K.Y. v. U.S. Attorney Gen.

• Decision Date: 09 August 2022
• Docket Number: 21-10271
• Citation: 43 F.4th 1175
• Parties: K.Y., Petitioner-Appellant, v. U.S. ATTORNEY GENERAL, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

43 F.4th 1175

K.Y., Petitioner-Appellant,

v.U.S. ATTORNEY GENERAL, Respondent-Appellee.

No. 21-10271

United States Court of Appeals, Eleventh Circuit.

Filed: August 9, 2022

Jonathan F. Ball, Blank Rome, LLP, Philadelphia, PA, for Petitioner-Appellant.

Lindsay Marshall, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Ann M. Welhaf, U.S. Department of Justice, Civil Division, Washington, DC, for Respondent-Appellee.

Before Newsom, Marcus, Circuit Judges, and Middlebrooks,^* District Judge.

Per Curiam:

This is an appeal of a final order of removal issued by the Board of Immigration Appeals ("Board") on December 16, 2020 as to Petitioner K.Y., a native and citizen of Guyana. An Immigration Judge determined that K.Y. was ineligible for asylum and withholding of removal because she was convicted of a particularly serious crime and denied her application for protection under the Convention Against Torture ("CAT"), and the Board affirmed her decision without opinion. K.Y. raises three challenges to these proceedings in this appeal: (1) that the Immigration Judge did not give reasoned consideration to all of the relevant evidence in determining that K.Y. had not met her burden of showing that she would more likely than not be tortured by, or with the acquiescence of, the Guyanese government if returned to Guyana, or that her conclusion was not supported by substantial evidence; (2) that the Immigration Judge erred in not making a separate determination that K.Y. posed a danger to the community, in addition to finding that she had committed a particularly serious crime; and (3) that the Immigration Judge erred in finding that K.Y. committed a particularly serious crime. After careful review, and with the benefit of oral argument, we deny the petition for review in part and dismiss in part.

I

A

K.Y. is a transgender woman who has been living in the United States as a lawful permanent resident since January 23, 2011. Her parents are naturalized United States citizens. She is originally from Guyana, a country on the northern coast of South America. K.Y. lived in Guyana for over twenty-five years before coming to the United States. During that time, she identified as a gay man, but she kept her identity a secret because "homosexuality is condemned in Guyana" and is illegal. In 2015, after moving to the United States, K.Y. began living openly as a transgender woman.

About four years after becoming a lawful permanent resident, in early 2015, K.Y. sought sexually explicit images, discussed performing different sex acts, and arranged a meeting with an undercover police officer pretending to be a 15-year-old boy. The police officer made repeated references to his underage status throughout his communication with K.Y., but K.Y. was undeterred. She went to meet the "boy," and she was arrested. She was carrying lube and "poppers," which are used to assist in anal sex, at the time of her arrest.

As a result of this offense, K.Y. pleaded nolo contendere to two sex crimes involving a minor: (1) traveling to meet a minor in violation of Fla. Stat. § 847.0135(4)(a) ; and (2) soliciting a child for unlawful sexual conduct using computer services or devices in violation of Fla. Stat. § 847.0135(3)(a). She was sentenced to 42 months’ imprisonment, followed by 10 years’ probation, and was required to register as a sex offender.

Under 8 U.S.C. § 1227(a)(2)(A)(i), a noncitizen who, within five years of her admission, is convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed, is subject to removal. Pursuant to this statute, on April 22, 2020, the Department of Homeland Security initiated removal proceedings against K.Y. by filing a Notice to Appear in Immigration Court. K.Y. admitted the factual allegations in the Notice and conceded the charge of removability but applied for asylum, withholding of removal, and CAT protection because she feared she would be tortured in Guyana for being transgender. She supported her application with a number of documents discussing discrimination against lesbian, gay, bisexual, and transgender ("LGBT") individuals in Guyana, including in schools, employment, and healthcare. These documents also indicated that Guyanese law enforcement "commonly ... mocked" individuals for their sexual orientation, some officers used anti-cross-dressing laws that were not enforced to "threaten and harass LGBT persons into paying bribes," and other officers refused to take reports from LGBT persons.

B

On June 29, 2020, at a hearing on K.Y.’s application for asylum, the presiding Immigration Judge heard testimony from K.Y. and her country conditions expert, Professor James Wilets. The Immigration Judge found both of their testimonies credible.

K.Y. explained that when she lived in Guyana, she identified as a gay man, but she kept her identity a secret out of fear. Her fear was based, in part, on three instances of violence or threats of violence she personally observed: one, at a bar, she saw a group of men physically attack a "feminine" man while using derogatory slurs, which culminated in the "feminine" man being stabbed in the abdomen with a beer bottle; two, at a regatta, a group of men approached K.Y. while she was wearing "fitted" clothing and threatened to beat her up, stating that they "burn[ed] [her] type"; and, three, while riding her motorcycle, a police officer stopped K.Y., asked her if she "was left or right," and extorted money from her. Fortunately, K.Y. was never the victim of any physical violence while she lived in Guyana. She attributes this to her efforts to conceal her sexual orientation and identity.

K.Y.’s country conditions expert, Professor Wilets, testified that a transgender person is much more likely than other LGBT persons to experience violence in Guyana. As a result, he opined that K.Y. would face "considerable" danger and "general persecution" if she were to return to Guyana, and that "it would be really [ ] extraordinary if [Petitioner] did not experience physical violence." He further testified that the police in Guyana did not "target the [LGBT] community," but that officers were "unwilling to help" or "in some cases, actually [were] part of the violence against gay people."

After considering the testimony of K.Y. and her expert and the other evidence presented, the Immigration Judge denied K.Y.’s application for relief and protection and ordered her removed to Guyana. She determined that the plain language of the statute criminalizing traveling to meet a minor "indicate[d] a dangerousness that causes it to fall within the ambit of a particularly serious crime," and, as such, K.Y. was not eligible for asylum or withholding of removal. The Immigration Judge also denied K.Y.’s application for CAT deferral, finding that the discrimination and extortion K.Y. experienced did not rise to the level of torture, and that K.Y. had not shown a likelihood of future torture by the Guyanese government. K.Y. appealed, and the Board affirmed the Immigration Judge's decision without opinion. This appeal followed. We address each of K.Y.’s arguments in turn.

II

A

First, K.Y. argues that the Board's determination—namely, that she had not shown that she would more likely than not be tortured if she is returned to Guyana—was not supported by substantial evidence, or, alternatively, that the Immigration Judge did not give reasoned consideration to the evidence. We disagree as to the former argument and lack jurisdiction to review the latter.

We analyze the Immigration Judge's conclusions because the Board affirmed without opinion. Mutua v. U.S. Att'y Gen. , 22 F.4th 963, 967–68 (11th Cir. 2022). The Immigration Judge's legal conclusions are reviewed de novo , and her findings of fact must be supported by substantial evidence. Perez-Zenteno v. U.S. Att'y Gen. , 913 F.3d 1301, 1306 (11th Cir. 2019). "Under this highly deferential standard of review, the [immigration judge]’s decision can be reversed only if the evidence ‘compels’ a reasonable fact finder to find otherwise." Sepulveda v. U.S. Att'y Gen. , 401 F.3d 1226, 1230 (11th Cir. 2005) (quoting INS v. Elias-Zacarias , 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ).

To qualify for CAT protection, K.Y. bears the burden of showing either (1) that it is more likely than not that she would be tortured by her government if she is returned to Guyana, or (2) that it is more likely than not that with the instigation, consent, or acquiescence of a public official or other person acting in an official capacity, she would be tortured if she is returned to Guyana. See 8 C.F.R. §§ 1208.16(c), 1208.18(a). "Torture" is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind ...

Id . § 1208.18(a)(1). It is an "extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture." Id . § 1208.18(a)(2) ; see Perez-Guerrero v. U.S. Att'y Gen. , 717 F.3d 1224, 1232 (11th Cir. 2013). In addition, to qualify as "torture" an act must be inflicted outside the realm of lawful sanctions by, at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1), (3). "Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." 8 C.F.R. § 1208.18(a)(7) ; Rodriguez Morales...