Delon Lancaster v. Attorney General United State , 694 F. App'x 76 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-1047 and 16-2581
_____________
DELON LUCIUS LANCASTER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision of the Board of Immigration Appeals
(No. A039-060-369)
Immigration Judge: Quynh V. Bain
______________
Argued: May 11, 2017
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Before: AMBRO, RESTREPO and COWEN, Circuit Judges.
(Filed: June 1, 2017)
Michael S. Doluisio
Ryan M. Moore
Dechert LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Kimberly Cullen, Law Student [ARGUED]
University of Pennsylvania School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Pro Bono Counsel for Petitioner
Joyce R. Branda
Cindy S. Ferrier
Surell Brady
Timothy G. Hayes [ARGUED]
Office of Immigration Litigation
Civil Division, United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
______________
OPINION*
______________
RESTREPO, Circuit Judge.
Petitioner Delon Lancaster appeals from a decision of the Board of Immigration
Appeals (BIA) affirming the Immigration Judge’s (IJ’s) order of removal. We will deny
Lancaster’s petition for review.1
I
Lancaster, a native of Guyana, was admitted to the United States as a lawful
permanent resident at the age of six in 1985. In 2004, he pled guilty to conspiracy to
commit armed bank robbery and to using and carrying a firearm in a bank robbery
conspiracy, 18 U.S.C. §§ 371, 924(c). He was sentenced to 161 months’ incarceration.
These convictions rendered him removable from the United States. Lancaster sought
deferral of removal under the United Nations Convention Against Torture and Other
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
Lancaster also filed a petition for review of the BIA’s denial of his motion to
reopen, but raises no claims on appeal regarding this motion. We will, therefore, dismiss
this petition for review.
2
Cruel, Inhuman or Degrading Treatment or Punishment (CAT). S. Treaty Doc. No. 100–
20, 1465 U.N.T.S. 85. He asserted that he “is more likely than not to be tortured” if
removed to Guyana because he is gay. 8 C.F.R. § 1208.17(a).2
At a hearing before the IJ, Lancaster submitted three letters to support the
contention that he will be tortured if returned to Guyana. His aunt, who lives in Guyana,
wrote that Lancaster’s father told “everyone” that Lancaster is gay and that “they are
going to ‘kill’” him. App. 372. One of Lancaster’s cousins, who lives in the United
States, wrote that another cousin who is a gang member in Guyana said that he will kill
Lancaster because he is gay. Another cousin, who also lives in the United States, wrote
that Lancaster “wouldn’t survive in Guyana.” App. 370.
Lancaster testified similarly that his “family” informed him that if he returns to
Guyana he will be killed because of his sexual orientation. App. 285. The IJ questioned
him, and some of these questions gave rise to a claim of bias before the BIA and this
Court. Specifically, the IJ asked Lancaster whether he could avoid harm in Guyana by
either concealing his sexual orientation or not having sex with men.
The IJ denied Lancaster’s application for deferral of removal under CAT. She
gave several independent reasons for denying relief. Among other things, she found that
Lancaster’s testimony that he will be harmed in Guyana was “equivocal at best or
2
An immigrant is entitled to deferral of removal under CAT if he establishes that
he “is more likely than not to be tortured” in the country of removal. 8 C.F.R.
§ 1208.17(a). Torture is defined as an act “by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . . for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 1208.18(a)(1).
3
speculative.” App. 237. In addition, Lancaster could relocate within Guyana to avoid
harm, and he did not demonstrate that he will be tortured with the government’s
acquiescence.
Regarding Lancaster’s letters, the IJ referred to each of them in her opinion and
explained, albeit briefly, how they related to Lancaster’s testimony. The IJ also noted
that she considered all of the documents in evidence.3 The IJ stated that she gave “less
weight to the letters from the relatives in Guyana because they were not available for
examination in court.” App. 235.4
Lancaster filed a pro se appeal to the BIA, which dismissed the appeal. Like the
IJ, the BIA found that Lancaster’s claim that he will be harmed in Guyana rested “on a
series of suppositions which did not establish a clear probability of torture”; that
Lancaster could relocate within Guyana to avoid harm; and that he had not proven
government acquiescence. App. 46. Regarding the IJ’s treatment of Lancaster’s letters,
the BIA found that “[t]hough the Immigration Judge considered the letters from the
respondent’s family members as to the harm that the respondent would face upon
removal to Guyana, she properly accorded them limited weight, as they were from
interested witnesses not subject to cross-examination.” App. 47 (citing In re H-L-H- &
Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010), rev’d on other grounds by Hui Lin Huang
3
In addition to the letters, the IJ considered reports of country conditions in
Guyana. Given our resolution of Lancaster’s claims, these reports are not at issue.
4
We will assume the IJ gave all of Lancaster’s letters “less weight,” including
those from family members in the United States. App. 235.
4
v. Holder, 677 F.3d 130 (2d Cir. 2012)). The BIA also rejected Lancaster’s claim of IJ
bias. Lancaster filed this petition for review and we appointed counsel.
II
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s final order of
removal. As the BIA issued its own decision, we review that decision and not the
decision of the IJ. Kaplun v. Att’y Gen., 602 F.3d 260, 265 (3d Cir. 2010). We review
questions of law and constitutional claims de novo. Myrie v. Att’y Gen., 855 F.3d 509,
515 (3d Cir. 2017); Abulashvili v. Att’y Gen., 663 F.3d 197, 207 (3d Cir. 2011).
Because Lancaster is subject to removal based on an aggravated felony, we may
review only constitutional claims or questions of law. 8 U.S.C. §§ 1252(a)(2)(C), (D).
Our Section 1252(a)(2)(D) jurisdiction encompasses both of Lancaster’s claims. In his
first claim, Lancaster asserts that the BIA misapplied its own precedent. This is a
question of law. See Kaplun, 602 F.3d at 267 (reviewing claim raised by petitioner
convicted of an aggravated felony that the BIA’s decision ran “contrary to BIA
precedent”); see also Avila-Ramirez v. Holder, 764 F.3d 717, 722 (7th Cir. 2014)
(citation omitted) (stating that under Section 1252(a)(2)(D) “[l]egal questions
include . . . claims that the BIA misread its own precedent”). In his second claim,
Lancaster asserts that he was deprived of his due process right to a fair hearing—a
constitutional claim. See, e.g., Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008).
5
III
A
As noted, Lancaster first asserts that the BIA misapplied its precedent in affirming
the IJ’s decision to give his letters “less weight.” App. 235. While we agree with
Lancaster’s interpretation of the relevant BIA precedent, we conclude that the BIA did
not misapply that precedent to his case. Therefore, we will deny the petition for review
on this claim.
The BIA precedent at issue is In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215
(BIA 2010), in which the BIA found that letters from friends and relatives did not provide
substantial support for a petitioner. In reaching this conclusion, the BIA took into
account the fact that “[t]he authors of the letters are interested witnesses who were not
subject to cross-examination.” Id. at 215. The BIA, however, did not stop there. It went
on to address the content of the letters and to explain why they did not support the
petitioner’s claim—because they were not current, lacked detail and were not specific to
the petitioner’s circumstances. Id. at 215-16.
We agree with Lancaster that In re H-L-H- & Z-Y-Z- does not permit an IJ to give
letters “less weight,” without regard to their content, solely because the authors are
interested parties not subject to cross-examination. Such letters are “entitled, at the very
least, to be evaluated for their evidentiary value.” Zhang v. Holder, 702 F.3d 878, 881
(6th Cir. 2012) (citing In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. at 215-16). A court must
evaluate the content of a petitioner’s letters even if they were written by interested parties
6
“for the express purpose of supporting” the petitioner. Id. at 882; see also Uwineza v.
Holder, 781 F.3d 797, 799 (6th Cir. 2015) (same).
Nevertheless, we conclude that the BIA properly applied In re H-L-H- & Z-Y-Z- to
Lancaster’s case. The BIA did not sanction the rejection of Lancaster’s letters without
regard to their content. Rather, it affirmed the IJ’s treatment of the letters only after
finding that the “Immigration Judge considered the letters from the respondent’s family
members as to the harm that the respondent would face upon removal to Guyana.”
App. 47. The material that the IJ considered—the “harm that the respondent would face
upon removal to Guyana”—was the content of the letters. Id. As such, we are satisfied
that the BIA properly applied In re H-L-H- & Z-Y-Z-, even if its explanation of this
precedent could have been more robust.
B
Lancaster further asserts that he was deprived of his right to due process because
the IJ was biased against him on account of his sexual orientation. The BIA rejected this
claim. We are constrained to deny the petition for review.
Due process provides that a petitioner may not be “deprived of his interests”
absent “a proceeding in which he may present his case with assurance that the arbiter is
not predisposed to find against him.” Wang v. Att’y Gen., 423 F.3d 260, 269 (3d Cir.
2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). The prohibition on
IJ bias includes both actual bias and the appearance of bias. Id.Lancaster asserts that the IJ exhibited bias by asking whether he could avoid harm
in Guyana by concealing his sexual orientation or not having sex with men. We do not
7
condone these questions or suggest that they could never give rise to a due process
violation. As the Supreme Court has stated, “[w]hen sexuality finds overt expression in
intimate conduct with another person, the conduct can be but one element in a personal
bond that is more enduring. The liberty protected by the Constitution allows homosexual
persons the right to make this choice.” Lawrence v. Texas, 539 U.S. 558, 567 (2003); see
also Obergefell v. Hodges, 135 S.Ct. 2584, 2596 (2015) (recognizing that “sexual
orientation is both a normal expression of human sexuality and immutable”). However,
we will deny Lancaster’s bias claim for the reasons given in Abdulrahman v. Ashcroft,
330 F.3d 587, 596 (3d Cir. 2003). As in Abdulrahman, the IJ did ask questions that
suggested “problematic generalized assertions of her own.” Id. But these questions did
not rise to the level of a constitutional violation because “in the context of the record as a
whole there is insufficient evidence to conclude that the overall proceedings were biased
in violation of [Lancaster]’s right to due process.” Id.IV
For the foregoing reasons, we will deny the petition for review.5
5
We also express our gratitude to pro bono counsel for their excellent briefing
and argument in this matter.
8