Golding v. Garland ( 2021 )


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  •      18-772 (L), 20-3670 (Con)
    Golding v. Garland
    BIA
    Kolbe, IJ
    A206 552 755
    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.
    1        At a stated term of the United States Court of Appeals
    2   for the Second Circuit, held at the Thurgood Marshall
    3   United States Courthouse, 40 Foley Square, in the City of
    4   New York, on the 17th day of March, two thousand twenty-one.
    5
    6   PRESENT:
    7            DENNY CHIN,
    8            RICHARD J. SULLIVAN,
    9            WILLIAM J. NARDINI,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   KARIM TAHIR GOLDING, AKA KARIM
    14   GOLDING,
    15            Petitioner,
    16
    17                     v.                            18-772 (L),
    18                                                   20-3670 (Con)
    19                                                   NAC
    20   MERRICK B. GARLAND, UNITED
    21   STATES ATTORNEY GENERAL,
    22            Respondent. 1
    23   _____________________________________
    24
    1
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Merrick B. Garland is automatically substituted
    as Respondent.
    1   FOR PETITIONER in 18-772:    Vilia B. Hayes, Dustin P. Smith,
    2                                Emma Baratta, Hughes Hubbard &
    3                                Reed LLP, New York, NY.
    4
    5   FOR PETITIONER in 20-3670:   Karim Tahir Golding, pro se,
    6                                Gadsden, AL.
    7
    8   FOR RESPONDENT:              Kohsei Ugumori , Senior
    9                                Litigation Counsel; Sarah K.
    10                                Pergolizzi, Trial Attorney,
    11                                Office of Immigration
    12                                Litigation, Civil Division,
    13                                United States Department of
    14                                Justice, Washington, DC.
    15       UPON DUE CONSIDERATION of these petitions for review of
    16   Board of Immigration Appeals (“BIA”) decisions, it is
    17   hereby ORDERED, ADJUDGED, AND DECREED that the lead
    18   petition for review (No. 18-772) is GRANTED, and the
    19   consolidated petition for review (No. 20-3670) is
    20   DISMISSED.
    21       Petitioner Karim Tahir Golding, a native and citizen of
    22   Jamaica, seeks review of two BIA decisions: a March 5, 2018
    23   BIA decision affirming a September 15, 2017, decision of an
    24   Immigration Judge (“IJ”) denying protection under the
    25   Convention Against Torture (“CAT”), and an October 1, 2020
    26   BIA decision denying his motions to reopen.   In re Karim
    27   Tahir Golding, No. A 206 552 755 (B.I.A. Mar. 5, 2018),
    28   aff’g No. A 206 552 755 (Immig. Ct. New York City Sept. 15,
    2
    1   2017); In re Karim Tahir Golding, No. A 206 552 755 (B.I.A.
    2   Oct. 1, 2020).    We assume the parties’ familiarity with the
    3   underlying facts and procedural history.
    4          As an initial matter, we grant the Government’s motion
    5   to consolidate.    See 
    8 U.S.C. § 1252
    (b)(6).
    6     I.     Denial of CAT Deferral (No. 18-772)
    7          We review both the IJ’s and BIA’s decisions “for the
    8   sake of completeness.”    Wangchuck v. Dep’t of Homeland
    9   Sec., 
    448 F.3d 524
    , 528 (2d Cir. 2006).    We review the
    10   factual findings underlying the denial of CAT relief,
    11   including the likelihood of future events, for substantial
    12   evidence.    See Nasrallah v. Barr, 
    140 S. Ct. 1683
    , 1692
    13   (2020).    Assessing the likelihood of future events is a
    14   factual determination.    See Hui Lin Huang v. Holder, 677
    
    15 F.3d 130
    , 134 (2d Cir. 2012).
    16          To receive protection under the CAT, an applicant must
    17   “establish that it is more likely than not that he . . .
    18   would be tortured if removed to the proposed country of
    19   removal.”    
    8 C.F.R. § 1208.16
    (c)(2).   Torture is defined as
    20   “‘any act by which severe pain or suffering, whether
    21   physical or mental, is intentionally inflicted on a
    3
    1   person’” and those acts are “committed by or acquiesced in
    2   by government actors.”    Pierre v. Gonzales, 
    502 F.3d 109
    ,
    3   114, 118 (2d Cir. 2007) (quoting 
    8 C.F.R. § 208.18
    (a)(1)
    4   and citing CAT art. 1).    “[T]orture requires only that
    5   government officials know of or remain willfully blind to
    6   an act and thereafter breach their legal responsibility to
    7   prevent it.”    Khouzam v. Ashcroft, 
    361 F.3d 161
    , 171 (2d
    8   Cir. 2004).    “Where a government contains officials that
    9   would be complicit in torture, and that government, on the
    10   whole, is admittedly incapable of actually preventing that
    11   torture, the fact that some officials take action to
    12   prevent the torture [is] neither inconsistent with a
    13   finding of government acquiescence nor necessarily
    14   responsive to the question of whether torture would be
    15   ‘inflicted by or at the instigation of or with the consent
    16   or acquiescence of a public official or other person acting
    17   in an official capacity.’”   De La Rosa v. Holder, 
    598 F.3d 18
       103, 110 (2d Cir. 2010) (quoting CAT art. 1).   “A private
    19   actor’s behavior can constitute torture under the CAT
    20   without a government’s specific intent to inflict it if a
    21   government official is aware of the persecutor’s conduct
    4
    1   and intent and acquiesces in violation of the official’s
    2   duty to intervene.”     Pierre, 
    502 F.3d at 118
    .
    3          We find that the agency misapplied the acquiescence
    4   standard by discussing only whether the evidence showed
    5    that the Jamaican government was directly involved in
    6   torturing LGBT individuals. 2      See 
    id.
     (“[I]t is not always
    7   necessary that the specific intent required . . . be formed
    8   by the government itself.”); see also Khouzam, 
    361 F.3d at
    9   171.    In analyzing Golding’s risk of torture with the
    10   acquiescence of a government official, the agency discussed
    11   the portion of the State Department Report regarding direct
    12   involvement of the Jamaican government in harming LGBT
    13   individuals.    For example, the IJ noted, “of the 53
    2 We note, however, that the BIA did not address the IJ’s conclusion
    that Golding had failed to make a showing that his sexual orientation
    was known in Jamaica. See IJ Decision, Certified Record on Appeal
    (“CAR”) at 44 (“Under the particular circumstances of this case, the
    Court finds that it has not been established that persons in Jamaica
    are aware of respondent’s sexual orientation or seek to overcome it in
    some way.”). Nor did the BIA conclude that Golding’s sexual
    orientation would become known after his return. Rather, the BIA
    simply concluded that, “even presuming that [Golding’s] bisexuality
    would become known in Jamaica, the respondent has not shown that the
    Immigration Judge clearly erred in declining to find that a government
    official likely will acquiesce or be willfully blind to possible
    future torture.” BIA Decision, CAR at 4 (emphasis added). We
    therefore express no view on these related questions, which go to
    whether “it is more likely than not that [Golding] . . . would be
    tortured if removed to the proposed country of removal.” 
    8 C.F.R. § 1208.16
    (c)(2).
    5
    1   incidents of physical and verbal assault against 35 LBGT
    2   persons in Jamaica analyzed by the NGO, J-FLAG, only one
    3   case involved harassment by a police officer.”   CAR at 45.
    4   However, that only one incident directly involved a police
    5   officer does not foreclose the possibility that the police
    6   would acquiesce or be willfully blind to violence against
    7   LGBT individuals by non-state actors.   See Pierre, 
    502 F.3d 8
       at 118.   Accordingly, we remand for the agency to consider
    9    the totality of the country conditions evidence and
    10   reconsider or further explain its decision.   See Poradisova
    11   v. Gonzales, 
    420 F.3d 70
    , 77, 81 (2d Cir. 2005) (holding
    12   that “we require a certain minimum level of analysis . . .
    13   if judicial review is to be meaningful”); see also Cao He
    14   Lin v. U.S. Dep’t of Just., 
    428 F.3d 391
    , 403 (2d Cir.
    15   2005) (requiring IJ to consider evidence that contradicts
    16   State Department reports).
    17     II. Motions to Reopen (No. 20-3670)
    18       While we remand to the BIA to further review the CAT
    19   claim, we deny Golding’s motion for in forma pauperis
    20   status as to his consolidated petition and dismiss the
    21   petition because he has no plausible challenge to the BIA’s
    6
    1   denial of reopening.   See 
    28 U.S.C. § 1915
    (a)(1), (e)(2);
    2   Pillay v. INS, 
    45 F.3d 14
    , 17 (2d Cir. 1995).
    3       We review the agency’s denial of a motion to reopen for
    4   abuse of discretion.   See Jian Hui Shao v. Mukasey, 546
    
    5 F.3d 138
    , 168–69 (2d Cir. 2008).   “An abuse of discretion
    6   may be found in those circumstances where the [BIA’s]
    7   decision provides no rational explanation, inexplicably
    8   departs from established policies, is devoid of any
    9   reasoning, or contains only summary or conclusory
    10   statements; that is to say, where the [BIA] has acted in an
    11   arbitrary or capricious manner.”   Ke Zhen Zhao v. U.S.
    12   Dep’t of Justice, 
    265 F.3d 83
    , 93 (2d Cir. 2001) (citations
    13   omitted).   An alien seeking to reopen proceedings may file
    14   only one motion to reopen no later than 90 days after the
    15   date on which the final administrative decision was
    16   rendered.   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
    17   § 1003.2(c)(2).   Golding’s January 2020 and February 2019
    18   motions to reopen were untimely because he filed them more
    19   than 90 days after the BIA affirmed the IJ’s removal order
    20   in March 2018.
    21
    7
    1       He has not shown that any exceptions to the filing
    2   deadline apply.   Although the time for filing a motion to
    3   reopen may be excused based on ineffective assistance of
    4   counsel, Rashid v. Mukasey, 
    533 F.3d 127
    , 130 (2d Cir.
    5   2008), Golding did not substantially comply with the
    6   procedural requirements for such a claim because he did not
    7   file a complaint with the bar regarding his prior attorney,
    8   see Jian Yun Zheng v. U.S. Dep’t of Just., 
    409 F.3d 43
    , 47
    9   (2d Cir. 2005); Matter of Lozada, 
    19 I. & N. Dec. 637
    , 639
    10   (BIA 1988).
    11       Moreover, his reliance on Gonzalez v. ICE, 
    416 F. Supp. 12
       3d 995, 1020 (C.D. Cal. 2019), is misplaced.   This
    13   purported change in law is not an exception to the deadline
    14   for a motion to reopen.   See 8 U.S.C. § 1229a(c)(7)(C)(ii)
    15   (providing exception for changed conditions material to
    16   asylum claim); 
    8 C.F.R. § 1003.2
    (c)(3) (listing
    17   exceptions).   And the decision does not otherwise provide
    18   grounds for reopening: Golding could have, but did not,
    19   challenge his detainer before the IJ, see 8 C.F.R.
    20   § 1003.2(c)(1) (“A motion to reopen proceedings shall not
    21   be granted unless it appears to the Board that evidence
    8
    1   sought to be offered is material and was not available and
    2   could not have been discovered or presented at the former
    3   hearing.”); his argument is moot because he is no longer
    4   subject to a detainer but rather a final order of removal,
    5   see Knox v. Serv. Emps. Int’l Union, Local 1000, 
    567 U.S. 6
       298, 307 (2012) (“A case becomes moot . . . when it is
    7   impossible for a court to grant any effectual relief
    8    whatever to the prevailing party.” (internal quotation
    9    marks omitted)); and Gonzalez is not binding because
    10   Golding’s immigration detainer was lodged in New York, not
    11   in the Central District of California.
    12       Finally, Golding now makes a conclusory assertion that
    13   he is a U.S. citizen.   The record does not reflect a
    14   plausible claim of citizenship because Golding conceded
    15   alienage more than once, and there is no evidence of U.S.
    16   citizenship beyond unauthenticated and conflicting
    17   statements in his criminal records.   He has not identified
    18   how or when he could have obtained U.S. citizenship.
    19       For the foregoing reasons, the Government’s motion to
    20   consolidate is GRANTED; the lead petition for review (No.
    21   18-772) is GRANTED, the BIA’s decision denying Golding’s
    9
    1   CAT claim is VACATED, and that case is REMANDED to the BIA
    2   for further proceedings; and the consolidated petition for
    3   review (No. 20-3670) is DISMISSED.   All remaining pending
    4   motions and applications are DENIED and stays VACATED.
    5                              FOR THE COURT:
    6                              Catherine O’Hagan Wolfe,
    7                              Clerk of Court
    8
    10