     16-4003
     Alexander v. Whitaker
                                                                                   BIA
                                                                               Kolbe, IJ
                                                                           A046 032 100
                             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            RICHARD C. WESLEY,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ERRON LENNON ALEXANDER, AKA
14   EVVON L. ALEXANDER, AKA ERIN
15   ALEXANDER, AKA ALEXANDER ERRON,
16   AKA ERIC ALEXANDER,
17            Petitioner,
18
19                     v.                                        16-4003
20                                                               NAC
21   MATTHEW G. WHITAKER, ACTING
22   UNITED STATES ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                    Nicholas J. Phillips, Prisoners’
27                                      Legal Services of New York,
28                                      Albany, NY.
29
30   FOR RESPONDENT:                    Chad A. Readler, Acting Assistant
31                                      Attorney General; Douglas E.
32                                      Ginsburg, Assistant Director,
33                                      Briena L. Strippoli, Senior
 1                             Litigation Counsel, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, DC.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is GRANTED.

10       Petitioner Erron Lennon Alexander, a native and citizen

11   of Trinidad and Tobago, seeks review of a November 2, 2016

12   decision of the BIA affirming a June 22, 2016 decision of an

13   Immigration Judge (“IJ”) denying Alexander’s application for

14   relief under the Convention Against Torture (“CAT”).     In re

15   Erron Lennon Alexander, No. A 046 032 100 (B.I.A. Nov. 2,

16   2016), aff’g No. A 046 032 100 (Immig. Ct. N.Y. City June 22,

17   2016). We assume the parties’ familiarity with the underlying

18   facts and procedural history in this case.

19       Under the circumstances of this case, we review the IJ’s

20   decision as modified by the BIA, i.e., minus any basis for

21   denying relief that the BIA declined to consider.      See Xue

22   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

23   Cir. 2005).   Because Alexander’s removal order is based on

24   criminal convictions, including convictions for an aggravated


                                  2
 1   felony and a controlled substance offense, our jurisdiction

 2   is limited to considering “constitutional claims or questions

 3   of law.”     8 U.S.C. § 1252(a)(2)(C), (D).            For jurisdiction to

 4   attach, such claims must be colorable.                     Barco-Sandoval v.

 5   Gonzales,     516    F.3d   35,     40    (2d   Cir.   2008).       We   review

 6   constitutional claims and questions of law de novo.                      Pierre

 7   v. Holder, 588 F.3d 767, 772 (2d Cir. 2009). Alexander raises

 8   a   colorable       question   of    law       sufficient    to   invoke    our

 9   jurisdiction: he argues that the BIA erred as a matter of law

10   when    it   ignored    his    claim      of    enhanced    mistreatment     in

11   detention.      See Mendez v. Holder, 566 F.3d 316, 323 (2d Cir.

12   2009) (“[W]here . . . some facts . . . have been totally

13   overlooked and others have been seriously mischaracterized,

14   we conclude that an error of law has occurred.”).

15          CAT relief is mandatory if the applicant shows that he

16   would more likely than not be tortured if removed.                   8 C.F.R.

17   §§ 1208.16(c), 1208.17.             Torture is defined as pain and

18   suffering “inflicted by or at the instigation of or with the

19   consent or acquiescence of a public official or other person

20   acting in an official capacity.”                8 C.F.R. § 1208.18(a)(1).

21   Governmental acquiescence occurs when an official, before the

22   torture      occurs,   is   aware        of   the   impending     torture   and

                                               3
 1   thereafter “breach[es] his or her legal responsibility to

 2   intervene to prevent” it.           8 C.F.R. § 1208.18(a)(7).       In

 3   Pierre v. Gonzales, we rejected a CAT claim that was based on

 4   conditions in Haitian prisons because harsh prison conditions

 5   do not in themselves constitute torture absent a specific

 6   intent by the torturer to inflict severe pain and suffering.

 7   502 F.3d 109, 111 (2d Cir. 2007).            We also recognized the

 8   possibility,    however,     that       “petitioners   with   certain

 9   histories, characteristics, or medical conditions are more

10   likely to be targeted not only with these individual acts [of

11   abuse]   but   also   with   particularly      harsh   conditions   of

12   confinement.”    Id. at 122.        The risk of “severe suffering”

13   based on individual characteristics is relevant to a CAT claim

14   only if that suffering “is motivated by some actor’s specific

15   intent.”   Id. at 121-22.

16       Alexander asserted a likelihood of torture at the hands

17   of inmates and prison guards due to his status as a criminal

18   deportee with severe mental illness.            The record contains

19   some evidence to support his claim. The 2015 State Department

20   Report for Trinidad and Tobago identifies “credible reports

21   that police officers and prison guards mistreated individuals

22   under arrest or in detention,” and recognizes that abuse by

                                         4
 1   fellow prisoners was a problem.          Furthermore, a declaration

 2   made by a professor in Trinidad and Tobago reflects that

 3   deportees unfamiliar with Trinidad and Tobago and individuals

 4   suffering from mental health issues are more likely to be

 5   detained and targeted for abuse while in jail.

 6          The agency erred in its decisions as neither the IJ nor

 7   the BIA made any factual findings about Alexander’s claim

 8   that    he   would   be   subject   to   enhanced   mistreatment   and

 9   intentional abuse if detained in Trinidad and Tobago.         The IJ

10   determined that Alexander did not demonstrate that he was

11   more likely than not to be detained, but the BIA did not rely

12   on that finding, which therefore falls outside the scope of

13   our review.     See Xue Hong Yang, 426 F.3d at 522.      Because the

14   BIA did not reach the question whether it was more likely

15   than not that Alexander would be detained, the BIA’s decision

16   must be read to conclude that authorities would have no

17   specific intent to torture Alexander even if he were detained.

18   The IJ, however, addressed only the lack of public resources

19   and health care in prisons, not whether Alexander would be

20   targeted for abuse by guards and inmates as a result of his

21   untreated mental illness.

22          It is not within the authority of the BIA to make a

                                         5
 1   finding in the first instance regarding the likelihood that

 2   Alexander would be abused if detained by individuals acting

 3   with    the   specific   intent     to     torture   him.     8   C.F.R.

 4   § 1003.1(d)(3)(iv); see Hui Lin Huang v. Holder, 677 F.3d

 5   130, 134 (2d Cir. 2012) (likelihood of future event is finding

 6   of fact).     By affirming the IJ’s decision only on the basis

 7   that the harm that Alexander feared would not be the result

 8   of any individual’s specific intent to torture him, the BIA

 9   overlooked Alexander’s claim and record evidence suggesting

10   that he would likely be subject to abuse in prison by prison

11   officials or inmates who have the specific intent to inflict

12   severe pain and suffering on the mentally ill.              See Mendez,

13   566 F.3d at 323.

14          Because the agency’s decisions omit factual findings

15   regarding whether Alexander would be subject to enhanced

16   mistreatment and the intentional infliction of severe pain

17   and suffering if imprisoned, we remand for the agency to make

18   additional    factual    findings        regarding   this   portion   of

19   Alexander’s claim or for the BIA to evaluate under established

20   standards the IJ’s finding that Alexander did not demonstrate

21   that it is more likely than not that he would be detained.

22   Although the Government argues that remand would be futile

                                         6
 1   because the record does not support a finding of the requisite

 2   likelihood of abuse, the factual finding is for the agency to

 3   make in the first instance.        See Lin Zhong v. U.S. Dep’t of

 4   Justice, 480 F.3d 104, 122 (2d Cir. 2007) (holding that this

 5   Court’s review is limited to grounds and reasoning given by

 6   the BIA).

 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, any 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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