Filed: Aug. 09, 2016
Latest Update: Mar. 03, 2020
Summary: 15-184 Walker v. Lynch BIA Straus, IJ A038 575 464 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 NOTA
Summary: 15-184 Walker v. Lynch BIA Straus, IJ A038 575 464 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 NOTAT..
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15-184
Walker v. Lynch
BIA
Straus, IJ
A038 575 464
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.
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
9th day of August, two thousand sixteen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
GAVIN TARIANO WALKER, AKA THOMAS
WALKER,
Petitioner,
v. 15-184
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jon Bauer, University of
Connecticut School of Law Legal
Clinic, Hartford, Connecticut.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Deputy Assistant Attorney
General, Civil Division; Anthony
P. Nicastro, Senior Litigation
Counsel; Sheri R. Glaser, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice,
Washington, D.C.
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
GRANTED.
Petitioner Gavin Tariano Walker, a native and citizen of
Jamaica, seeks review of a December 24, 2014 decision of the
BIA, affirming a July 8, 2014 decision of an Immigration Judge
(“IJ”) denying Walker’s application for deferral of removal
under the Convention Against Torture (“CAT”), and ordering him
removed based on his Connecticut state law convictions. See
In re Gavin Tariano Walker, No. A038 575 464 (B.I.A. Dec. 24,
2014), aff’g No. A038 575 464 (Immig. Ct. Hartford July 8, 2014);
see also 8 U.S.C. §§ 1182(a)(2)(A)(i)(II); 1182(a)(2)(C). In
the circumstances of this case, we review the IJ’s decision as
modified by the BIA, i.e., without the IJ’s adverse credibility
determination that the BIA declined to reach, see Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), and,
therefore, assume the credibility of Walker’s testimony that
his homosexuality is widely known in Jamaica, see Yan Chen v.
Gonzales,
417 F.3d 268, 271-72 (2d Cir. 2005).1 In conducting
1
Because the IJ only found Walker’s testimony not credible on
2
our review, we assume the parties’ familiarity with the
underlying facts and procedural history in this case.
On appeal, Walker argues that (1) the agency erred in
applying the government acquiescence standard under the CAT and
in mischaracterizing the facts demonstrating such
acquiescence, and (2) the BIA applied an erroneous standard in
reviewing the IJ’s acquiescence determination. Although we
generally lack jurisdiction to review a final order of removal
against an alien, such as Walker, who was found removable by
reason of having been convicted of, inter alia, an aggravated
felony and a controlled substance offense, see 8 U.S.C. §
1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir.
2015), we retain jurisdiction insofar as Walker raises
“constitutional claims or questions of law,” 8 U.S.C. §
1252(a)(2)(D), for which our review is de novo, see Pierre v.
Holder,
588 F.3d 767, 772 (2d Cir. 2009). That jurisdiction
extends to the issues Walker here raises. See De La Rosa v.
Holder,
598 F.3d 103, 107, 110–11 (2d Cir. 2010) (concluding
that misapplication of government acquiescence standard under
this point and did not make a general adverse credibility
determination, see Certified Administrative Record (“CAR”) 144
(explaining that Walker’s testimony “was largely, though not
entirely, consistent with his I-1589 Application and other
record evidence”), we presume the credibility of the remainder
of Walker’s testimony as well, see 8 U.S.C.
§ 1158(b)(1)(B)(iii).
3
CAT constitutes question of law); Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009) (holding that agency commits error of
law when it “totally overlook[s]” or “seriously
mischaracterize[s]” facts).
To establish eligibility for CAT relief, an applicant must
demonstrate that (1) “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), i.e., subjected to acts “by
which severe pain or suffering is . . . intentionally inflicted
. . . for any reason based on discrimination of any kind,” Pierre
v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (quoting 8 C.F.R.
§ 208.18(a)(1)); and (2) government officials would inflict
such torture, or otherwise acquiesce in it, see 8 C.F.R. §
208.18(a)(1), i.e., “know of or remain willfully blind to” the
anticipated acts of torture and “thereafter breach their legal
responsibility to prevent it,” Khouzam v. Ashcroft,
361 F.3d
161, 171 (2d Cir. 2004). We agree with Walker that the agency
appears to have misapplied the government acquiescence
standard.
Here, the U.S. Department of State’s 2013 Human Rights
Report for Jamaica, to which the agency permissibly afforded
greater weight than other documentary evidence, see Hui Lin
Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012), states that,
4
in Jamaica — where laws criminalize “acts of gross indecency
. . . between persons of the same sex” — lesbian, gay, bisexual,
and transgender (“LGBT”) individuals suffer “serious human
rights abuses, including assault with deadly weapons,
‘corrective rape’ of women accused of being lesbians, arbitrary
detention, mob attacks, stabbings, harassment . . . by hospital
and prison staff, and targeted shootings.” Certified
Administrative Record (“CAR”) 414. The Report further states
that “brutality against [gay men], primarily by private
citizens, was widespread in the community,” and that “[g]ay men
hesitated to report such incidents against them because of fear
for their physical well-being.” Id. at 415. Moreover,
“[a]lthough individual police officers expressed sympathy for
the plight of the LGBT community and worked to prevent and
resolve instances of abuse, . . . the police force in general
did not recognize the extent and seriousness of . . . violence
against members of the LGBT community, and failed to investigate
such incidents.”
Id. at 414–15.
Similarly, a letter from the former director of the Jamaica
Forum for Lesbians, All-Sexuals & Gays (“J-FLAG”), upon which
the IJ relied , states that while “[t]here have been
improvements in the overall response of the police in the past
year,” the “[p]olice frequently refuse to investigate crimes
5
against gay individuals” and, as a result, gay Jamaicans are
not simply subject to violent persecution, but also are
understood as safe targets for robbery, extortion and murder
because of their outcast status.” CAR 505.
Walker testified that he was personally threatened by (1)
his Uncle Collin, who allegedly raped Walker when he was younger
and, in 2003, “threatened to slit [Walker’s] throat for
revealing the rapes and spreading rumors that Collin is gay,”
CAR 141; and (2) his cousin Ludlow, who “threatened to kill
[Walker] for levying accusations of homosexuality at Ludlow’s
brother Shawn and father Collin, the two individuals
responsible for [Walker’s] childhood sexual traumas,” id.
In concluding that Walker failed to demonstrate government
acquiescence, (1) the IJ determined that there was insufficient
evidence that the Jamaican government “indirectly condones the
torture of” gay individuals, CAR 151; and (2) the BIA, while
acknowledging evidence that Jamaican police generally do not
investigate crimes against gay individuals, concluded that this
evidence was insufficient to demonstrate acquiescence because
it “does not describe whether the failure to investigate in most
cases was purposeful and because of the victims’ sexuality,”
CAR 4. The IJ’s statement appears to have “totally
overlook[ed]” the contrary record evidence, discussed above.
6
Mendez v. Holder, 566 F.3d at 323 (recognizing that agency does
not commit error of law every time item of evidence is not
explicitly considered, but that error of law occurs where agency
“totally overlook[s]” important evidence). Meanwhile, the
BIA’s statement appears to have misapplied the applicable
standard by “conflat[ing]” the CAT’s “specific intent
requirement . . . with the concept of state acquiescence.”
Pierre v.
Gonzales, 502 F.3d at 118 (explaining that, “[b]ecause
the CAT reaches torture committed by or acquiesced in by
government actors, it is not always necessary that the specific
intent required by section 208.18(a)(5) be formed by the
government itself” (emphasis in original)); see Khouzam v.
Ashcroft,
361 F.3d 161, 171 (2d Cir. 2004) (“In terms of state
action, torture requires only that government officials know
of or remain willfully blind to an act and thereafter breach
their legal responsibility to prevent it.” (emphasis added)).
Accordingly, we remand for the agency to consider,
consistent with the controlling precedent referenced, whether
it is more likely than not that Walker will be tortured if
removed to Jamaica and that the government will acquiesce in
such torture, particularly in light of (1) the evidence
discussed herein regarding the general failure of the Jamaican
police to investigate crimes against gay individuals, and (2)
7
Walker’s testimony regarding threats he received from family
members. See De La Rosa v. Holder, 598 F.3d at 110–11
(remanding for further consideration of government
acquiescence legal standard); Mendez v.
Holder, 566 F.3d at 323
(remanding for consideration of overlooked evidence).2
For the foregoing reasons, the petition for review is
GRANTED, and the case is REMANDED for further proceedings
consistent with this order. As we have completed our review,
any stay of removal that the Court previously granted in this
petition is VACATED, and any pending motion for a stay of removal
in this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
2
Because we remand for further consideration on these grounds,
we need not consider Walker’s argument that the BIA failed to
distinguish a prior nonprecedential decision granting CAT
relief to a Jamaican gay man.
8
