PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Etkin Greenstein, 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.
Howard, Chief Judge, Lipez and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
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
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
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.
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
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
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.
denied Morris' claim for deferral of removal, and the BIA
affirmed the IJ's ruling. ...