Manon Berroa v. Garland ( 2023 )

20-706
Manon Berroa v. Garland
BIA
Tsankov, IJ
A023 469 659
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 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 25th day of July, two thousand twenty-
three.
PRESENT:
JON O. NEWMAN,
SUSAN L. CARNEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
BIENVENIDO ANTONIO MANON
BERROA, AKA MANION ANTONIO,
AKA JULIO BERRIOS, AKA JOSE
BERROA,
Petitioner,
v. 20-706
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Sophia E. Gurulé, Jessica Swensen, The Bronx
Defenders, Bronx, NY; Nancy Morawetz,
Washington Square Legal Services, New
York, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Assistant Attorney
General; Cindy S. Ferrier, Assistant Director;
Genevieve M. Kelly, Attorney, Office of
Immigration Litigation, 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 in part and DENIED in part.
Petitioner Bienvenido Antonio Manon Berroa, a native and citizen of the
Dominican Republic, seeks review of a January 27, 2020 decision of the BIA,
affirming a January 15, 2019 decision of an Immigration Judge (“IJ”), which denied
his application for relief under the Convention Against Torture (“CAT”). In re
Bienvenido Antonio Manon Berroa, No. A 023 469 659 (B.I.A. Jan. 27, 2020), aff’g No.
A 023 469 659 (Immigr. Ct. N.Y. City Jan. 15, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed the IJ’s decision as modified and supplemented by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for
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substantial evidence and questions of law de novo. Quintanilla-Mejia v. Garland, 3
F.4th 569, 583 (2d Cir. 2021). The agency’s factual findings are “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
I. Agency’s Jurisdiction
We deny the petition with respect to Manon Berroa’s challenge to the
agency’s jurisdiction based on the omission of the hearing information from his
Notice to Appear (“NTA”) because his argument is foreclosed by this court’s
decision in Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019). In Pereira v.
Sessions, the Supreme Court held that an NTA must include a hearing time and
place to trigger the “stop-time rule,” 138 S. Ct. 2105, 2113–20 (2018), which cuts off
an alien’s accrual of presence or residence for the purposes of qualifying for
cancellation of removal, see 8 U.S.C. § 1229b(d)(1). Manon Berroa, who did not
apply for cancellation, argues that an NTA that lacks a hearing date and time is
insufficient to vest the immigration court with jurisdiction over removal
proceedings. His claim fails because Pereira addresses a “narrow question”
regarding the stop-time rule and does not “void jurisdiction in cases in which an
NTA omits a hearing time or place.” Banegas Gomez, 922 F.3d at 110. Manon
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Berroa’s reliance on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), fails for the same
reason. Niz-Chavez clarified that, for purposes of the stop-time rule, a hearing
notice cannot cure a defective NTA. 141 S. Ct. at 1480–86. But we subsequently
held that both Pereira—as discussed in Banegas-Gomez—and Niz-Chavez address a
“narrow question” regarding the stop-time rule and do not “void jurisdiction in
cases in which an NTA omits a hearing time or place.” Chery v. Garland, 16 F.4th
980, 986–87 (2d Cir. 2021) (quoting Banegas Gomez, 922 F.3d at 110). Although
Manon Berroa’s NTA did not specify the date of his initial hearing, he received
hearing notices specifying that information and he attended his hearings.
II. Due Process
We deny the petition with respect to Manon Berroa’s argument that he was
deprived of due process because the IJ did not make an affirmative inquiry into
his competency or implement additional safeguards concerning the use of video
teleconferencing (“VTC”). To succeed on a due process challenge to immigration
proceedings, a noncitizen must demonstrate that he was deprived of an
opportunity to be heard “in a meaningful manner,” Burger v. Gonzales, 498 F.3d
131, 134 (2d Cir. 2007), and that the “alleged shortcomings . . . prejudiced the
outcome of his case,” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
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The use of VTC in immigration proceedings is permissible if it “accord[s] with the
constitutional requirements of the Due Process Clause.” Aslam v. Mukasey, 537
F.3d 110, 115 (2d Cir. 2008).
Here, the BIA reasonably determined that Manon Berroa had waived the
issue of VTC accommodations at his merits hearing because his counsel consented
to the use of VTC without raising the need for additional safeguards. And,
although he had objected to the use of VTC in his motions to appear in person, he
declined to press those motions when the IJ gave him the opportunity to argue
them. Cf. Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009) (holding, with respect
to concession of removability, that, “[i]n the absence of egregious circumstances,
[the applicant] remains bound by his attorney’s concession” (internal quotation
marks omitted)).
Similarly, the BIA did not err in concluding that Manon Berroa waived any
argument that the IJ should have conducted an affirmative inquiry into whether
the use of VTC “would affect his ability to participate fully and without any
safeguards” given his mental health conditions. Pet’r’s Br. at 48. Manon Berroa
did not ask the IJ to conduct such an inquiry. See Prabhudial v. Holder, 780 F.3d
553, 555 (2d Cir. 2015) (“[T]he BIA may refuse to consider an issue that could have
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been, but was not, raised before an IJ.”). A psychologist, Dr. Joseph Giordino,
submitted a psychological evaluation and testified about Manon Berroa’s mental
health conditions, but Manon Berroa’s attorney did not otherwise assert that he
was incompetent to proceed through VTC. Although Manon Berroa argues that
the use of VTC prejudiced him because it caused the IJ’s partial adverse credibility
determination, the BIA did not rely on a lack of credibility when affirming the
denial of CAT relief. Accordingly, Manon Berroa has not established the
prejudice required to succeed on a due process claim. See Garcia-Villeda, 531 F.3d
at 149.
III. CAT Relief
We grant the petition and remand to the agency as to the denial of CAT
relief because the IJ failed to explicitly consider Manon Berroa’s claims that he
would be tortured by members of the public or police outside the context of
incarceration or that he would be tortured because of his status as a criminal
deportee from the United States. An applicant for CAT relief must establish that
he will “more likely than not” be tortured. 8 C.F.R. § 1208.16(c)(2); Khouzam v.
Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). A CAT claim is “too speculative” if “it
involves a chain of assumptions”; an applicant is required to show that each link
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in the chain is more likely than not to occur. Savchuck v. Mukasey, 518 F.3d 119,
124 (2d Cir. 2008) (internal quotation marks omitted). However, CAT claims
“must be considered in terms of the aggregate risk of torture from all sources, and
not as separate, divisible claims.” Matter of J-R-G-P-, 27 I. & N. Dec. 482, 484
(B.I.A. 2018) (alteration adopted) (internal quotation marks and citation omitted).
The IJ did not explicitly or thoroughly consider all the alleged risks of
torture. In his filings and at the hearing, Manon Berroa asserted that he feared
that he would be tortured for the following reasons. First, he would lack access
to mental health care in the Dominican Republic, which would result in erratic
behavior in public, and which would in turn result in torture by the public and the
police. Second, his erratic behavior and substance abuse stemming from his
mental health conditions would lead to incarceration in the Dominican Republic,
and he would be tortured by guards and inmates in prison because of his status as
a criminal deportee from the United States. Third, he would be killed by people
who believed he was responsible for the murder of one of their family members.
The IJ made a clear determination that Manon Berroa failed to establish a
likelihood of torture by individuals related to a murder victim. And the IJ
addressed Manon Berroa’s claim that he would be incarcerated as a result of his
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lack of mental health treatment and then tortured in prison because of his mental
health conditions. But the IJ did not consider what abuse Manon Berroa would
suffer from members of the public or by police outside of incarceration and the
record reflected that he suffered beatings and an attempted rape in the past and
that he had witnessed the police beating people who lived on the streets. While
the IJ determined that there was no likelihood that Manon Berroa would be
incarcerated due to mental health issues, the IJ did not address how Manon
Berroa’s status as a criminal deportee from the United States would relate to his
treatment given evidence that criminal deportees are monitored and sometimes
arrested without justification, and that police use excessive force and torture
individuals in custody with impunity.
Manon Berroa raised this issue—that the IJ failed to consider all the risks of
torture—before the BIA, but, while the BIA acknowledged that he asserted these
fears, it did not address the IJ’s failure to consider them. Rather, the BIA
erroneously found that the IJ had “acknowledged [his] claimed fear of torture by
members of the public, police, or mental health professionals due to his mental
health condition.” Certified Administrative Record (“CAR”) at 5. As a
threshold matter, Manon Berroa did not assert a fear of torture by mental health
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professionals. Moreover, as noted above, the IJ did not make findings regarding
Manon Berroa’s risk of torture by police outside the context of incarceration or by
members of the public.
The BIA also concluded that the “evidence does not adequately establish
that . . . authorities detain or created detention procedures or conditions for
criminal deportees or those with mental illnesses with the specific intent of
inflicting severe physical or mental pain or suffering,” id., but the IJ did not make
findings regarding the intent of the authorities, and so the BIA was not permitted
to find those facts in the first instance. See Padmore v. Holder, 609 F.3d 62, 68–70
(2d Cir. 2010); see also Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite
our generally deferential review of IJ and BIA opinions, we require a certain
minimum level of analysis . . . if judicial review is to be meaningful.”).
Manon Berroa’s remaining challenges to the agency’s decisions are without
merit. He argues that the IJ’s partial adverse credibility determination is incorrect
and challenges the IJ’s reliance on an unsigned affidavit when making that
credibility finding. But the credibility findings are not part of the decision under
review because the BIA did not rely on those findings as a basis for denying relief.
See Xue Hong Yang, 426 F.3d at 522. Manon Berroa also argues that the agency
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incorporated elements of an asylum claim, essentially requiring him to establish a
subjective fear of torture and demonstrate a nexus to a protected ground. But the
record does not support this argument: the agency considered the connection
between his mental health and his fear of torture because mental health was a
reason he proffered for the risk of torture, and the BIA denied relief not because
Manon Berroa did not have a subjective fear, but rather because it found that his
fear was too speculative. See Savchuck, 518 F.3d at 124. Finally, Manon Berroa
argues that the IJ failed to determine whether the Dominican government would
acquiesce to his torture. While he is correct that the IJ did not address
acquiescence, acquiescence is only one element of a CAT claim, and the agency
did not deny relief on that basis. Id.For the foregoing reasons, the petition for review is GRANTED in part and
DENIED in part, and the case is remanded for further consideration or explanation
of the CAT claim. Petitioner’s pending motions for a stay of removal and oral
argument are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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