     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
 4   New York, on the 11th 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
 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

                                      2
 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

                                        3
 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

                                          4
 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

                                          5
 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

                                        6
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




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