Edwards v. U.S. Attorney Gen.

• Decision Date: 23 December 2022
• Docket Number: 19-15077
• Parties: Karastan L. EDWARDS, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

56 F.4th 951

Karastan L. EDWARDS, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 19-15077

United States Court of Appeals, Eleventh Circuit.

Filed December 23, 2022

John Kuhn Bleimaier, Law Offices of John K. Bleimaier, Princeton, NJ, for Petitioner.

Walter Bocchini, Sarah Abigail Byrd, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Before Jordan, Newsom, and Ed Carnes, Circuit Judges.

Ed Carnes, Circuit Judge:

Karastan Edwards petitions for review of the Board of Immigration Appeals’ dismissal of his appeal from an immigration judge's removal order. That order was based on the IJ's determination that Edwards is removable, ineligible for cancellation of removal, and ineligible for asylum because he has been convicted of an "aggravated felony" as the Immigration and Naturalization Act defines the term. The IJ also determined that Edwards is ineligible for withholding of removal and Convention Against Torture relief. Edwards challenges all those determinations.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case traveled a long and winding path before it ended up here. That path has included multiple appeals from the IJ to the BIA, multiple appeals from the BIA to this Court, multiple remands from this Court to the BIA, and multiple remands from the BIA back to the IJ. We will summarize that procedural history and some of the factual background.

A. Initial Immigration Judge Removal Order

Edwards is a native and citizen of Jamaica who was admitted to the United States in 2002 and who became a lawful permanent resident in 2003. In February 2012 he pleaded guilty to and was convicted of the Georgia crime of family violence battery in violation of O.C.G.A. § 16-5-23.1. For that crime Edwards was sentenced to 12 months confinement, but he was allowed to serve all of it on probation.

In March 2015 the Department of Homeland Security initiated removal proceedings against Edwards on the theory that his Georgia family violence battery conviction was an "aggravated felony" under the INA, making him removable. Edwards challenged that classification of his crime. He also filed applications for asylum, for withholding of removal, and for CAT relief. In those applications, he claimed membership in two social groups: "relatives of opponents of the pervasive gang and corrupt situation" in Jamaica, and "returning Jamaicans who have spent lengthy periods of time in industrialized developed affluent countries."

At a removal hearing, Edwards testified about those two asserted social groups. He testified that his mother, who lives in Jamaica, is part of a community organization that tries to positively influence children and that she was targeted and threatened by gangs because of it. Another reason she was targeted, according to Edwards, was because gang members believed that they could use her to get money from him. Edwards also testified that while visiting Jamaica in 2011 he had twice been robbed by gang members and was cut on the shoulder by a knife during one of those robberies. He claimed that he had reported that incident to the police and identified one of the perpetrators, but the police did nothing about it.

An immigration judge found that the Georgia family violence battery conviction for which Edwards had been convicted was an aggravated felony under the INA, which made him removable and statutorily ineligible for both cancellation of removal and asylum. The IJ also found that neither of the social groups Edwards claimed membership in made him eligible for withholding of removal. The claimed social group of Jamaicans returning to Jamaica was not one "perceived by Jamaican society as sharing any common characteristics," and gangs targeted those people only because they might have money. As for the social group of having family members who oppose gangs and corruption, the IJ found that Edwards had not shown that his family relationships would cause him any harm if he returned to Jamaica.

The IJ also determined that Edwards was ineligible for CAT relief because he had not shown that he more likely than not would be tortured in Jamaica. In doing so, the IJ noted evidence of the Jamaican government's "efforts to combat corruption in the police and security forces as well as abuses that may rise to the level of torture," from which the IJ inferred that the government had not participated in or acquiesced to any torture.

B. First Appeal to the BIA, First State Court Sentence Modification Order, and First Remand to the Immigration Judge

After Edwards appealed the IJ's order to the BIA, and while that appeal was still pending, he filed a motion to remand the case to the IJ. He asked for a remand because after filing the appeal he had gotten a Georgia state court judge to issue an order "modifying" his sentence for the Georgia family violence battery conviction.

Edwards’ motion to the state court requesting a sentence modification had focused exclusively on the immigration consequences of his 12-month sentence. The motion informed the court that Edwards’ "misdemeanor crime in Georgia has significant collateral effects on his status as a legal permanent resident of the United States" and that "due to the 12 month sentence, his misdemeanor offense is viewed as an aggravated felony by the immigration courts." That 12-month sentence, the motion told the state court, "will result in his removal from the United States and will leave his U.S. Citizen spouse and son without their primary financial and emotional support." It continued: "Further, [Edwards] shows this is harsh and would not be in the best interest of himself or society and that same would be detrimental to all." In his motion, Edwards acknowledged that he had already "completed his sentence as required by the court," but he still requested that sentence be modified "from 12 months probation to 11 months probation, a more reasonable judgment in order that [Edwards] may continue his contribution to society and his family."

The district attorney's office for the county where Edwards had been convicted consented to Edwards’ motion, and the state court granted it. The order did not give a reason for granting the motion other than stating that the "motion ha[d] been read and considered by the Court, and the State ha[d] an opportunity to be heard on the matter and ha[d] no objection to" it. The court ordered Edwards’ already-served sentence to "be modified from 12 months probation to 11 months and 27 days probation." And the order stated that: "All other terms and conditions of the sentence shall remain in full force and effect as originally imposed." The state court issued that order in August 2015, about two-and-a-half years after Edwards had finished serving the 12-month sentence that had been imposed on him in February 2012.

In light of the state court's sentence modification order, the BIA granted Edwards’ motion to remand to the IJ. After considering the state court order, the IJ again ordered Edwards removed. The IJ's order determined that both the modification order and the original sentence were entitled to full faith and credit, but it interpreted the modification order as changing only Edwards’ sentence of probation, not his sentence of confinement. Under the IJ's interpretation, Edwards’ modified sentence was "12 months or one year of confinement with 11 months and 27 days of such sentence suspended in favor of probation." Based on that interpretation of the modification order, the IJ determined that Edwards’ sentence, even as revised, still amounted to a term of imprisonment of at least one year, which meant he had been convicted of an aggravated felony. That made Edwards removable, ineligible for cancellation of removal, and ineligible for asylum. The IJ also incorporated in the order the earlier decisions about Edwards being ineligible for withholding of removal and CAT relief.

C. Second Appeal to the BIA, First Appeal to this Court, Second State Court Sentence Modification Order, and Second Remand to the Immigration Judge

Edwards appealed the IJ's second order to the BIA, which affirmed it in all respects and dismissed the appeal. In doing so, the BIA found no clear error in the IJ's interpretation of the state court sentence modification order or in the determination that Edwards had been convicted of an aggravated felony despite that state court order. The BIA also affirmed the IJ's determination that Edwards was ineligible for withholding of removal. It "discern[ed] no clear error in the finding that the record does not reflect adequate evidence that the respondent would be targeted because he is a returnee from the United States or due to his family ties." It also noted record evidence that "the criminal gangs that the respondent fears in Jamaica target victims because they seek money, and not due to the fact they come from the United States or otherwise." Finally, the BIA "affirm[ed] as lacking clear error the [IJ's] finding that [Edwards] has not established that it is more likely than not that he would be tortured in Jamaica or that he could not relocate within Jamaica and avoid the likelihood of such harm."

Edwards petitioned this Court for review of the BIA order. But while that petition was pending, in February 2017 he obtained another state court sentence modification order. It resulted from his second motion requesting a modification, which was similar to his first motion, borrowing much of its language. Like the first modification motion, the second one focused exclusively on the immigration consequences that Edwards was facing. It also alluded to the IJ's interpretation of the first modification order and asked the state court to "clarify that the original sentence has in fact been modified from 12 months confinement allowed to be served on probation to 11 month[s] and 27 days confinement allowed to be served on probation ." Edwards asked for this second modification, as he had...