Petition for Writ of Certiorari — Rangololan v. Mukasey (No. 07-1169)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
Supreme Court, U.S.
rFELEe oO
4) 071169MAR 11 2008
No. OFFICE OF THE CLERK
In The Supreme Court of the United States
PAUL ANTHONY RANGOLAN,
Petitioner.
V.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
On Petition for A Writ of Certiorari
To the United States Court of Appeals
For The Fourth Circuit
PETITION FOR A WRIT OF CERTIORARI
Linda A. Dominguez, Esquire
Counsel of Record for Petitioner
L A Dominguez Law, LLC
1800 N. Charles Street, Ste 300
Baltimore MD 21201
(410) 685-5550
.
QUESTIONS PRESENTED
1. Whether a Court of Appeals may issue a
stay of removal only if the petitioner meets the
standard for issuance of an injunction contained in
8 U.S.C. 1252(f)(2): a showing “by clear and
convincing evidence that the entry or execution of
[the removal] order is prohibited as a matter of
law.” 8 U.S.C. 1252(f)(2).
2. Whether the reference in 8 U.S.C.
1252(a)(2)(D) to “questions of law” encompasses
claims involving the application of law to fact. In
particular, whether a challenge to the Board of
Immigration Appeal’s “more likely than not”
determination raises a “question[] of law” within the
meaning of § 1252(a)(2)(D), or instead raises only a
factual claim that does not fall within that provision
and strips the Courts of Appeals of jurisdiction to
review Board decisions.
TABLE OF CONTENTS
QUESTIONS PRESENTED .............
TABLE OF AUTHORITIES .............
RUE Se kis de eas ewcecens
I 5p a's 0's. 0'o oa 6 64.06 0 0:0
STATUTORY PROVISION INVOLVED ...
STATEMENT OF FACTS ...............
REASONS FOR GRANTING THE PETITION 9
L.
II.
SPIED oo oc se vee skS au ee Weed eS ‘
THIS COURT SHOULD
RESOLVE THE SPLIT AMONG
THE CIRCUITS AS TO WHAT
STANDARD IS REQUIRED
FOR ISSUANCE OF A STAY
OF REMOVAL PENDING A
DECISION ON A PETITION
PURE RRP VEIE Us os sw nwnen’ 9
THIS COURT SHOULD
RESOLVE THE SPLIT AMONG
THE CIRCUITS WHETHER A
CHALLENGE TO THE
DECISION BY THE BIA
ABOUT THE LIKELIHOOD OF
TORTURE IS A QUESTION OF
LAW OR IS ONLY A FACTUAL
CLAIM THAT IS OUTSIDE
THEIR JURISDICTION FOR
CRIMINAL ALIENS THAT
ARE ONLY ELIGIBLE FOR
DEFERRAL OF REMOVAL. .12
TABLE OF CONTENTS — Continued
APPENDIX
October 23, 2007 Order of the Court of Appeals
a GANG OE GS nn on on We wees ncnee
August 16, 2007 Decision of the Board of
Immigration Appeals ....................
March 6, 2007 Decision of the Immigration
Court in Arlington, Virginia..............
November 21, 2007 Order of the Court of
Appeals for the Fourth Circuit Denying
Motion for Rehearing ...................
December 18, 2007 Unpublished Decision
of the Board of Immigration Appeals in a
case involving persecution of homosexuals
Wh I ita ok a he oh ee rere e Wek esas
January 18, 2005 Letter from Embassy of
Jamaica to Paul Rangolan.........2.....
December 2006 Reasonable Fear
Determination by a supervisory asylum
RN os us re eee oa Pele vc eae Dou
TABLE OF AUTHORITIES
Page
Cases
Andrieu v. Ashcroft, 253 F.3d 477, 482 (9th Cir.
Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir. 2003) .. 10
Beyjani v. LNS, 271 F.3d 670, 688-89 (6th Cir. 2001)
aniidhgd pcidotshpsheiad aia ndtiudgihalianasindudmninieauna amen nentalattateiie 11
Bonhomme-Ardouin v. U.S, Att'y General, 291 F.3d
RI Rae SAR CE, FD sais ciccscsniisniciarasantcncnis 11
Bosede v. Mukasey, 512 F.3d 946, 952 (7* Cir.
RES COE E Ren RE EMER MC is on TCA PCR 19
Chen v. Dep't of Justice, 471 F.3d 315, 327-28 (2d
i edad 12
Chen v. Dep't of Justice, 471 F.3d 315, 332 n.10 (2d
I ai sci cea ase aelen nckodiamle 16
Douglas v. Ashcroft, 374 F.3d 230, 234 (3d Cir.
a a 11
Eke v. Mukasey, 512 F.3d 372, 377 (7'» Cir. 2008) 16
Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir.
Hor v. Gonzales, 400 F.3d 482. 485 (7th Cir. 2005) 11
Vv
Jean v. Gonzales, 435 F.3d 475, 482 (4th Cir. 2006)
Nn ees sabcbdatnwueensocsenss 14
Jean-Pierre v. Attorney General, 500 F.3d 1315
ils i hcsanheaseasasescessicsnrasen 13, 16
Kamara v. Attorney General, 420 F.3d 202, 211,
I cs csacpunebacotecveisesersceane 14
Kolkevich v. Attorney General, 501 F.3d 323, 385
a sgeinscaicsicchsnaciaansunsds 14
Lim v. Ashcroft, 375 F.3d 1011, 1912 (10th Cir.
acc shicdodihpbsasachsaasuceeniane 1!
Matter of Toboso-Alfonso, Int. Dec. 3222 «0.00.00... 3
Mohammad v. Reno, 309 F.3d 95, 100 (2d Cir. 2002)
Nee tae GA sali baameecnhacdsandeannistapindinvanarahoacssese 10
see cic saidwavaincidddcncasstisuiivees 13
Ruiz-Martinez v. Mukasey, F.3d (2nd Cir.
I ois saraconctsedscssanchdnsdessacsacsassenres 14
Singh v. Ashcroft, 351 F.3d 435, 442 (9th Cir. 2003)
Oeil i cise ci vauaincenhaninacdsneaacinevasaacnsvic 13
Toussaint v. Attorney General, 455 F.3d 409, 412
sc sacinannncwvncvnvuntsnsacapsnnsens 1S
vi
United States ex rel. Accardi v. Shaughnessy, 347
EEE ea eee nt, See eam 13
Wang v. Ashcroft, 320 F.3d 130, 142-43 (2d Cir.
EE EEE RN CLI Ie Rae Ee aN LR Ne oe 13
Weng v. U.S. Att’y General, 287 F.3d 1335, 1337-38
ASRS Sa ee sin dunia liaanioidGealilia 11
Statutes
8 U.S.C. § 1252(aX2)(D).............2-- 1, 8, 14
eee 2, 8, 10
Other Authorities
H.R. Rep. No. 109-72, at 174-75 (2005) (Conf. Rep.) .
Treatises
Gerald L. Neuman, On the Adequacy of Direct
Review After the REAL ID Act of 2005, 51 N.Y.L.
Seh. 1. Rev. 133, 190-42 (2006) .............. 12
Regulations
ote A ES + |) I 15
I I I oo ao a uo we a ance sccccs = 16
OPINION BELOW
The Fourth Circuit Court of Appeals did not
select its opinion for publication in the Federal
Reporter. The decision is currently not reported in
Westlaw. The pertinent rulings are reprinted in the
Appendix at A and D.
JURISDICTION
The Fourth Circuit filed its decision on
October 23, 2007 and entered an order denying
petitioner's motion for rehearing on November 21,
2007. This Court granted petitioner until March 11,
2008 to file a petition for a writ of certiorari. This
Court has jurisdiction under 8 U.S.C. § 1252(a)(1) to
review the Circuit Court’s decision on a writ of
certiorari.
STATUTORY PROVISIONS INVOLVED
8 U.S.C. § 1252(a)(2(D)
Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this
section) which limits or eliminates judicial review,
shall be construed as precluding review of
constitutional claims or questions of law raised
upon a petition for review filed with an appropriate
court of appeals in accordance with this section.
8 U.S.C. § 1252(f)(2)
Notwithstanding any other provision of law,
no court shall enjoin the removal of any alien
pursuant to a final order under this section unless
the alien shows by clear and convincing evidence
that the entry or execution of such order is
prohibited as a matter of law.
STATEMENT OF FACTS
The petitioner, Paul Anthony Rangolan, is a
native and citizen of Jamaica who became a lawful
permanent resident of the United States in 1984.
In January 1999, the U.S. Department of Homeland
Security (“DHS”) executed an order of removal
against petitioner and deported him to Jamaica
based on a finding that he had committed an
aggravated felony offense, conviction for
embezzlement of funds as a bank employee. He
reentered the United States in March 1999 after
being persecuted for being a homosexual in
Jamaica. The Government conducted an interview
regarding petitioners claim of persecution on
December 14, 2006 and found that he had
established a reasonable fear of return to Jamaica.
App. G.
On Februarv 16, 2007 and March 6, 2007, the
petitioner, Paul Anthony Rangolan, presented
testimony from his two United States citizen sisters
3
and himself in support of the documentary record
containing his application for relief from removal
pursuant to Article 3 of the Convention Against
Torture. On March 6, 2007, Immigration Judge
Wayne R. Iskra found as follows:
Therefore, it is the opinion of the
Court with respect to the main issue in this
case, whether or not the respondent is a
homosexual, that he has met his burden to
prove that he is a homosexual. With respect
to a nexus between the respondent being a
homosexual and his application for relief
under the provisions of Section 241(b)(3)
withholding of removal, it is the opinion of
the Court that the respondent is a member
of a particular social group, and the case
cited by the Government attorney wo: ld be
the applicable case, Matter of Toboso-
Alfonso, Int. Dec. 3222. That case has held
that an applicant who had the status of
being a homosexual both established his
membership in a particular social group and
demonstrated that his freedom was
threatened within the meaning of the Act.
So it is the opinion of the Court that the
respondent is a member of a particular
social group.
xk *
With respect to deferral of removal, it
is the opinion of the Court that the
respondent has met his burden to prove that
it would be more likely than not that he
4
would suffer torture if removed to Jamaica.
| have taken into consideration the
background documents submitted by the
respondent in the nature of articles, but
most importantly the Country Reports for
Human Rights Practices published by the
State Department on March 8, 2006. That
report states that the offenses against the
person's act prohibit acts of gross indecency,
generally interpreted to be any kind of
physical intimacy between men in public or
in private, which are punishable by ten
years in prison. Although Prime Minister
Patterson stated that the country would not
be pressured to changes its antihomosexual
[sic] laws, in October a_ parliamentary
committee met and proposed a debate on
that issue. The report also goes on to list
individuals who were homosexuals who
were killed, and also that in December a
homophobic mob _ allegedly chased a
homosexual off a pier where he drowned.
I have also taken into consideration
the fact that I did find credible that the
respondent was chased and beaten by an
antihomosexual [sic] mob and that he would
have no recourse to the government of
Jamaica. I have also taken into
consideration, with respect to the State
Department Report section on torture, that
although the law prohibits such practices,
reports of physical abuse of prisoners by
guards continued despite efforts of the
government to remove abusive guards and
5
improve procedures. This lists instances
where individuals who are apprehended and
detained are tortured. It is the opinion of
the Court that if the respondent were
returned to Jamaica that it would be more
likely than not based upon his history as
being a homosexual that he would commit
homosexual acts and would be subject to
imprisonment for that act and tortured.
App. C; Administrative Record (“A.R.”) at 93-102.
In support of his applications for relief from
removal, the petitioner submitted a letter from the
Jamaican Embassy in Washington, D.C. that states
clearly that the only way Mr. Rangolan can live in
Jamaica is if he “concealls] [his] sexual body
language to prevent future assault” and that he
should be aware that homosexual acts are
considered criminal in the eyes of Jamaican law.
App. F; A.R. at 308.
Other documents submitted by Mr. Rangolan
reveal that, even when confronted by murder of
homosexuals, the government of Jamaica is loathe
to prosecute or even investigate such anzact. The
Human Rights Watch Report of November 2004,
entitled “Hated to Death: Homophobia, Violence
and Jamaica’s HIV/AIDS Epidemic” clearly states
the situation for homosexuals and persons with
HIV/AIDS in Jamaica. A.R. at 316-396. Human
Rights Watch found that “[plolice not only harass
and persecute people suspected of homosexual
conduct, sex workers, and people living with
6
HIV/AIDS. They also interfere with HIV/AIDS
outreach to them.” A.R. at 334. Regarding the issue
of torture at the hands of and with the acquiescence
of government officials, Human Rights Watch
reported that “police participated in the abuse that
ultimately led to this mob killing, first beating the
man with batons and then urging others to beat
him because he was homosexual.” A.R. at 335.
Human Rights Watch also noted that “[plolice abuse
is a fact of life for many men who have sex with
men and women who have sex with women in all of
the communities that Human Rights Watch visited
in Jamaica. As in the incident described above,
homophobic police violence can be a catalyst for
violence and abuse by others.” A.R. at 336.
Human Rights Watch noted that the
“(dliscriminatory police practices, fear that their
homosexuality might be publicized, the paucity of
available legal assistance, and the possibility of
being prosecuted themselves combine to keep men
who have sex with men from filing complaints or
seeking redress when they are victims of extortion.”
A.R. at 342-43. The report notes that a “number of
witnesses said that they thought that some element
of their outward behavior, dress, or appearance was
the motivation for police to arrest or detain them.”
A.R. at 341. The Human Rights Watch Report notes
that even the “Police Public Complaints Authority,
the independent state authority charged with
investigating allegations of police abuse” refuse to
investigate allegations of police abuse of
homosexuals. A.R. at 345.
5
The study by Ruth C. White published in
Culture, Health & Sexuality, dated July 4, 2005,
entitled “Homosexuality and HIV/AIDS stigma in
Jamaica,” notes that “[slexuality-based oppression
in Jamaica is institutionalized throughout the legal
system, health and social welfare institutions,
popular media and culture, and, through extreme
social stigma.” A.R. at 399. Indeed, the article notes
that the “Jamaican government has_ overtly
sanctioned homophobia by including homophobic
messages in their year-2002 political campaigns.”
Id. (Emphasis supplied).
On April 5, 2007, the DHS filed an appeal
from the Immigration Court’s decision, stating that
the Immigration Court erred in granting deferral of
removal “as it was based upon nothing more than
respondent allegedly being homosexual.” A.R. at 86-
88. On April 12, 2007, Mr. Rangolan, through
undersigned counsel, filed a motion to summarily
dismiss the DHS appeal as failing to comply with
the regulations governing such filing. A.R. at 67-72.
In an appeal brief filed after an extension of
the briefing schedule before the BIA, the DHS
raised a new issue, claiming that Petition failed to
sustain his burden to demonstrate that it was more
likely than not that he would be tortured as a
homosexual upon return to Jamaica and claiming
that the Immigration Court's finding that he had
done so was based on pure speculation and not on
anything substantive in the Record of Proceedings.
A.R. at 16-37. The Board of Immigration Appeals
(“BIA”) adopted the rationale in the DHS brief in
8
sustaining the Government’s appeal, reversing the
grant of deferral of removal to Jamaica, and
ordering Petitioner’s removal from the United
States to Jamaica. App. B.
The Fourth Circuit, in an order dated October
23, 2007, granted the Government’s motion to
dismiss on jurisdictional grounds. App. A. The
Government argued that whether the facts of
petitioner’s case satisfy the legal standard for
deferral of removal (the “more likely than not”
standard) raised only a factual claim, and thus does
not fall within the Fourth Circuit’s renewed
petition-for-review jurisdiction over “questions of
law.” See 8 U.S.C. § 1252(a)(2)(D). The
Government’s position is contrary to the decisions of
several Circuits which have held that claims
involving the application of law to fact such as
Petitioner's present reviewable questions of law.
See infra, at I. The issue is one of far-reaching
importance regarding the jurisdiction of the federal
courts and arises in an area with life and death
consequences for petitioners seeking CAT relief.
The Fourth Circuit also denied the petitioner
a stay after it granted the Government’s
jurisdictional motion. The Government argued that
the proper standard for a stay is the heightened
standard set forth in 8 U.S.C. § 1252(f)(2). With the
exception of the Eleventh Circuit, every Circuit
Court to address the question regarding the proper
standard for a stay in removal cases (eight circuits
to date) has rejected the Government's position that
the heightened standard in § 1252(f)(2) applies. See
9
infra, at I. There is no question that the petitioner
satisfies the traditional standard for a stay, given
that he raises a novel jurisdictional question on
which the majority of Circuit Courts have rejected
the Government’s. position. Moreover, the
Immigration Court granted Petitioner relief in
accordance with the Convention Against Torture,
the BIA overturned the IJ decision in a perfunctory
manner, and the balance of hardships clearly favors
Petitioner in this case which involves his possible
death at the hands of agents of the government of
Jamaica. This is critical given the fact that only
four months after the BIA, on August 16, 2007,
overturned the IJ decision that the petitioner faced
torture on return to Jamaica based on his
homosexuality, on December 18, 2007, the BIA,
with two of the same panel members, found that
public officials in Jamaica clearly target
homosexuals for persecution and police refused to
intervene or investigate abuse of homosexuals
because such persons are considered persona non
grata in Jamaica and unworthy of protection. App.
E.
It is noteworthy that both in the order of
October 23, 2007 denying the motion for stay and
dismissing the petition for review, as well as the
order of November 21, 2007 denying the petition for
rehearing and emergency motion for stay, Judge
Gregory dissented from the decision and indicated,
without opinion, that he would grant the motion for
stay, the motion for rehearing, and deny the
Government’s motion to dismiss the petition for
review. App. A, D. Clearly, Judge Gregory found
that the Fourth Circuit had jurisdiction to consider
10
the petition for review and found that Petitioner’s
case warranted a stay of removal pending a decision
in the case on its merits.
REASONS FOR GRANTING THE PETITION
I. THIS COURT SHOULD RESOLVE THE
SPLIT AMONG THE CIRCUITS AS TO
WHAT STANDARD IS REQUIRED FOR
ISSUANCE OF A STAY OF REMOVAL
PENDING A DECISION ON A
PETITION FOR REVIEW.
The circuit courts have overwhelmingly
rejected the Government’s position that 8 U.S.C. §
1252(f)(2) provides the proper standard for a stay of
removal. Without clarification of the appropriate
stay standard, Petitioner, and others like him, may
be wrongly denied stays of removal and removed to
countries where they will face serious injury or even
death.
Eight out of the nine circuit courts to consider
this issue have squarely rejected the Government’s
position that a court of appeals may issue a stay of
removal only if the petitioner meets the standard
for issuance of an injunction contained in 8 U.S.C. §
1252(f): a showing “by clear and convincing evidence
that the entry or execution of [the removal] order is
prohibited as a matter of law.” 8 U.S.C. § 1252(f).
Compare Arevalo v. Ashcroft, 344 F.3d 1, 9 (1st Cir.
2003); Mohammad v. Reno, 309 F.3d 95, 100 (2d
Cir. 2002); Douglas v. Ashcrott, 374 F.3d 230, 234
lI
(3d Cir. 2004); Tesfamichael v. Gonzales, 411 F.3d
169, 172-76 (5th Cir. 2005); Bejjani v. INS, 271 F.3d
670, 688-89 (6th Cir. 2001); Hor v. Gonzales, 400
F.3d 482, 485 (7th Cir. 2005); Lim v. Ashcroft, 375
F.3d 1011, 1012 (10th Cir. 2004); Andrieu v.
Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001) (en banc)
with Weng v. U.S. Att’y General, 287 F.3d 1335,
1337-38 (11th Cir. 2002). See also Bonhomme-
Ardouin v. U.S. Att’y General, 291 F.3d 1289, 1290
(11th Cir. 2002) (Barkett, J., concurring) (calling for
en banc reconsideration of Weng).
As Judge Easterbrook recognized in Hor v.
Gonzales, 400 F.3d 482 (7th Cir. 2005), the
Government’s argument that § 1252(f) supplies the
correct standard for stay requests is supported
neither by the statutory language nor by common
sense. He emphasized that there is a “long-
standing distinction” between a “stay” and an
“injunction” that is uniformly reflected not only in
the U.S. Code and the Federal Rules of Appellate
Procedure but specifically in 8 U.S.C. § 1252. Hor,
400 F.3d at 484, 485.
Neither does the heightened § 1252(f)
standard urged by the Government make sense as a
practical matter, for many petitioners facing
persecution or torture who ultimately prevail on the
merits would have their stay requests denied under
that standard. Although such aliens could continue
to litigate their petitions for review from abroad,
“[t]he ability to come back to the United States
would not be worth much if the alien has been
maimed or murdered in the interim. Yet under the
Attorney General's reading of § 1252(f) an alien who
12
is likely to prevail in this Court, and likely to face
serious injury or death if removed, is not entitled to
remain in this nation while the Court resolves the
dispute.” Id. at 485.
II. THIS COURT SHOULD RESOLVE THE
SPLIT AMONG THE CIRCUITS
WHETHER A CHALLENGE TO THE
DECISION BY THE BIA ABOUT THE
LIKELIHOOD OF TORTURE IS A
QUESTION OF LAW OR IS ONLY A
FACTUAL CLAIM THAT IS OUTSIDE
THEIR JURISDICTION FOR CRIMINAL
ALIENS THAT ARE ONLY ELIGIBLE
FOR DEFERRAL OF REMOVAL.
In INS v. St. Cyr, 533 U.S. 289 (2001), the
Supreme Court engaged in a lengthy historical
analysis of habeas corpus and, based on that
analysis, concluded that the Suspension Clause
“required” review of deportation orders. Id. at 300.
Most important to the case at bar, the Court made
clear that habeas review in the executive detention
context encompassed not only claims regarding the
proper “interpretation” of statutes, but also claims
regarding the “application” of statutes. Jd. at 302.
See Ramadan v. Gonzales, 479 F.3d 646, 652 (9th
Cir. 2007); Chen v. Dep't of Justice, 471 F.3d 315,
327-28 (2d Cir. 2006). See also Gerald L. Neuman,
On the Adequacy of Direct Review After the REAL
ID Act of 2005, 51 N.Y.L. Sch. L. Rev. 133, 139-42
(2006) (to avoid constitutional concerns, the REAL
ID Act should be construed to preserve review over
13
“application” questions and_ those. involving
“regulations”).!
Prior to the passage of the REAL ID Act, the
Circuit Courts regularly held that the traditional
scope of habeas review encompasses questions
concerning the application of law to fact. See Singh
v. Ashcroft, 351 F.3d 435, 442 (9th Cir. 2003),
(habeas jurisdiction was available over Singh’s
claim “even if that claim does not raise a ‘purely
legal question of statutory interpretation,” because
habeas jurisdiction has historically encompassed
the “application” of law to fact): Ogbudimkpa v.
Ashcroft, 342 F.3d 207, 222 (3d Cir. 2003) (“[hlabeas
relief is traditionally available to correct ‘errors of
law, including the erroneous’ application or
interpretation of statutes”) (citing St. Cyr, 533 U.S.
at 302); see also Wang v. Ashcroft, 320 F.3d 130,
142-43 (2d Cir. 2003).
With the guidance of St. Cyr, the Courts of
Appeals have continued to hold subsequent to the
REAL ID Act that claims that were previously
cognizable in habeas, including the application of
law to fact, remain reviewable. See, e.g., Jean-
Pierre v. Attorney General, 500 F.3d 1315 (11th Cir.
2007) (concluding that the court had jurisdiction to
review an alien’s CAT claim “in so far as he
' St. Cyr also left no doubt that habeas review also
encompassed legal questions concerning regulations. Indeed,
one of the habeas cases on which the Supreme Court relied
upon most heavily -— United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954) — involved a claim under a
regulation, not a statute. See St. Cyr, 533 U.S. at 307 (citing
Accaradp.
14
challenges the application of an undisputed fact
pattern to a legal standard”); Jean v. Gonzales, 435
F.3d 475, 482 (4th Cir. 2006) (concluding that a
“determination involving the application of law to
factual findings . . . presents a reviewable decision”
under the REAL ID Act): Chen, 471 F.3d at 326-27
(“We construe ... the REAL ID Act... to
encompass the same types of issues that courts
traditionally exercised in habeas review”); Kamara
v. Attorney General, 420 F.3d 202, 211, 213-15 (3d
Cir. 2005) (finding that the scope of review under
REAL ID Act “mirrors” the scope of habeas review
and exercising jurisdiction over BIA’s application of
regulatory standard to facts); see also, Kolkevich v.
Attorney General, 501 F.3d 323, 335 (34 Cir. 2007)
(Holding that the REAL ID Act was intended to
preserve judicial review for all aliens in
proceedings, including those with criminal
convictions.)
The Second Circuit agreed with the Third
Circuit’s holding in Kolkevich, supra that the REAL
ID Act applied to those persons with criminal
convictions. Ruiz-Martinez v. Mukasey, ___ F.3d
___ (2=¢ Cir. February 14, 2008) WL 383228 Slip
opinion at 13. Indeed, the Second Circuit noted
from the House Report on the REAL ID Act that:
[ulnder section 106, all aliens who are
ordered removed by an immigration judge
will be able to appeal to the BIA and then
raise constitutional and legal challenges in
the courts of appeals. No alien, not even
criminal aliens, will be deprived of judicial
review of such claims. Unlike AEDPA and
15
IIRIRA, which attempted to eliminate
judicial review of criminal aliens' removal
orders, section 106 would give every alien
one day in the court of appeals, satisfying
constitutional concerns. The Supreme Court
has held that in supplanting the writ of
habeas corpus with an alternative scheme,
Congress need only provide a scheme which
is an “adequate and effective” substitute for
habeas corpus. Indeed, in St. Cyr ..., the
Supreme Court recognized that “Congress
could, without raising any constitutional
questions, provide an adequate substitute
through the court of appeals.” By placing all
review in the courts of appeals, [the REAL
ID Act] would provide an “adequate and
effective” alternative to habeas corpus.
H.R.Rep. No. 109-72, at 174-75, U.S.Code
Cong. & Admin. News 2005, pp. 240, 299-
300 (internal citations omitted)
(emphasis added). Id.
Critically, some courts of appeals have
continued subsequent to the REAL ID Act to find
reviewable an alien's claim that he satisfies the
CAT “more likely than not” standard. See, e.g.,
Toussaint vy. Attorney General, 455 F.3d 409, 412
n.3 (3d Cir. 2006) (“The question here involves not
disputed facts but whether the facts, even when
accepted as true, sufficiently demonstrate that it is
more likely than not that she will be subject to
persecution or torture upon removal to Haiti.
Therefore, we have jurisdiction to review the BIA’s
16
application of law to the facts of this case.”). See
also, e.g., Jean-Pierre v. Attorney General, 500 F.3d
1315 (11th Cir. 2007) (concluding that the court had
jurisdiction to review alien’s CAT claim “in so far as
he challenges the application of an undisputed fact
pattern to a legal standard”); Chen v. Dep't of
Justice, 471 F.3d 315, 332 n.10 (2d Cir. 2006)
(noting that a challenge to an IJ’s determination
under CAT that an alien was not more likely than
not to be tortured was a claim of erroneous
application of law). The Seventh Circuit reached
the opposite conclusion. See Hamid v. Gonzales,
417 F.3d 642, 647 (7th Cir. 2005); cf Eke v.
Mukasey, 512 F.3d 372, 377 (7 Cir. 2008) (Noting
that after having established that an alien in
expedited removal proceedings was convicted of an
aggravated felony offense, it had jurisdiction to
review the legal standards applied by the IJ and
BIA de novo.)
In short, habeas review has traditionally
encompassed claims involving the application of law
to fact. A construction of the REAL ID Act that
would preclude all review over these types of claims
would thus trigger far-reaching constitutional
concerns.
Nothing in the text of § 1252(a)(2)(D) compels
the conclusion that the statute applies only to a
subset of legal claims. The text of § 1252(a)(2)(D)
provides for review of “questions of law.” The term
is unqualified. It does not state that only statutory
questions are reviewable, thereby excluding claims
involving regulations. Nor does it refer only to
questions of “interpretation” or to “pure” questions
17
of law, thereby excluding questions involving, as
here, the application of statutes or regulations.
Because nothing in the text of § 1252(a)(2)(1))
compels the conclusion that the statute applies only
to a subset of legal claims, it is “fairly possible” (St.
Cyr, 533 U.S. at 300) to construe the statute to
avoid the grave constitutional questions that would
be raised by a statute limiting review to a narrow
set of claims involving pure statutory construction.
See also H.R. Rep. No. 109-72, at 174-75 (2005)
(Conf. Rep.) (stating that the “purpose of [new §
1252(a)(2)(D)] is to permit judicial review over those
issues that were historically reviewable on habeas”).
The Fourth Circuit's conclusion that it lacked
jurisdiction over Mr. Rangolan’s petition raises
serious constitutional concerns, conflicts with the
text of 8 U.S.C. 1252(a)(2)(D), and is in direct
conflict with the holdings of the courts of appeals in
numerous circuits that have concluded that claims
involving application of law to fact such as those
raised by Mr. Rangolan present reviewable
“questions of law.”
Further, even if the Government were correct
that the “more likely than not” determination raises
a factual issue, the BIA committed clear legal error
by applying an incorrect standard of review -
raising a question of law reviewable by the courts of
appeals under 8 U.S.C. 1252(aX2KD). The BIA
exceeded its scope of review by engaging in a de
novo review of the facts presented to the
Immigration Court, without stating specifically
whether the Immigration Court’s findings were
clearly erroneous. See, 8 C.F.R. § 1003.1e)(3)(i).
18
Given the voluminous evidence in the Record of
Proceedings that (1) Petitioner is a homosexual
male with HIV+ status and (2) the culture and law
in Jamaica is clearly hostile towards homosexuality
(to the point that reggae stars call for the deaths of
homosexuals in their lyrics with impunity and the
death of one gay leader by a reggae star was treated
with indifference by the government of Jamaica), it
is clear that the BIA engaged in de novo review of
the facts of this case and came to a different
conclusion. C.f. 8 C.F.R. 1003.1(e)(3)Gii) (Permitting
de novo review of “questions of law, discretion, and
judgment and all other issues in appeals from
decision of immigration judges.”) This is a
reviewable error of law, and the Fourth Circuit
erred in dismissing Mr. Rangolan’s petition for lack
of jurisdiction.
Indeed, the Government, at al] levels in this
case, failed to address the language contained in the
letter from the Embassy of Jamaica in Washington
DC which enhances Petitioner’s claim that the
government knows of his status as a homosexual
with HIV+ status and that the criminal law would
be imposed against him should he fail to conceal
what he is in public. To ignore the evidence in the
record and then claim that the evidence is
insufficient is tantamount to a denial of due
process. The advocacy of such a circular argument
does nothing to advance the rule of law and, rather,
only serves to undermine it.
Furthermore, the Seventh Circuit recently
held that forcing a person requesting withholding of
removal to Nigeria based on his status as a person
19
convicted of drug-related offenses to demonstrate
that a Nigerian law would be enforced against him
was ludicrous — “Short of presenting himself to
Nigerian authorities and waiting to see their
reaction, we do not fathom how, at this juncture,
Bosede could do more than take at face value the
State Department's evidence that Decree 33 has not
fallen into desuetude.” Bosede v. Mukasey, 512 F.3d
946, 952 (7 Cir. 2008). The Seventh Circuit went
further and found that the failure of the
Immigration Judge in that case to consider all of the
evidence presented by Bosede in support of his
claim for relief from removal to rise to the level of a
denial of due process.
Thus, for the BIA to claim that there is
insufficient evidence that the government of
Jamaica would target the petitioner in this case and
enforce the criminal law against homosexual
behavior is a denial of due process that should be
addressed at the Circuit Court level and the Fourth
Circuit’s holding that it lacks jurisdiction to do so is
erroneous.
20
CONCLUSION
The Court should grant the petition for a writ
of certiorari and reverse the decision of the Fourth
Circuit Court of Appeals.
Respectfully submitted,
LINDA A. DOMINGUEZ
Counsel of Record for Petitioner
1800 N. Charles Street, Ste. 300
Baltimore MD 21201
(410) 685-5550
App. l
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FILED
October 23, 2007
No. 07-1838
A41-830-049
PAUL ANTHONY RANGOLAN
Petitioner
V.
PETER D. KEISLER,
Acting United States Attorney General
Respondent
Petitioner has filed a motion for stay of deporta-
tion, and respondent has filed a response to the
motion. Respondent has filed a motion to dismiss, and
petitioner has filed a response to the motion.
The motion for stay of deportation is denied, and
the motion to dismiss is granted.
Entered at the direction of Judge Traxler with
the concurrence of Judge Niemeyer. Judge Gregory
App. 2
voted to grant the motion for stay and to deny the
motion to dismiss.
For the Court,
/s/ Patricia S. Connor
CLERK
App. 3
APPENDIX B
U.S. Department of Justice Decision of the Board
Executive Office for of Immigration Appeals
Immigration Review
Falls Church, Virginia 22041
File: A41 830 049—-—Arlington, VA Date: AUG 16 2007
In re: PAULANTHONY RANGOLAN
IN ASYLUM PROCEEDINGS
APPEAL
ON BEHALF
OF APPLICANT: Linda A. Dominguez, Esquire
ON BEHALF OF DHS: Adam L. Goldman
Assistant Chief Counsel
APPLICATION: Convention Against Torture
The Department of Homeland Security (DHS)
appeals the Immigration Judge’s decision dated
March 6, 2007, which granted the applicant’s applica-
tion for deferral of removal under the Convention
Against Torture (CAT), 8 C.F.R. § 1208.17 (2007). The
request for oral argument is denied. See 8 C.F‘R.
§ 1003.1(e)(7). The appeal will be sustained and the
Immigration Judge’s decision vacated in part.
The applicant, a native and citizen of Jamaica,
argues that he is eligible for deferral of removal
under the CAT, asserting that he is a homosexual
male who is HIV-positive; that he will be identified as
such; that he will be arrested and imprisoned for
committing homosexual acts; and that while in prison
App. 4
he will be tortured. For an act to constitute “torture”
for purposes of the CAT, it must be: (1) an act causing
severe physical or mental pain or suffering; (2) inten-
tionally inflicted; (3) for a proscribed purpose; (4) by
or at the instigation of or with the consent or acquies-
cence of a public official who has custody or physical
control of the victim; and (5) not arising from lawful
sanctions. See Matter of J-E-, 23 I&N Dec. 291, 297
(BIA 2002); 8 C.F.R. § 1208.18(a).
The Immigration Judge found that the applicant
met his burden of proving a likelihood of torture if
removed to his home country (I.J. at 8-9). Specifically,
the Immigration Judge determined that the applicant
was a homosexual; and that, if returned to Jamaica,
it was more likely than not that he would commit
homosexual acts; that he would be subject to impris-
onment for such acts; and that he would be tortured
(I.J. at 6, 9). We agree with the DHS that the Immi-
gration Judge’s conclusion is based on a series of
unsupported suppositions, and that the record does
not establish that it is more likely than not that any
torture the applicant may suffer in Jamaica would be
by or at the acquiescence of the government. See
Matter of J-F-F-, 23 I&N Dec. 912 (A.G. 2006).
We acknowledge that the United States Depart-
ment of State Country Report on Human Rights
Practices (Report) for Jamaica for 2005 indicates that
the Offenses Against the Person Act prohibits acts of
physical intimacy between men, which are punish-
able by imprisonment (Exh. 3, Tab F at 5). However,
there is little evidence of record as to the extent to
App. 5
which this law is enforced. In fact, evidence submit-
ted by the applicant indicates that it is impossible to
determine how frequently the law is enforced (Exh. 3,
Tab G at 21-25). Therefore, we cannot conclude that it
is more likely than not that the applicant would in
fact be arrested and prosecuted under this law. See
Matter of M-B-A-, 23 I&N Dec. 474, 478-80 (BIA
2002).
Similarly, the record does not establish that it is
more likely than not that, if arrested and imprisoned,
the applicant would be tortured by or at the acquies-
cence of the Jamaican government. The 2005 Report
states that male inmates who are deemed to be, or
who admit to being, homosexual are held in a sepa-
rate facility (Exh. 3, Tab F at 5). There were numer-
ous reports of violence by both wardens and other
inmates, though few inmates sought recourse through
the system (Exh. 3, Tab F at 5). The Report states,
however, that the law prohibits torture and that the
government had made efforts to remove abusive
guards and improve prison procedures (Exh. 3, Tab F
at 2). In addition, the government generally cooper-
ated with human rights and other groups who moni-
tored the prisons (Exh. 3, Tab F at 2). See generally
Matter of T-M-B-, 21 I&N Dec. 775, 779 (BIA 1997)
(the Department of State’s country profile is generally
entitled to considerable deference); Gonahasa v. INS,
181 F.3d 538, 544 (4th Cir. 1999) (a State Department
report on country conditions is highly probative
evidence in an asylum case). We also note that the
Report for 2006 shows that, although violence against
App. 6
known or suspected homosexuals continued, the
Jamaican government investigated and prosecuted
reported incidents, and, with respect to two prior
high-profile murder cases, made arrests and secured
a conviction with a life sentence. In addition, the
government instituted a process to investigate allega-
tions of physical abuse of inmates by prison guards.
The government was aiso working to reduce the
stigma of HIV/AIDS. See 8 C.F.R. § 1003.1(d)(3)(iv)
(the Board may take administrative notice of com-
monly known facts or the contents of official docu-
ments). Therefore, although problems persist, we
cannot conclude on this record that the Jamaican
government has instigated or been willfully blind to
the violence aimed at homosexuals. See Matter of J-E-,
supra; Lopez-Soto v. Ashcroft, 383 F.3d 228, 240 (4th
Cir. 2005) (government “acquiescence” includes
willful blindness). Accordingly, the following orders
will be entered.
ORDER: The Department of Homeland Secu-
rity’s Appeal is sustained, and that part of the Immi-
gration Judge’s decision dated March 6, 2007, which
granted deferral of removal under the Convention
Against Torture is vacated.
FURTHER ORDER: The applicant is ordered
removed to Jamaica.
/s/ Patricia A. Cole
FOR THE BOARD
App. 7
APPENDIX C
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Arlington, Virginia
File No.: A 41 830 049 March 6, 2007
In the Matter of
)
) IN REMOVAL
RANGOLAN, PAUL ANTHONY, ) pRocREDINGS
Respondent
CHARGE: The respondent had been ordered
removed pursuant to Section 238(b)
of the Act or the INS has initiated a
prior exclusion/deportation or re-
moval order of the above named
alien pursuant to 241(aX5) of the
Act.
APPLICATIONS: Withholding of removal under the
provisions of Section 241(b)(3) of the
Act; withholding of removal under
the provisions of Article 3 of the
United Nations Convention against
Torture; and deferral of removal un-
der the provisions of Article 3 of the
United Nations Convention against
Torture.
App. 8
ON BEHALF ON BEHALF
OF RESPONDENT: OF DHS:
Linda A. Dominguez Adam Goldman
Assistant Chief Counsel
ORAL DECISION OF THE
IMMIGRATION JUDGE
Respondent is an adult native and citizen of
Jamaica. The respondent in fact has been previously
deported from the United States and illegally entered
the United States. That issue is not contested by
either party. The respondent, both parties conceded,
would not be eligible, statutorily, for asylum based
upon his conviction of being an aggravated felon. The
respondent is seeking withholding of removal to
Jamaica, and in order to be eligible for this relief
under the provisions of Section 241(b)(3), respondent
must prove that his life or freedom would be threat-
ened in Jamaica on account of his race, religion,
nationality, membership in a particular social group,
or political opinion. In order to make this showing,
the respondent must establish a clear probability of
persecution on account of one of the enumerated
grounds. This clear probability standard requires a
showing that it is more likely than not that the re-
spondent would be subject to persecution if returned to
the country from which he seeks withholding. The law
provides, that if the respondent has been convicted of a
particularly serious crime, that the respondent would
not be statutorily eligible for withholding of removal
under the provisions of Section 241(bX3).
App. 9
With respect to relief under the provisions of
Article 3 of the United Nations Convention against
Torture, the respondent must prove that it will be
more likely than not that he would be subject to
torture in Jamaica by the instigation of or with the
acquiescence of public officials or those acting in an
official capacity. Unlike asylum, which requires a
showing of nexus, the respondent need not establish
that the torture was on account of any particular
ground.
As I stated, the applicant for withholding of
removal under the Torture Convention bears the
burden of proving that it would be more likely than
not that he or she would be tortured if removed to
Jamaica. If an Immigration Judge determines that
the respondent is more likely than not to be tortured
in Jamaica, the applicant for withholding of removal
under the Torture Convention shall be granted unless
the respondent is subject to a ground of mandatory
denial. The grounds of mandatory denials are as fol-
lows: for applications filed after April 1, 1997 withhold-
ing of removal must be denied if an alien is deportable
under 237(aX4)(D) of the Act; 2) if the alien ordered,
incited, assisted or otherwise participated in persecu-
tion of an individual because of the individual's race,
religion, nationality, membership in a _ particular
social group, or political opinion; 3) if the alien having
been convicted by final judgement of a particularly
serious crime is a danger to the community of the
United States; 4) there are serious reasons to believe
that the alien committed a serious nonpolitical crime
App. 10
outside the United States before the alien arrived in
the United States; and 5) that there are reasonable
grounds to believe that the respondent is a danger to
the security of the United States.
If the evidence indicates the applicability of one
or more of the grounds for denial of withholding
enumerated in the Act, the applicant shall have the
burden of proving by the preponderance of the evi-
dence that such ground does not apply.
Now in evaluating this case with respect to the
forture Convention, I have applied the definition of
torture contained in 8 C.F.R. Section 208.18(a)(1)-(8).
If an alien is not eligible for withholding of removal
under provisions of Article 3 of the United Nations
Convention against Torture, the alien shall be
granted deferral of removal to Jamaica where he or
she is more likely than not to be tortured if the alien
has been ordered removed and the alien is entitled to
protection under the Convention against Torture and
the alien is subject to the mandatory denial of with-
holding of removal pursuant to 8 C.F.R. Sections
208.16(b)(2) or (b)(3).
Deferral of removal does not confer upon the
respondent any lawful or permanent Immigration
status in the United States. If the respondent is subject
to the custody of the Department of Homeland Secu-
rity, deferral of removal would not result in his or her
being released from custody. Deferral of removal may
be terminated by the Court if the Court later deter-
mines that it is not likely that the respondent would
App. 11
be tortured in Jamaica. The Department of Homeland
Security Director, with jurisdiction over the alien
whose removal has been deferred, must file a motion
fulfilling certain requirements with the Immigration
Court to schedule a hearing to consider whether
deferral of removal should be terminated.
Termination of deferral of removal can also occur
if the Attorney General, through the Secretary of
State, has received diplomatic assurances from
Jamaica that the respondent would not be tortured if
the respondent were removed to that country. The
Attorney General must decide whether the assur-
ances are sufficiently reliable to allow the alien’s
removal to that country, consistent with Article 3 of
the Convention against Torture. Deferral of removal
is applicable only to the country to which it has been
determined the alien is likely to be tortured and,
thus, an alien may be removed to any other country
where he or she is not likely to be tortured.
The respondent and the respondent’s two sisters
have testified under oath with respect to the respon-
dent’s applications for relief. The respondent also
submitted numerous documents which this Court has
considered, which include the State Department
Country Report concerning the treatment of homo-
sexuals in Jamaica. The Court has also received and
taken into consideration the criminal history of the
respondent, which is contained in the sentencing
report conviction records.
App. 12
With respect to the testimony of the respondent’s
two witnesses, the sisters, I find that their testimony
is credible. With respect to the testimony of the
respondent, I have taken into consideration the
offenses for which he has been convicted including
the fraud offenses, and it is my opinion that the
respondent's testimony with respect to one of the
main issues in the case, the fact that he claims he is a
homosexual, is credible. His testimony with respect to
that issue in my opinion has been detailed and con-
sistent and corroborated by the credible testimony of
the respondent’s sisters. I have not taken into consid-
eration any mannerisms of the respondent in arriving
to conclusion that he is a homosexual.
With respect to the Government’s concerns on
that issue, that the respondent did marry a female
and had a child from another female, it is the opinion
of the Court that although that has taken place, that
a person can still be a practicing homosexual and be
involved in a heterosexual relationship. The Court
could almost take administrative notice of that fact,
based upon some of the individuals mentioned here,
an Episcopalian bishop, and so it is not in the opinion
of the Court applying the Court’s common sense and
knowledge of the ways of the world that a person can
be married and still be a homosexual. I do find that
the respondent is a homosexual.
With respect to his testimony concerning the
offenses that he has committed, it is the opinion of
the Court that the respondent in his testimony,
although I have found him to be basically credible,
App. 13
that he attempted to minimize his involvement in
these very serious offenses for which he stands con-
victed.
Therefore, it is the opinion of the Court with
respect to the main issue in this case, whether or not
the respondent is a homosexual, that he has met his
burden to prove that he is a homosexual. With respect
to.a nexus between the respondent being a homosex-
ual and his application for relief under the provisions
of Section 241(b\(3) withholding of removal, it is the
opinion of the Court.that the respondent is a member
of a particular social group, and the case cited by the
Government attorney would be the applicable case,
Matter of Toboso-Alfonso, Int. Dec. 3222. That case
has held that an applicant who had the status of
being a homosexual both established his membership
in a particular social group and demonstrated that
his freedom was threatened within the meaning of
the Act. So it is the opinion of the Court that the
respondent is a member of a particular social group.
Now with respect to the relief of withholding of
removal, as I stated, there is a nexus, however, the
law does provide that if the respondent is convicted of
a particularly serious crime that the respondent is
not statutorily eligible for withholding of removal
under the Act. The law provides that if a respondent
receives a sentence of five years or more that that
would conclusively make that crime a particularly
serious crime and a danger to society. However, that
is just one element. A person can still be guilty of
committing particularly serious crimes if the sentence
App. 14
is less than the five years. It is the opinion of the
Court that one of the crimes in which the respondent
was convicted, using, carrying and possessing a
firearms during a drug trafficking offense in violation
of 18 U.S.C. Section 924(c)(1)(A)(i), is considered by
this Court to be a particularly serious crime. He
received 27 months for that particular offense.
I also have taken into consiceration in evaluating
whether respondent is a danger to the community the
fact that he also had in his pos#ession or at least in
his home a pistol, a shotgun, assault rifles, three
handguns and also the large amount of marijuana
that he was convicted of possessing, and the fact, it is
an aggravating factor, he testified that he did not use
marijuana, the fact that he at least passed that
marijuana onto others would make him a danger to
society. I have also taken into consideration that he
has changed vehicle registrations on numerous
occasions and used aliases on numerous occasions.
Therefore, it is the opinion of the Court that the
respondent has committed a particularly serious
crime.
With respect to withholding of removal under the
provisions of Article 3 of the United Nations Conven-
tion against Torture, although that particular offense
does not require a nexus to any of the five grounds, it
is the opinion of the Court that the respondent has
been convicted of a final judgement of a particularly
serious crime and is a danger to the community, and,
therefore, respondent would not be eligible for the
App. 15
relief of withholding of removal under the Convention
against Torture.
With respect to deferral of removal, it is the
opinion of the Court that the respondent has met his
burden to prove that it would be more likely than not
that he would suffer torture if removed to Jamaica. I
have taken into consideration the background docu-
ments submitted by the respondent in the nature of
articles, but most importantly the Country Reports
for Human Rights Practices published by the State
Department on March 8, 2006. That report states
that the offenses against the person’s act prohibit acts
of gross indecency, generally interpreted to be any
kind of physical intimacy between men in public or in
private, which are punishable by ten years in prison.
Although Prime Minister Patterson stated that the
country would not be pressured to change its antiho-
mosexual laws, in October a parliamentary commit-
tee met and proposed a debate on that issue. The
report also goes on to list individuals who were homo-
sexuals who were killed, and also that in December a
homophobic mob allegedly chased a homosexual off a
pier where he drowned.
I have also taken into consideration the fact that
I did find credible that the respondent was chased
and beaten by an antihomosexual mob and that he
would have no recourse to the government of Ja-
maica. I have also taken into consideration, with
respect to the State Department Report section on
torture, that although the law prohibits such prac-
tices, reports of physical abuse of prisoners by guards
App. 16
continued despite efforts of the government to remove
abusive guards and improve procedures. This lists
instances where individuals who are apprehended
and detained are tortured. It is the opinion of the
Court that if the respondent were returned to Ja-
maica that it would be more likely than not based
upon his history as being a homosexual that he would
commit homosexual acts and would be subject to
imprisonment for that act and tortured.
ORDER
Accordingly, the application for withholding of
removal under the provisions of Section 241(b)(3) is
denied.
The application for withholding of removal under
the provisions of Article 3 of the United Nations
Convention against Torture is denied.
The application for deferral of removal under the
provisions of Article 3, the United Nations Conven-
tion against Torture is granted.
WAYNE R. ISKRA
Immigration Judge
App. 17
APPENDIX D
FILED: November 21, 2007
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1838
(A41-830-049)
PAUL ANTHONY RANGOLAN,
Petitioner
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent
-
ORDER
The Court denies the motion for stay and the
petition for rehearing and rehearing en banc. No poll
was requested on the petition.
Entered at the direction of Judge Niemeyer with
the concurrence of Judge Traxler. Judge Gregory
voted to grant the motion for stay and petition.
For the Court
/s/ Patricia S. Connor, Clerk
App. 18
[SEAL]
APPENDIX E
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals,
Office of the Clerk
P.O. Box 8530
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041
Leon Fresco, Esquire Office of the District
701 Brickell Ave., Ste. 300 Counsel/PIS
Miami, FL 33131 P.O. Box 1711
Harlingen, TX 78551
n> iia eas
Date of this notice:
12-18-2007
Enclosed is a copy of the Board’s decision and order in
the above-referenced case.
Sincerely,
Donna M. Carr
Chief Clerk
Enclosure
Panel Members:
Lauri S. Filppu
Roger Pauley
Patricia A. Cole
App. 19
U.S. Department of Justice Decision of the Board
Executive Office for of Immigration Appeals
Immigration Review
Falls Church, Virginia 22041
File: Q§J— Los Fresnos,TX Date: DEC 18 2007
re:
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF
OF RESPONDENT: Leon Fresco, Esquire
ON BEHALF OF DHS: Dona J.F. Justus
Assistant District Counse!
CHARGE:
Notice: Sec. 237(aX1\B), I&N Act [8 U.S.C.
§ 1227(a\(1\B)] -— In the United
States in violation of law
APPLICATION: Asylum; withholding of removal;
Convention Against Torture; volun-
tary departure
In a decision dated May 4, 2007, an Immigration
Judge found the respondent removable as charged
and denied his applications for asylum, withholding
of removal, protection under the Convention Against
Torture, and for voluntary departure. The respon-
dent’s appeal of that decision will be sustained in part
and dismissed in part.
On appeal, the respondent argues that the Immi-
gration Judge erred in not granting him an exception
App. 20
to the l-year asylum application filing requirement
because he established that he suffers from Post
Traumatic Stress Disorder (PTSD) due to his violent
harassment and the shooting he experienced in
Jamaica on account of his homosexuality. See 8 C.F.R.
§ 1208.4 (2007). The Immigration Judge did not find
the respondent’s assertions about his medical condi-
tion to be incredible and also took into consideration
the testimony of respondent’s doctor (I.J. at 9-10, 30);
however, he found that the respondent had failed to
file a timely asylum application because he did not
know about such relief and because he failed to
obiain legal counsel at the time of his arrival (I.J. at
30).
The respondent contests this determination on
appeal, asserting that the Immigration Judge's
decision failed to take into consideration the doctor’s
testimony and also erroneously relied on a case from
the United States Court of Appeals for the Eighth
Circuit (Respondent's Br. at 14-15 (citing Molathwa v.
Ashcroft, 390 F.3d 551 (8th Cir. 2004))). Furthermore,
because the Immigration Judge found the respondent
and all of his witnesses credible, according to the
respondent, he also should have credited their testi-
mony that the respondent’s failure to file an asylum
application within 1 year of arrival was due to mental
illness (Respondent’s Br. at 15).
We agree with the respondent that to the extent
the Immigration Judge appears to have relied on
Molathwa v. Ashcroft, supra, that case does not
support his decision (see I.J. at 30-31). The alien in
App. 21
Molathwa, supra, did not suffer from PTSD and the
Eighth Circuit determined only that it did not have
jurisdiction to review the determination that the
application was not timely filed. Jd. at 553. See sec-
tion 208(a)(3) of the Immigration and Nationality Act,
8 U.S.C. § 1158(a)(3). The case offers no grounds upon
which to find the respondent statutorily ineligible for
asylum.
However, we are not prepared to find clear error
in the Immigration Judge’s factual determinations
leading to his decision finding the respondent statu-
torily ineligible for asylum. As noted by the Immigra-
tion Judge, the record contains different explanations
for why the respondent did not timely file an applica-
tion (I.J. at 28-31). The Immigration Judge notes that
the respondent’s original asylum application indi-
cated that he did not know about asylum (I.J. at 28-
29); his amendment, which the Immigration Judge
admits supersedes the original, references the trouble
he experienced due to his experiences in Jamaica and
that the result has been a diagnosis of PTSD (I.J. at
29-30). The Immigration Judge then notes that the
respondent testified both that he did not know he
could file for asylum when he first arrived here and
also feared returning to Jamaica (I.J. at 30).
Based on the respondent’s statements, we cannot
find clear error in the Immigration Judge’s finding
that the respondent failed to establish that PTSD
caused his late filing, as opposed to failing to file
simply because he was not aware of the relief. The
respondent simply has not shown that he likely would
App. 22
have learned about asylum and applied within 1 year
had he not suffered from PTSD. As correctly noted by
the respondent, the Immigration Judge found the
respondent and his witnesses credible (Respondent’s
Br. at 23; LJ. at 28). Like the Immigration Judge, we
do not find that this testimony or other evidence from
the respondent’s expert witness provides a direct link
between his PTSD and his actions or inactions that
would account for the late-filing of the asylum appli-
cation.
We do not doubt that suffering from PTSD can
affect one’s life in many ways. However, it is the
respondent’s burden to establish that extraordinary
circumstances led to his inability to file a timely
application. See 8 C.F.R. § 1208.4(a)(5\i), (ii); see also
Mukamusoni v. Ashcroft, 390 F.3d 110, 117 (1st Cir.
2004) (noting that the Immigration Judge had ex-
cused the alien’s late filing of the asylum application
because she was diagnosed with PTSD which left her
debilitated with fear and anxiety). We are not con-
vinced that the respondent was debilitated in such a
way that his medical condition prevented him from
completing and submitting an asylum application.
Although the respondent is statutorily ineligible
for asylum, he remains eligible for withholding of
removal. The Immigration Judge assumed that the
respondent’s homosexuality qualified as membership
in a particular social group and that he had been
harmed on account of his sexual orientation (I.J. at
31), but he denied the respondent’s claim for with-
holding of removal because the respondent had never
App. 23
been harmed, threatened, or harassed by the gov-
ernment of Jamaica (I.J. at 31-34). The Immigration
Judge also pointed out that the respondent had not
reported the incidents of harm to the police except for
the time he was shot and there was no evidence that
this incident was not fully investigated by the police
(LJ. at 31-32).
We cannot agree with the Immigration Judge’s
conclusion that the respondent has failed to show
past persecution. In particular, we note that while the
Immigration Judge's decision clearly summarizes the
evidence presented by the respondent (I.J. at 9-28),
his analysis does not appear to weigh in all of the
important aspects of the evidence when deciding that
the respondent failed to meet his burden of proof (see
I.J. at 31-38). The Immigration Judge concludes that
the there are instances in Jamaica where police and
other public officials commit acts of violence against
homosexuals or do not investigate violence by private
citizens, but that these are “rogue police officers” and
the “respondent has not shown that it is more likely
than not that respondent would suffer persecution by
any Government agent in Jamaica” (I.J. at 37-38). We
do not agree.
\
The respondent was shot because of his homo-
sexuality. Further, the record documents violence
towards homosexuals by public officials and private
citizens who are not brought to justice. The police are
not generally inclined to help homosexuals because a
homosexual is considered a persona non grata. The
evidence of societal and governmental bias would not
App. 24
enable DHS to rebut the presumption arising from
past persecution, such that a grant of withholding of
removal is mandated. Accordingly, we decline to ad-
dress the respondent’s claim for protection under the
Convention Against Torture and also find no grounds
upon which to remand in order to allow, as requested,
the respondent to submit additional evidence.
ORDER: The respondent’s appeal is sustained in
part and dismissed in part.
FURTHER ORDER: The Immigration Judge’s
decision finding the respondent statutorily ineligible
for asylum is affirmed.
FURTHER ORDER: The Immigration Judge’s
decision finding the respondent ineligible for with-
holding of removal is vacated.
FURTHER ORDER: Pursuant to 8 C.FR.
§ 1003.1(d)(6), the record is remanded to the Immigra-
tion Judge for the purpose of allowing the Department
of Homeland Security the opportunity to complete or
update identity, law enforcement, or security investi-
gations or examinations, and further proceedings, if
necessary, and for the entry of an order as provided
by 8 C.F.R. § 1003.47(h). See Background and Secu-
rity Investigations in Proceedings Before Immigration
Judges and the Board of Immigration Appeals, 70
Fed. Reg. 4743, 4752-54 (Jan. 31, 2005).
/s/ Lari Filppu
FOR THE BOARD
App. 25
U.S. Department of Justice Decision of the Board
Executive Office for of Immigration Appeals
Immigration Review
Falls Church, Virginia 22041 __ ~ a
File: QM —Los Fresnos,TX Date: DEC 18 2007
vi
CONCURRING/DISSENTING OPINION:
Patricia A. Cole, Board Member
I agree with the majority that the respondent is
eligible for withholding of removal. I write separately,
however, because I would also find the respondent
eligible to apply for asylum in that he has established
that his medical condition entitles him to an excep-
tion to the 1-year filing bar.
Although there were different explanations
provided for why the respondent did not timely file an
application (I.J. at 28-31), it is not clear that the
respondent’s medical condition did not contribute to
his inability to gain information about United States
asylum laws. As correctly noted by the respondent,
the Immigration Judge found the respondent and his
witnesses credible (Respondent's Br. at 23; LJ. at 28).
While the respondent does not provide a clear picture
of mental disability preventing his timely filing which
would give rise to an exception to the l-year filing
bar, the respondent’s doctor provides more concrete
explanations of the respondent’s mental state and
provides evidence of a condition that would clearly
impact a person’s ability to seek out legal aid and
even human contact.
App. 26
For example, Dr. Linskey, a clinical psychologist
who examined the respondent, testified that the
respondent suffered from feelings of intense psycho-
logical distress and fear due to his experiences in
Jamaica, and that this would lead him to avoid any
situations which might promote the type of hostility
he had previously encountered on account of his
homosexuality (Tr. at 28-31). In light of this evidence,
I would find clear error in the Immigration Judge’s
conclusions regarding the reason why the respondent
failed to file a timely application for relief and, there-
fore, I would find that he has established grounds for
an exception to the 1-year filing requirement. 8 C.F.R.
§ 1208.4(aX5 Xi), (ii) (2007); see Mukamusoni v. Ashcroft,
390 F.3d 110, 117 (1st Cir. 2004) (noting that the
Immigration Judge had excused the alien’s late filing
of the asylum application because she was diagnosed
with PTSD which left her debilitated with fear and
anxiety). I would then remand proceedings in order
for the Immigration Judge to reassess the respon-
dent’s eligibility for asylum.
/s/ Patricia A. Cole
Patricia A. Cole
Board Member
App. 27
APPENDIX F
EMBASSY OF JAMAICA
1520 NEW HAMPSHIRE AVENUE, N.W.
WASHINGTON, D.C. 20036
TELEPHONE: (202) 452-0660
FACSIMILE: (202 452 0081
January 18, 2006
Mr. Paul Rangolan
1435 North Courthouse Rd.
Arlington, VA 22201
Dear Mr. Rangolan:
This serves to acknowledge receipt of your letter
dated December 17, 2005 addressed to the Ambassa-
dor in which you expressed your concerns about
returning to Jamaica. I have noted these concerns;
however, neither the Ambassador nor myself can
intervene to prevent the United States government
from deporting you.
I have gleaned from your letter that you are afflicted
with HIV Aids and your sexual preference is not
compatible with the opposite sex. Consequently, you
have alleged that persons armed with machetes in
Jamaica chased you. Please bear in mind that your
sexual orientation is still a breach under Jamaican
laws; nonetheless, an attack on your person should
have been reported to the police. You will have to
conceal your sexual body language to prevent future
assault as you move around.
App. 28
Unfortunately, I cannot accede to your request to
withhold a travel document from US Immigration.
Your HIV status is not grounds for refusing to issue a
travel document either. I wish to advise that systems
are in place in Jamaica to assist persons with HIV
Aids; for example, treatment is available, the medica-
tion can be accessed at a reduced rate and counseling
is also available. These resources will enable you to
live a normal life.
I am suggesting that you contact your relatives here
in the United States and mobilize their support to
enhance your welfare on your return to Jamaica. If
you have the evidence to challenge your removal on
humanitarian grounds, I implore you to go for it.
Good luck in your endeavour to remain in the United
States.
Yours sincerely,
/s/ Ahan Brown
Ahan G. Brown
Security Attaché
App. 29
APPENDIX G
REASONABLE FEAR DETERMINATION
ALIEN NUMBER: INTERVIEW DATE:
A41 830 049 14 Dec 2006
NAME: RANGOLAN, ASYLUM OFFICER:
Paul Anthony ZAR 145
COUNTRY: Jamaica REVIEWING SAO:
ZAR 139
ASYLUM OFFICE: ZAR LOCATION:
DHS,ICE,WAS,DRO
Background
The applicant indicated that he is a 42 year-old
native and citizen of Jamaica, who last entered the
United States with a legal permanent residence card
on 20 March 1999. The following has been ascer-
tained from information in the applicant's file’ and
from the applicant’s testimony. On 19 September
2006, the United States District Court for the District
of Columbia convicted the applicant of (1) Using,
Carrying & Possessing A Pistol During A Drug Traf-
ficking Offense, and (2) Illegal Reentry Of An Alien
Foliowing Conviction For An Aggravated Felony, in
violation of 18 USC 924(c\1)(A) and 8 USC 1326(a),
respectively. The total sentence was “Time Served”
' Please note that it appears that A27 959 830 (located at
NRC, and requested expeditiously on 26 December 2006) must
be consolidated with the applicant’s primary file, A41 830 049
(already consolidated with A28 371 000).
App. 30
given that the applicant cooperated with agencies in
an ongoing investigation.” Thus, the applicant has a
final conviction of an aggravated felony as defined in
sections 101(a)(43)(B) and (O) of the INA, 8 USC
1101(a)(43)(B). The Immigration Judge ordered the
applicant deported on 21 December 1998. And, the
applicant was removed from the United States on 13
January 1999. However, the applicant illegally reen-
tered the United States on or about 1 March 1999.
Previously, the applicant was detained at the Pied-
mont Regional Jail in Virginia. Subsequently, the
applicant has been relocated to the Hampton Roads
Regional Jail in Virginia. On 28 September 2006, ICE
served Notice of Intent/Decision to Reinstate Prior
Order on the applicant pursuant to 241(a)(5) of the
* According to Form I-831, Record of Deportable/
Inadmissible Alien, on 27 February 2005, the applicant pleaded
guilty to a violation of 18 USC 922. And, on 19 January 2006,
the court sentenced, in relevant part, the applicant to impris-
onment for twenty-seven (27) months. Additionally, Form I-831
indicated that the applicant completed his 27-month incarcera-
tion. Please note that pages three (3) and six (6) of the court
disposition were missing from the A file. Also, please note that
on 16 March 1990, the United States District Court for the
District of Columbia convicted the applicant of Embezzlement
{Bly [A] Bank Employee, in violation of 18 USC 656. The court
sentenced, in relevant part, the applicant to “probation for a
term of five (5) years with credit for time served”. Further,
please note that on 24 February 1997, the United States District
Court for the District of Maryland convicted the applicant of
Conspiracy [TJo File False Tax Returns, in violation of 18 USC
286. The court sentenced, in relevant part, the applicant to
imprisonment for twelve (12) months and one (1) day as well as
to pay restitution to the United States Internal Revenue Service.
Aop. 31
INA. Because the applicant expressed a fear of return
to Jamaica, he was referred to the Arlington Asylum
Office in Arlington, Virginia, for a reasonable fear
determination on 8 November 2006. A reasonable fear
orientation was completed with the applicant on 9
November 2006, at which time the applicant indi-
cated that his representative was Linda DOMINGUEZ. |
ZAR interviewed the applicant at the DHS/ICE
Washington District Office on 14 December 2006, in
connection with his reasonable fear claim.
The applicant expressed a fear that private individu-
als in Jamaica will harm, kill or torture him on
account of his membership in a particular social
group (effeminate Jamaican men who have an actual
or perceived homosexual orientation). The applicant
believes that such harm or death will occur with the
approval or insistence of authorities for the govern-
ment of Jamaica.
Testimony
The applicant testified that he is a citizen and a
national of Jamaica with permanent residence in the
United States as the spouse of an United States
citizen.. The applicant indicated that he initially
entered the United States without inspection between
* The applicant is unaware whether he remains married
legally to the United States citizen spouse.
App. 32
1982 and 1984. The applicant remained in the
United States until 13 January 1999, when United
States immigration officials removed the applicant to
Jamaica pursuant to an Immigration Judge’s Order of
Removal issued on 21 December 1998. The applicant
remained in Jamaica until on or about 1 March 1999,
when the applicant returned to the United States.”
While in Jamaica from about January 1999 until
about March 1999, the applicant indicated that he
resided with a brother in Kingston. Neighbours
inquired of the applicant’s brother whether the appli-
cant is an homosexual given the applicant’s effemi-
nate appearance, speech and walk. The applicant’s
brother always replied in the negative. However, the
neighbours continued to question the applicant’s
brother about the applicant’s sexual identity. Conse-
quently, the applicant left his brother’s residence and
moved to Half Tree House in central Kingston, an
area commonly known to be frequented by homo-
sexuals.
Between January and February 1999, about thirty
(30) individuals surrounded the applicant and his
* Review of the applicant's A file revealed that the applicant
previously indicated that he entered the United States with
inspection on or about 1 January 1983 via Miami, Florida, with
permission to remain in the United States as a visitor for about
three (3) weeks.
* The applicant indicated that he presented his legal
permanent residence card to United States immigration officials
at Miami, Florida, to make an entry into the United States.
App. 33
friend, shouting derogatory references to homosexual
individuals and cutting the applicant on his left arm
as well as injuring the applicant's friend’s head. The
applicant and his friend escaped from the group of
assailants and received medical assistance. Then, the
applicant made arrangements to return to the United
States via the Bahamas. Subsequently, the appli-
cant’s sister informed the applicant that neighbours
who questioned the applicant’s sexual orientation
accosted and shot the brother with whom the appli-
cant lived from around January to March 1999 be-
cause of the applicant’s sexual orientation. The
applicant’s brother died on 22 July 1999.
Analysis
To establish a reasonable fear of persecution, an
applicant must establish that there is a reasonable
possibility that he would be persecuted on account of
his race, religion, nationality, membership in a par-
ticular social group, or political opinion in the country
to which he has been ordered removed. To establish a
reasonable fear of torture, an applicant must estab-
lish that there is a reasonable possibility that he
would be subjected to torture in the country to which
he has been ordered removed, as defined in the
Convention against Torture and the United States
regulations.
App. 34
Credibility
Although there were initial concerns of the appli-
cant’s Jamaican citizenship and nationality because
of the applicant’s oral testimony at the reasonable
fear interview’, the applicant’s level of education and
fluency in the English language, subsequent eviden-
tiary documentation obtained by ICE officials indi-
cate that the applicant is a citizen of Jamaica.
Specifically, a Birth Registration Form indicated that
the applicant was born at the University College
Hospital of the West Indies, located in Mona, St.
Andrew Parish, Jamaica, on 19 March 1964. Addi-
tionally, a statement by the Assistant Commissioner
* An initial search of the applicant’s primary A file failed to
indicate that the applicant had any identity documents such as
a birth certificate, passport or national identity card. Thereby,
the Asylum Pre-Screening Officer (“APSO”) asked the applicant
questions that would assist the applicant in establishing his
Jamaican identity. Specifically, the APSO asked the applicant
for: (a) the geographical location of the applicant’s hometown,
Kingston, (b) a description of the Jamaican flag, (c) the title of
the Jamaican national anthem, (d) any words to the Jamaican
national anthem, (e) the name of the current president of
Jamaica and (f) Jamaica’s date of independence. When provided
an opportunity to respond to each of these questions, the
applicant responded in the negative; he did not know the answer
to any of these questions (please note that the applicant cor-
rectly indicated that the Jamaican flag does contain the colour
“black”). When asked why the applicant was unable to provide a
response to the aforementioned questions given that the ques-
tions were civic questions that any national and citizen of
Jamaica should know, the applicant only responded that, “I just
do not remember. | just choose not to remember anything about
Jamaica, period.”
App. 35
of Police of the Jamaica Constabulary, issued to the
American Consulate in Mexico, indicated that the
applicant is a native of Jamaica, born on 19 March
1964. In light of this additional evidentiary documen-
tation used by ICE officials to remove the applicant
from the United States to Jamaica in 1999, the appli-
cant’s overall testimony concerning his Jamaican
citizenship is deemed to be credible. Additionally, the
applicant’s testimony concerning events that hap-
pened to him in Jamaica in 1999, resulting in his
reasonable fear of persecution on account of his
membership in a particular social group (effeminate
Jamaican men who have an actual or perceived
homosexual orientation), is deemed to be credible.
Applicant’s Past Mistreatment
The events described by the applicant amount to past
persecution. The applicant testified that a group of 30
unknown individuals taunted him with derogatory
terms and cut him on his left arm sometime between
January and February 1999 because of the appli-
cant’s homosexual orientation. The applicant did not
report the incident to the Jamaican authorities
because the authorities have not been responsive to
investigations of acts targeting homosexuals. Also,
the applicant indicated that his brother’s neighbours
killed the brother in July 1999 because of the appli-
cant’s homosexual orientation. Thus, the harm suf-
fered by the applicant and his family member rises to
the level of persecution.
App. 36
Applicant’s Risk of Being
Persecuted or Tortured
A preponderance of the evidence fails to establish
that there has been a fundamental change in circum-
stances such that the applicant no longer has a well-
founded fear of persecution if he were to return to
Jamaica. Credible country conditions reports indicate
that:
The Jamaica Forum for Lesbians, All Sexu-
als, and Gays (J-FLAG) continued to report
allegations of human rights abuses, includ-
ing police harassment, arbitrary detention,
mob attacks, stabbings, harassment of ho-
mosexual patients by hospital and prison
staff, and targeted shootings of homosexuals.
Police often did not investigate such inci-
dents. J-FLAG documented a number of in-
stances of homophobic violence during the
year, some of which resulted in charges
brought to court, while others were never re-
ported to authorities by reason of fear ...
male inmates deemed by prison wardens to
be homosexual are held in a separate facility
for their protection. The method used for de-
termining their sexual orientation is subjec-
tive and not regulated by the prison system
... Homosexual men were hesitant to report
incidents against them because of fear for
their physical wellbeing. Human rights NGOs
and government entities agreed that brutality
against homosexuals, both by police and pri-
vate citizens, was widespread in the commu-
nity. Country Reports on Human Rights
App. 37
Practices 2005, Jamaica, U.S. Department of
State, http:/Awww.state.gov/g/drl/rls/hrrpt/2005/
61733.htm, [last accessed 26 December 2006].
... Others tell tales of police stopping cars
full of men at night and harassing them with
homophobic insults . . . there is no openly ac-
knowledged gay social space in Jamaica. Not
one bar, nightclub or café where same-sex
couples can meet openly without the threat
of violence ... For the most part Jamaica
seems to function socially on a ‘Don't ask,
don’t tell’ policy when it comes to sexual ori-
entation ... To navigate this minefield you
have to act straight or at least not too gay...
in Jamaica the stakes are higher. Let your
mask slip in the wrong place or at the wrong
time and you could find yourself at the mercy
of the mob. Troubled Island, Guardian, 27
April 2006, http://www.guardian.co.uk/print/
0,,329466084-103390,00.htm, [last accessed
26 December 2006].
‘Police abuse prompting violence against
men perceived to be homosexual: ‘The two
male officers started to beat the man with
batons. I turned to the female officer and
asked, ‘What has he done wrong?’ She turned
to me and said, ‘Everyday [wle have to warn
people about this guy coming on the beach.
I'm going to lock him up.’ I said, ‘For what?’
She didn’t say. The two policemen said, ‘Beat
him because him a battyman (homosexual].’
~ Fred L., 30, who witnessed police beating a
man perceived to be gay and then urging others
App. 38
to beat him because he was homosexual on June
18 2004 in Montego Bay. The man fled the police
and according to local accounts, was chopped,
stabbed, and stoned to death by a crowd. Testi-
monies from “Hated to Death: Homophobia, Vio-
lence, and Jamaica’ HIV/AIDS Epidemic”,
Human Rights Watch, http://hrw.org/english/
docs/2004/11/16/jamaic9674.htm, [last accessed
10 January 2007).
A preponderance of the evidence fails to establish
that the applicant could avoid future persecution by
relocating within his country and that, under all the
circumstances, it would be reasonable for him to do
so. As referenced in the aforementioned credible
country conditions reports, the threat of persecution
exists countrywide because the applicant's persecu-
tors are private individuals who act with the approval
or the insistence of governmental authorities in
Jamaica.
Conclusion
For the reasons stated above, ‘the applicant has
established a reasonable fear of persecution.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.