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BIA Cites Improved Conditions in Peru

A Peruvian petitioner loses his appeal of a BIA decision that says he must be deported despite his fear of torture by government officials for his trial testimony about a police officer murdering petitioner’s companion; the 4th Circuit upholds the BIA decision based on current conditions in Peru, evidence of petitioner’s past torture and the possibility of his relocation within Peru.

After petitioner was convicted of petit larceny in the U.S. in 2010, the government issued an administrative order of removal. Petitioner was able to apply for protection under the Convention Against Torture because he expressed a fear that Peruvian government officials would torture him if he returned to Peru. An immigration judge granted withholding of removal, but the Board of Immigration Appeals reversed.   The BIA said that Peruvian government officials had attempted to mitigate corruption and petitioner had not established that the officer who targeted him remained employed as a police officer.

Petitioner contends the BIA incorrectly used the “willful acceptance” standard rather than the “willful blindness” standard. Under the willful acceptance standard, an applicant must demonstrate that government officials had actual knowledge of his or her torture to satisfy the CAT’s acquiescence requirement.

In concluding that the government would not more likely acquiesce in petitioner’s torture upon his return to Peru, the BIA applied the factors outlined at 8 C.F.R. § 1208.16(c)(3). Throughout its analysis, the BIA did not impose any kind of actual knowledge requirement, indicating that its reasoning was not consistent with the willful acceptance standard. Instead, the BIA evaluated whether petitioner’s attacker was likely to repeat his behavior and whether the government was likely to turn a blind eye to petitioner’s torture in light of its response to the identified officer’s earlier conduct and the current country conditions. The BIA’s decision therefore conforms to the willful blindness standard and we need not remand the case to allow the BIA to correct its analysis.

This court further finds that the BIA decision is supported by substantial evidence. The BIA relied on three key points: country conditions and human rights violations in Peru, as evinced by the State Department’s country report; evidence of petitioner’s past torture and whether he could safely relocate within Peru.

We conclude the BIA used the correct standard and that substantial evidence supports the BIA’s conclusions in the case.
Petition for review denied.

Suarez-Valenzuela v. Holder (Floyd) No. 12-1019, April 24, 2013; On Petition for Review; Jesse R. Heath for petitioner; Derek C. Julius, USDOJ, for respondent. VLW 013-2-081, 14 pp.

VLW 013-2-081

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