M.A. v. Garland ( 2021 )

19-728
M.A. v. Garland BIA
Mulligan, IJ
A078 516 954
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 9th day of July, two thousand twenty-one.
PRESENT:
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
M.A.,
Petitioner,
v. 19-728
MERRICK B. GARLAND,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: MIA UNGER (Hasan Shafiqullah,
Jennifer Williams, and Julie Dona,
on the brief), The Legal Aid
Society, New York, NY.
FOR RESPONDENT: JACLYN E. SHEA, Trial Attorney,
Office of Immigration Litigation
(Derek C. Julius, Assistant
Director, Office of Immigration
Litigation, on the brief), for
Brian Boynton, Acting Assistant
Attorney General for the Civil
Division, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is GRANTED.
Petitioner M.A., a native and citizen of Honduras, seeks
review of a decision of the BIA affirming a decision of an
Immigration Judge (“IJ”), which denied withholding of removal
and protection under the Convention Against Torture (“CAT”).
In re M.A., No. A 078 516 954 (B.I.A. Feb. 22, 2019), aff’g
No. A 078 516 954 (Immig. Ct. N.Y.C. Nov. 9, 2017). We assume
the parties’ familiarity with the underlying facts and
procedural history, to which we refer only as necessary to
explain our decision to grant the petition for review and
remand to the agency for further proceedings.
We have reviewed both the IJ’s and the BIA’s opinions
“for the sake of completeness.” Wangchuck v. Dep’t of
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review
factual findings for substantial evidence and questions of
2
law de novo. See Paloka v. Holder, 762 F.3d 191, 195 (2d
Cir. 2014) (citing 8 U.S.C. § 1252(b)(4)(B)); Nasrallah v.
Barr, 140 S. Ct. 1683, 1690–92 (2020) (holding that limitation
on judicial review in 8 U.S.C. § 1252(a)(2)(C) does not apply
to CAT claims).
Petitioner challenges only the agency’s denial of
deferral of removal under the CAT. Accordingly, the key
issue before us is whether the agency’s conclusion that the
Honduran government will not acquiesce to torture by gangs is
supported by substantial evidence. Petitioner also makes a
related due process claim.
Deferral of removal under the CAT is a mandatory form of
relief that hinges on the risk to Petitioner within the
country to which the government is seeking removal. See 8
C.F.R. §§ 1208.16(c), 1208.17(a).1 To obtain CAT relief, the
applicant must show that he would more likely than not be
tortured in the country of removal. De La Rosa v. Holder,
598 F.3d 103, 106 (2d Cir. 2010). The applicant is not
required to establish a nexus to any protected ground. 8
C.F.R. §§ 1208.16(c), 1208.17(a). If the feared torture
1 Citations are to the regulations in effect at the time of the
agency proceedings.
3
would occur at the hands of private actors, then the applicant
must show that the torture would likely occur “with the
consent or acquiescence of a public official or other person
acting in an official capacity.” Id. § 1208.18(a)(1). The
applicant must further prove that “the public official, prior
to the activity constituting torture, [would] have awareness
of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” Id.
§ 1208.18(a)(7); see also Pierre v. Gonzales, 502 F.3d 109,
115, 118 (2d Cir. 2007); Khouzam v. Ashcroft, 361 F.3d 161,
170–71 (2d Cir. 2004).
The IJ found that Petitioner was likely to be targeted
by the MS-13 gang on his return to Honduras. In addition,
Petitioner adduced substantial evidence of police corruption
and ongoing gang violence in the country. Nonetheless, the
IJ denied Petitioner’s CAT claim, finding that Petitioner
failed to establish that the Honduran government would
acquiesce in his torture. In reaching this conclusion, the
IJ took administrative notice of, and primarily relied on,
the 2016 U.S. Department of State Country Report on Human
Rights Practices for Honduras (“2016 Report”), which reported
4
that the Honduran government had taken steps to address police
involvement in human rights abuses; had established a
commission to review police corruption; and had increased law
enforcement in two communities controlled by gangs.
We remand for further consideration. We find that the
agency failed to adequately explain its conclusion that the
Honduran government would not acquiesce in Petitioner’s
feared torture, particularly because it made only passing
reference to evidence in the record—including in the 2016
Report itself—that “[p]ervasive societal violence persisted
[in Honduras], although the state made efforts to reduce it.”
Respondent’s App’x at 1. In Scarlett v. Barr, we discussed
how the issue of a government’s inability to protect a CAT
applicant from threatened torture “might inform a
determination about their ‘acquiescence’” for purposes of the
CAT. 957 F.3d 316, 335 (2d Cir. 2020). We noted that, given
its origin in the withholding of removal context, we had never
decided “how the ‘unable’ prong of the unwilling-or-unable
standard[] . . . might translate to identifying government
acquiescence in torture under the CAT.” Id. at 336. Rather
than deciding that issue ourselves, however, we found that
5
the “question [wa]s best left to the agency” in the first
instance, and thus remanded that case. Id. We agree with
that approach and therefore remand for the agency to consider
this legal issue in light of the totality of the record
evidence. See also Golding v. Garland, No. 18-772, 2021 WL
1016423, at *2 (2d Cir. Mar. 17, 2021) (remanding because of
agency’s inadequate explanation of IJ’s conclusion that the
government would not acquiesce to petitioner’s torture).
Petitioner also contends that the IJ violated his due
process rights by taking administrative notice of the 2016
Report without giving him adequate notice or a meaningful
opportunity to respond to the Report. See Burger v.
Gonzales, 498 F.3d 131, 134 (2d Cir. 2007); Garcia-Villeda v.
Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). As a remedy for
this arguable constitutional violation, Petitioner seeks a
remand and an opportunity to submit additional evidence
before the agency.
But we need not resolve the merits of Petitioner’s due
process argument because the remedy he seeks is appropriate
for another reason. Specifically, in light of the several
years that have passed since the IJ rendered his initial
6
decision, we direct the agency to re-open the record to enable
it to decide Petitioner’s application based on up-to-date
country conditions. See Serafimovich v. Ashcroft, 456 F.3d
81, 88 (2d Cir. 2006); Tian-Yong Chen v. U.S. I.N.S., 359
F.3d 121, 129-30 (2d Cir. 2004).
For the foregoing reasons, the petition for review is
GRANTED, the BIA’s decision is VACATED, and the case is
REMANDED for further proceedings. All pending motions and
applications are DENIED.2
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
2Petitioner filed a motion to supplement the record on appeal,
which he subsequently withdrew, Petitioner’s Br. at 11 n.6., and
a motion for a stay pending adjudication of his petition for
review. Both are now denied as moot.
7