     19-3697
     McDonald v. Barr
                                                                                   BIA
                                                                              Conroy, IJ
                                                                           A043 401 844
                             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 10th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   KINGSLEY JUNIOR MCDONALD, AKA
14   KINGSLEY MCDONALD,
15            Petitioner,
16
17                      v.                                       19-3697
18                                                               NAC
19   WILLIAM P. BARR, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                    Craig Relles, Esq., White Plains,
25                                      NY.
26
27   FOR RESPONDENT:                    Ethan P. Davis, Acting Assistant
28                                      Attorney General; Melissa Neiman-
29                                      Kelting, Assistant Director;
30                                      Giovanni B. Di Maggio, Trial
31                                      Attorney, Office of Immigration
32                                      Litigation, United States
33
 1                                Department of Justice, Washington,
 2                                DC.
 3
 4         UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is GRANTED.

 8         Petitioner Kingsley Junior McDonald, a native and citizen

9    of Jamaica, seeks review of an October 9, 2019 decision of

10   the   BIA   affirming   a   November   5,   2018   decision   of   an

11   Immigration    Judge    (“IJ”)   denying    protection   under     the

12   Convention Against Torture (“CAT”).          In re Kingsley Junior

13   McDonald, No. A043 401 844 (B.I.A. Oct. 9, 2019), aff’g No.

14   A043 401 844 (Immig. Ct. N.Y.C. Nov. 5, 2018).        We assume the

15   parties’ familiarity with the underlying facts and procedural

16   history.

17         We have reviewed both the IJ’s and the BIA’s opinions

18   “for the sake of completeness.”             Wangchuck v. Dep’t of

19   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).           Although

20   our jurisdiction to review a final order of removal is limited

21   to constitutional claims and questions of law when, as here,

22   the noncitizen is removable for having committed certain

23   criminal offenses, that limitation does not apply to our

24   review of agency orders denying CAT relief.          See Nasrallah

                                       2
 1   v. Barr, 140 S. Ct. 1683, 1694 (2020).                    The applicable

 2   standards of review are well established.                 See Manning v.

 3   Barr, 954 F.3d 477, 484 (2d Cir. 2020) (reviewing questions

 4   of law de novo and factual findings for substantial evidence).

 5   The agency erred in finding that, although a Jamaican gang

 6   likely specifically intends to torture McDonald, he did not

 7   establish        that   the    Jamaican      government        would   likely

 8   acquiescence to his torture.

 9        To be eligible for CAT relief, an applicant is required

10   to show that he would “more likely than not” be tortured by

11   or   with    the   acquiescence     of     government    officials.      See

12   8 C.F.R. §§ 1208.16(c), 1208.17(a), 1208.18(a)(1); Khouzam v.

13   Ashcroft, 361 F.3d 161, 170–71 (2d Cir. 2004).                    “A private

14   actor’s behavior can constitute torture under the CAT without

15   a government’s specific intent to inflict it if a government

16   official is aware of the persecutor’s conduct and intent and

17   acquiesces in violation of the official’s duty to intervene.”

18   Pierre      v.   Gonzales,    502   F.3d    109,   118   (2d    Cir.   2007).

19   Therefore, “[i]n terms of state action, torture requires only

20   that government officials know of or remain willfully blind

21   to an act and thereafter breach their legal responsibility to

22   prevent it.”       Khouzam, 361 F.3d at 171.         “Where a government

23   contains officials that would be complicit in torture, and
                                           3
 1   that government, on the whole, is admittedly incapable of

 2   actually   preventing       that    torture,       the    fact    that   some

 3   officials take action to prevent the torture . . . [is]

 4   neither    inconsistent       with       a    finding      of     government

 5   acquiescence nor necessarily responsive to the question of

 6   whether torture would be inflicted by or at the instigation

 7   of or with the consent or acquiescence of a public official

 8   or other person acting in an official capacity.”                  De La Rosa

 9   v.   Holder,   598   F.3d    103,    110     (2d   Cir.   2010)    (internal

10   quotation marks omitted).

11        The agency did not adequately explain its conclusion that

12   McDonald failed to show likely government acquiescence.                   It

13   observed that police had opened an investigation into his

14   father’s murder by gangs in Jamaica and provided protection

15   at his father’s funeral, reasoning from those observations

16   that the police would not likely acquiesce in the gang’s

17   torture of McDonald.        But the record does not establish that

18   the police actually conducted an investigation or that the

19   murder was solved.          More importantly, the IJ found that

20   McDonald cannot safely report to police the threat posed to

21   him by the gang that killed his father because the Jamaican

22   government and police force are closely linked with the gang.

23   Neither the IJ nor the BIA evaluated how this apparent
                                          4
 1   government complicity would likely bear on the government’s

 2   acquiescence in the gang’s prospective assaults on McDonald

 3   were he to be removed to Jamaica.     See De La Rosa, 598 F.3d

 4   at 110; see also Scarlett v. Barr, 957 F.3d 316, 336 (2d Cir.

 5   2020) (remanding when the agency failed to give “reasoned

 6   consideration to all relevant evidence and all principles of

 7   law applicable to determining government acquiescence in . .

 8   . torture”).    If it is too dangerous for McDonald to report

 9   his likely torture by a gang to Jamaican police, it would

10   seem that government officials, through their ties with the

11   gang, have chosen to remain willfully blind to the threat

12   that gang poses.     In light of this apparent inconsistency in

13   the agency’s reasoning, we remand for clarification, for

14   additional analysis, and for a more reasoned determination.

15   See De La Rosa, 598 F.3d at 110; Scarlett, 957 F.3d at 336.

16       For the foregoing reasons, the petition for review is

17   GRANTED, the BIA’s order is VACATED, and the case is REMANDED

18   to the BIA.    All pending motions and applications are DENIED

19   and stays VACATED.

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe,
22                                 Clerk of Court




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