IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60532

JOSE IRUEGAS-VALDEZ, also known as Jose Iruegas, 

 Petitioner 

v. 

SALLY Q. YATES, ACTING U. S. ATTORNEY GENERAL, 

 Respondent 

Petition for Review of an Order of the 

Board of Immigration Appeals 

Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges. 

EDITH BROWN CLEMENT, Circuit Judge: 

Jose Iruegas-Valdez (“Iruegas-Valdez”) appeals the Board of 

Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) 

denial of his application for withholding of removal and relief under the 

Convention Against Torture (“CAT”). For the reasons below, we VACATE the 

decision of the BIA and REMAND with instructions to apply the appropriate 

legal standards. 

I 

In 1975, one-year-old Iruegas-Valdez, a Mexican national, entered the 

United States with his parents as a lawful permanent resident. In 1997, he 

was convicted of possession of a controlled substance and removed from the 

United States Court of Appeals

Fif h Circuit

FILED

January 23, 2017

Lyle W. Cayce

Clerk

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United States. He remained in Mexico for only two days before re-entering the 

country illegally. Ten years later, he was again removed after being convicted 

of aggravated assault with a deadly weapon and serving three years 

imprisonment. 

Iruegas-Valdez again re-entered the United States illegally but was 

quickly apprehended by the Department of Homeland Security (“DHS”). He 

was convicted of being unlawfully present in the United States and, after 

completing his sentence, was returned to DHS for removal procedures. He 

claimed asylum and requested a reasonable fear interview. The asylum officer 

conducting the interview found Iruegas-Valdez to be “credible” and to have a 

reasonable fear of persecution in his home country. The case was then referred 

to an IJ for determination. 

At the hearing, Iruegas-Valdez testified that he is afraid to return to 

Mexico because two of his cousins, Jose Luis Garza and Hector Moreno, 

betrayed a drug cartel known as the Zetas. Garza is related to Iruegas-Valdez 

through his father, Garza’s uncle having married Iruegas-Valdez’s first cousin, 

Alma Perez Iruegas. Moreno is Iruegas-Valdez’s second cousin on his mother’s 

side. Both Garza and Moreno had been high-ranking members of the Zetas 

before they fled to the United States with five million dollars in cash and some 

of the Zetas’ ledger books and became informants for the Drug Enforcement 

Administration in 2011. Iruegas-Valdez claimed that the cartel retaliated by 

massacring members of Garza and Moreno’s family: “The Zetas . . . sent 50 

trunks [sic] of people to in [sic] the Coahuila, where I was born. They went to 

town, and they picked up a lot of my family members.” He testified that at least 

ten of his close family members were killed, including his first cousin Arnoldo 

Perez Iruegas Velasco, who was beheaded, and Arnoldo’s wife who was eight 

months pregnant at the time. Iruegas-Valdez claims that at least 200 people 

associated with Garza’s and Moreno’s households were executed and that the 

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cartel continues to “look for individuals, family members, as we speak.” 

Iruegas-Valdez also claimed that local police participated in the massacre. 

Iruegas-Valdez provided the IJ with numerous newspaper articles that 

describe the attacks and specifically list some of his family members among 

the deceased. Iruegas-Valdez’s mother, Maria Teresa Alonso Valdez (“Maria 

Alonso”), also testified at the hearing, and the IJ found her to be credible. 

The IJ held that Iruegas-Valdez was statutorily barred from seeking 

asylum because he had previously been convicted of an aggravated felony. But 

the IJ found that Iruegas-Valdez was still “eligible to apply for withholding of 

removal” because “the nature of the offense, the length of the sentence imposed 

. . . , and the circumstances under which this particular crime occurred does 

not support a finding that [Iruegas-Valdez] was convicted of a particularly 

serious crime.” 

The IJ then denied Iruegas-Valdez’s application for withholding of 

removal “[p]rimarily” because “the Respondent failed to testify credibility 

[sic].” The IJ also denied Iruegas-Valdez’s application for withholding of 

removal under CAT. 

On appeal, the BIA affirmed the IJ’s decision, specifically holding that 

Iruegas-Valdez had “not established that [the IJ’s] adverse credibility 

determination [was] clearly erroneous.” The BIA did not consider whether the 

additional evidence proffered by Iruegas-Valdez was enough to satisfy his 

burden of proof independent from his testimony, holding instead that because

“the applicant’s testimony is not credible, he has failed to satisfy his burden of 

proof for withholding of removal.” Iruegas-Valdez timely appealed. 

II

We have “authority to review only an order of the BIA, not the IJ, unless 

the IJ’s decision has some impact on the BIA’s decision.” Mikhael v. INS, 115 

F.3d 299, 302 (5th Cir. 1997). 

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On a petition for review of an order of the BIA, we review factual findings 

“to determine if they are supported by substantial evidence in the record.” Id.

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). “Under substantial 

evidence review, we may not reverse the BIA’s factual determinations unless 

we find not only that the evidence supports a contrary conclusion, but that the 

evidence compels it. In other words, the alien must show that the evidence was 

so compelling that no reasonable factfinder could conclude against it.” Chun v. 

INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam) (citations omitted). The BIA’s 

legal determinations are reviewed de novo. Kompany v. Gonzales, 236 F. App’x 

33, 37 (5th Cir. 2007) (per curiam). 

III

As an initial matter, “8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction to 

review final removal orders against aliens who are removable by reason of 

having committed certain criminal offenses,” including aggravated felonies. 

Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir. 2016); see also 8 

U.S.C. § 1227(a)(2)(A)(iii). Because Iruegas-Valdez concedes that he is an 

aggravated felon, we lack jurisdiction over his challenge to the BIA’s denial of 

his application for withholding of removal and CAT relief, except to the extent 

he raises legal or constitutional questions. See 8 U.S.C. § 1252(a)(2)(D). 

Accordingly, we have no authority to consider Iruegas-Valdez’s argument that 

the BIA lacked substantial evidence to support its conclusion that his 

testimony was not credible. 

By contrast, Iruegas-Valdez’s contention that he is more likely than not 

to be persecuted on account of his membership in a particular social group is a 

legal question we have jurisdiction to review, as is his argument that he is 

eligible for protection under CAT. However, because the BIA failed to apply 

the appropriate legal standards, we need not resolve these issues on the merits.

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A 

Congress has forbidden the Attorney General from removing an alien 

otherwise subject to deportation “to a country if the Attorney General decides 

that the alien’s life or freedom would be threatened in that country because of 

the alien’s race, religion, nationality, membership in a particular social group, 

or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien carries the burden of 

proof in these proceedings. Id. § 1231(b)(3)(C). Here, Iruegas-Valdez argues 

that he has satisfied that burden of proof. 

The government contends that Iruegas-Valdez’s argument that—even 

ignoring the applicant’s own testimony—he has established “that it is more 

likely than not that he will be persecuted on account of his membership in a 

social group consisting of ‘family of Hector Moreno and Jose Luis Garza,’ is not 

properly before this Court.” We agree. The BIA based its denial of the 

applicant’s petition for withholding of removal solely on the IJ’s credibility 

determination: it did not consider the testimony of Maria Alonso or the 

newspaper articles submitted to the IJ. As such, it did not decide whether 

“family members of Moreno and Garza” constitute a particular social group or 

whether Iruegas-Valdez’s fear of persecution is “on account of” his membership 

in that particular social group. On the contrary, the BIA explicitly held that 

“[g]iven the Immigration Judge’s adverse credibility finding, [it] need not 

address the respondent’s challenge to the Immigration Judge’s determination 

that the other proposed particular social group, family members of [Moreno 

and Garza], is not valid.” 

The Supreme Court addressed an almost identical situation in INS v. 

Orlando Ventura, 537 U.S. 12 (2002) (per curiam). In that case, the BIA 

“determined that respondent Fredy Orlando Ventura failed to qualify for . . . 

statutory protection because any persecution that he faced when he left 

Guatemala . . . was not ‘on account of’ a ‘political opinion.’” Id. at 13 (emphases 

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omitted). The Ninth Circuit reversed but “went on to consider an alternative 

argument that the Government had made before the Immigration Judge” but 

which had not been considered by the BIA itself. Id. 

The Supreme Court determined that this was a violation of “wellestablished principles of administrative law.” Id. at 16. A “‘judicial judgment 

cannot be made to do service for an administrative judgment.’ Nor can an 

‘appellate court . . . intrude upon the domain which Congress has exclusively 

entrusted to an administrative agency.’” Id. (alteration in original) (quoting 

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)). As such, “a court of appeals 

should remand a case to an agency for decision of a matter that statutes place 

primarily in agency hands.” Id. 

Here, as in Ventura, the BIA specifically refused to consider an 

alternative argument that had been raised before the IJ—namely that the 

evidence external to Iruegas-Valdez’s testimony established that removal to 

Mexico would put his life in jeopardy because he was a family member of 

Moreno and Garza. Congress has explicitly delegated such determinations to 

the Attorney General, not the courts. 8 U.S.C. § 1231(b)(3)(A). It would 

therefore be a violation of “well-established principles of administrative law” 

for us to reach this issue. Ventura, 537 U.S. at 16.

B 

We likewise decline to consider whether Iruegas-Valdez is eligible for 

relief under CAT because the BIA failed to apply the appropriate legal 

standard. An applicant for withholding of removal under CAT bears the burden 

of proving “that it is more likely than not that he or she would be tortured if 

removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). 

“Torture” includes “any act by which severe pain or suffering, whether physical 

or mental, is intentionally inflicted on a person for such purposes as . . . 

punishing him . . . for an act he . . . or a third person has committed or is 

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suspected of having committed, or intimidating or coercing him . . . or a third 

person.” Id. § 1208.18(a)(1). It includes “intentional infliction or threatened 

infliction of severe physical pain or suffering,” as well as “threat[s] of imminent 

death.” Id. § 1208.18(a)(4).

To qualify under CAT, the pain or suffering in question must 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. § 1208.18(a)(1). A 

public official acquiesces to torture when he or she has prior “awareness of such 

activity and thereafter breach[es] his or her legal responsibility to intervene to 

prevent such activity.” Id. § 1208.18(a)(7). An applicant may satisfy his burden 

of proving acquiescence by demonstrating “a government’s willful blindness of 

torturous activity.” Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010) (citing 

Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002)). 

“Thus relief under the [CAT] requires a two part analysis—first, is it 

more likely than not that the alien will be tortured upon return to his 

homeland; and second, is there sufficient state action involved in that torture.” 

Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014) (citing Tamara-Gomez v. 

Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006)).

Failing to clearly bifurcate its CAT analysis, the BIA focused primarily 

on the second prong, concluding that the applicant’s evidence did not prove 

that the government would torture him: “while corruption and increased levels 

of gang criminality exists [in Mexico], the government is actively fighting the 

drug cartels.” In reaching this conclusion, the BIA seemed to adopt the analysis 

of the IJ who listed various steps the government had taken since the Allende 

massacre to stamp out the Zetas and their government lackeys: increasing the 

number of federal troops, dismissing the entire municipal police force, and 

arresting two local police officers for their alleged involvement in the attack. 

The IJ then concluded that “[t]hese kinds of actions do not indicate that the 

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Mexican government has simply looked the other way and willfully permitted 

the Zetas to act with impunity.” 

But “willful blindness” is not the only way to prove sufficient state action. 

The regulations specifically list a number of different avenues which the BIA 

failed to consider: torture occurs whenever severe physical or mental pain 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.” 8 C.F.R. § 

1208.18(a)(1). “[G]overnment acquiescence need not necessarily be an officially 

sanctioned state action; instead, an act is under color of law when it constitutes 

a misuse of power, possessed by virtue of state law and made possible only 

because the wrongdoer is clothed with the authority of state law.” Garcia, 756 

F.3d at 891-92. “[A]cts motivated by an officer’s personal objectives are ‘under 

color of law’ when the officer uses his official capacity to further those 

objectives.” Id. at 892 (citing Marmorato v. Holder, 376 F. App’x 380, 385 (5th 

Cir. 2010) (per curiam)). Nor does our precedent require that the public official 

in question “be the nation’s president or some other official at the upper 

echelons of power. Rather . . . the use of official authority by low-level officials, 

such a[s] police officers, can work to place actions under the color of law even 

where they are without state sanction.” Id. (alterations in original) (quoting 

Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009)). 

Iruegas-Valdez has provided evidence that police officers were active 

participants in the Allende massacre. He also provided evidence that the 

governor of Coahuila, Humberto Moreira, was a close ally of the Zetas and 

specifically allowed the attack. But neither the IJ nor the BIA considered 

whether this evidence established that the applicant was more likely than not 

to be tortured “by” or with the “consent of” government officials. This 

constituted “error regarding what [Iruegas-Valdez] was required to show to 

obtain CAT protection.” Id. at 893. Thus, we will “vacate the BIA’s decision and 

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remand for the agency to properly consider this evidence under the under color 

of law legal standard.” Id. 

IV

In conclusion, we lack jurisdiction to review the BIA’s credibility 

determination. With respect to the remaining issues, we VACATE the decision 

of the BIA and REMAND for consideration pursuant to the appropriate legal 

standards as detailed above. 

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