with tacit approval from the government.” Id. In 

that case, we held that there may be tacit governmental
18

approval of, and willful blindness toward, the torturous 

activities of an entity, even if the Colombian government is 

engaged in a war with that entity.

The BIA should conduct a review that takes into 

account our precedent that an applicant can establish 

governmental acquiescence even if the government opposes 

the paramilitary organization that is engaged in torturous 

acts.9

 

9

In De la Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010), the 

Second Circuit remanded to the BIA a matter with facts 

strikingly similar to those in Pieschacon-Villegas. There, the 

court noted that the BIA appeared to have assumed that some 

government officials previously taking action to prevent De la 

Rosa‟s torture “overrides both the complicity of other 

government actors and the general corruption and 

ineffectiveness of the Dominican government in preventing 

unlawful killings.” Id. at 110. The court continued that 

[I]t is not clear to this Court why 

the preventative efforts of some 

government actors should 

foreclose the possibility of 

government acquiescence, as a 

matter of law, under the CAT. 

Where a government contains 

officials that would be complicit 

in torture, and that government, 

on the whole, is admittedly 

incapable of actually preventing 

that torture, the fact that some 

officials take action to prevent the 
19

iii. Country Conditions

The BIA noted in its decision that “the existence of a 

consistent pattern of gross, flagrant, or mass violations of 

human rights in a particular country does not, as such, 

constitute sufficient grounds for determining that a particular 

person would be in danger of being subject to torture upon his 

return to that country.” In re Pieschacon-Villegas, A049 191 

076, at 2 (BIA Dec. 3, 2009). In Zubeda v. Ashcroft, 333 

 

torture would seem neither 

inconsistent with a finding of 

government acquiescence nor 

necessarily responsive to the 

question of whether torture would 

be “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.”

Id. The Second Circuit remanded, asking the BIA to “issue a 

precedential opinion on whether, as a matter of law, a 

government may acquiesce to a person‟s torture where (1) 

some officials attempt to prevent that torture (2) while other 

officials are complicit, and (3) the government is admittedly 

unable to actually prevent the torture from taking place.” Id.

at 110–11. Unlike De la Rosa, where the Second Circuit said 

the BIA “appears to have assumed” this proposition, in the 

BIA‟s decision regarding Pieschacon-Villegas, the BIA 

explicitly stated these propositions that contradict our 

precedent. 
20

F.3d 463 (3d Cir. 2003), however, we held that “[o]fficial as 

well as unofficial country reports are probative evidence and 

can, by themselves, provide sufficient proof to sustain an 

alien‟s burden under the INA.” Id. at 477 (citing Kamalthas 

v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001)). “„[G]ross, 

flagrant or mass violations of human rights within the country 

of removal . . .‟ can corroborate an alien‟s claim that he/she 

will be subjected to torture upon return; thus allowing the 

alien to present the proof necessary for establishing a claim 

under the Convention Against Torture.” Id. at 478 (quoting 8 

C.F.R. § 208.16(c)(3)) (citing Kamalthas, 251 F.3d at 1284) 

(remanding to the IJ because “[t]he BIA‟s de novo analysis 

never considers this” possibility). 

The BIA should conduct a review that is not in tension 

with our precedent that country conditions can, by 

themselves, constitute sufficient grounds for determining that 

an applicant would more likely than not be subjected to 

torture upon return to the country of removal.

C. Considering all relevant evidence and facts found 

by IJ

When the IJ or BIA analyzes whether it is more likely 

than not that an applicant seeking relief would be tortured if 

removed to the proposed country of removal, it must consider

all evidence relevant to the 

possibility of future torture shall 

be considered, including but not 

limited to:

(i) Evidence of past torture 

inflicted upon the applicant;
21

(ii) Evidence that the applicant 

could relocate to a part of the 

country of removal where he or 

she is not likely to be tortured;

(iii) Evidence of gross, flagrant or 

mass violations of human rights 

within the country of removal, 

where applicable; and

(iv) Other relevant information 

regarding conditions in the 

country of removal.

8 C.F.R. § 208.16(c)(3) (emphasis added); see also Lavira v. 

Att‟y Gen., 478 F.3d 158, 171 (3d Cir. 2007) (“IJs are 

obligated to consider „all evidence relevant to the possibility 

of future torture‟ (quoting 8 C.F.R. § 208.16(c)(3)), overruled 

on other grounds by Pierre v. Att‟y Gen., 528 F.3d 180 (3d 

Cir. 2008); McAllister v. Att‟y Gen., 444 F.3d 178, 189 (3d 

Cir. 2006) (“In its assessment of whether an alien will likely 

be tortured in the country of removal, the BIA must consider 

„all evidence relevant to the possibility of future torture,‟ 

including „information regarding conditions in the country of 

removal.” (quoting 8 C.F.R. § 208.16(c)(3)); Kamara v. Att‟y 

Gen., 420 F.3d 202, 213 n.8 (3d Cir. 2005); Sevoian v. 

Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (“Decisionmakers evaluating claims under the Convention should pay 

attention to „evidence of past torture inflicted upon the 

applicant‟ as well as considering all other relevant evidence.” 

(quoting 8 C.F.R. § 208.16(c)(3)(i) (citing 8 C.F.R. § 

208.16(c)(3))).
22

The BIA decision does not show that the Board 

considered “all evidence relevant to the possibility of future 

torture.” Further, the BIA decision does not reference or 

show a meaningful consideration of relevant evidence 

discussed in the IJ‟s decision; the IJ‟s findings regarding 

Pieschacon-Villegas‟s credibility;

10 the threats allegedly made 

against Pieschacon-Villegas and his family and that 

Amezquita allegedly told others that Pieschacon-Villegas was 

a “rat;” the FBI‟s alleged recommendation that PieschaconVillegas‟s wife not return to Colombia for her own safety; or 

the alleged attempt to harm Pieschacon-Villegas in the 2007 

Barranquilla jail incident. 

Additionally, although the BIA decision referenced 

country reports in the record, the decision does not indicate 

that the BIA considered that those country reports indicated 

that a number of government officials have been suspected of, 

or charged with, civil rights violations or involvement in 

paramilitary atrocities, including murder and forced 

disappearances, or that the Colombian government claims 

that all paramilitary organizations have demobilized despite 

abundant evidence to the contrary. 

As one of the Board‟s reasons for dismissing 

Pieschacon-Villegas‟s appeal, the BIA noted that “[s]pecific 

grounds must exist that indicate the respondent would be 

personally at risk.” In re Pieschacon-Villegas, A049 191 076, 

 

10 The IJ found credible Pieschacon-Villegas‟s testimony that 

he cooperated with the FBI in operations targeting criminal 

organizations and involving individuals with ties to the AUC. 

The IJ also found credible Pieschacon-Villegas‟s testimony 

that his cooperation with the FBI would endanger his life if he 

returned to Colombia.
23

at 2 (BIA Dec. 3, 2009). The BIA did not explicitly deem

clearly erroneous the IJ‟s finding of credibility regarding

Pieschacon-Villegas‟s testimony that his cooperation with the 

FBI would endanger his life if he returned to Colombia. 

Similarly, the Board did not offer reasons for implicitly 

concluding that there was no record evidence of specific 

grounds that Pieschacon-Villegas would be personally at risk. 

The BIA decision did not explain why none of the evidence, 

including evidence or testimony of Pieschacon-Villegas‟s 

cooperation with the FBI in targeting paramilitary 

organizations, the alleged threats, the alleged prior attempt to 

harm him, and the information contained in the country 

reports, constituted a specific ground indicating that he would 

be personally at risk. Although the BIA has the discretion to 

find that, despite the relevant evidence, Pieschacon-Villegas 

has not shown that he is more likely than not to be subjected 

to torture if removed to Colombia, the BIA lacks authority to 

ignore any “evidence relevant to the possibility of future 

torture” when making that determination. 8 C.F.R. § 

208.16(c)(3) 

IV. CONCLUSION

For the reasons set forth above, we will grant the 

petition for review and remand to the BIA for further 

proceedings consistent with this opinion.