NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-1209

_____________

JUAN RAMON ABREU,

Petitioner

 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of a Final Order of the 

Board of Immigration Appeals

No. A077-030-517

Immigration Judge: Jason L. Pope

______________

Argued on July 13, 2023

Before: PHIPPS, McKEE, and RENDELL, Circuit Judges

(Opinion filed: January 18, 2024)

Christopher R. Healy [Argued]

Kaitlin L. O’Donnell

Troutman Pepper

Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

Counsel for Petitioner
2

Brian M. Boynton

Holly M. Smith 

Anne Donohue [Argued]

Stefanie N. Hennes

David Schor

Christin M. Whitacre

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

______________________

OPINION

______________________

McKEE, Circuit Judge

Juan Ramon Abreu seeks review of the Board of Immigration Appeals’ denial of 

his application for deferral of removal under the Convention Against Torture.1 An 

Immigration Judge denied Abreu’s application because he found the likelihood that 

Abreu would be tortured to be “speculative” and because he found that local police in the 

Dominican Republic would make efforts to protect Abreu from torture. The BIA affirmed 

on both bases. However, the IJ and BIA failed to consider evidence of explicit death 

threats received by Abreu and also failed to explain how the evidence supports their 

conclusion that local police would protect Abreu. Because of these errors, we will grant 

Abreu’s petition for review and remand for further proceedings.



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

constitute binding precedent. 

1 We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1). 
3

I.

Where the BIA affirms and partially reiterates the IJ’s conclusions, we review 

both the BIA’s and the IJ’s opinions.

2 We review legal determinations de novo and 

factual findings for substantial evidence.

3

In the immigration context, we set aside the 

agency’s findings only if a “reasonable adjudicator would be compelled to conclude to 

the contrary” after reviewing the record as a whole.4

To obtain deferral of removal under the Convention Against Torture, an applicant 

must prove that it is “more likely than not that he or she would be tortured if removed.”5

An act constitutes “torture” only if it is inflicted “by, or at the instigation of, or with the 

consent or acquiescence of” the government of the country to which the applicant will be 

removed.6

The IJ concluded that Abreu’s fear of future torture was too “speculative.”

7 The IJ 

reasoned that a substantial amount of time had transpired since Abreu’s family members 

were threatened or assaulted in the Dominican Republic. The IJ also reasoned that there 

was insufficient evidence connecting the anonymous threats Abreu received and the 

assaults he suffered in 2018 to the persecutors whom Abreu fears. And while the IJ noted 

that individuals in the Dominican Republic had communicated threats against Abreu to 

2 Saban-Cach v. Att’y Gen., 58 F.4th 716, 724 n.23 (2023) (quoting Blanco v. Att’y Gen., 

967 F.3d 304, 310 (3d Cir. 2020)).

3

Id.

4 Alexander-Mendoza v. Att’y Gen., 55 F.4th 197, 207 (3d Cir. 2022) (quotation omitted).

5 8 C.F.R. § 1208.16(c)(2).

6 8 C.F.R. § 1208.18(a)(1).

7 A.R. 86.
4

Abreu’s friend, Espinar, the IJ reasoned that these threats were merely “veiled” and 

“speculative.”8 The BIA affirmed these findings. 

The fundamental problem with the IJ’s and BIA’s conclusions, however, is that 

the IJ appears to have failed to consider evidence that Abreu received explicit death 

threats from Tito in 2018. In his affidavit, Abreu averred that Tito sent him text messages 

“warning . . . that if [Abreu] ever return[ed] to the Dominican Republic [he would] be 

killed.”9 Abreu also submitted an affidavit from Espinar in which Espinar averred that he 

(Espinar) had encountered Tito in the Dominican Republic, that Tito had said he was 

“going to kill [Abreu],” and that Tito had shown Espinar a gun while declaring that he 

would use that specific gun to kill Abreu.

10 On their face, these two affidavits reflect 

specific and serious threats to Abreu’s life. But neither the BIA’s nor IJ’s opinion 

discusses either Tito’s text messages or his interaction with Espinar. In fact, neither 

opinion even mentions Tito. 

The BIA seems to have believed that the IJ at least reviewed Espinar’s affidavit, 

noting that the IJ considered “the letter provided by the respondent’s friend from the 

Dominican Republic.”11 But we see no support for that belief in the IJ’s opinion. The IJ’s 

opinion refers generally to “statements regarding the conversations that [Espinar] had 

with people within the Dominican Republic” that involved “veiled” and “speculative 

8 A.R. 87.

9 A.R. 247.

10 A.R. 354.

11 A.R. 4. 
5

threats” against Abreu.

12 But this portion of the IJ’s opinion cannot refer to the threat 

reflected in Espinar’s affidavit because that threat was neither “veiled” nor “speculative.” 

There is nothing “veiled” about threatening to kill someone while brandishing the gun 

that will be used to commit the killing. And Tito’s promise to kill Abreu—which he made 

while demonstrating that he had the means and motive to follow through—left little to 

speculation. 

Perhaps the IJ and BIA believed that the evidence of Tito’s explicit threats should 

not be credited or should be disregarded for some other reason. But if that is the case, 

then the IJ and BIA must explain why.13 Absent such an explanation, we can assume only 

that the IJ simply ignored this evidence, which precludes us from finding that the IJ’s and 

the BIA’s factual findings are supported by substantial evidence.14

The government nevertheless argues that we should affirm even though the IJ 

failed to consider evidence of Tito’s explicit threats because the BIA also held that 

government officials would not acquiesce in Abreu’s torture. We disagree for at least two 

reasons.15

12 A.R. 87.

13 Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019) (explaining that the IJ and 

BIA may not ignore evidence, and “if evidence is to be disregarded, we need to know 

why” (brackets omitted)) (quoting Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017)). 

14 Id. (“[T]he agency ‘may not ignore evidence favorable to the alien’”) (quoting Huang 

v. Att’y Gen., 620 F.3d 372 (3d Cir. 2010)). 

15 Judge Phipps does not join the analysis as to the second acquiescence rationale.
6

First, because the IJ and BIA failed to consider whether Tito was likely to attempt 

to torture Abreu, they necessarily failed to consider how the Dominican government 

would respond if Tito were to attempt to torture or kill Abreu. 

Second, to the extent the IJ and BIA concluded that the local authorities would 

protect Abreu from the persecutors he fears—Tito or otherwise—this conclusion is 

unsupported by substantial evidence, at least as it is presented in the IJ’s and BIA’s 

opinions. 

The IJ concluded that local authorities would not turn a blind eye to Abreu’s 

torture because local police were “receptive” to Abreu’s family’s complaints in 2008, 

“investigated” those complaints, and protected Abreu’s family for a fee.

16 However, there 

is no evidence that the police did anything to investigate the threats Abreu’s family 

received in 2008. The only record evidence that could potentially reflect investigative 

efforts is the police report summarizing the threats. But it appears that this police report 

was prepared only after Abreu’s daughter asked the police for an update on the case in 

2018—ten years after the threats were made. The only other evidence of a police 

response is that the police assigned personnel to protect Abreu’s family for one week 

after the threats were made. But this protection had to be paid for, as both the IJ and BIA 

noted. A payment to secure protection from the police seems like a bribe. If this payment 

16 A.R. 87. 
7

was a bribe, then, as a matter of law, the protection it purchased cannot support the IJ’s 

and BIA’s finding that the authorities would be willing to protect Abreu.

17

The Government argues that the price Abreu’s brother paid the police for 

protection was not a bribe but a fee for additional services that go beyond the ordinary 

duties of the Dominican police. But since it appears that the police did nothing else in 

2008 in response to Abreu’s family’s complaint, the Government’s interpretation of the 

fee-for-protection arrangement is difficult to accept. Further, Abreu has credibly testified 

that he cannot afford to pay for protection in any event. It is therefore difficult to see how 

the availability of protection for a fee would support a finding that the local police would 

protect Abreu. 

There may be other reasons to believe the police would attempt to protect Abreu

from torture or a fatal assault. Absent further explanation by the IJ and BIA, however, we 

cannot find that the BIA’s conclusion that the local police would protect Abreu is 

supported by substantial evidence.

18

17 Cf. Bosede v. Mukasey, 512 F.3d 946, 951 (7th Cir. 2008) (“We have said before and 

underscore here that whether an alien might succeed in escaping persecution or torture 

through bribery is an irrational and altogether improper consideration in deciding a claim 

for asylum or other relief.”) (first citing Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th 

Cir. 2007) and then citing Giday v. Gonzales, 434 F.3d 543, 555 (7th Cir. 2006)).

18 See Kang v. Att’y Gen., 611 F.3d 157, 167 (3d Cir. 2010) (“[B]ecause the BIA ignored 

overwhelming probative evidence produced . . . its findings were not reasonably 

grounded in the record and thus we accord no deference to the BIA’s decision . . . we find 

that the BIA’s determination was not based on substantial evidence.”). 
8

III.

For these reasons, we will grant the petition for review and remand for further 

proceedings consistent with this opinion.