Bryan Gallimore v. Eric H. Holder, Jr.
715 F.3d 687
8th Cir.2013Background
- Gallimore, a Jamaican national, was convicted in Iowa in 2008 for second-degree burglary and sentenced to up to 10 years, with concurrent state sentences for stalking and harassment.
- On July 1, 2011, DHS ordered his removal as an alien convicted of an aggravated felony after admission.
- Gallimore sought CAT deferral; IJ denied CAT relief and ordered removal to Jamaica.
- IJ credited Gallimore as credible but found no CAT torture or government acquiescence; denied relief on the asserted standard.
- BIA adopted and affirmed the IJ’s decision, applying a willful blindness concept and concluding not more likely than not of torture by or with Jamaican government’s acquiescence.
- Gallimore petitioned for review; the court dismissed, citing the criminal alien bar to CAT relief review and lack of jurisdiction to review factual determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the criminal alien bar preclude review of CAT relief? | Gallimore argues bar does not apply to CAT denial. | Government says bar precludes review of CAT relief for aggravated felons. | Yes; bar precludes review of CAT relief petition. |
| Did the BIA and IJ properly apply the willful blindness standard? | Gallimore contends misinterpretation of evidence under willful blindness. | Gallimore’s challenges are not reviewable; court lacks jurisdiction over factual/legal misinterpretation. | Challenges foreclosed; court declines review under the bar. |
| Is the court's jurisdiction limited to constitutional questions or legal questions under § 1252(a)(2)(D)? | Gallimore argues for review of legal standards and application. | Bar limits review to constitutional or legal questions; factual determinations are not reviewable. | Jurisdiction limited; factual/applications not reviewable; petition dismissed. |
Key Cases Cited
- Khrystotodorov v. Mukasey, 551 F.3d 775 (8th Cir. 2008) (defines CAT standard and framework for torture likelihood)
- Mouawad v. Gonzales, 485 F.3d 405 (8th Cir. 2007) (government acquiescence concepts in torture analysis)
- Brikova v. Holder, 699 F.3d 1005 (8th Cir. 2012) (criminal alien bar precludes review of CAT relief)
- Lovan v. Holder, 574 F.3d 990 (8th Cir. 2009) (limits review to legal questions, not factual determinations)
- Bromfield v. Mukasey, 543 F.3d 1071 (9th Cir. 2008) (discussion of willful blindness standard; distinguishable from current circuit)
- Demirbas, 331 F.3d 582 (8th Cir. 2003) (sentence length does not affect aggravated felony status for removal)