891 F.3d 42
1st Cir.2018Background
- Nigel Hopeton Morris, a Jamaican-born lawful permanent resident, was convicted in Massachusetts (2013) of indecent assault and battery, assault to rape, and assault and battery; sentenced to five years.
- DHS initiated removal proceedings (2016) based on a conviction involving moral turpitude; Morris conceded removability and was ineligible for asylum/withholding.
- Morris sought deferral of removal under the CAT (8 C.F.R. §1208.17), claiming a Jamaican gang leader, Owen Clarke, threatened to kill him and has ties to corrupt Jamaican Constabulary Force (JCF) officers.
- Evidence included Morris’s testimony and declaration, country reports and news articles on Jamaican police corruption, and expert testimony from Anthony Harriott (criminal-justice professor) about gang–police links in Jamaica.
- The IJ found Morris failed to show it was more likely than not Clarke would target him, and independently found Harriott’s testimony speculative as to whether Clarke would enlist JCF involvement; the BIA affirmed.
- Morris petitioned for review challenging the denial of CAT deferral; the government argued lack of jurisdiction under 8 U.S.C. §1252(a)(2)(C) for aliens removable based on certain criminal convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under §1252(a)(2)(C) given Morris’s criminal convictions | Morris: exception for questions of law (§1252(a)(2)(D)) permits review of legal errors; also contends orders denying CAT deferral may not fall under the bar | Government: §1252(a)(2)(C) bars review of final orders of removal for aliens removable due to qualifying crimes | Court: Morris may invoke the §1252(a)(2)(D) exception for legal claims, but his asserted legal errors fail on the merits; even assuming jurisdiction, substantial evidence supports denial, so petition denied |
| Whether IJ/BIA committed legal error by ignoring documentary evidence / misapprehending Morris’s argument (Mukamusoni claim) | Morris: IJ focused only on expert testimony and misread his argument, thus failing to consider relevant record—legal error depriving due process | Government: IJ considered background documentary evidence and weighed all evidence; no legal error | Held: No legal error; IJ expressly considered background evidence and reasonably found Harriott’s testimony speculative |
| Whether Morris met CAT deferral standard (more likely than not torture with government acquiescence) | Morris: documentary reports + expert testimony show rampant police–gang corruption and Clarke likely would use JCF to target him | Government: Evidence is speculative as to Clarke specifically; expert did not say it was more likely than not Clarke would use JCF; country reports are general and do not compel specific inference | Held: Substantial evidence supports IJ/BIA that Morris failed to show it was more likely than not that harm would involve government acquiescence; record does not compel contrary finding |
| Whether orders denying CAT deferral are reviewable at all (circuit split) | Morris: some circuits treat denial as reviewable; §1252(a)(2)(C) shouldn’t apply to deferral orders | Government: precedents treat such denials as barred; several circuits apply the bar | Held: Court declines to resolve split; even assuming reviewability, Morris’s claims fail on legal and factual grounds, so petition denied |
Key Cases Cited
- Mukamusoni v. Ashcroft, 390 F.3d 110 (1st Cir.) (agency error for focusing narrowly on parts of record)
- Morgan v. Holder, 634 F.3d 53 (1st Cir.) (standard for rejecting factual findings; record must compel different conclusion)
- Gourdet v. Holder, 587 F.3d 1 (1st Cir.) (treatment of deferral denials under jurisdictional bar)
- Magasouba v. Mukasey, 543 F.3d 13 (1st Cir.) (same)
- Ortiz-Franco v. Holder, 782 F.3d 81 (2d Cir.) (deferral-denial reviewable)
- Saintha v. Mukasey, 516 F.3d 243 (4th Cir.) (deferral-denial reviewable)
- Balogun v. Ashcroft, 270 F.3d 274 (5th Cir.) (deferral-denial reviewable)
- Ventura-Reyes v. Lynch, 797 F.3d 348 (6th Cir.) (deferral-denial reviewable)
- Wanjiru v. Holder, 705 F.3d 258 (7th Cir.) (deferral-denial not reviewable)
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir.) (deferral-denial not reviewable)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (discussing limits on judicial review of immigration decisions)
- Mahadeo v. Reno, 226 F.3d 3 (1st Cir.) (explaining §1252(b)(9) zipper clause)