Reaffirmation of Specific Acquiescence Standard for CAT Relief and Prejudice Requirement in Motions to Reopen

Introduction

The Eleventh Circuit’s decision in Nicolas Manbru-Encarnacion v. U.S. Attorney General (No. 23-10924, Jan. 10, 2025) illustrates the rigorous standards governing motions to reopen removal proceedings and the precise proof required for relief under the United Nations Convention Against Torture (“CAT”). Petitioner Nicolas Elpidio Manbru-Encarnacion, a lawful permanent resident facing removal to the Dominican Republic, sought reopening of his removal case on the ground that new evidence and ineffective assistance of counsel entitled him to relief under CAT. After initial denial by an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”), the Circuit Court denied review, reaffirming that merely duplicative evidence or generalized country conditions—even if indicating corruption—cannot establish the necessary link between private actors’ threats and government acquiescence, nor suffice to show counsel’s errors changed the outcome.

Summary of the Judgment

The Eleventh Circuit, sitting in non-argument calendar, denied Manbru-Encarnacion’s petition for review of the BIA’s denial of his motion to reopen. The Court applied the abuse-of-discretion standard to the BIA’s discretionary decision and de novo review to its legal conclusions. It held:

Much of the evidence in the motion to reopen was duplicative of what the IJ had already considered, and thus not “new” under 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).
The genuinely new evidence did not show a specific relationship between the Dominican government and the gang (“Wild Cowboys”) such that government officials would consent or acquiesce in torture or killing, a required element for CAT relief (8 C.F.R. § 1208.18(a)(7)).
Manbru-Encarnacion failed to demonstrate prejudice from his counsel’s alleged errors because he had multiple opportunities—before the IJ, on administrative appeal, and in the motion to reopen—to present his evidence and testimony, none of which would have changed the outcome.

Thus, the Court found no abuse of discretion in the BIA’s denial of reopening.

Analysis

Precedents Cited

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (overruled in part on other grounds): Procedural requirements for ineffective assistance of counsel claims.
Dakane v. U.S. Attorney General, 399 F.3d 1269 (11th Cir. 2005): Need to show prejudice from counsel’s deficient performance.
Ali v. U.S. Attorney General, 443 F.3d 804 (11th Cir. 2006): Motion to reopen requires evidence that would likely change the outcome.
Verano-Velasco v. U.S. Attorney General, 456 F.3d 1372 (11th Cir. 2006): Definition of “new” evidence unavailable at prior hearing.
Reyes-Sanchez v. U.S. Attorney General, 369 F.3d 1239 (11th Cir. 2004): Government acquiescence standard under CAT.
Sanchez-Castro v. U.S. Attorney General, 998 F.3d 1283 (11th Cir. 2021): Government’s unsuccessful efforts to control private actors do not equal acquiescence.
I.N.S. v. Doherty, 502 U.S. 314 (1992): Three independent bases for denying a motion to reopen.
Mei Ya Zhang v. U.S. Attorney General, 572 F.3d 1316 (11th Cir. 2009): Motions to reopen are disfavored.

These precedents shaped the Court’s reasoning: motions to reopen demand strict compliance and a high threshold of proof, and CAT relief hinges on a showing of specific, personal risk and clear governmental acquiescence.

Legal Reasoning

The Court’s analysis proceeded in three steps:

Standard of Review: Abuse of discretion for the BIA’s discretionary rulings; de novo for legal questions like exhaustion and interpretation of CAT provisions.
New Evidence Requirement: Under 8 C.F.R. § 1003.2(c)(1), evidence must be “new” and “material.” The Court agreed with the BIA that most documents were duplicative of the IJ’s record and thus did not satisfy the new-evidence rule.
Acquiescence and Prejudice Analysis: Even genuinely new material (letters from the FBI, later affidavits) failed to establish specific acquiescence by Dominican officials to Wild Cowboys’ threats. Without that link, CAT relief could not be granted. Likewise, counsel’s late arrival and evidentiary omissions did not prejudice the outcome, as the petitioner had multiple chances to supplement his case and the record lacked proof of the key element.

Impact

This decision will guide practitioners on two fronts:

Motions to Reopen: Reinforces that evidentiary submissions must be truly “new” and non-duplicative, and must be likely to change the result. General country-conditions reports or news articles alone will not suffice if they do not connect the applicant personally to governmental acquiescence.
CAT Relief: Clarifies that a showing of government awareness plus failure to prevent private actors’ abuses requires proof of a specific relationship—awareness of risk plus intentional or reckless failure to intervene—and cannot rest on broad reports of official corruption or isolated prosecutions.

Moreover, the decision underscores the limited role of ineffective assistance claims: absent clear prejudice, counsel errors that do not affect the outcome will not reopen final orders.

Complex Concepts Simplified

“New Evidence” in Motions to Reopen: Only evidence unavailable at the original hearing—such as truly novel affidavits or formerly inaccessible documents—qualifies. Copies of already-submitted reports do not count.
“Government Acquiescence” Under CAT: To prove relief, an applicant must show (1) government officials knew or should have known of the private actors’ torture plan, and (2) they intentionally did nothing to stop it. Mere ineffectiveness or corruption is not enough.
Ineffective Assistance of Counsel: To reopen based on lawyer error, a petitioner must (1) comply with procedural rules (Matter of Lozada), (2) establish counsel’s substantial errors, and (3) prove a reasonable probability that the errors changed the result.
Abuse of Discretion vs. De Novo Review: The courts defer to the BIA’s discretionary choices (abuse-of-discretion standard) but review pure legal questions, such as interpretation of statutes or regulations, from scratch (de novo).

Conclusion

The Eleventh Circuit’s ruling in Manbru-Encarnacion clarifies that motions to reopen removal proceedings demand strict compliance with new-evidence rules and that CAT relief requires proof of specific government acquiescence in private actors’ threats. General allegations of corruption or duplicative documents cannot reopen final orders, nor can counsel’s procedural lapses absent clear prejudice. This decision will shape future immigration litigation by emphasizing precision in evidentiary submissions and the narrow scope of effective assistance claims in reopening proceedings.