NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 17-3220 ______________ ALEXANDER RAPHAEL GUZMAN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A075-282-460) Immigration Judge: Honorable John P. Ellington ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 19, 2019 ______________ Before: SHWARTZ, KRAUSE, and BIBAS, Circuit Judges. (Filed: March 29, 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. Petitioner Alexander Guzman seeks review of the Board of Immigration Appeals’ (BIA) decision affirming the denial of his request to defer removal under the Convention Against Torture (CAT) and argues, first, that the Immigration Judge incorrectly applied the legal standard for governmental acquiescence and, second, that he was denied due process of law because of ineffective assistance of counsel. For the reasons that follow, we will grant the petition in part, denying relief as to Guzman’s CAT claim but remanding to the BIA for further consideration of his ineffective assistance of counsel claim. I. Background Guzman, a citizen and native of the Dominican Republic, was admitted to the United States on a temporary visitor’s visa in 1993. He never adjusted his immigration status. In 2015, he pleaded guilty to (1) conspiring to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846 and (2) possession with intent to distribute a controlled substance in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii). He was sentenced to 45 months of incarceration. Following his conviction, the Department of Homeland Security (DHS) issued a final order of removal, concluding that his convictions constituted aggravated felonies under 8 U.S.C. §§ 1101(a)(43)(B), (U) and 1227(a)(2)(A)(iii). Because an asylum officer determined that Guzman had a reasonable fear of torture in the Dominican Republic, however, DHS referred Guzman’s case to an immigration judge (IJ), and Guzman filed 2 an application for deferral of removal under CAT.1 At the hearing before the IJ, Guzman testified that two men associated with the Los Zetas drug cartel had threatened to kill him if he returned to the Dominican Republic because he lost their drugs. Specifically, Guzman testified that individuals named Ismael and “El Gordo” agreed to pay him $18,000 to transport 8 kilos of cocaine. While transporting the cocaine, Guzman saw that he was being followed by law enforcement and threw the bag containing the cocaine away. When Guzman arrived home after the trip, he began receiving threatening calls and texts from Ismael and El Gordo who said they would kill him unless he produced the drugs or $340,000. Guzman claimed that individuals also began following and threatening his family, including briefly kidnapping his mother in the Dominican Republic. Finally, Guzman claimed that Ismael and El Gordo told him that they had connections with the government in the Dominican Republic, which they would ...
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