Alexander v. Whitaker

16-4003 Alexander v. Whitaker BIA Kolbe, IJ A046 032 100 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 8th day of January, two thousand nineteen. [5] 6 PRESENT: 7 JOHN M. WALKER, JR., 8 RICHARD C. WESLEY, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ [12] 13 ERRON LENNON ALEXANDER, AKA 14 EVVON L. ALEXANDER, AKA ERIN 15 ALEXANDER, AKA ALEXANDER ERRON, 16 AKA ERIC ALEXANDER, 17 Petitioner, [18] 19 v. 16-4003 20 NAC 21 MATTHEW G. WHITAKER, ACTING 22 UNITED STATES ATTORNEY GENERAL, 23 Respondent. 24 _____________________________________ [25] 26 FOR PETITIONER: Nicholas J. Phillips, Prisoners’ 27 Legal Services of New York, 28 Albany, NY. [29] 30 FOR RESPONDENT: Chad A. Readler, Acting Assistant 31 Attorney General; Douglas E. 32 Ginsburg, Assistant Director, 33 Briena L. Strippoli, Senior 1 Litigation Counsel, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. [5] 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is GRANTED. 10 Petitioner Erron Lennon Alexander, a native and citizen 11 of Trinidad and Tobago, seeks review of a November 2, 2016 12 decision of the BIA affirming a June 22, 2016 decision of an 13 Immigration Judge (“IJ”) denying Alexander’s application for 14 relief under the Convention Against Torture (“CAT”). In re 15 Erron Lennon Alexander, No. A 046 032 100 (B.I.A. Nov. 2, 16 2016), aff’g No. A 046 032 100 (Immig. Ct. N.Y. City June 22, 17 2016). We assume the parties’ familiarity with the underlying 18 facts and procedural history in this case. 19 Under the circumstances of this case, we review the IJ’s 20 decision as modified by the BIA, i.e., minus any basis for 21 denying relief that the BIA declined to consider. See Xue 22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d 23 Cir. 2005). Because Alexander’s removal order is based on 24 criminal convictions, including convictions for an aggravated [2] 1 felony and a controlled substance offense, our jurisdiction 2 is limited to considering “constitutional claims or questions 3 of law.” 8 U.S.C. § 1252 (a)(2)(C), (D). For jurisdiction to 4 attach, such claims must be colorable. Barco-Sandoval v. 5 Gonzales, 516 F.3d 35, 40 (2d Cir. 2008). We review 6 constitutional claims and questions of law de novo. Pierre 7 v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). Alexander raises 8 a colorable question of law sufficient to invoke our 9 jurisdiction: he argues that the BIA erred as a matter of law 10 when it ignored his claim of enhanced mistreatment in 11 detention. See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 12 2009) (“[W]here . . . some facts . . . have been totally 13 overlooked and others have been seriously mischaracterized, 14 we conclude that an error of law has occurred.”). 15 CAT relief is mandatory if the applicant shows that he 16 would more likely than not be tortured if removed. 8 C.F.R. 17 §§ 1208.16(c), 1208.17. Torture is defined as pain and 18 suffering “inflicted by or at the instigation of or with the 19 consent or acquiescence of a public official or other person 20 acting in an official capacity.” 8 C.F.R. § 1208.18 (a)(1). 21 Governmental acquiescence occurs when an official, before the 22 torture occurs, is aware of the impending torture and [3] 1 thereafter “breach[es] his or her legal responsibility to 2 intervene to prevent” it. 8 C.F.R. § 1208.18 (a)(7). In 3 Pierre v. Gonzales, we rejected a CAT claim that was based on 4 conditions in Haitian prisons because harsh prison conditions 5 do not in themselves constitute torture absent a specific 6 intent by the torturer to inflict severe pain and suffering. [7] 502 F.3d 109, 111 (2d Cir. 2007). We also recognized the 8 possibility, however, that “petitioners with certain 9 histories, characteristics, or medical conditions are more 10 likely to be targeted not only with these individual acts [of 11 abuse] but also with particularly harsh conditions of 12 confinement.” Id. at 122 . The risk of “severe suffering” 13 based on individual characteristics is relevant to a CAT claim 14 only if that suffering “is motivated by some actor’s specific 15 intent.” Id. at 121-22 . 16 Alexander asserted a likelihood of torture at the hands 17 of inmates and prison guards due to his status as a criminal 18 deportee with severe mental illness. The record contains 19 some evidence to support his claim. The 2015 State Department 20 Report for Trinidad and Tobago identifies “credible reports 21 that police officers and prison guards mistreated individuals 22 under arrest or in detention,” and recognizes that abuse by [4] 1 fellow prisoners was a problem. Furthermore, a declaration 2 made by a professor in Trinidad and Tobago reflects that 3 deportees unfamiliar with Trinidad and Tobago and individuals 4 suffering from mental health issues are more likely to be 5 detained and targeted for abuse while in jail. 6 The agency erred in its decisions as neither the IJ nor 7 the BIA made any factual findings about Alexander’s claim 8 that he would be subject to enhanced mistreatment and 9 intentional abuse if detained in Trinidad and Tobago. The IJ 10 determined that Alexander did not demonstrate that he was 11 more likely than not to be detained, but the BIA did not rely 12 on that finding, which therefore falls outside the scope of 13 our review. See Xue Hong Yang, 426 F.3d at 522 . Because the 14 BIA did not reach the question whether it was more likely 15 than not that Alexander would be detained, the BIA’s decision 16 must be read to conclude that authorities would have no 17 specific intent to torture Alexander even if he were detained. 18 The IJ, however, addressed only the lack of public resources 19 and health care in prisons, not whether Alexander would be 20 targeted for abuse by guards and inmates as a result of his 21 untreated mental illness. 22 It is not within the authority of the BIA to make a [5] 1 finding in the first instance regarding the likelihood that 2 Alexander would be abused if detained by individuals acting 3 with the specific intent to torture him. 8 C.F.R. 4 § 1003.1(d)(3)(iv); see Hui Lin Huang v. Holder, 677 F.3d 5 130, 134 (2d Cir. 2012) (likelihood of future event is finding 6 of fact). By affirming the IJ’s decision only on the basis 7 that the harm that Alexander feared would not be the result 8 of any individual’s specific intent to torture him, the BIA 9 overlooked Alexander’s claim and record evidence suggesting 10 that he would likely be subject to abuse in prison by prison 11 officials or inmates who have the specific intent to inflict 12 severe pain and suffering on the mentally ill. See Mendez, [13] 566 F.3d at 323 . 14 Because the agency’s decisions omit factual findings 15 regarding whether Alexander would be subject to enhanced 16 mistreatment and the intentional infliction of severe pain 17 and suffering if imprisoned, we remand for the agency to make 18 additional factual findings regarding this portion of 19 Alexander’s claim or for the BIA to evaluate under established 20 standards the IJ’s finding that Alexander did not demonstrate 21 that it is more likely than not that he would be detained. 22 Although the Government argues that remand would be futile [6] 1 because the record does not support a finding of the requisite 2 likelihood of abuse, the factual finding is for the agency to 3 make in the first instance. See Lin Zhong v. U.S. Dep’t of 4 Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that this 5 Court’s review is limited to grounds and reasoning given by 6 the BIA). 7 For the foregoing reasons, the petition for review is 8 GRANTED, the BIA’s decision is VACATED, and the case is 9 REMANDED for further proceedings consistent with this order. 10 As we have completed our review, any stay of removal that the 11 Court previously granted in this petition is VACATED. Any 12 pending request for oral argument in this petition is DENIED 13 in accordance with Federal Rule of Appellate Procedure 14 34(a)(2), and Second Circuit Local Rule 34.1(b). 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court