    15-184
    Walker v. Lynch
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A038 575 464
                           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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    9th day of August, two thousand sixteen.

    PRESENT:
             PIERRE N. LEVAL,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    GAVIN TARIANO WALKER, AKA THOMAS
    WALKER,
             Petitioner,

                      v.                                             15-184
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Jon    Bauer,    University    of
                                           Connecticut School of Law Legal
                                           Clinic, Hartford, Connecticut.

    FOR RESPONDENT:                        Benjamin C. Mizer, Principal
                                           Deputy     Assistant    Attorney
                                           General, Civil Division; Anthony
                                           P. Nicastro, Senior Litigation
                                           Counsel; Sheri R. Glaser, Trial
                                           Attorney, Office of Immigration
                              Litigation,     United      States
                              Department       of       Justice,
                              Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a

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

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

GRANTED.

       Petitioner Gavin Tariano Walker, a native and citizen of

Jamaica, seeks review of a December 24, 2014 decision of the

BIA, affirming a July 8, 2014 decision of an Immigration Judge

(“IJ”) denying Walker’s application for deferral of removal

under the Convention Against Torture (“CAT”), and ordering him

removed based on his Connecticut state law convictions.      See

In re Gavin Tariano Walker, No. A038 575 464 (B.I.A. Dec. 24,

2014), aff’g No. A038 575 464 (Immig. Ct. Hartford July 8, 2014);

see also 8 U.S.C. §§ 1182(a)(2)(A)(i)(II); 1182(a)(2)(C).     In

the circumstances of this case, we review the IJ’s decision as

modified by the BIA, i.e., without the IJ’s adverse credibility

determination that the BIA declined to reach, see Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005), and,

therefore, assume the credibility of Walker’s testimony that

his homosexuality is widely known in Jamaica, see Yan Chen v.

Gonzales, 417 F.3d 268, 271-72 (2d Cir. 2005).1 In conducting


1
    Because the IJ only found Walker’s testimony not credible on
                                 2
our review, we assume the parties’ familiarity with the

underlying facts and procedural history in this case.

     On appeal, Walker argues that (1) the agency erred in

applying the government acquiescence standard under the CAT and

in   mischaracterizing      the       facts   demonstrating     such

acquiescence, and (2) the BIA applied an erroneous standard in

reviewing the IJ’s acquiescence determination.          Although we

generally lack jurisdiction to review a final order of removal

against an alien, such as Walker, who was found removable by

reason of having been convicted of, inter alia, an aggravated

felony and a controlled substance offense, see 8 U.S.C. §

1252(a)(2)(C); Ortiz-Franco v. Holder, 782 F.3d 81, 86 (2d Cir.

2015),   we   retain   jurisdiction    insofar   as   Walker   raises

“constitutional claims or questions of law,” 8 U.S.C. §

1252(a)(2)(D), for which our review is de novo, see Pierre v.

Holder, 588 F.3d 767, 772 (2d Cir. 2009).        That jurisdiction

extends to the issues Walker here raises.        See De La Rosa v.

Holder, 598 F.3d 103, 107, 110–11 (2d Cir. 2010) (concluding

that misapplication of government acquiescence standard under


this point and did not make a general adverse credibility
determination, see Certified Administrative Record (“CAR”) 144
(explaining that Walker’s testimony “was largely, though not
entirely, consistent with his I-1589 Application and other
record evidence”), we presume the credibility of the remainder
of   Walker’s    testimony    as    well,   see    8    U.S.C.
§ 1158(b)(1)(B)(iii).
                               3
CAT constitutes question of law); Mendez v. Holder, 566 F.3d

316, 323 (2d Cir. 2009) (holding that agency commits error of

law    when    it     “totally     overlook[s]”      or    “seriously

mischaracterize[s]” facts).

      To establish eligibility for CAT relief, an applicant must

demonstrate that (1) “it is more likely than not that he or she

would be tortured if removed to the proposed country of

removal,” 8 C.F.R. § 1208.16(c)(2), i.e., subjected to acts “by

which severe pain or suffering is . . . intentionally inflicted

. . . for any reason based on discrimination of any kind,” Pierre

v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (quoting 8 C.F.R.

§ 208.18(a)(1)); and (2) government officials would inflict

such torture, or otherwise acquiesce in it, see 8 C.F.R. §

208.18(a)(1), i.e., “know of or remain willfully blind to” the

anticipated acts of torture and “thereafter breach their legal

responsibility to prevent it,” Khouzam v. Ashcroft, 361 F.3d

161, 171 (2d Cir. 2004).    We agree with Walker that the agency

appears   to   have   misapplied       the   government   acquiescence

standard.

      Here, the U.S. Department of State’s 2013 Human Rights

Report for Jamaica, to which the agency permissibly afforded

greater weight than other documentary evidence, see Hui Lin

Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012), states that,

                                   4
in Jamaica — where laws criminalize “acts of gross indecency

. . . between persons of the same sex” — lesbian, gay, bisexual,

and transgender (“LGBT”) individuals suffer “serious human

rights      abuses,   including       assault       with   deadly     weapons,

‘corrective rape’ of women accused of being lesbians, arbitrary

detention, mob attacks, stabbings, harassment . . . by hospital

and    prison   staff,      and     targeted    shootings.”         Certified

Administrative Record (“CAR”) 414.             The Report further states

that    “brutality    against       [gay    men],    primarily   by    private

citizens, was widespread in the community,” and that “[g]ay men

hesitated to report such incidents against them because of fear

for their physical well-being.”                 Id. at 415.         Moreover,

“[a]lthough individual police officers expressed sympathy for

the plight of the LGBT community and worked to prevent and

resolve instances of abuse, . . . the police force in general

did not recognize the extent and seriousness of . . . violence

against members of the LGBT community, and failed to investigate

such incidents.”          Id. at 414–15.

       Similarly, a letter from the former director of the Jamaica

Forum for Lesbians, All-Sexuals & Gays (“J-FLAG”), upon which

the    IJ   relied    ,    states    that    while    “[t]here      have   been

improvements in the overall response of the police in the past

year,” the “[p]olice frequently refuse to investigate crimes

                                       5
against gay individuals” and, as a result, gay Jamaicans are

not simply subject to violent persecution, but also are

understood as safe targets for robbery, extortion and murder

because of their outcast status.”       CAR 505.

      Walker testified that he was personally threatened by (1)

his Uncle Collin, who allegedly raped Walker when he was younger

and, in 2003, “threatened to slit [Walker’s] throat for

revealing the rapes and spreading rumors that Collin is gay,”

CAR 141; and (2) his cousin Ludlow, who “threatened to kill

[Walker] for levying accusations of homosexuality at Ludlow’s

brother    Shawn   and    father   Collin,    the    two   individuals

responsible for [Walker’s] childhood sexual traumas,” id.

      In concluding that Walker failed to demonstrate government

acquiescence, (1) the IJ determined that there was insufficient

evidence that the Jamaican government “indirectly condones the

torture of” gay individuals, CAR 151; and (2) the BIA, while

acknowledging evidence that Jamaican         police generally do not

investigate crimes against gay individuals, concluded that this

evidence was insufficient to demonstrate acquiescence because

it “does not describe whether the failure to investigate in most

cases was purposeful and because of the victims’ sexuality,”

CAR   4.    The    IJ’s   statement    appears      to   have   “totally

overlook[ed]” the contrary record evidence, discussed above.

                                   6
Mendez v. Holder, 566 F.3d at 323 (recognizing that agency does

not commit error of law every time item of evidence is not

explicitly considered, but that error of law occurs where agency

“totally overlook[s]” important evidence).             Meanwhile, the

BIA’s statement appears to have misapplied the applicable

standard   by   “conflat[ing]”    the   CAT’s    “specific     intent

requirement . . . with the concept of state acquiescence.”

Pierre v. Gonzales, 502 F.3d at 118 (explaining that, “[b]ecause

the CAT reaches torture committed by or acquiesced in by

government actors, it is not always necessary that the specific

intent required by section 208.18(a)(5) be formed by the

government itself” (emphasis in original)); see Khouzam v.

Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (“In terms of state

action, torture requires only that government officials know

of or remain willfully blind to an act and thereafter breach

their legal responsibility to prevent it.” (emphasis added)).

    Accordingly,    we   remand   for   the   agency    to   consider,

consistent with the controlling precedent referenced, whether

it is more likely than not that Walker will be tortured if

removed to Jamaica and that the government will acquiesce in

such torture, particularly in light of (1) the evidence

discussed herein regarding the general failure of the Jamaican

police to investigate crimes against gay individuals, and (2)

                                  7
Walker’s testimony regarding threats he received from family

members.      See De La Rosa v. Holder, 598 F.3d at 110–11

(remanding     for   further   consideration    of    government

acquiescence legal standard); Mendez v. Holder, 566 F.3d at 323

(remanding for consideration of overlooked evidence).2

    For the foregoing reasons, the petition for review is

GRANTED, and the case is REMANDED for further proceedings

consistent with this order.    As we have completed our review,

any stay of removal that the Court previously granted in this

petition is VACATED, and any pending motion for a stay of removal

in this petition is DISMISSED as moot.   Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

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




2
 Because we   remand for further consideration on these grounds,
we need not   consider Walker’s argument that the BIA failed to
distinguish    a prior nonprecedential decision granting CAT
relief to a   Jamaican gay man.
                                8
