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 

New York, on the 11th 4 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
2

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 
3

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 
4

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 
5

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 
6

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 

7 Thelemaque’s prior sworn statements for credibility purposes.

8 There is nothing in the record to indicate any bias by the 

9 second IJ. “An expert witness is broadly defined as someone 

10 who is ‘qualified as an expert by knowledge, skill, 

11 experience, training, or education.’” Matter of D-R-, 25 I.

12 & N. Dec. 445, 459 (B.I.A. 2011) (quoting Fed. R. Evid. 702). 

13 The record reveals that the witness testified about her

14 education and training, her fee, and her advocacy work. And 

15 in declining to give substantial weight to the testimony, the 

16 IJ cited concerns about the witness’s educational background 

17 and lack of specialized training, as well as concerns about 

18 her objectivity given that she was a paid witness whose work 

19 involved the prevention of deportations to Haiti. 

20

21

22
7

1 For the foregoing reasons, the petition for review is 

2 DENIED. All pending motions and applications are DENIED and 

3 stays VACATED.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe,

6 Clerk of Court