NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 17-2424 ________________ EVARISTO SERRANO VARGAS, a/k/a Evaristo Vargas-Serrano, a/k/a Desi Mata, a/k/a Mata Desi, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (A094-007-595) Immigration Judge: Kuyomars Q. Golparvar ________________ Submitted Under Third Circuit L.A.R. 34.1(a) October 2, 2019 Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges (Opinion filed: November 4, 2019) ________________ OPINION* ________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge. Evaristo Serrano Vargas, an alien from Mexico, petitions for review of a final Board of Immigration Appeals (BIA) order denying his claim for protection under the Convention Against Torture (CAT). Because we cannot ascertain whether the BIA applied the proper standard of review in view of our intervening decision in Myrie v. Attorney General, 855 F.3d 509 (3d Cir. 2017), and because it did not have the opportunity to consider our recent decision in Luziga v. Attorney General, 937 F.3d 244 (3d Cir. 2019), we will grant the petition for review and remand to the BIA. I. Discussion1 To obtain relief under CAT, Serrano Vargas must establish two elements: (A) “that it is more likely than not that he . . . would be tortured if removed to” Mexico, 8 C.F.R. § 1208.16(c)(2); and (B) that the torture would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” id. § 1208.18(a)(1). After the Immigration Judge (IJ) rendered his decision but before the BIA conducted its review on appeal, we clarified the tests for these two elements in Myrie, explaining that each had a factual and legal component. 855 F.3d at 516–17. That clarification also informed the proper standard of 1 The BIA had jurisdiction over the Immigration Judge’s decision under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction over Serrano Vargas’s CAT claim under 8 U.S.C. § 1252(a)(1) and (4). Because Serrano Vargas has “concede[d] that his proffered social group . . . do[es] not meet the particular social group standards set forth in S.E.R.L. v. Att’y Gen. of the U.S., 894 F.3d 535 (3d Cir. 2018),” Pet’r’s Reply Br. 4, he has waived his claim for withholding of removal under § 241(b)(3)(A) of the Immigration and Nationality Act. 2 review by the BIA, with fact-finding reviewed for clear error and legal conclusions reviewed de novo. See id.; see also 8 C.F.R. § 1003.1(d)(3)(i)–(ii). We, in turn, review factual findings for substantial evidence and legal determinations de novo. Myrie, 855 F.3d at 516–17; see Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 212–13 (3d Cir. 2017). Here, as to likelihood of torture, the IJ found credible Serrano Vargas’s testimony that the cartel would kill him for fleeing in defiance after an extortion attempt, but then considered and rejected that ...
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