Chuor Chuor v. Merrick B. Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3571
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Chuor Chuor Chuor
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 17, 2022
Filed: August 4, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
Petitioner Chuor Chuor Chuor, a native of Egypt and citizen of South Sudan,
was admitted to the United States in June 1999 at the age of nine as a derivative
asylee of his father, Chuor T. Chuor, who was previously granted asylum. After some
twenty arrests, and convictions for theft, fifth-degree assault, disorderly conduct,
driving under the influence, and domestic violence against his ex-wife, the
Department of Homeland Security (DHS) commenced removal proceedings. Chuor
conceded removability and applied for adjustment of status and waiver of
inadmissibility, asylum, withholding of removal, and deferral of removal under the
Convention Against Torture (CAT).
After a hearing at which Chuor and his father testified, the Immigration Judge
(IJ) denied Chuor adjustment of status and waiver of inadmissibility, finding that his
extensive criminal history since arriving in the United States made him a “violent and
dangerous” individual, and that his Minnesota domestic assault conviction was an
aggravated felony “crime of violence.” 8 U.S.C. §§ 1159(a), (c), 1182(a)(2)(A)(i)(I).
The IJ further ruled that this conviction made Chuor statutorily ineligible for asylum
and withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). On
appeal, the Board of Immigration Appeals (BIA) upheld these rulings.
The IJ also granted Chuor deferral of removal under the CAT, finding that he
“will more likely than not be identified by the government of South Sudan upon
arrival and will be targeted for detention, torture, and death because of his
relationship to his father” and “his father’s status as a political traitor.” The DHS
cross-appealed this decision. Applying the clearly erroneous standard of review, the
BIA reversed the IJ and denied Chuor CAT relief, concluding that the IJ’s finding
was clearly erroneous because Chuor “presented insufficient evidence to establish
that he faces a personal risk of torture.” The BIA ordered Chuor removed to South
Sudan. Chuor petitions for judicial review of the BIA’s decision, limiting the petition
to the denial of CAT relief. We deny the petition for review.
I. Background
At Chuor’s removal hearing, Chuor and his father testified about their time in
Sudan in the 1990s, which was then a unified country engaged in a civil war between
the north and south. Chuor’s father represented the southern region in the Sudanese
parliament in 1995 and 1996, and the family moved from the south to the Sudanese
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capital, Khartoum. While serving in parliament, Chuor’s father came under attack
from both sides. The north believed he was a spy from the south, while the south saw
his service in the Sudanese government as a betrayal. Though never harmed, he was
constantly surveilled and often threatened by northern officials. Chuor’s father fled
Sudan and entered the United States in August 1996, where he was granted asylum.
The rest of the family remained in Khartoum for over a year. Government officials
often came to their home to ask about Chuor’s father, and physically assaulted
Chuor’s mother when she did not provide information. The family fled to Egypt in
November 1997 and came to the United States in 1999. No member of the family has
returned to Sudan. The IJ found the testimony of both Chuor and his father credible.
South Sudan became an independent country in 2011. Though its government
is not the Sudanese government Chuor’s father served, the party currently in power
in South Sudan, the Sudanese People’s Liberation Movement, is the same group that
led the south during the civil war. Chuor’s father has been vocal in his opposition to
the current government, and he believes the government of South Sudan still
considers him a traitor. Chuor’s father testified that if Chuor returned to South
Sudan, the government would recognize Chuor because of their shared name and
would kill him. Chuor echoed this sentiment and also claimed that he fears returning
to South Sudan because of its treatment of the mentally ill. Chuor has been diagnosed
with PTSD, depression, ADHD, and anxiety.
In addition to this testimony, Chuor submitted community letters in support of
his applications, including one from Juma Artema, Chairman of the South Sudanese
Community Association of Minnesota (the “Artema letter”). Artema wrote that
Chuor’s father has written and spoken out many times condemning the current
conflicts in South Sudan, and that the current president sees him as a traitor. Chuor
also submitted country condition reports describing abuse and killings of political
opponents by the government in South Sudan and the mistreatment of the mentally
ill in South Sudan prisons.
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In a lengthy analysis, the IJ found it more likely than not, because “the same
parties are still around,” that South Sudan government officials will identify Chuor
on his arrival, impute his father’s status as political traitor to Chuor, and target him
for torture or killing for that reason. The IJ found that country conditions evidence
showing that “government forces routinely target people for detention, torture, and
unlawful killing in South Sudan, based on their perceived political affiliation,”
strongly supports Chuor’s claims. The IJ also considered “the evidence of gross,
flagrant, and mass violations of human rights in South Sudan” noted in Department
of State reports, and evidence that persons determined to be mentally ill are
incarcerated with only “rudimentary” medical care. The IJ found that Chuor could
not internally relocate because “[t]he government significantly restricts freedom of
movement in South Sudan, and it routinely blocks travel for political figures within
and outside the country.”
II. Discussion
A. The Standard of Review. To warrant CAT relief, an applicant must show
“that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This determination is a
question of fact. Lasu v. Barr, 970 F.3d 960, 966 (8th Cir. 2020). When the BIA
denies CAT relief on this ground and the alien petitions for judicial review, we
review the BIA’s determination and any IJ findings adopted by the BIA under the
highly deferential substantial evidence standard of review. Id.; see Deng Chol v.
Garland, 25 F.4th 1063, 1067 (8th Cir. 2022); cf. Nasrallah v. Barr, 140 S. Ct. 1683,
1692 (2020). The BIA’s decision is “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
When the IJ has granted CAT relief on this ground, and the BIA vacates that
ruling, our standard of review is more complicated. The Attorney General’s
regulations defining the BIA’s jurisdiction and powers expressly provide:
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(3) Scope of review. (i) The Board will not engage in de novo
review of findings of fact determined by an immigration judge. Facts
determined by the immigration judge . . . shall be reviewed only to the
determine whether the findings . . . are clearly erroneous.
8 C.F.R. § 1003.1(d)(3)(i). When a petitioner seeking review of the denial of CAT
relief argues that the BIA failed to properly apply this clear error standard of review,
he presents a question of law that we review de novo to determine whether the BIA
“refrained from independent factfinding,” as its regulations require. Abdi Omar v.
Barr, 962 F.3d 1061, 1064 (8th Cir. 2020). However, if the BIA has declared at the
outset, as in this case, that it applied the clear error standard in determining that the IJ
erred in finding likelihood of torture, “de novo review does not mean that we can
redetermine de novo whether we think the IJ has committed clear error.” Wu Lin v.
Lynch, 813 F.3d 122, 129 (2d Cir. 2016). Rather,
we consider whether the Board provided sufficient justification for its
determination. This means that the Board must adequately explain why
it rejected the IJ’s finding and identify reasons grounded in the record
that are sufficient to satisfy a reasonable mind that there was clear error.
Abdi Omar, 962 F.3d at 1064, citing Wu Lin, 813 F.3d at 129; accord Mohamed v.
Garland, 9 F.4th 638, 640 (8th Cir. 2021). “The regulation was not intended to restrict
the BIA’s powers to review, including its power to weigh and evaluate evidence
introduced before the IJ.” Robles v. Barr, 940 F.3d 420, 422 (8th Cir. 2019)
(quotation omitted), cert. denied sub nom. Robles v. Rosen, 141 S. Ct. 1047 (2021).
B. Analysis. Chuor’s Opening Brief argues the BIA failed to review the IJ’s
findings for clear error, improperly replacing them with the BIA’s own findings, in
conducting its review of the IJ’s likelihood-of-torture findings. The Reply Brief
properly cites Abdi Omar’s “adequately explain” standard that governs our review of
this issue of law. In support, Chuor further argues that the BIA failed to consider the
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risks of torture he will face in the aggregate and erred in finding the absence of a
specific threat dispositive, relying primarily on evidence the IJ relied on to support its
contrary likelihood finding.
We conclude that the BIA adequately explained why it rejected the IJ’s
likelihood-of-torture finding and identified reasons grounded in the record sufficient
to support this clear error determination. The BIA explained why the IJ’s findings
failed to establish Chuor was at personal risk of being tortured in South Sudan: the
vague and conclusory statements of Chuor’s witnesses did not establish the likelihood
of personal risk; Chuor’s father has had no contact with the country since the 1990s;
his father did not identify specific or current threats; the Artema letter lacked detail
and identified no one in the South Sudan government with firsthand knowledge of
how the father is viewed; the country conditions evidence, while reflecting abuse of
the government’s political opponents, “does not provide grounds on which to conclude
that [Chuor] will be targeted for such abuse”; and the mental health detention he fears
if a judge determines he is dangerous “is not torturous conduct.” The BIA concluded
that the IJ “impermissibly strung together a series of suppositions related to activities
of [Chuor’s] father, and how they might be revealed to and interpreted by unknown
individuals within the government of South Sudan.” This explanation is consistent
with our prior decisions rejecting claims of improper BIA factfinding. See, e.g.,
Mohamed, 9 F.4th at 641-42; Abdi Omar, 962 F.3d at 1064-65.
In Jima v. Barr, 942 F.3d 468 (8th Cir. 2019), for example, we upheld the BIA’s
denial of CAT relief to a citizen of South Sudan who likewise was removable after
committing a crime of violence in this country. As in Jima, neither the testimony of
Chuor and his father, nor the Artema letter, nor the country reports detailing human
rights abuses against identified political opponents, show that “specific grounds exist
that indicate [Chuor] would be personally at risk” of torture upon his return to South
Sudan. Id. at 473-74 (quotation omitted).
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Chuor argues the BIA failed to consider the risk of torture in the aggregate,
instead focusing on isolated and incomplete portions of the evidence. See Abdi Omar,
962 F.3d at 1065 (CAT claims “must be considered in terms of the aggregate risk of
torture from all sources”). Specifically, Chuor contends that the BIA should have
addressed his father’s testimony that the ruling party in South Sudan remains the same
as before independence, considers him a traitor, and will target his son for harm; the
abuse of his mother in Sudan after his father left in 1996; and each specific finding the
IJ made to support its likelihood-of-torture finding.
The BIA expressly stated that the IJ’s ultimate finding of likelihood of torture
“is not supported by the record.” Although it did not individually address all evidence
in the record or every IJ finding, its opinion demonstrates that it considered the record
as a whole and “accounted for all of the asserted risks in concluding that the
immigration judge clearly erred.” Abdi Omar, 962 F.3d at 1065; see Jama v.
Wilkinson, 990 F.3d 1109, 1120 (8th Cir. 2021), cert. denied sub nom. Jama v.
Garland, 142 S. Ct. 773 (2022). “[O]ur precedent does not require a separate or
lengthy aggregation analysis.” Hassan v. Rosen, 985 F.3d 587, 591 (8th Cir. 2021).
Chuor further argues the BIA “applied the wrong legal standard” when it treated
the lack of a specific or current threat against him as dispositive. That is a strained
reading of the BIA’s opinion, which properly cited the lack of a current or specific
threat as one factor in explaining why the record does not demonstrate a personal risk
of torture should Chuor be removed to South Sudan. Personal risk of torture is a
required element for CAT relief. See Jima, 942 F.3d at 473. The BIA “must consider
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all evidence relevant to the likelihood of future torture,” including recent threats.
Malonga v. Mukasey, 546 F.3d 546, 555-56 (8th Cir. 2008).
For these reasons, we conclude the BIA did not err in concluding that the IJ’s
likelihood-of-torture finding is clearly erroneous because Chuor presented insufficient
evidence to establish that he faces a personal risk of torture in South Sudan.
Accordingly, we deny the petition for review.
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