19

- 1349 Thelemaque v. Barr BIA Mulligan , IJ A 031 130 472 

### 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 APP**  **ENDIX 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** 1 **for the Second Circuit, held a**  **t the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 1**  **1 t**  **h da**  **y of A**  **u g**  **u s**  **t ,**  **two thousand twenty**  **.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN ,**  7 **C hief**  **Judge ,**  8 **RICHARD J. SULLIVAN ,**  9 **STEVEN J. MENASHI ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **RAYNALD THELEMAQUE ,**  **AKA REYNALD** 14 **THELEMAQUE,** 15 **Petitioner ,**  16 17
**v. 19** 
**- 1349**  18 **NAC** 19 **WILLIAM P. BARR, UNITED STATES**  20 **ATTORNEY GENERAL ,**  21 **Respondent .**  22

**_____________________________________** 23 24 25 262 **FOR PETITIONER :**  Craig Relles , White Plains , NY

. 1 2 **FOR RESPONDENT:** Ethan P. Davis , Acting Assistant 3 Attorney General ; Shelley R. Goad , 4 Assistant Director; Kristen A. 5 Giuffreda , Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, D C. 9
UPON DUE CONSIDERATION of this petition for review of a 10
Board of Immigration Appeals (“BIA”) decision, it is hereby 11
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 12

is DENIED

. 13

Petitioner Raynald Thelema que , a native and citizen of 14

Haiti , seeks review of a n April 9, 2019 decision of the BIA 15
affirming a n October 2 2 , 2018 decision of an Immigration Judge 16
(“IJ”) denying Thelemaque’s application for relief under the 17
Convention Against Torture (“CAT”). In re Raynald 18
Thelemaque , No. A 031 130 472 (B.I.A. Apr. 9, 2019 ), aff’g 19

No. A 031 130 472 (Immig. Ct. N.Y. City Oct. 2 2 , 2018 ). We 20
assume the parties’ familiarity with the underlying facts and 21
procedural history in this case. 22

We review the IJ’s decision as supplemented by the BIA. 23

See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 24
Thelemaque argues for the first time that his conviction for 25

sexual abuse in the second degree in violation of New York 263 Penal Law § 130.60(2) is not an aggravated felony. We do not 1

consider this issue because , as the Government points out, 2

Thelema q ue did not challenge his grounds of removability 3

before the BIA. See Lin Zhong v. U.S. Dep’t o f Just

. , 480 4

F.3d 104, 121

– 22 (2d Cir. 2007) (holding that issue exhaustion 5
is mandatory and our review is generally limited to the 6
arguments raised before the IJ and BIA). Accordingly, we 7
address only the denial of CAT relief and Thelemaque’s due 8
process claim. 9
An applicant for CAT deferral must “establish that it is 10
more likely than not that he . . . would be tortured if 11
removed to the proposed country of removal.” 8 C. F.R. 12

§§ 1208.16(c)(2), 1208.17(a). Torture is defined as “any act 13
by which severe pain or suffering, whether physical or mental, 14
is intentionally inflicted on a person . . . by or at the 15
instigation of or with the consent or acquiescence of a public 16

offic ial or other person acting in an official capacity.” 17

8 C.F.R. § 1208.18(a)(1). We review the denial of CAT relief 18

“ under the deferential substantial

- evidence standard. ” 19

Nasrallah v. Barr , 140 S. Ct. 1683, 169 2

– 93 (2020). 20
The agency concluded that Thelemaque’s fear of torture

— 21
based on his father’s and uncle’s opposition to the former 224 Duvalier regimes

— wa s too speculative to warrant relief

. 1

There is substantial evidence for that conclusion because the 2
family members who oppo sed the Duvalier regimes fled Haiti 3
over forty years ago, the Duvaliers a re deceased, and the 4

second Duvalier leader was exiled and arrested before his 5

death. See Jian Xing Huang v. U.S. Immigr. & Naturalization 6

Serv. , 421 F.3d 125, 129 (2d Cir. 2005) (“I n the absence of 7
solid support in the record . . .,[an applicant’s] fear is 8
speculative at best.”). 9
The agency also reasonably concluded that Thelemaque had 10

not shown that he was more likely than not to be tortured 11

because he is a sex offender and would be detained by the 12
Haitian government as a criminal deportee. Although 13
Thelemaque’s expert witness testified that deportees a re 14

sometimes detained and that Thelemaque’s conv iction made him 15

more vulnerable, she also testified that the government 16
generally does not detain criminal deportees , and other 17
country conditions evidence reflected that the Haitian 18
government no longer had a policy of detaining deportees

. 19

The IJ had dis cretion to determine the weight afforded to 20

this evidence and , because the evidence did not compel a 21
conclusion to the contrary, substantial evidence supports the 225 conclusion that Thelemaque had not shown a likelihood of 1

torture for someone in his particular circumstances. See 2

Nasrallah , 140 S. Ct. at 1692 ( “ The agency’s ‘ findings of 3
fact are conclusive unless any reasonable adjudicator would 4
be compelled to conclude to the contrary. ’ ” (quot ing 8 U.S.C. 5

§ 1252(b)(4)(B) )) ; Xiao Ji Chen v. U.S. Dep’t of Just

. , 471 6
F.3d 315, 342 (2d Cir. 2006) (noting that a determination of 7
the weight of evidence “lies largely within the discretion of 8
the [agency]” (internal quotation marks and alteration 9
omitted)) ; Mu

- Xing Wang v. Ashcroft , 320 F.3d 130, 144 (2d 10
Cir. 2003) ( a CAT applicant must show “that someone in his 11
particular alleged circumstances is more likely than not to 12
be tortured” (emphasis omitted) ). 13
Finally, Thelemaque did not establish a due process 14
violation. He argued that th e IJ o riginally assigned to his 15

case should have recus ed herself earlier based o n her 16

involvement in litigation regarding the qualifications of his 17
proposed expert witness . To succeed on a due process claim, 18
a petitioner must show (1) he was denied a “full and fair 19
opportunity” to present his claims or that he was “ otherwise 20
deprived

. . . of fundamental fairness,” Burger v. Gonzales , 21
498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks 226 and citation omitted), and (2) “cognizable prejudice,” 1

Garcia

- Villeda v. Mukasey , 531 F.3d 141, 149 (2d Cir. 2008) 2
(citation omitted). Thelemaque has not demonstrated that he 3
was deprived of any process or that he was prejudiced. The 4
original IJ recused herself on the Government’s motion , and 5
the subsequent IJ conducted a new hearing but considered 6
Thelemaque’s prior s worn s tatements f or credibility purposes

. 7
There is nothing in the record to indicate any bias by the 8

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

who is ‘ qualified as an expert by knowledge, skill, 10
experience, training, or education. ’ ” Matter of D

- R

- , 25 I. 11

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

. 12

The record reveals that the witness testified about her 13

education and training , her fee, and her advocacy work

. And 14
in declining to give substantial weight to the testimony, t he 15

IJ cited concerns about the witness’s educational background 16
and lack of specialized training, as well as concerns about 17
her objectivity given that she was a paid witness whose work 18
involved the preve n tion of deportations to Haiti

. 19

20

21

227 For the foregoing reasons, the petition for review is 1

DENIED

. All pending motions and applications are DENIED and 2

stays VACATED. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe , 5 Clerk of Court 6