17-1100
    Figueroa v. Barr
                                                                                 BIA
                                                                          Mulligan, IJ
                                                                         A074 843 223
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

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         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 16th day of December, two thousand nineteen.

    PRESENT:
             DENNIS JACOBS,
             SUSAN L. CARNEY,
             MICHAEL H. PARK,
                  Circuit Judges.
    _____________________________________

    CARLOS H. FIGUEROA,
             Petitioner,

                       v.                                      17-1100

    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                    THOMAS E. MOSELEY, Law Offices of
                                       Thomas E. Moseley, Newark, NJ.

    FOR RESPONDENT:                    JONATHAN ROBBINS, Attorney (Joseph H,
                                       Hunt, Assistant Attorney General;
                                       Anthony P. Nicastro, Assistant
                                       Director; D. Nicholas Harling, Trial
                                       Attorney, on the brief) for the
                                       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 DENIED.

       Petitioner Carlos H. Figueroa, a native and citizen of

the Dominican Republic, seeks review of a March 21, 2017

decision of the BIA reversing a September 29, 2016 decision

of an Immigration Judge (“IJ”) granting Figueroa’s

application for deferral of removal under the Convention

Against Torture (“CAT”).    In re Carlos H. Figueroa, No. A

074 843 223 (B.I.A. Mar. 21, 2017), aff’g in part and rev’g

in part No. A 074 843 223 (Immig. Ct. N.Y. City Sept. 29,

2016).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

       We have reviewed the IJ’s decision as modified by the

BIA.    See Yang v. U.S. Dep’t of Justice, 

, 522

(2d Cir. 2005).    Because Figueroa was ordered removed for

an aggravated felony and a controlled substance offense,

our jurisdiction is limited to “constitutional claims or

questions of law,” which we review de novo.     8 U.S.C.

§§ 1252(a)(2)(C), (D), 1227(a)(2)(A)(iii), (B); Pierre v.
                               2
Holder, 

, 772 (2d Cir. 2009).     Figueroa raises

a question of law: whether the BIA applied the wrong legal

standard in finding clear error in the IJ’s factual finding

that Figueroa would likely suffer enhanced mistreatment in

detention that would amount to torture.     See Xiao Ji Chen

v. U.S. Dep’t of Justice, 

, 329 (2d Cir. 2006)

(finding legal error arises when decision is “based on a

legally erroneous standard”).

     CAT relief is mandatory if the applicant shows that he

would “more likely than not” be tortured if removed.     8

C.F.R. §§ 1208.16(c)(2), 1208.17(a).     “Torture is defined

as any act by which severe pain or suffering, whether

physical or mental, is intentionally 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.”   

  Governmental acquiescence

occurs when an official, before the torture occurs, is

aware of the impending torture and thereafter “breach[es]

his or her legal responsibility to intervene to prevent

such activity.”   

   In Pierre v.

Gonzales, a CAT claim that was based on conditions in

Haitian prisons was rejected because harsh prison

                                3
conditions do not in themselves constitute torture absent a

specific intent by a torturer to inflict severe pain and

suffering.   

, 121 (2d Cir. 2007).   We

recognized the possibility that “petitioners with certain

histories, characteristics, or medical conditions are more

likely to be targeted not only with these individual acts

[of abuse] but also with particularly harsh conditions of

confinement.”   

  However, the risk of “severe

suffering” based on individual characteristics is relevant

to a CAT claim only if that suffering “is motivated by some

actor’s specific intent.”     

    The BIA was entitled to reassess Figueroa’s likelihood

of torture if the IJ’s finding of fact, including its

interpretation of Figueroa’s evidence, was clearly

erroneous.   It did not apply the wrong legal standard in

finding clear error in the IJ’s determination.   As the BIA

observed, the record is devoid of evidence that the

Dominican authorities intentionally maintain harsh prison

conditions in order to inflict torture.    At most, the

evidence shows that mentally ill criminal deportees are at

risk of suffering from the mistreatment and violence that

is endemic to prisons in the Dominican Republic, and that

                                4
the government would acquiesce to that harm.   Certified

Administrative Record (“CAR”) at 487 (Expert Declaration).

To the extent the mentally ill are at a greater risk of

harm, such risk would be attributable to “the inadequacy,

incompetence and unaccountability” of the Dominican health

system, not an intent to cause such harm.   

has not set forth evidence

demonstrating a likelihood that he would suffer harm

constituting torture should he be imprisoned in the

Dominican Republic.   Therefore, even if his future criminal

conduct and imprisonment were assumed, he could not

demonstrate eligibility for deferral of removal under CAT.

    For the foregoing reasons, the petition for review is

DENIED.   All other pending motions and applications are

DENIED and stays VACATED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe,
                            Clerk of Court




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