19-3697 McDonald v. Barr BIA Conroy, IJ A043 401 844 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 10th day of August, two thousand twenty. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KINGSLEY JUNIOR MCDONALD, AKA 14 KINGSLEY MCDONALD, 15 Petitioner, 16 17 v. 19-3697 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Craig Relles, Esq., White Plains, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Melissa Neiman- 29 Kelting, Assistant Director; 30 Giovanni B. Di Maggio, Trial 31 Attorney, Office of Immigration 32 Litigation, United States 33 1 Department of Justice, Washington, 2 DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

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

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

7 is GRANTED.

8 Petitioner Kingsley Junior McDonald, a native and citizen

9 of Jamaica, seeks review of an October 9, 2019 decision of

10 the BIA affirming a November 5, 2018 decision of an

11 Immigration Judge (“IJ”) denying protection under the

12 Convention Against Torture (“CAT”). In re Kingsley Junior

13 McDonald, No. A043 401 844 (B.I.A. Oct. 9, 2019), aff’g No.

14 A043 401 844 (Immig. Ct. N.Y.C. Nov. 5, 2018). We assume the

15 parties’ familiarity with the underlying facts and procedural

16 history.

17 We have reviewed both the IJ’s and the BIA’s opinions

18 “for the sake of completeness.” Wangchuck v. Dep’t of

19 Homeland Sec.,

(2d Cir. 2006). Although

20 our jurisdiction to review a final order of removal is limited

21 to constitutional claims and questions of law when, as here,

22 the noncitizen is removable for having committed certain

23 criminal offenses, that limitation does not apply to our

24 review of agency orders denying CAT relief. See Nasrallah

2 1 v. Barr,

(2020). The applicable

2 standards of review are well established. See Manning v.

3 Barr,

, 484 (2d Cir. 2020) (reviewing questions

4 of law de novo and factual findings for substantial evidence).

5 The agency erred in finding that, although a Jamaican gang

6 likely specifically intends to torture McDonald, he did not

7 establish that the Jamaican government would likely

8 acquiescence to his torture.

9 To be eligible for CAT relief, an applicant is required

10 to show that he would “more likely than not” be tortured by

11 or with the acquiescence of government officials. See

12

(c), 1208.17(a), 1208.18(a)(1); Khouzam v.

13 Ashcroft,

, 170–71 (2d Cir. 2004). “A private

14 actor’s behavior can constitute torture under the CAT without

15 a government’s specific intent to inflict it if a government

16 official is aware of the persecutor’s conduct and intent and

17 acquiesces in violation of the official’s duty to intervene.”

18 Pierre v. Gonzales,

(2d Cir. 2007).

19 Therefore, “[i]n terms of state action, torture requires only

20 that government officials know of or remain willfully blind

21 to an act and thereafter breach their legal responsibility to

22 prevent it.” Khouzam,

. “Where a government

23 contains officials that would be complicit in torture, and 3 1 that government, on the whole, is admittedly incapable of

2 actually preventing that torture, the fact that some

3 officials take action to prevent the torture . . . [is]

4 neither inconsistent with a finding of government

5 acquiescence nor necessarily responsive to the question of

6 whether torture would be inflicted by or at the instigation

7 of or with the consent or acquiescence of a public official

8 or other person acting in an official capacity.” De La Rosa

9 v. Holder,

(2d Cir. 2010) (internal

10 quotation marks omitted).

11 The agency did not adequately explain its conclusion that

12 McDonald failed to show likely government acquiescence. It

13 observed that police had opened an investigation into his

14 father’s murder by gangs in Jamaica and provided protection

15 at his father’s funeral, reasoning from those observations

16 that the police would not likely acquiesce in the gang’s

17 torture of McDonald. But the record does not establish that

18 the police actually conducted an investigation or that the

19 murder was solved. More importantly, the IJ found that

20 McDonald cannot safely report to police the threat posed to

21 him by the gang that killed his father because the Jamaican

22 government and police force are closely linked with the gang.

23 Neither the IJ nor the BIA evaluated how this apparent 4 1 government complicity would likely bear on the government’s

2 acquiescence in the gang’s prospective assaults on McDonald

3 were he to be removed to Jamaica. See De La Rosa,

; see also Scarlett v. Barr,

, 336 (2d Cir.

5 2020) (remanding when the agency failed to give “reasoned

6 consideration to all relevant evidence and all principles of

7 law applicable to determining government acquiescence in . .

8 . torture”). If it is too dangerous for McDonald to report

9 his likely torture by a gang to Jamaican police, it would

10 seem that government officials, through their ties with the

11 gang, have chosen to remain willfully blind to the threat

12 that gang poses. In light of this apparent inconsistency in

13 the agency’s reasoning, we remand for clarification, for

14 additional analysis, and for a more reasoned determination.

15 See De La Rosa,

; Scarlett, 957 F.3d at 336.

16 For the foregoing reasons, the petition for review is

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

18 to the BIA. All pending motions and applications are DENIED

19 and stays VACATED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

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