17-134 Suriel v. Sessions BIA Lyons, IJ A058 293 487 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 25th day of May, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, PETER W. HALL, Circuit Judges. _____________________________________

JUAN ELIAS SURIEL, Petitioner,

v. 17-134 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Craig Relles, White Plains, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Song E. Park, Senior Litigation Counsel, 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 GRANTED.

Petitioner Juan Elias Suriel, a native and citizen of

the Dominican Republic, seeks review of a December 15, 2016,

decision of the BIA vacating a July 20, 2016, decision of an

Immigration Judge (“IJ”) granting Suriel’s application for

deferral of removal under the Convention Against Torture

(“CAT”). In re Juan Elias Suriel, No. A058 293 487 (B.I.A.

Dec. 15, 2016), vacating No. A058 293 487 (Immig. Ct. N.Y.

City July 20, 2016). We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

Because the BIA vacated the IJ’s grant of CAT deferral,

we review the BIA’s opinion as the final decision. See Yan

Chen v. Gonzales,

(2d Cir. 2005). The

applicable standards of review are well established. See

(b)(4)(B); Yanqin Weng v. Holder,

(2d Cir. 2009). Our jurisdiction to review a final 2 order of removal of an alien who, like Suriel, was ordered

removed for an aggravated felony or a controlled substance

offense, is limited to “constitutional claims or questions of

law.”

(a)(2)(C), (D). We therefore retain

jurisdiction to consider Suriel’s arguments that the BIA

misapplied clear error review and the governmental

acquiescence standard. See Hui Lin Huang v. Holder,

(2d Cir. 2012); Khan v. Gonzales,

(2d Cir. 2007).

An applicant who establishes that he likely will be

tortured in the country of removal is eligible for deferral

of removal under the CAT.

(c)(3),

1208.17(a). To constitute “torture,” the harm must be

“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.”

§ 1208.18(a)(1). Cognizable

acquiescence “requires only that government officials know of

or remain willfully blind to an act and thereafter breach

their legal responsibility to prevent it.” Khouzam v.

Ashcroft,

(2d Cir. 2004).

3 “In assessing whether it is more likely than not that an

applicant would be tortured in the proposed country of

removal, all evidence relevant to the possibility of future

torture shall be considered . . . .”

(c)(3). “A determination of what will occur in the

future and the degree of likelihood of the occurrence has

been regularly regarded as fact-finding,” and “[s]uch a

finding may be rejected . . . as speculative only in those

instances where the IJ lacks an adequate basis in the record

for the determination that a future event will, or is likely

to, occur.” Hui Lin Huang,

. “Facts

determined by the immigration judge . . . shall be reviewed

[by the BIA] only to determine whether the findings of the

immigration judge are clearly erroneous.”

(d)(3)(i). For the reasons that follow, we conclude

that the BIA erred in its application of clear error review.

First, the BIA did not assess the sufficiency of the IJ’s

bases for determining that the Dominican government would

acquiesce in Suriel’s likely torture and merely substituted

its own view of the facts. See Hui Lin Huang,

;

(d)(3)(i). The IJ clearly stated 4 his bases for finding that the Dominican government would

acquiesce: Suriel’s credible testimony that one of the men

who threatened him had harmed people in Dominican Republic in

the past, but avoided arrest by bribing the police; the

Dominican Republic’s policy of requiring criminal deportees

to register and periodically report; and U.S. State

Department and Amnesty International reports describing

endemic corruption of law enforcement. Although the BIA

acknowledged the reports of corruption, it did not consider

the evidence of the past bribe or the registration and

reporting requirement before rejecting the IJ’s acquiescence

determination as unsupported. Because the BIA may reject an

IJ’s factual finding only where it lacks an adequate basis in

the record, the BIA’s failure to assess the adequacy of the

evidence relied on by the IJ does not reflect clear error

review. See Hui Lin Huang,

.

Second, the BIA’s stated grounds for rejecting the IJ’s

acquiescence finding are either legally erroneous or

misstatements of the record amounting to legal error. See

Khouzam,

; see also Mendez v. Holder,

(2d Cir. 2009) (holding that an agency may commit an 5 error of law where “important” facts “have been totally

overlooked and others have been seriously mischaracterized”).

The BIA stated that there was no evidence that any specific

Dominican official may wish to harm Suriel, but cognizable

acquiescence “requires only that government officials know of

or remain willfully blind to an act and thereafter breach

their legal responsibility to prevent it.” Khouzam,

. It does not require the harm to be inflicted by a

state actor.

The BIA also stated that there was no

evidence that the people Suriel fears have any contacts or

connection with the Dominican government, but Suriel credibly

testified that one man who threatened him had previously shot

someone in the Dominican Republic and avoided arrest by

bribing the police. The BIA’s failure to mention Suriel’s

testimony suggests that it overlooked evidence. See Mendez,

.

Third, the BIA’s labeling of the IJ’s factfinding as

“speculative” does not bring the BIA’s decision within the

ambit of clear error review. “Decisions as to . . . which

of competing inferences to draw are entirely within the

province of the trier of fact[,]” and “the drawing of a fair 6 inference inevitably entails some measure of speculation.”

Siewe v. Gonzales,

(2d Cir. 2007) (ellipsis

in original) (internal quotation marks omitted).

“[S]peculation and conjecture become legally impermissible

only when there is a complete absence of probative facts to

support the conclusion reached.”

(internal quotation

marks omitted). “[S]peculation that inheres in inference is

not ‘bald’ if the inference is made available to the

factfinder by record facts . . . in light of common sense and

ordinary experience.”

. And a “finding may not

be rejected as speculative simply because it concerns a future

event.” Hui Lin Huang,

. Here,

notwithstanding the BIA’s contrary assertion, the IJ’s

finding that the Dominican government would acquiesce to

Suriel’s torture is tethered to specific facts relating to

Suriel: namely, his credible testimony that one of the men

who threatened him previously shot someone in the Dominican

Republic with impunity. The IJ’s finding was also tethered

to the generalized evidence in the country reports concerning

systemic corruption in law enforcement and the Dominican

government’s registration policy for returning criminal 7 deportees. However, as noted above, the BIA did not assess

this evidence before deeming the IJ’s finding unsupported

and, thereby, substituted its own view of the facts.

Lastly, we reject the BIA’s assertion that the IJ applied

an incorrect standard for CAT relief. The statement

excerpted by the BIA in a footnote, when read in context,

clearly reflects application of the more likely than not

standard.

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s order is VACATED, and case is REMANDED for

further proceedings consistent with this order. As we have

completed our review, the pending motion for a stay of removal

in this petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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