Thelemaque v. Barr
This text of Thelemaque v. Barr (Thelemaque v. Barr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
19-1349 Thelemaque v. Barr BIA Mulligan, IJ A031 130 472 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of August, two thousand twenty. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RICHARD J. SULLIVAN, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 RAYNALD THELEMAQUE, AKA REYNALD 15 THELEMAQUE, 16 Petitioner, 17 18 v. 19-1349 19 NAC 20 WILLIAM P. BARR, UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 1 FOR PETITIONER: Craig Relles, White Plains, NY. 2 3 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 4 Attorney General; Shelley R. Goad, 5 Assistant Director; Kristen A. 6 Giuffreda, Trial Attorney, Office 7 of Immigration Litigation, United 8 States Department of Justice, 9 Washington, DC.
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Raynald Thelemaque, a native and citizen of
15 Haiti, seeks review of an April 9, 2019 decision of the BIA
16 affirming an October 22, 2018 decision of an Immigration Judge
17 (“IJ”) denying Thelemaque’s application for relief under the
18 Convention Against Torture (“CAT”). In re Raynald
19 Thelemaque, No. A 031 130 472 (B.I.A. Apr. 9, 2019), aff’g
20 No. A 031 130 472 (Immig. Ct. N.Y. City Oct. 22, 2018). We
21 assume the parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 We review the IJ’s decision as supplemented by the BIA.
24 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
25 Thelemaque argues for the first time that his conviction for
26 sexual abuse in the second degree in violation of New York
2 1 Penal Law § 130.60(2) is not an aggravated felony. We do not
2 consider this issue because, as the Government points out,
3 Thelemaque did not challenge his grounds of removability
4 before the BIA. See Lin Zhong v. U.S. Dep’t of Just., 480
5 F.3d 104, 121–22 (2d Cir. 2007) (holding that issue exhaustion
6 is mandatory and our review is generally limited to the
7 arguments raised before the IJ and BIA). Accordingly, we
8 address only the denial of CAT relief and Thelemaque’s due
9 process claim.
10 An applicant for CAT deferral must “establish that it is
11 more likely than not that he . . . would be tortured if
12 removed to the proposed country of removal.” 8 C.F.R.
13 §§ 1208.16(c)(2), 1208.17(a). Torture is defined as “any act
14 by which severe pain or suffering, whether physical or mental,
15 is intentionally inflicted on a person . . . by or at the
16 instigation of or with the consent or acquiescence of a public
17 official or other person acting in an official capacity.”
18 8 C.F.R. § 1208.18(a)(1). We review the denial of CAT relief
19 “under the deferential substantial-evidence standard.”
20 Nasrallah v. Barr, 140 S. Ct. 1683, 1692–93 (2020).
21 The agency concluded that Thelemaque’s fear of torture—
22 based on his father’s and uncle’s opposition to the former
3 1 Duvalier regimes—was too speculative to warrant relief.
2 There is substantial evidence for that conclusion because the
3 family members who opposed the Duvalier regimes fled Haiti
4 over forty years ago, the Duvaliers are deceased, and the
5 second Duvalier leader was exiled and arrested before his
6 death. See Jian Xing Huang v. U.S. Immigr. & Naturalization
7 Serv., 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of
8 solid support in the record . . .,[an applicant’s] fear is
9 speculative at best.”).
10 The agency also reasonably concluded that Thelemaque had
11 not shown that he was more likely than not to be tortured
12 because he is a sex offender and would be detained by the
13 Haitian government as a criminal deportee. Although
14 Thelemaque’s expert witness testified that deportees are
15 sometimes detained and that Thelemaque’s conviction made him
16 more vulnerable, she also testified that the government
17 generally does not detain criminal deportees, and other
18 country conditions evidence reflected that the Haitian
19 government no longer had a policy of detaining deportees.
20 The IJ had discretion to determine the weight afforded to
21 this evidence and, because the evidence did not compel a
22 conclusion to the contrary, substantial evidence supports the
4 1 conclusion that Thelemaque had not shown a likelihood of
2 torture for someone in his particular circumstances. See
3 Nasrallah, 140 S. Ct. at 1692 (“The agency’s ‘findings of
4 fact are conclusive unless any reasonable adjudicator would
5 be compelled to conclude to the contrary.’” (quoting 8 U.S.C.
6 § 1252(b)(4)(B))); Xiao Ji Chen v. U.S. Dep’t of Just., 471
7 F.3d 315, 342 (2d Cir. 2006) (noting that a determination of
8 the weight of evidence “lies largely within the discretion of
9 the [agency]” (internal quotation marks and alteration
10 omitted)); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 144 (2d
11 Cir. 2003) (a CAT applicant must show “that someone in his
12 particular alleged circumstances is more likely than not to
13 be tortured” (emphasis omitted)).
14 Finally, Thelemaque did not establish a due process
15 violation. He argued that the IJ originally assigned to his
16 case should have recused herself earlier based on her
17 involvement in litigation regarding the qualifications of his
18 proposed expert witness. To succeed on a due process claim,
19 a petitioner must show (1) he was denied a “full and fair
20 opportunity” to present his claims or that he was “otherwise
21 deprived . . . of fundamental fairness,” Burger v. Gonzales,
22 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks
5 1 and citation omitted), and (2) “cognizable prejudice,”
2 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
3 (citation omitted). Thelemaque has not demonstrated that he
4 was deprived of any process or that he was prejudiced. The
5 original IJ recused herself on the Government’s motion, and
6 the subsequent IJ conducted a new hearing but considered
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