Borey Ai v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOREY AI, No. 18-70032
Petitioner, Agency No. A027-737-360
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 16, 2020
San Francisco, California
Before: WATFORD, FRIEDLAND, and MILLER, Circuit Judges.
Borey Ai, a native of Thailand and citizen of Cambodia, seeks review of an
order of the Board of Immigration Appeals affirming an immigration judge’s
denial of Ai’s application for deferral of removal under the Convention Against
Torture. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we grant the
petition and remand.
Ai claims that he will be tortured if removed to Cambodia because he is a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
cultural outsider to Cambodia with a criminal record and family ties to the Khmer
Rouge. Before Ai was born, the Khmer Rouge captured Ai’s mother, forced her
into a labor camp, and killed most of her family. The Khmer Rouge also captured
Ai’s aunt and conscripted her into the military. Ai’s mother fled to Thailand, where
he was born. At age five, Ai came to the United States. At age 14, he was
convicted of second-degree murder and robbery in a California state court. After
serving his sentence, Ai was placed in removal proceedings. He has never set foot
in Cambodia.
Ai presented the testimony of Dr. Peg Levine, a clinical psychologist and
medical anthropologist with specialized knowledge of Cambodia and the Khmer
Rouge regime. Dr. Levine stated that Ai’s personal history makes it “probable”
that he would be tortured in Cambodia. Specifically, Dr. Levine explained that Ai’s
criminal record, outsider status, and family ties to the Khmer Rouge would place
him at risk of wrongful conviction by the Cambodian government and torture in a
Cambodian prison, or of extrajudicial abduction and murder. Dr. Levine concluded
that there was a 70 percent chance that the connection between Ai’s mother and the
Khmer Rouge would be discovered and a 60 to 80 percent chance that Ai would be
tortured.
The immigration judge “g[ave] Dr. Levine’s risk assessment very limited
weight because [Dr. Levine] failed to provide a satisfactory basis for her statistical
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conclusion,” and “her assessment [was] not based on established principles of
statistics, but largely on her own interpretation of soft data.” The immigration
judge also emphasized that “Dr. Levine is not an expert on the treatment of U.S.
deportees to Cambodia or prisoners.”
For the same reasons, the Board agreed that Dr. Levine’s testimony was “not
entitled to great weight.” The Board concluded that the remaining evidence was
insufficient to establish that it was more likely than not that Ai would be tortured if
removed to Cambodia.
We conclude that the Board’s rejection of Ai’s claim was not supported by
substantial evidence because the Board did not adequately consider Dr. Levine’s
testimony. See Cole v. Holder, 659 F.3d 762, 770–73 (9th Cir. 2011); see also
Owino v. Holder, 771 F.3d 527, 537 (9th Cir. 2014) (Remand is appropriate
“where the agency has failed to give reasoned consideration to highly probative or
potentially dispositive evidence.”). To be sure, the Board was not required to
accept Dr. Levine’s specific numerical estimates of the risk Ai faced when those
estimates did not appear to be based on any quantitative data. See Stephens v.
Union Pac. R.R. Co., 935 F.3d 852, 856 (9th Cir. 2019) (An “expert’s opinion
must rest on ‘facts or data in the case that the expert has been made aware of or
personally observed,’ not merely assumptions and speculation.” (quoting Fed. R.
Evid. 703)). At oral argument, Ai’s counsel described the percentages offered by
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Dr. Levine as “demonstrative number[s],” which we take to be an implicit
concession that they were not to be understood as precise measures of probability.
Nevertheless, the Board was required to give “reasoned consideration” to
Dr. Levine’s entire testimony, and it did not do so. Cole, 659 F.3d at 764. Dr.
Levine offered more than just probability estimates; she also presented an opinion
about the conditions in Cambodia and the dangers Ai would face if deported there.
That opinion did not depend on any statistical analysis. Instead, Dr. Levine drew
upon her research and direct experience, including more than 1,000 interviews of
Cambodian survivors of the Khmer Rouge. Nor did Dr. Levine’s opinion that Ai
would likely be tortured because he does not speak Khmer, has a criminal record,
and has family ties to the Khmer Rouge require specific expertise “on the treatment
of U.S. deportees to Cambodia or prisoners.”
We express no view on whether there might be other grounds for
discounting Dr. Levine’s testimony, or whether her testimony, if accepted, requires
granting Ai’s requested relief. Instead, our review is limited to the reasoning
articulated by the Board. See Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir.
2016). Because that reasoning is inadequate to support the Board’s conclusion, we
remand for the agency to reconsider Ai’s application for protection under the
Convention Against Torture.
PETITION GRANTED; REMANDED.
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