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. 
2 

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. 
3 

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 
4 

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 
5 

 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). 
6 

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 
7 

(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 
8 

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). 

 
9 

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