Petition for Writ of Certiorari — Rangololan v. Mukasey (No. 07-1169)

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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.

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