Green v. Attorney General of United States of America
694 F.3d 503
| 3rd Cir. | 2012Background
- Green, a Jamaica native, entered the U.S. in 2002 on a tourist visa and became a lawful permanent resident in 2006.
- He pled guilty in state court to controlled substance offenses in 2006 and 2008, receiving probation and imprisonment terms.
- In 2010, DHS charged Green with removability under 8 U.S.C. § 1227(a)(2)(B)(i) for an illegal substance conviction; he admitted the prior convictions and was found removable by the IJ.
- Green sought CAT deferral, testifying that the Shower Posse would torture him in Jamaica due to his prior cooperation with authorities.
- He witnessed a 1998–1999 hospital shooting attributed to Shower Posse members, and his sister and brother were later killed; Green was attacked in 2002 and left Jamaica for the U.S. in 2002.
- The IJ denied CAT relief; the BIA affirmed the denial, concluding the government’s acquiescence element was not met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government involvement/acquiescence is shown | Green argues the Shower Posse acts with Jamaica's acquiescence | Green has not shown government acquiescence; factual finding supported by record | Unreviewable for factual sufficiency; agency finding stands |
| Kaplun two-prong test application | IJ/BIA failed to apply Kaplun’s two-prong analysis | Kaplun does not require explicit first-prong factual finding; two parts are separate | Kaplun correctly applied; no reversible error in analysis |
| Consideration of all evidence in the record | IJ/BIA ignored relevant evidence suggesting government tolerance | IJ/BIA considered all relevant evidence; court cannot reweigh factual evidence | No error; agency properly considered record evidence |
Key Cases Cited
- Pieschacon-Villegas v. Att’y Gen. of the U.S., 671 F.3d 303 (3d Cir. 2011) (identifies CAT factors for government involvement/acquiescence)
- Kaplun v. Attorney General of the United States, 602 F.3d 260 (3d Cir. 2010) (two-part Kaplun test for likelihood of torture)
- INS v. Bagamasbad, 429 U.S. 24 (1985) (general rule on whether to make findings on issues)
- Huang v. Att’y Gen. of the U.S., 620 F.3d 372 (3d Cir. 2010) (IJ/BIA need not discuss every piece of evidence)
- Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005) (review of IJ/BIA decisions where appropriate)
- Sarango v. Att’y Gen. of the U.S., 651 F.3d 380 (3d Cir. 2011) (review standard for BIA vs. IJ when final decision cites both)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (limits on reviewing factual determinations)
- Lin v. Att’y Gen. of the U.S., 543 F.3d 114 (3d Cir. 2008) (exhaustion/administrative remedies considerations)
- Alaka v. Att’y Gen. of the U.S., 456 F.3d 88 (3d Cir. 2006) (jurisdiction to review factual vs. legal questions)