Blake v. U.S. Attorney Gen.

• Decision Date: 23 December 2019
• Docket Number: No. 19-14316,19-14316
• Citation: 945 F.3d 1175
• Parties: Sean Anthony BLAKE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

945 F.3d 1175

Sean Anthony BLAKE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-14316

United States Court of Appeals, Eleventh Circuit.

December 23, 2019

Gregory Paul Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, for Petitioner.

Andrew B. Insenga, U.S. Department of Justice Civil Division, Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals

Before WILLIAM PRYOR, MARTIN, and BRANCH, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This application requires us to decide whether Sean Anthony Blake, a Jamaican citizen and convicted drug trafficker who has illegally entered the United States three times, is entitled to an emergency stay of removal. We conclude that he is not and deny his motion to stay removal. Although Blake has presented evidence that he faces a risk of grave harm if he is removed to Jamaica, more is required to prevail on this motion. He must establish a strong showing that he is likely to succeed in proving that the Board erred when it concluded he was not entitled to file an untimely motion to reopen. Because he has not done so, he is not entitled to relief on this motion. We will, however, grant Blake’s motions to seal his records before this Court, and we will carry his motions for judicial notice with the case.

I. BACKGROUND

The United States deported Blake twice, in 2005 and 2008, after he entered the country illegally. When Blake illegally entered the United States for a third time in May 2009, the Department of Homeland Security charged him as removable as an alien who falsely represented himself as a United States citizen, 8 U.S.C. § 1182(a)(6)(C)(ii)(I), who was not in possession of a valid travel document at the time of entry, id. § 1182(a)(7)(A)(i)(I), and who had previously been ordered removed after being convicted of an aggravated felony, id. § 1181(a)(9)(A)(i). In June 2009, an immigration judge ordered Blake removed.

But the government delayed deporting Blake. In a separate criminal proceeding, Blake pleaded guilty to drug-trafficking charges and became a cooperating witness in the prosecution of Christopher Coke, a gang leader in Jamaica. In exchange for testifying against Coke, Blake received a sentencing reduction. The government also deferred his removal. But in January 2019, the Department placed him in the custody of immigration officials to execute the 2009 removal order.

Blake responded with a motion to reopen his immigration proceedings. He alleged that his motion, although untimely, was exempt from the time limitation based on a change in country conditions in Jamaica and that he was entitled to relief under the United Nations Convention Against Torture. The immigration judge denied Blake’s motion, and the Board of Immigration Appeals affirmed. The Board found that Blake had established only a change in his personal circumstances, not a change in country conditions in Jamaica, which was insufficient to exempt him from the deadline to file a motion to reopen. The Board also found that Blake had failed to prove a prima facie case of eligibility for deferral of removal under the Convention because he did not submit sufficient evidence that he would more likely than not be tortured by, or with the acquiescence of, the Jamaican government.

Blake petitioned this Court for review. He moved to stay his removal pending disposition of his petition, to seal several records, and for this Court to take judicial notice of new records. Although the government did not oppose Blake’s motions to seal, it filed a response in opposition to his motions for a stay and for judicial notice.

II. STANDARD OF REVIEW

When determining whether to grant a stay of removal, we consider "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation and internal quotation marks omitted). The failure to establish a strong likelihood of success on the merits is fatal to a motion to stay removal. See id. at 435, 129 S.Ct. 1749 (stating that courts should consider the second two factors only after "an applicant satisfies the first two factors").

III. DISCUSSION

We can start, and end, with whether Blake has made a strong showing that he is likely to succeed on the merits. To prevail, Blake must meet the "heavy burden" that comes with a motion to reopen the case. Zhang v. U.S. Att’y Gen. , 572 F.3d 1316, 1319 (11th Cir. 2009). After the Board orders an alien removed, an alien must file a motion to reopen "within 90 days of the date of entry of a final administrative order." 8 U.S.C. § 1229a(c)(7)(C)(i). But this deadline does not apply if "(1) an alien files a motion to reopen that seeks ... relief under the Convention Against Torture; (2) the motion is predicated on changed country conditions; and (3) the changed conditions are material and could not have been discovered at the time of the removal proceedings." Jiang v. U.S. Att'y Gen. , 568 F.3d 1252, 1256 (11th Cir. 2009) (citing 8 C.F.R. § 1003.23(b)(4)(i) ). Here, the evidence of changed conditions must be material to Blake’s eligibility for relief under the Convention Against Torture. To receive relief under the Convention, Blake must "establish that it is more likely than not that he ... would be tortured if removed to the proposed country of removal," 8 C.F.R. § 208.16(c)(2), "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity," id. § 208.18(a)(1). So to sum up these standards, Blake must make a prima facie case that it was more likely than not he would be tortured by or with the consent or acquiescence of Jamaican officials on returning to his home country due to changes in country circumstances since his removal proceedings.

Blake offers three arguments why the Board likely erred when it concluded that he could not meet this burden. He first asserts that the Board committed legal error by failing to give reasoned consideration to his application. See Indrawati v. U.S. Att’y Gen. , 779 F.3d 1284, 1302 (11th Cir. 2015) ("Occasionally this court has granted petitions for review, vacated agency decisions, and remanded for further proceedings when the agency’s decision was so lacking in reasoned consideration and explanation that meaningful review was impossible."). Next, he argues that the Board’s decision itself was erroneous. And finally, he accuses the Board of committing a pair of isolated legal errors—namely, applying the wrong legal standard and engaging in unlicensed factfinding. None of his arguments are likely to succeed.

First, the Board’s decision makes clear that it likely gave reasoned consideration to Blake’s arguments. In his brief to the Board, Blake argued that "the reaction and sustaining environment in Jamaica" to Coke’s arrest and extradition created violent conditions. As support, he offered evidence of armed riots immediately following Coke’s extradition in 2009 and of violent retaliation against his family members that occurred shortly after his testimony against Coke in 2012. In Blake’s telling, the Board failed to consider this evidence. But one of the Board’s reasons for denying the motion was that Blake did not provide "evidence that indicate[s] that country conditions in Jamaica are significantly different today in 2019 as a result of the extradition and conviction of Christopher Coke almost a decade ago or any other reason." This statement identifies the flaw in Blake’s evidence: it all came from the discrete periods of time that surrounded Coke’s extradition and conviction "almost a decade ago," which does not support the inference that "country conditions in Jamaica are significantly different today in 2019 ." This explanation is reasoned consideration. See Cole v. U.S. Att’y Gen. , 712 F.3d 517, 534 (11th Cir. 2013) ("[The Board] need only consider the issues to perceive that [it has] heard and thought and not merely reacted." (citation and internal quotation marks omitted)).

The Board’s decision was also likely not erroneous, which we review under the deferential arbitrary and capricious standard. See Flores-Panameno v. U.S. Att’y Gen. , 913 F.3d 1036, 1040 (11th Cir. 2019). As noted, the Board identified a substantial hole in Blake’s evidence—that it was dated and did not reveal anything about contemporary conditions in Jamaica. And even setting that issue aside, Blake has not established a prima facie case that his risk of harm was materially affected by changed country conditions in Jamaica, as opposed to changed personal circumstances. Blake’s own evidence to the Board showed that Coke had been a powerful gang kingpin in Jamaica since at least the 1990s, long before Blake’s removal proceedings. It is certainly reasonable to assume that Coke and his purportedly vast network in Jamaica were hostile to police informants before Coke’s arrest and trial. So the Board did not act arbitrarily or capriciously when it concluded that the real change that Blake’s evidence supported was of personal circumstances—Blake was at risk because he testified, not because Jamaica became more hostile to informants between 2009 and 2019.

Finally, Blake’s two purported legal errors in the Board’s decision will not likely grant him relief. First, the Board identified the correct legal standard for reviewing a motion to reopen when it concluded that Blake had "not demonstrated prima facie eligibility for deferral of removal under the Convention Against Torture." And second, whether Blake played a "limited role" in Coke’s prosecution, as the Board found, is...