     15-859
     De La Rosa v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A074 846 321
                              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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   5th day of May, two thousand seventeen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LUIS DE LA ROSA,
14            Petitioner,
15
16                     v.                                            15-859
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Seanna R. Brown; Eric R. Fish; Erica
24                                       Barrow, Baker & Hostetler LLP, New
25                                       York, N.Y.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Mary
29                                       Jane Candaux, Assistant Director;
30                                       Edward E. Wiggers, Senior Litigation
31                                       Counsel, Office of Immigration
32                                       Litigation, United States
33                                       Department of Justice, Washington
34                                       D.C.
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 is

4    GRANTED, the BIA’s decision is VACATED, and the case is REMANDED

5    for further proceedings consistent with this order.

6         Petitioner Luis De La Rosa, a native and citizen of the

7    Dominican Republic, seeks review of a March 9, 2015 decision

8    of the BIA affirming a September 10, 2012 decision of an

9    Immigration Judge (“IJ”) denying De La Rosa’s application for

10   withholding of removal and relief under the Convention Against

11   Torture (“CAT”).    In re Luis De La Rosa, No. A074 846 321 (B.I.A.

12   Mar. 9, 2015), aff’g No. A074 846 321 (Immig. Ct. N.Y. City Sept.

13   10, 2012).      We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15        Under the circumstances of this case, we review both the

16   IJ’s and the BIA’s opinions “for the sake of completeness.”

17   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

18   2006).     We generally lack jurisdiction to review a final order

19   of removal against an alien like De La Rosa, who was found

20   removable for having been convicted of a controlled substance

21   offense.     8 U.S.C. § 1252(a)(2)(C).     We nevertheless have

22   jurisdiction to consider constitutional claims and questions

23   of law, 8 U.S.C. § 1252(a)(2)(D), for which review is de novo,
                                      2
1    Frantzcia Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

2    De La Rosa’s arguments that the agency ignored material evidence

3    and applied an incorrect standard to assess a claim of

4    persecution raise reviewable questions of law.          See Mendez v.

5    Holder, 566 F.3d 316, 323 (2d Cir. 2009); Gui Yin Liu v. INS,

6    508 F.3d 716, 721 (2d Cir. 2007).

7        To establish eligibility for withholding of removal, an

8    applicant must show “that it is more likely than not that

9    he . . . would be persecuted on account of race, religion,

10   nationality, membership in a particular social group, or

11   political opinion.”    8 C.F.R. § 1208.16(b)(2).         The BIA has

12   defined persecution as a “threat to the life or freedom of, or

13   the infliction of suffering or harm upon, those who differ in

14   a way regarded as offensive.”   Matter of Acosta, 19 I. & N. Dec.

15   211, 222 (B.I.A. 1985), overruled in part on other grounds by

16   INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili

17   v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

18   Persecution can be harm other than threats to life or freedom,

19   “includ[ing]   non-life-threatening     violence    and     physical

20   abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.

21   2006), but the harm must be sufficiently severe to rise above

22   “mere   harassment,”   Ivanishvili,   433   F.3d   at    341.     To

23   constitute persecution, the “harm or suffering [must] be
                                     3
1    inflicted either by the government of a country or by persons

2    or an organization that the government was unable or unwilling

3    to control.”     Matter of Acosta, 19 I. & N. Dec. at 233.

4    Economic harm “constitutes persecution if it (1) deprives the

5    victim   of   liberty,   food,   housing,   employment   or   other

6    essentials of life, or (2) deliberately imposes a severe

7    economic disadvantage.”     Huo Qiang Chen v. Holder, 773 F.3d

8    396, 405 (2d Cir. 2014) (internal quotation marks omitted).     In

9    evaluating a claim of persecution, the agency is required to

10   consider the cumulative significance of the alleged incidents

11   as opposed to the severity of each incident in isolation.      See

12   Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

13       De La Rosa is correct that the agency erred by failing to

14   assess cumulatively the harm he would face at the hands of

15   private actors in the Dominican Republic and by failing to

16   consider certain material evidence.         Although the agency

17   concluded without elaboration that discrimination does not

18   amount to persecution, discrimination in housing and employment

19   may constitute persecution when considered cumulatively in

20   light of an applicant’s particular circumstances, see Huo Qiang

21   Chen, 773 F.3d at 405 (“[W]hether a given . . . sanction

22   constitutes persecution turns on its ‘impact’ on the victim.

23   . . . [A] sanction that impoverishes a poor victim would
                                      4
1    constitute persecution, while the same sanction imposed on a

2    wealthier individual without such effect would not.” (internal

3    citations omitted)); see also Beskovic, 467 F.3d at 227

4    (requiring analysis sufficient to enable meaningful judicial

5    review).    And while the BIA found speculative De La Rosa’s claim

6    that   he   would   become   homeless   due   to   discrimination   in

7    employment and housing and would therefore be unable to obtain

8    his required medications under the national treatment program,

9    De La Rosa supported the claim with credible expert testimony

10   and evidence on societal discrimination and its impact on his

11   ability to obtain his medications.        The agency’s failure to

12   discuss this evidence compellingly suggests that it was ignored

13   and that the agency failed to consider De La Rosa’s alleged harm

14   in the aggregate.     See Xiao Ji Chen v. U.S. Dep’t of Justice,

15   471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

16   “has taken into account all of the evidence before [it], unless

17   the record compellingly suggests otherwise”); see also Jin Shui

18   Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003) (recognizing

19   that the agency must “consider all factual assertions in an

20   applicant’s claim for eligibility [except] where the evidence

21   in support of a factor potentially giving rise to eligibility

22   is too insignificant to merit discussion.” (internal quotation

23   marks and citations omitted), overruled in part on other grounds
                                       5
1    by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 309–

2    10 (2d Cir.2007) (en banc); Poradisova, 420 F.3d at 77 (“We

3    require    some   indication   that     the   IJ   considered   material

4    evidence supporting a petitioner’s claim.”).               We therefore

5    remand the proceedings for consideration of this evidence and

6    a proper assessment of De La Rosa’s claimed harm in the first

7    instance.

8        In order to demonstrate eligibility for CAT relief, an

9    applicant must show that he will more likely than not be tortured

10   if removed to the designated country of removal.                8 C.F.R.

11   §§ 1208.16(c)(2), 1208.17(a) (providing the burden for CAT

12   relief).    The act of torture is defined as “any act by which

13   severe pain or suffering, whether physical or mental, is

14   intentionally inflicted on a person . . . for any reason based

15   on discrimination of any kind . . . by or at the instigation

16   of or with the consent or acquiescence of a public official.”

17   Pierre v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (quoting

18   8 C.F.R. § 208.18(a)(1) and citing CAT art. 1).               Cognizable

19   official acquiescence “requires only that government officials

20   know of or remain willfully blind to an act and thereafter breach

21   their   legal     responsibility   to    prevent    it.”     Khouzam   v.

22   Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).                “In assessing

23   whether it is more likely than not that an applicant would be
                                        6
1    tortured in the proposed country of removal, all evidence

2    relevant   to   the   possibility       of   future    torture   shall   be

3    considered, including, but not limited to . . . [o]ther relevant

4    information regarding conditions in the country of removal.”

5    8 C.F.R. § 1208.16(c)(3).

6        De La Rosa is correct that the agency failed to consider

7    material evidence in concluding that the Dominican government

8    would not acquiesce in any torture of him.            See Mendez, 566 F.3d

9    at 323.    The IJ found that “the expert witness testified that

10   there are two laws on the books in the Dominican Republic about

11   discrimination, which have been enacted in an effort to protect

12   the human rights of it’s [sic] citizens.”             However, the IJ did

13   not consider the expert’s testimony that those laws are either

14   not applicable to De La Rosa (because they protect only

15   employees, and not potential hires) or ineffective due to lack

16   of enforcement by the government.            Nor did the IJ consider the

17   record    evidence    suggesting    that      discrimination     is   often

18   exacerbated by a lack of confidentiality.             The BIA agreed with

19   the IJ’s acquiescence finding without explanation.                The BIA

20   further agreed that De La Rosa failed to establish eligibility

21   for CAT relief because he did not demonstrate that Dominican

22   authorities deprive similarly situated individuals health care

23   with the specific intent of inflicting severe pain or suffering
                                         7
1    on them.   That finding failed to take into account the proffered

2    expert evidence regarding the scope and enforcement of the

3    Dominican Republic’s laws concerning intentional societal

4    discrimination.    It further ignored that, as a result of such

5    intentional discrimination, De La Rosa may suffer severe pain

6    and suffering amounting to torture because he would be denied

7    access to otherwise available medical care.        See Pierre, 502

8    F.3d at 114.

9         Accordingly, the petition for review is GRANTED, the BIA’s

10   decision is VACATED, and the case is REMANDED for further

11   proceedings consistent with this order.        As we have completed

12   our review, any stay of removal that the Court previously

13   granted in this petition is VACATED, and any pending motion for

14   a stay of removal in this petition is DISMISSED as moot.        Any

15   pending request for oral argument in this petition is DENIED

16   in   accordance   with   Federal   Rule   of   Appellate   Procedure

17   34(a)(2), and Second Circuit Local Rule 34.1(b).

18                                  FOR THE COURT:
19                                  Catherine O’Hagan Wolfe, Clerk




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