Berinston Spencer v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERINSTON LORIEN SPENCER, AKA No. 18-73095
Llewelyn Cole,
Agency No. A028-445-915
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Berinston Lorien Spencer, a native and citizen of Jamaica, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for substantial evidence the agency’s factual findings. Sanjaa v. Sessions,
863 F.3d 1161, 1164 (9th Cir. 2017). We grant the petition for review and remand.
In denying Spencer’s deferral of removal under CAT claim, it is unclear
from the record whether the agency considered the risk of torture by actors other
than the individuals who previously attacked Spencer, where Spencer testified that
he will be tortured or killed by anyone who learns of his sexual orientation in
Jamaica, including the police, and where there is potentially dispositive record
evidence supporting Spencer’s testimony. See Cole v. Holder, 659 F.3d 762, 772
(9th Cir. 2011) (“[W]here potentially dispositive testimony and documentary
evidence is submitted, the BIA must give reasoned consideration to that
evidence.”); Bromfield v. Mukasey, 543 F.3d 1071, 1078 (9th Cir. 2008) (in
evaluating a CAT claim, “the agency must consider ‘all evidence relevant to the
possibility of future torture,’ including the Country Report, which establishes that
gay men are victims of beatings, killings, and other forms of torture.” (citation
omitted)); see also Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)
(remanding for agency to consider all evidence in assessing likelihood of torture).
Thus, we grant the petition for review and remand Spencer’s CAT claim to the
agency for further proceedings consistent with this disposition. See INS v.
2 18-73095
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
We do not reach Spencer’s remaining contentions. See Recinos De Leon v.
Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (“We may affirm the [agency] only
on grounds set forth in the opinion under review.”).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED; REMANDED.
3 18-73095