Fitzroy Gerald Green v. Atty Gen USA ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-3732
_____________
FITZROY GERALD GREEN,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
______________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Agency No. A099-232-461)
Immigration Judge: Honorable Margaret R. Reichenberg
____________
Submitted Under Third Circuit LAR 34.1(a)
July 10, 2012
____________
Before: RENDELL, SMITH and BARRY, Circuit Judges
(Opinion Filed: July 13, 2012 )
____________
Elissa C. Steglich, Esq.
Amelia Wilson, Esq.
American Friends Service Committee
Immigrant Rights Program
89 Market Street
6th Floor
Newark, NJ 07102-0000
Counsel for Petitioner
Jason Wisecup, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
____________
OPINION OF THE COURT
____________
BARRY, Circuit Judge
Fitzroy Green (“Green”) petitions for review of the
BIA‟s denial of his application for deferred removal under the
United Nations Convention Against Torture (“CAT”). For
the following reasons, the petition will be denied.
I. Background
A. Removability Determination
Green, a native and citizen of Jamaica, entered the
United States on a tourist visa in 2002. On September 16,
2006, his immigration status was adjusted to that of a lawful
permanent resident. Less than a month later, on October 13,
2006, he was arrested on charges of possession of a controlled
dangerous substance with intent to distribute. He pled guilty
in New Jersey state court and was sentenced to one year of
probation. In 2008, Green was arrested again on charges of
possession and distribution of a controlled dangerous
substance. He again pled guilty, and was sentenced to six
months‟ imprisonment and two years‟ probation. On May 28,
2010, the Department of Homeland Security charged him
with being removable from the United States under 8 U.S.C.
§ 1227(a)(2)(B)(i), as an alien who had been convicted of a
controlled substance offense. Green admitted his prior
2
convictions and raised no cognizable challenge to his
removability, and the IJ found him removable as charged.
B. CAT Application
Following the IJ‟s determination that he was
removable, Green filed an application for deferred removal
under CAT. In a subsequent hearing on his application,
Green testified that he feared that he would be tortured by the
Shower Posse, a powerful Jamaican drug gang formerly
headed by Christopher “Dudus” Coke, if he were deported to
Jamaica. He explained that sometime in 1998 or 1999, while
visiting his godmother at a Kingston-area hospital, he
witnessed a group of gunmen burst into a nearby hospital
room and shoot a suspected police informant and the police
officer who had been assigned to guard him, killing both men.
Green recognized three of the assailants as members of the
Shower Posse, and despite initially refusing to discuss the
killings with police, he eventually gave a statement in which
he identified the shooters. One of the shooters was
subsequently arrested and convicted of murder, although
Green was not asked to testify at the trial. According to
Green, Jamaican police also arrested at least one, and maybe
both, of the other shooters.
Green testified that as a result of his cooperation in this
investigation, he and his family became targets of the Shower
Posse. His sister, Winsome, was killed in 2001 or 2002, and
his brother, Cleon,1 was killed in 2009. Green testified to his
belief that both slayings were acts of retribution carried out
by members of the Shower Posse. Additionally, in 2002,
Green himself was attacked in downtown Kingston by four
men wielding knives and machetes, men he believes were
Shower Posse gang members. Green sustained multiple stab
wounds and spent the night in a hospital, but he did not report
the attack to police. Several months after this attack, in July
of 2002, Green left Jamaica for the United States and has not
1
Although Green‟s brother is referred to as “Clan” at various
points in the Administrative Record, we refer to him as
“Cleon,” as that is the spelling Green provided during his
sworn testimony before the IJ. (A.R. at 107.)
3
returned since.
C. IJ and BIA Decisions
Although the IJ found Green‟s testimony to be
credible, she ultimately denied his application for deferred
removal under CAT. She reasoned that even assuming
arguendo that the Shower Posse still sought revenge against
Green for his cooperation with authorities thirteen years ago,
he had “failed to meet his burden to establish that the Shower
Posse would be acting on behalf of the government of
Jamaica or that the government of Jamaica would acquiesce
in the actions of the Shower Posse,” as required under CAT.
(A.R. at 40.) Green appealed this decision to the BIA, which
affirmed the IJ‟s ruling on the same ground, stating that
Green “ha[d] not met his burden to establish that the
government would turn a blind eye to the actions of the
Shower Posse.” (Id. at 3.) On October 4, 2011, Green timely
petitioned for review.
II. Jurisdiction & Standard of Review
Generally, we have jurisdiction under 8 U.S.C. §
1252(a)(1) to review a final order of the BIA denying relief
under CAT. However, in cases involving certain categories
of criminal aliens—including aliens, like Green, who are
removable due to controlled substance offenses under 8
U.S.C. § 1227(a)(2)(B)—the statute provides that “no court
shall have jurisdiction to review any final order of removal.”
8 U.S.C. § 1252(a)(2)(C). Although it goes on to state that
we may review “constitutional claims or questions of law,” 8
U.S.C. § 1252(a)(2)(D), we lack jurisdiction to review factual
findings underlying a removal order against an alien who has
committed a controlled substance offense.
When the BIA issues its own opinion, we generally
review that decision as the final agency decision. Sarango v.
Att’y Gen. of the U.S., 651 F.3d 380, 383 (3d Cir. 2011).
Here, however, the BIA‟s opinion “invokes specific aspects
of the IJ‟s analysis and fact-finding in support of [its]
conclusions,” and so we are obliged to review both the
decisions of the IJ and the BIA. Voci v. Gonzales, 409 F.3d
4607, 613 (3d Cir. 2005). We review conclusions of law de
novo, but give Chevron deference to the BIA‟s interpretation
of the Immigration and Nationality Act. Sarango, 651 F.3d at
383.
III. Discussion
Green raises three arguments in his petition. First, he
challenges the IJ‟s factual determination that potential
retribution carried out by the Shower Posse would not be
attributable to the Jamaican government. Second, he asserts
that neither the BIA nor the IJ “complete[d] the two-pronged
analysis as mandated by this Court” in Kaplun v. Attorney
General of the United States, 602 F.3d 260 (3d Cir. 2010).
(Pet‟r‟s Br. 8.) And third, he claims that “neither the BIA nor
the IJ considered the totality of the evidence relevant to the
likelihood of [his] torture.” (Id. at 9.) None of these
arguments has merit.
A. Involvement of Jamaican Government
Article 3 of CAT provides that “[n]o State Party shall
. . . 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.” Art. 3(1),
S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. Relying on the
administrative regulations implementing CAT, 8 C.F.R. §
1208.18(a)(1), we have stated:
For an act to constitute torture under the [CAT]
. . . , it must be: (1) an act causing severe
physical or mental pain or suffering; (2)
intentionally inflicted; (3) for an illicit or
proscribed purpose; (4) by or at the instigation
of or with the consent or acquiescence of a
public official who has custody or physical
control of the victim; and (5) not arising from
lawful sanctions.
Pieschacon-Villegas v. Att’y Gen. of the U.S., 671 F.3d 303,
310 (3d Cir. 2011) (citation omitted). Both the IJ and the
BIA found that Green had failed to satisfy the fourth of these
5
factors: the requirement of government involvement or
acquiescence in torture. In his petition, Green argues that
these findings amount to “judicial error and abused
discretion.” (Pet‟r‟s Br. 13.)
This argument is aimed directly at the IJ‟s factual
determination, which was adopted by the BIA, that the
Jamaican government would not consent to or acquiesce in
potential retributive violence carried out by the Shower Posse.
As mentioned above, however, our jurisdiction over final
orders of removal is limited to “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). Recognizing
this statutory limitation, we have repeatedly stated that “[w]e
do not have jurisdiction to ascertain whether [a] factual
finding was supported by substantial evidence.” Santos-
Reyes v. Att’y Gen. of the U.S., 660 F.3d 196, 200 (3d Cir.
2011); see also Sukwanputra v. Gonzales, 434 F.3d 627, 634
(3d Cir. 2006) (“[F]actual or discretionary determinations
continue to fall outside the jurisdiction of the court of appeals
entertaining a petition for review.”); Alaka v. Att’y Gen. of the
U.S., 456 F.3d 88, 103 (3d Cir. 2006) (“We do not have
jurisdiction to review the merits of the IJ‟s factual
conclusion[.]”). Thus, we lack jurisdiction to consider
Green‟s argument that the IJ erred in determining that the
Jamaican government would not consent to or acquiesce in
the Shower Posse‟s actions.2
2
We note, however, that even if we did have jurisdiction to
consider this argument, the IJ‟s finding appears to be
supported by substantial evidence. Although the IJ
recognized that the Shower Posse “does exert strong
influence in parts of Jamaica, particularly in the poorer areas
of Kingston, and that there is corruption within the
government of Jamaica,” (A.R. at 40), she noted several facts
which indicated that the Jamaican government would not
acquiesce in torture carried out by the gang: (1) Jamaican law
provides penalties for corruption; (2) Jamaican authorities
pursued and arrested several Shower Posse members who
participated in the killings witnessed by Green, and at least
one suspect was tried and convicted of murder; and (3)
Christopher “Dudus” Coke, the longtime leader of the Shower
Posse, was apprehended by Jamaican authorities in 2010 and
6
B. Kaplun Test
Green next argues that the IJ and BIA failed to apply
the two-prong test undertaken by our Court in Kaplun. In
Kaplun, we stated that whether future torture was likely
turned on two questions: “(1) what is likely to happen to the
petitioner if removed; and (2) does what is likely to happen
amount to the legal definition of torture?” 602 F.3d at 271.
In reviewing Green‟s CAT application, the IJ assumed
arguendo that the Shower Posse would try to harm Green,
and then based her decision on the fact that this potential
harm would not meet the legal definition of torture due to the
lack of government involvement or acquiescence. The BIA
followed the same approach, assuming a likelihood of harm
under the first Kaplun prong and then determining that this
harm would not meet the legal definition of torture under the
second Kaplun prong. Green complains that it was error to
assume harm under the first prong of the test and that the IJ
and BIA instead were required to make an actual factual
finding on that point.
This is a legal argument which we have jurisdiction to
consider. The argument, however, is unconvincing for
several reasons. First, Green failed to raise this Kaplun
argument before the BIA, and a strong case can be made that
he has not exhausted his administrative remedies and thus
cannot raise the argument here for the first time. See 8 U.S.C.
§ 1252(d)(1); Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 120-
21 (3d Cir. 2008). Even if he can raise this argument,
however, Kaplun does not “specifically require[]” the IJ to
make an actual finding as to each prong of the test. (Pet‟r‟s
Br. 11.) Rather, Kaplun states only that “there are two
distinct parts” to the analysis and that “[t]he two parts should
be examined separately.” 602 F.3d at 271. Green bears the
burden of showing both that he would likely suffer harm if
returned to Jamaica and that the harm would amount to the
legal definition of torture. Because the IJ and the BIA
determined that Green had failed to satisfy the second prong
of the Kaplun test, there was no need to make a factual
extradited to the United States to stand trial on drug
trafficking and racketeering charges.
7
finding as to the first prong. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (“As a general rule courts and agencies are
not required to make findings on issues the decision of which
is unnecessary to the results they reach.”). Accordingly,
Green‟s argument that the IJ and BIA misapplied Kaplun is
without merit.
C. Consideration of All Evidence in Record
Finally, Green argues that the IJ and BIA committed
legal error by ignoring relevant evidence in the record tending
to support his position that the Jamaican government turns a
blind eye to the criminal acts of the Shower Posse. Green is
correct that “all evidence relevant to the possibility of future
torture” must be considered in reviewing a CAT application.
8 C.F.R. § 1208.16(c)(3). However, his argument on this
point fails because he never identifies any evidence that was
overlooked. Instead, he revisits his argument that the IJ and
BIA “misinterpreted the country condition research,” “erred
in finding that the evidence „falls short‟” of satisfying CAT
requirements, and “rule[d] contrary to the substantial country
condition research.” (Pet‟r‟s Br. 18, 19, 22.) It is therefore
apparent that Green‟s real argument is not that relevant
evidence was ignored, but rather that the IJ incorrectly
weighed evidence in making factual determinations. As
stated above, however, we lack jurisdiction to consider such
an argument.
Moreover, we are persuaded that the IJ did consider all
relevant record evidence in rendering her decision. In support
of his application, Green testified at length and submitted
documentary evidence in the form of country reports and
newspaper articles describing the gang culture in Jamaica and
corruption within the country‟s government. Green himself
admits that the IJ “accepted” his testimony and “gave
credence to the U.S. Department of State report which relates
that the Shower Posse „exerts a strong influence within
certain areas of Jamaica.‟” (Id. at 11.) Moreover, although
the IJ‟s opinion did not specifically discuss every individual
piece of evidence, the IJ made clear that she had
“[c]onsider[ed] all of the evidence of record.” (A.R. at 40.)
This is all that is required, as we have previously stated that
8
the IJ and BIA need not “discuss every piece of evidence
mentioned by an asylum applicant.” Huang v. Att’y Gen. of
the U.S., 620 F.3d 372, 388 (3d Cir. 2010). The IJ cannot be
said to have ignored relevant record evidence, and Green‟s
argument on this point is unpersuasive.
IV. Conclusion
In sum, we discern no reason to disturb the decision of
the BIA. Accordingly, Green‟s petition will be denied.
9