18-3099 Charles v. Garland BIA Straus, IJ A074 917 669 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.

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 17th day of March, two thousand twenty-one.

PRESENT: JOSÉ A. CABRANES, REENA RAGGI, SUSAN L. CARNEY, Circuit Judges. _____________________________________

LEO FELIX CHARLES, Petitioner,

v. 18-3099 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. 1 _____________________________________

FOR PETITIONER: Dalia H. Fuleihan, Immigrant Justice Corps Fellow, New Haven Legal Assistance Association, New Haven, CT.

1The Clerk of Court is respectfully directed to amend the caption as set forth above. FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Ilana J. Snyder, Trial Attorney, Office of Immigration Litigation, U.S. 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 DENIED.

Petitioner Leo Felix Charles, a native and citizen of

Haiti, seeks review of a decision of the BIA affirming an

Immigration Judge’s (“IJ”) denial of deferral of removal

under the Convention Against Torture (“CAT”) following the

reopening of proceedings and termination of a prior grant of

CAT relief. See In re Leo Felix Charles, No. A 074 917 669

(B.I.A. Oct. 3, 2018), aff’g No. A 074 917 669 (Immig. Ct.

Hartford Feb. 22, 2018). We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales,

(2d

Cir. 2005). An applicant for CAT deferral must “establish

that it is more likely than not that he . . . would be tortured

2 if removed to the proposed country of removal.”

(c)(2), 1208.17(a). “Torture is defined as any act

by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person . . . by, or at the

instigation of, or with the consent or acquiescence of, a

public official or other person acting in an official

capacity.”

(a)(1). We review the denial

of CAT relief “under the deferential substantial-evidence

standard.” Nasrallah v. Barr,

, 1692–93

(2020).

The agency concluded that Charles’s fear of torture based

on his status as a criminal deportee with health issues was

too speculative to warrant relief. That conclusion is

supported by substantial evidence before the agency

reflecting that criminal deportees are no longer subject to

mandatory detention upon arrival in Haiti. Further, the

absence of medical care does not reflect a specific intent to

torture. See Pierre v. Gonzales,

, 116–19 (2d

Cir. 2007).

Moreover, the agency also reasonably concluded that

Charles had not shown he would more likely than not be

3 tortured because of his cooperation with law enforcement in

a murder investigation that involved a Haitian drug-

trafficker with connections in Haiti. Charles failed to

corroborate his claim that the Haitian drug-trafficker had

connections to the Haitian government, and the agency was not

required to defer to Charles’s testimony. Contrary to

Charles’s arguments, the agency was not required to make a

credibility determination. The statute accounts for cases

in which the IJ does not make such a determination by

providing for “a rebuttable presumption of credibility on

appeal.” 8 U.S.C. § 1229a(c)(4)(C). And the agency may

weigh testimony with other evidence and consider whether the

applicant has demonstrated “facts sufficient to demonstrate

that the applicant has satisfied the applicant’s burden of

proof.” Id. § 1229a(c)(4)(B), (C). We generally defer to

the agency’s weighing of evidence. See Y.C. v. Holder,

(2d Cir. 2013).

Given that Charles has not had contact with this drug-

trafficker in almost two decades, the trafficker will remain

incarcerated in the United States until 2027, and there is no

objective record evidence that the trafficker, or anyone to

4 whom he is related, is involved in the Haitian government and

has the intent and ability to torture Charles, the agency

reasonably found Charles had not met his burden of proving

that he would more likely than not be tortured at the

trafficker’s behest by or with the acquiescence of the Haitian

government. See Khouzam v. Ashcroft,

(2d

Cir. 2004) (“[T]orture requires . . . that government

officials know of or remain willfully blind to an act and

thereafter breach their legal responsibility to prevent

it.”); Jian Xing Huang v. INS,

(2d Cir.

2005) (“In the absence of solid support in the record . . .

[an applicant’s] fear is speculative at best.”).

Finally, Charles argues that the IJ violated due process

by overlooking evidence that supports his claims. However,

he relies on evidence that was not presented to the agency,

contending that IJ should have found and presented this

evidence as part of his duty to develop the record. Although

“the IJ has an affirmative obligation to help establish and

develop the record,” in proceedings involving pro se aliens,

Secaida-Rosales v. INS,

(2d Cir. 2003), the

IJ is not required to introduce evidence favorable to either

5 party, see 8 U.S.C. § 1229a(b)(1) (listing IJ’s authority to

“receive evidence, and interrogate, examine, and cross-

examine” and that the IJ “may issue subpoenas for the

attendance of witnesses and presentation of evidence”).

Moreover, the IJ considered the recent State Department

reports in the record. Cf. Qun Yang v. McElroy,

, 162–64 (2d Cir. 2002) (remanding for consideration of

current country conditions given delay between IJ’s and BIA’s

decision). Accordingly, Charles has not shown that he “was

denied a full and fair opportunity to present” his claim.

Burger v. Gonzales,

(2d Cir. 2007).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

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