Fuller v. Whitaker

• Decision Date: 23 January 2019
• Docket Number: No. 17-3176,17-3176
• Citation: 914 F.3d 514
• Parties: Ray FULLER, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

914 F.3d 514

Ray FULLER, Petitioner,

v.Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent.

No. 17-3176

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2018

Decided January 23, 2019

Barry Levenstam, Attorney, JENNER & BLOCK LLP, Chicago, IL, David B. Diesenhouse, Attorney, Tali Ravit Leinwand, Attorney, JENNER & BLOCK LLP, New York, NY, Matthew E. Price, Attorney, JENNER & BLOCK LLP, Washington, DC, for Petitioner.

Oil OIL, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Wood, Chief Judge, and Manion and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Ray Fuller asked the Board of Immigration Appeals to exercise its authority to reopen his removal proceeding sua sponte so that he could present new evidence in support of his request to defer his removal from this country under the Convention Against Torture ("CAT").¹ Fuller contends that he likely will face torture upon return to his native Jamaica because he is bisexual. The Board previously had sustained an Immigration Judge’s finding that Fuller had not presented a credible case as to his alleged sexual orientation and fear of torture. In support of his motion to reopen, Fuller submitted to the Board several new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the Board explained that "[Fuller’s] motion does not challenge our conclusions regarding his credibility or his eligibility for deferral of removal, and we do not find that his letters of support would materially alter these findings." A.R. 3 (internal record citation omitted). Because the Board’s stated rationale for disposing of Fuller’s motion reflects a misapprehension of the basis for his request, and because we cannot be confident that the Board’s mistake did not taint the exercise of its otherwise unreviewable discretion over the merits of the motion, we conclude that the Board committed legal error in denying his request for relief. On that basis, we grant Fuller’s petition for review and remand to the Board for further proceedings.

I.

Our summary of the facts may be somewhat abbreviated, as this is the fourth time that Fuller’s case has come before us. We refer the reader to our two prior published decisions for additional background. See Fuller v. Lynch , 833 F.3d 866 (7th Cir. 2016) (" Fuller I "); Fuller v. Sessions , 879 F.3d 265 (7th Cir. 2018) (" Fuller II ").

Fuller entered the country legally on a fiancé visa in 1999 and married an American citizen the following year. In 2004, he pleaded guilty to attempted criminal sexual assault and an Illinois court ordered him to serve a term of 30 months’ probation. After he later violated the terms of his probation, Fuller was re-sentenced to a prison term of four years.

Following Fuller’s release from prison in 2014, the Department of Homeland Security ("DHS") initiated removal proceedings against him. The government charged, and the Board would later agree, that Fuller was removable from the United States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he had lost his conditional permanent resident status. (In 2004, Fuller and his wife, whom he divorced the following year, failed to appear for a mandatory interview with immigration officials, triggering the revocation of his conditional residency status.)² And because, as the Board would also agree, Fuller’s conviction for attempted criminal sexual assault constituted a "particularly serious crime," he was disqualified from seeking withholding of removal under both the Immigration and Nationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).

Fuller instead sought deferral of his removal under the CAT, alleging that he was likely to be tortured as a bisexual were he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4), 208.17(a).³ In a hearing before the Immigration Judge ("IJ"), Fuller testified to a history of sexual relationships with both men and women beginning in his preteen years and continuing through his (by then dissolved) marriage to a U.S. citizen. Fuller also recounted a number of incidents in Jamaica in which he was physically and verbally attacked by those who perceived him to be gay; one of these incidents involved a shooting by a homophobic mob in the gay-friendly resort town of Ocho Rios. Fuller further indicated that his sisters had disowned him for his sexual orientation. In addition to his testimony, Fuller presented the IJ with seven letters from his children and friends, attesting to both his bisexuality and to the violence he had experienced in Jamaica on account of his sexual orientation.

The IJ found that Fuller’s testimony was not credible; and because she disbelieved his testimony and also questioned the veracity of the letters he had submitted, the IJ concluded that Fuller had not established that he is bisexual and as such faces a likelihood of torture if he is forced to return to Jamaica. She consequently denied his request for relief under the CAT. A.R. 181–202. In finding that Fuller’s testimony was not credible, the IJ cited discrepancies both as to certain basic facts (including the number and names of sisters, as well as confusing his sister with his mother in his testimony) and as to the details of the prior instances of violence he allegedly had experienced in Jamaica (including a ten-year discrepancy as to the timing of the Ocho Rios shooting and which of his former boyfriends was present at the incident, as recounted in his written statement versus his subsequent testimony in court). As for the supporting letters from Fuller’s friends, the IJ noted that none of the authors were available to testify although two of them were former boyfriends who lived in the United States. The letters also diverged in certain respects from Fuller’s testimony: one letter suggested that Fuller had been shot on multiple occasions in Jamaica, whereas Fuller had only described one shooting. And all of the letters contained the same centered, dotted signature line, which caused the IJ to doubt their provenance. A.R. 192–96. The IJ summarized:

[Fuller’s] credibility is seriously lacking in this case. He is unable to recall many of the most important details of the events that he claims ... had an impact on his life, particularly with respect to his claim of being bisexual. He has failed to provide the Court with many documents that could have clarified many of these inconsistencies, such as medical records, police reports, corroborating letters of support or witnesses. The letters that he has presented to the Court are given very little weight because the Court is unable to verify their authenticity and has not had an opportunity to cross-examine or to even hear testimony from any of the makers of these statements. The respondent has given very little corroborative evidence to evaluate his claim that he is in fact bisexual and that he was in fact harmed in Jamaica on account of his sexual orientation in the past.

A.R. 195.

In 2015, the Board affirmed the denial of CAT relief to Fuller based on the IJ’s adverse credibility findings. A.R. 61–62. "[Fuller] has shown no clear error in the Immigration Judge’s detailed findings of fact, to include the findings that the respondent did not credibly testify and did not establish that he has ever been bisexual. The respondent’s inconsistent statements and implausible explanations fully support an adverse credibility determination." A.R. 62 (internal record citation omitted).

Fuller then appealed to this court, but we denied his petition for review in a divided opinion. Fuller I , 833 F.3d 866. We concluded in relevant part that the IJ’s adverse credibility determination, as affirmed by the Board, was supported by substantial evidence. Id. at 871–72. Although we acknowledged that some of the IJ’s stated reasons for disbelieving Fuller were off the mark (including, for example, the citation of his marriage to a woman and multiple other prior heterosexual relationships as a reason to think he was not bisexual), others were sound. The latter included the discrepancies between his written statement and his oral testimony as to when the Ocho Rios shooting had occurred, his confusion as to the number and names of his sisters (and mixing up his mother with his sister), and a material lie he had told government officials in 2001 in seeking permission to visit Jamaica. We were satisfied that the IJ’s adverse credibility finding was amply supported in these respects. Id. We added that if Fuller were able to gather new evidence demonstrating that the IJ was mistaken as to his sexual orientation, he could ask the IJ to sua sponte reopen the proceeding. Id. at 872. The dissent, unpersuaded that these discrepancies cast doubt on Fuller’s claims that he was bisexual and had suffered violence as a result, contended that the petition for review should have been granted. Id. at 872–74.

In January 2017, Fuller filed a motion asking the Board to reconsider and/or reopen the proceedings. A.R. 48–54. The principal contention that Fuller advanced in his motion was that the IJ had erred in rejecting his representation that he is bisexual and as such faces likely persecution and torture upon his return to Jamaica. Among other points, Fuller argued that he had testified without contradiction that he is bisexual and has been rejected by his family members because of his sexual orientation; that given the hostility and violence bisexual individuals experience in Jamaica, he would have no reason to falsely characterize himself as bisexual; that for the same reasons, it was difficult for him to locate gay or bisexual Jamaicans who would put themselves at risk by giving testimony that would confirm his bisexuality; that the inconsistencies and mistakes in his testimony before the IJ were due to his fear of being returned to Jamaica; and that the IJ’s...