Luis Reyes-Reyes v. John Ashcroft, Attorney General

384 F.3d 782 Luis REYES-REYES, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 03-72100. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 2004. Filed September 13, 2004. Carter C. White, King Hall Civil Rights Clinic, University of California School of Law, Davis, California; Robert T. Grieg, Anil Kalhan, and Joseph Landau, Cleary Gottlieb, Steen & Hamilton, New York, New York, for the petitioner. Peter D. Keisler, Linda S. Wendtland, and Shelley R. Goad, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Ama-jtr-zbw. Before McKEOWN, BYBEE, Circuit Judges, and BREYER, * District Judge. Opinion by Judge McKEOWN; Concurrence by Judge BYBEE. McKEOWN, Circuit Judge: 1 Luis Reyes-Reyes petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because Reyes's asylum claim was denied as untimely, we lack jurisdiction to reach its merits. We have jurisdiction, however, to review the…

Opinion by Judge McKEOWN; Concurrence by Judge BYBEE.

Luis Reyes-Reyes petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because Reyes’s asylum claim was denied as untimely, we lack jurisdiction to reach its merits. We have jurisdiction, however, to review the BIA’s denial of his withholding and CAT claims. Because the immigration judge (IJ) invoked the wrong standard in analyzing both of these claims, we grant the petition and remand for further consideration.

*785 Background

Luis Reyes-Reyes, a citizen of El Salvador, fled to the United States as a teenager twenty-five years ago. Motivated by fear of persecution, Reyes entered this country unlawfully and never legalized his presence. Faced now with the immigration consequences of his undocumented status, Reyes continues to fear persecution should he return to El Salvador.

Reyes is a homosexual male with a female sexual identity. He dresses and looks like a woman, wearing makeup and a woman’s hairstyle. Although Reyes has not undergone sex reassignment surgery, he has had a…

concurring and concurring in the judgment:

I join Part I of the court’s opinion and agree with much of what is written in Parts II and III, but I do not join those sections. I nevertheless agree that the petition should be granted and the matter remanded to the BIA.

INS’s regulations implementing the Convention Against Torture define torture as severe pain or suffering, intentionally inflicted on a person “at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18 (a)(1) (2004). The regulations further provide that “[acquiescence of a public official requires that the public official, prior to the activity constituting torture, have aware *790 ness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” Id. § 208.18(a)(7). We have held that “[t]he correct inquiry ... is whether a respondent can show that public officials demonstrate ‘willful blindness’ to the torture.of their citizens by third parties, or as stated by the Fifth Circuit, whether public officials ‘would turn a blind eye to torture.’ ” Zheng v. Ashcroft, 332 F.3d 1186,…