Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 21-2002

G.P.,

Petitioner,

v.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Gelpí, Howard, and Thompson, Circuit Judges.

SangYeob Kim, with whom Gilles Bissonnette, American Civil Liberties Union of New Hampshire, and New Hampshire Immigrants' Rights Project, were on brief for petitioner. Jennifer P. Lyon, Courtney H.G. Herz, and Sheehan Phinney Bass & Green, PA on brief for New Hampshire Legal Assistance and the University of Maine School of Law Refugee and Human Rights Clinic, amici curiae. Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Cooley LLP on brief for Former Immigration Judges and Former Members of the Board of Immigration Appeals, amici curiae. Kristin Macleod-Ball and Trina Realmuto on brief for the National Immigration Litigation Alliance, Center for Gender & Refugee Studies, and Political Asylum/Immigration Representation Project, amici curiae. Richard Kelley, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief for respondent.

July 13, 2023 GELPÍ, Circuit Judge. Petitioner G.P.1 seeks review of

the Board of Immigration Appeals' ("BIA") decision affirming the

denial of his application for protection under the Convention

Against Torture ("CAT"). We first address our jurisdiction to

hear this matter before turning to the merits. Ultimately, because

the immigration judge's ("IJ") decisions -- giving limited weight

to the expert witness testimony and disregarding the expert's

opinion that G.P. faced a high risk of torture -- were not

supported by substantial evidence, we grant G.P.'s petition, and

thus vacate and remand for further proceedings consistent with

this opinion. As such, we limit our discussion of G.P.'s

additional claims accordingly.

I. Background

A. G.P.'s Presence in the United States

G.P., a native and citizen of the Dominican Republic,

first entered the United States without inspection in 1993. He

was subsequently convicted of trafficking cocaine, served a

seventeen-year prison sentence, and was removed to the Dominican

Republic in 2011. G.P. reentered the United States -- again,

without inspection -- in 2017 and shortly thereafter began selling

drugs on behalf of Sergio Martinez ("Martinez"), the leader of a

large fentanyl trafficking organization in New England (the

1On January 14, 2022, this court granted the Petitioner's motion to proceed under the pseudonym "G.P."

- 3 - "Martinez Group"). In 2018, G.P. and Martinez, along with over

thirty others, were arrested and charged for their involvement in

the drug trafficking conspiracy.

G.P. pled guilty to conspiracy to distribute and to

possess with the intent to distribute fentanyl, in violation of

(a)(1), 846, and cooperated with the government

against Martinez. For his cooperation, G.P. received a

thirty-six-month prison sentence, while Martinez, who decided to

plead guilty during G.P.'s testimony, was sentenced to forty-five

years of imprisonment. Following the completion of his sentence

(during which two inmates attacked G.P. on behalf of Martinez),

the Department of Homeland Security ("DHS") placed G.P. in

proceedings to withhold his removal from the United States based

on his reasonable fear of returning to the Dominican Republic.

B. IJ's Proceedings

Before the IJ, G.P. sought deferral of removal to the

Dominican Republic under CAT.2 G.P. claimed that, were he to

return, it is more likely than not that he would be tortured by:

(1) Dominican public officials unconnected to the Martinez Group,

(2) Dominican public officials connected to the Martinez Group,

(3) Dominican public officials connected to the Martinez Group but

2 G.P. conceded that he was ineligible for other relief, such as withholding of removal by statute or under CAT, because of his two drug-related convictions.

- 4 - acting in a private capacity, and (4) private actors hired or

arranged by the Martinez Group. G.P. supported his petition for

deferral by testifying; by calling Dr. David Brotherton, Professor

of Sociology and Criminology at John Jay College of Criminal

Justice, City University of New York ("Brotherton"), as a Dominican

Republic country conditions expert; and by submitting other

documentary country conditions evidence.

During his testimony, G.P. explained that relatives

introduced him to Martinez in the Dominican Republic in 2016 and

that Martinez offered him a position within his

Massachusetts-based drug trafficking organization. G.P. began

selling drugs for Martinez in the New England area shortly after

coming to the United States in 2017. Specifically, G.P. sold

fentanyl to Martinez's "important clients" -- who came from out of

state to buy drugs in larger quantities -- until his arrest in

April 2018.

G.P. emphasized that he feared retaliation in the

Dominican Republic stemming from his cooperation against the

Martinez Group. G.P. explained that he was a "star witness" when

he testified in open court against Martinez and that he told the

government everything he knew about the Martinez Group's

operation, including its leader, workers, and suppliers

(Dominicans and a Mexican cartel). G.P. described how, while

serving his sentence, two fellow inmates beat and stabbed him in

- 5 - retaliation for the harm he caused to Martinez. He testified that

he feared returning to the Dominican Republic because he gave

significant information to the Drug Enforcement Administration

("DEA") about many people, and he believed that either those who

were directly involved, or higher ups, will try to retaliate for

his cooperation if he returns. As to the Martinez Group's ability

to locate and harm him in the Dominican Republic, G.P. explained

that many of them (presumably meaning Martinez Group members) are

from his hometown, know him, and that it is easy to find

information or hire a hitman in the Dominican Republic if you have

money. As to his fear of torture as a removed criminal, G.P.

testified that even "good" police officers -- those who are not

tied to cartels -- will not protect him because he is a criminal.

G.P. also offered Brotherton's testimony, as a Dominican

Republic country conditions expert, in support of his application

for deferral of removal under CAT ("CAT claim"). Brotherton

testified extensively about the treatment removed criminals face

in the Dominican Republic -- during their initial detention upon

being returned to the country and after being processed and

released -- as well as about extrajudicial killings by police,

government corruption by cartels, and the consequences that

members of criminal organizations face for cooperating with the

government. Additionally, G.P. submitted documentary support for

his claim, including country conditions evidence consisting of the

- 6 - 2018 and 2019 Department of State Dominican Republic Human Rights

Reports, reports from Amnesty International and the Immigration

and Refugee Board of Canada, and various news articles.

After considering "all the evidence and testimony in the

record," the IJ concluded that G.P. had not established that it

was more likely than not that he would be tortured by, or with the

acquiescence of, the government of the Dominican Republic. Despite

finding that both G.P. and Brotherton testified credibly, the IJ

found that G.P.'s fear of torture as a removed criminal and at the

hands of corrupt government officials/private actors was too

speculative because G.P. failed to prove "that each link in [his]

hypothetical chain of events leading to his alleged harm . . . is

more likely than not to occur." The IJ acknowledged Brotherton's

opinion that G.P. faced a "high risk" of being tortured if returned

to the Dominican Republic but ultimately discounted that opinion

based on Brotherton's lack of familiarity with the Martinez Group,

its connection to government officials in the Dominican Republic,

and because of Brotherton's agreement with a quote from his 2011

book, which states: "I couldn't honestly say that torture is

something deportees should expect." Finding G.P.'s evidence

lacking, the IJ denied his CAT claim.

C. BIA Appeal

G.P. appealed the IJ's denial of his CAT claim to the

BIA, alleging that the IJ erred by: (1) giving reduced weight to

- 7 - Brotherton's testimony, (2) concluding that G.P. had not met his

burden of establishing the requisite risk of torture from the

Martinez Group, (3) concluding that G.P. had not met the requisite

risk of torture from Dominican officials, (4) failing to properly

aggregate all sources of torture, and (5) violating G.P.'s due

process rights by failing to fairly consider the evidence. G.P.

also challenged his order of removal based on a defective record

of the immigration proceedings.

The BIA concurred with the IJ that G.P. failed to

establish that it was more likely than not that each link in the

chain leading to his alleged torture -- as a removed criminal or

as a government cooperator against Martinez -- would occur. With

respect to Brotherton, the BIA upheld the IJ's decision to assign

his testimony limited weight because it was "based on limited

direct knowledge and independently informed contemporaneous

observations." The BIA also concluded that Brotherton's opinion,

that G.P. faced a "high risk" of torture, was properly discounted

by the IJ because of the "speculative" nature of the testimony,

Brotherton's lack of familiarity with the Martinez Group, and the

IJ's reasonable interpretation of the quote from Brotherton's

- 8 - book. Finding no clear or legal error, the BIA affirmed the IJ's

denial of G.P.'s CAT claim. This petition for review followed.

II. Jurisdiction

We pause to address a matter of import before delving

into the substance of G.P.'s case. After we heard oral argument,

we requested supplemental briefing to address whether we have

jurisdiction over G.P.'s petition where he filed it within thirty

days of the BIA's affirmance of the IJ's denial of his application

for CAT relief, but more than thirty days after DHS reinstated his

order of removal. See

(b)(1) (providing that a

"petition for review must be filed not later than 30 days after

the date of the final order of removal"); § 1252(b)(9) (providing

that "judicial review" of any action to remove a noncitizen from

the United States "shall be available only in judicial review of

a final order"); Nasrallah v. Barr,

(2020)

(stating CAT orders are distinct from final orders of removal).

Before we could decide this question, the Supreme Court issued

Santos-Zacaria v. Garland,

(2023), in which the

Court held that § 1252(d)(1) -- providing that judicial review of

a final order of removal is available only if the noncitizen "has

exhausted all administrative remedies available to the

[noncitizen] as of right" -- is a nonjurisdictional

claim-processing rule. Id. at 1116. We granted the government's

request to provide additional supplemental briefing about the

- 9 - effect of Santos-Zacaria on this case. The parties' subsequent

filings included three points of agreement: (1) § 1252(b)(1) is

not jurisdictional and is subject to waiver and forfeiture; (2) the

government waived any objection to the timeliness of G.P.'s

petition for review; and (3) this court should decide G.P's

petition on the merits. It is on these bases that we presume

jurisdiction, without deciding the underlying questions, and

proceed to the merits. We are careful to leave the issues of when

§ 1252(b)(1)'s thirty-day deadline starts running and whether the

rule is jurisdictional for another day, when these are properly

disputed by the parties. With that out of the way, we turn to the

merits of G.P.'s petition.

III. Standard of Review

"We review the BIA's findings of fact [on a CAT claim]

under the 'substantial evidence' standard." Romilus v. Ashcroft,

(1st Cir. 2004) (quoting Guzman v. INS,

(1st Cir. 2003)). Where the BIA's decision is "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole," the decision must be upheld.

(quoting

INS v. Elias-Zacarias,

(1992)). Because this is

a "deferential standard" of review, the BIA's determination may

only be disturbed if "the record evidence would compel a reasonable

factfinder to make a contrary determination." Aguilar-Solis v.

- 10 - INS,

(1st Cir. 1999). Questions of law, however,

are reviewed de novo. Romilus,

.

Typically, we review only the BIA's decision.

But

where, like here, the BIA "adopts portions of the IJ's opinion, we

review those portions of the IJ's opinion that the BIA has

adopted."

And when, like here, the BIA "both adopts the

findings of the IJ and discusses some of the bases for the IJ's

decision, we have authority to review the decisions of both the IJ

and the BIA."

(quoting Chen v. Ashcroft,

(3d Cir. 2004)); see also Aguilar-De Guillen v. Sessions,

(1st Cir. 2018) (When "the BIA adopts and affirms an IJ's

decision, we review the IJ's decision to the extent of the

adoption, and the BIA's decision as to any additional ground."

(quoting Sunoto v. Gonzales,

(1st Cir. 2007))).

IV. Discussion

On appeal, G.P. raises several claims of error: (1) that

the IJ and BIA erred by requiring evidence of harm to other

government witnesses in the Dominican Republic; (2) that the BIA

erred by failing to address G.P.'s argument that the IJ erred by

not providing G.P. an opportunity to explain his inability to

obtain corroborating evidence that other government witnesses were

harmed in the Dominican Republic; (3) that the BIA erred by failing

to address G.P.'s argument about Martinez's connections to

Dominican Republic law enforcement; (4) that the IJ and BIA erred

- 11 - by failing to aggregate all sources of torture "in assessing the

ultimate probability of torture in the Dominican Republic";

(5) that the BIA erred by engaging in impermissible factfinding as

to the basis for Brotherton's opinion and by disregarding facts

that the IJ accepted; (6) that the IJ and BIA erred in giving

reduced weight to Brotherton's expert testimony; (7) that,

contrary to the IJ's and BIA's decisions, the evidence in the

record compels the conclusion, under the aggregate standard, that

G.P. established the requisite risk of torture for a CAT claim;

and (8) that the BIA erred by concluding that the Department of

State's 2020 Dominican Republic Human Rights Report would not

change the analysis or outcome of G.P.'s CAT claim. The Government

contests each of G.P.'s claims and argues that G.P. waived his

challenges to the BIA's order affirming the denial of his CAT claim

based on his status as a removed criminal, as well as to

impermissible factfinding by the BIA. Because, for the reasons

discussed infra, we conclude that the IJ unjustifiably limited and

disregarded Brotherton's testimony -- impacting the IJ's

conclusion as to G.P.'s risk of harm both as a removed criminal

and government cooperator -- we vacate and remand for further

proceedings consistent with this opinion. As such, we decline to

- 12 - address the other issues raised in G.P.'s petition and take no

position on the government's waiver claims.

A. Limited Weight Given to Brotherton's Testimony

G.P. contends that the IJ's decision to give "limited

weight" to Brotherton's testimony was not supported by substantial

evidence. Here, after a "thorough voir dire," the IJ qualified

Brotherton as an expert witness on country conditions in the

Dominican Republic relating to the lives of removed noncitizens

and organized crime. Despite concluding Brotherton testified

credibly, the IJ nevertheless gave reduced weight to Brotherton's

testimony because of "his lack of recent first-hand knowledge,

research, or connections in the Dominican Republic." The IJ found

that:

The last time Dr. Brotherton was in the Dominican Republic was in 2014, where he conducted interviews with 10 deportees. Before that, the majority of his interviews took place in 2009 in preparation of his book that was published in 2011. The last time he spoke with a deportee who was in the Dominican Republic was in 2019. His most recent conversations with Dominican officials were in March 2019, with a police officer, and in 2016 when government officials visited Dr. Brotherton's university.

The BIA affirmed the IJ's decision to give limited

weight, concluding that the IJ "did not require first-hand

knowledge of the facts underlying the expert opinion" but rather

"acknowledged the expert witness's testimony and afforded due

- 13 - evidentiary weight where appropriate and where his opinion was

based on limited direct knowledge and independently informed

contemporaneous observations." Because the BIA adopted the IJ's

opinion as to Brotherton with little additional analysis, we

primarily review the IJ's findings. See Romilus,

.

"The question of what probative value or weight to give

to expert evidence is a determination for the [IJ] to make as the

fact finder."3 Matter of M-A-M-Z-,

, 177 (B.I.A.

2020); see also 8 C.F.R § 1003.1(d)(3)(i); Xian Tong Dong v.

Holder,

(1st Cir. 2012) (explaining that where

evidence as a whole is "a mixed bag," IJs have discretion over

where to accord substantial weight). Before assigning significant

weight to expert testimony, the IJ "should determine that the

witness's testimony is probative and persuasive regarding the key

issues in dispute in the case." Matter of J-G-T,

, 103 (B.I.A. 2020). For an expert's opinion to be persuasive,

"a reliable factual or evidentiary basis for his or her

3 Amici urge us to provide guidance to IJs and the BIA by establishing a uniform standard for evaluating expert witness testimony. Overlooking the fact that G.P. did not raise this argument in his petition for review, we believe that the Supreme Court's decision in Garland v. Ming Dai precludes us from considering amici's request.

, 1677 (2021) ("Congress has carefully circumscribed judicial review of BIA decisions. . . . [I]t is long since settled that a reviewing court is 'generally not free to impose' additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel." (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

(1978))).

- 14 - conclusions" must exist.

Here, the IJ identified two issues

with the evidentiary basis of Brotherton's expertise that

justified giving reduced weight to his testimony: His "knowledge,

research, or connections in the Dominican Republic" were not

(1) recent and (2) firsthand. We address each in turn.

As to recency, the IJ concluded, in an opinion dated

April 26, 2021, that Brotherton's expertise was stale because he

had not been to the Dominican Republic since 2014 and had not

spoken with a removed noncitizen in the Dominican Republic, or

officials within the government, since 2019. The IJ's factual

findings as to when Brotherton last visited the Dominican Republic

and conducted interviews are borne out by the record, however, the

IJ's recency conclusion ultimately lacks support.

There is no evidence in the record that conditions in

the Dominican Republic have changed since 2019 and, notably, the

IJ cites no support for this assumption. In fact, Brotherton

testified that country conditions in the Dominican Republic have

not changed significantly since 2014. The IJ's conclusion is

problematic given that Brotherton's testimony on this point went

unchallenged -- the government did not call its own expert, nor

was Brotherton's testimony contradicted by G.P. or other country

conditions evidence. Cf. Hang Chen v. Holder,

(1st Cir. 2012) (holding that the BIA properly rejected an expert's

opinion where it was contradicted by country conditions evidence).

- 15 - Because a reasonable factfinder would be compelled to reach a

contrary conclusion based on the record, the IJ's recency

justification for giving reduced weight to Brotherton's testimony

cannot stand. See Aguilar-Solis,

(requiring

substantial evidence to uphold agency decisions); M-A-M-Z-, 28

I. & N. Dec. at 177 (stating an IJ's findings "without

support . . . drawn from the facts in the record" constitutes

error (quoting Matter of A-B-,

(Att'y

Gen. 2018), vacated,

, 307 (Att'y Gen. 2021))).

The IJ also cited Brotherton's lack of firsthand

"knowledge, research, or connections" in the Dominican Republic as

justification for giving his testimony reduced weight. While the

Federal Rules of Evidence ("FRE") do not apply in immigration

proceedings, the BIA regularly looks to the FRE for guidance on

evidentiary issues -- including expert witness testimony. See

J-G-T, 28 I. & N. Dec. at 102 n.7 (declining to formally adopt FRE

in immigration proceedings); Matter of Y-S-L-C,

(B.I.A. 2015) (stating that "[i]t is well established

that the [FRE] are not binding in immigration

proceedings . . . [but] may provide helpful guidance"). With

respect to experts, the BIA has said that "[a]n expert witness is

broadly defined as someone who is 'qualified as an expert by

knowledge, skill, experience, training, or education.'" Matter of

D-R-,

(B.I.A. 2011) (quoting Fed. R. Evid.

- 16 - 702). In contrast to a lay witness, who testifies based on

personal perception, J-G-T, 28 I. & N. Dec. at 101, an expert

witness "may testify in the form of an opinion," id. (quoting Fed.

R. Evid. 702), and "need not have personal knowledge of the facts

underlying those opinions," Matter of Vides Casanova,

(B.I.A. 2015) (emphasis added). The BIA has

clarified that an expert's testimony is reliable when "'based on

sufficient facts or data' that the expert 'has been made aware of

or personally observed' or from sources that 'experts in the

particular field would reasonably rely on.'" J-G-T, 28 I. & N.

Dec. at 102 (quoting Fed. R. Evid. 702(b), 703).

G.P. argues that, in concluding that Brotherton lacked

firsthand "knowledge, research, or connections," the IJ not only

overlooked evidence of Brotherton's firsthand expertise but also

unjustifiably ignored the other sources of information that

Brotherton relied on in forming his opinion. We agree. First,

Brotherton testified that he personally interviewed ten removed

noncitizens in the Dominican Republic in 2014 (and interviewed

over 100 removed noncitizens and over 50 police/immigration

officials pre-2011). While the IJ discounted these interviews as

stale, as discussed supra, there is no basis in the record for

concluding that conditions have changed since at least 2014.

Regardless, Brotherton also testified that he had done informal

interviews, as recently as 2019, with individuals in the Dominican

- 17 - Republic and with government officials visiting the United States.

He also described his work as a consultant on the Syndemics

Project -- a removed noncitizen-related study, conducted by

Florida International University -- based in the Dominican

Republic. Between his affidavit and testimony, he explained that

the project team interviewed approximately thirty removed

noncitizens from 2015 to 2018, that he had access to all of their

interviews, and that he remained in contact with the field research

team who updated him on new data frequently. Contrary to the IJ's

finding, there is substantial evidence in the record that would

compel a reasonable factfinder to conclude that Brotherton relied

on firsthand information in forming his opinion.

Moreover, in addition to firsthand knowledge, Brotherton

testified about other sources of information that he relied on to

form his opinion. During his voir dire, Brotherton explained that

he maintained his knowledge of country conditions in the Dominican

Republic by reviewing crime rates, DEA reports, and other official

country reports. He referenced said reports throughout his

testimony and affidavit, specifically citing to the U.S.

Department of State's 2018 and 2019 Country Reports on Human Rights

Practices in the Dominican Republic. The IJ failed to mention

this evidence or otherwise explain why facts that Brotherton "has

been made aware of," "personally observed," or gleaned from sources

that "experts in the particular field would reasonably rely on,"

- 18 - such as Department of State country reports, do not provide a

sufficient basis for crediting his testimony fully. See Fed. R.

Evid. 703 (outlining bases for expert opinions). This alone

constitutes error. See Rodríguez-Villar v. Barr,

(1st Cir. 2019) ("Although the agency is not required to discuss

every piece of evidence, it must, at a minimum, 'fairly appraise

the record' and 'cannot turn a blind eye to salient facts.'"

(quoting Sihotang v. Sessions,

(1st Cir. 2018)));

Gailius v. INS,

(1st Cir. 1998) (stating agency

must adequately explain its decision to discount relevant evidence

for meaningful appellate review); Castillo v. Barr,

(9th Cir. 2020) ("Where the [IJ or BIA] do[] not consider all

the evidence before it, . . . [by] 'failing to mention highly

probative or potentially dispositive evidence,' its decision

cannot stand." (quoting Cole v. Holder,

(9th

Cir. 2011))). Nevertheless, even had the IJ discussed these

additional bases for Brotherton's opinion, our review of the record

convinces us that the IJ's decision to give Brotherton's testimony

limited weight is not supported by substantial evidence and must

be vacated.

B. Discounting Brotherton's Opinion on G.P.'s Risk

In addition to challenging the limited weight given to

Brotherton's testimony, G.P. contends that the IJ's and BIA's other

justifications for discounting Brotherton's opinion -- that G.P.

- 19 - faced a "high risk" of torture -- are not supportable. The IJ

explained his decision by citing Brotherton's lack of familiarity

with the Martinez Group, its connections in the Dominican Republic,

and Brotherton's agreement with a quote from his 2011 book saying

that removed noncitizens should not necessarily expect torture.

The BIA adopted the IJ's findings and affirmed his rejection of

Brotherton's expert opinion as to G.P.'s risk.

An IJ is not required to accept an expert's opinion as

fact just because the expert testifies credibly. M-A-M-Z-, 28

I. & N. Dec. at 177. Nevertheless, "when the [IJ] makes a factual

finding that is not consistent with an expert's opinion, it is

important . . . to explain the reasons behind the factual

findings." Id. at 177-78; cf. H.H. v. Garland,

(1st Cir. 2022) (vacating and remanding BIA decision after

concluding agency failed to adequately articulate its reasoning on

non-expert issue). As outlined supra, the IJ's findings of fact

are subject to substantial evidence review. Romilus,

.

The IJ's findings as to Brotherton's direct knowledge of

the Martinez Group are supported by the record, however, the IJ's

justification for discounting his opinion on that basis is not.

Here, Brotherton testified that he had no direct knowledge of the

Martinez Group, its operations in New England, or its connections

to officials in the Dominican Republic. Nevertheless, the IJ

- 20 - faulting his lack of personal knowledge is problematic for two

reasons. First, as discussed supra, an expert "need not have

personal knowledge of the facts underlying" their opinion, Vides

Casanova, 26 I. & N. Dec. at 499, which may be deemed reliable as

long as it is based on "sufficient facts or data," J-G-T, 28

I. & N. Dec. at 102 (quoting Fed. R. Evid. 702(b), 703).

Brotherton relied on G.P.'s affidavit to learn specifics about the

Martinez Group, its connection to cartels, and to form an opinion

as to G.P.'s risk of torture as a government cooperator. Notably,

the facts contained within G.P.'s affidavit, and later admitted

through his testimony, were never challenged by the government or

questioned by the IJ, who found G.P. credible. An expert cannot

be "undermined by his reliance on facts . . . that have not been

disputed." See Castillo,

. Therefore, Brotherton

was entitled to rely on G.P.'s affidavit, and his opinion should

not have been disregarded because he did so.

Second, Brotherton's lack of personal knowledge about

the Martinez Group should not have devalued his opinion because

the IJ qualified him as an expert on country conditions in the

Dominican Republic. Here, the record is clear that the Martinez

Group was a New England-based drug trafficking organization. It

is possible that the IJ may have been trying to suggest that, as

an expert on organized crime in the Dominican Republic,

Brotherton's lack of knowledge about the Martinez Group's

- 21 - operations means that the group does not have a strong presence

there, however, we are not permitted to engage in such judicial

guesswork, see Ojo v. Garland,

(2d Cir. 2022),

and such reasoning impermissibly ignores evidence in the record,

see Baharon v. Holder,

(4th Cir. 2009) ("It

is . . . our responsibility to ensure that unrebutted, legally

significant evidence is not arbitrarily ignored by the

factfinder."). G.P.'s affidavit and testimony explained that the

Martinez Group is connected to the Sinaloa Cartel (a Mexican drug

cartel) because the latter supplies fentanyl to the former. This

connection is corroborated by a DEA press release discussing an

intercepted call between Martinez and a fentanyl supplier in

Sinaloa, Mexico and describing Martinez as "running a

sophisticated marketing operation that served as a conduit between

the Mexican drug cartels and customers in Northern New England."

Brotherton's testimony and affidavit described the Sinaloa

Cartel's strong presence in the Dominican Republic, influence over

government officials there, and treatment of government

cooperators. The IJ citing Brotherton's lack of direct knowledge

of the Martinez Group, or its connections to the Dominican

Republic, while factually accurate, mischaracterizes the evidence

as a whole and leads us to conclude that substantial evidence does

not support the IJ's decision to disregard Brotherton's opinion on

- 22 - this basis. See Cole,

(concluding that a

misstatement of the record by the IJ or BIA is error).

The IJ also cited Brotherton's agreement with a quote

from his 2011 book as a basis for dismissing Brotherton's opinion

that G.P. faced a high risk of torture from corrupt police/private

actors hired by the Martinez Group. The quote, which was submitted

by the government, states: "I did my best to paint a picture that

fitted this scenario but I couldn't honestly say that torture is

something deportees should expect." Far from agreeing with said

quote, Brotherton qualified its applicability to G.P.'s

proceedings by explaining that in the book's context, torture had

a very narrow definition -- for example, tying electrodes to

someone's testicles -- and that the book pertained to another

individual's particular circumstances who, unlike G.P., had mental

health issues and had not cooperated against a criminal

organization. The IJ's characterization of Brotherton as having

"agreed with a quote from his book" on cross-examination is

troubling since he was only asked on direct examination whether he

recalled the quote and to explain its context, not whether he

agreed with it or if it was still accurate. Additionally, we fail

to find support in the record for the level of emphasis that the

IJ placed on the quote. Reviewing Brotherton's testimony and the

exhibit with the book excerpt in full, it is clear that the quote

was cited as a basis for disregarding G.P.'s risk of torture from

- 23 - private citizens/corrupt police, but Brotherton wrote these words

about the risk of torture removed noncitizens face generally.

Further, the IJ failed to explain why the quote from the 2011 book

deserved significant weight when it was substantially older than

other evidence the IJ disregarded as stale.

V. Conclusion

For the foregoing reasons, we conclude that the BIA's

decision affirming the IJ's analysis, which gave limited weight to

Brotherton's testimony and rejected his opinion regarding G.P.'s

risk of torture, is not supported by substantial evidence in the

record. Given the IJ's unjustifiable rejection of Brotherton's

testimony, which pertained to both of G.P.'s theories of torture

(his risk of harm as a removed criminal and as a government

cooperator against the Martinez Group), and in light of the CAT

requirement that "all evidence relevant to the possibility of

future torture shall be considered,"

(c)(3), the

IJ's and BIA's decisions cannot stand. Therefore, we grant G.P.'s

petition for review, vacate the BIA's decision, and remand to the

BIA, with directions to remand to the IJ, for further consideration

of G.P.'s CAT claim consistent with this opinion. In deciding

whether G.P. is entitled to relief on remand, Brotherton's

testimony should be afforded full weight, and, although we take no

position on them, we encourage the IJ to review the other issues

raised in G.P.'s petition.

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