Pierre v. Lynch

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 3 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 (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

9