Manning v. Barr

• Decision Date: 31 March 2020
• Docket Number: August Term, 2018,Docket No. 17-2182-ag
• Citation: 954 F.3d 477
• Parties: Kenneth MANNING, aka Anthony Manning, aka Bud Manning, aka Kenny Manning, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

954 F.3d 477

Kenneth MANNING, aka Anthony Manning, aka Bud Manning, aka Kenny Manning, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 17-2182-ag

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: June 14, 2019

Decided: March 31, 2020

EDMUND POLUBINSKI III (Daniel S. Magy, on the brief), Davis Polk & Wardwell LLP, New York, NY, for Petitioner Kenneth Manning.

SCOTT STEWART (Carl McIntyre, Assistant Director, Nancy Friedman, Senior Director, on the brief), for Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent William P. Barr, United States Attorney General.

Before: POOLER, CHIN, and SULLIVAN, Circuit Judges.

Judge Sullivan dissents in a separate opinion.

POOLER, Circuit Judge:

We hold that the jurisdictional provision in 8 U.S.C. § 1252(a)(2)(C), which limits this Court's jurisdiction, applies only to cases where the Immigration Judge ("IJ") has found a petitioner removable based on covered criminal activity, and that it does not apply where a petitioner's order of removal is based solely on unlawful presence. We also hold that the IJ and the Board of Immigration Appeals ("BIA") discounted Manning's credible testimony without proper explanation, failed to consider substantial and material evidence that he is likely to be killed if removed to Jamaica, and erroneously placed a burden on him to prove he could not internally relocate in order to avoid torture. Accordingly, we GRANT the petition for review and REMAND Manning's application for deferral of removal for further proceedings consistent with this opinion.

BACKGROUND

Kenneth Manning came to the United States from Kingston, Jamaica in 1985. Three years later, Manning was arrested by federal authorities in a sweep of arrests of associates of a Jamaican gang known as the Renkers Posse.

Delroy Edwards, who was then the leader of the Renkers Posse, was also apprehended. At the time the United States Attorney for the Eastern District of New York described Edwards as "one of the most feared crack-organization enforcers in America." Certified Record on Appeal ("CAR") at 643. As the leader of the Renkers Posse, Edwards tortured and killed those he believed had wronged him. Edwards was eventually convicted of 42 counts of murder, assault, kidnapping, and drug charges, and he received seven consecutive life sentences. The trial was nationally publicized, covered by news outlets such as the New York Times and the Associated Press.

Manning is related to Edwards through a half-sibling and they came from the same neighborhood in Jamaica. The two were "like brothers" growing up—they formed the Renkers Posse together as teenagers. CAR at 527. After Manning's arrest, he agreed to cooperate with the government in its prosecution of Edwards. He provided information about criminal acts not alleged in the indictment and testified at trial. His testimony was, according to the government in its sentencing letter, "critical to virtually the entire case" and the "centerpiece" of Edwards's conviction on four murder charges. CAR at 564. The government explained that it could not "overstate the fullness, completeness, and value of [Manning's] cooperation," and that he "continues to provide important assistance in related cases." Id.

Manning pled guilty to second degree murder in New York state court and racketeering charges in federal court. He was ultimately sentenced to 20 years to life imprisonment in New York state court and 15 years in federal court. Manning served 28 years in prison before his release in 2016. Throughout his incarceration, Manning remained in protective custody because of his cooperation in the Edwards trial.

As part of his protective custody, Manning was kept in a separate section from the prison's general population. Special arrangements had to be made when he used common areas such as the cafeteria, the medical unit, and the library. Manning identified himself to other inmates by his initials, and his visitors had to first be vetted by an office in Washington D.C. Every six months for 28 years in two different federal prisons, the government reviewed Manning's protective custody status and affirmed his placement each time.

When Manning was granted parole in August 2016, the Department of Homeland Security served him with a Notice to Appear and charged him as removable for being "present in the United States without being admitted or paroled." CAR at 942. The IJ determined that Manning was removable as charged and designated Jamaica as the country of removal. Manning filed an application for deferral of removal under the Convention Against Torture ("CAT") on the ground that, if removed to Jamaica, he would be killed in retaliation for his earlier cooperation.

Manning submitted testimony and documentary evidence in support of his application, and the IJ held a hearing. The IJ determined that the testimony was credible but concluded that Manning was no longer in danger, reasoning that Manning had not established that anyone in Jamaica "intend[ed] to torture him because he testified against a different gang member some 20 years ago" and that he had "not established that he could not relocate to another part of Jamaica ... where he could live without being identified." CAR at 68. After Manning appealed, the BIA affirmed the denial, adopting the IJ's conclusions on the basis that Manning had "not established that the [IJ's] determination on the likelihood of torture was clearly erroneous." CAR at 4. The BIA found "no clear error in the manner in which the [IJ] weighed the evidence of record." CAR at 4.

Manning next petitioned this Court for review of the BIA's order and also moved for a stay of removal, to proceed in forma pauperis, and for assignment of pro bono counsel. The government filed a motion to dismiss the appeal for lack of jurisdiction. This Court granted Manning's motions and instructed counsel "to brief, in addition to the merits of the CAT claim and any other issues, whether this Court's jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C) even though Petitioner was not ordered removed on the basis of his criminal conviction." Dkt. No. 42 at 1.

DISCUSSION

I. Jurisdiction

The government argues that this Court lacks jurisdiction to review Manning's petition pursuant to 8 U.S.C. § 1252(a)(2)(C), known as the "criminal alien bar," which provides a limited exception to Section 1252(a)(1)'s general grant of jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1).

Manning argues that this Court retains jurisdiction for three reasons: (1) Section 1252(a)(2)(C) does not bar jurisdiction because Manning was not removed on the basis of his criminal convictions; (2) despite this Court's precedent to the contrary, Section 1252(a)(2)(C) does not apply to petitions challenging denials of applications for deferral of removal; and (3) even if Section 1252(a)(2)(C) does apply to limit jurisdiction, this Court should consider Manning's appeal because this Court retains jurisdiction over questions of law under Section 1252(a)(2)(D). We agree with Manning's first argument. We hold that Section 1252(a)(2)(C) does not bar this Court's jurisdiction where a petitioner's order of removal is based solely on unlawful presence, even if the petitioner could have been—but was not—ordered removed based on a covered criminal offense.¹

In interpreting the terms of a statute, "our analysis begins with the text" of Section 1252(a)(2)(C), "and we look to both the language itself and the specific context in which that language is used." Merit Mgmt. Grp., LP v. FTI Consulting, Inc ., ––– U.S. ––––, 138 S. Ct. 883, 893, 200 L.Ed.2d 183 (2018) (internal quotation marks and brackets omitted) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). Otherwise, "words will be interpreted as taking their ordinary, contemporary, common meaning." Arriaga v. Mukasey , 521 F.3d 219, 225 (2d Cir. 2008) (quoting Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ).

The statutory language at issue states that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [certain sections of the statute]." 8 U.S.C. § 1252(a)(2)(C). The government argues that the phrase "is removable by reason of having committed a criminal offense" captures criminal conduct beyond that which was used as basis of the final order of removal. Because Manning does not challenge that he is an aggravated felon, the government argues, 8 U.S.C. § 1252(a)(2)(C) prevents judicial review of the petition because he was theoretically removable based on that conviction.

We disagree. A fair reading of "is removable," when juxtaposed with the first part of the provision, makes clear that it refers back to the "final order or removal" mentioned earlier. The two phrases are not, as the government suggests, separate and unrelated requirements. Put another way, if an order is "final" then the person must have been ordered removed for some reason. And if that person is removable "by reason of having committed a criminal offense" then the order must have been predicated on the person having committed one of the covered criminal offenses. To conclude otherwise—that "removable by reason of having committed a criminal offense" means that a person merely could have been found removable based on a covered offense no matter what the basis of the IJ's determination in the final order of removal—unmoors the second part of the provision from the first part and belies the plain text when both are read together.

An examination of "the broader statutory structure," Merit Mgmt ., 138 S. Ct. at 893, confirms this interpretation. Under the Immigration and Nationality Act ("INA"), a person can only be charged removable based on one of the covered...