Chadrick Calvin Cole v. U.S. Attorney General

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-15557

________________________

Agency No. A058-741-346

CHADRICK CALVIN COLE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(March 14, 2013)

Before O’CONNOR, * Associate Justice Retired, and MARCUS and PRYOR,

Circuit Judges.

MARCUS, Circuit Judge:

At issue in this appeal is whether the Board of Immigration Appeals (“BIA”)

correctly found petitioner Chadrick Cole removable as an aggravated felon, and

*

Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme

Court, sitting by designation.

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whether its denial of his application for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (“CAT”) was proper. The

BIA found Cole removable and denied his claims for asylum and withholding of

removal because his underlying offense -- pointing a firearm at another person, in

violation of S.C. Code § 16-23-410 -- was a particularly serious crime of violence

that disqualified him from those forms of relief. The BIA further denied his claim

for CAT relief based for the most part on factual determinations that he would not

be tortured upon return to his native Jamaica. After thorough review, we deny

Cole’s petition.

I.

A.

The relevant facts are these. Petitioner Chadrick Cole is a native and citizen

of Jamaica who was born on November 7, 1988. Cole was admitted into the United

States as a lawful permanent resident in 2006.

On April 6, 2009, Cole violated a South Carolina criminal statute, S.C. § 16-

23-410, which criminalizes pointing a firearm at another person. Cole pleaded

guilty to the offense in a South Carolina Court of General Sessions and was

sentenced, under the South Carolina Youthful Offender Act (“SCYOA”), to an

indeterminate term of imprisonment not to exceed five years. On November 12,

2010, the Department of Homeland Security (“DHS”) sought to remove Cole

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pursuant to two sections of the Immigration and Nationality Act (“INA”): Title 8

U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(E); and 8 U.S.C. § 1227(a)(2)(C), for having

been convicted of a firearms offense.

The DHS later amended the charge of removability pursuant to

§ 1227(a)(2)(A)(iii) and alleged, in addition to the original charges, that Cole also

was convicted of an aggravated felony as defined by § 1101(a)(43)(F), which

covers crimes of violence for which the term of imprisonment is at least one year.

Soon thereafter, Cole submitted an application for asylum, withholding of removal,

and relief under the CAT. Cole also moved for a continuance so that he could

obtain additional documentary evidence from Jamaica, but the IJ denied this

motion and scheduled a hearing for Cole’s application.

At the hearing, Cole offered three distinct theories in support of his claims

for asylum, withholding of removal, and CAT relief. First, Cole’s developmental

disabilities would make him a target for discrimination or persecution against

disabled individuals. Second, Cole’s status as a deportee would result in

government abuse, including police profiling. Finally, his family’s involvement

with the People’s National Party (“PNP”) would make Cole a target of politically

motivated violence from the Jamaica Labour Party (“JLP”), the PNP’s primary

political rivals.

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Cole testified, and his mother Monica Singleton and his sister Annakay

Charles corroborated, that he was born with his throat attached to his lungs, suffers

from narcolepsy or a similar sleeping disorder, and has a severe learning disability.

Due to his disabilities, he was teased and beaten up by other children in his age

cohort while living in Jamaica. In addition, Cole presented evidence that, if

returned to Jamaica, he would have difficulty obtaining employment or access to

adequate health care. Cole also testified that he feared returning to Jamaica as a

deportee, because he had heard from people in Jamaica that most deportees die

upon returning there. He heard that deportees are temporarily detained in a jail

called “Central” upon their return to Jamaica, although he had never seen “Central”

himself. Finally, Cole testified that his father and his brother Kevin were

supporters of the PNP, which is engaged in a struggle for political power with the

JLP. In 2000, political rivals shot Kevin, who is now confined to a wheelchair and

currently in hiding. Cole testified to his fear that, if returned to Jamaica, he would

be the target of politically motivated violence. During cross-examination, Cole

admitted, however, that he could relocate to a safer town where people were not

aware of his political associations.

B.

On June 20, 2011, the IJ issued a written decision denying Cole’s

application for asylum, withholding of removal, and CAT protection, and ordered

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him removed to Jamaica. The IJ first held that Cole’s SCYOA conviction

constituted a “conviction” as defined in the INA. The IJ next held that Cole was

removable under the government’s two 8 U.S.C. § 1227(a)(2)(A)(iii) charges and

the § 1227(a)(2)(C) charge. In relevant part, the IJ held that Cole’s conviction was

a “crime of violence” because it was an offense that has as an element the

“threatened use of physical force against the person . . . of another.” Cole’s term of

imprisonment for this offense exceeded one year, and therefore Cole was

removable under § 1227(a)(2)(A)(iii).

Because Cole was convicted of an aggravated felony, the IJ determined he

was ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii), which bars

aggravated felons from obtaining asylum. The IJ also found Cole was ineligible for

withholding of removal due to 8 U.S.C. § 1231(b)(3)(B)(ii), which renders an alien

ineligible for withholding of removal if the alien has been convicted of a

“particularly serious crime,” a term of art that covers aggravated felonies that carry

a term of imprisonment of five years or more. In the alternative, the IJ also denied

the withholding of removal claim on the grounds that, although Cole was credible,

he could not meet his evidentiary burden because he had not proven he was more

likely than not to suffer persecution upon returning to Jamaica.

Finally, the IJ considered Cole’s CAT claims. The IJ made several factual

findings regarding each of Cole’s distinct theories of torture and ultimately rejected

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all three. Regarding Cole’s physical and mental disabilities, the IJ found that “the

Jamaican government is taking commendable steps to actively combat the

marginalization of persons with disabilities in the country.” Thus, there was no

possibility that Cole would be tortured due to his disabilities with the acquiescence

of the government.

As for Cole’s status as a deportee, the IJ did not find substantial evidence in

the record to indicate that the Jamaican government tortured aliens removed to

Jamaica. The documentary evidence indicated that “the Jamaican government has

taken steps to identify dangerous deportees to address a spike in crime that has

been attributed to an increase of Jamaican deportees, not for the illicit purpose of

torturing deportees.” The IJ also held that, even assuming arguendo that Cole’s

allegations of temporary detention were true, they fell short of the legal threshold

for torture established by this Circuit.

Regarding Cole’s claim of imputed political association, the IJ found that

Cole had not established it was more likely than not that he would suffer reprisals

due to his imputed political association. Cole lived in Jamaica from 1988 to 2006 --

a period that included the five years after Kevin was shot -- and never suffered

violence due to his father’s or brother’s political associations. Furthermore,

documentary evidence attested to a decline in political violence in Jamaica in

recent years. Finally, Cole had testified that he could relocate within the country to

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avoid suffering harm due to his imputed political associations. Accordingly, the IJ

denied Cole all three forms of relief he sought and ordered that Cole be removed to

Jamaica. Cole appealed this decision, along with the denial of his motion for a

continuance, to the BIA.

C.

On October 28, 2011, the BIA dismissed Cole’s appeal and upheld most, but

not all, of the IJ’s decision. The BIA first decided that Cole’s SCYOA conviction

was a conviction for immigration purposes. The BIA reasoned that the SCYOA

resulted in convictions, not civil adjudications of status, and thus was unlike

juvenile delinquency proceedings, which the BIA did not treat as convictions for

immigration purposes. The BIA also sustained Cole’s removability pursuant to 8

U.S.C. § 1227(a)(2)(A)(iii), but only upon the final ground in the IJ’s decision: that

Cole was an aggravated felon convicted of a crime of violence. The BIA, however,

proceeded under a different sub-section of the relevant crime of violence definition

-- that Cole’s offense was one that involved a substantial risk that physical force

would be used against the victim -- than the one upon which the IJ had relied. As

the IJ had done, the BIA rejected Cole’s argument that S.C. Code § 16-23-410

lacked a mens rea requirement.

Next, the BIA considered Cole’s applications for asylum and withholding of

removal. Since Cole was an aggravated felon, 8 U.S.C. § 1158(b)(2)(A)(ii) barred

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Cole from a grant of asylum. Moreover, since BIA precedent established that his

indeterminate sentence of up to five years should be treated like a five-year term of

imprisonment, § 1231(b)(3)(B)(ii) barred Cole from withholding of removal. The

BIA then specifically adopted the IJ’s alternative decision denying Cole’s

application for withholding of removal due to a failure of proof. The BIA also

adopted the IJ’s decision denying Cole’s application for CAT relief because the

record did not establish that it was more likely than not that the Jamaican

government, or private actors to whom officials have acquiesced, would subject

Cole to torture. Accordingly, the BIA dismissed Cole’s appeal with regard to the

three forms of relief he sought.

Finally, the BIA rejected Cole’s due process challenge to the IJ’s denial of

his motion for a continuance. The BIA held that there was no prejudice to Cole,

because the documentary evidence sought -- which would have corroborated the

existence of his disabilities, a fact not in dispute -- was not relevant to the reasons

the IJ had denied his claims for relief. Cole timely appealed the BIA’s decision.

II.

We review “only the BIA’s decision,” except to the extent that it “expressly

adopt[s] the IJ’s opinion or reasoning.” Imelda v. U.S. Att’y Gen., 611 F.3d 724,

727 (11th Cir. 2010). As a threshold matter, we determine the extent of our

subject-matter jurisdiction de novo. Amaya-Artunduaga v. U.S. Att’y Gen., 463

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F.3d 1247, 1250 (11th Cir. 2006). Legal and constitutional questions, which this

Court always has jurisdiction to consider, receive de novo review. Poveda v. U.S.

Att’y Gen., 692 F.3d 1168, 1172 (11th Cir. 2012). However, we defer to the BIA’s

permissible construction of ambiguous terms in the Immigration and Nationality

Act (“INA”) under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 104 S. Ct. 2778 (1984). See Poveda, 692 F.3d at 1176. To the extent we

have jurisdiction to do so, we review factual determinations under the substantial

evidence test. Thus, we will affirm if the BIA’s decision “is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Imelda, 611 F.3d at 727 (internal quotation marks omitted). Under this

standard, reversal requires finding “that the record not only supports reversal, but

compels it.” Id. at 728 (quoting Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287

(11th Cir. 2003)).

A number of statutes and regulations govern this appeal. The REAL ID Act

of 2005, Pub. L. No. 109-13, 119 Stat. 302, limits our jurisdiction if the petitioner’s

removability is predicated upon a criminal offense covered in 8 U.S.C.

§ 1227(a)(2)(A)(iii). See 8 U.S.C. § 1252(a)(2)(C), (D). In such cases, “no court

shall have jurisdiction to review any final order of removal,” § 1252(a)(2)(C),

except for “review of constitutional claims or questions of law raised upon a

petition for review.” § 1252(a)(2)(D). “The upshot of all this is that the

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jurisdictional question merges into our consideration of the merits.” Garces. v. U.S.

Att’y Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). The resolution of the first two

issues presented in this appeal -- whether Cole’s conviction qualifies as a

conviction for immigration purposes, and whether Cole’s conviction was a crime

of violence, and hence an aggravated felony -- will determine whether Cole is

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and whether our review of Cole’s

remaining claims can reach factual issues or is limited to legal and constitutional

questions only.

Four statutes are relevant in assessing the merits of Cole’s claims. Title 8

U.S.C. § 1101(a) contains definitions of terms used throughout the INA, including

“conviction,” § 1101(a)(48)(A), “aggravated felony,” § 1101(a)(43), and “term of

imprisonment,” § 1101(a)(48)(B). Section 1227(a)(2)(A)(iii) renders an alien

removable for having committed an aggravated felony. Sections 1158(b)(2)(A)(ii)

and (B)(i) render an alien ineligible for asylum if the basis of removability is an

aggravated felony. Section 1231(b)(3)(B)(ii) renders an alien ineligible for

withholding of removal if he or she has committed a “particularly serious crime,”

which is an aggravated felony (or felonies) for which the aggregate term of

imprisonment is five years or more. Finally, 8 C.F.R. §§ 1208.16 and 1208.18 are

the implementing regulations for the CAT and establish the standard for that form

of relief. With this framework in mind, we turn to the substance of Cole’s petition.

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III.

A.

The threshold question is whether Cole’s conviction under the SCYOA

qualifies as a conviction for immigration purposes, an issue of first impression in

this Circuit. Cole contends that it does not, and, if correct on this matter, Cole

would not be removable. The definition of “conviction,” however, clearly

encompasses the SCYOA proceedings in question. The text of the statute is the

beginning and the end of our inquiry, for it defines a conviction as:

[A] formal judgment of guilt of the alien entered by a court or, if

adjudication of guilt has been withheld, where--

(i) a judge or jury has found the alien guilty or the alien has entered a

plea of guilty or nolo contendere or has admitted sufficient facts to

warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A).

The text of the statute enumerates two conditions, both of which an SCYOA

conviction satisfies. Notably, the text makes no distinction based on the age of the

offender or what type of proceeding results in the conviction. The statute also does

not carve out any exception for convictions that come with the possibility of

expungement in the future. Rather, the text compels us to treat as a conviction any

formal judgment of guilt entered by a court, or any finding of guilt coupled with

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punishment. In this case, the proceeding occurred in the Court of General Sessions,

the court of general jurisdiction in South Carolina with authority over criminal

matters. 1 The Court of General Sessions accepted Cole’s guilty plea and sentenced

him to serve an indeterminate sentence of up to five years. This act satisfied both

conditions of 8 U.S.C. § 1101(a)(48)(A), since Cole “entered a plea of guilty” and

“the judge . . . ordered some form of punishment.” What could happen in the future

-- such as the potential expungement of Cole’s conviction -- is irrelevant for

immigration purposes.

Two of our prior decisions have read this unambiguous statute in precisely

the same way. In Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1271 (11th

Cir. 2004), a panel of this Court held that an expunged conviction nonetheless

qualified as a conviction for immigration purposes. The petitioner in that case had

been convicted of possession of marijuana in a Missouri state court, which

expunged the conviction a year later pursuant to Mo. Rev. Stat. § 610.105. Id. at

1265. In addressing whether Resendiz-Alcaraz’s expunged conviction was a

conviction for immigration purposes, the Court began, as we did, with the statutory

definition of conviction:

1

See S.C. Const. Art. V, § 11 (“The Circuit Court shall be a general trial court with original

jurisdiction in civil and criminal cases . . . .”); S.C. Code § 14-1-70 (“The following are courts of

justice in this State: . . . (4) the circuit courts, to wit: (a) a court of common pleas and (b) a court

of general sessions . . . .”).

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The language of § 1101(a)(48)(A) is quite clear -- an alien will be

considered to have a conviction for immigration purposes if: (1) a

judge or jury found the alien guilty, if the alien entered a guilty plea or

a plea of nolo contendere, or if the alien admitted sufficient facts to

warrant a finding of guilt; and (2) the judge ordered some form of

punishment.

Id. at 1268. Much like Cole’s conviction, Resendiz-Alcaraz’s “state conviction

satisfie[d] these conditions. He pled guilty to the possession offense and was

subject to a penalty of one year probation.” Id. Expungement was irrelevant, we

explained, because “the statutory definition on its face appears to negate for

immigration purposes the effect of state rehabilitative measures that purport to

expunge or otherwise remove a conviction.” Id. Thus, the Court concluded, “a state

conviction is a conviction for immigration purposes, regardless of whether it is

later expunged under a state rehabilitative statute, so long as it satisfies the

requirements of § 1101(a)(48)(A).” Id. at 1271.

The other relevant decision from our Court is Singh v. U.S. Att’y Gen., 561

F.3d 1275 (11th Cir. 2009). In Singh, the 15-year-old petitioner pleaded guilty in

Florida circuit court to several felonies, id. at 1277, and the INS sought to remove

him as an alien convicted of an aggravated felony. Id. at 1278. On appeal, Singh

argued that his conviction as an adult in state court could not qualify as a

conviction for immigration purposes, because in the federal system the Federal

Juvenile Delinquency Act (“FJDA”) would have treated a non-violent 15-year-old

offender as a juvenile delinquent. Id. at 1278-79. The panel in Singh recited the

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relevant definition of conviction from 8 U.S.C. § 1101(a)(48)(A) and then

examined the holdings of three other Courts of Appeals, which all determined that

the clear and unambiguous definition of conviction included a minor’s state

conviction as an adult. See id. at 1279 (citing Savchuck v. Mukasey, 518 F.3d 119,

122 (2d Cir. 2008); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir.

2007); Vieira Garcia v. INS, 239 F.3d 409, 413-14 (1st Cir. 2001)). Singh therefore

concluded:

We follow the plain reading of § 1101(a)(48)(A), as well as the First,

Second, and Ninth Circuits, and hold that Singh’s conviction as an

adult in Florida court is a conviction for immigration purposes, even

though he was a minor at the time.

Id.

Resendiz-Alcaraz and Singh establish that, standing alone, neither the

possibility of expungement nor the age of the offender are relevant in determining

whether a conviction in a criminal court of general jurisdiction qualifies as a

conviction for immigration purposes. Since both are premised upon a plain reading

of § 1101(a)(48)(A)’s text, we can discern no reason why those two factors taken

together could yield a different result. The definition of conviction simply makes

no exception for convictions that condition the possibility of expungement on the

age of the offender; indeed, it makes no exceptions at all and encompasses all

guilty pleas coupled with court-imposed punishment. See also Dung Phan v.

Holder, 667 F.3d 448 (4th Cir. 2012) (an expunged conviction under the District of

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Columbia Youth Rehabilitation Act constituted a conviction for immigration

purposes).

Indeed, even if we were to look at the legislative history of the Illegal

Immigration Reform & Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.

No. 104-208, 110 Stat. 3009-546, it would only reinforce our interpretation of the

text. Congress intended for an alien’s conviction to count as a conviction as soon

as the original judgment or finding of guilt occurred, regardless of subsequent

events such as expungement or suspension of sentence. See H.R. Rep. 104-828, at

224 (1996) (Conf. Rep.). The report explains that the revised definition

“deliberately broaden[ed] the scope of the definition of ‘conviction’” so that the

federal meaning of “conviction” would be unaffected by the states’ “myriad of

provisions for ameliorating the effects of a [state] conviction.” Id. This provision

“clarifie[d] Congressional intent that even in cases where adjudication is

‘deferred,’ the original finding or confession of guilt is sufficient to establish a

‘conviction’ for purposes of the immigration laws.” Id. This passage confirms the

irrelevance of the fact that the South Carolina court may expunge Cole’s sentence.

Thus, we end where we began, with the clear and unambiguous command of

8 U.S.C. § 1101(a)(48)(A) that a guilty plea combined with a court-imposed

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punishment constitutes a conviction for immigration purposes.2 Under

§ 1101(a)(48)(A), Cole’s SCYOA conviction is a conviction for immigration

purposes, and his argument to the contrary can find no purchase in the text or the

history of this provision. Having resolved this basic question, we turn to whether

Cole is removable because of this conviction.

B.

Cole contends that his conviction under S.C. Code § 16-23-410 is not a

crime of violence, the type of aggravated felony for which the BIA found him

removable. Whether S.C. Code § 16-23-410 is a crime of violence is also an issue

of first impression in this Circuit. We hold that this offense is a crime of violence,

and therefore the BIA properly found Cole removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). Our holding renders Cole ineligible for asylum under

§ 1158(b)(2)(A)(ii), and our jurisdiction over his remaining claims is limited to

legal and constitutional questions pursuant to § 1252(a)(2)(C) and (D).

Section 1227(a)(2)(A)(iii) states, “Any alien who is convicted of an

aggravated felony at any time after admission is deportable.” The term “aggravated

felony” is defined to include, inter alia, “a crime of violence (as defined in section

2

Our holding does not call into question the BIA’s precedent in In re Devison, 22 I. & N. Dec.

1362 (B.I.A. 2000). In that case, the BIA held that state proceedings analogous to the Federal

Juvenile Delinquency Act did not produce convictions for immigration purposes. Id. at 1366-68.

Juvenile delinquency proceedings, unlike the South Carolina Youthful Offender Act, result in

“the adjudication of a status rather than” the guilt or innocence of a crime and “are civil in

nature.” Id. at 1366. For this reason, they do not satisfy 8 U.S.C. § 1101(a)(48)(A)’s definition of

conviction.

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16 of Title 18 . . . ) for which the term of imprisonment [is] at least one year.” 8

U.S.C. § 1101(a)(43)(F). That section directs us to the following definition:

The term “crime of violence” means--

(a) an offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another, or

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.

18 U.S.C. § 16.

To determine whether a state law offense qualifies as a crime of violence for

immigration purposes, we employ a categorical approach, looking to the “elements

and the nature of the offense of conviction, rather than to the particular facts

relating to petitioner’s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S. Ct. 377

(2004); see also Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.

2008). As a federal court analyzing a state law offense, we are bound by the state

supreme court’s interpretation of state law, “including its determination of the

elements” of a crime. See Johnson v. United States, 130 S. Ct. 1265, 1269 (2010).

In instances when the state supreme court has not definitively ruled, we “are bound

by decisions of a state’s intermediate appellate courts unless there is persuasive

evidence that the highest state court would rule otherwise.” Pendergast v. Sprint

Nextel Corp., 592 F.3d 1119, 1133 (11th Cir. 2010) (internal quotation marks

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omitted); see also United States v. King, 673 F.3d 274, 279-80 (4th Cir. 2012)

(applying this approach to S.C. Code § 16-23-410 and finding it a crime of

violence for sentencing purposes).

In light of Leocal, we ask whether the state law offense contains a mens rea

greater than negligent conduct. 543 U.S. at 9-11. Leocal reviewed a decision of this

Court holding that Fla. Stat. § 316.193(3)(c)(2), which criminalized driving under

the influence of alcohol and causing serious bodily injury, was a crime of violence

under 18 U.S.C. § 16. Id. at 3-4. The Supreme Court began with the statutory

language, stating “[t]he critical aspect of § 16(a) is that a crime of violence is one

involving the ‘use . . . of physical force against the person or property of another.

(Emphasis added.)” Id. at 9. Use against another implies “active employment,” and

“naturally suggests a higher degree of intent than negligent or merely accidental

conduct.” Id. Therefore, the Supreme Court reasoned, the Florida offense, which

incorporated no mens rea, see id. at 7-8, could not be a crime of violence under

§ 16(a). Id. at 10.

The Court then turned to § 16(b) and gave it an analogous construction:

Ҥ 16(b) does not . . . encompass all negligent misconduct . . . . It simply covers

offenses that naturally involve a person acting in disregard of the risk that physical

force might be used against another in committing an offense.” Id. In short, the

“substantial risk that physical force . . . may be used” is not equivalent to “the

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possibility that harm will result from a person’s conduct, but to the risk that the use

of physical force against another might be required in committing a crime.” Id. The

Court offered burglary as the paradigmatic example: “A burglary would be covered

under § 16(b) not because the offense can be committed in a generally reckless

way or because someone may be injured, but because burglary, by its nature,

involves a substantial risk that the burglar will use force against a victim in

completing the crime.” Id. Thus, the Court gave “the language in § 16(b) an

identical construction, requiring a higher mens rea than the merely accidental or

negligent conduct involved in a DUI offense.” Id. at 11.

On its face, S.C. Code § 16-23-410 states only, “It is unlawful for a person

to present or point at another person a loaded or unloaded firearm,” with

exceptions for theatrical performances and self-defense not pertinent to the present

case. The Supreme Court of South Carolina has interpreted the statute as having

three distinct elements: “(1) pointing or presenting; (2) a loaded or unloaded

firearm; (3) at another.” State v. Burton, 589 S.E.2d 6, 8 (S.C. 2003). Thus, on first

viewing, it seems possible that this offense fails to meet Leocal’s mens rea

requirement. However, South Carolina’s Court of Appeals subsequently held that

the term “presenting” means “showing or displaying a firearm in a threatening or

menacing manner” and hence requires an intentional mens rea. In re Spencer, 692

S.E.2d 569, 572 (S.C. Ct. App. 2010); see also id. at 573 n.2 (“Thus, the State must

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offer direct or circumstantial evidence that a person specifically intended to present

a firearm at someone before a conviction may be sustained.”). Since this

interpretation of the active verb is consistent with the South Carolina Supreme

Court’s decision in Burton, we are bound by the Court of Appeals’s interpretation

of the offense.

The BIA correctly determined that S.C. Code § 16-23-410 qualifies as a

crime of violence under 18 U.S.C. § 16(b). As South Carolina’s courts have

interpreted S.C. Code § 16-23-410, the offense has as an element an intentional

mens rea and thus satisfies Leocal’s intent requirement. Moreover, there is a

substantial risk that the act of pointing a firearm at another will provoke the sort of

confrontation that leads to the intentional use of physical force. In Leocal, the

Supreme Court categorized burglary as a § 16(b) offense because, although it did

not have as an element the use of force, the ordinary commission of burglary

carries with it the risk that a perpetrator will encounter his or her victim,

precipitating a confrontation involving intentional force. See Leocal, 543 U.S. at

10; see also James v. United States, 550 U.S. 192, 203-04 (2007) (“The main risk

of burglary arises not from the simple physical act of wrongfully entering onto

another’s property, but rather from the possibility of a face-to-face confrontation

between the burglar and a third party -- whether the occupant, a police officer, or a

bystander -- who comes to investigate.”). This risk is all the more apparent in this

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case, where the crime itself necessarily involves an encounter with the victim.

Common sense teaches us that such an encounter -- in which the perpetrator points

or presents a firearm threateningly at the victim -- carries a substantial risk the

confrontation will result in the use of intentional force.

Indeed, before Leocal, the Fourth Circuit had already decided that S.C. Code

§ 16-23-410 constituted a crime of violence under 18 U.S.C. § 16(b). See United

States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989). Although Thompson did

not have the benefit of Leocal’s guidance, it remains persuasive. Examining South

Carolina state cases, the Fourth Circuit found that “[i]n each of the reported South

Carolina cases, the pointing of a firearm at another person was accompanied by the

use of physical force.” Id. at 509 (citing various state cases in which the offense

was accompanied by actually firing the weapon). Thus, the substantial risk that

accompanies a violation of S.C. Code § 16-23-410 springs not from general

recklessness but from the fact that “by its nature,” it “involves a substantial risk”

that the perpetrator “will use force against a victim.” See Leocal, 543 U.S. at 10.

Cole’s arguments to the contrary are unavailing. Cole has placed great

weight on the fact that the statute criminalized pointing even with an “unloaded

firearm.” S.C. Code § 16-23-410. However, merely being unloaded does not render

a firearm non-threatening. A victim of this offense cannot be expected to know that

the firearm pointed at them is unloaded; nor could that victim reasonably be

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expected, in the heat of the moment, to react less rashly to the threat. Thus, under

18 U.S.C. § 16(b), the fact remains that threatening another person even with an

unloaded firearm is likely to lead to a physical confrontation involving intentional

force. The only difference would be the type of force eventually utilized in such a

confrontation, since the perpetrator would not be able to actually shoot his or her

victim. Leocal itself considered burglary the quintessential § 16(b) crime of

violence, see 526 U.S. at 10, although a burglar need not carry a loaded weapon, or

indeed any weapon at all. In this case as well, the risk of violence stems from the

confrontational nature of the offense, not the fact that the gun involved may be

loaded or unloaded.

Cole also argues that pointing a firearm and presenting it are two distinct

ways to violate S.C. Code § 16-23-410, and that In re Spencer directly addressed

only the meaning of the term “presenting.” Following Cole’s chain of reasoning,

only presenting has an intentional mens rea and the element of threatening another.

However, this argument belies the reasoning of In re Spencer itself, which states

that similar state statutes “prohibit not only the overt action of pointing or directing

a firearm at someone, but also the more passive action of showing or displaying a

firearm in a threatening or menacing manner.” 692 S.E.2d at 572. The natural

conclusion is that pointing is also an intentional or “overt” act. Indeed, the decision

implies that, if anything, pointing is the more obviously threatening and intentional

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act. The Fourth Circuit has endorsed this view when interpreting the elements of

the offense. See King, 673 F.3d at 280 n.4 (“[T]he two disjunctively worded terms

stand on equal footing by both requiring threatening behavior.”). Thus, we are

unpersuaded by Cole’s attempt to distinguish the statute’s two active verbs, and we

hold that Cole’s offense of pointing a firearm at another is a crime of violence.

There are three significant consequences to this determination. First,

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and the definition of aggravated felony in

§ 1101(a)(43)(F), the BIA correctly determined that Cole was a removable alien.

Second, under § 1158(b)(2)(A)(ii), asylum is unavailable to Cole because, “having

been convicted by a final judgment of a particularly serious crime,” he “constitutes

a danger to the community of the United States.” 3 Finally, we review Cole’s

remaining claims -- for withholding of removal and CAT relief -- only insofar as

they state legal and constitutional claims. See § 1252(a)(2)(C), (D).

C.

The third issue Cole has raised is whether he is eligible for withholding of

removal, or whether 8 U.S.C. § 1231(b)(3)(B)(ii) bars Cole from that form of

relief. We hold that it does, because he was sentenced to an indeterminate term of

imprisonment of up to five years.

3

A “particularly serious crime” in the asylum context is synonymous with conviction of an

aggravated felony. See § 1158(b)(2)(B)(i) (“For purposes of clause (ii) of subparagraph (A), an

alien who has been convicted of an aggravated felony shall be considered to have been convicted

of a particularly serious crime.”).

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The relevant INA provision states:

Subparagraph (A) [regarding withholding of removal] does not apply

to an alien . . . if the Attorney General decides that--

...

(ii) the alien, having been convicted by a final judgment of a

particularly serious crime is a danger to the community of the United

States;

....

For purposes of clause (ii), an alien who has been convicted of an

aggravated felony (or felonies) for which the alien has been sentenced

to an aggregate term of imprisonment of at least 5 years shall be

considered to have committed a particularly serious crime. The

previous sentence shall not preclude the Attorney General from

determining that, notwithstanding the length of sentence imposed, an

alien has been convicted of a particularly serious crime.

§ 1231(b)(3)(B). Simply stated, this subsection gives the Attorney General

discretion to deny withholding of removal to otherwise qualified aliens if they have

committed what the Attorney General deems to be a particularly serious crime.

When, however, an alien has committed an aggravated felony or felonies, and the

aggregate term of imprisonment is five years or more, the Attorney General has no

discretion, and the statute automatically bars the alien from withholding of

removal. United States v. Maung, 320 F.3d 1305, 1307 n.1 (11th Cir. 2003).

The INA defines a term of imprisonment this way: “Any reference to a term

of imprisonment or a sentence with respect to an offense is deemed to include the

period of incarceration or confinement ordered by a court of law regardless of any

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suspension of the imposition or execution of that imprisonment or sentence in

whole or in part.” 8 U.S.C. § 1101(a)(48)(B). The critical question is yet another

issue of first impression: whether an indeterminate sentence under the SCYOA, for

a maximum term of up to five years, ought to be construed as a five-year term of

imprisonment for immigration purposes.

Initially, the government disputes whether Cole adequately raised this

argument in his brief. A party adequately raises an issue when the party

“specifically and clearly identified” it in its opening brief; otherwise, the claim will

be “deemed abandoned and its merits will not be addressed.” Access Now, Inc. v.

Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). To adequately raise

a claim or issue, a party “must plainly and prominently so indicate,” for instance

by “devot[ing] a discrete section of his argument to” those claims. United States v.

Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). If the party mentions the issue

only in his Statement of the Case but does not elaborate further in the Argument

section, the party has abandoned that issue. See Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Cole did not abandon this

issue. Initially, in the Summary of Argument, Cole lists as a discrete issue,

“Whether the Respondent erred in determining that the Petitioner’s conviction was

a particularly serious crime rendering Petitioner ineligible for Withholding Of

Removal?” Unlike the abandoned argument in Greenbriar, this argument reappears

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as a discrete issue in Cole’s Argument section. Labeled 4.B.1., “Particularly

Serious Crime,” this sub-section asserts that “notwithstanding the Board’s prior

determination regarding indeterminate sentencing, the question of whether an

offense is a particularly serious crime is one of discretion.” The brief further

argues: “Indeterminate sentences imposed under the provisions of the youthful

offender process cannot be deemed to be the same as indeterminate sentences

imposed for adult criminal offenders.” Although inelegantly stated, the essence of

Cole’s argument seems to be that his indeterminate sentence under the SCYOA is

not a five-year sentence for immigration purposes.

For several decades, the BIA has measured all indeterminate sentences by

their maximum possible term, see In re S-S-, 21 I. & N. Dec. 900, 902-03 (B.I.A.

1997), and there is a circuit split regarding whether this rule merits Chevron

deference. In Nguyen v. INS, 53 F.3d 310 (10th Cir. 1995), the Tenth Circuit

deferred to the BIA’s rule. Nguyen explained that this interpretation was

“permissible,” in large part because it “accord[ed] with the Sentencing Guidelines’

rationale that the term ‘sentence of imprisonment’ refers to the maximum sentence

imposed.” See id. at 311 (internal quotation marks omitted) (citing U.S.S.G.

§ 4A1.2(b)(1), whose commentary explains that “in the case of an indeterminate

sentence of one to five years, the stated maximum is five years . . . .”).

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In Shaya v. Holder, 586 F.3d 401 (6th Cir. 2009), on the other hand, the

Sixth Circuit denied this longstanding rule deference. Shaya confronted

Michigan’s idiosyncratic sentencing scheme, which denied the state courts

discretion in setting the maximum term for an indeterminate sentence and instead

obligated the courts to set the maximum penalty provided by the law as the

maximum term. See id. at 406. The Sixth Circuit reasoned that “determining the

length of [a] sentence is less an exercise in interpreting the INA provision than it is

interpreting state sentencing law,” id., and noted that the BIA’s own decisions

establishing this rule had been decided based on their reading of the relevant state

laws. Shaya thus concluded that “these kinds of [state law] determinations by the

BIA are not entitled to Chevron deference,” and conducted its own examination of

Michigan law to determine how to measure an indeterminate sentence. Id. at 406-

08.

The Sixth Circuit’s reasoning casts doubt on whether we should defer to the

BIA rule in this case, since Chevron deference applies only to “an agency’s

construction of the statute which it administers.” Chevron, 467 U.S. at 842. In this

case, however, we need not decide between these two competing approaches. If we

follow Shaya and examine South Carolina state law, then Cole’s indeterminate

sentence under the SCYOA should be treated as a five-year sentence. The Supreme

Court of South Carolina recently addressed whether a paroled convict’s six-year

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indefinite term of imprisonment pursuant to the SCYOA had ended with his

conditional release or at the end of the full six-year term. State v. Ellis, 726 S.E.2d

5, 5-7 (S.C. 2012). Ellis reaffirmed that South Carolina law treats “[p]robation, a

suspension of the period of incarceration . . . [and] actual incarceration” as “clearly

part of a criminal defendant’s ‘term of imprisonment.’” Id. at 7 (citing Thompson

v. S.C. Dep’t of Pub. Safety, 515 S.E.2d 761, 763 (S.C. 1999)). Thus, the highest

court of the state has construed the term of imprisonment for a SCYOA

indeterminate sentence as the maximum possible term, even if the individual is

actually released from incarceration significantly earlier. On the other hand, if we

follow Nguyen and defer to the BIA, the same result obtains under longstanding

BIA precedent.

Thus, we conclude that Cole’s indeterminate five-year SCYOA sentence

constitutes a five-year sentence pursuant to 8 U.S.C. § 1231(b)(3)(B). As a

consequence, Cole is “automatically deemed to have committed a particularly

serious crime,” Maung, 320 F.3d at 1307 n.1 (internal quotation marks omitted),

and is statutorily ineligible for withholding of removal. Therefore, the only

remaining form of immigration relief available to Cole would be relief under the

United Nations Convention Against Torture.

D.

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The Convention Against Torture states that signatory nations will not “expel,

return or extradite a person to another State where there are substantial grounds for

believing he would be in danger of being subjected to torture.” United Nations

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Art. 3(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465

U.N.T.S. 85. The Convention’s implementing legislation, the Foreign Affairs

Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681, in

turn directed “the heads of the appropriate agencies” to “prescribe regulations to

implement the obligations of the United States under Article 3 of the [CAT].” See

8 U.S.C. § 1231 note. Under the relevant regulations, Cole is eligible for relief if

he can establish that it is “more likely than not that he . . . would be tortured if

removed.” 8 C.F.R. § 1208.16(c)(2). The regulations further define torture as

any act by which severe pain or suffering . . . is intentionally inflicted

on a person for such purposes as obtaining from him or her or a third

person information or a confession, punishing him or her for an act he

or she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or a third person, or

for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official

capacity.

§ 1208.18(a)(1).

We are mindful that 8 U.S.C. § 1252(a)(2)(D) restricts our review here to

Cole’s legal and constitutional claims. This does not mean, however, that we are

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without power to examine the BIA’s denial of Cole’s torture claims. We have held

that a CAT determination is a mixed question of law and fact, and that the legal

component of that mixed question is subject to our scrutiny. See Jean-Pierre v.

U.S. Att’y Gen., 500 F.3d 1315, 1322 (11th Cir. 2007). In Jean-Pierre, we

considered a petition from an AIDS patient who alleged that, if removed to Haiti,

he would be “beaten with metal rods, confined for weeks in a tiny crawl space, and

subjected to . . . ‘kalot marassa’ (severe boxing of the ears).” Id. at 1317. The BIA

denied his application for CAT relief in an opinion that acknowledged the

likelihood of the harms Jean-Pierre alleged would occur but denied that such

treatment amounted to torture. See id. at 1320. At issue in the case was whether we

had any jurisdiction to review Jean-Pierre’s petition under 8 U.S.C.

§ 1252(a)(2)(C) and (D). Under pre-REAL ID Act case law, this Court had “held

that habeas corpus jurisdiction extend[ed] to the adjudication of mixed questions of

law and fact, including the question of whether a particular course of conduct (fact)

constitutes torture (law).” See id. at 1321 (citing Cadet v. Bulger, 377 F.3d 1173,

1184 (11th Cir. 2004)). We then interpreted the REAL ID Act as changing the

proper review mechanism -- that is, eliminating habeas jurisdiction and making

“the exclusive mechanism for judicial review . . . a petition for review filed with

the appropriate court of appeals,” id., but further reasoned that “[w]hile the

mechanism changed, however, the scope of our review of the law did not.” Id. This

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Court therefore has the limited but significant jurisdiction to review the application

of the “CAT’s legal definition of ‘torture’ to the facts of what [would] happen” to

the petitioner. Id. at 1322 (internal quotation marks omitted).

With that framework in mind, we turn to the BIA’s and IJ’s determinations

in this case. 4 The following determinations are factual in nature and hence

unreviewable. With regard to Cole’s claim that persons with physical or mental

disabilities are tortured in Jamaica, the IJ found, to the contrary, that “the Jamaican

government is taking commendable steps to actively combat the marginalization of

persons with disabilities in the country.” The IJ therefore found that Cole had “not

shown that there is even a possibility that he will be tortured with the acquiescence

of the government.”

As for Cole’s second claim that deportees are tortured upon their return to

Jamaica, the IJ did not find substantial evidence in the record to indicate that the

Jamaican government tortured aliens removed to Jamaica. Rather, the IJ found that

the government has taken specific steps to identify dangerous deportees rather than

discriminating against the group as a whole. In addition, “[t]he Jamaican police

seek approval from the Jamaican Supreme Court before the organization monitors

deportees that it feels present a threat to the community.”

4

Since the BIA adopted the IJ’s reasoning denying CAT relief, we review the IJ’s decision.

Imelda, 611 F.3d at 727.

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Finally, regarding Cole’s claim he would be targeted based on imputed

political association, the IJ found that Cole had not established it was more likely

than not that he would suffer violent reprisal due to his father’s or brother’s ties to

the PNP. The IJ based this determination on several facts. Cole lived in Jamaica

from 1988 to 2006 -- a time period that included five years after his brother Kevin

was shot in a politically motivated attack -- and was never the target of politically

motivated violence. Furthermore, documentary evidence attested to a recent

decline in political violence in Jamaica. In addition, Cole had testified that he could

relocate within the country. We take these facts as given for purposes of our

review.

These factual findings undercut two of Cole’s claims completely. First, we

cannot review the BIA’s decision that Cole would not be tortured based on his

disabilities, because the decision is sustainable solely based on the IJ’s factual

finding that the Jamaican government actively combats marginalization of the

disabled. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.

2004) (acquiescence requires that a public official, prior to the activity constituting

torture, have awareness of that activity and then breach a legal responsibility to

intervene to prevent that activity). Second, we cannot review the BIA’s decision

that Cole would not be tortured based on imputed political opinion. The likelihood

of future harm is a factual question, see Jean-Pierre, 500 F.3d at 1322; Zhou Hua

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Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1310-14 (11th Cir. 2013), which the IJ

determined in this case to be improbable.

We do have the power to review the IJ’s resolution of Cole’s deportee claim.

Regarding that claim, the IJ found that the more severe harms alleged by Cole were

unlikely to occur. However, the IJ then held that, assuming arguendo that Cole’s

allegations of temporary detention were true, they still fell short of the legal

threshold for torture established by this Circuit. This portion of the holding was

based on a legal conclusion that temporary detention did not constitute torture

rather than a factual determination. After careful consideration, we hold that the

alleged harms -- temporary detention at “Central,” where deportees are processed

and then released into the community -- fall short of the conduct we and our sister

Circuits have treated as torture.

In Jean-Pierre, as we have noted, the petitioner was an AIDS patient who

demonstrated that he would be beaten and confined for weeks in a tiny crawl

space, 500 F.3d at 1317, and that he would be targeted due to his disease, id. at

1318. Other circuits have also held that detention plus egregious physical abuse or

intentional infliction of suffering may amount to torture. See, e.g., Kang v. Att’y

Gen. of the U.S., 611 F.3d 157, 166-67 (3d Cir. 2010) (petitioner was entitled to

CAT relief when “[t]he record compels the conclusion that if Kang is removed to

China it is more likely than not that she will be beaten, suffocated, deprived of

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sleep, shocked with electrical current, and/or forced to stand for long periods of

time, and that this would be done with the purpose of causing her severe pain and

suffering”). These examples far outstrip what Cole has alleged with regard to

“Central” detention in this case. Unlike in Jean-Pierre or Kang, neither the IJ nor

the BIA found that Cole would suffer such egregious physical abuse, or anything

even remotely like that. The BIA’s determination to this effect does not constitute

legal error.

Cole’s remaining arguments are unavailing, since they contest the weight

and significance given to various pieces of evidence, which we lack jurisdiction to

review. To the extent Cole’s claim is a legal one asserting the BIA and IJ failed to

provide a reasoned explanation of its decision, it is well established that “the IJ and

the BIA need not address specifically each claim the petitioner made or each piece

of evidence the petitioner presented”; they need only “consider the issues raised

and announce their decision in terms sufficient to enable a reviewing court to

perceive that they have heard and thought and not merely reacted.” Carrizo v. U.S.

Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (internal quotation marks

omitted). The IJ’s thorough, twenty-three-page opinion, and the BIA’s five-page

affirmation, fully meet this threshold. Thus, the BIA and the IJ properly denied

Cole CAT relief.

E.

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Finally, Cole argues that the IJ’s denial of his motion for a continuance

violated his right to due process, because he was unable to obtain additional

documentary evidence proving his disabilities and difficulties in school in Jamaica.

To demonstrate a constitutional violation, Cole must establish that he “was

deprived of liberty without due process of law and that the purported errors caused

[him] substantial prejudice.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th

Cir. 2010). Substantial prejudice means that “in the absence of the alleged

violations, the outcome of the proceeding would have been different.” Id. (citing

Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987)).

Cole has not shown substantial prejudice in this case. The pieces of evidence

he sought were primarily “school and doctor’s records” from his life in Jamaica, as

well as “vital statistics documents in the possession of governmental entities.”

However, Cole has failed to explain how these documents would enhance his

ability to meet his burden of proof, as he asserts. The IJ found Cole’s testimony,

along with that of his mother and his sister, to be credible, and never denied Cole’s

disabilities. Thus, the documents in question were cumulative. Rather than

rejecting Cole’s application on these grounds, the IJ primarily denied Cole’s

application for relief on legal grounds, such as his statutory ineligibility for asylum

or withholding of removal. And the IJ’s factual findings would not have been

called into question by additional evidence of Cole’s disabilities. Cole has not

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established his due process rights were violated by the IJ’s denial of his motion for

a continuance.

We, therefore, conclude that none of Cole’s claims justify granting his

petition.

PETITION DENIED.

36