Ray Fuller v. Jefferson Sessions III, 879 F.3d 265

Ray Fuller, a Jamaican national, faces removal after the BIA denied withholding under INA and CAT; this court previously declined to review the BIA’s “particularly serious crime” characterization of his 2004 conviction in Fuller v. Lynch.
Fuller claims bisexuality and danger if returned to Jamaica; IJ found his sexual-orientation testimony not credible, a finding the BIA affirmed.
After this court’s decision, Fuller submitted new affidavits from three Jamaican acquaintances alleging past attacks and risk, and moved to reopen/reconsider; the BIA denied the motion as untimely and number-barred.
Fuller did not initially receive the BIA’s order; after reissuance he filed a timely petition for review and interim pro se motions: (1) stay of removal; (2) in forma pauperis.
The government argues Fuller’s motion remains untimely/number-barred and that the new affidavits would not change the IJ’s credibility determination; it also cites public interest in prompt removals.
The court denied the stay of removal but granted Fuller’s motion to proceed in forma pauperis, noting discretion limits on reviewing BIA denials of motions to reopen while expressing concern about the grave risk to Fuller if removed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA erred in denying Fuller’s motion to reopen as untimely and number-barred	Fuller: new affidavits were previously unavailable due to lack of counsel and fear of retaliation; they show risk if returned	Gov: motion remains untimely/number-barred; exceptions don't apply; public interest favors removal	Denial of reopening rests largely in BIA discretion and is generally unreviewable; court did not grant relief on reopening at this stage
Whether the new evidence undermines the IJ’s credibility finding about Fuller’s sexual orientation and CAT risk	Fuller: new witness statements corroborate past attacks and show anti-gay danger in Jamaica	Gov: new evidence would not overcome IJ’s credibility findings; Board considered evidence and was not persuaded	Court noted BIA/IJ considered the evidence and discretion in credibility determinations; did not overturn credibility finding
Whether to stay removal pending review	Fuller: imminent risk of death if removed; requests stay to allow review and counsel recruitment	Gov: stresses timely enforcement of removal orders and that procedural bars apply	Court denied stay, expressing grave concern but concluding relief not warranted on submitted record
Whether to allow in forma pauperis status	Fuller: cannot afford costs	Gov: no argument denying indigency relief presented	Court granted in forma pauperis to allow Fuller to pursue his petition for review

Fuller v. Lynch, 833 F.3d 866 (7th Cir. 2016) (prior panel decision refusing to review BIA characterization of conviction and addressing credibility/CAT issues)
Pilch v. Ashcroft, 353 F.3d 585 (7th Cir. 2003) (BIA denial of motion to reopen is discretionary and generally unreviewable)
Joseph v. Lynch, 793 F.3d 739 (7th Cir. 2015) (courts may review legal and constitutional claims and whether the BIA considered all relevant evidence when denying reopening)