Morris v. Sessions

• Decision Date: 30 May 2018
• Docket Number: No. 17-1518,17-1518
• Citation: 891 F.3d 42
• Parties: Nigel Hopeton MORRIS, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

891 F.3d 42

Nigel Hopeton MORRIS, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, Respondent.

No. 17-1518

United States Court of Appeals, First Circuit.

May 30, 2018

Ilana Etkin Greenstein, Boston, MA, with whom Macias & Greenstein, LLC, was on brief for petitioner.

Gregory A. Pennington, Jr., with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, Carl H. McIntyre, Assistant Director, and Brooke M. Maurer, Trial Attorney, Office of Immigration Litigation, Civil Division, were on brief for respondent.

Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

BARRON, Circuit Judge.

This case concerns Nigel Hopeton Morris' petition for review of a decision by the Board of Immigration Appeals ["BIA"] to deny his application for deferral of removal based on the protection to which he claims to be entitled under the United Nations Convention Against Torture ["CAT"]. We deny the petition.

I.

Morris came to the United States in 1999 from his country of birth, Jamaica. While in this country, he became a lawful permanent resident and lived in Massachusetts, though he visited his family in Jamaica several times over the years. In 2013, Morris was convicted in Massachusetts state court of the following state law offenses: indecent assault and battery on a person 14 years old or older, assault to rape, and assault and battery. He was sentenced to a term of incarceration of five years.¹

In 2016, the Department of Homeland Security initiated removal proceedings against Morris on the ground that he was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I), which provides that "any alien convicted of ... a crime involving moral turpitude ... is inadmissible." Morris did not dispute that his Massachusetts convictions were for crimes of "moral turpitude." The Immigration Judge ("IJ") thus concluded that Morris was removable under § 1182(a)(2)(A)(i), and was ineligible for asylum or withholding of removal. Nevertheless, Morris contended at his removal proceedings that, pursuant to 8 C.F.R. § 1208.17, he was "eligible ... for deferral of removal under the Convention Against Torture [CAT]" based on the fact that a gang leader in Jamaica—with ties to the Jamaican Constabulary Force (the Jamaican police) ("JCF")—had threatened to kill him for being an informant.

The Immigration and Naturalization Service promulgated § 1208.17 in March of 1999 apparently in order to implement the Foreign Affairs Reform and Restructuring Act ("FARRA"). Congress enacted FARRA in 1998 to comply with the CAT. See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div. G., Title XXII, 112 Stat. 2681-822.

The CAT requires, among other things, that "[n]o state ... expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, art. 3, § 1. Consistent with the United States' obligation under the CAT, 8 C.F.R § 1208.17 provides that an alien who

has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.

8 C.F.R. § 1208.17(a). The regulation further provides that to be entitled to deferral of removal an alien must show that it is "more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2).

The regulation defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

8 C.F.R. § 1208.18(a)(1). The government does not dispute Morris' contention that the harm that he contends that he would face in Jamaica from the gang leader would qualify as torture.

The IJ denied Morris' claim for deferral of removal, and the BIA affirmed the IJ's ruling. Morris now petitions for review.

II.

The government argues that we lack jurisdiction over Morris' petition. The government relies on 8 U.S.C. § 1252(a)(2)(C), which provides 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 [qualifying] criminal offense."

Morris does not dispute that he was convicted of a qualifying offense. He nevertheless contends that we may consider his petition. He does so in part based on the exception in 8 U.S.C. § 1252(a)(2)(D) that states that:

[n]othing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

We thus begin with Morris' contention that he is bringing a challenge that this exception encompasses. We then consider his separate challenge, which he acknowledges does not allege that either the IJ or the BIA made an error of law. He contends that we may review it nonetheless because the jurisdictional bar simply does not apply at all to an order denying an alien's claim for deferral of removal.

A.

Morris rightly contends that his challenge to the order denying his deferral of removal claim falls within the exception to the jurisdictional bar insofar as it is "legal in nature." And he argues that at least part of his challenge is "legal in nature" because he is contending that the agency mischaracterized the record and misapplied the relevant law to undisputed facts. In so arguing, Morris relies principally on Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir. 2004), in which we held that the BIA in that case "committed errors of law and misapplied the law by focusing narrowly on only parts of the record that supported its decision." Id. at 120.

To assess Morris' contention, we first describe the evidence that Morris submitted in support of his deferral of removal claim in the proceedings before the IJ. We then describe the rulings by the IJ and the BIA denying his claim for deferral of removal. Finally, we explain why Morris' challenge to those rulings under the exception to the jurisdictional bar fails.

1.

At the removal proceedings, Morris, through his own testimony and declaration, offered the following account of why he believed that he would be tortured if he were removed to Jamaica. His older brother, Wayne Morris, was a member of a drug trafficking organization called the "British Link-Up Crew" that operated in Jamaica but was based in the United Kingdom. Wayne was closely associated with the organization's leader, Owen Clarke.

On several occasions, Clarke and Wayne accused each other of being informants. Fearing retribution by Clarke, who is wealthy and had "connections in the Jamaican police force," Wayne hired his nephew to be his bodyguard. The nephew was murdered in 2011, and no one was arrested for the crime.

At some point after Wayne's nephew was killed, Morris traveled to Jamaica from Massachusetts. While in Jamaica on December 27, 2011, Morris encountered Clarke who "confronted" him and said: "All [indiscernible] informer for dead." Morris testified before the IJ that, via this encounter, Clarke was "trying to tell me ... that me and my brother are to die, and he was making it known that I deliver the message to my brother."

Morris also described this encounter in his declaration. There, he stated that Clarke had "pulled up next to my car" and "made threatening comments to me." Specifically, Morris stated in his declaration that "[Clarke] said that my brother was an informer and through my relationship with my brother, that made me an informer and that informers did not deserve to live." Morris added that he told his brother what Clarke did that afternoon "but [his brother] dismissed it."

In 2015, Wayne was "murdered by two gunmen" in Kingston, Jamaica. No arrest was made. Morris stated in his declaration that his brother was murdered by "people associated with Owen Clarke" and that "Owen Clarke is protected by corrupt authorities."

In addition to this evidence concerning the likelihood that Clarke would target him, Morris also provided evidence to support his contention that the harm that he feared from Clarke would be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). That evidence included both documents and expert testimony.

Specifically, Morris introduced several human rights reports and newspaper articles on gang violence in Jamaica that addressed connections between organized crime and the JCF. Morris also provided the testimony of an expert, Anthony Harriott, who was a professor and the director of the Institute of Criminal Justice and Security at the University of the West Indies in Kingston. Harriott testified about the likelihood that Clarke would contract with the JCF to exact retribution against Morris.

2.

The IJ rejected Morris' claim for deferral of removal. In doing so, the IJ made a number of findings. Some pertained to the issue of whether Morris had met his burden to show that it was more likely than not that Clarke would...