Fuller v. Lynch

• Citation: 833 F.3d 866
• Decision Date: 23 May 2016
• Docket Number: No. 15-3487,15-3487
• Parties: Ray Fuller, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

833 F.3d 866

Ray Fuller, Petitioner,

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 15-3487

United States Court of Appeals, Seventh Circuit.

Submitted May 23, 2016*

Ray Fuller, Woodstock, IL, for Pro Se Petitioner.

OIL, Joanna L. Watson, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

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

Wood

, Chief Judge.

Ray Fuller, a 51-year-old Jamaican citizen, petitions for judicial review of the denial of his applications for withholding of removal under the Immigration and Nationality Act (“INA”) and withholding and deferral of removal under the United Nations Convention Against Torture (“CAT”). Fuller asserted a fear of persecution and torture in Jamaica based upon his claimed bisexuality, but an immigration judge deemed his testimony not worthy of belief and denied relief. We deny the petition.

Fuller came to the United States in 1999 with a fiancé visa sponsored by Carol Wood, a U.S. citizen. They soon married and in 2001 had a daughter. Fuller promptly received conditional permanent resident status, see 8 U.S.C. § 1186a(a)

, but then he and Wood failed to attend a required interview with U.S. Citizenship and Immigration Services, and in 2004 his status was terminated. They divorced the next year.

In the meantime, also in 2004, Fuller had pleaded guilty to attempted criminal sexual assault, 720 ILCS 5/8-4(a), 5/12-13(a)(1)

(since renumbered as 720 ILCS 5/11-1.20(a)(1) (West 2016)), and been sentenced to 30 months' probation. He later violated the conditions of his probation and in 2012 was resentenced to four years' imprisonment.

Upon Fuller's release from state custody in 2014, the U.S. Department of Homeland Security detained him and charged him as removable on three grounds: (1) for being convicted of an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii)

, defined as an attempt to commit a crime of violence, id. § 1101(a)(43)(F), (U), (2) for being convicted of a crime involving moral turpitude, id. § 1227(a)(2)(A)(i), and (3) for losing his conditional permanent resident status, id. § 1227(a)(1)(D)(i). The immigration judge (“IJ”) sustained each ground of removability. The Board of Immigration Appeals agreed that Fuller was removable under § 1227(a)(1)(D)(i) for losing his conditional permanent resident status, but it did not address the other grounds. Fuller does not challenge his removability under § 1227(a)(1)(D)(i).

Along with his applications for relief from removal, Fuller submitted evidence—including the 2012 and 2013 U.S. State Department Human Rights Reports—documenting the severe abuse and discrimination suffered by lesbian, gay, bisexual, and transgender (“LGBT”) persons in Jamaica. As chronicled in the reports, Jamaica criminalizes physical intimacy between persons of the same sex, and its police officers have been known arbitrarily to arrest, detain, and torture LGBT persons. See also Bromfield v. Mukasey , 543 F.3d 1071, 1076–77 (9th Cir. 2008)

(finding a pattern or practice of persecution against gay men in Jamaica). We have no reason to doubt that general account of conditions in the country.

Fuller asserted that he is bisexual, and he testified about his experiences as a bisexual man in Jamaica and the specific incidents of harm and harassment he endured. He grew up in Kingston and said that as a preteen he began exploring sexual relationships with both men and women. Since then, he has identified as bisexual and continued to have relationships with both sexes. One of his relationships with a woman produced two children, a son born in 1986 and a daughter born in 1987, both of whom now live in the United States and are U.S. citizens. While attending college in Kingston, Fuller was attacked and at times stoned by other students. A few years later, when walking home from work, he was taunted for being gay by a group of men who took a knife to his face and sliced him. Another time he was robbed at gunpoint by a man who called him a “batty man,” a Jamaican slur for a gay man. On another occasion, while partying with his boyfriend in the gay-friendly resort town of Ocho Rios, Fuller was shot in the back and buttock by someone in an “anti-gay mob” that had barged into the party. His sisters, after hearing about the shooting, expressed their disapproval of his sexual orientation and “disowned” him, and one sister kicked him out of her house. In 1997 Fuller became romantically involved with Wood, a former high-school friend who was visiting Jamaica. They married in 1999, lived together in the United States, and two years later returned to Ocho Rios for a belated honeymoon. Fuller testified that he also had been hoping to reconnect with his family, but they refused to see him. He told the IJ that while married to Wood he had multiple affairs with men and women.

The IJ denied all relief. She first concluded that Fuller's conviction for attempted criminal sexual assault—a class-two felony in Illinois for which he received a four-year prison term—was a “particularly serious crime” that barred him from withholding of removal under the INA and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii)

; 8 C.F.R. § 1208.16(d)(2). She reached this conclusion by noting that the criminal statute, 720 ILCS 5/12-13(a)(1), punished the use of force or the threat of force to commit an act of sexual penetration, and Fuller's victim informed police that she told him several times during the encounter to stop and that he threatened to kill her.

The IJ then concluded that Fuller did not qualify for deferral of removal under the CAT. She deemed Fuller's credibility to be “seriously lacking,” based on his “substantially inconsistent testimony and documentary evidence about many matters which go to the heart of his claims.” The IJ did not believe Fuller's basic assertion that he is bisexual. Nor did she believe that the Jamaican government would regard him as such. She offered a number of reasons for these determinations, some of which, as the dissent points out, could be criticized for betraying a lack of understanding about bisexuality, but others of which rest on stronger grounds. Her questionable reasons included the fact that Fuller had been married to a woman, fathered children with two different women, and was convicted for sexual assault on a woman. None of those actions is necessarily inconsistent with a bisexual orientation; after all, the very word “bisexual” indicates that the person is attracted to both women and men. But the IJ relied on much more than a mistaken assumption that a bisexual man would not marry a woman, father children, or commit sexual assaults.

The IJ criticized Fuller for some glaring discrepancies in his written statement and testimony about the Ocho Rios shooting incident. In his written statement, for instance, Fuller said that he was shot during his college years, from 1983 to 1988, at a party hosted by his college boyfriend Henry; he testified, in marked contrast, that the shooting happened nearly a decade later at the house of a boyfriend named Steven in 1997, shortly before his sister kicked him out of her house. The IJ also was concerned about Fuller's admitted lie on an application he filed in 2001 seeking permission to travel back to Ocho Rios. There he wrote that he wanted to visit his sick mother in Jamaica, even though his mother at the time was actually living in the United States. Finally, throughout his testimony, Fuller confused his sisters' names, mixed up a sister with his mother, and gave different figures for the number of sisters that he had.

People may not remember what they had for lunch 20 or 30 years ago, but some experiences leave a greater imprint on the memory than others. It was entirely reasonable for the IJ to think that the experience of being shot falls in the latter category, and that someone for whom that is not an everyday event would remember whether he was shot while in college in the late 1980s or with a boyfriend in the late 1990s. The IJ was also on solid ground when she held against Fuller his inability to remember which boyfriend (Henry or Steven) was present at the shooting, as well as his inability to keep his sisters straight (how many could there have been?) and his lie about his mother's whereabouts. These discrepancies, and Fuller's unconvincing efforts to explain them, were all fair matter for the IJ's credibility determination.

Fuller tried to bolster his claim of bisexuality with seven letters from his children and friends, but the IJ offered sound reasons for refusing to credit them. She explained that none of the authors—including two ex-boyfriends living in California and Wisconsin—was available to testify in court. Worse, several of them were stylistically suspicious, in that they all had been signed “on a signature line made on a series of dots.” The Ocho Rios shooting was mentioned in only a single letter, in which the author wrote that Fuller had been shot on multiple occasions, contrary to his testimony that he was shot only once. The IJ also doubted the reliability of Fuller's testimony that he had called the letter writers and several others while detained; according to jail telephone logs submitted by the government, he had made phone calls to only two numbers, and only one call went through.

The Board of Immigration Appeals upheld the IJ's decision. Regarding the IJ's conclusion that Fuller was barred from withholding of removal under the INA and the CAT, the Board agreed with the IJ that Fuller's conviction for attempted criminal sexual assault was a particularly serious crime. The Board considered the factors set forth in Matter of R–A–M– , 25 I. & N. Dec. 657 (BIA 2012)

, and In re N–A–M– , 24 I. & N. Dec. 336 (BIA 2007), and concluded that “reliable evidence” showed that Fuller had committed his crime by threatening the use of force, and that he had received a “significant sentence” for his serious conviction. The...