21

- 6506 J. P. B. v. Garland BIA Reid , IJ A 070 524 933 

### 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 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 1 s t da y of S e p t e m b e r , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 ROBERT D. SACK, 7 DENNY CHIN, 8 WILLIAM J. NARDINI, 9 Circuit Judges. 10

_____________________________________ 11 12 J. P. B. , 13 Petitioner , 14 15

v. 21

- 6506 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 1 20

1 The Clerk of Court is instructed to amend the caption as set forth above. We have elected, nostra sponte, to abbreviate the Petitioner’s name in this summary order. See 2d Cir. Local Rule 27.1(j).2 _____________________________________ 1 2 FOR PETITIONER : Craig Relles, Esq., Law Office of Craig Relles, 3 White Plains, NY

. 4 5 FOR RESPONDENT: Brian M. Boynton , Principal Deputy Assistant 6 Attorney General ; Mary Jane Candaux , 7 Assistant Director; A. Ashley Arthur , Trial 8 Attorney, Office of Immigration Litigation, 9 United States Department of Justice, 10 Washington, D C. 11 UPON DUE CONSIDERATION of this petition for review of a Board of 12
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 13

DECREED that the petitio n for review is GRANTED

. 14

Petitioner J. P. B. , a native and citizen of Liberia , seeks review of a September 15

14, 2021 , decision of the BIA re v ersing a decision of an I mmigration Judge (“IJ”) 16

that grant ed his application for deferral of removal under the Convention Against 17
Torture (“CAT”). In re J. P. B. , No. A 070 524 933 (B.I.A. Sept. 14, 2021 ), vacating 18

No. A 070 524 933 (Immig. Ct. N.Y. City Aug. 28, 2020 ). We assume the parties’ 19
familiarity with the underlying facts and procedural history. 20
When the BIA reverses an IJ’s grant of relief, we treat the BIA’s decision as 21
the final agency determination. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 22
Cir. 2005). We review factual findings for substantial evidence and questions of 233 law de novo. See Nasrallah v. Barr , 140 S. Ct. 1683, 1692 (2020) ; Manning v. Barr , 1
954 F.3d 477, 484 (2d Cir. 2020); see also Hui Lin Huang v. Holder , 677 F.3d 130, 134 2
(2d Cir. 2012) ( explaining that the likelihood of a future event is a finding of fact). 3
“[T]he administrative findings of fact are conclusive unless any reasonable 4
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 5
§ 1252(b)(4)(B). 6
However, the BIA is not authorized to engage in independent factfinding, 7
and it may review an IJ’s factual findings “only to determine whether [those] 8
findings . . . are clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). 2 “A finding is 9
‘clearly erroneous’ when although there is evidence to support it, the reviewing 10

court on the entire evidence is left with the definite and firm conviction that a 11

mistake has been committed.” Wu Lin v. Lynch , 813 F.3d 122, 126

– 27 (2d Cir. 2016) 12
(quotation marks omitted). In reviewing the BIA’s finding of clear error, we do 13
not reach our own determination as to whether the IJ clearly erred, but rather 14
review the BIA’s decision to “determine whether the BIA has provided sufficient 15
justification for its conclusion” and to confirm “that the BIA has not violated the 16
prohibition against making its own findings of fact.” Id. at 129. 17

2 All citations refer to regulations in effect at the time of the agency decision.4 To be eligible for CAT relief, an applicant has the burden to show that he 1
would “more likely than not” be tortured by or with the acquiescence of 2
government officials. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a), 1208.18(a)(1). Where 3
the risk of torture relies on a sequence of possible events, “an alien will never be 4
able to show that he faces a more likely than not chance of torture if one link in the 5
chain cannot be shown to be more likely than not to occur,” because “a chain of 6
events cannot be more likely than its least likely link.” Savchuck v. Mukasey , 518 7
F.3d 119, 123 (2d Cir. 2008) (alteration omitted) (quoting In re J

–

F

– F

– , 23 I. & N. 8
Dec. 912, 918 n.4 (A.G. 2006)). 9

J. P. B. asserted that he feared torture in Liberia , and that the government 10
would not protect him, because of his family’s violent history with supporters of 11
former Liberian President Charles Taylor, who killed some of his immediate 12
family members in the 1990s and more recently attempted to kill his distant cousin, 13

and because a current political figure suspected J. P. B. of cooperating against him 14

with U .S. authorities. The IJ agreed that J. P. B. was more likely than not to be 15

torture d by or with the acquiescence of the government on those grounds. In 16
concluding that the IJ clearly erred in making those predictive findings, the BIA 17

found clear error in the IJ’s underlying factual findings that Taylor’s supporters 185 would likely target J. P. B. based on his association with his cousin, who had 1
testified against Taylor, and that the current political figure suspected J. P. B. of 2
cooperating against him. For the reasons discussed below, the BIA failed to give 3
sufficient justification for those findings. 4
We begin with the threat of torture based on J. P. B.’s suspected cooperation. 5
It is undisputed that J. P. B. cooperated with U.S. authorities to some extent and that 6
this cooperation is public information, as he testified in a public trial that was 7
reported in the press . About five years after that testimony, upon a Government 8

motion, J. P. B. ’s almost twenty

- year federal sentence was reduced to 9
approximately ten years . The person who m J. P. B. fears is prominent in Liberia 10
and was present at J. P. B.’s arrest, giving federal authorities reason to ask about 11
him. And while an innocent person might be confident that no one had 12
cooperated against him, J. P. B. testified that this person had engaged in criminal 13

activit y, and that J. P. B. shared this information with federal authorities. 14
The BIA’s decision overlooks material aspects of this record, including 15

J. P. B.’s testimony about the criminal activity ; we view that testimony as strong 16

evidence that, once it became public knowledge that J. P. B. was cooperating, the 17
person J. P. B. fears would suspect J. P. B. of cooperating against him . Nor did the 186 BIA give any reason to disturb the IJ’s determination that J. P. B. was credible. See 1
8 U.S.C. § 1158(b)(1)(B)(iii) ( holding that “if no adverse credibility determination 2
is explicitly made, the applicant or witness shall have a rebuttable presumption of 3
credibility on appeal”). The BIA need not “expressly parse or refute on the record 4
each individual argument or piece of evidence offered by the petitioner” so long 5
as it “has given reasoned consideration to the petition, and made adequate 6
findings.” Wei Guang Wang v. BIA , 437 F.3d 270, 275 (2d Cir. 2006) (quotation 7
marks and citation omitted). But “we r equire a certain minimum level of analysis 8
from . . . BIA opinions” and “some indication that the [BIA] considered material 9
evidence supporting a petitioner’s claim.” Poradisova v. Gonzales , 420 F.3d 70, 77 10
(2d Cir. 2005). Absent some discussion of th is testimony, the BIA failed to satisfy 11
those requirements. And w hile the Government argues that there is no objective 12
evidence of cooperation against this person , it does not explain why the BIA was 13
entitled to overlook J. P. B.’s testimony. See 8 C.F.R. § 1208.16(c)(2) (“ The 14
testimony of the applicant, if credible, may be sufficient to sustain the burden of 15
proof [under CAT] without corroboration.”)

. 16
Instead of discussing this testimony, the BIA disagreed with three aspects 17
of the IJ’s reasoning, but none of those disagreements , singly or in combination, 187 provide s sufficient justification for the BIA’s decision. First, the BIA faulted the 1
IJ for relying on a Liberian news article as evidence of cooperation. While we 2
agree that the IJ erred to the extent that she characterized the article as stating that 3
there was cooperation, when read with the other evidence in the record, this article 4
tends to support the conclusion that the person who m J. P. B. fears believes that his 5
connection with J. P. B. has exposed him to criminal liability in the United States. 6
Second, the BIA faulted the IJ for relying on J. P. B.’s sentence reduction as evidence 7
of cooperati on against this person. But the IJ said only that the sentence reduction 8
was evidence of cooperation

— which it undoubtedly is

— and proceeded to 9
identify other evidence about the subject of that cooperation , which the BIA failed 10

to address. Third, the BIA relied in part on the content of the Government’s 11

sentence reduction motion. But that motion was sealed and has no bearing on 12
what others would reasonably infer to be contained in that motion . And, again, 13

J. P. B. was found credible. Accordingly, before finding that J.P.B.’s testimony that 14
he cooperated against this person failed to satisfy his burden on that issue because 15
it was inadequately corroborated, the agency should have explained what 16
reasonably available evidence was lacking and evaluated J. P. B.’s explanation for 17
not providing it. See Wei Sun v. Sessions , 883 F.3d 23, 31 (2d Cir. 2018). J. P. B. was 188 not given an opportunity to explain the absence of further corroboration here , and 1
we can readily imagine that documentary evidence on this sensitive subject may 2

be difficult to obtain. 3
The BIA also noted that J. P. B. had not spoken to the person he fears since 4
his arrest, and this person had not directly threatened him. Clear error may exist 5
“where the evidence opposed to the claimant’s version, though not indisputable, 6
has overwhelming persuasive force.” Wu Lin , 813 F.3d at 127. But under the 7
circumstances, including J. P. B.’s conviction and incarceration, this contrary 8
evidence is far from overwhelming. Additional countervailing evidence 9
discussed in the Government’s brief was not relied on by the BIA, and is not 10
overwhelming. See Gurung v. Barr , 929 F.3d 56, 62 (2d Cir. 2019) (explaining that, 11
when the agency’s evaluation of the record contains errors, the Court can affirm 12

“ only when remanding the case to the agency would be futile,” such as “when 13
overwhelming evidence in the record makes it clear that the same decision is 14

inevitable on remand” (quotation marks omitted) ). 15
Turning to the relationship between J. P. B. and his third cousin, the BIA’s 16
decision is similarly flawed. T he BIA is correct that the blood relation is not close. 17
However, the IJ did not rely on the closeness of the blood relation, but rather on 189 evidence that Taylor supporters shot the cousin on J. P. B.’s fa mily property, and

— 1
given the prominence of J. P. B. and his family in Liberia

— likely inferred that J. P. B. 2
was helping the cousin based on the cousin’s presence on the property. The BIA’s 3

decision does not mention where the co usin was shot, and it mentions the evidence 4
of J. P. B.’s notoriety only in its summary of the IJ’s findings, not in its own analysis. 5
Nor did the BIA give a reason not to credit J. P. B.’s testimony about the location of 6
this shooting, which was corroborated by his sister. Having failed to discuss the 7
factual findings underlying the IJ’s reasoning, the BIA failed to sufficiently explain 8
why those findings were clearly erroneous. See Wu Lin , 813 F.3d at 129; 9

Poradisova , 420 F.3d at 77

. 10
The BIA discussed other evidence supporting its conclusion that J. P. B. failed 11
to carry his burden to show that this group was more likely than not to torture him 12
but, again , that evidence is not overwhelming. The BIA correctly noted that there 13
were no allegations of direct threats against J. P. B. from this group. But that is not 14
strong evidence under the circumstances because J. P. B. has been in the United 15

States for many years and incarcerated for a substantial length of time, so there 16
might not be reason or opportunity to threaten him; J. P. B. testified that only two 17

relatives were even brief ly in Liberia after the 1990s; one of those relatives (the 1810 third cousin) was shot by Taylor supporters upon his return; and the other (a 1
nephew) visited briefly in 2019, but left immediately upon hearing that members 2
of his family

— including J. P. B.

— were still targets for harm. Cf. Melgar de Torres v. 3

Reno , 191 F.3d 307, 313 (2d Cir. 1999) (finding claim of well

- founded fear of 4
persecution diminished where similarly situated relatives remained in country of 5
origin without harm). The BIA did not mention the evidence regarding J. P. B.’s 6
nephew. Instead, it emphasized the time that had elapsed since J. P. B. was last in 7

Liberia , which was shortly before some immediate family members were 8

murdered . B ut that reasoning does not account for the subsequent events on 9

which J. P. B.’s claim relied. 10
In sum, the BIA failed to sufficiently justify its finding of clear error because 11
it overlooked material evidence cited by the IJ that supported J. P. B.’s claim that he 12
is likely to be tortured and that the government is unlikely to protect him , it 13
required corroboration of J. P. B.’s credible testimony without giving him an 14
opportunity to explain why it was not available, and the countervailing evidence 15
that it identified was not strong. See Wu Lin , 813 F.3d at 129; Wei Sun , 883 F.3d at 16

31

. We remand because we cannot be confident that the BIA would reach the 17

same conclusion absent these errors. See Gurung , 929 F.3d at 62

. 1811 For the foregoing reasons, the petition for review is GRANTED and the case 1
is REMANDED for further proceedings

. All pending motions and applications 2
are DENIED and stays VACATED. 3

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