15-859
De La Rosa v. Sessions
BIA
Poczter, IJ
A074 846 321
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 5th day of May, two thousand seventeen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LUIS DE LA ROSA,
14 Petitioner,
15
16 v. 15-859
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Seanna R. Brown; Eric R. Fish; Erica
24 Barrow, Baker & Hostetler LLP, New
25 York, N.Y.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Mary
29 Jane Candaux, Assistant Director;
30 Edward E. Wiggers, Senior Litigation
31 Counsel, Office of Immigration
32 Litigation, United States
33 Department of Justice, Washington
34 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED, the BIA’s decision is VACATED, and the case is REMANDED
5 for further proceedings consistent with this order.
6 Petitioner Luis De La Rosa, a native and citizen of the
7 Dominican Republic, seeks review of a March 9, 2015 decision
8 of the BIA affirming a September 10, 2012 decision of an
9 Immigration Judge (“IJ”) denying De La Rosa’s application for
10 withholding of removal and relief under the Convention Against
11 Torture (“CAT”). In re Luis De La Rosa, No. A074 846 321 (B.I.A.
12 Mar. 9, 2015), aff’g No. A074 846 321 (Immig. Ct. N.Y. City Sept.
13 10, 2012). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we review both the
16 IJ’s and the BIA’s opinions “for the sake of completeness.”
17 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
18 2006). We generally lack jurisdiction to review a final order
19 of removal against an alien like De La Rosa, who was found
20 removable for having been convicted of a controlled substance
21 offense. 8 U.S.C. § 1252(a)(2)(C). We nevertheless have
22 jurisdiction to consider constitutional claims and questions
23 of law, 8 U.S.C. § 1252(a)(2)(D), for which review is de novo,
2
1 Frantzcia Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
2 De La Rosa’s arguments that the agency ignored material evidence
3 and applied an incorrect standard to assess a claim of
4 persecution raise reviewable questions of law. See Mendez v.
5 Holder, 566 F.3d 316, 323 (2d Cir. 2009); Gui Yin Liu v. INS,
6 508 F.3d 716, 721 (2d Cir. 2007).
7 To establish eligibility for withholding of removal, an
8 applicant must show “that it is more likely than not that
9 he . . . would be persecuted on account of race, religion,
10 nationality, membership in a particular social group, or
11 political opinion.” 8 C.F.R. § 1208.16(b)(2). The BIA has
12 defined persecution as a “threat to the life or freedom of, or
13 the infliction of suffering or harm upon, those who differ in
14 a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec.
15 211, 222 (B.I.A. 1985), overruled in part on other grounds by
16 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili
17 v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).
18 Persecution can be harm other than threats to life or freedom,
19 “includ[ing] non-life-threatening violence and physical
20 abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.
21 2006), but the harm must be sufficiently severe to rise above
22 “mere harassment,” Ivanishvili, 433 F.3d at 341. To
23 constitute persecution, the “harm or suffering [must] be
3
1 inflicted either by the government of a country or by persons
2 or an organization that the government was unable or unwilling
3 to control.” Matter of Acosta, 19 I. & N. Dec. at 233.
4 Economic harm “constitutes persecution if it (1) deprives the
5 victim of liberty, food, housing, employment or other
6 essentials of life, or (2) deliberately imposes a severe
7 economic disadvantage.” Huo Qiang Chen v. Holder, 773 F.3d
8 396, 405 (2d Cir. 2014) (internal quotation marks omitted). In
9 evaluating a claim of persecution, the agency is required to
10 consider the cumulative significance of the alleged incidents
11 as opposed to the severity of each incident in isolation. See
12 Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).
13 De La Rosa is correct that the agency erred by failing to
14 assess cumulatively the harm he would face at the hands of
15 private actors in the Dominican Republic and by failing to
16 consider certain material evidence. Although the agency
17 concluded without elaboration that discrimination does not
18 amount to persecution, discrimination in housing and employment
19 may constitute persecution when considered cumulatively in
20 light of an applicant’s particular circumstances, see Huo Qiang
21 Chen, 773 F.3d at 405 (“[W]hether a given . . . sanction
22 constitutes persecution turns on its ‘impact’ on the victim.
23 . . . [A] sanction that impoverishes a poor victim would
4
1 constitute persecution, while the same sanction imposed on a
2 wealthier individual without such effect would not.” (internal
3 citations omitted)); see also Beskovic, 467 F.3d at 227
4 (requiring analysis sufficient to enable meaningful judicial
5 review). And while the BIA found speculative De La Rosa’s claim
6 that he would become homeless due to discrimination in
7 employment and housing and would therefore be unable to obtain
8 his required medications under the national treatment program,
9 De La Rosa supported the claim with credible expert testimony
10 and evidence on societal discrimination and its impact on his
11 ability to obtain his medications. The agency’s failure to
12 discuss this evidence compellingly suggests that it was ignored
13 and that the agency failed to consider De La Rosa’s alleged harm
14 in the aggregate. See Xiao Ji Chen v. U.S. Dep’t of Justice,
15 471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
16 “has taken into account all of the evidence before [it], unless
17 the record compellingly suggests otherwise”); see also Jin Shui
18 Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003) (recognizing
19 that the agency must “consider all factual assertions in an
20 applicant’s claim for eligibility [except] where the evidence
21 in support of a factor potentially giving rise to eligibility
22 is too insignificant to merit discussion.” (internal quotation
23 marks and citations omitted), overruled in part on other grounds
5
1 by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309–
2 10 (2d Cir.2007) (en banc); Poradisova, 420 F.3d at 77 (“We
3 require some indication that the IJ considered material
4 evidence supporting a petitioner’s claim.”). We therefore
5 remand the proceedings for consideration of this evidence and
6 a proper assessment of De La Rosa’s claimed harm in the first
7 instance.
8 In order to demonstrate eligibility for CAT relief, an
9 applicant must show that he will more likely than not be tortured
10 if removed to the designated country of removal. 8 C.F.R.
11 §§ 1208.16(c)(2), 1208.17(a) (providing the burden for CAT
12 relief). The act of torture is defined as “any act by which
13 severe pain or suffering, whether physical or mental, is
14 intentionally inflicted on a person . . . for any reason based
15 on discrimination of any kind . . . by or at the instigation
16 of or with the consent or acquiescence of a public official.”
17 Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (quoting
18 8 C.F.R. § 208.18(a)(1) and citing CAT art. 1). Cognizable
19 official acquiescence “requires only that government officials
20 know of or remain willfully blind to an act and thereafter breach
21 their legal responsibility to prevent it.” Khouzam v.
22 Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). “In assessing
23 whether it is more likely than not that an applicant would be
6
1 tortured in the proposed country of removal, all evidence
2 relevant to the possibility of future torture shall be
3 considered, including, but not limited to . . . [o]ther relevant
4 information regarding conditions in the country of removal.”
5 8 C.F.R. § 1208.16(c)(3).
6 De La Rosa is correct that the agency failed to consider
7 material evidence in concluding that the Dominican government
8 would not acquiesce in any torture of him. See Mendez, 566 F.3d
9 at 323. The IJ found that “the expert witness testified that
10 there are two laws on the books in the Dominican Republic about
11 discrimination, which have been enacted in an effort to protect
12 the human rights of it’s [sic] citizens.” However, the IJ did
13 not consider the expert’s testimony that those laws are either
14 not applicable to De La Rosa (because they protect only
15 employees, and not potential hires) or ineffective due to lack
16 of enforcement by the government. Nor did the IJ consider the
17 record evidence suggesting that discrimination is often
18 exacerbated by a lack of confidentiality. The BIA agreed with
19 the IJ’s acquiescence finding without explanation. The BIA
20 further agreed that De La Rosa failed to establish eligibility
21 for CAT relief because he did not demonstrate that Dominican
22 authorities deprive similarly situated individuals health care
23 with the specific intent of inflicting severe pain or suffering
7
1 on them. That finding failed to take into account the proffered
2 expert evidence regarding the scope and enforcement of the
3 Dominican Republic’s laws concerning intentional societal
4 discrimination. It further ignored that, as a result of such
5 intentional discrimination, De La Rosa may suffer severe pain
6 and suffering amounting to torture because he would be denied
7 access to otherwise available medical care. See Pierre, 502
8 F.3d at 114.
9 Accordingly, the petition for review is GRANTED, the BIA’s
10 decision is VACATED, and the case is REMANDED for further
11 proceedings consistent with this order. As we have completed
12 our review, any stay of removal that the Court previously
13 granted in this petition is VACATED, and any pending motion for
14 a stay of removal in this petition is DISMISSED as moot. Any
15 pending request for oral argument in this petition is DENIED
16 in accordance with Federal Rule of Appellate Procedure
17 34(a)(2), and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
8