ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (BIA No. A079 191 076) Immigration Judge: Honorable Andrew Arthur
The opinion of the court was delivered by: Greenaway, Jr., Circuit Judge.
Before: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges.
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 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.
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.
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, Pieschacon- Villegas 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 testified*fn1 that 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.
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, Pieschacon- Villegas 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 Pieschacon- Villegas 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. Pieschacon- Villegas 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 with Pieschacon-Villegas in the money laundering business.*fn2 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.*fn3 Pieschacon-Villegas produced for the record the asylum application his wife submitted, in which she states that FBI 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 ...