NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1217

___________

RAFAEL IGNACIO GUERRERO, 

a/k/a RAFAEL IGNACIO GUERRO-SANCHEZ,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A076-736-498)

Immigration Judge: Honorable Roxanne C. Hladylowycz

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 18, 2016

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

(Opinion filed: November 30, 2016)

___________

AMENDED OPINION*

___________

PER CURIAM

Rafael Guererro, proceeding pro se and in forma pauperis, petitions for review of

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

the Board of Immigration Appeals’ (BIA) final order of removal. For the following 

reasons, we will grant the petition for review. 

I.

Guerrero, a citizen of Mexico, attempted to enter the United States in January 

1998 by presenting a fraudulent birth certificate. An immigration officer at the border 

determined that he was inadmissible for having sought admission by fraud or 

misrepresentation, see 8 U.S.C. § 1182(a)(6)(C)(i), and immediately returned him to 

Mexico pursuant to an expedited removal order, see id. § 1225(b)(1). Guerrero reentered the United States illegally on an unknown date. 

In April 2012, Guerrero was arrested for his role in an eastern Idaho drug 

trafficking organization. Guerrero pleaded guilty to conspiracy to distribute in excess of

50 grams of methamphetamine, and was sentenced to forty-two months’ imprisonment. 

See 21 U.S.C. §§ 846, 841(a)(1). The Department of Homeland Security (DHS) then 

reinstated the expedited removal order issued against him in 1998. At that time, Guerrero 

expressed a fear of returning to Mexico and was referred to a DHS asylum officer for a 

reasonable-fear interview. See 8 C.F.R. § 241.8(e). Following the interview, the asylum 

officer determined that Guerrero’s fear of persecution was reasonable and referred the 

matter to an Immigration Judge (IJ). See id. § 1208.31(b)-(e). Guerrero requested 

deferral of removal under the Convention Against Torture (CAT).1 See id. § 1208.16.

 

1

 Guerrero also applied for withholding of removal under 8 U.S.C. § 1231(b)(3). The IJ 

later determined that he was ineligible for such relief because his drug trafficking 

conviction was a “particularly serious crime” within the meaning of 8 U.S.C. 
3

At the hearing, Guerrero testified that he was afraid to return to Mexico because 

members of a drug cartel based in Sinaloa were looking for him. Guerrero explained that 

prior to his arrest in 2012, he had been helping the cartel transport drugs into the country. 

During this time, one of his drivers disappeared with money owed to the cartel. 

According to Guerrero, the cartel held him responsible for the theft and threatened him. 

Guerrero further testified that, while he was serving his federal sentence in the 

United States, members of the cartel in his home state of Sonora had kidnapped and 

beaten his brother. The kidnappers warned Guerrero’s brother that they were awaiting 

Guerrero’s return. Guerrero testified that his brother had filed a police report (which 

Guerrero submitted into evidence), but claimed that the police did not investigate the 

crime or make any arrests. 

Guerrero told the court that law enforcement in Mexico would not be able to 

protect him if he were forced to return because the Mexican government has been 

infiltrated by the Sinaloa cartel. In support of these allegations, Guerrero submitted 

several reports issued by the State Department, including its 2014 Report on Human 

Rights Practices for Mexico, its 2015 International Narcotics Control Strategy Report on 

Mexico, as well as a Travel Warning issued on May 5, 2015. He also submitted a 

number of news articles concerning cartels and corruption in Mexico.

Following the hearing, the IJ determined that Guerrero had failed to meet his 

burden under the CAT because he had not demonstrated that it was more likely than not 

 

§ 1231(b)(3)(B)(ii). Guerrero did not seek administrative review of his withholding 

claim, and he does not attempt to obtain review of it here. 
4

that he would be tortured by, or with the acquiescence of, the Mexican government if 

forced to return. See 8 C.F.R. § 1208.16(c)(2). Guerrero filed an administrative appeal. 

Upon review, the BIA affirmed the IJ’s decision and dismissed the appeal.2 

Guerrero now petitions for review of the BIA’s order. 

II.

We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). “When, 

as here, the BIA affirms an IJ’s decision and adds analysis of its own, we review both the 

IJ’s and the BIA’s decisions.” Martinez v. Att’y Gen., 693 F.3d 408, 411 (3d Cir. 2012). 

We review the agency’s factual findings for substantial evidence, Cheng v. Att’y Gen., 

623 F.3d 175, 182 (3d Cir. 2010), and uphold those findings “unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 

§ 1252(b)(4)(B). “We review de novo constitutional claims or questions of law and the 

application of law to facts with appropriate agency deference.” Yusupov v. Att’y Gen., 

650 F.3d 968, 977 (3d Cir. 2011).

The CAT prevents the United States government from removing an alien to a 

country where an alien will face torture. See 8 C.F.R. § 1208.16(c)(2). To meet his 

burden under the CAT, the applicant bears the burden of establishing, through objective 

evidence, “that it is more likely than not” that he will be tortured if removed. 8 C.F.R. 

 

2

In affirming the IJ’s decision, the BIA declined to consider two news articles that 

Guerrero had submitted for the first time on appeal, and further declined to remand the 

matter for the IJ to consider them in the first instance. Guerrero does not challenge those 

rulings here. 

 
5

§ 1208.16(c)(2); see Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). “Torture is 

defined as any act by which severe pain or suffering, whether physical or mental, is 

intentionally inflicted on a person for such purposes as obtaining . . . information or a 

confession, punish[ment] . . . for an act, . . . intimidat[ion] or coerci[on], or for any reason 

based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1). 

The implementing regulations make clear that torture must be “inflicted by or at 

the instigation of or with the consent or acquiescence of” an official person. 8 C.F.R. 

§ 1208.18(a)(1) (emphasis added). The “acquiescence” requirement is met when “the 

public official, prior to the activity constituting torture, ha[s] awareness of such activity 

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

activity.” 8 C.F.R. § 1208.18(a)(7). Notably, however, such “awareness” need not be 

actual awareness. Rather, this Court has held that a government acquiesces to torture if it 

is “willfully blind” to such activities; “[f]or purposes of CAT claims, acquiescence to 

torture requires only that government officials remain willfully blind to torturous conduct 

and breach their legal responsibility to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d 

58, 70 (3d Cir. 2007); see also Roye v. Att’y Gen., 693 F.3d 333, 343-44 (3d Cir. 2012).

Guerrero claims that he will be tortured if forced to return to Mexico because the 

Sinaloa cartel is looking for him and the government will not, or cannot, protect him. 

The IJ found Guerrero generally credible, and did not dispute his testimony that his 

brother had been targeted by men looking for Guerrero. In addition, after reviewing the 

country conditions evidence, the IJ recognized that the Sinaloa cartel is one of the most 

powerful and violent criminal organizations in Mexico, and that there are high rates of 
6

violence in Guerrero’s home state. The IJ also recognized that the Mexican government 

has struggled to control the extreme violence of the cartel and government corruption. 

Nonetheless, the IJ concluded that, even if Guerrero were able to demonstrate that he 

likely would be tortured by the Sinaloa cartel if forced to return to Mexico, he had not 

demonstrated that the government would acquiesce in such torture because the Mexican 

government is making efforts to combat the drug cartels and root out corruption. The 

BIA agreed. 

The agency construed the “acquiescence” standard too narrowly. In emphasizing 

the Mexican government’s efforts to combat the drug cartels and root out corruption, the 

IJ assumed that as long as the government is attempting to help its citizens, Guerrero 

cannot establish that a public official or other person acting in an official capacity would 

acquiesce in his torture at the hands of the cartel. We have recognized, however, that the 

“awareness” prong of acquiescence can be met by a showing that some elements of the 

government are in a collusive relationship with the torturers—even if the government 

generally opposes the groups. See, e.g., Pieschacon-Villegas v. Att’y Gen., 671 F.3d 

303, 312 (3d Cir. 2011) (remanding to determine, inter alia, whether petitioner could 

establish acquiescence despite evidence that the Colombian government had made efforts 

to demobilize the FARC and AUC and control corruption); Gomez-Zuluaga v. Att’y 

Gen., 527 F.3d 330, 351 (3d Cir. 2008) (holding 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”); 
7

Silva-Rengifo, 473 F.3d at 69-70 (rejecting BIA’s conclusion that acquiescence requires 

actual knowledge of torturous activity, and remanding for determination as to whether 

record demonstrated that public officials in Colombia would turn a blind eye to violence 

by paramilitary and guerilla forces) (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th 

Cir. 2003) (remanding to consider evidence that Chinese police accepted bribes from, and 

socialized with, snakeheads, and that the Chinese government fails to prosecute officials 

charged with human rights offenses)). In light of this precedent, the BIA erred by failing 

to consider whether the record evidence of the violence caused by the Sinaloa cartel and 

corruption of law enforcement officials demonstrated that it is more likely than not that 

Guerrero will be tortured “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). If it is, Guerrero may have met his burden under the CAT. 

III.

We have considered the Government’s arguments in opposition to the petition for 

review, and conclude that they lack merit. Accordingly, for these reasons set forth above, 

we will grant the petition for review, vacate the BIA’s order, and remand for further 

consideration in light of this opinion.3

 

3

In affirming the IJ’s decision, the BIA stated as follows: “Although the applicant may 

reasonably fear harm in Mexico by members of a drug cartel or by corrupt police officers, 

the [IJ’s] conclusion that the record does not indicate that it is more likely than not that he 

will face torture by or with the acquiescence (to include the concept of willful blindness) 

of an official of the government of Mexico upon return to that country is not clearly

erroneous.” (AR000002) (emphasis added). Upon remand, the BIA should clarify 

whether there is a legal component to the acquiescence determination giving rise to de 
8

 

novo agency review. See 8 C.F.R. § 1003.1(d)(3) (providing that the BIA reviews 

questions of law de novo, but findings of fact under a “clearly erroneous” standard”).