05-2807-ag

McIntosh v. Gonzales

BIA

Levinsky, IJ

A42-468-685

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

( S U M M A R Y ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 5th day of September, two thousand seven. PRESENT: H O N . JOSEPH M. McLAUGHLIN, H O N . GUIDO CALABRESI, H O N . ROSEMARY S. POOLER, C i r c u i t Judges. M I C H A E L ANTHONY McINTOSH Petitioner, v. 05-2807-ag NAC I N S , PAUL D. CLEMENT, 1 U N I T E D STATES A T T O R N E Y GENERAL, Respondents. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting A t t o r n e y General Paul D. Clement is automatically substituted for former A t t o r n e y General John Ashcroft as the respondent in this case. F O R PETITIONER: M i c h a e l Anthony McIntosh, pro se, M a r c y , New York.

F O R RESPONDENT: R o s l y n n R. Mauskopf, United States A t t o r n e y for the Eastern District of N e w York, Varuni Nelson, Assistant U n i t e d States Attorney, Dione M.

E n e a , Special Assistant United S t a t e s Attorney, Brooklyn, New York.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Michael Anthony McIntosh, a native and c i t i z e n of Jamaica, seeks review of the February 26, 2001 o r d e r of the BIA affirming the October 16, 2000 decision of I m m i g r a t i o n Judge ("IJ") Mitchell Levinsky denying his a p p l i c a t i o n for relief under the Convention Against Torture ("CAT"). In re Michael Anthony McIntosh, No. A42 468 685 ( B . I . A . Feb. 26, 2001), aff'g No. A42 468 685 (Immig. Ct.

F i s h k i l l Oct. 16, 2000). We assume the parties' familiarity w i t h the underlying facts and procedural history of the case.

T h e agency found McIntosh removable because of an a g g r a v a t e d felony conviction, and he has not challenged that d e t e r m i n a t i o n before this Court. Therefore, we have j u r i s d i c t i o n over his petition for review only to the extent t h a t he raises constitutional questions and questions of law. See 8U.S.C. § 1252(a)(2)(C), (D); Mizrahi v. G o n z a l e s , 492 F.3d 156, 158 (2d Cir. 2007). We reject the g o v e r n m e n t ' s argument that McIntosh has not raised any " q u e s t i o n s of law" in his petition for review, because: (1) h e challenges the agency's finding on the potential r e s p o n s i b i l i t y of the Jamaican government for any torture t h a t might be inflicted on him; (2) we construe the briefs o f pro se petitioners as raising the strongest arguments t h a t they suggest, Weixel v. Bd. of Educ., 287 F.3d 138, 146 ( 2 d Cir. 2002); and (3) the government acknowledges that the s t a n d a r d the agency applied in requiring McIntosh to show g o v e r n m e n t "acquiescence" to torture is arguably in tension w i t h this Court's interpretation of that standard in Khouzam v . Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004). The a r g u m e n t that the agency has applied an improper legal s t a n d a r d is a question of law, and therefore reviewable; we r e v i e w this question de novo. See Xiao Ji Chen v. U.S.

D e p ' t of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006).

B e c a u s e the BIA agreed with the IJ's reasoning, and e m p h a s i z e d some of the IJ's findings, we review both the I J ' s and BIA's decisions. See Ming Xia Chen v. BIA, 435 F . 3 d 141, 144 (2d Cir. 2006).

T o establish eligibility for CAT relief, an alien must e s t a b l i s h that he is more likely than not to experience harm a m o u n t i n g to torture that will be "inflicted by or at the i n s t i g a t i o n of or with the consent or acquiescence of a p u b l i c official or other person acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). The IJ and BIA both r e l i e d heavily on Matter of S-V-, 22 I. & N. Dec. 1306 ( B . I . A . 2000), to find that McIntosh failed to establish t h a t the Jamaican government would "acquiesce" to any t o r t u r e by the Jamaican Labour Party ("JLP"). However, to t h e extent that S-V- stands for the proposition that a s h o w i n g of the government's inability to prevent torture is n e v e r sufficient to establish "acquiescence," it has been o v e r r u l e d by this and other circuits. See Khouzam, 361 F.3d a t 170-71; Silva-Rengifo v. Attorney Gen., 473 F.3d 58, 65 7 0 (3d Cir. 2007); Li Chen Zheng v. Ashcroft, 332 F.3d 1186, 1 1 9 6 (9th Cir. 2003). This Court found in Khouzam, 361 F.3d a t 171, that "[i]n terms of state action, torture requires o n l y that government officials know of or remain willfully b l i n d to an act and thereafter breach their legal r e s p o n s i b i l i t y to prevent it." Accordingly, the agency's r e l i a n c e on S-V- was erroneous.

N e v e r t h e l e s s , remand would be futile, because McIntosh p r e s e n t e d no evidence, other than his own speculation, that t h e government was aware of any torture by the JLP.

C r i t i c a l l y , the background materials he submitted did not m e n t i o n the violent conflict he described between the party h e supported, the People's National Party ("PNP"), and JLP supporters. Therefore, even applying the correct definition o f "acquiescence," there was no evidence in the record to s u g g e s t that the government, currently led by the PNP, would r e m a i n willfully blind to the abuse of one of its members by s u p p o r t e r s of the opposition party.

F o r the foregoing reasons, the petition for review is DENIED. Petitioner's motions to vacate the order of d i s m i s s a l and for appointment of counsel are DENIED as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By: