Nelson v. Attorney Gen. of U.S.
| Decision Date | 29 March 2021 |
| Docket Number | No. 19-3455,No. 19-1286,19-1286,19-3455 |
| Parties | MICHAEL ALEXANDER NELSON, a.k.a. Michael A. Nelson, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of Decisions of the Board of Immigration Appeals
Immigration Judge: Kuyomars Golparvar
Before: JORDAN, MATEY, Circuit Judges, and BOLTON,* District Judge.
Richard H. Frankel, Esq.
Katelyn M. Hufe, Esq.
Brian Loughnane [ARGUED]
Emily Miles [ARGUED]
Drexel University
Thomas R. Kline School of Law
3320 Market Street
Philadelphia, PA 19104
Counsel for Petitioner Michael A. Nelson
Anna Juarez [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
1
Petitioner Michael A. Nelson is a felon facing deportation to Jamaica for a second time. His first deportation ended in violence at the hands of a gang. Five years later, after Nelson returned to the United States and in light of his earlier drug convictions, the Department of Homeland Security ("DHS") reinstated his 2011 removal order.
But Nelson is afraid that removal to Jamaica will subject him to more gang violence. So he seeks withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture ("CAT"), 8 C.F.R. §1208.16(c). An immigration judge ("IJ") denied his claims, and the Board of Immigration Appeals ("BIA") affirmed. Nelson timely petitioned for review and we will grant Nelson's petition in part, deny it in part, and remand to the BIA for further proceedings.
Removed to Jamaica in March 2011 for a drug conviction,2 Nelson returned to his old neighborhood in Kingston, where some of his childhood friends had become members of a gang known as the Bad Boys. The Bad Boys told Nelson they intended to harm Nelson's family friend Carl, because Carl was gay. Nelson tipped off Carl and, as a result, the gang members shot Nelson. He survived and went into hiding for a few months until, in January 2012, he re-entered the United States illegally.
Back in the United States, Nelson earned two new drug convictions3 before his conviction for illegal re-entry. As a result, DHS reinstated his 2011 removal order. Nelson sought withholding of removal under 8 U.S.C. § 1231(b)(3) and relief under the CAT, 8 C.F.R. §1208.16(c). Both requests hinged on his continuing fear of the Bad Boys.
The IJ denied Nelson's claims and ordered him removed. The IJ found that Nelson failed to prove torture awaited him in Jamaica, finding insufficient evidence that the Bad Boys were still interested in harming him. The IJ credited Nelson's testimony about his 2011 run-in with the gang, and his fear that they would target him if he returned. But the IJ was unpersuaded that the Bad Boys still held a grudge against Nelson some seven years later, despite letters from Nelson's Jamaican friends suggesting he remained in danger. TheIJ also found that the Jamaican government would not acquiesce to Nelson's torture. Finally, the IJ found Nelson's marijuana convictions were particularly serious crimes rendering him statutorily ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii).
The BIA affirmed that decision in a written opinion adopting most of the IJ's findings. The BIA agreed that Nelson "ha[d] not demonstrated that the people who harmed him are still looking for him and would target him" in part because Nelson offered no evidence "other than [his] testimony[.]" (App. at 7-8.)4 The BIA concluded that Nelson's friends' letters merely "speculate[d]" with "opinions" as to potential future harm. (App. at 7-8.) The BIA also affirmed the IJ's conclusion that Nelson did not establish that the Jamaican government would acquiesce to torture of Nelson. The BIA noted, however, that the IJ did not address Nelson's argument that the Jamaican government might acquiesce to future potential harm through willful blindness to gang violence more generally. But given the IJ's conclusion that the gang "would not torture him" was not "clearly erroneous," the BIA concluded it was unnecessary to address Nelson's alternative acquiescence argument. (App. at 9.) The BIA also affirmed the IJ's conclusion that Nelson's marijuana convictionswere particularly serious crimes making him ineligible for statutory withholding of removal.5
Given the BIA's focus on supporting facts, Nelson then moved to reopen the proceedings. He provided additional letters from Jamaican friends that, according to Nelson, "directly refute[d] the BIA's stated rationale for denying Mr. Nelson's claim." (19-3455 Opening Br. at 31.) The BIA denied Nelson's motion concluding that he could not carry his "heavy burden." (19-3455 App. at 4-6.)
Nelson timely filed petitions for review of both the denial of his claims on the merits and his motion to reopen.6
We review questions of law and the application of law to facts de novo, Myrie v. Att'y Gen., 855 F.3d 509, 515 (3d Cir. 2017), and review Nelson's factual challenges to the BIA's denial of CAT protection for substantial evidence. Grijalva Martinez v. Att'y Gen., 978 F.3d 860, 871 n.11 (3d Cir. 2020) (citing Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)). In contrast, our review of Nelson's withholding of removal claim is limitedto constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C), (D). And Nelson's challenge to the BIA's finding that his convictions were "particularly serious crimes" is a question of law we review de novo, subject to the BIA's reasonable interpretation of the Immigration and Nationality Act. Denis v. Att'y Gen., 633 F.3d 201, 205-06 (3d Cir. 2011).
Finally, we consider both the BIA and IJ decisions wherever the BIA "'affirmed and partially reiterated' the IJ's determinations." Blanco v. Att'y Gen., 967 F.3d 304, 310 (3d Cir. 2020) (quoting Sandie v. Att'y Gen., 562 F.3d 246, 250 (3d Cir. 2009)). If the BIA relies only on some of the grounds given for denying relief, we review only those grounds. Myrie, 855 F.3d at 515.
Nelson bears the burden of proving "that it is more likely than not that he . . . would be tortured if removed" to Jamaica. 8 C.F.R. § 1208.16(c)(2). Torture is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person" done "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). A broadly phrased prohibition, torture includes "punishing [applicant] for an act [applicant] . . . committed or is suspected of having committed[.]" Id. A petitioner can establish "acquiescence" by a "public official" with evidence of willful blindness to the likely harm. Silva-Rengifo v. Att'y Gen., 473 F.3d 58, 70 (3d Cir. 2007). We consider both the torture and acquiescence prongs, finding error in the BIA's application of these standards.
We begin our analysis with the BIA's determination about torture, where credible testimony alone can satisfy the applicant's burden. 8 C.F.R. § 1208.16(c)(2). Nelson points out the IJ found his testimony "completely truthful and credible," (A.R. at 373), a finding the BIA left undisturbed. But the IJ and BIA, Nelson says, then concluded he failed to corroborate his testimony. That, Nelson argues, required notice and the opportunity to corroborate or to explain why corroboration is not reasonable.
Nelson grounds his argument in the statutory obligation that "[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence." 8 U.S.C. § 1158(b)(1)(B)(ii); Saravia v. Att'y Gen., 905 F.3d 729, 735-36 (3d Cir. 2018). We have explained that before deciding a failure to corroborate undermines a CAT claim, IJs must: 1) identify the facts requiring corroboration, 2) ask whether the applicant has provided that information and, if not, 3) analyze whether the applicant has adequately explained his failure to do so. Luziga v. Att'y Gen., 937 F.3d 244, 255 (3d Cir. 2019) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)). Then, if the IJ concludes "a failure to corroborate undermines the applicant's claim" the applicant gets the "opportunity to supply [corroborating] evidence or explain why it is not available" before ruling. Saravia, 905 F.3d at 736-37.
That analysis did not occur here. The IJ found Nelson "fail[ed] to meet his burden" to prove the Bad Boys would "seek him out and torture him," (App. at 21), despite having found Nelson's testimony "completely truthful and credible." (A.R. at 373.) The BIAagreed with the IJ that Nelson "has not demonstrated that the people who harmed him are still looking for him and would target him" in part because Nelson offered no evidence of the Bad Boys' perception of him "other than [his] testimony[.]" (App. at 7-8.) In other words, both the IJ and BIA found Nelson's failure to corroborate his testimony undermined his claim, without providing him notice that his failure would doom his application. That failure requires remand to determine whether other evidence changes the BIA's conclusions about Nelson's risk of torture.7 Luziga, 937 F.3d at 257.
Remand is also necessary to determine whether Nelson has established that public officials in Jamaica would more likely than not acquiesce to his torture. To evaluate that risk, the IJ must ask "(1) how public officials will likely act in response to the harm the petitioner fears and (2) whether the likely response from public officials qualifies as acquiescence." Guzman Orellana v. Att'y Gen., 956 F.3d 171, 181 (3d Cir. 2020). The first part is a...
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