Chol v. Garland

• Decision Date: 16 February 2022
• Docket Number: No. 20-3268,20-3268
• Citation: 25 F.4th 1063
• Parties: Emmanuel DENG CHOL, Petitioner v. Merrick B. GARLAND, Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.4th 1063

Emmanuel DENG CHOL, Petitioner

v.Merrick B. GARLAND, Attorney General of the United States, Respondent

No. 20-3268

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2021

Filed: February 16, 2022

David Victor Chipman, Raul F. Guerra, Monzon Law, Lincoln, NE, for Petitioner.

Carl H. McIntyre, John Frederick Stanton, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

BENTON, Circuit Judge.

Emmanuel Deng Chol—a citizen of South Sudan through his father—was born in a refugee camp in Uganda. At age five, he was admitted to the United States as a lawful permanent resident. Twelve years later, he was convicted of two counts of robbery and sentenced to 7 to 15 years. Deng Chol was charged with removability. See 8 U.S.C. § 1227(a)(2)(A)(iii) (an alien convicted of an aggravated felony shall, upon the order of the Attorney General, be removed); 8 U.S.C. § 1101(a)(43)(G) (a theft offense with at least a one-year term of imprisonment is an aggravated felony). Deng Chol applied for asylum and requested withholding of removal under the Convention Against Torture (CAT).

At his removal hearings, Deng Chol appeared pro se. The immigration judge (IJ) explained that he was ineligible for asylum due to his criminal record, but alerted him that he would be eligible for relief under the CAT if he could prove that it is more likely than not that he would be tortured by the government (or with its acquiescence) in South Sudan and Uganda. After testimony from Deng Chol, his mother, and a prison official, the IJ determined he was not entitled to CAT relief and ordered removal to South Sudan or Uganda. The Board of Immigration Appeals (BIA) dismissed his appeal, designating South Sudan as the country of removal with Uganda as an alternate.

Deng Chol challenges the factual determination that it is not more likely than not that he would be tortured in South Sudan and Uganda. He also argues that the IJ erred procedurally by failing to (1) fully develop the record about his tribal faction, (2) provide the State Department's country reports for South Sudan and Uganda, and (3) tell him the definition of "torture" under the CAT. Having jurisdiction under 8 U.S.C. § 1252(a)(4), this court denies the petition for review.

I.

Deng Chol challenges the IJ's factual finding that it is not more likely than not that he would be tortured in South Sudan and Uganda. While this court's jurisdiction over final orders of removal is typically limited to constitutional claims and questions of law, this court may review factual challenges to a CAT order. Gilbertson v. Garland , 7 F.4th 700, 704 (8th Cir. 2021), citing Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1694, 207 L.Ed.2d 111 (2020). The standard of review is substantial evidence. Lasu v. Barr , 970 F.3d 960, 964 (8th Cir. 2020), citing Nasrallah , 140 S. Ct. at 1692. Under this "extremely deferential" standard, "this court will not reverse the agency's decision unless the petitioner demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner." Cano v. Barr , 956 F.3d 1034, 1038 (8th Cir. 2020).

"To qualify for relief under the CAT, an alien must show ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ " Lasu , 970 F.3d at 966, quoting 8 C.F.R. § 1208.16(c)(2) . Torture is: "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... by or at the instigation of or with the consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1) . A government does not acquiesce in torture merely because it is powerless to stop it, but willful blindness "crosses the line." Mouawad v. Gonzales , 485 F.3d 405, 413 (8th Cir. 2007). "In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to: (i) Evidence of past torture inflicted upon the applicant; (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured; (iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and (iv) Other relevant information regarding conditions in the country of removal." 8 C.F.R. § 1208.16(c)(3) .

A.

The IJ determined that it is not more likely than not that Deng Chol would be tortured in in South Sudan because he is (1) a member of the governing Dinka tribe, and (2) not a politician, journalist, or humanitarian worker.

1.

Deng Chol objects to the first reason, claiming the governing Dinka tribe includes "two warring factions." He suggests that, because it is unclear whether he is a member of the minority or majority faction, it is possible that he would be tortured or killed for his Dinka heritage.

Two South Sudan CAT cases control this case. In Jima v. Barr , the IJ granted CAT relief to a member of the minority Mabaan tribe, based on a State Department country report describing widespread violence on ethnic lines, despite acknowledging "very little evidence in the record relating to the respondent's specific tribe." In re Jima , A 094 692 588, at 3 (BIA Dec. 17, 2018), available at Add. to Petitioner's Brief , Jima v. Barr , No. 19-1104, at 17 (Mar. 19, 2019). The BIA vacated, concluding that the IJ's decision was "based on a chain of assumptions stemming from South Sudan's general inter-ethnic violence" and that Jima's fears were "largely based on speculation." Jima v. Barr , 942 F.3d 468, 473 (8th Cir. 2019). This court agreed:

Under CAT, the existence of a consistent pattern of gross, flagrant, or mass violations of human rights in a particular country does not, as such, constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to that country. Instead, the petitioner must show specific grounds exist that indicate the individual would be personally at risk. The BIA identified the IJ's clear error in Jima's case by showing that the IJ, rather than examining the likelihood of Jima's prospective torture, instead looked at the likelihood of a pattern of gross or mass violations of human rights in South Sudan. The IJ failed to clearly articulate a more personalized fear of torture specific to Jima.

Id. at 473 (citations and quotation marks omitted).

The second case is Lasu v. Barr . Like in Jima , Lasu requested relief based on membership in the minority Equatorial tribe. Lasu , 970 F.3d at 967. Like in Jima , Lasu relied on a State Department country report describing "ethnically based targeted killings of civilians, extrajudicial killings, abuse, and mass forced displacement" in South Sudan. Id. at 969 (Kelly, J., dissenting). As in Jima , this court upheld the BIA order vacating CAT relief:

We conclude the BIA's decision is supported by substantial evidence because the BIA correctly concluded that Lasu must show more than a pattern of general ethnic violence in South Sudan to meet the CAT's likelihood requirement. Though the record reflects that ethnic violence is occurring in South Sudan, Lasu needed to demonstrate that he would more likely than not be tortured by South Sudanese authorities.

The fact that Lasu is a member of one of sixty ethnic minority tribes that "could be" tortured does not compel the conclusion that he is more likely than not to be tortured. Here, the BIA identified the IJ's error, showing that the IJ, rather than examining the likelihood that Lasu will face torture, instead looked at the likelihood that a member of any ethnic minority tribe in South Sudan will suffer from torture. See Jima , 942 F.3d at 473. Thus, the "IJ failed to clearly articulate a more personalized fear of torture specific to [Lasu]." Id.

Id. at 968 (citations and quotation marks omitted).

Like Jima and Lasu, Deng Chol failed to show a personalized fear of torture because he did not show that the specific faction to which he (possibly) belongs is the object of ethnically targeted violence. The only evidence about Dinkan infighting at the removal hearing was a statement by his mother: "Okay. Even with the Dinka tribe, they are split into two. One is Dinka, Bahr el Ghazal. One is the Bor. And they're fighting each other." This is not substantial evidence. It does not address the nature or intensity of the "fighting" between the two factions of Dinkas. "Fighting" could mean social tension or political opposition, rather than torture. This evidence is not so compelling that no reasonable fact finder could fail to find in favor of Deng Chol.

Deng Chol claims that his mother's testimony is corroborated by the State Department's 2019 country report for South Sudan. However, that report does not mention any intra-tribal conflict among the Dinkas. While the country report has considerable evidence of general "ethnically targeted violence," that is exactly what did not meet the CAT's likelihood requirement in Jima and Lasu . Jima , 942 F.3d at 473 ; Lasu , 970 F.3d at 968.

2.

In response to the IJ's second reason, Deng Chol argues that internally displaced persons (IDPs) face similar levels of torture as politicians, journalists, and humanitarian workers. He cites the country report for South Sudan, and Wani Site v. Holder , 656 F.3d 590 (7th Cir. 2011).

This evidence falls short of the "extremely deferential" substantial evidence standard. First, the country report states, in full: "IDPs remained in UNMISS PoC sites due to fear of retaliatory or ethnically targeted violence by armed groups, both government- and opposition-affiliated ." U.S. Dep't. of State, South Sudan...