Mark Wright v. Jefferson B. Sessions, III

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0393n.06
No. 16-4055
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jul 03, 2017
DEBORAH S. HUNT, Clerk
MARK WRIGHT,
Petitioner,
v. ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
JEFFERSON B. SESSIONS, III,
Attorney General,
Respondent.
_________________________________/
BEFORE: BOGGS, CLAY, and SUTTON, Circuit Judges.
CLAY, Circuit Judge. Petitioner Mark Wright (“Wright”), a native and citizen of
Jamaica, petitions for review of the decisions of the Board of Immigration Appeals (“BIA”) and
an immigration judge (“IJ”) denying his application for relief under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
S. Treaty Doc. No. 100–20, p. 20, 1465 U.N.T.S. 85; 8 CFR § 208.17. On appeal, Wright argues
that the BIA and IJ erred in determining that Wright had failed to show that it was more likely
than not that he would be subject to torture if removed to Jamaica. Wright argues that we have
subject-matter jurisdiction over his petition pursuant to 8 U.S.C. § 1252(a)(1).
For the reasons set forth below, we DISMISS the petition for lack of subject-matter
jurisdiction.
No. 16-4055
BACKGROUND
Wright is a native and citizen of Jamaica. At some point in the past, he entered the
United States illegally, but the record does not disclose when or where. Wright was granted
lawful permanent resident (“LPR”) status on August 29, 2005.
After obtaining LPR status, Wright was subsequently convicted of multiple crimes. Most
prominently, in 2007, Wright was convicted in the Northern District of Ohio of perjury and
submitting a false passport application after he bought, in 2000, a stolen Social Security number
and a fake birth certificate to apply for a passport. He also has a California state conviction for
drug trafficking after he was caught in possession of a large quantity of marijuana.
Because of these convictions, on August 23, 2013, the Department of Homeland Security
issued a Notice to Appear charging Wright as removable under § 237(a) of the Immigration and
Nationality Act. Wright conceded the factual allegations in the Notice to Appear and his
removability, but filed applications for asylum, withholding of removal, and relief under the
Convention Against Torture.
The IJ held an individual hearing on Wright’s applications on February 17, 2016.
Although the hearing was not transcribed, Wright concedes that the IJ’s summary of his
testimony is accurate:
The following is a general summary of the Respondent’s testimony offered at the
hearing. Respondent was born August 5, 1970 in Montego Bay, Jamaica. He is
Christian. The Respondent is legally married to Michelle Larson but they have
been separated for eleven year[s]. He has a new girlfriend with whom he has two
children ages ten and one. He has three other children. All of his children were
born in the United States.
The Respondent’s mother is deceased. His father is 72 years old, lives in Jamaica
and is a retired farmer. He has two sisters who still live in Montego Bay, Jamaica
and one sister who lives in Toronto, Canada. He has a half-brother through his
father whom he does not know. He has another brother, Troy Wright, who is
deceased.
His brother Troy, died on August 18, 2009 in Montego Bay, Jamaica. Troy
worked running a car wash business. He also worked as a referee. He was well-
known and had a nickname of GiGi Rat. Troy was killed at his house. He was
holding a gun for a gang member, specifically an automatic machine gun.
Another gang wanted the gun so they shot Troy although they did not get the gun.
The police later found the gun. The police did not investigate Troy’s death.
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Troy had previously lived in the United States and had been deported back to
Jamaica in 2008 due to criminal convictions involving guns. He had been back in
Jamaica about one year before being killed.
After Troy was killed, some gang members contacted the Respondent’s sister and
obtained the Respondent’s phone number. They called the Respondent and said
he had to pay for the gun. The gang members started threatening the
Respondent’s family.
The Respondent believes if he went back to Jamaica, he would be killed. He
would have to go to Montego Bay because that is the only place he knows. Also,
if the Respondent is deported, he would have to check in with the police. He
believes the police would hold him and torture him. The police would not protect
him because they are involved in gangs.
The Respondent has two criminal convictions. He was convicted in federal court
in Cleveland for perjury and a false passport application. He received two years
of probation and six months house arrest. He bought a birth certificate and social
security number and [then] applied for a passport in 2000. He was convicted in
2007. It turned out he had purchased a police officer’s birth certificate.
His second conviction stems from an arrest in 2011 in California. He spent four
months in jail and had two years of probation from this conviction. He had flown
to California and a friend picked him up. While driving with this friend, the
police stopped them and found marijuana in the car. It was a large quantity of
marijuana. The driver of the car was also convicted and deported.
The Respondent previously worked as a tow truck operator but no longer has a
license so has not been working for two years. His girlfriend works and travels a
lot so he takes care of the children.
On cross examination, the Respondent clarified his California criminal case was
from Orange County. He was convicted in August 2012.
His brother, Troy, was involved with the Bone Crusher gang or crew. The
Respondent does not know the name of the rival gang because they were from
another area. The Respondent believes the Bone Crusher crew would target him.
It is people from the Bone Crusher who contacted the Respondent because the
gun was expensive. They have contacted the Respondent 8 to 10 times. He knew
the people calling were with the Bone Crusher crew because they told him. The
first phone call he received was in September 2009 and the last call was about one
month later because the Respondent changed his phone number. He has had no
contact with them since October 2009.
The Respondent has had contact with his oldest sister, Anne Marie. She told him
that late last year[], 2015, the Bone Crushers contacted her and told her that they
still remember the Respondent because he talked tough.
The Respondent has a cousin, Sean, who died in 2014. He was shot in downtown
Montego Bay but it is unknown who killed him. This cousin was close to
Respondent’s brother. The Respondent is not sure if he was involved with Bone
Crusher crew but his cousin was also caught with a gun. No one else in
Respondent’s family was been harmed or threatened.
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No. 16-4055
The Respondent believes that the police did not investigate his cousin’s death. He
believes the police are corrupt and affiliated with different gangs so they do not
investigate certain crimes, including most gang crimes.
The Respondent’s sister, Anne Marie, knows more details about what happened.
His father knew nothing about the threats against him. He did not know to get a
statement from his sister. His fiancée was in the room once or twice when he
received phone calls but he kept the details from her.
Under questioning from the Court, the Respondent clarified that the problem is
the Bone Crusher crew wants money from him. They would not ask his sister for
the money or bother her because they would not go after a woman.
The Respondent’s girlfriend, Shovan Gocan, also testified. She has been living
with the Respondent for eleven years and they have two children together. She
does IT training related to medical records and travels six months out the year.
Ms. Gocan knew the Respondent’s brother, Troy Wright. She knew he was
deported and then murdered at his home. She had heard it was gang related.
Ms. Gocan knows that after that the Respondent received phone calls from his
family members but does not know the details. Once the Respondent’[s] sister
called Ms. Gocan as she was trying to get ahold of the Respondent. She told
Ms. Gocan what had happened and that the gang wanted money from the
Respondent.
On cross examination, Ms. Gocan said the phone calls began within a few weeks
of the death of Respondent’s brother. The last phone call was years ago.
(App. R. 4, Administrative Record, at 29–31.)
On April 14, 2016, the IJ filed an order denying all of the relief requested by Wright.
Relevant here, the IJ determined that Wright had failed to show that it was more likely than not
that he would be tortured if returned to Jamaica. The IJ reasoned that Wright’s fears that he
would be harmed by the Bone Crusher gang or the police were speculative, particularly since he
had not heard from the gang in several years.
On August 18, 2016, the BIA affirmed the IJ’s order in a brief opinion, largely echoing
the IJ’s reasoning. On September 16, 2016, Wright filed a timely petition for review. Wright’s
petition challenges only the BIA’s denial of relief under the Convention Against Torture.
DISCUSSION
“Article 3 of the Convention Against Torture prohibits the return ‘of an alien to a country
where it is more likely than not that he will be subject to torture by a public official, or at the
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instigation or with the acquiescence of such an official.’” Mostafa v. Ashcroft, 395 F.3d 622,
624–25 (6th Cir. 2005) (quoting Matter of G-A-, 23 I. & N. Dec. 366, 367 (BIA 2002) (en banc)
(citations omitted)). Federal regulations define 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. § 208.18(a)(1). As the BIA has explained,
[i]n determining whether an alien is entitled to protection under the Convention
Against Torture, all evidence relevant to the possibility of future torture in the
proposed country of removal shall be considered, including, but not limited to:
past torture inflicted upon the applicant; evidence that the applicant could relocate
to another part of the country of removal where he or she is not likely to be
tortured; gross, flagrant, or mass violations of human rights; and other relevant
information regarding conditions in the country of deportation.
Matter of G-A-, 23 I. & N. Dec. at 367–68 (citing 8 C.F.R. § 208.16(c)(3)); see also Mostafa,
395 F.3d at 625.
Wright argues that the BIA erred in determining that he has not demonstrated his
entitlement to relief under the Convention Against Torture. Before we may address Wright’s
claim for relief, however, we must first ascertain whether his claim is reviewable at all. The
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 strips courts of
“jurisdiction to review any final order of removal against an alien who is removable by reason of
having committed” a wide variety of listed predicate offenses. 8 U.S.C. § 1252(a)(2)(C); see
also Ventura-Reyes v. Lynch, 797 F.3d 348, 356–58 (6th Cir. 2015) (holding that the
jurisdictional bar applies as long as an alien is removable, regardless of whether the predicate
offense was the reason for removal). Wright concedes that he is removable because he
committed a controlled-substance offense, two or more crimes involving moral turpitude, and an
aggravated felony, as those terms are defined in the Immigration and Nationality Act.
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Accordingly, we retain jurisdiction only to consider any “constitutional claims or questions of
law raised upon” his petition for review. 8 U.S.C. § 1252(a)(2)(D).
Wright raises only one issue in this appeal. Specifically, he argues that the BIA and IJ
erred by concluding, based on the evidence in the administrative record, that he failed to show
that it was more likely than not that he would be tortured if returned to Jamaica. This is a factual
argument that does not raise any legal or constitutional issues. We have repeatedly held that we
lack jurisdiction to consider a challenge to the BIA’s decision that an applicant failed to meet his
burden to warrant relief under the Convention Against Torture. See, e.g., Tran v. Gonzales,
447 F.3d 937, 943 (6th Cir. 2006) (citing Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005) for
the proposition that courts lack jurisdiction to consider a “petitioner’s CAT claim where he
urge[s] the court to review whether the BIA correctly considered, interpreted, and weighed the
evidence presented”); Luambano v. Holder, 565 F. App’x 410, 414 (6th Cir. 2014) (holding that
the Court lacked jurisdiction to consider petitioner’s argument that the “evidence in the record
clearly establishes that he is more likely than not to face torture if removed” (citation, quotation
marks, and brackets omitted)); Arestov v. Holder, 489 F. App’x 911, 917 (6th Cir. 2012) (same);
Bushati v. Gonzales, 214 F. App’x 556, 558 (6th Cir. 2007) (same); see also Bracamontes v.
Holder, 675 F.3d 380, 389–90 (4th Cir. 2012); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 329 (2d Cir. 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).
Accordingly, we lack jurisdiction to grant Wright the relief he seeks.
CONCLUSION
For the foregoing reasons, we DISMISS Wright’s petition for lack of subject matter
jurisdiction.
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