954 F.3d 477
2d Cir.2020Background
- Kenneth Manning, originally from Kingston, Jamaica, was a member/co-founder of the Renkers Posse and later cooperated with U.S. prosecutors against the posse’s leader, Delroy Edwards, whose conviction relied heavily on Manning’s testimony.
- Manning pled guilty to murder and racketeering, served ~28 years in U.S. prisons in protective custody, and was released on parole in 2016; DHS served a Notice to Appear charging removal for unlawful presence (not for his convictions).
- Manning applied for deferral of removal under the Convention Against Torture (CAT), alleging he would likely be killed in Jamaica in retaliation for his cooperation; he submitted his testimony, declarations (including threats), and an expert affidavit from Dr. Anthony Harriott on Jamaican gang violence.
- The IJ found Manning credible but denied CAT relief, reasoning the fear was generalized/speculative and that Manning could relocate within Jamaica; the BIA affirmed, adopting the IJ’s likelihood-of-torture conclusion.
- On appeal, the government argued the criminal-alien bar, 8 U.S.C. § 1252(a)(2)(C), stripped the court of jurisdiction; the Second Circuit considered jurisdiction and the CAT merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(a)(2)(C) (criminal-alien bar) deprives the court of jurisdiction | Manning: §1252(a)(2)(C) applies only when the IJ’s final order of removal was predicated on a covered criminal offense; here removal was for unlawful presence, so jurisdiction exists | Gov’t: The bar applies because Manning is removable by reason of his aggravated-felony conviction even if the IJ’s order was based on unlawful presence | Court: §1252(a)(2)(C) applies only where the IJ’s final order is based on a covered criminal offense; jurisdiction exists here |
| Whether the IJ/BIA improperly discounted Manning’s credible testimony without adequate explanation | Manning: IJ found him credible yet dismissed his testimony as insufficient without explaining what corroboration was reasonably required | Gov’t: IJ properly weighed evidence and found record insufficient to meet CAT burden | Court: Reversible error — IJ credited Manning but failed to explain why additional corroboration was necessary or unavailable |
| Whether the IJ/BIA failed to consider material evidence supporting likelihood of torture (expert affidavit, threats, family declarations) | Manning: IJ/BIA ignored or failed to address unrebutted, material evidence (Dr. Harriott’s affidavit; contemporaneous threats; family/nephew declarations) | Gov’t: Evidence was generalized, dated, or insufficient to show present risk | Court: IJ/BIA erred by overlooking and failing to meaningfully address material evidence; remand required |
| Whether the agency improperly placed burden on Manning to prove internal relocation impossible | Manning: Regulations require consideration of relocation evidence but do not place on petitioner the burden to disprove relocation | Gov’t: Applicant must show internal relocation not possible to meet CAT standard | Court: IJ erred in treating inability to relocate as petitioner’s burden and in assuming relocation can be satisfied by requiring incommunicado isolation; remand required |
Key Cases Cited
- Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883 (2018) (textual/statutory-context approach to statutory interpretation)
- Zhang v. INS, 274 F.3d 103 (2d Cir. 2001) (scope of criminal-alien bar and courts’ jurisdiction to determine conviction-related facts)
- Flores v. Holder, 779 F.3d 159 (2d Cir. 2015) (jurisdictional analysis under §1252(a)(2)(C))
- Ortiz-Franco v. Holder, 782 F.3d 81 (2d Cir. 2015) (inquiry whether alien was charged and ordered removable for a covered crime)
- Diallo v. INS, 232 F.3d 279 (2d Cir. 2000) (requirements when credible testimony is discounted for lack of corroboration)
- Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) (vacatur when IJ dismisses testimony as uncorroborated without explaining materiality/availability)
- Wang v. B.I.A., 437 F.3d 270 (2d Cir. 2006) (agency must demonstrate it considered material evidence)
- Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) (CAT standard requires objective evidence showing likelihood of future torture)
- INS v. St. Cyr, 533 U.S. 289 (2001) (presumption of judicial review of administrative action)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (ambiguities in deportation statutes construed in favor of alien)