Lobban v. Garland
| Decision Date | 11 February 2022 |
| Docket Number | 21-9519 |
| Parties | BRUCE SIMMS LOBBAN, Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent. BLACK LGBTQIA+ MIGRANT PROJECT; U.C. HASTINGS CENTER FOR GENDER AND REFUGEE STUDIES; LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review)
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
Carolyn B. McHugh Circuit Judge Bruce Simms Lobban, a Jamaican national, petitions for review of a Board of Immigration Appeals (BIA) decision denying asylum restriction on removal, and relief under the Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.
Lobban entered the United States in 2003 and, except for a brief departure, has remained here since. In 2009, the Department of Homeland Security (DHS) sought to remove him for overstaying his visa. See id. § 1227(a)(1)(B). He conceded the charge but for the next decade sought various forms of administrative relief, all of which were denied. DHS eventually charged him again with overstaying his visa, and once more he admitted the charge, but this time he applied for asylum, restriction on removal, and relief under the CAT.[1]
At a hearing before an immigration judge (IJ), Lobban described the harm he experienced in Jamaica. He told the IJ he had his "head burst open" working for the JLP political party when members of the opposing party threw rocks and sticks at him. Admin. R., vol. 1 at 177. He did not require treatment but he did need stitches after another incident in which he was stabbed in the buttocks, though the IJ noted he produced no medical reports to substantiate that injury. Lobban also testified that a police officer from the opposing political party threatened to kill him and his two friends. He indicated the same officer killed another friend, but he did not know why. He added that this officer also arrested him at gunpoint once and detained him at the police station for almost two months because he was a suspect in a shooting.
Apart from political affiliations, Lobban testified that his boss's "enforcers" threatened him because they thought he and his friends stole a crop of marijuana. Id. at 183. Afterwards, Lobban came to the United States, and several years later, one of his friends was killed and another was shot, though Lobban did not know by whom.
Lobban further testified that his brother was killed while Lobban was in prison. His family told him that the mother of his brother's child was responsible for the murder and that she threatened him as well.
Additionally, Lobban indicated that the Jamaican police would treat him unfairly if he returned as a deportee. He said police abuse, beat, and arrest deportees and he personally saw a police officer stab a deportee with an ice pick.
Finally, Lobban told the IJ that when he was fifteen or sixteen years old he was sexually assaulted twice by a man from his stepfather's family. He did not want this information "to get out," but it did, and people started calling him "gay and faggot and batty boy," which he testified means, "faggot or gay." Id. at 190. Lobban explained that people in Jamaica Id. at 191. He said rumors spread and he was "fighting all the time" with "bigger guys" who called him "batty boy." Id. He recalled that one time he was attacked with a whip and sustained swelling and bruising. He also stated that he was beaten several times a week for four to six months until he moved to a different town in Jamaica. He clarified, however, that his previous testimony in which he claimed his "head burst," was not when he was working for the JLP, but when someone called him "batty boy" and "start[ed] flinging stones" at him." Id. at 194. He said his mother washed and dressed the wound. Lobban added that he began to identify as bisexual in 2016. He said he met a man named Jose while working in Colorado and was involved with him "on and off for like three months." Id. at 196. He did not know Jose's last name, though, and although Jose used a female name, Lobban could not remember it.
On cross-examination, Lobban acknowledged that except for his brief return to Jamaica in 2005, he had been living in the United States for the last seventeen years. He also acknowledged his extensive criminal record in the United States. In particular, he discussed two Colorado convictions, one for unlawful distribution of a controlled substance offense, Colo. Rev. Stat. § 18-18-405(1), (2)(c)(I), and another for having sexual contact with a helpless victim, Colo. Rev. Stat. § 18-3-404(1)(c), both of which he pleaded guilty to in November 2016. He explained that he was arrested for the drug offense after a friend called and asked if he knew anybody who could get cocaine. Lobban knew someone close, so he twice sold his friend one gram of cocaine for $100 each time. As for the sex offense, Lobban testified that a seventeen-year-old girl had been staying with him when a man brought acid (LSD) to his home and everyone was "tripping." Admin. R., vol. 1 at 200. He went to bed with the girl, and although he admitted having sex with her while they were both "tripping" on acid, he denied knowing she was seventeen. Id. Lobban was sentenced to concurrent terms of two years in prison for the sex offense and five years in prison for the drug offense.
Based on this and other evidence, the IJ denied relief and ordered Lobban removed to Jamaica. The IJ concluded that Lobban's drug and sex offenses were "particularly serious crimes" (PSC) that rendered him ineligible for asylum, restriction on removal, or withholding of removal under the CAT. The IJ recognized he could still qualify for deferral of removal under the CAT if he could show a likelihood of torture, but the IJ determined that he failed to meet that standard. Although the IJ expressed skepticism regarding some of Lobban's testimony, the IJ stated, "[e]ven giving full weight to [Lobban's] testimony and considering his fears in the aggregate, the Court finds he has not met his burden to establish it is more likely than not he would be tortured upon his return to Jamaica." Id. at 52. The IJ reasoned that he had not lived in Jamaica for some 17 years, he did not know anything about his former assailants, and evidence of generalized violence and discrimination was insufficient to show a likelihood that Lobban would be tortured.
The BIA adopted and affirmed the IJ's decision. The BIA agreed that Lobban was ineligible for asylum, restriction on removal, or withholding of removal under the CAT because his drug and sex offenses were PSCs. The BIA also agreed that he was ineligible for deferral of removal under the CAT. While Lobban claimed the IJ improperly discounted his testimony, the BIA ruled that, "[c]ontrary to [Lobban's] arguments . . ., the [IJ] credited [his] testimony and carefully considered each aspect of his claim including his claim of past harm." Id. at 4. Accordingly, the BIA dismissed the appeal, ruling that Lobban's risk of torture was undercut by not having lived in Jamaica for approximately seventeen years.
"This court reviews the BIA's legal determinations de novo and its factual findings under a substantial-evidence standard." Igiebor v. Barr, 981 F.3d 1123, 1131 (10th Cir. 2020) (brackets and internal quotation marks omitted). Because the BIA's decision is the final order of removal, "we will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance." Uanreroro v. Gonzales 443 F.3d 1197, 1204 (10th Cir. 2006). "However, when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Id. Our review is restricted to "'the administrative record on which the order of removal is based.'" N-A-M v. Holder, 587 F.3d 1052, 1056 n.3 (10th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(A)).
An alien convicted of a "particularly serious crime" is ineligible for asylum, restriction on removal, or withholding of removal under the CAT. See 8 U.S.C. § 1158(b)(2)(A)(ii) (asylum); id. § 1231(b)(3)(B)(ii) (restriction on removal); 8 C.F.R. § 1208.16(d)(2) (CAT relief). The BIA determined that Lobban's drug and sex offenses were both PSCs. "We conduct de novo review of the [BIA's] legal interpretation of a particularly serious crime." Birhanu v. Wilkinson, 990 F.3d 1242, 1267 (10th Cir. 2021) (Bacharach, J., concurring in part, dissenting in part) (internal quotation marks omitted). "[T]he statute requires a conviction of only one [PSC] in order to render an alien ineligible for" relief. Brue v. Gonzales, 464 F.3d 1227, 1235 (10th Cir. 2006). Therefore, we address only Lobban's drug offense.[2]
To determine what constitutes a PSC, the BIA considers "such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community." N-A-M, 587 F.3d at 1056 (internal quotation marks omitted). "Once an alien is found to have committed a particularly serious crime, [the BIA does not] engage in a separate determination to address whether an alien is a danger to the community." Id. at 1057 (brackets and internal quotation marks omitted).
Lobban contends that in concluding that his drug offense was a PSC neither the IJ nor the BIA considered the requisite factors or accounted for his limited role as a middleman. He is incorrect. As the BIA observed, Lobban was convicted of unlawful distribution...
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