Manon Berroa v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: July 25, 2023
• Docket: 20-706
• Status: Unpublished

Opinion

20-706 Manon Berroa v. Garland BIA Tsankov, IJ A023 469 659

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of July, two thousand twenty- three.

PRESENT: JON O. NEWMAN, SUSAN L. CARNEY, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

BIENVENIDO ANTONIO MANON BERROA, AKA MANION ANTONIO, AKA JULIO BERRIOS, AKA JOSE BERROA, Petitioner,

v. 20-706 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Sophia E. Gurulé, Jessica Swensen, The Bronx Defenders, Bronx, NY; Nancy Morawetz, Washington Square Legal Services, New York, NY.

FOR RESPONDENT: Jeffrey Bossert Clark, Assistant Attorney General; Cindy S. Ferrier, Assistant Director; Genevieve M. Kelly, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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

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

DECREED that the petition for review is GRANTED in part and DENIED in part.

Petitioner Bienvenido Antonio Manon Berroa, a native and citizen of the

Dominican Republic, seeks review of a January 27, 2020 decision of the BIA,

affirming a January 15, 2019 decision of an Immigration Judge (“IJ”), which denied

his application for relief under the Convention Against Torture (“CAT”). In re

Bienvenido Antonio Manon Berroa, No. A 023 469 659 (B.I.A. Jan. 27, 2020), aff’g No.

A 023 469 659 (Immigr. Ct. N.Y. City Jan. 15, 2019). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified and supplemented by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for 2 substantial evidence and questions of law de novo. Quintanilla-Mejia v. Garland, 3

F.4th 569, 583 (2d Cir. 2021). The agency’s factual findings are “conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B).

I. Agency’s Jurisdiction

We deny the petition with respect to Manon Berroa’s challenge to the

agency’s jurisdiction based on the omission of the hearing information from his

Notice to Appear (“NTA”) because his argument is foreclosed by this court’s

decision in Banegas Gomez v. Barr, 922 F.3d 101, 110–12 (2d Cir. 2019). In Pereira v.

Sessions, the Supreme Court held that an NTA must include a hearing time and

place to trigger the “stop-time rule,” 138 S. Ct. 2105, 2113–20 (2018), which cuts off

an alien’s accrual of presence or residence for the purposes of qualifying for

cancellation of removal, see 8 U.S.C. § 1229b(d)(1). Manon Berroa, who did not

apply for cancellation, argues that an NTA that lacks a hearing date and time is

insufficient to vest the immigration court with jurisdiction over removal

proceedings. His claim fails because Pereira addresses a “narrow question”

regarding the stop-time rule and does not “void jurisdiction in cases in which an

NTA omits a hearing time or place.” Banegas Gomez, 922 F.3d at 110. Manon

3 Berroa’s reliance on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), fails for the same

reason. Niz-Chavez clarified that, for purposes of the stop-time rule, a hearing

notice cannot cure a defective NTA. 141 S. Ct. at 1480–86. But we subsequently

held that both Pereira—as discussed in Banegas-Gomez—and Niz-Chavez address a

“narrow question” regarding the stop-time rule and do not “void jurisdiction in

cases in which an NTA omits a hearing time or place.” Chery v. Garland, 16 F.4th

980, 986–87 (2d Cir. 2021) (quoting Banegas Gomez, 922 F.3d at 110). Although

Manon Berroa’s NTA did not specify the date of his initial hearing, he received

hearing notices specifying that information and he attended his hearings.

II. Due Process

We deny the petition with respect to Manon Berroa’s argument that he was

deprived of due process because the IJ did not make an affirmative inquiry into

his competency or implement additional safeguards concerning the use of video

teleconferencing (“VTC”). To succeed on a due process challenge to immigration

proceedings, a noncitizen must demonstrate that he was deprived of an

opportunity to be heard “in a meaningful manner,” Burger v. Gonzales, 498 F.3d

131, 134 (2d Cir. 2007), and that the “alleged shortcomings . . . prejudiced the

outcome of his case,” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

4 The use of VTC in immigration proceedings is permissible if it “accord[s] with the

constitutional requirements of the Due Process Clause.” Aslam v. Mukasey, 537

F.3d 110, 115 (2d Cir. 2008).

Here, the BIA reasonably determined that Manon Berroa had waived the

issue of VTC accommodations at his merits hearing because his counsel consented

to the use of VTC without raising the need for additional safeguards. And,

although he had objected to the use of VTC in his motions to appear in person, he

declined to press those motions when the IJ gave him the opportunity to argue

them. Cf. Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009) (holding, with respect

to concession of removability, that, “[i]n the absence of egregious circumstances,

[the applicant] remains bound by his attorney’s concession” (internal quotation

marks omitted)).

Similarly, the BIA did not err in concluding that Manon Berroa waived any

argument that the IJ should have conducted an affirmative inquiry into whether

the use of VTC “would affect his ability to participate fully and without any

safeguards” given his mental health conditions. Pet’r’s Br. at 48. Manon Berroa

did not ask the IJ to conduct such an inquiry. See Prabhudial v. Holder, 780 F.3d

553, 555 (2d Cir. 2015) (“[T]he BIA may refuse to consider an issue that could have

5 been, but was not, raised before an IJ.”). A psychologist, Dr. Joseph Giordino,

submitted a psychological evaluation and testified about Manon Berroa’s mental

health conditions, but Manon Berroa’s attorney did not otherwise assert that he

was incompetent to proceed through VTC. Although Manon Berroa argues that

the use of VTC prejudiced him because it caused the IJ’s partial adverse credibility

determination, the BIA did not rely on a lack of credibility when affirming the

denial of CAT relief. Accordingly, Manon Berroa has not established the

prejudice required to succeed on a due process claim. See Garcia-Villeda, 531 F.3d

at 149.

III. CAT Relief

We grant the petition and remand to the agency as to the denial of CAT

relief because the IJ failed to explicitly consider Manon Berroa’s claims that he

would be tortured by members of the public or police outside the context of

incarceration or that he would be tortured because of his status as a criminal

deportee from the United States. An applicant for CAT relief must establish that

he will “more likely than not” be tortured. 8 C.F.R. § 1208.16(c)(2); Khouzam v.

Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). A CAT claim is “too speculative” if “it

involves a chain of assumptions”; an applicant is required to show that each link

6 in the chain is more likely than not to occur. Savchuck v. Mukasey, 518 F.3d 119,

124 (2d Cir. 2008) (internal quotation marks omitted). However, CAT claims

“must be considered in terms of the aggregate risk of torture from all sources, and

not as separate, divisible claims.” Matter of J-R-G-P-, 27 I. & N. Dec. 482, 484

(B.I.A. 2018) (alteration adopted) (internal quotation marks and citation omitted).

The IJ did not explicitly or thoroughly consider all the alleged risks of

torture. In his filings and at the hearing, Manon Berroa asserted that he feared

that he would be tortured for the following reasons. First, he would lack access

to mental health care in the Dominican Republic, which would result in erratic

behavior in public, and which would in turn result in torture by the public and the

police. Second, his erratic behavior and substance abuse stemming from his

mental health conditions would lead to incarceration in the Dominican Republic,

and he would be tortured by guards and inmates in prison because of his status as

a criminal deportee from the United States. Third, he would be killed by people

who believed he was responsible for the murder of one of their family members.

The IJ made a clear determination that Manon Berroa failed to establish a

likelihood of torture by individuals related to a murder victim. And the IJ

addressed Manon Berroa’s claim that he would be incarcerated as a result of his

7 lack of mental health treatment and then tortured in prison because of his mental

health conditions. But the IJ did not consider what abuse Manon Berroa would

suffer from members of the public or by police outside of incarceration and the

record reflected that he suffered beatings and an attempted rape in the past and

that he had witnessed the police beating people who lived on the streets. While

the IJ determined that there was no likelihood that Manon Berroa would be

incarcerated due to mental health issues, the IJ did not address how Manon

Berroa’s status as a criminal deportee from the United States would relate to his

treatment given evidence that criminal deportees are monitored and sometimes

arrested without justification, and that police use excessive force and torture

individuals in custody with impunity.

Manon Berroa raised this issue—that the IJ failed to consider all the risks of

torture—before the BIA, but, while the BIA acknowledged that he asserted these

fears, it did not address the IJ’s failure to consider them. Rather, the BIA

erroneously found that the IJ had “acknowledged [his] claimed fear of torture by

members of the public, police, or mental health professionals due to his mental

health condition.” Certified Administrative Record (“CAR”) at 5. As a

threshold matter, Manon Berroa did not assert a fear of torture by mental health

8 professionals. Moreover, as noted above, the IJ did not make findings regarding

Manon Berroa’s risk of torture by police outside the context of incarceration or by

members of the public.

The BIA also concluded that the “evidence does not adequately establish

that . . . authorities detain or created detention procedures or conditions for

criminal deportees or those with mental illnesses with the specific intent of

inflicting severe physical or mental pain or suffering,” id., but the IJ did not make

findings regarding the intent of the authorities, and so the BIA was not permitted

to find those facts in the first instance. See Padmore v. Holder, 609 F.3d 62, 68–70

(2d Cir. 2010); see also Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite

our generally deferential review of IJ and BIA opinions, we require a certain

minimum level of analysis . . . if judicial review is to be meaningful.”).

Manon Berroa’s remaining challenges to the agency’s decisions are without

merit. He argues that the IJ’s partial adverse credibility determination is incorrect

and challenges the IJ’s reliance on an unsigned affidavit when making that

credibility finding. But the credibility findings are not part of the decision under

review because the BIA did not rely on those findings as a basis for denying relief.

See Xue Hong Yang, 426 F.3d at 522. Manon Berroa also argues that the agency

9 incorporated elements of an asylum claim, essentially requiring him to establish a

subjective fear of torture and demonstrate a nexus to a protected ground. But the

record does not support this argument: the agency considered the connection

between his mental health and his fear of torture because mental health was a

reason he proffered for the risk of torture, and the BIA denied relief not because

Manon Berroa did not have a subjective fear, but rather because it found that his

fear was too speculative. See Savchuck, 518 F.3d at 124. Finally, Manon Berroa

argues that the IJ failed to determine whether the Dominican government would

acquiesce to his torture. While he is correct that the IJ did not address

acquiescence, acquiescence is only one element of a CAT claim, and the agency

did not deny relief on that basis. Id.

For the foregoing reasons, the petition for review is GRANTED in part and

DENIED in part, and the case is remanded for further consideration or explanation

of the CAT claim. Petitioner’s pending motions for a stay of removal and oral

argument are DENIED.

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