Bromfield v. Mukasey

• Decision Date: 15 September 2008
• Docket Number: No. 05-75844.,05-75844.
• Citation: 543 F.3d 1071
• Parties: Damion Nathanial BROMFIELD, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 1071

Damion Nathanial BROMFIELD, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-75844.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 2008.

Filed September 15, 2008.

Matthew H. Adams, Esq., Northwest Immigrants Rights Project, Seattle, WA, for the petitioner.

Paul F. Stone, Esq. (argued) and R. Alexander Goring, Esq., U.S. Department of Justice, Civil Division, Washington, D.C., and Ronald E. LeFevre, Department of Homeland Security, San Francisco, CA, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A44-134-417.

Before: B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and WILLIAM W. SCHWARZER,^* District Judge.

BETTY B. FLETCHER, Circuit Judge:

Damion Nathanial Bromfield ("Bromfield") petitions this court for review of a Board of Immigration Appeals ("BIA") order affirming an Immigration Judge's ("IJ") denial of Bromfield's application for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). We hold that the evidence in the record compels the conclusion that there exists in Jamaica a pattern or practice of persecution of gay men and that the IJ applied the wrong legal standard in evaluating Bromfield's CAT claim. Accordingly, we remand Bromfield's case so that the agency can reconsider whether Bromfield will more likely than not be persecuted or tortured if removed to Jamaica.

I. Background

Bromfield is a Jamaican national who came to the United States as a legal permanent resident in 1993 at the age of fifteen. Four years later, when he was nineteen, Bromfield "came out" as a gay man. Prior to coming out, Bromfield made two short trips to Jamaica to visit his extended family. He cites violence against homosexuals in Jamaica as one of the reasons why he has not returned to his home country.¹

Bromfield was placed in removal proceedings after pleading guilty to misdemeanor sexual abuse in the third degree and contributing to the sexual delinquency of a minor. The government charged him as removable for having been convicted of an aggravated felony. Unable to obtain counsel, Bromfield admitted the charges against him and conceded removability. The IJ found that Bromfield was ineligible for asylum as a result of his convictions.² But the IJ declined to find that Bromfield was convicted of a particularly serious crime. Accordingly, he permitted Bromfield to apply for withholding of removal and relief under CAT.³

In support of his application, Bromfield testified that as a gay man he would be beaten and killed if returned to Jamaica. In support of this belief, Bromfield testified about articles that he had read about violence against gay men in Jamaica and expressed concern that his father might have told his extended family that he was gay. He also submitted documentary evidence in support of his claim, including the 2005 U.S. State Department Country Report for Jamaica ("Country Report"). According to the report, violence against homosexuals is widespread, and is perpetrated by both private individuals and public officials such as police officers and prison personnel. The report also noted that Jamaican law criminalizes homosexual conduct, making it punishable by up to ten-years imprisonment, and that the prime minister had stated that the government would not be pressured into changing its anti-homosexual laws.

The IJ denied Bromfield's claims on the merits. The IJ rejected the CAT claim because he concluded that Bromfield had not "demonstrated any . . . interest or risk to him from the [Jamaican] government." In rejecting Bromfield's claim for withholding of removal, the IJ relied heavily on the fact that Bromfield had visited Jamaica twice without incident prior to coming out as a gay man and continued to have contact with his Jamaican-born father. He also noted that Bromfield was not politically active. Looking to the Country Report, the IJ acknowledged that gay people suffered discrimination, but characterized violence against them as "random acts of violence" that do not constitute persecution. Thus the IJ concluded that Bromfield had not carried his burden and was not entitled to either form of relief.

Bromfield filed a pro se brief before the BIA arguing that the IJ erred in denying relief because Bromfield had shown regular and widespread persecution and torture of homosexuals in Jamaica carried out at least in part by the Jamaican government. The BIA dismissed the appeal and affirmed the IJ's conclusion that Bromfield failed to sustain the high burden of proof applicable to withholding of removal. The BIA also stated that the record supported the conclusion that Bromfield failed to establish that he would more likely than not be tortured if returned to Jamaica, but did not offer any explanation. Bromfield timely petitioned for review.

II. Jurisdiction

The government argues that we do not have jurisdiction over this petition for review because Bromfield was found removable on the basis of his conviction for an aggravated felony. We have jurisdiction to determine whether we have jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th Cir.2007) (per curiam), and we conclude that we do.

This court lacks jurisdiction "to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony]." 8 U.S.C. § 1252(a)(2)(C); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But this provision applies only "to removal orders, and not to applications for asylum, withholding of removal, or CAT relief." Arteaga v. Mukasey, 511 F.3d 940, 942 n. 1 (9th Cir.2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007)). Therefore, if the IJ denies withholding of removal or CAT relief on the merits, rather than relying on the aggravated felony conviction, we have jurisdiction to review the merits of these claims. See id. (reviewing withholding of removal and CAT claims on the merits despite the fact that petitioner was found removable as an alien convicted of an aggravated felony); see also Unuakhaulu v. Gonzales, 416 F.3d 931, 933 (9th Cir.2005) (holding that because "8 U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to review orders of removal that are actually based on a petitioner's prior aggravated felony conviction . . . [w]e . . . have jurisdiction to review the BIA's nondiscretionary denial of withholding, which was not predicated on Unuakhaulu's aggravated felony").⁴

Withholding of removal—whether under INA § 241(b)(3) or CAT—is nondiscretionary relief that must be granted to any alien who establishes that he will more likely than not be persecuted or tortured, respectively, in the proposed country of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(d)(1). Even if the applicant has carried his burden of proof, however, withholding of removal will be denied in four narrow circumstances, one of which is potentially relevant here: an alien is not eligible for withholding of removal if he has been convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(ii). If an individual convicted of an aggravated felony is sentenced to five-years imprisonment, he is deemed to have been convicted of a particularly serious crime and is ineligible for withholding of removal. Id. If, on the other hand, the individual is sentenced to less than five-years imprisonment, he remains eligible for withholding of removal unless the Attorney General (acting through the IJ and the BIA) determines that the crime at issue was "particularly serious." Id.; Afridi v. Gonzales, 442 F.3d 1212, 1220-21 (9th Cir.2006).

Bromfield was convicted of an aggravated felony for which he was sentenced to less than one-year imprisonment. He therefore remained eligible for withholding of removal unless the IJ determined that his conviction was for a particularly serious crime. The IJ declined to reach this conclusion, and denied Bromfield's application for withholding of removal and relief under CAT on the merits. Because the IJ denied the claim on the merits and not on the basis of Bromfield's conviction, we have jurisdiction to determine whether the IJ erred in determining that Bromfield had not established that he would more likely than not be persecuted or tortured in Jamaica.

III. Scope and Standard of Review

Where, as here, the BIA's order indicates that it may have engaged in de novo review of the IJ's decision but does not provide any legal analysis, we review the IJ's oral decision "as a guide to what lay behind the BIA's conclusion[s]." Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). We review the IJ's application of legal standards de novo. Morales, 478 F.3d at 983. The IJ's factual findings, on the other hand, are reviewed for substantial evidence. Id. Under this standard, we reverse the BIA if the evidence presented would compel a reasonable factfinder to reach a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

IV. Withholding of Removal Under INA § 241(b)(3)

Bromfield is entitled to withholding of removal under INA § 241(b)(3) if he establishes that he would more likely than not be persecuted on account of his sexual orientation if he were removed to Jamaica. 8 C.F.R. § 1208.16(b); Karouni v. Gonzales, 399 F.3d 1163, 1172 (9th Cir.2005) (citing Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir.2000)) (holding that homosexuals are members of a particular social group for purposes of asylum and withholding of removal). He can meet his burden either by presenting evidence that he would be singled out for persecution or by establishing that there is a pattern or practice of persecution of a group of similarly-situated individuals and that his "inclusion in and identification with such group of persons [makes] it . . . more likely than not that...