17-1013 Hamilton v. Whitaker BIA Clemente, IJ A074 986 838 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 BARRINGTON D. PARKER, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 IAN D. HAMILTON, AKA UNCLE 14 UNKNOWN, 15 Petitioner, 16 17 v. 17-1013 18 NAC 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Thomas H. Nooter, Freeman Nooter 25 & Ginsberg, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Douglas E. 29 Ginsburg, Assistant Director; Erik 30 R. Quick, Trial Attorney, Office 31 of Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is GRANTED.

5 Petitioner Ian D. Hamilton, a native and citizen of

6 Jamaica, seeks review of an April 5, 2017, decision of the

7 BIA affirming a November 9, 2016, decision of an Immigration

8 Judge (“IJ”) denying Hamilton’s application for deferral of

9 removal under the Convention Against Torture (“CAT”). In re

10 Ian D. Hamilton, No. A 074 986 838 (B.I.A. Apr. 5, 2017),

11 aff’g No. A 074 986 838 (Immig. Ct. N.Y. City Nov. 9, 2016).

12 We assume the parties’ familiarity with the underlying facts

13 and procedural history in this case, which we include only as

14 necessary to explain our decision to grant the petition for

15 review.

16 Under the circumstances of this case, we have reviewed

17 both the IJ’s and BIA’s decisions “for the sake of

18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448

(2d Cir. 2006). We assume Hamilton’s

20 credibility because neither the IJ nor the BIA discussed

21 credibility at any point.

(b)(1)(B)(iii)

2 1 (“[I]f no adverse credibility determination is explicitly

2 made, the applicant or witness shall have a rebuttable

3 presumption of credibility on appeal.”). Hamilton’s

4 convictions limit our review to constitutional claims and

5 questions of law.

(a)(2)(C), (D); Ortiz-

6 Franco v. Holder,

(2d Cir. 2015)

7 (jurisdiction-stripping provision in § 1252(a)(2)(C)

8 applies to CAT deferral). Although the jurisdictional

9 limitation in § 1252(a)(2)(C) generally prevents us from

10 reviewing the agency’s factual determinations regarding the

11 likelihood of torture, Ortiz-Franco,

-91 &

12 n.2, remand is warranted based on the questions of law

13 discussed below.

14 Standard for CAT Relief

15 “[T]he CAT expressly prohibits the United States from

16 returning any person to a country in which it is more

17 likely than not that he or she would be in danger of being

18 subjected to torture.” Khouzam v. Ashcroft,

,

19 168 (2d Cir. 2004) (quotation marks omitted). Torture is

20 defined as “severe pain or suffering . . . inflicted by or

21 at the instigation of or with the consent or acquiescence

3 1 of a public official or other person acting in an official

2 capacity.”

(a)(1). Acquiescence, in

3 turn, “requires that the public official, prior to the

4 activity constituting torture, have awareness of such

5 activity and thereafter breach his or her legal

6 responsibility to intervene to prevent such activity.” 8

(a)(7); see Khouzam,

8 (holding that acquiescence “requires only that government

9 officials know of or remain willfully blind to an act and

10 thereafter breach their legal responsibility to prevent

11 it”). The agency must consider “all evidence relevant to

12 the possibility of future torture,” including “[e]vidence

13 of past torture,” evidence regarding the possibility of

14 internal relocation, “[e]vidence of gross, flagrant, or

15 mass violations of human rights,” and “[o]ther relevant

16 information regarding conditions in the country of

17 removal.”

(c)(3)(i)-(iv).

18 Retaliation by Drug Traffickers 19 20 Although the jurisdictional limitations preclude our

21 review of the agency’s factual findings, we review whether

22 the agency committed legal error in its consideration of the

4 1 evidence. See Mendez v. Holder,

(2d Cir.

2 2009); Ortiz-Franco,

n.2. “We readily

3 acknowledge that the agency does not commit an ‘error of law’

4 every time an item of evidence is not explicitly considered

5 or is described with imperfect accuracy, but where, as here,

6 some facts . . . have been totally overlooked and others have

7 been seriously mischaracterized, we conclude that an error of

8 law has occurred.” Mendez,

. In concluding

9 that Hamilton’s fear of the drug traffickers he helped to

10 convict was “purely speculation and conjecture,” the IJ

11 overlooked evidence that associates of these drug traffickers

12 firebombed both Hamilton’s family’s business and residence in

13 2014, apparently in retaliation for Hamilton’s cooperation

14 with the U.S. government. The IJ’s statement that Hamilton’s

15 “brothers live in Jamaica and they have no issues,” is also

16 incorrect for this same reason: it fails to acknowledge the

17 two firebombings and contradicts Hamilton’s testimony and

18 affidavits that his mother and one brother moved to the United

19 States because of the threats, while his father and other

20 brother remained in Jamaica because they did not have U.S.

21 visas, but feared for their lives and moved from place to

5 1 place to avoid the perpetrators.1

2 Hamilton also argues that the agency must consider the

3 aggregate risk of torture and did not do so in his case. We

4 agree. We have held that past incidents of harm must be

5 weighed cumulatively in the asylum context, Poradisova v.

6 Gonzales,

(2d Cir. 2005), and other courts

7 have applied this principle to CAT relief, holding that the

8 risk of torture must be assessed cumulatively, see Cole v.

9 Holder,

(9th Cir. 2011); Kamara v. Att’y

10 Gen.,

(3d Cir. 2005). The CAT regulations

11 further support this argument by requiring the agency to

12 consider “all evidence relevant to the possibility of future

13 torture.”

(c)(3).

14 Hamilton was a member of a drug trafficking organization

15 that transported large quantities of marijuana from Jamaica

16 to the United States. He provided incriminating information

17 about two co-defendants, who were members of the same

18 organization and who allegedly had political connections and

19 ties to powerful gang leaders in Jamaica. He testified in

20 open court against another member of the organization; he was

1 Hamilton’s father died in December 2014. 6 1 “pivotal” in securing that conviction. In total, he gave

2 U.S. authorities information about 13 people involved in drug

3 trafficking. Another member of the organization allegedly

4 threatened Hamilton in New York and orchestrated the arsons

5 of Hamilton’s family’s business and residence in Jamaica.

6 The individual he testified against allegedly employed

7 Jamaican police officers who served as enforcers or hitmen to

8 “take care of his problem[s]” in Jamaica. The IJ discussed

9 each of these people separately and concluded that Hamilton’s

10 fear of each was speculative, but the IJ did not acknowledge

11 their relationships with one another (as members of the same

12 drug trafficking organization) or their associates and

13 relatives in Jamaica.2

14 Given the other evidence in the record that bolsters

15 Hamilton’s claim—the Government’s sentencing letter

16 reflecting that Hamilton could be in danger for his

17 cooperation, and the expert and country reports documenting

18 both the power and violence of Jamaican drug traffickers

2The IJ’s statement that one of the co-defendants may be a U.S. citizen is contradicted by the record, which reflects that he lacks legal status in the United States and faces mandatory removal to Jamaica on account of his involvement in drug trafficking. 7 1 and extensive government corruption and participation in

2 drug trafficking—the IJ’s failure to fully consider the

3 arsons or weigh the risks Hamilton faced cumulatively is

4 material.

5 Government Acquiescence

6 Further, the agency did not adequately explain its

7 acquiescence determination and may have misapplied the legal

8 standard for government acquiescence. See Xiao Ji Chen v.

9 U.S. Dep’t of Justice,

(2d Cir. 2006) (the

10 agency commits legal error if its decision is made “without

11 rational justification” or is “based on a legally erroneous

12 standard.”). We have held:

13 Where a government contains officials that would be 14 complicit in torture, and that government, on the 15 whole, is admittedly incapable of actually 16 preventing that torture, the fact that some 17 officials take action to prevent torture would seem 18 neither inconsistent with a finding of government 19 acquiescence nor necessarily responsive to the 20 question of whether torture would be “inflicted by 21 or at the instigation of or with the consent or 22 acquiescence of a public official or other person 23 acting in an official capacity.”. 24 25 De La Rosa v. Holder,

(2d Cir. 2010)

26 (quoting Article 1, U.N.T.S. 85 (CAT)).

27 The agency’s acquiescence determination relied entirely

8 1 on the police response to the 2014 arson of Hamilton’s

2 family’s business, which was unsuccessful because

3 Hamilton’s family members did not cooperate in prosecuting

4 the person arrested for the crime. However, the IJ did not

5 acknowledge Hamilton’s explanation that his family members

6 dropped the charges out of a fear that the Jamaican

7 government could not protect them from further retaliation.

8 Nor did the IJ explain how this police response outweighed

9 Hamilton’s testimony that several Jamaican police officers

10 worked as drug couriers and hitmen for the drug trafficking

11 organization he feared, or the evidence in the record of

12 police officers’ and elected officials’ ties to organized

13 crime and an inability or unwillingness to curb violence,

14 including retaliation against witnesses in criminal

15 prosecutions.

16 Because the IJ overlooked the 2014 arsons when he found

17 that Hamilton’s fear of retaliation by the drug traffickers

18 was speculative, failed to consider the threats against

19 Hamilton in the aggregate, and may have misapplied the legal

20 standard for acquiescence by relying solely on Hamilton’s

21 relatives’ refusal to prosecute the arson, we remand for the

9 1 agency to more fully assess the record and explain its

2 decision. See Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006) (finding that the “IJ . . . did

4 not evaluate, or even meaningfully acknowledge” testimony and

5 evidence favorable to the petitioner, “and we must therefore

6 give the IJ [an] opportunity to do so”).

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, the 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 18

10