Quinteros v. Attorney General—immigration—reversal—Roth

The Third Circuit today ruled in favor of an El Salvadoran man facing deportation, holding that the Board of Immigration Appeals (1) erred when it found that his prior conviction for conspiracy to commit assault was an aggravated felony, and (2) erred when it denied his challenge to removal under the Convention Against Torture.  On the CAT issue, the court ruled that the BIA erred in ignoring evidence that the petitioner’s tattoo would mark him as a gang member and result in his likely torture, and erred also in applying the wrong standard to decide whether Salvadoran officials acquiesce to the torture risk the petitioner faces.

In a concurring opinion joined by the rest of the panel, Judge McKee explained why “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as a neutral and fair tribunal as it is expected to be.” He added, “That criticism is harsh and I do not make it lightly.”

Joining Roth were McKee and Ambro; McKee concurred joined by Roth and Ambro. Arguing counsel were Damon Andrews of Kirkland & Ellis for the petitioner and Virginia Lum of the DOJ for the government.