Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit
No. 21-2002
G.P.,
Petitioner,
v.
MERRICK B. GARLAND, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Gelpí, Howard, and Thompson, Circuit Judges.
SangYeob Kim, with whom Gilles Bissonnette, American Civil Liberties Union of New Hampshire, and New Hampshire Immigrants' Rights Project, were on brief for petitioner. Jennifer P. Lyon, Courtney H.G. Herz, and Sheehan Phinney Bass & Green, PA on brief for New Hampshire Legal Assistance and the University of Maine School of Law Refugee and Human Rights Clinic, amici curiae. Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Cooley LLP on brief for Former Immigration Judges and Former Members of the Board of Immigration Appeals, amici curiae. Kristin Macleod-Ball and Trina Realmuto on brief for the National Immigration Litigation Alliance, Center for Gender & Refugee Studies, and Political Asylum/Immigration Representation Project, amici curiae. Richard Kelley, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, were on brief for respondent.
July 13, 2023 GELPÍ, Circuit Judge. Petitioner G.P.1 seeks review of
the Board of Immigration Appeals' ("BIA") decision affirming the
denial of his application for protection under the Convention
Against Torture ("CAT"). We first address our jurisdiction to
hear this matter before turning to the merits. Ultimately, because
the immigration judge's ("IJ") decisions -- giving limited weight
to the expert witness testimony and disregarding the expert's
opinion that G.P. faced a high risk of torture -- were not
supported by substantial evidence, we grant G.P.'s petition, and
thus vacate and remand for further proceedings consistent with
this opinion. As such, we limit our discussion of G.P.'s
additional claims accordingly.
I. Background
A. G.P.'s Presence in the United States
G.P., a native and citizen of the Dominican Republic,
first entered the United States without inspection in 1993. He
was subsequently convicted of trafficking cocaine, served a
seventeen-year prison sentence, and was removed to the Dominican
Republic in 2011. G.P. reentered the United States -- again,
without inspection -- in 2017 and shortly thereafter began selling
drugs on behalf of Sergio Martinez ("Martinez"), the leader of a
large fentanyl trafficking organization in New England (the
1On January 14, 2022, this court granted the Petitioner's motion to proceed under the pseudonym "G.P."
- 3 - "Martinez Group"). In 2018, G.P. and Martinez, along with over
thirty others, were arrested and charged for their involvement in
the drug trafficking conspiracy.
G.P. pled guilty to conspiracy to distribute and to
possess with the intent to distribute fentanyl, in violation of 21
U.S.C. §§ 841(a)(1), 846, and cooperated with the government
against Martinez. For his cooperation, G.P. received a
thirty-six-month prison sentence, while Martinez, who decided to
plead guilty during G.P.'s testimony, was sentenced to forty-five
years of imprisonment. Following the completion of his sentence
(during which two inmates attacked G.P. on behalf of Martinez),
the Department of Homeland Security ("DHS") placed G.P. in
proceedings to withhold his removal from the United States based
on his reasonable fear of returning to the Dominican Republic.
B. IJ's Proceedings
Before the IJ, G.P. sought deferral of removal to the
Dominican Republic under CAT.2 G.P. claimed that, were he to
return, it is more likely than not that he would be tortured by:
(1) Dominican public officials unconnected to the Martinez Group,
(2) Dominican public officials connected to the Martinez Group,
(3) Dominican public officials connected to the Martinez Group but
2 G.P. conceded that he was ineligible for other relief, such as withholding of removal by statute or under CAT, because of his two drug-related convictions.
- 4 - acting in a private capacity, and (4) private actors hired or
arranged by the Martinez Group. G.P. supported his petition for
deferral by testifying; by calling Dr. David Brotherton, Professor
of Sociology and Criminology at John Jay College of Criminal
Justice, City University of New York ("Brotherton"), as a Dominican
Republic country conditions expert; and by submitting other
documentary country conditions evidence.
During his testimony, G.P. explained that relatives
introduced him to Martinez in the Dominican Republic in 2016 and
that Martinez offered him a position within his
Massachusetts-based drug trafficking organization. G.P. began
selling drugs for Martinez in the New England area shortly after
coming to the United States in 2017. Specifically, G.P. sold
fentanyl to Martinez's "important clients" -- who came from out of
state to buy drugs in larger quantities -- until his arrest in
April 2018.
G.P. emphasized that he feared retaliation in the
Dominican Republic stemming from his cooperation against the
Martinez Group. G.P. explained that he was a "star witness" when
he testified in open court against Martinez and that he told the
government everything he knew about the Martinez Group's
operation, including its leader, workers, and suppliers
(Dominicans and a Mexican cartel). G.P. described how, while
serving his sentence, two fellow inmates beat and stabbed him in
- 5 - retaliation for the harm he caused to Martinez. He testified that
he feared returning to the Dominican Republic because he gave
significant information to the Drug Enforcement Administration
("DEA") about many people, and he believed that either those who
were directly involved, or higher ups, will try to retaliate for
his cooperation if he returns. As to the Martinez Group's ability
to locate and harm him in the Dominican Republic, G.P. explained
that many of them (presumably meaning Martinez Group members) are
from his hometown, know him, and that it is easy to find
information or hire a hitman in the Dominican Republic if you have
money. As to his fear of torture as a removed criminal, G.P.
testified that even "good" police officers -- those who are not
tied to cartels -- will not protect him because he is a criminal.
G.P. also offered Brotherton's testimony, as a Dominican
Republic country conditions expert, in support of his application
for deferral of removal under CAT ("CAT claim"). Brotherton
testified extensively about the treatment removed criminals face
in the Dominican Republic -- during their initial detention upon
being returned to the country and after being processed and
released -- as well as about extrajudicial killings by police,
government corruption by cartels, and the consequences that
members of criminal organizations face for cooperating with the
government. Additionally, G.P. submitted documentary support for
his claim, including country conditions evidence consisting of the
- 6 - 2018 and 2019 Department of State Dominican Republic Human Rights
Reports, reports from Amnesty International and the Immigration
and Refugee Board of Canada, and various news articles.
After considering "all the evidence and testimony in the
record," the IJ concluded that G.P. had not established that it
was more likely than not that he would be tortured by, or with the
acquiescence of, the government of the Dominican Republic. Despite
finding that both G.P. and Brotherton testified credibly, the IJ
found that G.P.'s fear of torture as a removed criminal and at the
hands of corrupt government officials/private actors was too
speculative because G.P. failed to prove "that each link in [his]
hypothetical chain of events leading to his alleged harm . . . is
more likely than not to occur." The IJ acknowledged Brotherton's
opinion that G.P. faced a "high risk" of being tortured if returned
to the Dominican Republic but ultimately discounted that opinion
based on Brotherton's lack of familiarity with the Martinez Group,
its connection to government officials in the Dominican Republic,
and because of Brotherton's agreement with a quote from his 2011
book, which states: "I couldn't honestly say that torture is
something deportees should expect." Finding G.P.'s evidence
lacking, the IJ denied his CAT claim.
C. BIA Appeal
G.P. appealed the IJ's denial of his CAT claim to the
BIA, alleging that the IJ erred by: (1) giving reduced weight to
- 7 - Brotherton's testimony, (2) concluding that G.P. had not met his
burden of establishing the requisite risk of torture from the
Martinez Group, (3) concluding that G.P. had not met the requisite
risk of torture from Dominican officials, (4) failing to properly
aggregate all sources of torture, and (5) violating G.P.'s due
process rights by failing to fairly consider the evidence. G.P.
also challenged his order of removal based on a defective record
of the immigration proceedings.
The BIA concurred with the IJ that G.P. failed to
establish that it was more likely than not that each link in the
chain leading to his alleged torture -- as a removed criminal or
as a government cooperator against Martinez -- would occur. With
respect to Brotherton, the BIA upheld the IJ's decision to assign
his testimony limited weight because it was "based on limited
direct knowledge and independently informed contemporaneous
observations." The BIA also concluded that Brotherton's opinion,
that G.P. faced a "high risk" of torture, was properly discounted
by the IJ because of the "speculative" nature of the testimony,
Brotherton's lack of familiarity with the Martinez Group, and the
IJ's reasonable interpretation of the quote from Brotherton's
- 8 - book. Finding no clear or legal error, the BIA affirmed the IJ's
denial of G.P.'s CAT claim. This petition for review followed.
II. Jurisdiction
We pause to address a matter of import before delving
into the substance of G.P.'s case. After we heard oral argument,
we requested supplemental briefing to address whether we have
jurisdiction over G.P.'s petition where he filed it within thirty
days of the BIA's affirmance of the IJ's denial of his application
for CAT relief, but more than thirty days after DHS reinstated his
order of removal. See 8 U.S.C. § 1252(b)(1) (providing that a
"petition for review must be filed not later than 30 days after
the date of the final order of removal"); § 1252(b)(9) (providing
that "judicial review" of any action to remove a noncitizen from
the United States "shall be available only in judicial review of
a final order"); Nasrallah v. Barr, 140 S. Ct. 1683, 1691 (2020)
(stating CAT orders are distinct from final orders of removal).
Before we could decide this question, the Supreme Court issued
Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023), in which the
Court held that § 1252(d)(1) -- providing that judicial review of
a final order of removal is available only if the noncitizen "has
exhausted all administrative remedies available to the
[noncitizen] as of right" -- is a nonjurisdictional
claim-processing rule. Id. at 1116. We granted the government's
request to provide additional supplemental briefing about the
- 9 - effect of Santos-Zacaria on this case. The parties' subsequent
filings included three points of agreement: (1) § 1252(b)(1) is
not jurisdictional and is subject to waiver and forfeiture; (2) the
government waived any objection to the timeliness of G.P.'s
petition for review; and (3) this court should decide G.P's
petition on the merits. It is on these bases that we presume
jurisdiction, without deciding the underlying questions, and
proceed to the merits. We are careful to leave the issues of when
§ 1252(b)(1)'s thirty-day deadline starts running and whether the
rule is jurisdictional for another day, when these are properly
disputed by the parties. With that out of the way, we turn to the
merits of G.P.'s petition.
III. Standard of Review
"We review the BIA's findings of fact [on a CAT claim]
under the 'substantial evidence' standard." Romilus v. Ashcroft,
385 F.3d 1, 5 (1st Cir. 2004) (quoting Guzman v. INS, 327 F.3d 11,
15 (1st Cir. 2003)). Where the BIA's decision is "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole," the decision must be upheld. Id. (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). Because this is
a "deferential standard" of review, the BIA's determination may
only be disturbed if "the record evidence would compel a reasonable
factfinder to make a contrary determination." Aguilar-Solis v.
- 10 - INS, 168 F.3d 565, 569 (1st Cir. 1999). Questions of law, however,
are reviewed de novo. Romilus, 385 F.3d at 5.
Typically, we review only the BIA's decision. Id. But
where, like here, the BIA "adopts portions of the IJ's opinion, we
review those portions of the IJ's opinion that the BIA has
adopted." Id. And when, like here, the BIA "both adopts the
findings of the IJ and discusses some of the bases for the IJ's
decision, we have authority to review the decisions of both the IJ
and the BIA." Id. (quoting Chen v. Ashcroft, 376 F.3d 215, 222
(3d Cir. 2004)); see also Aguilar-De Guillen v. Sessions, 902 F.3d
28, 32 (1st Cir. 2018) (When "the BIA adopts and affirms an IJ's
decision, we review the IJ's decision to the extent of the
adoption, and the BIA's decision as to any additional ground."
(quoting Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007))).
IV. Discussion
On appeal, G.P. raises several claims of error: (1) that
the IJ and BIA erred by requiring evidence of harm to other
government witnesses in the Dominican Republic; (2) that the BIA
erred by failing to address G.P.'s argument that the IJ erred by
not providing G.P. an opportunity to explain his inability to
obtain corroborating evidence that other government witnesses were
harmed in the Dominican Republic; (3) that the BIA erred by failing
to address G.P.'s argument about Martinez's connections to
Dominican Republic law enforcement; (4) that the IJ and BIA erred
- 11 - by failing to aggregate all sources of torture "in assessing the
ultimate probability of torture in the Dominican Republic";
(5) that the BIA erred by engaging in impermissible factfinding as
to the basis for Brotherton's opinion and by disregarding facts
that the IJ accepted; (6) that the IJ and BIA erred in giving
reduced weight to Brotherton's expert testimony; (7) that,
contrary to the IJ's and BIA's decisions, the evidence in the
record compels the conclusion, under the aggregate standard, that
G.P. established the requisite risk of torture for a CAT claim;
and (8) that the BIA erred by concluding that the Department of
State's 2020 Dominican Republic Human Rights Report would not
change the analysis or outcome of G.P.'s CAT claim. The Government
contests each of G.P.'s claims and argues that G.P. waived his
challenges to the BIA's order affirming the denial of his CAT claim
based on his status as a removed criminal, as well as to
impermissible factfinding by the BIA. Because, for the reasons
discussed infra, we conclude that the IJ unjustifiably limited and
disregarded Brotherton's testimony -- impacting the IJ's
conclusion as to G.P.'s risk of harm both as a removed criminal
and government cooperator -- we vacate and remand for further
proceedings consistent with this opinion. As such, we decline to
- 12 - address the other issues raised in G.P.'s petition and take no
position on the government's waiver claims.
A. Limited Weight Given to Brotherton's Testimony
G.P. contends that the IJ's decision to give "limited
weight" to Brotherton's testimony was not supported by substantial
evidence. Here, after a "thorough voir dire," the IJ qualified
Brotherton as an expert witness on country conditions in the
Dominican Republic relating to the lives of removed noncitizens
and organized crime. Despite concluding Brotherton testified
credibly, the IJ nevertheless gave reduced weight to Brotherton's
testimony because of "his lack of recent first-hand knowledge,
research, or connections in the Dominican Republic." The IJ found
that:
The last time Dr. Brotherton was in the Dominican Republic was in 2014, where he conducted interviews with 10 deportees. Before that, the majority of his interviews took place in 2009 in preparation of his book that was published in 2011. The last time he spoke with a deportee who was in the Dominican Republic was in 2019. His most recent conversations with Dominican officials were in March 2019, with a police officer, and in 2016 when government officials visited Dr. Brotherton's university.
The BIA affirmed the IJ's decision to give limited
weight, concluding that the IJ "did not require first-hand
knowledge of the facts underlying the expert opinion" but rather
"acknowledged the expert witness's testimony and afforded due
- 13 - evidentiary weight where appropriate and where his opinion was
based on limited direct knowledge and independently informed
contemporaneous observations." Because the BIA adopted the IJ's
opinion as to Brotherton with little additional analysis, we
primarily review the IJ's findings. See Romilus, 385 F.3d at 5.
"The question of what probative value or weight to give
to expert evidence is a determination for the [IJ] to make as the
fact finder."3 Matter of M-A-M-Z-, 28 I. & N. Dec. 173, 177 (B.I.A.
2020); see also 8 C.F.R § 1003.1(d)(3)(i); Xian Tong Dong v.
Holder, 696 F.3d 121, 127 (1st Cir. 2012) (explaining that where
evidence as a whole is "a mixed bag," IJs have discretion over
where to accord substantial weight). Before assigning significant
weight to expert testimony, the IJ "should determine that the
witness's testimony is probative and persuasive regarding the key
issues in dispute in the case." Matter of J-G-T, 28 I. & N. Dec.
97, 103 (B.I.A. 2020). For an expert's opinion to be persuasive,
"a reliable factual or evidentiary basis for his or her
3 Amici urge us to provide guidance to IJs and the BIA by establishing a uniform standard for evaluating expert witness testimony. Overlooking the fact that G.P. did not raise this argument in his petition for review, we believe that the Supreme Court's decision in Garland v. Ming Dai precludes us from considering amici's request. 141 S. Ct. 1669, 1677 (2021) ("Congress has carefully circumscribed judicial review of BIA decisions. . . . [I]t is long since settled that a reviewing court is 'generally not free to impose' additional judge-made procedural requirements on agencies that Congress has not prescribed and the Constitution does not compel." (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978))).
- 14 - conclusions" must exist. Id. Here, the IJ identified two issues
with the evidentiary basis of Brotherton's expertise that
justified giving reduced weight to his testimony: His "knowledge,
research, or connections in the Dominican Republic" were not
(1) recent and (2) firsthand. We address each in turn.
As to recency, the IJ concluded, in an opinion dated
April 26, 2021, that Brotherton's expertise was stale because he
had not been to the Dominican Republic since 2014 and had not
spoken with a removed noncitizen in the Dominican Republic, or
officials within the government, since 2019. The IJ's factual
findings as to when Brotherton last visited the Dominican Republic
and conducted interviews are borne out by the record, however, the
IJ's recency conclusion ultimately lacks support.
There is no evidence in the record that conditions in
the Dominican Republic have changed since 2019 and, notably, the
IJ cites no support for this assumption. In fact, Brotherton
testified that country conditions in the Dominican Republic have
not changed significantly since 2014. The IJ's conclusion is
problematic given that Brotherton's testimony on this point went
unchallenged -- the government did not call its own expert, nor
was Brotherton's testimony contradicted by G.P. or other country
conditions evidence. Cf. Hang Chen v. Holder, 675 F.3d 100, 109
(1st Cir. 2012) (holding that the BIA properly rejected an expert's
opinion where it was contradicted by country conditions evidence).
- 15 - Because a reasonable factfinder would be compelled to reach a
contrary conclusion based on the record, the IJ's recency
justification for giving reduced weight to Brotherton's testimony
cannot stand. See Aguilar-Solis, 168 F.3d at 569 (requiring
substantial evidence to uphold agency decisions); M-A-M-Z-, 28
I. & N. Dec. at 177 (stating an IJ's findings "without
support . . . drawn from the facts in the record" constitutes
error (quoting Matter of A-B-, 27 I. & N. Dec. 316, 341 (Att'y
Gen. 2018), vacated, 28 I. & N. Dec. 307, 307 (Att'y Gen. 2021))).
The IJ also cited Brotherton's lack of firsthand
"knowledge, research, or connections" in the Dominican Republic as
justification for giving his testimony reduced weight. While the
Federal Rules of Evidence ("FRE") do not apply in immigration
proceedings, the BIA regularly looks to the FRE for guidance on
evidentiary issues -- including expert witness testimony. See
J-G-T, 28 I. & N. Dec. at 102 n.7 (declining to formally adopt FRE
in immigration proceedings); Matter of Y-S-L-C, 26 I. & N. Dec.
688, 690 (B.I.A. 2015) (stating that "[i]t is well established
that the [FRE] are not binding in immigration
proceedings . . . [but] may provide helpful guidance"). With
respect to experts, the BIA has said that "[a]n expert witness is
broadly defined as someone who is 'qualified as an expert by
knowledge, skill, experience, training, or education.'" Matter of
D-R-, 25 I. & N. Dec. 445, 459 (B.I.A. 2011) (quoting Fed. R. Evid.
- 16 - 702). In contrast to a lay witness, who testifies based on
personal perception, J-G-T, 28 I. & N. Dec. at 101, an expert
witness "may testify in the form of an opinion," id. (quoting Fed.
R. Evid. 702), and "need not have personal knowledge of the facts
underlying those opinions," Matter of Vides Casanova, 26 I. & N.
Dec. 494, 499 (B.I.A. 2015) (emphasis added). The BIA has
clarified that an expert's testimony is reliable when "'based on
sufficient facts or data' that the expert 'has been made aware of
or personally observed' or from sources that 'experts in the
particular field would reasonably rely on.'" J-G-T, 28 I. & N.
Dec. at 102 (quoting Fed. R. Evid. 702(b), 703).
G.P. argues that, in concluding that Brotherton lacked
firsthand "knowledge, research, or connections," the IJ not only
overlooked evidence of Brotherton's firsthand expertise but also
unjustifiably ignored the other sources of information that
Brotherton relied on in forming his opinion. We agree. First,
Brotherton testified that he personally interviewed ten removed
noncitizens in the Dominican Republic in 2014 (and interviewed
over 100 removed noncitizens and over 50 police/immigration
officials pre-2011). While the IJ discounted these interviews as
stale, as discussed supra, there is no basis in the record for
concluding that conditions have changed since at least 2014.
Regardless, Brotherton also testified that he had done informal
interviews, as recently as 2019, with individuals in the Dominican
- 17 - Republic and with government officials visiting the United States.
He also described his work as a consultant on the Syndemics
Project -- a removed noncitizen-related study, conducted by
Florida International University -- based in the Dominican
Republic. Between his affidavit and testimony, he explained that
the project team interviewed approximately thirty removed
noncitizens from 2015 to 2018, that he had access to all of their
interviews, and that he remained in contact with the field research
team who updated him on new data frequently. Contrary to the IJ's
finding, there is substantial evidence in the record that would
compel a reasonable factfinder to conclude that Brotherton relied
on firsthand information in forming his opinion.
Moreover, in addition to firsthand knowledge, Brotherton
testified about other sources of information that he relied on to
form his opinion. During his voir dire, Brotherton explained that
he maintained his knowledge of country conditions in the Dominican
Republic by reviewing crime rates, DEA reports, and other official
country reports. He referenced said reports throughout his
testimony and affidavit, specifically citing to the U.S.
Department of State's 2018 and 2019 Country Reports on Human Rights
Practices in the Dominican Republic. The IJ failed to mention
this evidence or otherwise explain why facts that Brotherton "has
been made aware of," "personally observed," or gleaned from sources
that "experts in the particular field would reasonably rely on,"
- 18 - such as Department of State country reports, do not provide a
sufficient basis for crediting his testimony fully. See Fed. R.
Evid. 703 (outlining bases for expert opinions). This alone
constitutes error. See Rodríguez-Villar v. Barr, 930 F.3d 24, 28
(1st Cir. 2019) ("Although the agency is not required to discuss
every piece of evidence, it must, at a minimum, 'fairly appraise
the record' and 'cannot turn a blind eye to salient facts.'"
(quoting Sihotang v. Sessions, 900 F.3d 46, 51 (1st Cir. 2018)));
Gailius v. INS, 147 F.3d 34, 46-47 (1st Cir. 1998) (stating agency
must adequately explain its decision to discount relevant evidence
for meaningful appellate review); Castillo v. Barr, 980 F.3d 1278,
1283 (9th Cir. 2020) ("Where the [IJ or BIA] do[] not consider all
the evidence before it, . . . [by] 'failing to mention highly
probative or potentially dispositive evidence,' its decision
cannot stand." (quoting Cole v. Holder, 659 F.3d 762, 772 (9th
Cir. 2011))). Nevertheless, even had the IJ discussed these
additional bases for Brotherton's opinion, our review of the record
convinces us that the IJ's decision to give Brotherton's testimony
limited weight is not supported by substantial evidence and must
be vacated.
B. Discounting Brotherton's Opinion on G.P.'s Risk
In addition to challenging the limited weight given to
Brotherton's testimony, G.P. contends that the IJ's and BIA's other
justifications for discounting Brotherton's opinion -- that G.P.
- 19 - faced a "high risk" of torture -- are not supportable. The IJ
explained his decision by citing Brotherton's lack of familiarity
with the Martinez Group, its connections in the Dominican Republic,
and Brotherton's agreement with a quote from his 2011 book saying
that removed noncitizens should not necessarily expect torture.
The BIA adopted the IJ's findings and affirmed his rejection of
Brotherton's expert opinion as to G.P.'s risk.
An IJ is not required to accept an expert's opinion as
fact just because the expert testifies credibly. M-A-M-Z-, 28
I. & N. Dec. at 177. Nevertheless, "when the [IJ] makes a factual
finding that is not consistent with an expert's opinion, it is
important . . . to explain the reasons behind the factual
findings." Id. at 177-78; cf. H.H. v. Garland, 52 F.4th 8, 23-24
(1st Cir. 2022) (vacating and remanding BIA decision after
concluding agency failed to adequately articulate its reasoning on
non-expert issue). As outlined supra, the IJ's findings of fact
are subject to substantial evidence review. Romilus, 385 F.3d at
5.
The IJ's findings as to Brotherton's direct knowledge of
the Martinez Group are supported by the record, however, the IJ's
justification for discounting his opinion on that basis is not.
Here, Brotherton testified that he had no direct knowledge of the
Martinez Group, its operations in New England, or its connections
to officials in the Dominican Republic. Nevertheless, the IJ
- 20 - faulting his lack of personal knowledge is problematic for two
reasons. First, as discussed supra, an expert "need not have
personal knowledge of the facts underlying" their opinion, Vides
Casanova, 26 I. & N. Dec. at 499, which may be deemed reliable as
long as it is based on "sufficient facts or data," J-G-T, 28
I. & N. Dec. at 102 (quoting Fed. R. Evid. 702(b), 703).
Brotherton relied on G.P.'s affidavit to learn specifics about the
Martinez Group, its connection to cartels, and to form an opinion
as to G.P.'s risk of torture as a government cooperator. Notably,
the facts contained within G.P.'s affidavit, and later admitted
through his testimony, were never challenged by the government or
questioned by the IJ, who found G.P. credible. An expert cannot
be "undermined by his reliance on facts . . . that have not been
disputed." See Castillo, 980 F.3d at 1284. Therefore, Brotherton
was entitled to rely on G.P.'s affidavit, and his opinion should
not have been disregarded because he did so.
Second, Brotherton's lack of personal knowledge about
the Martinez Group should not have devalued his opinion because
the IJ qualified him as an expert on country conditions in the
Dominican Republic. Here, the record is clear that the Martinez
Group was a New England-based drug trafficking organization. It
is possible that the IJ may have been trying to suggest that, as
an expert on organized crime in the Dominican Republic,
Brotherton's lack of knowledge about the Martinez Group's
- 21 - operations means that the group does not have a strong presence
there, however, we are not permitted to engage in such judicial
guesswork, see Ojo v. Garland, 25 F.4th 152, 157 (2d Cir. 2022),
and such reasoning impermissibly ignores evidence in the record,
see Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009) ("It
is . . . our responsibility to ensure that unrebutted, legally
significant evidence is not arbitrarily ignored by the
factfinder."). G.P.'s affidavit and testimony explained that the
Martinez Group is connected to the Sinaloa Cartel (a Mexican drug
cartel) because the latter supplies fentanyl to the former. This
connection is corroborated by a DEA press release discussing an
intercepted call between Martinez and a fentanyl supplier in
Sinaloa, Mexico and describing Martinez as "running a
sophisticated marketing operation that served as a conduit between
the Mexican drug cartels and customers in Northern New England."
Brotherton's testimony and affidavit described the Sinaloa
Cartel's strong presence in the Dominican Republic, influence over
government officials there, and treatment of government
cooperators. The IJ citing Brotherton's lack of direct knowledge
of the Martinez Group, or its connections to the Dominican
Republic, while factually accurate, mischaracterizes the evidence
as a whole and leads us to conclude that substantial evidence does
not support the IJ's decision to disregard Brotherton's opinion on
- 22 - this basis. See Cole, 659 F.3d at 772 (concluding that a
misstatement of the record by the IJ or BIA is error).
The IJ also cited Brotherton's agreement with a quote
from his 2011 book as a basis for dismissing Brotherton's opinion
that G.P. faced a high risk of torture from corrupt police/private
actors hired by the Martinez Group. The quote, which was submitted
by the government, states: "I did my best to paint a picture that
fitted this scenario but I couldn't honestly say that torture is
something deportees should expect." Far from agreeing with said
quote, Brotherton qualified its applicability to G.P.'s
proceedings by explaining that in the book's context, torture had
a very narrow definition -- for example, tying electrodes to
someone's testicles -- and that the book pertained to another
individual's particular circumstances who, unlike G.P., had mental
health issues and had not cooperated against a criminal
organization. The IJ's characterization of Brotherton as having
"agreed with a quote from his book" on cross-examination is
troubling since he was only asked on direct examination whether he
recalled the quote and to explain its context, not whether he
agreed with it or if it was still accurate. Additionally, we fail
to find support in the record for the level of emphasis that the
IJ placed on the quote. Reviewing Brotherton's testimony and the
exhibit with the book excerpt in full, it is clear that the quote
was cited as a basis for disregarding G.P.'s risk of torture from
- 23 - private citizens/corrupt police, but Brotherton wrote these words
about the risk of torture removed noncitizens face generally.
Further, the IJ failed to explain why the quote from the 2011 book
deserved significant weight when it was substantially older than
other evidence the IJ disregarded as stale.
V. Conclusion
For the foregoing reasons, we conclude that the BIA's
decision affirming the IJ's analysis, which gave limited weight to
Brotherton's testimony and rejected his opinion regarding G.P.'s
risk of torture, is not supported by substantial evidence in the
record. Given the IJ's unjustifiable rejection of Brotherton's
testimony, which pertained to both of G.P.'s theories of torture
(his risk of harm as a removed criminal and as a government
cooperator against the Martinez Group), and in light of the CAT
requirement that "all evidence relevant to the possibility of
future torture shall be considered," 8 C.F.R. § 1208.16(c)(3), the
IJ's and BIA's decisions cannot stand. Therefore, we grant G.P.'s
petition for review, vacate the BIA's decision, and remand to the
BIA, with directions to remand to the IJ, for further consideration
of G.P.'s CAT claim consistent with this opinion. In deciding
whether G.P. is entitled to relief on remand, Brotherton's
testimony should be afforded full weight, and, although we take no
position on them, we encourage the IJ to review the other issues
raised in G.P.'s petition.
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