## Facts

- Jose Manuel Diaz, a native and citizen of Guatemala, entered the United States on a six-month visitor visa when he was seven years old and later overstayed.
- About thirteen years later, the Department of Homeland Security (DHS) initiated removal proceedings and served Diaz with a notice to appear.
- Before his removal hearing, Diaz facilitated a drug purchase: a buyer paid $320 to purchase 16 ecstasy pills from a seller.
- Diaz was present for the exchange and physically transferred the pills from the seller to the buyer.
- Diaz was convicted of a drug-trafficking offense and received an 18–36 month prison sentence that was suspended, along with three years of probation.
- Diaz applied for withholding of removal under the Immigration and Nationality Act (INA) and for protection under the Convention Against Torture (CAT).
- At the hearing, Diaz’s parents and a gang-conditions witness testified about violence and corruption in Guatemala and expressed concern that Diaz could be targeted by gangs or corrupt officials seeking to use him in drug trafficking, and that refusal could lead to severe harm.
- The immigration judge (IJ) denied INA withholding but granted CAT withholding (and also found Diaz eligible for CAT deferral), concluding Diaz’s conviction was not a “particularly serious crime.”
- The IJ applied the “extraordinary and compelling circumstances” framework sometimes used for drug-trafficking offenses and found Diaz satisfied six conditions: (1) small quantity of drugs, (2) small amount of money, (3) peripheral involvement, (4) no violence or threats, (5) no organized-crime or terrorist involvement, and (6) no impact on juveniles.
- DHS appealed. The Board of Immigration Appeals (BIA) reversed, held Diaz’s drug-trafficking conviction was a particularly serious crime (barring CAT withholding), and also concluded Diaz had not shown it was more likely than not he would be tortured in Guatemala (defeating CAT deferral). The BIA relied in part on its view that $320 was not a “small amount of money” and that Diaz’s role was not “peripheral.”

## Issues

1. Whether the BIA properly determined Diaz’s drug-trafficking conviction was a particularly serious crime, barring withholding of removal under CAT regulations.
2. Whether the record required a finding that Diaz was more likely than not to be tortured in Guatemala by, or with the consent or acquiescence of, a public official, such that Diaz was entitled to CAT deferral.

## Decision

- The court denied Diaz’s petition for review of the BIA’s denial of CAT protection.
- The court upheld the BIA’s determination that Diaz’s drug-trafficking conviction was a particularly serious crime, which barred CAT withholding.
- The court upheld the BIA’s denial of CAT deferral because the evidence did not compel the conclusion that Diaz was more likely than not to be tortured in Guatemala with the required level of official involvement or acquiescence.

## Legal Principles

- A noncitizen is ineligible for withholding of removal (including CAT withholding) if the Attorney General determines the noncitizen has been convicted of a particularly serious crime and therefore poses a danger to the community.
- Drug-trafficking offenses are generally treated as particularly serious; the agency may consider whether “extraordinary and compelling” circumstances rebut that treatment, including factors such as quantity of drugs, amount of money, the person’s role in the transaction, and the absence of violence or organized-crime involvement.
- CAT withholding is barred by a particularly-serious-crime finding, but CAT deferral remains potentially available even when withholding is barred; deferral still requires proof that torture is more likely than not.
- CAT relief requires showing (1) a more-likely-than-not probability of torture upon removal and (2) that the torture would be inflicted by, or with the consent or acquiescence (including willful blindness) of, a public official.
- General evidence of crime, gangs, or corruption in the destination country is not enough without proof tying those conditions to a specific, probable risk of torture to the applicant and the required government connection.

## Conclusion

Diaz v. Holder affirmed the BIA’s reversal of an IJ’s grant of CAT protection to a Guatemalan national with a drug-trafficking conviction, holding that the agency could treat the conviction as a particularly serious crime (barring CAT withholding) and that the record did not compel a finding that Diaz was more likely than not to be tortured in Guatemala with official involvement or acquiescence (so CAT deferral was also properly denied).


Diaz v. Holder, 2012 WL 5359295 (2012)