Roye v. Attorney Gen. of United States

• Decision Date: 10 September 2012
• Docket Number: No. 11–1849.,11–1849.
• Citation: 693 F.3d 333
• Parties: Tehram Steve ROYE, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

693 F.3d 333

Tehram Steve ROYE, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 11–1849.

United States Court of Appeals, Third Circuit.

Argued June 26, 2012.

Filed: Sept. 10, 2012.

Megan Bremer, [Argued], Baltimore, MD, for Petitioner.

Jennifer R. Khouri, [Argued], Katherine Clark, United States Department of Justice, Office of Immigration Litig., Civ. Div., Washington, DC, for Respondent.

Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Tehram Steve Roye petitions for review of a final order of the Board of Immigration Appeals (the “BIA” or the “Board”) ordering him removed from the United States based on his state-law convictions for aggravated assault and endangering the welfare of a child. Roye asserts that he is entitled to deferral of removal under the United Nations Convention Against Torture (“CAT”) because, if removed to his home country, he will likely be imprisoned and, with the consent or acquiescence of the Jamaican government, be subjected to torture by other prisoners and prison guards. Because the BIA erred in its review of Roye's claims, we will grant his petition for review, vacate the BIA's order of removal, and remand the matter for further proceedings consistent with this opinion.

I. Background

Roye is a fifty-eight-year-old native of Jamaica, who was admitted to the United States on April 5, 1984 as the spouse of a U.S. citizen. On April 30, 1992, he pled guilty in the Pennsylvania Court of Common Pleas to committing an aggravated assault, in violation of 18 Pa.C.S.A. § 2702(a)(1), and to endangering the welfare of a child, in violation of 18 Pa.C.S.A. § 4304. The amended information to which he pled alleged that he had “sexual intercourse ... by forcible compulsion” with his eight-month old daughter. (Administrative Record (“A.R.”) at 760.) The trial judge sentenced Roye to a term of six to twenty years' imprisonment but “strongly recommend[ed] that consideration be given to [his] immediate transfer into ... [a] psychiatric [f]acility.” ( Id. at 763.)

Fourteen years after Roye pled guilty, the Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”), charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).

A. Roye's Application for Deferral of Removal

Roye subsequently filed, on February 11, 2009, a Form I–589, Application for Asylum and Withholding of Removal, seeking deferral of removal under the CAT. On that form, Roye stated that he “fear[s] ... rape and death if returned to Jamaica,” and that his “mental illness gives rise to bizarre and criminal behavior that will make him a clear target for police officers and other inmates who sexually assault inmates with mental illnesses.” (A.R. at 747.)

An Immigration Judge (“IJ”) held a hearing on May 26, 2009, during which Roye's counsel presented three witnesses.¹ Dr. Anne Weidman testified that, after examining Roye, she diagnosed him as having schizoaffective disorder, bipolar type. She said that the nature of Roye's condition was such that he would need to take medication for the remainder of his life, but she noted that Roye often refused to take medication “outside a treatment environment.” ( Id. at 298.) Dr. Weidman also observed that Roye suffered manic and depressive episodes, and “had incidents in which he set his cell on fire and ... [became] very sexually preoccupied....” ( Id. at 299.)

Nancy Anderson, an attorney who has practiced law in Jamaica and who was a member of the Independent Jamaican Council for Human Rights,² also testified during the hearing. She said that many mentally ill persons in Jamaica are prosecuted for minor offenses and are incarcerated, often indefinitely. She also described the general experience of mentally ill inmates in Jamaican prisons, indicating that they are frequently subjected to physical and sexual abuse by both fellow prisoners and prison officials. She said that “the most prevalent abuse is sexual,” but that mentally ill inmates also suffer other kinds of physical abuse because it “is easy to inflict on someone who is ... on some medication.” ( Id. at 316–17.) Anderson believed that, if Roye were returned to Jamaica, he was “likely to be incarcerated for an indefinite period of time if he's arrested,” and “would be exposed to abuse by guards and other inmates” while in prison. ( Id. at 340–41.)

Anderson also testified regarding the extent to which Jamaican prison officials are involved in the abuse of mentally ill prisoners. When asked to describe that involvement, Anderson replied:

a lot of complaints ... are of ill treatment at the hands of these correctional officers or warders.

... [T]hings are done that they must know about and they must be able to see, but they do nothing to prevent it or to assist ... the mentally ill [inmates]. There are some warders ... who will call me and say that this person is being abused, they don't know by who, but I should come and have a look at the situation or I should send someone to speak to them, and—but that—those are few and far between. I really believe that ... I believe that some of the correctional officers themselves are abusing prisoners and a lot of them are turning a blind eye to what is going on.

( Id. at 321.)

Dr. Wendel Abel, a physician who worked “with deportees with mental illness [es] ... for almost 20 years” ( id. at 349), and whose research involved “looking at the impact [of] deportation [on] persons who are mentally ill and who have been deported to Jamaica” ( id. at 349–50), also testified during the hearing. He said that mentally ill prisoners in Jamaica suffer “physical abuse, both by [prison] staff and also other prisoner[s,] so much so that [prison officials] have had to separate the mentally ill” from the remainder of the prison population. ( Id. at 372–73.) He also said that mentally ill prisoners “are not allowed out at the same period of time [as prisoners who are not mentally ill] because [the] other prisoners will physically ... and sexually abuse them.” (Id. at 373.)

B. The IJ's June 4, 2009 Decision

On June 4, 2009, the IJ found that Roye was removable due to his felony convictions, but the IJ granted Roye's request for deferral of removal under the CAT. In that decision and order, the IJ summarized the evidence of record, specifically detailing the testimony of Anderson, Abel, and Weidman. He gave particular emphasis to the testimony of Anderson and Abel, noting that they “verified that mentally ill detainees and prisoners are often sexually and physically assaulted in the Jamaican prison system because of the nature of their mental illness....” ( Id. at 177.) He also credited Anderson's assertion that “the high incident rate of sexual assaults against [mentally ill detainees and prisoners] is well known to the Jamaican government who essentially refuses to take the necessary action to punish the guards responsible.” ( Id.)

Based on the evidence, the IJ found that

[t]he only reasonable and fact-based conclusion ... is that [Roye] will be homeless in Jamaica due to a lack of family ties there. He will decompensate due to a lack of needed medications for his anti-psychotic behavior. He has a history of violence while off his medications, and even while on the medications, continues to exhibit anti-social behavior. [Roye] at times refused to acknowledge his mental disease, and sometimes refuses to take his medicines. As Dr. Abel opined, even in the best of circumstances, which are highly unlikely to prevail, [Roye] will likely be detained in prison and thereby suffer sexual and physical assaults....³

( Id. at 178.) The IJ also found that the evidence demonstrated that Roye's prospective persecutors would physically and sexually assault him with “the specific intent to inflict severe pain or suffering, i.e. ... the goal or purpose of inflicting severe pain or suffering.” ( Id. (internal quotation marks omitted).)

C. The BIA's October 29, 2009 Opinion and Order

The DHS appealed the IJ's order, arguing that “the Immigration Court erred as a matter of law when it found [Roye] will be subject to torture by or through the acquiescence of Jamaican prison guards, if removed to Jamaica.” ( Id. at 161.) On October 29, 2009, the BIA sustained the appeal and ordered Roye to be removed.

Based on its examination of the record, the BIA concluded that Roye had failed to “[meet] his burden of establishing by a preponderance of the evidence that it is more likely than not that he would be tortured if returned to Jamaica, either through the government inflicting or instigating the feared torture, or because the government would consent or acquiesce to such torture.” ( Id. at 118.) Significantly, the BIA “credit[ed] the testimony of [the three witnesses who testified at the May 26, 2009 hearing] and accept[ed] their testimony as an accurate depiction of what likely would occur upon [Roye's] return to Jamaica.” ( Id. at 117.) However, even crediting that testimony, the BIA determined that the evidence of record did not “establish[ ] that the government of Jamaica has the specific intent to torture [Roye], as required for a grant of deferral of removal under the [CAT].” ( Id.) The BIA explained that, “even if Jamaican government officials were to place [Roye] in indefinite detention despite being aware that [Roye] would be likely to suffer physical and sexual abuse in prison, as maintained by [Roye's] witnesses, such action would not, by itself, establish that they possess the motive or purpose of torturing [Roye].” ( Id.)

The BIA also rejected the assertion that the Jamaican government would consent to or acquiesce in Roye's abuse by other prisoners or prison guards. In doing so, it explained that, under the governing law, to prove that Roye will be tortured “by or through the acquiescence of Jamaican” officials ( id. at 161),...