Blake v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: June 5, 2023
• Docket: 22-6338
• Status: Unpublished

Opinion

22-6338 Blake v. Garland BIA Reid, IJ A086 979 655

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 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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 5th day of June, two thousand twenty- 4 three. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 SUSAN L. CARNEY, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 ANTHONY ROHAN O’NEIL BLAKE, 14 Petitioner, 15 16 v. 22-6338 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Thomas H. Nooter, Freeman, Nooter & 24 Ginsberg, New York, NY. 1 FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 2 Attorney General; Shelley R. Goad, Assistant 3 Director; Jennifer A. Singer, Trial Attorney, 4 Office of Immigration Litigation, United 5 States Department of Justice, Washington, 6 DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of

8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,

9 AND DECREED that the petition for review is GRANTED.

10 Petitioner Anthony Rohan O’Neil Blake, a native and citizen of Jamaica,

11 seeks review of a July 1, 2022 decision of the BIA affirming a January 20, 2022

12 decision of an Immigration Judge (“IJ”) denying his application for deferral of

13 removal under the Convention Against Torture (“CAT”). In re Anthony Rohan

14 O’Neil Blake, No. A 086 979 655 (B.I.A. Jul. 1, 2022), aff’g No. A 086 979 655

15 (Immig. Ct. N.Y. City Jan. 20, 2022). We assume the parties’ familiarity with the

16 underlying facts and procedural history.

17 We have reviewed both the IJ’s and the BIA’s opinions “for the sake of

18 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

19 2006). “[W]e apply the substantial evidence standard to questions of fact raised

20 in [Blake’s] . . . CAT challenge[ ], and de novo review to all questions of law,

21 including the application of law to facts.” Quintanilla-Mejia v. Garland, 3 F.4th 2 1 569, 583 (2d Cir. 2021); see also Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020). 1

2 Under the substantial evidence standard, “we must uphold agency factfinding

3 ‘unless any reasonable adjudicator would be compelled to conclude to the

4 contrary.’” Quintanilla-Mejia, 3 F.4th at 583 (emphasis omitted) (quoting 8 U.S.C.

5 § 1252(b)(4)(B)).

6 An applicant for CAT relief bears the burden of “establish[ing] that it is

7 more likely than not that he . . . would be tortured if removed to the proposed

8 country of removal.” 8 C.F.R. § 1208.16(c)(2); see also id. § 1208.17(a) (setting forth

9 standards under which deferral of removal under CAT “shall be granted”). “To

10 qualify as torture, actions must be ‘inflicted by or at the instigation of or with the

11 consent or acquiescence of a public official or other person acting in an official

12 capacity.’” Nasrallah, 140 S. Ct. at 1688 n.1 (quoting 8 C.F.R. § 1208.18(a)(1)

13 (2019)). “Acquiescence of a public official requires that the public official, prior

14 to the activity constituting torture, have awareness of such activity and thereafter

15 breach his or her legal responsibility to intervene to prevent such activity.”

1The jurisdictional limitation on our review of removal orders based on criminal grounds (8 U.S.C. § 1252(a)(2)(C)), does not apply to review of CAT claims. See Nasrallah, 140 S. Ct. at 1689–92.

3 1 8 C.F.R. § 1208.18(a)(7) 2; Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004)

2 (“[T]orture requires only that government officials know of or remain willfully

3 blind to an act and thereafter breach their legal responsibility to prevent it.”); see

4 also Quintanilla-Mejia, 3 F.4th at 592 (same in substance). When a petitioner

5 alleges a fear of gang violence if removed, the BIA, in considering the state-action

6 element, must consider whether it is more likely than not that “any public

7 official, or any other person, including low-level local police officers, when acting

8 under color of law, will participate or acquiesce in harm that the gang is likely to

9 inflict and that is recognized as torture.” Garcia-Aranda v. Garland, 53 F.4th 752,

10 761 (2d Cir. 2022). Evidence of some government efforts to prevent violence

11 neither precludes nor compels a finding of acquiescence; “[r]ather, it invites

12 careful factfinding.” Quintanilla-Mejia, 3 F.4th at 593.

13 The agency first concluded that Blake testified credibly and had

14 demonstrated it was more likely than not that he would be tortured by gang

2It is not clear from the record what version of the relevant regulations was applied by the agency. Certified Administrative Record (“CAR”) at 3–5, 144, 147, 149. The current version, which went into effect on January 11, 2021—before the agency’s decisions in this case—provides a more extensive definition of acquiescence than did the earlier version. On remand, the agency should identify the version it chooses to apply and state the legal authority for its choice. 4 1 members in Jamaica because of his assistance to law enforcement in the United

2 States. It then denied relief, however, determining that he failed to establish that

3 Jamaican authorities would consent or acquiesce to his torture. We now remand

4 for two reasons: first, because the agency erred in requiring evidence that a

5 specific official would be complicit or would acquiesce to Blake’s torture, and

6 second, because the agency did not sufficiently explain why evidence of some

7 government efforts to combat gang violence reasonably allowed the agency to

8 discount so completely Blake’s evidence that Jamaican authorities would be

9 unwilling to help someone in Blake’s situation and may even participate in

10 violence against him on behalf of gangs.

11 As to the first error, the IJ distinguished Blake’s situation from that

12 presented in De La Rosa v. Garland, 598 F.3d 103 (2d Cir. 2010), as follows: “In De

13 La Rosa, the individual who was looking to kill the respondent had a brother who

14 was a government official in the Dominican Republic and was able to recognize

15 the respondent.” CAR at 148 (IJ Dec.). The IJ then faulted Blake for failing to

16 submit evidence demonstrating that “specific government officials in Jamaica . . .

17 would consent or acquiesce[] in [his] torture.” Id. (emphasis added). The BIA’s

18 statements reenforce this reading of the agency’s position. It wrote that Blake

5 1 had “not provided sufficient evidence to establish that it is more likely than not

2 that he would be singled out for torture by or with the consent or acquiescence . .

3 . of a public official.” Id. at 4 (BIA Dec.). Indeed, the BIA explicitly distinguished

4 Blake’s case from De La Rosa in similar fashion: it wrote, “Here, unlike in De La

5 Rosa, the respondent has not provided any specific evidence that any public

6 official is or would be complicit in any potential harm.” Id. at 5.

7 Properly read, however, De La Rosa does not mandate evidence of

8 acquiescence by a specific official. In De La Rosa, the agency found that the

9 petitioner’s likely attacker had contacts in the Dominican government, that the

10 government and police suffered widespread corruption and infiltration by

11 criminals, and that the government lacked the resources to prevent his murder.

12 See 598 F.3d at 109–10. “Despite this array of factual findings,” we wrote on

13 review, the agency concluded that, because some government officials had made

14 efforts to prevent his torture, De La Rosa failed to show that the Dominican

15 government would acquiesce in his torture. Id. at 110. We therefore remanded

16 to allow the BIA to address further whether “a government may [be found to]

17 acquiesce to a person’s torture where (1) some officials attempt to prevent that

18 torture (2) while other officials are complicit, and (3) the government is

6 1 admittedly unable to actually prevent the torture from taking place.” Id. at 110–

2 11 (emphasis added). Thus, our decision to remand did not turn on the fact that

3 De La Rosa had identified a specific official who would be complicit; we merely

4 noted that as one factor tending to establish potential government acquiescence

5 in that case. See id. at 109–10. In sum, evidence of targeting by a specific official

6 is not required to find the government acquiescence necessary to obtain CAT

7 relief; rather, the question is whether acquiescence of any official is more likely

8 than not.

9 Our more recent decision in Garcia-Aranda further explicates this

10 requirement. In Garcia-Aranda, a Honduran citizen sought relief under CAT on

11 the theory that, if she were removed to Honduras, the Mara 18 gang would likely

12 subject her to harm cognizable as torture, and Honduran authorities would

13 acquiesce or consent to such torture. 53 F.4th at 760. The record reflected that on

14 one occasion in the past, Garcia-Aranda and her family had been kidnapped and

15 held captive by the Mara 18 gang, and that a local police officer participated in

16 some capacity in the kidnapping. Id. at 755. The agency denied relief, “fault[ing]

17 Garcia-Aranda for failing to show . . . that ‘the police officer in question or any

18 Honduran official has an interest in torturing [her] at this time.’” Id. at 760

7 1 (quoting the BIA decision) (emphasis by the Garcia-Aranda Court). We reversed,

2 observing that the BIA had “fatally erred” in adopting such a standard. Id. We

3 held that the relevant analysis was “whether it is likely that the Mara 18 gang has

4 an interest in torturing Garcia-Aranda at this time and whether it is likely that

5 any member of the local police who is acting under color of law will participate in, or

6 acquiesce in, that conduct.” Id. at 760–61 (emphasis in original).

7 The agency’s second error was its failure to sufficiently explain why, in its

8 view, evidence of some government efforts to combat gang violence so

9 completely outweighed Blake’s country conditions evidence that Jamaican

10 authorities would not help someone in Blake’s situation, and his evidence that

11 they may even participate in the violence against him. In arguing that

12 substantial evidence supports the agency’s conclusions, the Government relies

13 on Quintanilla-Mejia. In Quintanilla-Mejia, we held that the record evidence

14 “supports the agency’s finding that [a] government is aggressively trying to

15 combat gang violence, even through armed confrontations,” and accordingly, we

16 could not conclude “that the agency was compelled to find it likely that . . . [a]

17 country’s officials would acquiesce in [the petitioner’s] torture by gang

18 members.” 3 F.4th at 593. As noted above, however, we also cautioned that such

8 1 evidence neither compels nor precludes a finding of acquiescence; “[r]ather, it

2 invites careful factfinding.” 3 F.4th at 593.

3 We identify critical differences between Blake’s situation and that before

4 the court in Quintanilla-Mejia. There, the petitioner alleged past attempts on his

5 life but “offered no evidence to show that [government] officials were aware of

6 past gang attacks on his life.” Id. Further, the record reflected that government

7 officials “would not turn a blind eye to harm of the respondent by gang

8 members.” Id. at 592. Blake, in contrast, presented expert testimony that it

9 “would be foolhardy” for him to seek protection from the Jamaican police

10 because it would put his life at further risk; Blake’s expert testified that Jamaican

11 police would interview him upon his return to the country, and that they would

12 be less likely to assist him given his criminal record in the United States. In

13 addition, the record showed that Blake’s father unsuccessfully tried to report an

14 incident in which a man pushed him off a bicycle and stole his necklace, the man

15 claiming to do so because Blake was an informant. CAR at 196, 215–16. The

16 agency here failed to explain how its acquiescence analysis took due account of

17 these parts of the record. See Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir. 2020)

18 (remanding when the agency failed to give “reasoned consideration to all

9 1 relevant evidence and all principles of law applicable to determining

2 government acquiescence in . . . torture”).

3 Notwithstanding Blake’s evidence of troubling country conditions, the

4 agency discounted this showing in favor of evidence that “the Jamaican

5 government is making an effort to combat gang violence and police corruption.”

6 CAR at 4. Regarding that effort, the IJ noted that Jamaica’s Independent

7 Commission of Investigations (“INDECOM”) had investigated police abuses;

8 Jamaican law enforcement had received training from the United States and

9 other countries; the Jamaican government had intensified efforts to disrupt drug

10 shipments; and law enforcement had increased identification, apprehension, and

11 prosecution of gang members. The IJ’s observations, however, were not

12 accompanied by any data reflecting the effectiveness of these efforts: to the

13 contrary, data in the record reflected an increase in murders, shootings, and

14 numbers of gangs from 2018 to 2019—the years leading up to these INDECOM

15 statements. CAR at 267–68, 272.

16 As the agency acknowledged, the record also established that some

17 Jamaican law enforcement officers are linked to gangs; some officers participate

18 in gang killings; the Jamaican police generally do not protect criminal deportees

10 1 from gang-affiliated killers; gangs commit crimes openly and with impunity in

2 Jamaica; government corruption and accountability is a serious problem in

3 Jamaica; and only five to eight percent of murders in Jamaica result in a

4 conviction. In a similar vein, the State Department Report on which the IJ relied

5 advised that “INDECOM remained one of the few external and independent

6 oversight commissions that monitored security forces, but reported it was unable

7 to investigate each case thoroughly due to manpower limitations and significant

8 delays by police.” U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab.,

9 Jamaica 2020 Human Rights Report 3 (2021). 3 The State Department further

10 reported that “[t]he government did not take sufficient action to address abuse

11 and unlawful killings by security forces”; it “has mechanisms to investigate and

12 punish abuse, but they were not always employed”; and “[f]ewer than 10 percent

13 of the investigations of abuse resulted in recommendations for disciplinary

14 action or criminal charges.” Id.

15 In sum, the IJ failed adequately to explain how some evidence suggesting

16 increased efforts by some government actors to combat gang violence and police

3 Available at https://www.state.gov/wp-content/uploads/2021/03/JAMAICA-2020- HUMAN-RIGHTS-REPORT.pdf. 11 1 corruption “overr[ode] both the complicity of other government actors and the

2 general corruption and ineffectiveness of the [Jamaican] government in

3 preventing unlawful killings.” De La Rosa, 598 F.3d at 110.

4 For the foregoing reasons, the petition for review is GRANTED, the BIA’s

5 decision is VACATED, and the case is REMANDED for further proceedings

6 consistent with this order. All pending motions and applications are DENIED

7 and stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, 10 Clerk of Court