NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 20-2641 ____________ WILSON PENA-LOJO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________ On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A087-392-768) Immigration Judge: Jason L. Pope ____________ Submitted Pursuant to Third Circuit LAR 34.1(a) June 23, 2021 Before: SMITH, Chief Judge, MATEY and FISHER, Circuit Judges. (Filed: November 5, 2021) ____________ OPINION* ____________ FISHER, Circuit Judge. Wilson Pena-Lojo, a Guatemalan citizen and environmental activist, entered the * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. U.S. illegally. When removal proceedings began, he applied for deferral of removal under the Convention Against Torture (CAT).1 The Immigration Judge (IJ) denied Pena-Lojo’s application and the Board of Immigration Appeals (BIA) affirmed. Pena-Lojo petitions for review. We will grant the petition.2 Under the legislation that implements the CAT, it is “the policy of the United States not to . . . effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.”3 An individual applying for CAT protection must show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”4 Torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted . . . for such purposes as . . . punishing . . . , intimidating 1 In 2018, Pena-Lojo pled guilty in New Jersey state court to endangering the welfare of a child through sexual conduct, N.J. Stat. Ann. 2C:24-4A(1). His conviction renders him ineligible for withholding of removal under both the Immigration and Nationality Act and the CAT. 8 U.S.C. § 1231(b)(3)(B)(ii). His only requested relief is deferral of removal under the CAT. See 8 C.F.R. § 208.16(c)(4). 2 We have jurisdiction under 8 U.S.C. § 1252(a)(4). “Because the BIA here adopted the IJ’s reasons concerning the denial of CAT relief, ‘we review both the BIA and IJ decisions.’” Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 871 n.11 (3d Cir. 2020) (quoting Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012)). “[F]actual challenges to CAT orders” are reviewed under the “highly deferential . . . . substantial- evidence standard: The agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review questions of law de novo. Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). 3 Auguste v. Ridge, 395 F.3d 123, 133 (3d Cir. 2005) (quoting Foreign Affairs Reform & Restructuring Act of 1998, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681). 4 8 C.F.R. § 208.16(c)(2). 2 or coercing.”5 The pain or suffering must be “inflicted by, or at the instigation …
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