Filed: Dec. 14, 2016
Latest Update: Mar. 03, 2020
Summary: 15-585 (L) Brown v. Lynch BIA A055 568 197 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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
Summary: 15-585 (L) Brown v. Lynch BIA A055 568 197 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMENDED 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 NOTATI..
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15‐585 (L)
Brown v. Lynch
BIA
A055 568 197
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 14th day of December, two thousand sixteen.
4
5 PRESENT: PIERRE N. LEVAL,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 EDWARD R. KORMAN,
9 District Judge.*
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 ACEION RICARDO BROWN,
12
13 Petitioner,
14 v. No. 15‐585 (L);
15 No. 15‐1708 (Con)
16 LORETTA E. LYNCH,
17 UNITED STATES ATTORNEY GENERAL,
18
19 Respondent.
20 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation.
1
1 FOR PETITIONER: ALLISON M. FREEDMAN (Peter G.
2 Wilson, Hannah O. Koesterer, on the
3 brief), Katten Muchin Rosenman LLP,
4 Chicago, IL; Charles Roth, National
5 Immigrant Justice Center, Chicago,
6 IL.
7
8 FOR RESPONDENT: RAYA JARAWAN, Office of
9 Immigration Litigation (Benjamin C.
10 Mizer, Principal Deputy Assistant
11 Attorney General, Jesse M. Bless,
12 Senior Litigation Counsel, Office of
13 Immigration Litigation, Yedidya
14 Cohen, Trial Attorney, Office of
15 Immigration Litigation, on the brief),
16 United States Department of Justice,
17 Washington, D.C.
18
19 FOR AMICUS CURIAE: DORIAN NEEDHAM, Immigration
20 Equality, New York, NY.
21
22 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
23 AND DECREED that the petition for review in 2d Cir. 15‐585 (L) is GRANTED,
24 and the petition for review in 2d Cir. 15‐1708 (Con) is DISMISSED as moot.
25 Petitioner Aceion Ricardo Brown, a native and citizen of Jamaica, petitions
26 for review of two decisions of the Board of Immigration Appeals (“BIA”). The
27 first decision affirmed the denial by an Immigration Judge (“IJ”) of Brown’s
28 application for deferral of removal under the Convention Against Torture
29 (“CAT”). In re Aceion Ricardo Brown, No. A055 568 197 (B.I.A. Feb. 10, 2015),
30 aff’g No. A055 568 197 (Immigr. Ct. Hartford May 19, 2014). The second decision
2
1 denied Brown’s motion to reopen and reconsider the first decision. In re Aceion
2 Ricardo Brown, No. 055 568 197 (B.I.A. Apr. 23, 2015). We assume the parties’
3 familiarity with the underlying facts and procedural history in these cases, to
4 which we refer only as necessary to explain our decision to grant the first petition
5 and to deny the second petition as moot.
6 Because Brown was ordered removed based on controlled substance
7 offenses, our review is limited to constitutional claims and questions of law. See
8 8 U.S.C. § 1252(a)(2)(C), (D); Ortiz‐Franco v. Holder, 782 F.3d 81, 90 (2d Cir. 2015),
9 cert. denied sub nom. Ortiz‐Franco v. Lynch, 136 S. Ct. 894 (2016).
10 The IJ denied Brown’s claim for CAT relief on the ground that Brown was
11 not harmed during the three years he previously lived in Jamaica and had a
12 relationship with a man. But in using Brown’s testimony against him in this
13 manner, the IJ disregarded Brown’s testimony that he hid his relationship and
14 went to underground meetings where LGBTQ persons discussed how to act in
15 public to avoid discovery, and, further, that he did not intend to conceal his
16 bisexuality if he returned to Jamaica. This testimony, which we assume to be
17 credible, see Yan Chen v. Gonzales, 417 F.3d 268, 271–72 (2d Cir. 2005), tends both
18 to explain why Brown was not harmed previously and to show that he may be
3
1 harmed in the future. That the IJ’s denial was based solely on the observation
2 that Brown was never harmed while in Jamaica, without discussion of Brown’s
3 testimony about his past concealment, “compellingly suggests” that this critical
4 testimony was ignored. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336
5 n.17 (2d Cir. 2006). The IJ therefore erred as a matter of law, see Mendez v.
6 Holder, 566 F.3d 316, 323 (2d Cir. 2009), and the BIA did nothing to rectify this
7 error. Accordingly, Brown’s petition for review of the final order of removal is
8 granted.
9 This is not the first time this particular IJ has erred in adjudicating an
10 application for deferral of removal by a gay or bisexual Jamaican man. See, e.g.,
11 Walker v. Lynch, No. 15‐184, 2016 WL 4191844, at *3 (2d Cir. Aug. 9, 2016)
12 (granting the petition for review on the grounds that the IJ “totally overlook[ed]”
13 the record evidence that the Jamaican government acquiesces in the torture of gay
14 and bisexual men). The record in this case also contains examples of conduct
15 potentially indicative of bias. For example, the IJ permitted the government to
16 engage in a line of cross‐examination asking Brown irrelevant, demeaning
17 questions about, among other things, his genitalia and sexual performance. The
18 BIA might consider, on remand, whether justice, or the appearance of justice,
4
1 would be served by reassigning the remand to a different IJ. See Huang v.
2 Gonzales, 453 F.3d 142, 151 (2d Cir. 2006) (reassignment is appropriate to avoid
3 bias or the appearance of substantial injustice).
4 Our decision to grant the lead petition effectively affords Brown the relief
5 he requested in his motion to reopen. Accordingly, we dismiss as moot the
6 consolidated petition challenging the denial of reopening. See, e.g.,
7 Koudriachova v. Gonzales, 490 F.3d 255, 264 (2d Cir. 2007).
8 For the foregoing reasons, the petition for review in 2d Cir. 15‐585 (L) is
9 GRANTED, the petition for review in 2d Cir. 15‐1708 (Con) is DISMISSED as
10 moot, and the case is REMANDED for further proceedings consistent with this
11 order. As we have completed our review, the stay of removal that the Court
12 previously granted in these petitions is VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
5
