     17-1013
     Hamilton v. Whitaker
                                                                                   BIA
                                                                            Clemente, IJ
                                                                           A074 986 838
                            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
 4   New York, on the 8th day of January, two thousand nineteen. 
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR., 
 8            BARRINGTON D. PARKER,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges. 
11   _____________________________________
12
13   IAN D. HAMILTON, AKA UNCLE
14   UNKNOWN,
15            Petitioner,
16
17                     v.                                        17-1013
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent. 
22   _____________________________________
23
24   FOR PETITIONER:                   Thomas H. Nooter, Freeman Nooter
25                                     & Ginsberg, New York, NY. 
26
27   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
28                                     Attorney General; Douglas E.
29                                     Ginsburg, Assistant Director; Erik
30                                     R. Quick, Trial Attorney, Office
31                                     of Immigration Litigation, United
32                                     States Department of Justice,
33                                     Washington, DC. 
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is GRANTED. 

5        Petitioner Ian D. Hamilton, a native and citizen of

6    Jamaica, seeks review of an April 5, 2017, decision of the

7    BIA affirming a November 9, 2016, decision of an Immigration

8    Judge (“IJ”) denying Hamilton’s application for deferral of

9    removal under the Convention Against Torture (“CAT”).       In re

10   Ian D. Hamilton, No.  A 074 986 838 (B.I.A. Apr. 5, 2017),

11   aff’g No.  A 074 986 838 (Immig.  Ct.  N.Y. City Nov. 9, 2016). 

12   We assume the parties’ familiarity with the underlying facts

13   and procedural history in this case, which we include only as

14   necessary to explain our decision to grant the petition for

15   review. 

16       Under the circumstances of this case, we have reviewed

17   both the IJ’s and BIA’s decisions “for the sake of

18   completeness.”    Wangchuck v. Dep’t of Homeland Sec.,  448

19   F.3d 524, 528 (2d Cir.  2006).        We assume Hamilton’s

20   credibility because neither the IJ nor the BIA discussed

21   credibility at any point.    8 U.S.C. § 1158(b)(1)(B)(iii)

                                     2
1    (“[I]f no adverse credibility determination is explicitly

2    made, the applicant or witness shall have a rebuttable

3    presumption of credibility on appeal.”).    Hamilton’s

4    convictions limit our review to constitutional claims and

5    questions of law.    8 U.S.C. § 1252(a)(2)(C), (D); Ortiz-

6    Franco v. Holder, 782 F.3d 81, 90-91 (2d Cir.  2015)

7    (jurisdiction-stripping provision in § 1252(a)(2)(C)

8    applies to CAT deferral).    Although the jurisdictional

9    limitation in § 1252(a)(2)(C) generally prevents us from

10   reviewing the agency’s factual determinations regarding the

11   likelihood of torture, Ortiz-Franco, 782 F.3d at 90-91 &

12   n.2, remand is warranted based on the questions of law

13   discussed below. 

14   Standard for CAT Relief

15       “[T]he CAT expressly prohibits the United States from

16   returning any person to a country in which it is more

17   likely than not that he or she would be in danger of being

18   subjected to torture.”     Khouzam v. Ashcroft, 361 F.3d 161,

19   168 (2d Cir.  2004) (quotation marks omitted).    Torture is

20   defined as “severe pain or suffering . . .  inflicted by or

21   at the instigation of or with the consent or acquiescence

                                    3
1    of a public official or other person acting in an official

2    capacity.”    8 C.F.R. § 1208.18(a)(1).      Acquiescence, in

3    turn, “requires that the public official, prior to the

4    activity constituting torture, have awareness of such

5    activity and thereafter breach his or her legal

6    responsibility to intervene to prevent such activity.”           8

7    C.F.R. § 1208.18(a)(7); see Khouzam, 361 F.3d at 171

8    (holding that acquiescence “requires only that government

9    officials know of or remain willfully blind to an act and

10   thereafter breach their legal responsibility to prevent

11   it”).    The agency must consider “all evidence relevant to

12   the possibility of future torture,” including “[e]vidence

13   of past torture,” evidence regarding the possibility of

14   internal relocation, “[e]vidence of gross, flagrant, or

15   mass violations of human rights,” and “[o]ther relevant

16   information regarding conditions in the country of

17   removal.”     8 C.F.R. § 1208.16(c)(3)(i)-(iv). 

18   Retaliation by Drug Traffickers
19
20       Although    the   jurisdictional   limitations   preclude   our

21   review of the agency’s factual findings, we review whether

22   the agency committed legal error in its consideration of the

                                     4
1    evidence.     See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 

2    2009);    Ortiz-Franco,   782   F.3d   at   91    n.2.     “We   readily

3    acknowledge that the agency does not commit an ‘error of law’

4    every time an item of evidence is not explicitly considered

5    or is described with imperfect accuracy, but where, as here,

6    some facts . . .  have been totally overlooked and others have

7    been seriously mischaracterized, we conclude that an error of

8    law has occurred.”     Mendez, 566 F.3d at 323.            In concluding

9    that Hamilton’s fear of the drug traffickers he helped to

10   convict   was   “purely   speculation   and      conjecture,”   the   IJ

11   overlooked evidence that associates of these drug traffickers

12   firebombed both Hamilton’s family’s business and residence in

13   2014, apparently in retaliation for Hamilton’s cooperation

14   with the U.S. government.        The IJ’s statement that Hamilton’s

15   “brothers live in Jamaica and they have no issues,” is also

16   incorrect for this same reason: it fails to acknowledge the

17   two firebombings and contradicts Hamilton’s testimony and

18   affidavits that his mother and one brother moved to the United

19   States because of the threats, while his father and other

20   brother remained in Jamaica because they did not have U.S.

21   visas, but feared for their lives and moved from place to

                                       5
1    place to avoid the perpetrators.1

2           Hamilton also argues that the agency must consider the

3    aggregate risk of torture and did not do so in his case.            We

4    agree.      We have held that past incidents of harm must be

5    weighed cumulatively in the asylum context, Poradisova v.

6    Gonzales, 420 F.3d 70, 80 (2d Cir.  2005), and other courts

7    have applied this principle to CAT relief, holding that the

8    risk of torture must be assessed cumulatively, see Cole v.

9    Holder, 659 F.3d 762, 775 (9th Cir.  2011); Kamara v. Att’y

10   Gen., 420 F.3d 202, 214 (3d Cir.  2005).         The CAT regulations

11   further support this argument by requiring the agency to

12   consider “all evidence relevant to the possibility of future

13   torture.”       8 C.F.R. § 1208.16(c)(3). 

14           Hamilton was a member of a drug trafficking organization

15   that transported large quantities of marijuana from Jamaica

16   to the United States.       He provided incriminating information

17   about    two   co-defendants,   who   were   members   of   the   same

18   organization and who allegedly had political connections and

19   ties to powerful gang leaders in Jamaica.           He testified in

20   open court against another member of the organization; he was


     1   Hamilton’s father died in December 2014. 
                                       6
1    “pivotal” in securing that conviction.          In total, he gave

2    U.S. authorities information about 13 people involved in drug

3    trafficking.     Another member of the organization allegedly

4    threatened Hamilton in New York and orchestrated the arsons

5    of Hamilton’s family’s business and residence in Jamaica. 

6    The    individual   he   testified   against   allegedly   employed

7    Jamaican police officers who served as enforcers or hitmen to

8    “take care of his problem[s]” in Jamaica.           The IJ discussed

9    each of these people separately and concluded that Hamilton’s

10   fear of each was speculative, but the IJ did not acknowledge

11   their relationships with one another (as members of the same

12   drug    trafficking   organization)   or   their    associates   and

13   relatives in Jamaica.2

14          Given the other evidence in the record that bolsters

15   Hamilton’s claim—the Government’s sentencing letter

16   reflecting that Hamilton could be in danger for his

17   cooperation, and the expert and country reports documenting

18   both the power and violence of Jamaican drug traffickers




     2The IJ’s statement that one of the co-defendants may be a U.S.
     citizen is contradicted by the record, which reflects that he lacks
     legal status in the United States and faces mandatory removal to
     Jamaica on account of his involvement in drug trafficking. 
                                      7
1    and extensive government corruption and participation in

2    drug trafficking—the IJ’s failure to fully consider the

3    arsons or weigh the risks Hamilton faced cumulatively is

4    material. 

5    Government Acquiescence

6         Further, the agency did not adequately explain its

7    acquiescence determination and may have misapplied the legal

8    standard for government acquiescence.      See Xiao Ji Chen v.

9    U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.  2006) (the

10   agency commits legal error if its decision is made “without

11   rational justification” or is “based on a legally erroneous

12   standard.”).    We have held:

13       Where a government contains officials that would be
14       complicit in torture, and that government, on the
15       whole,   is   admittedly  incapable   of   actually
16       preventing that torture, the fact that some
17       officials take action to prevent torture would seem
18       neither inconsistent with a finding of government
19       acquiescence nor necessarily responsive to the
20       question of whether torture would be “inflicted by
21       or at the instigation of or with the consent or
22       acquiescence of a public official or other person
23       acting in an official capacity.”. 
24
25   De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir.  2010)

26   (quoting Article 1, U.N.T.S. 85 (CAT)). 

27       The agency’s acquiescence determination relied entirely

                                    8
1    on the police response to the 2014 arson of Hamilton’s

2    family’s business, which was unsuccessful because

3    Hamilton’s family members did not cooperate in prosecuting

4    the person arrested for the crime.        However, the IJ did not

5    acknowledge Hamilton’s explanation that his family members

6    dropped the charges out of a fear that the Jamaican

7    government could not protect them from further retaliation. 

8    Nor did the IJ explain how this police response outweighed

9    Hamilton’s testimony that several Jamaican police officers

10   worked as drug couriers and hitmen for the drug trafficking

11   organization he feared, or the evidence in the record of

12   police officers’ and elected officials’ ties to organized

13   crime and an inability or unwillingness to curb violence,

14   including retaliation against witnesses in criminal

15   prosecutions. 

16         Because the IJ overlooked the 2014 arsons when he found

17   that Hamilton’s fear of retaliation by the drug traffickers

18   was   speculative,   failed   to   consider   the   threats   against

19   Hamilton in the aggregate, and may have misapplied the legal

20   standard for acquiescence by relying solely on Hamilton’s

21   relatives’ refusal to prosecute the arson, we remand for the

                                        9
1    agency to more fully assess the record and explain its

2    decision.    See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

3    332, 342-43 (2d Cir.  2006) (finding that the “IJ . . .  did

4    not evaluate, or even meaningfully acknowledge” testimony and

5    evidence favorable to the petitioner, “and we must therefore

6    give the IJ [an] opportunity to do so”). 

7         For the foregoing reasons, the petition for review is

8    GRANTED, the BIA’s decision is VACATED, and the case is

9    REMANDED for further proceedings consistent with this order. 

10   As we have completed our review, the stay of removal that the

11   Court previously granted in this petition is VACATED.              Any

12   pending request for oral argument in this petition is DENIED

13   in   accordance   with   Federal    Rule   of   Appellate   Procedure

14   34(a)(2), and Second Circuit Local Rule 34.1(b). 

15                                  FOR THE COURT:
16                                  Catherine O’Hagan Wolfe,
17                                  Clerk of Court
18




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