Fuller v. Sessions

• Decision Date: 08 January 2018
• Docket Number: No. 17-3176,17-3176
• Citation: 879 F.3d 265
• Parties: Ray FULLER, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

879 F.3d 265

Ray FULLER, Petitioner,
v.
Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.

No. 17-3176

United States Court of Appeals, Seventh Circuit.

Submitted October 23, 2017
Decided January 8, 2018

Ray Fuller, Pro Se.

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

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

Wood, Chief Judge.

Petitioner Ray Fuller is in the final stages of removal proceedings in which the U.S. Department of Homeland Security is seeking to have him sent back to his native Jamaica. This court has seen Fuller’s case before: in 2016, we considered Fuller’s petition for review from the decision of the Board of Immigration Appeals to deny his applications for withholding of removal under the Immigration and Nationality Act (INA) and withholding and deferral of removal under the Convention Against Torture (CAT). See Fuller v. Lynch , 833 F.3d 866 (7th Cir. 2016) ( Fuller I ). We concluded that we had no jurisdiction to review the Board’s characterization of Fuller’s 2004 conviction for attempted criminal sexual assault as a "particularly serious crime," within the meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). That label has serious consequences: it barred Fuller from withholding of removal under both the INA and CAT. Turning to Fuller’s request for deferral of removal under CAT, the Board found (as had the Immigration Judge (IJ)) that Fuller had not credibly shown that he was bisexual, nor that the Jamaican government would regard him as such. Fuller urged us to revisit the evidence and to conclude otherwise, but we found that substantial evidence supported the Board’s finding and that we had no power to conduct a de novo review of the record. One member of the panel dissented.

After our decision, Fuller returned to the Board with a motion to reopen or reconsider its ruling; he referred to new affidavits in that motion. The Board denied the new motion on February 3, 2017, and Fuller did not file a petition for review of that order. On March 2, 2017, Fuller filed a Form EOIR–26 (a notice of appeal from an IJ decision), which the Board construed as yet another motion to reopen. Fuller said in that motion that he was "ignorant, unprepared, and unrepresented" at his original hearing and he asked for a chance to prove his credibility with respect to his sexual orientation. He included letters from three friends who live in Jamaica. Each writer says that he has known Fuller since childhood and believes that Fuller will be killed if he is forced to return to Jamaica. We refer to them as Writers A, B, and C. They have requested that their names not be publicized because they fear that they will be targeted as sympathizers of gay people and harmed. The Board and this court, however, have their names.

Writer A, the first witness, describes an incident in which Fuller was shot at a house party hosted by a college friend in Ocho Rios. Writer A’s statement is consistent with Fuller’s written statement, but not his oral testimony. (We note that although

879 F.3d 267

the official language of Jamaica is Jamaican Standard English, which is easily understood in the United States, the first language of most Jamaicans is Jamaican Patois or Creole, which is not. See Alpha Omega Translations, https://alphaomegatranslations.com/foreign-language/the-two-main-languages-of-jamaica/.) Writer A also described an incident in Harbor View in which Fuller was beaten so badly that he was found on the side of the road by a passing motorist. Writer A says that he learned about the Harbor View incident through a newspaper article, which depicted it as a robbery. He does not claim first-hand knowledge about either the Ocho Rios or the Harbor View incident. The second witness, Writer B, described the same two attacks mentioned by Writer A without saying when they occurred. Writer B did say, however, that he was with Fuller at the Ocho Rios party, and that he remembered that one of Fuller’s cousins had been sent to kill him. Finally, Writer C wrote that he was in the area when Fuller was shot in Ocho Rios during college, and that he saw the damage when he got there about 30 minutes after the shooting. Writer C related that he...