Andre Bernard v. Jefferson Sessions, III
881 F.3d 1042
| 7th Cir. | 2018Background
- Andre Bernard, a Jamaican citizen, conceded removability and applied for withholding of removal and CAT deferral, claiming risk of persecution/torture in Jamaica based on bisexuality and past political affiliation with the Jamaica Labour Party.
- Bernard had a 2011 Illinois conviction for domestic battery (pleaded guilty to stabbing his girlfriend’s sister; received a 12‑month conditional discharge) and multiple prior convictions. The IJ found the offense a "particularly serious crime."
- Bernard presented testimony about historical mob violence against LGBT persons in Jamaica, threats from relatives, and family members killed (allegedly for political or LGBT reasons); country reports documented LGBT-targeted violence and police acquiescence but also some recent improvements.
- The IJ found Bernard’s testimony "consistently vague," treated much evidence as generalized, concluded Bernard could likely relocate within Jamaica, and denied CAT relief for lack of showing torture by or with acquiescence of public officials; the IJ also held Bernard ineligible for withholding because of the "particularly serious crime" finding.
- The BIA upheld the IJ, adding that harassment does not equal torture and that the CAT claim required "stringing together a series of suppositions."
- On appeal to the Seventh Circuit, the court dismissed review of the "particularly serious crime" determination for lack of jurisdiction and reviewed the CAT denial under the substantial‑evidence standard, ultimately denying relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bernard’s domestic‑battery conviction is a "particularly serious crime" barring withholding | Bernard: the conviction and facts do not make it particularly serious | Government: IJ properly considered nature, sentence, and underlying facts to find it particularly serious | Court: Dismissed review for lack of jurisdiction over the discretionary factual determination |
| Whether Bernard is more likely than not to be tortured in Jamaica because of his bisexuality (CAT deferral) | Bernard: country conditions, mob violence, threats, and past incidents show substantial risk of torture with official acquiescence | Government: evidence is generalized, outdated, or speculative; petitioner can relocate; no showing of government acquiescence | Held: Denied — substantial evidence supports IJ/BIA that petitioner's evidence did not compel finding of likely torture |
| Whether petitioner must be allowed to hide sexual orientation to avoid torture | Bernard: law should not require hiding sexual orientation | Government: IJ noted nonrecognition as a factor | Held: Court: rejecting hiding-as-requirement principle; but any IJ error on this point was harmless because other factors supported denial |
| Whether political‑affiliation based torture is likely | Bernard: family murders and past political involvement show risk | Government: evidence is vague, hearsay, and lacks specific nexus to petitioner | Held: Denied — evidence too speculative and insufficient to show targeted torture with official acquiescence |
Key Cases Cited
- Jabateh v. Lynch, 845 F.3d 332 (7th Cir. 2017) (court reviews IJ decision as supplemented by BIA reasoning)
- Estrada‑Martinez v. Lynch, 809 F.3d 886 (7th Cir. 2015) (standards for "particularly serious crime" and withholding eligibility)
- Herrera‑Ramirez v. Sessions, 859 F.3d 486 (7th Cir. 2017) (jurisdictional limits on reviewing discretionary "particularly serious crime" findings)
- Lopez v. Lynch, 810 F.3d 484 (7th Cir. 2016) (CAT requires torture by government or with its acquiescence; generalized violence insufficient)
- Rodriguez‑Molinero v. Lynch, 808 F.3d 1134 (7th Cir. 2015) (interpretation of "more likely than not" torture standard)
- Orellana‑Arias v. Sessions, 865 F.3d 476 (7th Cir. 2017) (factors IJs must address in CAT determinations)
- Lozano‑Zuniga v. Lynch, 832 F.3d 822 (7th Cir. 2016) (requiring petitioner-specific targeting, not only generalized risk)
- Velasquez‑Banegas v. Lynch, 846 F.3d 258 (7th Cir. 2017) (law does not require petitioners to hide protected characteristics)
- Fuller v. Lynch, 833 F.3d 866 (7th Cir. 2016) (upholding denial where petitioner failed to show specific risk and where IJ reasonably discounted vague testimony)