Barwari v. Mukasey

258 F. App'x 383
Court of Appeals for the Second Circuit·Decided December 26, 2007·No. No. 06-3238-ag·Published·Cited by 1 cases

Opinion

SUMMARY ORDER

Petitioner Amira Qadir Barwari, a citizen of Iraq, seeks review of a June 20, 2006 order of the Board of Immigration Appeals (“BIA”), affirming the March 4, 2005 decision of Immigration Judge (“IJ”) Philip J. Montante, Jr., denying her application for asylum, withholding 20 of removal, and relief under the Convention Against Torture (“CAT”). In re Amira Qadir Barwari, No. A76 280 814 (B.I.A. June 20, 2006) aff'g No. A76 280 814 (Immig. Ct. N.Y. City March 4, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

The only issue sufficiently presented to this Court in Barwari’s supplemental brief is whether the IJ improperly denied CAT relief. Generally, issues not sufficiently argued in the briefs are considered waived and will not be addressed on appeal. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). However, because the asylum and withholding of removal claims were presented in Barwari’s first brief, were presented to the BIA, and were premised on the same factual predicate underlying her CAT claim, for which, as discussed below, remand is ordered, the BIA should consider these claims on remand as well. Cf. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); LNC Invs., Inc. v. Nat’l Westminster Bank, N.J., 308 F.3d 169, 176 n. 8 (2d Cir.2002) (“[W]e no doubt have the power to address an argument despite its abandonment on appeal.”).

Moreover, contrary to the government’s contention, we may review Barwari’s CAT claim, as it was sufficiently exhausted below. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (holding that each category of relief must be raised on appeal to the BIA). Although Barwari did not analyze the CAT claim separately from her claims of asylum and withholding of removal, in her appeal to the BIA she explicitly stated numerous times that she feared torture or death if returned to Iraq and claimed that the IJ had erred by finding otherwise. Moreover, she sufficiently raised the argument that the torture or death she feared was at the hands of entities beyond the government’s control.

When, as here, the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact, see, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003), but review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Manzur v. U.S. Dept. of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, where, as here, the agency’s reasoning or its fact-finding process was sufficiently flawed, we vacate and remand for further proceedings. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005).

Barwari contends that the IJ applied an improper legal standard by find[385] ing that she was not entitled to relief on the ground that she feared torture by entities beyond the government’s control. The regulations provide that relief under the CAT is limited to those individuals who fear torture “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.” 8 C.F.R. § 1208.18(a)(1). This Court has addressed this i-equirement and held that, “torture 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, 361 F.3d 161, 171 (2d Cir.2004). The IJ in this case correctly cited to 8 C.F.R. § 1208.18(a)(1); however, the IJ went on to cite Matter of S-V-, 22 I. & N. Dec. 1306 (B.I.A.2000) for the proposition that “protection does not extend to persons who fear entities that a government is unable to control.” This statement is contrary to Khouzam’s holding that rogue police officers are capable of carrying out torture for CAT purposes even when acting outside of their official capacities. 361 F.3d at 171; see also Delgado v. Mukasey, 508 F.3d 702, 709-10 (2d Cir.2007); Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1196 (9th Cir.2003) (“disapprov[ing]” of SV- on this point).

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Barwari v. Mukasey, 258 F. App'x 383 (2d Cir. 2007).

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