Natalie Burke v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION NOV 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIE SIMONE BURKE, AKA Joddi No. 12-71364
Burke,
Agency No. A035-965-771
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2015
San Francisco, California
Before: O’SCANNLAIN, FERNANDEZ, and M. SMITH, Circuit Judges.
Natalie Burke petitions from the Board of Immigration Appeals’s (BIA)
dismissal of her appeal of the Immigration Judge’s (IJ) order denying her request
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for deferral of removal under the Convention Against Torture (CAT).1 Burke also
challenged the IJ’s denial of a continuance pending a decision on her Petition for U
Nonimmigrant Status (U visa). However, Burke acknowledged at oral argument
that the continuance issue is moot in light of the United States Citizenship and
Immigration Services’s denial of her U visa petition.2
“The BIA’s findings underlying its determination that an applicant is not
eligible for relief under the CAT are reviewed for substantial evidence.” Arteaga v.
Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). “Under the substantial evidence
standard, the court upholds the BIA’s determination unless the evidence in the
record compels a contrary conclusion.” Id. The definition of torture under the CAT
includes an intentional infliction of pain for a reason based on discrimination,
“when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1).
1
United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S.
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.
§§ 208.16-18, 1208.16-18.
2
Burke’s request for judicial notice therefore is denied as moot.
2
“Acquiescence of a public official requires that the public official, prior to
the activity constituting torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to prevent such activity.”
8 C.F.R. § 1208.18(a)(7). To be entitled to deferral of removal under the CAT,
“aliens must show that it is ‘more likely than not’ that they will be tortured (rather
than persecuted on a protected ground) if returned to their home countries.”
Wakkary v. Holder, 558 F.3d 1049, 1053 (9th Cir. 2009) (quoting 8 C.F.R. §
208.16(c)(2)).
Here, substantial evidence supports the BIA’s evaluation of the aggregate
risk that Burke would be tortured if removed. Adopting the IJ’s determination, the
BIA noted that Burke “did not present sufficient evidence to establish that her
father was murdered due to his political affiliation, or that anyone affiliated with a
rival political party or the government would be interested in harming her due to
her relationship to her father.”
Burke’s father was a member of the most popular political party in Jamaica,
which at the time held the majority of seats in the House of Representatives, as
well as the Prime Ministership. Burke’s claim that public officials or those acting
at their direction would seek to harm her is purely speculative. She admitted that
the only reason why she believed that her father was killed due to his political
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activity was that her family spoke vaguely of police officers asking him for favors
that he refused to perform. And Burke has not shown what political activities her
father engaged in or why they would have caused public officials to seek to harm
him, much less her.
Substantial evidence also supports the BIA’s evaluation of the combined risk
of torture based on (1) her relationship with her father with (2) individuals who
might seek to retaliate for Burke’s assistance in the apprehension of a fugitive in
the United States. The BIA did not err in concluding that Burke’s safe return to
Jamaica in 2010 for her father’s well-publicized funeral “undercut both reasons for
her claimed fear of torture.” Indeed, Burke testified that she never independently
verified that the fugitive had even returned to Jamaica, and had no interest in
checking, since she had no intention to go there. Nor has Burke shown that any
such retaliation would be performed “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity.” 8
C.F.R. § 1208.18(a)(1).
Thus, the evidence does not compel a conclusion contrary to the BIA’s.
PETITION DENIED.
4