Walcott Gray v. Loretta E. Lynch
674 F. App'x 762
| 9th Cir. | 2017Background
- Petitioner Walcott Edmond Gray, a Belizean national, appealed the BIA’s dismissal of his appeal from an IJ decision finding him removable and denying asylum, withholding of removal, and CAT relief.
- Gray had a drug-trafficking conviction classified as an aggravated felony; the agency treated it as presumptively a “particularly serious crime” for withholding-of-removal purposes.
- Gray argued he rebutted the presumption (including pointing to marijuana legalization in some U.S. states) and challenged the agency’s factual assessment.
- The BIA denied withholding and CAT relief; the IJ/BIA found he had not shown it was more likely than not he would be tortured in Belize with government consent or acquiescence.
- The Ninth Circuit reviewed legal questions de novo and CAT denial for substantial evidence, denied the petition in part and dismissed it in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gray’s drug-trafficking aggravated-felony conviction is a particularly serious crime making him ineligible for withholding | Gray argued he rebutted the presumption and that the conviction should not bar withholding | Government argued aggravated felony with drug trafficking element is presumptively particularly serious | Court held the agency used the correct standard and the presumption applies (Rendon) |
| Whether the court can review the BIA’s discretionary factual rejection of Gray’s attempt to rebut the presumption | Gray argued the BIA incorrectly assessed the facts and failed to credit his rebuttal | Government argued discretionary factual determinations are not reviewable under §1252(a)(2)(D) | Court dismissed this challenge for lack of jurisdiction (Pechenkov) |
| Whether the BIA treated the conviction as a per se particularly serious crime or ignored marijuana-legalization evidence | Gray claimed the agency applied a per se rule and failed to consider legalization arguments | Government pointed to the record showing the BIA considered arguments and addressed issues | Court held record did not support those contentions; BIA sufficiently addressed Gray’s arguments (Najmabadi standard) |
| Whether denial of CAT deferral was supported by substantial evidence | Gray argued country conditions and risk of government-acquiesced torture support CAT relief | Government argued record does not show likelihood of torture by or with government consent/acquiescence | Court held substantial evidence supports denial of CAT deferral; BIA did not ignore country-condition evidence |
Key Cases Cited
- Coronado v. Holder, 759 F.3d 977 (de novo review of legal questions)
- Silaya v. Mukasey, 524 F.3d 1066 (substantial-evidence standard for CAT deferral review)
- Rendon v. Mukasey, 520 F.3d 967 (aggravated felony with drug-trafficking element presumed particularly serious)
- Pechenkov v. Holder, 705 F.3d 444 (jurisdictional bar to reviewing factual assessment of rebuttal to particularly-serious-crime presumption)
- Najmabadi v. Holder, 597 F.3d 983 (BIA must address issues raised sufficiently to show consideration)
- Cole v. Holder, 659 F.3d 762 (BIA need not discuss every piece of evidence)