Jude Jeremiah v. Attorney General United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2050

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JUDE SISSINDRIN JEREMIAH,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A087-023-184)

Immigration Judge: Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 20, 2021

Before: MCKEE, SHWARTZ and MATEY, Circuit Judges

(Opinion filed: January 13, 2022)

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OPINION*

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PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Jude Sissindrin Jeremiah petitions for review of a final order of removal. For the

reasons detailed below, we will deny the petition.

I.

Jeremiah is a Grenadian citizen who entered the United States on a B-2 visitor visa

in 1998. He overstayed his visa. In 2019, the Department of Homeland Security charged

him with removability under 8 U.S.C. § 1227(a)(1)(B), as a noncitizen present without

authorization. Jeremiah applied for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). He alleged a fear of future harm on

account of his “American nationality” and his membership in a particular social group

(PSG) that he defines as “criminal deportees to Grenada.” He also applied to adjust his

status based on his citizen-wife’s approved I-130 Petition for Alien Relative.

During hearings before an Immigration Judge (IJ), Jeremiah testified that he is

married to a United States citizen and has a citizen son. Jeremiah’s mother also lives in

the United States, as a lawful permanent resident. He told the court that he has no

relatives in Grenada and is concerned that he would be unable to find work if forced to

return. He stated that he is afraid of his deceased aunt’s husband, who was formerly

imprisoned for killing his aunt. He is also afraid of his father, who abused him as a child.

Jeremiah conceded, however, that he has no reason to believe that his aunt’s husband

would want to harm him, and he does not know whether his father currently lives in

Grenada. Jeremiah was also questioned about his criminal record, which includes

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convictions for possession of a forged document and criminal possession of a firearm, an

arrest for assault, and at least two incidents of domestic violence.

Jeremiah’s wife and mother also testified at the hearings. They stated that they

would suffer financial and emotional hardship if Jeremiah were removed, and that they

would have difficulty managing without him due to their health conditions. With respect

to Jeremiah’s criminal history, they both told the court that Jeremiah had become more

responsible.

The IJ found that Jeremiah was credible and that he had sufficiently corroborated

his claims but nonetheless denied all three applications for relief. The IJ first determined

that Jeremiah’s asylum application was untimely because it had not been filed within one

year of his 1998 arrival and none of the exceptions to the filing period applied. Next, the

IJ determined that Jeremiah was ineligible for withholding of removal because his 2015

conviction for possession of a firearm constituted a “particularly serious crime.”

Alternatively, the IJ determined that Jeremiah would not qualify for asylum or

withholding of removal based on his proposed PSGs because (a) “criminal deportees” is

not a cognizable PSG and (b) he is not an “American national.” The IJ also determined

that Jeremiah did not have an objectively reasonable fear of future persecution because he

had not shown either that he would be singled out for persecution or that there is a pattern

or practice of persecution of similarly situated individuals. Next, the IJ denied Jeremiah

protection under the CAT, rejecting his fear of “extreme economic disadvantage” and

concluding that he had not shown that any harm would likely come to him or that such

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harm would be with the acquiescence of a public official. Lastly, the IJ determined that

although Jeremiah was statutorily eligible to adjust his status, he did not merit relief as a

matter of discretion given his extensive criminal history.

Upon review, the Board of Immigration Appeals (BIA or Board) affirmed the IJ’s

decision and dismissed the appeal. The Board explained that even assuming that

Jeremiah’s asylum application was timely, and that his application for withholding of

removal was not barred by his having committed a particularly serious crime, Jeremiah

nonetheless was not eligible for these forms of relief because: (1) his proposed PSG—

"criminal deportees to Grenada”—was not cognizable;1 and (2) he had not shown that he

has an objectively reasonable fear of persecution as a criminal deportee. Next, the Board

affirmed the IJ’s denial of CAT protection, concluding that Jeremiah’s fear of “extreme

economic disadvantage” did not amount to “severe mental or physical pain and suffering”

as contemplated by the regulations. With respect to Jeremiah’s application for

adjustment of status, the Board found no clear error in the IJ’s findings of fact and agreed

with the IJ that a favorable exercise of discretion was not warranted.

Jeremiah now petitions for review of the BIA’s order.

II.

1

The BIA noted that Jeremiah did not challenge the IJ’s determination that he had not

established eligibility based on his “American nationality.” Therefore, the BIA deemed

this theory of relief waived. See In re R-A-M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012).

To the extent that Jeremiah now challenges the IJ’s ruling in this regard, we lack

jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Nkomo v. Att’y Gen., 986 F.3d

268, 272 (3d Cir. 2021).

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We have jurisdiction to review a final order of removal under 8 U.S.C.

§ 1252(a)(1). “Because here the BIA adopted and affirmed the IJ’s decisions and orders

as well as [conducted] an independent analysis, we review both the IJ’s and the BIA’s

decisions and orders.” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018)

(quotation marks omitted). We review the BIA’s legal determinations de novo and its

factual findings for substantial evidence. Briseno-Flores v. Att’y Gen., 492 F.3d 226,

228 (3d Cir. 2007).

III.

Jeremiah primarily challenges the BIA’s determination that his proposed PSG—

“criminal deportees to Grenada”—is not cognizable. As the BIA correctly noted,

however, we have made clear that “criminal deportees are not recognized as a social

group.” Toussaint v. Att’y Gen., 455 F.3d 409, 418 (3d Cir. 2006) (“[W]e hardly can

conceive that Congress would select criminals as a group warranting special protection in

removal cases.”); accord Elien v. Ashcroft, 364 F.3d 392, 397 (1st Cir. 2004) (explaining

that it would be unsound policy to recognize “criminal deportees” as a PSG because it

would “unquestionably create a perverse incentive for Haitians coming to or residing in

the United States to commit crimes, thereby immunizing themselves from deportation to

Haiti”).2

2

Jeremiah challenges the agency’s PSG analysis on the ground that the BIA and IJ relied

in part on the standard set forth in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018),

which has since been vacated. In A-B-, 28 I. & N. Dec. 307, 309 (A.G. 2021), the

Attorney General vacated the original A-B- and directed “immigration judges and the

Board [to] follow pre-A-B-[ ] precedent.” The BIA did not cite A-B- at all—relying

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Jeremiah raises several additional challenges to the agency’s determination that he

failed to establish eligibility for asylum or withholding of removal. For example, he

argues that the IJ erred in determining that his asylum application was time-barred and

that his 2015 conviction for possession of a firearm constituted a “particularly serious

crime.” As previously noted, however, the BIA did not affirm the IJ’s decision on these

grounds; rather, the BIA affirmed on the alternative ground that Jeremiah’s proposed

PSG was not cognizable. Jeremiah also challenges the BIA’s determination that he had

not shown an objective fear of future persecution, and he further argues that the BIA

erroneously imposed a subjective fear requirement. But because the BIA rejected the

proposed PSG underlying this claim, Jeremiah’s arguments in this regard are irrelevant.

We have considered Jeremiah’s remaining arguments and conclude that they are

meritless.3 Accordingly, we will deny the petition for review. The motion for

appointment of counsel is denied.

instead on Toussaint—and the IJ cited it as simply reaffirming pre-A-B- case law on the

criteria comprising PSGs. As a result, the Attorney General’s recent decision does not

affect this case.

3

Jeremiah pursued his CAT claim and application for adjustment of status in his opening

brief, but he explicitly abandoned these claims in his reply.

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