CA7 on CAT, Standard of Review - Estrada-Martinez v. Lynch

Estrada-Martinez v. Lynch, Dec. 31, 2015- "Estrada is not eligible for withholding of removal because he was convicted in an Illinois state court of statutory rape in 1996, and the Board has characterized his conviction as “particularly serious.” Committing a crime that the Attorney General deems “particularly serious” bars withholding of removal under the Act and the Convention. We do not have jurisdiction to review that discretionary judgment unless a petitioner presents a legal or constitutional question, and Estrada’s attempt to frame his challenge to the “particularly serious crime” determination as a legal issue is not persuasive.

Estrada may well be eligible, however, for deferral of removal under the Convention. As noted, the immigration judge found it more likely than not that Estrada will be tortured if he is removed to Honduras. The Board was required to review that factual finding only for clear error, not de novo. 8 C.F.R. § 1003.1(d)(3)(i); Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015). In this case the Board failed to apply the clear error standard of review, so we reverse the Board with respect to Estrada’s request for deferral of removal. We remand for reconsideration of the immigration judge’s decision under the correct standard of review."