Andre Bernard v. Jefferson Sessions, III , 881 F.3d 1042 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2290
ANDRE RAY BERNARD,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A077-767-738.
____________________
ARGUED JANUARY 24, 2018 — DECIDED FEBRUARY 8, 2018
____________________
Before BAUER, KANNE, and BARRETT, Circuit Judges.
PER CURIAM. Andre Bernard, a Jamaican citizen, petitions
for review of the denial of his applications for statutory with-
holding of removal and deferral of removal under Article 3 of
the Convention Against Torture. The Board of Immigration
Appeals upheld those decisions. First, the Board concluded,
the immigration judge correctly found Bernard ineligible for
withholding of removal on the ground that he had committed
a “particularly serious crime,” see 8 U.S.C. § 1231(b)(3)(B)(ii);
2 No. 17-2290
second, the Board agreed that Bernard had not shown that, if
removed to Jamaica, he likely would be tortured with the ac-
quiescence of a public official on account of his bisexuality or
political opinions. We dismiss for lack of jurisdiction the por-
tion of Bernard’s petition seeking review of the “particularly
serious crime” designation, and deny the remainder of the pe-
tition, as substantial evidence supports the IJ’s reasoning as
adopted and supplemented by the Board.
I. BACKGROUND
Bernard grew up in Spanish Town, Jamaica, where he and
his family supported the Jamaica Labour Party, one of the two
major political parties in the country. Bernard says he realized
as a preteen that he was bisexual, but hid it for fear of how his
family would react. His fear was based in part on an event he
witnessed at age eleven: Two men who were caught having
sexual relations in his neighborhood were “chased down and
… stoned, beaten, and also burnt with car tires.” (A.R. 217.)
His family members were present and encouraged the mob,
“shouting, kill, kill, kill the batty boys, and praising the peo-
ple who were throwing the rocks.”1 (A.R. 219.) Bernard also
says he was influenced by popular music in Jamaica, some of
which encouraged “anyone to shoot and kill gay men, or peo-
ple of the LGBT community.” (A.R. 259.) Still, he had a secret
relationship with another preteen boy for about a year and a
half while living in Jamaica.
Bernard arrived in the United States in 1998, when he was
19 years old, on a temporary visitor’s visa. He married an
American citizen, Bose Andrews, but they divorced in 2009.
1 “Batty boy” is a derogatory term for a gay man in Jamaica.
No. 17-2290 3
Bernard then had a long relationship with another woman,
Jennifer Hunter, but dated men at the same time.
Between 2002 and 2013 Bernard was convicted of multiple
crimes including weapons and drug offenses. Most relevant
to this appeal is his conviction in February 2011 for domestic
battery, 720 ILCS 5/12-3.2(a)(1). Bernard pleaded guilty to
stabbing his girlfriend’s sister with a kitchen knife. Bernard,
however, said then and still maintains he acted in self-de-
fense. He was sentenced to twelve months “conditional dis-
charge,” which he completed satisfactorily, meaning he never
served time in custody.
In January 2016, an agent of the Department of Homeland
Security took Bernard into custody. Bernard conceded remov-
ability. He applied for withholding of removal, see 8 U.S.C. §
1231(b)(3)(A), and for deferral of removal under Article 3 of
the Convention Against Torture, see 8 C.F.R. § 1208.17. He ex-
plained that, if removed to Jamaica, he feared persecution or
torture on the basis of his bisexuality and membership in the
Jamaica Labour Party.
Immigration Judge Robin Rosche heard evidence on two
separate days. Bernard described his experiences living in Ja-
maica, including the same-sex relationship he had in his
youth, the mob violence he witnessed, and his participation
in the Jamaica Labour Party. He testified that family members
who live in Jamaica would not approve of his bisexuality and
that one uncle in particular would try to “beat it out of” him.
(A.R. 223.) He said that his relatives were aware of his sexual
orientation because rumors were “going around” (A.R. 253);
he came out to his father while in custody and believes that
since then his father has talked to people in Jamaica about his
bisexuality.
4 No. 17-2290
Bernard also explained that several of his family members
have been murdered because of their affiliation with the Ja-
maica Labour Party and its related gang, the One Order Posse.
He said that if he returned, opposition party members or oth-
ers might recognize him and kill him too. But he acknowl-
edged that only “word of mouth” informed his belief that the
murders were politically motivated, and he suggested that at
least one of the victims was murdered by the One Order Posse
itself, not the opposition.
Several other witnesses testified. Nina Porter, Bernard’s
friend, testified that she had seen him in romantic relation-
ships with men and that she did not believe his family in Ja-
maica would accept his sexual orientation. Ainsley Bernard
(petitioner’s father) testified that he was afraid for Bernard to
return to Jamaica, but that he did not accept Bernard’s bisex-
uality. He also explained that he had spoken about his son’s
sexual orientation to family members in Jamaica and that a
relative threatened to “beat it out” of Bernard. (A.R. 319–20.)
Further, Ainsley testified that another relative (Bernard’s
“aunt’s boyfriend”) was killed for being gay (but, he elabo-
rated, the murder was more likely motivated by rumors that
the man was “buying sexual favors from … young kids”).
(A.R. 322.) Ainsley confirmed that several relatives had been
killed for participating in the Jamaica Labour Party, but also
explained that the party is currently in power. Bernard’s sib-
lings Vanessa, Kimon, and Gregg testified as well, and con-
firmed the reports of violence against LGBT people and the
murders of various family members. But none of the wit-
nesses was able to provide specific details about any of the
murders.
No. 17-2290 5
Both sides also submitted articles and reports about the
conditions in Jamaica. These reports confirm that violence
against the LGBT community is prevalent, particularly for
homeless youth, women, and people whose appearance is
gender non-conforming; law enforcement often acquiesces to
the violence by standing by and doing nothing to prevent it.
Further, the reports describe that homosexual acts are illegal
under “anti-buggery” laws. But many reports also indicate
progress—the first “pride parade” recently was held without
incident, several government offices and officials have begun
calling for reform, and some police officers have started help-
ing LGBT individuals subjected to violence.
The IJ denied relief to Bernard. She first found that Ber-
nard was not credible enough to sustain his burden on his tes-
timony alone. Although the IJ acknowledged his story was
“consistent throughout,” she concluded it was “consistently
vague” and seemed to rely more on “general perceptions” of
violence instead of specific examples. (A.R. 63–64.) Bernard’s
witnesses were similarly vague, she said, so his testimony es-
sentially was uncorroborated. Still, the IJ assessed the merits
of his claims.
First, the IJ found Bernard ineligible for withholding of re-
moval because the elements and underlying facts of his do-
mestic-battery offense rendered it “particularly serious,” bar-
ring him from that relief. See 8 U.S.C. § 1231(b)(3)(B)(ii);
8 C.F.R. § 1208.16(d)(2). Then, the IJ considered deferral of re-
moval under the CAT. She concluded that the evi-
dence—which consisted mostly of decades-old memories and
general perceptions of violence in Jamaica—did not establish
that Bernard would more likely than not be tortured with the
6 No. 17-2290
acquiescence of a public official, on account of either his sex-
ual orientation or his political affiliation. See 8 C.F.R. §§
1208.16(c)(3), 1208.17(a). In reaching that conclusion, the IJ
noted that Bernard had not shown he would be unable to re-
locate safely to a different part of Jamaica.
Bernard appealed to the Board and challenged each of the
IJ’s findings. The Board dismissed Bernard’s appeal, uphold-
ing the IJ’s findings and adding a few observations. The Board
noted that crimes against persons, such as domestic battery,
are more likely to be considered “particularly serious.” The
Board also concluded that, even if Bernard established that he
might be harassed for his sexual orientation, harassment does
not amount to torture. Further, the Board noted that finding
in Bernard’s favor would require “stringing together a series
of suppositions”—namely, that “individuals will discover
that he is bisexual; that he will be ostracized by members of
the community due to his sexual orientation; that these indi-
viduals will torture him; and that the police will not intervene
to protect him.” (A.R. 3.) And, the Board added, Bernard did
not submit any evidence of country conditions with respect to
politically motivated violence.
II. ANALYSIS
On appeal Bernard reasserts essentially the same theories
that were unsuccessful before the Board and the IJ. When, as
in this case, the Board agrees with the IJ and supplements her
opinion with additional observations of its own, this court
“review[s] the IJ’s decision as supplemented by the Board’s
additional reasoning.” Jabateh v. Lynch, 845 F.3d 332, 337 (7th
Cir. 2017) (internal quotation marks and citation omitted). Ac-
cordingly Bernard focuses on the IJ’s rationale, and we do the
same.
No. 17-2290 7
First, Bernard contends that his conviction for domestic
battery was not a “particularly serious crime” rendering him
ineligible for withholding of removal. A crime may be defined
as “particularly serious” in one of two ways: first, if it is an
“aggravated felony” punished by at least five years’ impris-
onment; second, if the Attorney General determines it to be
particularly serious after examining the “nature of the convic-
tion, the type of sentence imposed, and the circumstances and
underlying facts of the conviction.” Estrada-Martinez v. Lynch,
809 F.3d 886, 889 (7th Cir. 2015) (quoting In re N.A.M., 24 I. &
N. Dec. 336, 342 (B.I.A. 2007)). In this case, the IJ used the sec-
ond method—after examining the nature and circumstances
of Bernard’s domestic-battery offense, she concluded that the
crime was “particularly serious.”
The government correctly points out that we lack jurisdic-
tion to review the discretionary determination that Bernard’s
crime was “particularly serious” based on all the underlying
circumstances unless he raises a constitutional or legal issue
about the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii); Her-
rera-Ramirez v. Sessions, 859 F.3d 486, 487 (7th Cir. 2017); Es-
trada-Martinez, 809 F.3d at 892–94. Bernard does not meaning-
fully engage with this jurisdictional problem; he asserts
simply that “there is a legal dispute on whether a domestic
battery can be regarded a ‘particularly serious crime.’” (Reply
Br. at 8.) But he raises no legal argument, instead maintaining
that, “based on the nature and underlying facts of the bat-
tery,” (id.) his crime was not particularly serious. Attempts
such as this to recharacterize the particulars of a crime raise
factual, not legal, issues. Herrera-Ramirez, 859 F.3d at 488; Es-
trada-Martinez, 809 F.3d at 892–94. We therefore lacks jurisdic-
8 No. 17-2290
tion to review the “particularly serious crime” finding. Her-
rera-Ramirez, 859 F.3d at 488; Fuller v. Lynch, 833 F.3d 866, 870–
71 (7th Cir. 2016); Estrada-Martinez, 809 F.3d at 892–93.
Thus the only relief Bernard could be eligible for is defer-
ral of removal under the CAT. See Estrada-Martinez, 809 F.3d
at 889. An applicant seeking this relief has the burden of
demonstrating that he is “more likely than not to be tortured”
in the proposed country of removal. 8 C.F.R. §§ 1208.16(c)(2)–
(3), 1208.17(a). We interpret that standard liberally, requiring
“a substantial risk that a given alien will be tortured if re-
moved from the United States.” Rodriguez-Molinero v. Lynch,
808 F.3d 1134, 1135–36 (7th Cir. 2015). Furthermore, “CAT
protection requires evidence that the Petitioner will be tor-
tured by the government, or with the government’s acquies-
cence.” Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). When
evaluating whether the petitioner has met his burden, the IJ
“must address various factors such as evidence of past tor-
ture, ability to relocate within the country, evidence of grave
human rights violations or other relevant country condi-
tions.” Orellana-Arias v. Sessions, 865 F.3d 476, 489 (7th Cir.
2017); see 8 C.F.R. § 1208.16(c)(3)(i)–(iv). Evidence of general-
ized violence is not enough; the IJ must conclude that there is
a substantial risk that the petitioner will be targeted specifi-
cally. Lozano-Zuniga v. Lynch, 832 F.3d 822, 830–31 (7th Cir.
2016); Lopez, 810 F.3d at 493. We review the denial of CAT de-
ferral “under the highly deferential substantial evidence test”
and will reverse “only if the record evidence compels a con-
trary conclusion.” Lopez, 810 F.3d at 492 (internal citations
omitted).
No. 17-2290 9
The Attorney General contends that we need not address
the specifics of Bernard’s CAT claim because he does not chal-
lenge the finding that he could safely relocate within Jamaica.
A party waives arguments that are not presented in the open-
ing brief. Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008). But
there is not waiver in this instance. True, Bernard does not
devote a section of his opening brief to relocation, as he did in
his brief to the Board. But both of Bernard’s briefs to this court
assert that violence against and persecution of the LGBT com-
munity exists everywhere in Jamaica; he does not focus solely
on Spanish Town. Further, Bernard generally challenges the
IJ’s decision to deny CAT relief based on his bisexuality,
which encompasses the finding that he could safely relocate.
See 8 C.F.R. § 1208.16(c)(3)(ii).
As for the merits of Bernard’s appeal, we conclude the IJ’s
denial of CAT deferral is supported by substantial evidence.
Bernard’s first claim, that he will be tortured for his sexual
orientation, is his stronger one. Certainly Bernard cites evi-
dence that LGBT individuals face risks in Jamaica, including
mob violence and death and the fact that Jamaica still crimi-
nalizes homosexual acts. Bernard contends that the IJ and the
Board overlooked this proof as well as evidence of his per-
sonal experience with mob violence as a child, the threat by a
relative to “beat [his sexual orientation] out of” him, and the
murder of his aunt’s boyfriend, allegedly for being gay.
In fact, the IJ exhaustively reviewed all of the evidence and
explained why it did not establish a substantial likelihood
that Bernard would be tortured on account of his sexual ori-
entation. In doing so, the IJ considered whether Bernard was
likely to suffer “extreme” treatment as required by 8 C.F.R. §
10 No. 17-2290
1208.18, and whether future torture was likely based on Ber-
nard’s past experiences in Jamaica, his ability to relocate
within the country, and the “evidence of grave human rights
violations or other relevant country conditions.” Orellana-
Arias, 865 F.3d at 489; see 8 C.F.R. § 1208.16(c)(3)(i)–(iv).
Neither Bernard’s decades-old experiences (which did not
themselves amount to torture and, indeed, did not even in-
volve Bernard directly) nor the general reports of violence in
Jamaica were sufficient to show that he specifically would be
targeted for extreme violence in the future. See Lopez, 810 F.3d
at 492–93. And although Jamaica’s “anti-buggery” laws re-
main on the books, country reports suggest they are used in-
frequently and only in cases of sexual assault and molestation.
As for the relative’s threat to harm Bernard, it is too vague to
determine if the relative—a private individual—would “tor-
ture” Bernard (a “beating” would not necessarily suffice), or
if any public official would acquiesce to such torture. Further,
testimony was inconclusive about whether another of Ber-
nard’s relatives was murdered for being gay—Bernard’s fa-
ther testified that the man was murdered for seeking sex from
“young kids.” Bernard’s evidence that his family will not ac-
cept him, though tragic, says nothing about whether he will
be tortured. We cannot say that the IJ disregarded any signif-
icant evidence or that the record compels the conclusion that
Bernard is at a substantial risk for torture. See Lopez, 810 F.3d
at 492–93; see also Rashiah v. Ashcroft, 388 F.3d 1126, 1133 (7th
Cir. 2004) (collecting examples of conduct not extreme
enough to be “torture”).
Still, one aspect of the IJ’s decision is problematic. As Ber-
nard points out, the IJ expressed a belief that, because Bernard
might not be “recognized” as bisexual, he had not established
No. 17-2290 11
that he would be tortured for that reason. (A.R. 69.) But Ber-
nard and his friend Nina Porter both testified that, in the
United States, Bernard dated both men and women, and went
out in public with men. Neither the IJ nor the Board specifi-
cally discredited these reports. The IJ seemed to imply that
Bernard’s claim fails because he will be safe if he hides his
sexual orientation, a premise that this court rejects. See Ve-
lasquez-Banegas v. Lynch, 846 F.3d 258, 262 (7th Cir. 2017) (“The
law does not require people to hide characteristics like reli-
gion or sexual orientation… .”).
Even if the IJ erred on this point, however, the error does
not require us to grant the petition for review. Bernard’s pur-
ported ability to hide or keep secret his sexual orientation was
not the only factor the IJ considered. Ultimately, as the IJ and
the Board both pointed out, Bernard’s claim requires “string-
ing together a series of suppositions”—not only that he will
be outed, but also that community members will harm him to
a level amounting to “torture,” and that a public official will
acquiesce to the torture. See Lopez, 810 F.3d at 492–93 (uphold-
ing denial of CAT relief despite evidence of general violence
against LGBT community); Bathula v. Holder, 723 F.3d 889, 904
(7th Cir. 2013) (upholding denial where IJ did not require pe-
titioner to “live in hiding” but instead discredited likelihood
of future torture); see also Fuller, 833 F.3d at 868, 871–72 (not-
ing dangers in Jamaica for LGBT persons but upholding de-
nial of CAT relief).
Bernard’s claim based on his political affiliation is even
weaker. The evidence before the IJ consisted mostly of hear-
say reports about general violence between the two main po-
litical parties (or perhaps more accurately, their affiliated
12 No. 17-2290
gangs in Spanish Town) and the murders of Bernard’s rela-
tives. Yet none of the witnesses could describe these murders
with much clarity or sufficiently link them to the victims’ po-
litical advocacy. The IJ and the Board thus reasonably dis-
counted these reports. See Fuller, 833 F.3d at 869 (finding it
“entirely reasonable” for IJ to hold against petitioner his ina-
bility to remember details of shooting). Moreover, although
Bernard testified that he helped with political rallies when he
was a child, nowhere does he suggest that he plans to engage
in political activism back in Jamaica. Instead, his fear comes
from a vague threat by one of his relatives’ killers, who pur-
portedly said he would find and kill anyone in Bernard’s fam-
ily. This threat does not appear related to Bernard’s own po-
litical affiliation, and his fear of torture based on political af-
filiation is otherwise too speculative to justify relief under the
CAT. See Lozano-Zuniga, 832 F.3d at 830–31.
III. CONCLUSION
We therefore DISMISS for lack of jurisdiction the portion
of Bernard’s petition seeking reversal of the “particularly se-
rious crime” designation and attendant finding of ineligibility
for withholding of removal. We DENY the remainder of the
petition for review.