KENNETH MANNING, AKA Anthony Manning, AKA Bud Manning, AKA Kenny Manning, Petitioner, v. WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.
Docket No. 17-2182-ag
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 31, 2020
August Term, 2018 (Argued: June 14, 2019)
Before: POOLER, CHIN, and SULLIVAN, Circuit Judges.
GRANTED and REMANDED.
Judge Sullivan dissents in a separate opinion.
EDMUND POLUBINSKI III (Daniel S. Magy, on the brief), Davis Polk & Wardwell LLP, New York, NY, for Petitioner Kenneth Manning.
SCOTT STEWART (Carl McIntyre, Assistant Director, Nancy Friedman, Senior Director, on the brief), for Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent William P. Barr, United States Attorney General.
We hold that the jurisdictional provision in
BACKGROUND
Kenneth Manning came to the United States from Kingston, Jamaica in 1985. Three years later, Manning was arrested by federal authorities in a sweep of arrests of associates of a Jamaican gang known as the Renkers Posse.
Delroy Edwards, who was then the leader of the Renkers Posse, was also apprehended. At the time the United States Attorney for the Eastern District of
Manning is related to Edwards through a half-sibling and they came from the same neighborhood in Jamaica. The two were “like brothers” growing up—they formed the Renkers Posse together as teenagers. CAR at 527. After Manning‘s arrest, he agreed to cooperate with the government in its prosecution of Edwards. He provided information about criminal acts not alleged in the indictment and testified at trial. His testimony was, according to the government in its sentencing letter, “critical to virtually the entire case” and the “centerpiece” of Edwards‘s conviction on four murder charges. CAR at 564. The government explained that it could not “overstate the fullness, completeness, and value of [Manning‘s] cooperation,” and that he “continues to provide important assistance in related cases.” Id.
As part of his protective custody, Manning was kept in a separate section from the prison‘s general population. Special arrangements had to be made when he used common areas such as the cafeteria, the medical unit, and the library. Manning identified himself to other inmates by his initials, and his visitors had to first be vetted by an office in Washington D.C. Every six months for 28 years in two different federal prisons, the government reviewed Manning‘s protective custody status and affirmed his placement each time.
When Manning was granted parole in August 2016, the Department of Homeland Security served him with a Notice to Appear and charged him as removable for being “present in the United States without being admitted or paroled.” CAR at 942. The IJ determined that Manning was removable as charged and designated Jamaica as the country of removal. Manning filed an
Manning submitted testimony and documentary evidence in support of his application, and the IJ held a hearing. The IJ determined that the testimony was credible but concluded that Manning was no longer in danger, reasoning that Manning had not established that anyone in Jamaica “intend[ed] to torture him because he testified against a different gang member some 20 years ago” and that he had “not established that he could not relocate to another part of Jamaica . . . where he could live without being identified.” CAR at 68. After Manning appealed, the BIA affirmed the denial, adopting the IJ‘s conclusions on the basis that Manning had “not established that the [IJ‘s] determination on the likelihood of torture was clearly erroneous.” CAR at 4. The BIA found “no clear error in the manner in which the [IJ] weighed the evidence of record.” CAR at 4.
Manning next petitioned this Court for review of the BIA‘s order and also moved for a stay of removal, to proceed in forma pauperis, and for assignment of pro bono counsel. The government filed a motion to dismiss the appeal for lack of jurisdiction. This Court granted Manning‘s motions and instructed counsel “to
DISCUSSION
I. Jurisdiction
The government argues that this Court lacks jurisdiction to review Manning‘s petition pursuant to
Manning argues that this Court retains jurisdiction for three reasons: (1) Section 1252(a)(2)(C) does not bar jurisdiction because Manning was not removed on the basis of his criminal convictions; (2) despite this Court‘s precedent to the contrary, Section 1252(a)(2)(C) does not apply to petitions challenging denials of applications for deferral of removal; and (3) even if Section 1252(a)(2)(C) does apply to limit jurisdiction, this Court should consider Manning‘s appeal because this Court retains jurisdiction over questions of law under Section 1252(a)(2)(D). We agree with Manning‘s first argument. We hold
In interpreting the terms of a statute, “our analysis begins with the text” of Section 1252(a)(2)(C), “and we look to both the language itself and the specific context in which that language is used.” Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (internal quotation marks and brackets omitted) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Otherwise, “words will be interpreted as taking their ordinary, contemporary, common meaning.” Arriaga v. Mukasey, 521 F.3d 219, 225 (2d Cir. 2008) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)).
The statutory language at issue states that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [certain sections of the statute].”
We disagree. A fair reading of “is removable,” when juxtaposed with the first part of the provision, makes clear that it refers back to the “final order or removal” mentioned earlier. The two phrases are not, as the government suggests, separate and unrelated requirements. Put another way, if an order is “final” then the person must have been ordered removed for some reason. And if that person is removable “by reason of having committed a criminal offense” then the order must have been predicated on the person having committed one of the covered criminal offenses. To conclude otherwise—that “removable by reason of having committed a criminal offense” means that a person merely could have been found removable based on a covered offense no matter what the basis of the IJ‘s determination in the final order of removal—unmoors the second part of the provision from the first part and belies the plain text when both are read together.
We join the majority of the other circuits that have considered the issue and hold that the jurisdictional provision in Section 1252(a)(2)(C) is limited to cases where the IJ has charged a petitioner removable based on covered criminal activity. See Mena-Flores v. Holder, 776 F.3d 1152, 1157-60 (10th Cir. 2015);
Our conclusion is also consistent with this Circuit‘s precedent. See Flores v. Holder, 779 F.3d 159, 163 n.1 (2d Cir. 2015) (rejecting government‘s assertion of lack of jurisdiction pursuant to Section 1252(a)(2)(C) because (1) petitioner “was not, however, found removable for having committed an aggravated felony,” and (2) in any event, “we retain jurisdiction to review constitutional claims and questions of law” (internal quotation marks)); see also Ortiz-Franco v. Holder, 782 F.3d 81, 90-91 (2d Cir. 2015) (“[T]he applicability of § 1252(a)(2)(C) is a straightforward inquiry: Was the alien charged with removability because of a relevant crime, and did the IJ correctly sustain that charge?“(internal quotation marks omitted)). Contrary to the government‘s argument, our decision in Qui Guan Di Zhang v. INS, 274 F.3d 103 (2d Cir. 2001), does not require a different
Likewise, our interpretation comports with a) due process, which affords a petitioner the right to notice and a fair opportunity to be heard—before the case reaches the Court of Appeals, see Ali v. Reno, 22 F.3d 442, 448 (2d Cir. 1994); b) the “strong presumption of judicial review of administrative action[s],” INS v. St. Cyr, 533 U.S. 289, 298 (2001); and c) the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
Here, as the motions panel already noted, Manning was “not ordered removed on the basis of his criminal conviction.” Dkt. No. 42 at 1; see also CAR at 942 (Notice to Appear charging Manning only with being “present in the United States without being admitted or paroled“). As such, Section 1252(a)(2)(C) does not limit this Court‘s jurisdiction over Manning‘s petition.
Where the “BIA adopt[s] and affirm[s] the IJ‘s decision, we review the two decisions in tandem.” Ruqiang Yu v. Holder, 693 F.3d 294, 297 (2d Cir. 2012). In doing so, we review questions of law de novo, Harbin v. Sessions, 860 F.3d 58, 63 (2d Cir. 2017), and factual findings under the substantial evidence standard, Kone v. Holder, 596 F.3d 141, 146 (2d Cir. 2010). The substantial evidence standard requires that factual findings “be supported by reasonable, substantial and probative evidence in the record when considered as a whole.” Kone, 596 F.3d at 146 (internal quotation marks omitted). It requires “a certain minimum level of analysis from the IJ and BIA, as well as some indication that the IJ considered material evidence supporting a petitioner‘s claim.” Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010) (internal quotation marks omitted). This Court will “vacate and remand for new findings . . . if the agency‘s reasoning or its factfinding process was sufficiently flawed.” Xiao Kui Lin v. Muaksey, 553 F.3d 217, 220 (2d Cir. 2009).
The CAT prohibits the government from removing Manning to any country where it is “more likely than not that he . . . would be tortured.”
Manning argues that the BIA‘s denial of Manning‘s CAT claim was legally erroneous and not supported by substantial evidence for three reasons: (1) the IJ and BIA discounted Manning‘s credible testimony without proper explanation; (2) the IJ and BIA ignored substantial and material evidence that Manning is likely to be killed if removed to Jamaica; and (3) the IJ and BIA erred in requiring Manning to prove that he could not relocate to another part of Jamaica in order to establish his CAT claim. We agree as to each and address each argument in turn.
In making a credibility determination, the IJ is to “[c]onsider[] the totality of the circumstances, and all relevant factors.”
We have before vacated and remanded where, for example, “the IJ identified no inconsistencies in the [petitioner‘s] testimony and made no adverse credibility finding, [but] apparently dismissed significant portions of the [petitioner‘s] testimony as uncorroborated, without discussing whether such corroboration would have been obviously material and reasonably available.” Poradisova v. Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (citing Diallo, 232 F.3d at 287-89). We have similarly done so where the IJ identified specific documents needed
Here, the IJ determined that Manning was credible: “I do find in this case that [Manning] has been a credible witness, so credibility is not at issue. [Manning] has testified candidly and consistently with his earlier submissions and I have no reason at this point to doubt his credibility.” CAR at 62. Manning‘s credible testimony included that he broke the code of silence in Jamaica, which is punishable by death; that it is common knowledge that he informed on dangerous criminals; that he “is getting out [of prison] soon,” CAR at 167, so that it would become common knowledge if he were to return to Jamaica because he and Edwards share familial and social connections; and that he received death threats during his incarceration warning him that he would be killed if he returned to Jamaica.
Yet the IJ concluded that “although [Manning] has testified credibl[y] . . .I do not find he has met his burden of proof that it is more likely than not that he would suffer torture” if removed to Jamaica. CAR at 67.
In finding that Manning‘s credible testimony (and also Dr. Harriott‘s corroborating affidavit) was insufficient, the IJ determined—and the BIA agreed—that Manning‘s “fear concerning future torture appears to be
B. Consideration of Evidence
The IJ and BIA also ignored substantial and material evidence that Manning is likely to be killed if removed to Jamaica. “In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered. . . .”
From the outset, we find error in the IJ‘s and BIA‘s failure to consider the unrebutted expert affidavit of Dr. Harriott, which we assume to be credible. See Chen, 417 F.3d at 272. As discussed in Section II.A, supra, Dr. Harriott concluded that Manning‘s life was still at risk if he were removed to Jamaica. And “it is not sufficient simply to ignore” Dr. Harriott‘s affidavit “when announcing a conclusion” regarding likelihood of torture. Chen, 417 F.3d at 272.4 Instead, the IJ
The IJ and BIA further erred in failing to consider significant and material evidence of the death threats Manning received. He stated in a declaration submitted to the IJ that everyone in his family in Jamaica knew he informed on the gang, and that his family members were afraid to attend his immigration proceedings out of fear that they would be perceived as associating with him. According to Manning, Edwards‘s family, too, made clear that the threat persisted—including one family member saying that if Manning returns to
My mother is considered like an outcast in her family because Kenneth informed.
. . .
[Edwards] used to be the one who gave [the community members] money. They look at him as a big shot and he was taking care of them down there even when he was in the United States. They blame Kenneth for the loss of that support.
Delroy has two siblings in Jamaica . . . . He also has many children.
. . .
People don‘t forgive in Jamaica. I believe that if my uncle Kenneth is deported to Jamaica, I wouldn‘t give it a month before he is murdered....
I believe that if he is deported, [Edwards‘s] siblings will learn that Kenneth is out and then someone will kill him. The attitude is, we are going to teach him how to keep his mouth shut. People in the posses down there know Kenneth and [Edwards].
CAR at 543-44.
For his part, Edwards, while incarcerated, published a blog in 2015 that specifically mentioned Manning‘s cooperation with the government, and called those that testified against him “rats.” CAR at 600. He wrote that the cooperators
This evidence is material to the possibility of Manning‘s future torture. There was no evidence before the IJ or BIA that placed a time limit on the danger. In fact, as noted above, the government reviewed Manning‘s protective custody status every six months for 28 years and affirmed his placement each time. Because the IJ and BIA erred in overlooking material evidence, we must vacate and remand.
C. Internal Relocation
“In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including . . . [e]vidence that the
The governing regulations, to be sure, do not require an applicant to prove that it is not possible to relocate to a different area of the country in order to evade torture. The IJ erred as a matter of law in placing such a burden on Manning. See CAR at 68 (stating that Manning‘s claim failed in part because he “has not established that he could not relocate to another part of Jamaica . . . where he could live without being identified“). The government argues, without citing to any regulation or precedent from this Circuit, that “[a] CAT applicant always has the burden to establish that internal relocation is not possible.” Gov‘t Br. at 27. We disagree. That the IJ shall consider “[e]vidence that the applicant could relocate” does not mean there is a burden on the applicant to establish relocation is not possible.
Even more problematic is the IJ‘s supposition that Manning could avoid torture in Jamaica by simply cutting off all contact with his family and friends:
“[T]here is no reason why he could not go back to Jamaica and relocate to another part without contacting his family or placing anyone on notice he is back.” CAR at 68. We have never before held that internal relocation is satisfied by assuming that a petitioner must essentially live incommunicado and isolated from loved ones. And we decline to do so here. Cf. Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir. 2005) (“[I]t will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by locating him to another part of the country.“).
CONCLUSION
For the foregoing reasons, Manning‘s petition for review is thus GRANTED and his application for deferral of removal under the CAT is REMANDED for further proceedings consistent with this opinion.
Unlike the majority, I find that the plain text of the criminal alien bar,
[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a [covered] criminal offense . . . .
But the criminal alien bar supplies no support for this interpretation of its text. Likewise, the broader statutory scheme counsels against such a reading. And even if this Court did have jurisdiction, I would deny Manning‘s petition to defer his removal under the Convention Against Torture (“CAT“) on the merits. Accordingly, I respectfully dissent.
The criminal alien bar strips this Court of jurisdiction to review final removal orders against “an[y] alien who is removable by reason of having committed” a covered criminal offense.
The plain meaning of the provision‘s language is consistent with the statutory purpose of
The majority argues that this reading “unmoors the second part of the provision from the first part and belies the plain text when both are read together” - i.e., it separates the criminal conviction from the final removal order. But that is problematic only if one starts from the majority‘s conclusion and works backwards. The majority‘s concern for “unmoor[ing]” portions of the text makes sense only if those provisions were intended to be moored together in the first place. But, as discussed above, nothing in the text of the criminal alien bar supports that proposition. Indeed, had Congress intended to join those two provisions, it easily could have written the statute to do so - e.g., “[N]o court shall have jurisdiction to review any final order of removal against an alien who has been ordered removed by reason of having committed a criminal offense . . . .”
The majority‘s interpretation is further belied when placed within the broader statutory scheme. As used throughout the statute, the terms “removable”
Moreover, while it is true that determinations of whether an alien is “removable” are generally left to the Immigration Judge (“IJ“) under
Here, there is no question that Manning is removable by reason of having been convicted of an aggravated felony - he admits as much.1 The criminal alien bar therefore plainly applies to Manning‘s removal order. And while a limited exception to this bar exists for “certain legal claims,”
But even if this Court had jurisdiction, I would deny Manning‘s petition on the merits.
Manning relies on a chain of suppositions to argue that he is “more likely than not . . . [to] be tortured if removed” to Jamaica.
When considered as a whole, the record amply supports the IJ‘s rejection of Manning‘s application. First, much of Manning‘s evidence is far too general to be accorded great weight. For instance, though Manning states that he is certain that he will be killed for cooperating with prosecutors against members of the Renkers Posse, he admits that he “never really s[ought] [out] any information about the posse” since his placement in protective custody. CAR 193-94. In addition, Manning notes that he served his prison sentence in protective custody. But a finding that Manning would be in danger if he were to be placed in the general prison population in New York does not equate to a finding that his life would be in danger in Jamaica. Indeed, it is not uncommon for cooperating witnesses to be placed in protective custody while they are in prison, given the general antipathy for cooperators among inmates. Lastly, Manning points to a blog post written by Delroy Edwards as proof that he is likely to face torture or death upon his return to Jamaica. But the blog post doesn‘t say anything about Manning (other than listing him among the other codefendants) and merely refers to all of Edwards‘s
Second, much of Manning‘s evidence is so dated as to no longer reliably describe the present circumstances in Jamaica. For instance, while Manning relies on statements from the mother of his children that he is in danger, the two have not spoken in many years (and she has since died). Likewise, Manning relies on a declaration from his nephew, who was last in Jamaica over a decade ago.
Third, the five-page declaration provided by Manning‘s expert witness, Dr. Anthony Harriott, is both highly general and at best ambiguous beyond its conclusory assertion that Manning would be at risk if he were to return to Jamaica. On the one hand, Dr. Harriott concludes that gangs are still quite active in Jamaica and that the police tolerate crime directed at criminals. On the other hand, he states that “torture is illegal” in Jamaica and that the police and army have recently undertaken a series of anti-gang campaigns. CAR 538, 540. Moreover, while Dr. Harriott states that many “Southside gangs” are still active in Jamaica, he does not indicate that the Renkers Posse is one of those gangs, nor does he describe the existence of a relationship between the Renkers Posse and the active gangs that
Fourth, Manning‘s ability to relocate in Jamaica is a relevant factor that the IJ was permitted to consider when engaging in the CAT analysis.
At bottom, Manning bore the burden of showing that his removal would “more likely than not” result in his torture.
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Accordingly, because this Court lacks jurisdiction to review Manning‘s removal, and because, even on the merits, Manning has failed to demonstrate that he is more likely than not to be tortured if he returns to Jamaica, I would deny the petition.