Lafortune v. Garland

110 F.4th 426

• Court: Court of Appeals for the First Circuit
• Decided: August 5, 2024
• Docket: 23-1617
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1617

FESNEL LAFORTUNE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lipez and Kayatta, Circuit Judges.

Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for petitioner. Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, United States Department of Justice, were on brief, for respondent.

August 5, 2024 BARRON, Chief Judge. Fesnel Lafortune, a native and

citizen of Haiti, petitions for review of the decision by the Board

of Immigration Appeals ("BIA") that denied his claims for

withholding of removal and protection under the Convention Against

Torture ("CAT"). We deny the petition.

I.

On June 22, 2008, at the age of twelve, Lafortune entered

the United States on a B-2 visitor visa that he eventually

overstayed. A little more than a decade later, on November 4,

2019, Lafortune pleaded guilty in the United States District Court

for the District of Massachusetts to conspiracy to commit bank

fraud in violation of 18 U.S.C. § 1349 and aggravated identity

theft in violation of 18 U.S.C. § 1028A(a)(1).

Pursuant to the plea agreement, the District Court

sentenced Lafortune to a prison term of seven months for the

conspiracy-to-commit-bank-fraud offense and twenty-four months for

the aggravated-identity-theft offense, with the second sentence to

be served consecutive to the first. Lafortune was also ordered to

pay restitution to the victims.

Following Lafortune's convictions, the U.S. Department

of Homeland Security ("DHS") served Lafortune with a Notice to

Appear ("NTA"). The NTA charged him with removability under 8

U.S.C. § 1227(a)(1)(B) due to lack of lawful immigration status

and under 8 U.S.C. § 1227(a)(2)(A)(iii) due to his conviction for

- 2 - an aggravated felony in the form of an offense that "involves fraud

or deceit in which the loss to the victim or victims exceeds

$10,000." Id. § 1101(a)(43)(M)(i).

On October 18, 2021, Lafortune appeared pro se before an

Immigration Judge ("IJ") and asked for additional time to find

counsel.1 The IJ continued proceedings to provide Lafortune the

opportunity to do so.

Lafortune next appeared pro se before the IJ on November

30, 2021. He again sought a continuance to find counsel, but the

IJ denied the request, and the removal proceedings went forward.

Lafortune admitted to the allegations in the NTA, and the IJ ruled

that Lafortune was removable on both charges lodged in the NTA.

Because Lafortune expressed a fear of returning to

Haiti, however, the IJ continued the case until December 14, 2021,

to give Lafortune time to file an application for asylum. On

December 7, 2021, Lafortune submitted an application for asylum

and claims for withholding of removal and protection under the CAT

(though only Lafortune's claims for withholding of removal and

protection under the CAT are before us).

On March 14, 2022, a hearing was held before the IJ in

which Lafortune again appeared pro se and asked for a continuance

1 Thereis an indication in the record that there was a hearing before the IJ prior to October 18, 2021, but the record does not contain a transcript for any such hearing.

- 3 - to retain counsel. The IJ denied this request and, after taking

Lafortune's testimony, found Lafortune ineligible for asylum,

withholding of removal, and protection under the CAT.

Still proceeding pro se, Lafortune appealed the IJ's

decision to the BIA. Lafortune argued, among other things, that

the IJ erred in denying his motion to continue. Lafortune

contended that by "h[olding the merits] hearing ahead of" schedule,

the IJ did not have the chance to review a letter submitted by the

Boston Immigrant Justice Accompaniment Network ("BIJAN") dated

March 14, 2022. The letter asked for a continuance of at least

four to six weeks because BIJAN was in the process of securing

counsel for Lafortune and needed that time to complete its efforts.

Lafortune also submitted additional evidence to the BIA

in support of his CAT and withholding-of-removal claims. That

evidence included a picture of a burnt-down business building that

purportedly belonged to Lafortune's family in Haiti, multiple

newspaper articles, and new statements from his sister and aunt.

On November 8, 2022, the BIA sustained Lafortune's

appeal in part, remanding to the IJ for consideration of

Lafortune's motion for a continuance. The BIA reasoned that

because BIJAN's letter had not been associated with the record of

proceedings at the time that the IJ ruled on his request for a

continuance, Lafortune was entitled to have the opportunity to

appear with counsel. The BIA did not express an opinion regarding

- 4 - Lafortune's application and claims or on the ultimate outcome of

his proceedings.

On November 16, 2022, the IJ ordered Lafortune to appear

for a hearing on November 29, 2022. Lafortune appeared pro se on

that date and stated that he needed more time to find counsel.

The IJ then set another hearing for December 22, 2022.

On December 16, 2022, however, BIJAN sent a letter to the IJ asking

for an extension of three months to find counsel for Lafortune.

DHS opposed the request for a continuance.

On December 20, 2022, the IJ denied the request for a

continuance for lack of good cause. The IJ explained that

Lafortune had been in proceedings since September 28, 2021, and

had been given "more than ample opportunity to secure counsel."

At the December 22, 2022 hearing, Lafortune appeared pro

se and asked the IJ to reconsider its denial of his motion for a

continuance. The IJ refused to do so. The IJ also refused to

reopen the evidentiary record on remand, adopting its prior

decision in full and again ordering Lafortune's removal to Haiti.

On January 10, 2023, Lafortune, still acting pro se,

filed his second appeal with the BIA. But on March 10, 2023,

Jeffrey B. Rubin entered an appearance as counsel for Lafortune.

On appeal to the BIA, counsel for Lafortune challenged

the IJ's reasons for denying Lafortune's withholding-of-removal

and CAT claims. The BIA dismissed the appeal on June 22, 2023,

- 5 - finding no error in the IJ's analyses. Lafortune's counsel then

filed this timely petition for review.

II.

"Where, as here, the BIA 'adopts and affirms the IJ's

ruling' but nevertheless 'examines some of the IJ's conclusions,'

we review both the BIA and IJ opinions as a unit," Gómez-Medina v.

Barr, 975 F.3d 27, 31 (1st Cir. 2020) (quoting Perlera-Sola v.

Holder, 699 F.3d 572, 576 (1st Cir. 2012)), referring to the IJ

and BIA together as the "agency." In conducting our review, we

defer to the agency's factual determinations "as long as those

determinations are supported by substantial evidence," but we

review questions of law de novo. Ahmed v. Holder, 611 F.3d 90, 94

(1st Cir. 2010).

III.

We start with Lafortune's challenges to the denial of

his withholding-of-removal claim. Withholding of removal is

unavailable to an applicant convicted of a "particularly serious

crime." See 8 U.S.C. § 1231(b)(3)(B)(ii). An aggravated felony

is a particularly serious crime if it resulted in a "term of

imprisonment of at least 5 years." Id. § 1231(b)(3)(B)(iv). For

other offenses, the agency applies a case-by-case inquiry as set

forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), and

Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), to determine

whether the offense qualifies as a particularly serious crime.

- 6 - See Valerio-Ramirez v. Sessions, 882 F.3d 289, 295 (1st Cir. 2018)

(upholding the Frentescu analysis with respect to withholding of

removal).

The agency denied Lafortune's claim for withholding of

removal on the ground that he had been convicted of a particularly

serious crime. In his petition for review, Lafortune challenges

that ruling on a number of grounds. None persuades us.2

A.

We first address Lafortune's contention that the BIA

erred by finding that the IJ had sufficiently specified the prior

criminal conviction that qualified as a particularly serious crime

when the IJ had not. Lafortune argued to the BIA that the IJ had

not done so because the IJ had failed to specify which of his two

2 The government argues that Lafortune has forfeited, waived, and not exhausted many of the arguments he now makes to us on appeal for remanding his withholding-of-removal and CAT claims. We bypass these questions of forfeiture, waiver, and exhaustion when we conclude that the underlying claim lacks merit. See Abdelmalek v. Mukasey, 540 F.3d 19, 24 (1st Cir. 2008) ("[E]ven if we were to apply the exhaustion of remedies standard generously . . . and review these claims, we would deny them on the merits." (citation omitted)); Alsamhouri v. Gonzales, 484 F.3d 117, 123 n.7 (1st Cir. 2007) ("A number of Alsamhouri's arguments may well be barred for failure to meet the exhaustion requirement, as he failed to raise them before the BIA. . . . In any event, even if we indulged in an overly generous reading of his BIA filing to find these arguments raised, we reject them on the merits."); United States v. Uribe-Londono, 409 F.3d 1, 3 n.2 (1st Cir. 2005) ("We bypass the waiver issues as Uribe's claims are obviously meritless."); United States v. Tejeda, 481 F.3d 44, 56 (1st Cir. 2007) ("We bypass the question of forfeiture because even if Tejeda preserved his claim, it fails on the merits.").

- 7 - convictions -- conspiracy to commit bank fraud, 18 U.S.C. § 1349,

or aggravated identity theft, 18 U.S.C. § 1028A(a)(1) -- was the

crime that the IJ determined was the particularly serious crime.

On that basis, Lafortune argued that a remand to the IJ for

clarification was required, because, to deem a noncitizen

ineligible for withholding of removal for having been convicted of

a particularly serious crime, the agency must identify the crime

of conviction that qualifies as a crime of that serious sort.

Otherwise, according to Lafortune, the agency would not have

rendered a decision that allows for meaningful appellate review.

See Halo v. Gonzales, 419 F.3d 15, 18-19 (1st Cir. 2005) ("[A]

reviewing court . . . must judge the propriety of [administrative]

action solely by the grounds invoked by the agency, and that basis

must be set forth with such clarity as to be understandable."

(second alteration in original) (internal quotation marks and

citation omitted)); SEC v. Chenery Corp., 332 U.S. 194, 196-97

(1947) ("It will not do for a court to be compelled to guess at

the theory underlying the agency's action; nor can a court be

expected to chisel that which must be precise from what the agency

has left vague and indecisive.").

The BIA rejected this argument on the ground that the IJ

specifically found that Lafortune's conviction for bank-fraud

conspiracy was the particularly serious crime. Despite

Lafortune's contrary contention, we see no error in that ruling.

- 8 - Consistent with the BIA's assessment, the NTA only

identified and charged one conviction as a removable offense --

namely, Lafortune's conviction for conspiracy to commit bank

fraud. Moreover, in denying Lafortune's request for withholding

of removal based on his having been convicted of an aggravated

felony, the IJ stated that

when a crime of conviction has as an element the commission of another crime, a particular[ly] serious crime analysis should take into account the facts and circumstances of that other crime. That is what the Court did in making the decision in this case, noting that the respondent was not only convicted of bank fraud, but also aggravated identity theft (emphasis added).

These statements clearly show that the IJ was

considering the aggravated-identity-theft offense only because the

conspiracy-to-commit-bank-fraud offense itself "has as an element

the commission of [the crime of aggravated identity theft]." They

do not indicate that the IJ was treating the aggravated-identity-

theft conviction as itself the "crime of conviction" that needed

to be assessed for whether it was a particularly serious crime.

If the IJ's statements quoted above left any ambiguity

as to which conviction was being analyzed to determine whether it

was a particularly serious crime, the IJ cleared up the uncertainty

soon thereafter. The IJ did so by citing to Sopo v. U.S. Att'y

Gen., 739 F. App'x 554 (11th Cir. 2018), and explaining that Sopo

was "persuasive authority." After all, in so doing, the IJ noted

- 9 - that in Soto "the respondent pled guilty in Federal Court to four

counts of bank fraud in violation of 18 U.S.C. [§] 1344, a similar

statute to the one here" (emphasis added). Thus, we conclude that

the BIA did not err in determining that the IJ adequately specified

that the bank-fraud-conspiracy offense was the particularly

serious crime.

B.

Lafortune next contends that the agency erred by failing

to conduct an elements-only examination of the bank-fraud-

conspiracy offense in finding that it constituted a particularly

serious crime. Here, Lafortune relies on the BIA's ruling in N-

A-M-, 24 I. & N. Dec. 336. The BIA stated there that

[w]here . . . a conviction is not for an aggravated felony for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years, we examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction. . . . If the elements of the offense do not potentially bring the crime into a category of particularly serious crimes, the individual facts and circumstances of the offense are of no consequence, and the alien would not be barred from a grant of withholding of removal. On the other hand, once the elements of the offense are examined and found to potentially bring the offense within the ambit of a particularly serious crime, all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction.

- 10 - Id. at 342.

Based on this passage, Lafortune argues that, under N-

A-M-, when a conviction for an aggravated felony results in a

sentence of less than five years of imprisonment for the person

who is requesting withholding of removal (as is the case here),

the agency must follow a clear course. It must first and

explicitly consider whether the elements of the offense

potentially bring the crime into the category of offenses that

constitute particularly serious crimes. The agency then may

proceed to the "second step" -- which involves weighing the so-

called "Frentescu factors" in a multifactor test -- only if in

completing the "first step" the agency determines that the elements

of the offense potentially bring the crime into the ambit of that

category.

Lafortune argues that the IJ did not follow this approach

because it "cit[ed] the Frentescu factors and delv[ed] directly

into a discussion of the case-specific, factual circumstances of

the case without first independently assessing the offense's

elements." More specifically, Lafortune contends that "[t]he IJ

did not, for example, identify the nature of Lafortune's [crime]

(i.e., 'crime against persons' or 'crime against property') or

explain how the element of defrauding a financial institution makes

bank fraud fall within the ambit of a [particularly serious

crime]." And, Lafortune continues, while "the IJ's description of

- 11 - the facts of Lafortune's crimes can be understood to have some

overlap with the elements of the offenses at issue, this

description would, at most, constitute a 'hybrid approach of

blending the steps and analyzing the facts without first

considering the nature of the crime.'"

"[W]hen an administrative agency decides to depart

significantly from its own precedent, it must confront the issue

squarely and explain why the departure is reasonable, the obvious

goal being to avoid arbitrary agency action." Thompson v. Barr,

959 F.3d 476, 484 (1st Cir. 2020) (internal quotation marks and

citation omitted). Thus, a "zigzag course is not open to an agency

when . . . the agency has failed to explain why it is changing

direction (or even to acknowledge in the later decision that it is

detouring from a beaten path)." Davila-Bardales v. INS, 27 F.3d

1, 5 (1st Cir. 1994). Instead, an agency is expected to "apply

the same basic rules to all similarly situated applicants." Henry

v. INS, 74 F.3d 1, 6 (1st Cir. 1996).

The agency here clearly did not follow the rigid two-

step analysis that Lafortune contends N-A-M- required. Similarly,

the agency clearly did not purport to overturn N-A-M- or depart

from that precedent. Rather, from all that the agency's decisions

disclose, it sought to follow N-A-M-. As a result, Lafortune is

right that if N-A-M- did require the agency to follow the strict

two-step framework for analysis that he reads that precedent to

- 12 - mandate, then the agency here would have erred, regardless of

whether 8 U.S.C. § 1231(b)(3)(B)(ii) itself required the agency to

adopt that framework. See Thompson, 959 F.3d at 484-85.

The government does not suggest otherwise. The

government instead argues only that the particularly-serious-crime

analysis under N-A-M- is not as rigid as Lafortune asserts. In

support of this proposition, the government cites Bare v. Barr,

975 F.3d 952, 963 (9th Cir. 2020), which held that

where the crime is a common federal crime with simple and straightforward elements and is an aggravated felony, the maximum possible sentence for the crime is more than five years' imprisonment, and the IJ or BIA noted facts which correspond to all the elements of the offense as weighing in favor of the crime being particularly serious, we see no reason to put form over substance. Under these circumstances, we will not require an explicit consideration of the elements of the offense.

Thus, the question that we must answer is: does N-A-M-

require the agency to undertake an explicit elements-only analysis

prior to delving into "a discussion of the case-specific, factual

circumstances of the case"? We conclude that N-A-M- does not.

For starters, the only question that N-A-M- purports to

answer that is relevant for our purposes is "whether . . . [the

agency is] limited to certain sources of evidence in determining

whether an offense is particularly serious." 24 I. & N. Dec. at

337. And all that N-A-M- purports to hold as to that question is

that "once the elements of the offense are examined and found to

- 13 - potentially bring the offense within the ambit of a particularly

serious crime, all reliable information may be considered in making

a particularly serious crime determination, including but not

limited to the record of conviction and sentencing information."

Id. at 342.

To be sure, in so holding, N-A-M- does say that "once

the elements of the offense are examined and found to potentially

bring the offense within the ambit of a particularly serious crime,

all reliable information may be considered in making a particularly

serious crime determination." Id. But N-A-M- does not say at any

point in its analysis that the agency must explicitly state that

the elements of the offense have been examined. Nor does N-A-M-

say at any point that such an examination must explicitly -- and

not implicitly -- precede the analysis of "all reliable

information." Id. at 343.

That N-A-M- says no such things in describing its two-

step framework for analysis should come as no surprise. It is not

always a logical entailment of a two-step framework that the first

step must be expressly completed before the second step may be

addressed.

This reading of N-A-M- comports with the out-of-circuit

precedents that Lafortune invokes to support his position as to

what N-A-M- requires: Luziga v. U.S. Att'y Gen., 937 F.3d 244 (3d

Cir. 2019); and Ojo v. Garland, 25 F.4th 152 (2d Cir. 2022).

- 14 - Indeed, he contends that each of these Circuits has also rejected

the view that N-A-M- tolerates a "hybrid approach."

The Third Circuit in Luziga does state that the

immigration judge there erred in skipping over the elements of the

offense, and the court then did remand the case to the BIA to

determine whether the elements of the petitioner's offense made

the offense such that it potentially fell within the ambit of a

particularly serious crime. 937 F.3d at 253-54. But, in so

ruling, the Third Circuit explained that although the BIA had

claimed to consider the elements of the offense, it "listed as

'elements' specific offense characteristics such as loss amount"

that were not actually elements of the offense. Id. at 254.

Lafortune does not make any argument to us that the

agency here similarly might have misapprehended the elements of

his offense. His only argument to us is that an agency must, in

all cases, first and explicitly consider the elements of the

petitioner's offense before considering the specific facts of the

case. His contention, in other words, is that the agency

reversibly errs in failing to do so even if the record reveals no

basis for concern either that the elements preclude the offense

from being a particularly serious crime or that the agency

misapprehended the nature of those elements. We do not understand

Luziga to support that sweeping proposition.

- 15 - The Second Circuit's decision in Ojo is similarly

unhelpful to Lafortune. The court there did state that "the BIA's

own precedent requires the first step of the analysis to consist

of an elements-only examination of the crime at issue to determine

whether such elements 'potentially bring the crime into a category

of particularly serious crimes.'" Ojo, 25 F.4th at 167 (quoting

N-A-M-, 24 I. & N. Dec. at 342) (citing Luziga, 937 F.3d at 254).

But, as in Luziga, the Second Circuit found that a remand was

required because "the IJ misapprehend[ed] the elements by

classifying the offense as a 'crime against persons.'" Id. at 168

n.12. In contrast, Ojo explained, the Second Circuit had upheld

the agency's application of N-A-M- in an earlier case before it

because "[t]he IJ's decision [there] stated the threshold question

and the elements of the offense of conviction before considering

the individual factors" and because there was "no indication that

the agency misapprehended the offense elements." Id. (first

alteration in original) (quoting Mbendeke v. Garland, 860 F. App'x

191, 193 n.1 (2d Cir. 2021)).

In sum, we do not read N-A-M- to require that, in every

"particularly serious crime" case, the agency must set forth an

explicit discussion of the elements of the offense of conviction

prior to discussing any case-specific facts. Nor do we read either

the Second or the Third Circuit to have held otherwise. See id.;

Luziga, 937 F.3d 244. In fact, as we noted above, the Ninth

- 16 - Circuit has held that N-A-M- does not require what Lafortune

contends that it does. See Bare, 975 F.3d at 963. For all these

reasons, we reject Lafortune's argument that the agency erred by

failing to conduct an explicit elements-only analysis before its

analysis of case-specific facts to determine whether Lafortune's

crime of conviction was a particularly serious crime.

C.

Lafortune's final contention as to the denial of the

request for withholding of removal concerns how the agency weighed

the Frentescu factors. The multifactor test articulated in

Frentescu instructs courts, when assessing whether an offense for

which the petitioner was sentenced to a prison term of less than

five years constitutes a particularly serious crime, to "look to

such factors as the nature of the conviction, the circumstances

and underlying facts of the conviction, the type of sentence

imposed, and, most importantly, whether the type and circumstances

of the crime indicate that the alien will be a danger to the

community." 18 I. & N. Dec. at 247. More specifically, Lafortune

argues that the agency failed to (1) take into account the nature

of Lafortune's conviction; (2) consider and weigh any positive

circumstances or underlying facts; and (3) assess whether the

circumstances of Lafortune's offense indicate that he will be a

danger to the community.

- 17 - We review for abuse of discretion the agency's

assessment and weighing of the Frentescu factors, including the

agency's conclusion that the crime of conviction was "particularly

serious." See Arbid v. Holder, 700 F.3d 379, 384 (9th Cir. 2012);

Gao v. Holder, 595 F.3d 549, 557 (4th Cir. 2010). Under this

deferential standard, we will uphold the determination "unless it

was made 'without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'"

Choeum v. INS, 129 F.3d 29, 44 (1st Cir. 1997) (quoting Hazzard v.

INS, 951 F.2d 435, 438 (1st Cir. 1991)); see also Gao, 595 F.3d at

557 ("Appellate courts should not lightly reverse for abuse of

discretion in cases where, as here, lower tribunals weigh various

factors under a totality-of-the-circumstances test."). We see no

abuse of discretion here.

1.

After listing specific facts pertinent to Lafortune's

conviction, the IJ stated that it "finds that the nature of the

conviction and circumstances and underlying facts of the case, as

well as the sentence imposed, . . . show[] that this was a

particularly serious crime" (emphasis added), without suggesting

that it understood the offense to be a crime against persons.

Lafortune argues that the agency "erred by failing to consider the

nature of Lafortune's offenses, specifically that [Lafortune's

- 18 - offenses] qualify as [crimes] against property rather than

[crimes] against a person."

To the extent that Lafortune means to argue that the

agency committed error because it mistakenly thought his crime of

conviction was a crime against persons rather than a crime against

property, we are not persuaded. And that is so even if we assume

the crime is against property and not persons. The reason is that

there is no indication that the agency misapprehended whether

Lafortune's crime of conviction was a crime against property such

that a remand would be warranted on that ground. Cf. Ojo, 25 F.4th

at 165-68 (remanding given the IJ's erroneous identification of

conspiracy to commit wire fraud and identity theft as crimes

against persons).

To the extent that Lafortune instead means to argue that

the agency erred because it did not account for the nature of

Lafortune's offense being a crime against property in undertaking

its Frentescu analysis, the argument also fails. And that is so,

again, even assuming that his offense was a crime against property.

The reason is that Lafortune failed to make this contention to the

BIA. See 8 U.S.C. § 1252(d)(1); Varela-Chavarria v. Garland, 86

F.4th 443, 449-50 (1st Cir. 2023) (declining to review an

unexhausted procedural-due-process claim); Odei v. Garland, 71

F.4th 75, 78 n.1 (1st Cir. 2023) (declining to consider unexhausted

arguments); see also Santos-Zacaria v. Garland, 143 S. Ct. 1103,

- 19 - 1115 (2023); United States v. Palomar-Santiago, 593 U.S. 321, 326

(2021) ("When Congress uses 'mandatory language' in an

administrative exhaustion provision, 'a court may not excuse a

failure to exhaust.'" (quoting Ross v. Blake, 578 U.S. 632, 639

(2016))); Fort Bend County v. Davis, 587 U.S. 541, 548 (2019).

2.

Lafortune separately argues that the agency abused its

discretion because it "did not contemplate any positive facts and

circumstances in [its particularly-serious-crime] analysis. Put

differently, [it] only considered negative factors." The record

shows otherwise.

The IJ stated that "the Court does not accept

[Lafortune's] testimony . . . that he was unknowingly recruited to

participate in this conspiracy" because "[t]he scheme [Lafortune]

was involved with was complex, using the false identities of two

victims, as well as fake paperwork for a false business. It shows

a high level of criminal intent on [Lafortune's] part." In other

words, the IJ did consider the potentially mitigating circumstance

that Lafortune was "unknowingly recruited to participate" in the

conspiracy and, although the IJ found Lafortune "generally

credible," explicitly rejected this specific testimony. See Seng

v. Holder, 584 F.3d 13, 18 (1st Cir. 2009) ("Should the IJ

reasonably determine that the alien's testimony is not credible,

he may disregard it in whole or in part."), superseded by statute

- 20 - on other grounds, Real ID Act of 2005, Pub. L. No. 109-13,

§ 101(a)(3), 119 Stat. 302, 303, as recognized in Ahmed v. Holder,

765 F.3d 96, 99 (1st Cir. 2014).

3.

Lafortune next contends that, in assessing whether his

conviction for conspiracy to commit bank fraud was a particularly

serious crime, the agency failed to consider whether the

circumstances of Lafortune's commission of that crime indicate

that he will be a danger to the community. Not so.

The IJ conducted a detailed inquiry into the

circumstances of Lafortune's commission of the crime. It

highlighted how Lafortune "worked with other conspirators to

defraud two victims of substantial amounts of money over a period

of time." The BIA then endorsed the IJ's findings and emphasized

that Lafortune's conviction for conspiracy to commit bank fraud,

"resulting in loss to a victim in excess of $10,000," constitutes

a particularly serious crime for withholding-of-removal purposes.

These statements, along with other statements by the agency

regarding the seriousness of Lafortune's fraudulent

scheme -- evidenced by its complexity and the significant harm

caused -- show that the agency did in fact consider and find that

Lafortune posed a danger to the community.

- 21 - 4.

For all these reasons, we must reject Lafortune's

contention that the agency abused its discretion when it weighed

the Frentescu factors and concluded that Lafortune committed a

particularly serious crime. See Arbid, 700 F.3d at 385; Gao, 595

F.3d at 557. This ground for overturning the agency's denial of

his request for withholding of removal therefore fails.

IV.

Lafortune separately challenges the agency's denial of

his request for protection under the CAT. Here, too, we are not

persuaded.

To succeed on his request for protection under the CAT,

Lafortune must show that "it is more likely than not that he will

be tortured if returned to his home country." Bonnet v. Garland,

20 F.4th 80, 84 (1st Cir. 2021) (quoting Mazariegos v. Lynch, 790

F.3d 280, 287 (1st Cir. 2015)). He must further show that such

torture will occur "by or with the acquiescence of a government

official." Nako v. Holder, 611 F.3d 45, 50 (1st Cir. 2010).

"Acquiescence includes willful blindness." Perez-Trujillo v.

Garland, 3 F.4th 10, 18 (1st Cir. 2021).

We begin with Lafortune's arguments that the agency

failed to consider certain "relevant evidence in evaluating

- 22 - Lafortune's risk of torture." Specifically, Lafortune contends

that the agency failed to consider (1) evidence about the last

time Lafortune's father was threatened by "people affiliated with

government officials"; (2) Lafortune's testimony "about the

ongoing campaign of political repression [in Haiti] by current

regime officials and linked groups, such as 400 Mawozo, against

opposition parties, such as Lavalas"; and (3) evidence that

Lafortune's parents are hiding "due to fear [of] government

officials and their affiliated criminal groups."

Although "the [agency] is required to consider all

relevant evidence in the record," Lin v. Mukasey, 521 F.3d 22, 28

(1st Cir. 2008), "each piece of evidence need not be discussed in

a [BIA or IJ] decision," Chen v. Holder, 675 F.3d 100, 106 (1st

Cir. 2012) (quoting Morales v. INS, 208 F.3d 323, 328 (1st Cir.

2000)). "When the [agency's] decision is neither inconsistent

with [the evidence at issue] nor gives reason to believe the

[agency] was unaware of it, we have no reason to doubt that the

agency considered the evidence." Lin, 521 F.3d at 28.

The record belies Lafortune's assertions that the agency

"was unaware of [the evidence at issue]" and thus that we have

"reason to doubt that the agency considered the evidence." Id.

The IJ specifically stated that, "[i]n making [its] decision, [it]

considered the totality of the admitted evidence whether

specifically referenced in [its] decision o[r] not." The IJ also

- 23 - stated that Lafortune "testified that his father has continued to

receive death threats and other harm since he has been in Haiti

and since [Lafortune] fled Haiti." But, the IJ continued,

Lafortune "could not provide any specific examples of harm other

than saying that some time -- maybe within the last year -- unknown

individuals showed up at his father's home with torches,

threatening to burn his home down." The IJ then went on to state

that part of why it was not convinced "that [Lafortune] can show

likelihood of future torture is that [Lafortune's] father, who

seemed to be the primary target for all these instances of harm

and threats, has continued to live in Haiti continuously since

that time and has not actually been physically harmed."

Additionally, the IJ explicitly referenced parts of Lafortune's

testimony about 400 Mawozo and his family's participation in the

Lavalas party: "[Lafortune] believes that [the individuals who

sent death threats] were either police officers or members of an

organization called 400 Mawozo, which is a private arm of the

government, sort of like a gang. [Lafortune's family] were

threatened that they would be killed if they did not stop

supporting Lavalas."

So, "[w]e see no reason to surmise that the [agency]

overlooked" the evidence in question. Id. Rather, the agency

simply analyzed the evidence and was not convinced that it

- 24 - satisfied Lafortune's "burden of proof for relief under the

Convention [A]gainst Torture."

We now address Lafortune's contention that the "IJ

neglected [its] duty to develop the record . . . by failing to

consider the [2021] U.S. State Department Report for

Haiti . . . when examining country conditions as part of [its] CAT

application analysis." Lafortune notes that the Report describes

"unlawful and arbitrary killings by gangs allegedly supported by

government officials and private-sector actors, as well as the

Catholic Commission for Peace and Justice's demand for a government

investigation into the hidden forces behind the violence,

including political and economic actors bankrolling gang activity"

(cleaned up). He also notes that he appeared pro se both times he

came before the IJ and that immigration judges have a heightened

duty to develop the record when faced with a pro se applicant for

relief. See Mekhoukh v. Ashcroft, 358 F.3d 118, 129 n.14 (1st

Cir. 2004) ("[U]nlike an Article III judge, [an IJ] is not merely

the fact finder and adjudicator but also has an obligation to

establish the record." (quoting Yang v. McElroy, 277 F.3d 158, 162

(2d Cir. 2002))); Quintero v. Garland, 998 F.3d 612, 622 (4th Cir.

2021) (holding that "immigration judges have a legal duty to

develop the record, which takes on particular importance in pro se

cases"); Dorce v. Garland, 50 F.4th 207, 224 (1st Cir. 2022)

- 25 - (Lipez, J., dissenting) (stating that IJs must "fully

explore . . . highly relevant facts, particularly when faced with

a pro se applicant for relief"). Lafortune thus contends that,

"[g]iven the State Department Report's relevance and the IJ's

heightened duty toward Lafortune when he appeared pro se before

[it]," the IJ should have taken administrative notice of the

Report, despite Lafortune not having introduced the Report into

evidence. See Gebremichael v. INS, 10 F.3d 28, 39 (1st Cir. 1993).

Because a showing by a petitioner of a particularized

risk of future torture is essential to prevailing on a CAT claim,

Lafortune cannot point merely to general conditions applicable to

millions of Haitians that are noted in the Report to bolster his

claims, see Bazile v. Garland, 76 F.4th 5, 16 (1st Cir. 2023) ("The

petitioner conceded that the country conditions report showed only

generalized political turmoil, with no particular mention of

either the Lavalas Party or its adherents."), let alone fault the

IJ for not taking administrative notice of such an extra-record

report about country conditions, see id. at 15 (noting that

"generalized statements of belief, devoid of specifics, are

insufficient to bear the weight of a CAT claim" and that "general

evidence about country conditions cannot compensate for the lack

of specific evidence showing a particularized risk of torture").

Thus, we conclude that the IJ did not err in not taking

administrative notice of the 2021 U.S. State Department Report for

- 26 - Haiti, as, even though Lafortune contends that he was subject to

torture because of his membership in the Lavalas party, the Report

does not reference that party.

D.

We next address Lafortune's two contentions that concern

how the IJ proceeded on remand from the BIA. First, he appears to

be contending that, following the remand, the IJ failed to

adequately "develop the record" because the IJ refused to reopen

the evidentiary record and consider new evidence submitted by

Lafortune and that the BIA erred in ruling otherwise. Second, he

contends, seemingly as a fallback, that, in any event, the BIA

erred by failing to provide a reasoned analysis for its denial of

Lafortune's argument on appeal to it that the IJ's refusal to

reopen the evidentiary record violated his due-process right to a

full and fair hearing. Neither argument persuades.

Lafortune notes that when he first appealed the IJ's

March 14, 2022 decision to the BIA, he filed, along with his notice

of appeal, additional evidence in support of his CAT claim. "Most

notably," Lafortune highlights, "he appended new written

statements from his sister, Fedia, and aunt, Marie Ange, describing

more recent events of threats and harm suffered by Lafortune's

parents and Lavalas political party members."

The BIA, without explicitly addressing the new

evidence, "conclude[d] that remand [was] warranted for [Lafortune]

- 27 - to have an opportunity to appear with counsel." The BIA made sure

to clarify, however, that "[o]n remand, the Immigration Judge may

take any action [it] deems appropriate and necessary. The Board

expresses no opinion regarding the ultimate outcome of these

proceedings." Subsequently, on remand, the IJ refused to reopen

the evidentiary record, explaining that

[e]ven in a pro se capacity, [Lafortune] was given more than enough time to prepare for his [prior] individual [merits] hearing on March 14, 2022. On December 14, 2021, he requested 30 to 60 days to prepare for his hearing and he was given a full 60 days. Then after two more continuances he received another full month. Thus, [Lafortune] has had a full three months to prepare for his case from the time it was initially set for an individual hearing and he did, in fact, submit substantive evidence in support of his claims.

Lafortune pressed the argument to the BIA following the

IJ's decision on remand that the IJ failed to adequately "develop

the record" because the IJ refused to reopen the evidentiary

record. The BIA rejected that argument, noting that "it is the

respondent's burden of proof to demonstrate eligibility for

relief," and thereafter citing to 8 C.F.R. § 1208.16(c)(2). That

reasoning appears to align with the IJ's justification for refusing

to reopen the record: Lafortune had had "more than enough time to

prepare for his hearing," and "he did, in fact, submit substantive

evidence in support of his claims." We agree with the agency that,

given the course of proceedings in this case, the IJ's decision to

- 28 - adjudicate Lafortune's claims on the same record as the previous

hearing was consistent with due process and its obligation to

develop the record.3

We similarly find unpersuasive Lafortune's argument that

the BIA failed to provide a reasoned analysis for its denial of

his challenge to the IJ's actions following the BIA's remand. The

BIA expressly countered Lafortune's claim about a duty to develop

the record by stating that, "[a]lthough [Lafortune] argues on

appeal the [IJ] failed to adequately develop the record, it is the

respondent's burden of proof to demonstrate eligibility for

relief . . . . 8 C.F.R. § 1208.16(c)(2)." Then, shifting from

that point, the BIA indicated that the record supported the IJ's

decision denying CAT protection, as, inter alia, Lafortune

"provided no evidence to establish a particularized risk of torture

by or with the consent or acquiescence of a public official." As

noted, these observations by the BIA accord with the IJ's

3 "Notably, [the BIA's] remand order did not require that the [IJ] permit the parties to submit additional evidence, and the [IJ] did not request such submissions following [the BIA's] remand." Li v. U.S. Att'y Gen., 446 F. App'x 501, 503 (3d Cir. 2011). Indeed, the BIA stated in its decision that "[t]he record is remanded to the Immigration Judge for further proceedings consistent with [its] opinion and the entry of a new decision" while emphasizing that remand was warranted "for the respondent to have an opportunity to appear with counsel" and that "[o]n remand, the Immigration Judge may take any action [it] deems appropriate and necessary" (emphasis added).

- 29 - determination that, because Lafortune had already had ample

opportunity to adduce evidence in support of his CAT claim, it was

proper to resolve his claim based on the pre-remand record.

"[T]he BIA is not required to detail exhaustively its

reasons for affirmance. Where, as here, the BIA's decision

'illuminate[s] the path of its reasoning,' no more is necessary."

Telyatitskiy v. Holder, 628 F.3d 628, 631 n.2 (1st Cir. 2011)

(second alteration in original) (quoting Lopez Perez v. Holder,

587 F.3d 456, 460 (1st Cir. 2009)). We therefore discern no error

on the BIA's part.

E.

Lafortune's last argument is that the BIA erred in

rejecting his CAT claim because Lafortune "did not demonstrate he

is more likely than not to be tortured in Haiti by or with the

consent or acquiescence (to include willful blindness) of a public

official or another individual acting in an individual capacity."

In support of this statement, the BIA noted that Lafortune's

"family was able to report the harm they experienced to the police

on at least four separate occasions, and the police indicated that

investigations were ongoing for each incident." The BIA then

explained that Lafortune "provided no evidence to establish a

particularized risk of torture by or with the consent or

acquiescence of a public official." The BIA also invoked Granada-

Rubio v. Lynch, 814 F.3d 35, 40 (1st Cir. 2016), for the

- 30 - proposition that "general reports of corruption or ineffective

policing are insufficient to establish acquiescence."

Lafortune argues to us that his "father's ability to

report the threats and [the] police reports' allusion to ongoing

investigations, by itself, is insufficient to defeat his CAT

claim." And that is so, he contends, because "[n]othing in the

record suggests that the police ever took any action to actually

protect him." Lafortune therefore contends that "[t]his case

should . . . be remanded with instructions for the agency to

explore and consider the Haitian[] government's lack of response

to Lafortune's father's reported incidents of harm in its CAT

analysis."

Lafortune must show, however, that the record compels a

conclusion contrary to the agency's determination. See 8 U.S.C.

§§ 1229a(c)(4)(A)(i), 1252(b)(4)(B). But the agency "considered

the evidence [Lafortune] emphasizes on appeal, and [Lafortune]

falls short of showing the evidence compelled findings in his

favor: a reasonable factfinder could agree with the [agency] that

the police, though imperfect and struggling with

[ineffectiveness], were nonetheless acting against" those

attempting to harm Lafortune's family and thus "would not exhibit

willful blindness [or consent or acquiesce] to [torture] against

[Lafortune] if he returned to [Haiti]." Blanco-Valdovinos v.

Garland, No. 21-9512, 2021 WL 5264257, at *2 (10th Cir. Nov. 12,

- 31 - 2021). We conclude, therefore, that the BIA did not err in denying

Lafortune's CAT claim on the ground that he had failed to meet his

burden to show that it was more likely than not that the government

of Haiti would consent or acquiesce to his torture if he were

removed to that country.

For the foregoing reasons, we deny Lafortune's petition

for review.

- 32 -