14-236
Pierre v. Lynch
BIA
Straus, IJ
A070 626 360
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.
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
16th day of February, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
GUERLIE PIERRE, AKA CIVERLIE
PIERRE,
Petitioner,
v. 14-236
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Joel Michael Cohen, Gibson, Dunn & Crutcher
LLP, New York, New York.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant Attorney
General; Claire L. Workman, Senior
Litigation Counsel; Edward C. Durant,
Attorney, Office of Immigration Litigation,
Washington, D.C.
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.
Petitioner Guerlie Pierre, a native and citizen of Haiti,
seeks review of a December 27, 2013 decision of the BIA affirming
a July 22, 2013 decision of Immigration Judge (“IJ”) Michael
Straus denying Pierre’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”), and ordering her removed based on her conviction for
importing into the United States five kilograms or more of
cocaine. See In re Guerlie Pierre a.k.a. Civerlie Pierre, No.
A070 626 360 (B.I.A. Dec. 27, 2013), aff’g No. A070 626 360
(Immig. Ct. Hartford, CT July 22, 2013); see also 8 U.S.C.
§§ 1182(a)(2)(A)(i)(II); 1182(a)(2)(C). On appeal, Pierre
challenges only the denial of CAT relief, arguing that the BIA
(1) erred in its application of the government acquiescence
standard under the CAT, and (2) unambiguously mischaracterized
the record in concluding that she could relocate within Haiti.
2
Although our jurisdiction is limited to review of
constitutional claims and questions of law, see Ortiz-Franco
v. Holder, 782 F.3d 81, 86 (2d Cir. 2015), that jurisdiction
extends to both issues Pierre here raises, see De La Rosa v.
Holder, 598 F.3d 103, 107, 110–11 (2d Cir. 2010) (concluding
that misapplication of government acquiescence standard under
CAT constitutes question of law); Mendez v. Holder, 566 F.3d
316, 323 (2d Cir. 2009) (holding that agency commits error of
law when it “totally overlook[s]” and “seriously
mischaracterize[s]” facts).
In the circumstances of this case, we review the IJ’s
opinion as modified by the BIA, i.e., we assume, as the BIA did,
that Pierre assisted United States law enforcement in
apprehending her co-conspirators whom she claims are seeking
to harm her. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 522 (2d Cir. 2005). Moreover, because neither the
IJ nor the BIA discussed Pierre’s credibility at any point, we
presume the credibility of Pierre’s testimony, see 8 U.S.C.
§ 1158(b)(1)(B)(iii), and her testimony alone, if credible, may
be sufficient to sustain her burden of proof, see 8 C.F.R.
§ 1208.16(c)(2). We assume the parties’ familiarity with the
underlying facts and procedural history in this case, which we
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explain only as necessary to explain our decision to grant the
petition.
1. Government Acquiescence
To establish eligibility for CAT relief, an applicant must
demonstrate that (1) “it is more likely than not that he or she
would be tortured if removed to the proposed country of
removal,” 8 C.F.R. § 1208.16(c)(2), i.e., subjected to acts
“by which severe pain or suffering is . . . intentionally
inflicted” for the purpose of punishment, Pierre v. Gonzales,
502 F.3d 109, 114 (2d Cir. 2007) (quoting 8 C.F.R.
§ 208.18(a)(1)); and (2) government officials would inflict
such torture, or otherwise acquiesce in it, see 8 C.F.R.
§ 208.18(a)(1), i.e., “know of or remain willfully blind to”
the anticipated acts of torture and “thereafter breach their
legal responsibility to prevent it,” Khouzam v. Ashcroft, 361
F.3d 161, 171 (2d Cir. 2004). We agree with Pierre that the
BIA appears to have misapplied the government acquiescence
standard and overlooked evidence suggesting that the Haitian
government would acquiesce in the drug gang’s attempt to kill
her.1
1
We reject the government’s argument that Pierre failed to
exhaust this issue before the BIA. See Lin Zhong v. U.S. Dep’t
4
The evidence shows that within a few days of Pierre’s
arrest at the Miami airport for importing cocaine into the
United States from Haiti, members of the drug conspiracy
(1) went to her family’s home in Haiti “heavily armed,” and
physically assaulted everyone inside the home, explaining that
“whenever we encounter [Pierre], we will kill her,” Certified
Administrative Record (“CAR”) 291; see also id. at 264 (letter
corroborating account in police report); and (2) went to
Pierre’s home in Miami and shot her husband, see id. at 292–
95. With respect to the incident in Haiti, Pierre testified
that one of the individuals “working with” the group is “in the
government,” id. at 142, and that certain of the individuals
were in police uniform, see id. at 95. The record further shows
that individuals followed Pierre’s sister home from school,
of Justice, 480 F.3d 104, 122 (2d Cir. 2007) (“Usually, the
requirement of [8 U.S.C.] § 1252(d)(1) that federal courts
review only ‘final orders of removal’ has the effect of imposing
a bar to the review of issues not raised to the BIA.”). Even
if Pierre did not explicitly raise to the BIA the arguments
regarding government acquiescence she here raises, she did so
implicitly by contending before the BIA, at which time she was
proceeding pro se, that the gang threatening to harm her had
connections in the government, including the police force; and
that the police failed adequately to investigate the incident
at her mother’s home. See Adams v. Holder, 692 F.3d 91, 96 n.2
(2d Cir. 2012) (rejecting government’s exhaustion argument and
deeming record sufficient to demonstrate exhaustion where alien
proceeded pro se before agency and alien implicitly raised
arguments to BIA).
5
stating that they are waiting for Pierre and that she “should
have kept her mouth shut.” Id. at 95–96. Pierre testified
that these incidents were initially meant to ensure that she
kept quiet and, after her cooperation with the U.S. government
resulted in the arrest of several confederates, to retaliate
against her. The IJ noted that, based on the 2011 State
Department Report for Haiti, there are “serious drug
trafficking problems” in the country, as well as corruption.
Id. at 75; see also id. at 297, 327 (State Department Report
explaining incidents of mob violence and vigilante retribution
and that, of 113 cases of vigilante lynchings, none resulted
in arrest).
In concluding that Pierre failed to demonstrate government
acquiescence, the BIA relied on a Haitian police report that
suggested that police investigated the incident at her mother’s
home, and further explained that Pierre “presented no other
evidence” of government acquiescence. CAR 3 (citing CAR 75 (IJ
explaining that Pierre “fail[ed] to provide any evidence or
testimony that connects the potential harm . . . to law
enforcement” (emphasis added))). The latter statement appears
to have “totally overlook[ed]” record evidence to the contrary,
discussed above. Mendez v. Holder, 566 F.3d at 323
6
(recognizing that agency does not commit error of law every time
item of evidence is not explicitly considered, but that error
of law occurs where agency “totally overlook[s]” important
evidence). Moreover, this court has previously questioned
whether “the preventative efforts of some government actors
should foreclose the possibility of government acquiescence,
as a matter of law, under the CAT.” De La Rosa v. Holder, 598
F.3d at 110; see Celedon-Herrera v. Lynch, --- F. App’x ---,
2015 WL 8116359, at *3 (2d Cir. Sept. 11, 2015) (relying on De
La Rosa in granting petition for review where, in reviewing CAT
claim, “IJ failed to analyze why the prompt response of some
police officers in arresting suspects for Ramon’s and his son’s
murders was sufficient to overcome the fact (accepted by the
IJ) that the Honduran government is unable to control gang
violence”).
Accordingly, we remand for the agency to consider,
consistent with the controlling precedent referenced (1) the
evidence of government acquiescence, and (2) whether the
Haitian police report is sufficient to overcome that evidence.
See De La Rosa v. Holder, 598 F.3d at 110–11 (remanding for
further consideration of government acquiescence legal
7
standard); Mendez v. Holder, 566 F.3d at 323 (remanding for
consideration of overlooked evidence).
2. Internal Relocation
The agency concluded that, even if Pierre satisfied her
burden under the CAT, she failed to demonstrate that it would
be “impossible” for her to relocate within Haiti to avoid
torture because her mother had relocated after the incident in
her home and had not been harmed or threatened thereafter.
CAR 75. Pierre argues that the agency mischaracterized the
record in finding she could relocate within Haiti. We agree.
The record indicates that Pierre’s family members did not
merely relocate but, rather, are in hiding. See id. at 137
(explaining that her mother and other family members have “been
in hiding ever since”); id. at 136–37 (testifying that Pierre’s
husband and Pierre’s family are “in hiding”). Given the
agency’s mischaracterization of the record on this issue, we
remand for the agency to consider in the first instance whether
the fact that an applicant’s family members are in hiding from
those looking to do her harm establishes the possibility of her
own internal relocation to a part of the country where she is
not likely to be tortured. See 8 C.F.R. § 1208.16(c)(3)(ii).
8
3. Conclusion
For the foregoing reasons, the petition for review is
GRANTED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED.
Any pending request for oral argument in this petition is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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