Cole v. U.S. Attorney Gen.

• Decision Date: 14 March 2013
• Docket Number: No. 11–15557.,11–15557.
• Citation: 712 F.3d 517
• Parties: Chadrick Calvin COLE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

712 F.3d 517

Chadrick Calvin COLE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 11–15557.

United States Court of Appeals,Eleventh Circuit.

March 14, 2013.

Sandra L. Greene, Greene Fitzgerald Advocates & Consultants, York, PA, for Petitioner.

Jessica R.C. Malloy, Dara Smith, David V. Bernal, Krystal Samuels, U.S. Dept. of Justice, OIL, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel—ATL, Atlanta, GA, for Respondent.

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

Before O'CONNOR,^* Associate Justice Retired, and MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

At issue in this appeal is whether the Board of Immigration Appeals (“BIA”) correctly found petitioner Chadrick Cole removable as an aggravated felon, and whether its denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”) was proper. The BIA found Cole removable and denied his claims for asylum and withholding of removal because his underlying offense—pointing a firearm at another person, in violation of S.C.Code § 16–23–410—was a particularly serious crime of violence that disqualified him from those forms of relief. The BIA further denied his claim for CAT relief based for the most part on factual determinations that he would not be tortured upon return to his native Jamaica. After thorough review, we deny Cole's petition.

I.

A.

The relevant facts are these. Petitioner Chadrick Cole is a native and citizen of Jamaica who was born on November 7, 1988. Cole was admitted into the United States as a lawful permanent resident in 2006.

On April 6, 2009, Cole violated a South Carolina criminal statute, S.C. § 16–23–410, which criminalizes pointing a firearm at another person. Cole pleaded guilty to the offense in a South Carolina Court of General Sessions and was sentenced, under the South Carolina Youthful Offender Act (“SCYOA”), to an indeterminate term of imprisonment not to exceed five years. On November 12, 2010, the Department of Homeland Security (“DHS”) sought to remove Cole pursuant to two sections of the Immigration and Nationality Act (“INA”): Title 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(E); and 8 U.S.C. § 1227(a)(2)(C), for having been convicted of a firearms offense.

The DHS later amended the charge of removability pursuant to § 1227(a)(2)(A)(iii) and alleged, in addition to the original charges, that Cole also was convicted of an aggravated felony as defined by § 1101(a)(43)(F), which covers crimes of violence for which the term of imprisonment is at least one year. Soon thereafter, Cole submitted an application for asylum, withholding of removal, and relief under the CAT. Cole also moved for a continuance so that he could obtain additional documentary evidence from Jamaica, but the IJ denied this motion and scheduled a hearing for Cole's application.

At the hearing, Cole offered three distinct theories in support of his claims for asylum, withholding of removal, and CAT relief. First, Cole's developmental disabilities would make him a target for discrimination or persecution against disabled individuals. Second, Cole's status as a deportee would result in government abuse, including police profiling. Finally, his family's involvement with the People's National Party (“PNP”) would make Cole a target of politically motivated violence from the Jamaica Labour Party (“JLP”), the PNP's primary political rivals.

Cole testified, and his mother Monica Singleton and his sister Annakay Charles corroborated, that he was born with his throat attached to his lungs, suffers from narcolepsy or a similar sleeping disorder, and has a severe learning disability. Due to his disabilities, he was teased and beaten up by other children in his age cohort while living in Jamaica. In addition, Cole presented evidence that, if returned to Jamaica, he would have difficulty obtaining employment or access to adequate health care. Cole also testified that he feared returning to Jamaica as a deportee, because he had heard from people in Jamaica that most deportees die upon returning there. He heard that deportees are temporarily detained in a jail called “Central” upon their return to Jamaica, although he had never seen “Central” himself. Finally, Cole testified that his father and his brother Kevin were supporters of the PNP, which is engaged in a struggle for political power with the JLP. In 2000, political rivals shot Kevin, who is now confined to a wheelchair and currently in hiding. Cole testified to his fear that, if returned to Jamaica, he would be the target of politically motivated violence. During cross-examination, Cole admitted, however, that he could relocate to a safer town where people were not aware of his political associations.

B.

On June 20, 2011, the IJ issued a written decision denying Cole's application for asylum, withholding of removal, and CAT protection, and ordered him removed to Jamaica. The IJ first held that Cole's SCYOA conviction constituted a “conviction” as defined in the INA. The IJ next held that Cole was removable under the government's two 8 U.S.C. § 1227(a)(2)(A)(iii) charges and the § 1227(a)(2)(C) charge. In relevant part, the IJ held that Cole's conviction was a “crime of violence” because it was an offensethat has as an element the “threatened use of physical force against the person ... of another.” Cole's term of imprisonment for this offense exceeded one year, and therefore Cole was removable under § 1227(a)(2)(A)(iii).

Because Cole was convicted of an aggravated felony, the IJ determined he was ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii), which bars aggravated felons from obtaining asylum. The IJ also found Cole was ineligible for withholding of removal due to 8 U.S.C. § 1231(b)(3)(B)(ii), which renders an alien ineligible for withholding of removal if the alien has been convicted of a “particularly serious crime,” a term of art that covers aggravated felonies that carry a term of imprisonment of five years or more. In the alternative, the IJ also denied the withholding of removal claim on the grounds that, although Cole was credible, he could not meet his evidentiary burden because he had not proven he was more likely than not to suffer persecution upon returning to Jamaica.

Finally, the IJ considered Cole's CAT claims. The IJ made several factual findings regarding each of Cole's distinct theories of torture and ultimately rejected all three. Regarding Cole's physical and mental disabilities, the IJ found that “the Jamaican government is taking commendable steps to actively combat the marginalization of persons with disabilities in the country.” Thus, there was no possibility that Cole would be tortured due to his disabilities with the acquiescence of the government.

As for Cole's status as a deportee, the IJ did not find substantial evidence in the record to indicate that the Jamaican government tortured aliens removed to Jamaica. The documentary evidence indicated that “the Jamaican government has taken steps to identify dangerous deportees to address a spike in crime that has been attributed to an increase of Jamaican deportees, not for the illicit purpose of torturing deportees.” The IJ also held that, even assuming arguendo that Cole's allegations of temporary detention were true, they fell short of the legal threshold for torture established by this Circuit.

Regarding Cole's claim of imputed political association, the IJ found that Cole had not established it was more likely than not that he would suffer reprisals due to his imputed political association. Cole lived in Jamaica from 1988 to 2006—a period that included the five years after Kevin was shot—and never suffered violence due to his father's or brother's political associations. Furthermore, documentary evidence attested to a decline in political violence in Jamaica in recent years. Finally, Cole had testified that he could relocate within the country to avoid suffering harm due to his imputed political associations. Accordingly, the IJ denied Cole all three forms of relief he sought and ordered that Cole be removed to Jamaica. Cole appealed this decision, along with the denial of his motion for a continuance, to the BIA.

C.

On October 28, 2011, the BIA dismissed Cole's appeal and upheld most, but not all, of the IJ's decision. The BIA first decided that Cole's SCYOA conviction was a conviction for immigration purposes. The BIA reasoned that the SCYOA resulted in convictions, not civil adjudications of status, and thus was unlike juvenile delinquency proceedings, which the BIA did not treat as convictions for immigration purposes. The BIA also sustained Cole's removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), but only upon the final ground in the IJ's decision: that Cole was an aggravated felon convicted of a crime of violence. The BIA, however, proceeded under a different sub-section of the relevant crime of violence definition—that Cole's offense was one that involved a substantial risk that physical force would be used against the victim—than the one upon which the IJ had relied. As the IJ had done, the BIA rejected Cole's argument that S.C.Code § 16–23–410 lacked a mens rea requirement.

Next, the BIA considered Cole's applications for asylum and withholding of removal. Since Cole was an aggravated felon, 8 U.S.C. § 1158(b)(2)(A)(ii) barred Cole from a grant of asylum. Moreover, since BIA precedent established that his indeterminate sentence of up to five years should be treated like a five-year term of imprisonment, § 1231(b)(3)(B)(ii) barred Cole from withholding of removal. The BIA then specifically adopted the IJ's alternative decision denying Cole's application for withholding of removal due to a failure of proof. The BIA also adopted the IJ's decision denying Cole's application for CAT relief because the record did...