Berinston Spencer v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BERINSTON LORIEN SPENCER, AKA No. 18-73095 Llewelyn Cole, Agency No. A028-445-915 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Berinston Lorien Spencer, a native and citizen of Jamaica, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s decision denying relief under the Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). review for substantial evidence the agency’s factual findings. Sanjaa v. Sessions,

863 F.3d 1161, 1164 (9th Cir. 2017). We grant the petition for review and remand.

In denying Spencer’s deferral of removal under CAT claim, it is unclear

from the record whether the agency considered the risk of torture by actors other

than the individuals who previously attacked Spencer, where Spencer testified that

he will be tortured or killed by anyone who learns of his sexual orientation in

Jamaica, including the police, and where there is potentially dispositive record

evidence supporting Spencer’s testimony. See Cole v. Holder, 659 F.3d 762, 772

(9th Cir. 2011) (“[W]here potentially dispositive testimony and documentary

evidence is submitted, the BIA must give reasoned consideration to that

evidence.”); Bromfield v. Mukasey, 543 F.3d 1071, 1078 (9th Cir. 2008) (in

evaluating a CAT claim, “the agency must consider ‘all evidence relevant to the

possibility of future torture,’ including the Country Report, which establishes that

gay men are victims of beatings, killings, and other forms of torture.” (citation

omitted)); see also Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013)

(remanding for agency to consider all evidence in assessing likelihood of torture).

Thus, we grant the petition for review and remand Spencer’s CAT claim to the

agency for further proceedings consistent with this disposition. See INS v.

2 18-73095 Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

We do not reach Spencer’s remaining contentions. See Recinos De Leon v.

Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (“We may affirm the [agency] only

on grounds set forth in the opinion under review.”).

The government shall bear the costs for this petition for review.

PETITION FOR REVIEW GRANTED; REMANDED.

3 18-73095