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Morris v. Sessions

United States Court of Appeals, First Circuit

May 30, 2018



          Ilana 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.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         This 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.


         Morris 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 five years.[1]

         In 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 informant.

         The 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.

         The CAT 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 tortured.

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 capacity.

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.

         The IJ denied Morris' claim for deferral of removal, and the BIA affirmed the IJ's ruling. ...

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