United States Court of Appeals For the First Circuit No. 18-1130 JOSEFINA ARELIS RUIZ-GUERRERO, Petitioner, v. MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Chief Judge, Torruella and Kayatta, Circuit Judges. Eloa J. Celedon and Celedon Law on brief for petitioner. Kathryn M. McKinney, Attorney, Office of Immigration Litigation, Chad A. Readler, Acting Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, on brief for respondent. December 12, 2018 Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General Matthew G. Whitaker has been substituted for former Attorney General Jefferson B. Sessions III as the respondent. HOWARD, Chief Judge. Petitioner Josefina Arelis Ruiz- Guerrero ("Ruiz"), a native and citizen of the Dominican Republic, appeals the order of the Board of Immigration Appeals ("BIA" or "Board") denying her request for deferral of removal under the United Nations Convention Against Torture ("CAT"). After a careful review of the record, we deny the petition. I. Ruiz first entered the United States in 2006. She was removed on April 2, 2013, after a 2010 conviction in Massachusetts for distribution of a controlled substance. She re-entered the country on August 10, 2016, but was again arrested in connection with a controlled substance offense. As a result, her prior removal order was reinstated. Ruiz sought deferral of removal under the CAT.1 Her claim was based on domestic abuse that she suffered at the hands of Rafael Velázquez, her partner of fifteen years. Velázquez lived with Ruiz in both the Dominican Republic and the United States, but is currently residing in the Dominican Republic after having been removed. 1 It was determined at the outset that Ruiz was ineligible for withholding of removal because of the seriousness of her 2010 drug distribution offense based on 8 U.S.C. § 1231(b)(3)(B)(ii) and therefore the Immigration Judge considered her application only for deferral of removal pursuant to 8 C.F.R. § 1208.17. On appeal and in her petition for review, Ruiz has not contested this determination. - 2 - In order to qualify for deferral of removal under the CAT, an applicant must show that she is more likely than not to be tortured upon return to her home country. 8 C.F.R. § 1208.17. The CAT defines "torture" as: "[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . when such pain or suffering is 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." 8 C.F.R. § 1208.18. Therefore, deferral applicants have a twofold burden. They must show (1) that the harm they may suffer constitutes torture, and (2) that the torture is more likely than not to occur upon removal. An Immigration Judge ("IJ") found Ruiz to be credible in describing her sustained abuse. Ruiz testified at her merits hearing that ...
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