McDonald v. Barr

19-3697
McDonald v. Barr
BIA
Conroy, IJ
A043 401 844
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 10th day of August, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KINGSLEY JUNIOR MCDONALD, AKA
14 KINGSLEY MCDONALD,
15 Petitioner,
16
17 v. 19-3697
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Craig Relles, Esq., White Plains,
25 NY.
26
27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
28 Attorney General; Melissa Neiman-
29 Kelting, Assistant Director;
30 Giovanni B. Di Maggio, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
33
1 Department of Justice, Washington,
2 DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is GRANTED.
8 Petitioner Kingsley Junior McDonald, a native and citizen
9 of Jamaica, seeks review of an October 9, 2019 decision of
10 the BIA affirming a November 5, 2018 decision of an
11 Immigration Judge (“IJ”) denying protection under the
12 Convention Against Torture (“CAT”). In re Kingsley Junior
13 McDonald, No. A043 401 844 (B.I.A. Oct. 9, 2019), aff’g No.
14 A043 401 844 (Immig. Ct. N.Y.C. Nov. 5, 2018). We assume the
15 parties’ familiarity with the underlying facts and procedural
16 history.
17 We have reviewed both the IJ’s and the BIA’s opinions
18 “for the sake of completeness.” Wangchuck v. Dep’t of
19 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Although
20 our jurisdiction to review a final order of removal is limited
21 to constitutional claims and questions of law when, as here,
22 the noncitizen is removable for having committed certain
23 criminal offenses, that limitation does not apply to our
24 review of agency orders denying CAT relief. See Nasrallah
2
1 v. Barr, 140 S. Ct. 1683, 1694 (2020). The applicable
2 standards of review are well established. See Manning v.
3 Barr, 954 F.3d 477, 484 (2d Cir. 2020) (reviewing questions
4 of law de novo and factual findings for substantial evidence).
5 The agency erred in finding that, although a Jamaican gang
6 likely specifically intends to torture McDonald, he did not
7 establish that the Jamaican government would likely
8 acquiescence to his torture.
9 To be eligible for CAT relief, an applicant is required
10 to show that he would “more likely than not” be tortured by
11 or with the acquiescence of government officials. See
12 8 C.F.R. §§ 1208.16(c), 1208.17(a), 1208.18(a)(1); Khouzam v.
13 Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004). “A private
14 actor’s behavior can constitute torture under the CAT without
15 a government’s specific intent to inflict it if a government
16 official is aware of the persecutor’s conduct and intent and
17 acquiesces in violation of the official’s duty to intervene.”
18 Pierre v. Gonzales, 502 F.3d 109, 118 (2d Cir. 2007).
19 Therefore, “[i]n terms of state action, torture requires only
20 that government officials know of or remain willfully blind
21 to an act and thereafter breach their legal responsibility to
22 prevent it.” Khouzam, 361 F.3d at 171. “Where a government
23 contains officials that would be complicit in torture, and
3
1 that government, on the whole, is admittedly incapable of
2 actually preventing that torture, the fact that some
3 officials take action to prevent the torture . . . [is]
4 neither inconsistent with a finding of government
5 acquiescence nor necessarily responsive to the question of
6 whether torture would be inflicted by or at the instigation
7 of or with the consent or acquiescence of a public official
8 or other person acting in an official capacity.” De La Rosa
9 v. Holder, 598 F.3d 103, 110 (2d Cir. 2010) (internal
10 quotation marks omitted).
11 The agency did not adequately explain its conclusion that
12 McDonald failed to show likely government acquiescence. It
13 observed that police had opened an investigation into his
14 father’s murder by gangs in Jamaica and provided protection
15 at his father’s funeral, reasoning from those observations
16 that the police would not likely acquiesce in the gang’s
17 torture of McDonald. But the record does not establish that
18 the police actually conducted an investigation or that the
19 murder was solved. More importantly, the IJ found that
20 McDonald cannot safely report to police the threat posed to
21 him by the gang that killed his father because the Jamaican
22 government and police force are closely linked with the gang.
23 Neither the IJ nor the BIA evaluated how this apparent
4
1 government complicity would likely bear on the government’s
2 acquiescence in the gang’s prospective assaults on McDonald
3 were he to be removed to Jamaica. See De La Rosa, 598 F.3d
4 at 110; see also Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir.
5 2020) (remanding when the agency failed to give “reasoned
6 consideration to all relevant evidence and all principles of
7 law applicable to determining government acquiescence in . .
8 . torture”). If it is too dangerous for McDonald to report
9 his likely torture by a gang to Jamaican police, it would
10 seem that government officials, through their ties with the
11 gang, have chosen to remain willfully blind to the threat
12 that gang poses. In light of this apparent inconsistency in
13 the agency’s reasoning, we remand for clarification, for
14 additional analysis, and for a more reasoned determination.
15 See De La Rosa, 598 F.3d at 110; Scarlett, 957 F.3d at 336.
16 For the foregoing reasons, the petition for review is
17 GRANTED, the BIA’s order is VACATED, and the case is REMANDED
18 to the BIA. All pending motions and applications are DENIED
19 and stays VACATED.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
5