Alexander v. Whitaker
Alexander v. Whitaker
Opinion
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 18
7
Reference
- Status
- Unpublished