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Myrie v. Attorney General United States

United States Court of Appeals, Third Circuit

April 28, 2017


          Argued November 16, 2016

         On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable Walter A. Durling (No. A070-851-548)

          Nathanael P. Kibler (Argued) Baker Donelson Bearman Caldwell & Berkowitz Counsel for Petitioner

          Benjamin C. Mizer Principal Deputy Assistant Attorney General Civil Division Bernard A. Joseph Senior Litigation Counsel Jason Wisecup Erica B. Miles (Argued) United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges


          AMBRO, Circuit Judge

         Petitioner Luis Antonio Dutton-Myrie petitions for review of a ruling by the Board of Immigration Appeals ("BIA" or "Board") dismissing his appeal of the decision by an Immigration Judge ("IJ") that he is ineligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 ("CAT"). Dutton-Myrie contends that the Board erred in affirming the IJ's conclusion that the government of Panama would not be willfully blind to torturous acts against him and, in any event, stated incorrectly what constitutes acquiescence to torture by Panamanian officials. He also asserts that the IJ is biased against him and this, among other things, violated his due process rights.

         We conclude that the BIA did not apply the correct legal standard under the CAT and should have reviewed the IJ's application of this standard de novo. We remand on these grounds. While we reserve judgment on Dutton-Myrie's due process claim, we express concern that the IJ's opinion suggests such frustration with this case (which appears to have nine lives) that the Board should consider assigning it to a new IJ if further fact-finding is necessary.

         I. Facts and Procedural History

         a. Dutton-Myrie's background

         Dutton-Myrie is a native and citizen of Panama who came to the United States on a visitor's visa in 1991 and remained after his visa expired six months later. In the early 1990s he pled guilty to cocaine-related offenses and criminal attempt to commit escape.

         In 1998 the former Immigration and Naturalization Service charged Dutton-Myrie as removable for overstaying his visa and as an alien convicted of an aggravated felony for trafficking in a controlled substance. An IJ sustained the charges against him and ordered him removed to Panama. Government agents began the process of deporting Dutton-Myrie, but he de-boarded the plane undetected before it left the United States and continued to live in this country without legal status.

         The Government apprehended Dutton-Myrie in 2005 and deported him to Panama. A few days after he returned, the record indicates that a group of men came to his ex-girlfriend's apartment and stabbed him in the neck. He fled the country and re-entered the United States through its southern border.

         The Government apprehended Dutton-Myrie a second time in 2007 and charged him with illegal re-entry. He ultimately pled guilty to these charges and was sentenced to time served.[1] The Government then transferred him to the custody of Immigration and Customs Enforcement ("ICE").

         b. Removal proceedings before the Immigration Judge

         The United States Department of Homeland Security reinstated in 2012 the final order of removal against Dutton-Myrie. However, an asylum officer found he expressed a reasonable fear of returning to Panama and referred him to an IJ. Dutton-Myrie filed an application for deferral of removal under the CAT based on his claim that members of the Mara Salvatrucha ("MS-13") gang would likely torture him if he returned to Panama.

         Dutton-Myrie represented himself at the hearing on his application. He testified that his uncle, Reginaldo, and his brother, Ricardo, started a gang called La Banda del Norte in the 1980s in his hometown of Colón, Panama. Over time the gang spread beyond Colón, entering into feuds with rival gangs, including the MS-13. Dutton-Myrie claimed that members of the Panamanian MS-13 were responsible for beating Reginaldo to death in Brooklyn, New York, in 1992, and for murdering Ricardo in Panama four years later.

         According to Dutton-Myrie, the MS-13 targeted male family members living in Panama because of their kinship ties to Reginaldo and Ricardo: in 1995, Dutton-Myrie's brother Jose was drowned; his brother Nelson was beaten and stabbed in 1997; his brother Arnaldo was shot in 2001, was attacked again in 2004, and died in 2009 after members ...

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