Karolyn Sheckells v. Atty Gen USA ( 2010 )

IMG-121 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4260
___________
KAROLYN SHECKELLS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A44-501-894)
Immigration Judge: Honorable Alberto Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: June 11, 2010)
___________
OPINION
___________
PER CURIAM
Karolyn Sheckells, a citizen of Jamaica, petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) denying her request for deferral of removal under
the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the
petition for review.
I
Sheckells came to the United States in 1994 as a lawful permanent resident. In
2000, she was convicted of selling crack cocaine. After visiting her mother in Jamaica in
March 2003, Sheckells arrived at Newark International Airport and requested admission
into the United States. On the same day, the Department of Homeland Security issued a
notice to appear, charging Sheckells as inadmissible under INA §§ 212(a)(2)(A)(i)(II)
and 212(a)(2)(C) [8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(2)(C)], based on her
narcotics conviction.
Before the Immigration Judge (“IJ”), Sheckells sought deferral of removal under
the CAT. She testified that her brother, who lived in the United States, killed another
Jamaican in 1998.1 As a result, members of the victim’s family, both in Jamaica and the
United States, seek revenge against her family. Sheckells testified that, during her March
2003 visit to Jamaica, she was kidnapped, robbed, and raped by three men. After
assaulting Sheckells, the men threatened her and told her to leave Jamaica to ensure that
authorities would not go after them. Sheckells described the men to a friend and, based
on her description, the friend believed that one of the men was named “Edward” or “Mr.
Edward,” and that he was a cousin of the man Sheckells’ brother killed.
1
Sheckells produced no documentary evidence of the killing or her brother’s
conviction.
2
After the attack, Sheckells filed a report with the Jamaican police, who told her
that they were aware of Mr. Edward and that he had prior problems with the law. The
police began an investigation, but Sheckells cut her trip short and returned to the United
States before police officers concluded their work. She stated that she made no effort to
follow up with the police after returning to the United States. Nor did she present to the
IJ any documentary evidence of her attack or the police investigation.
In her request for deferral of removal, Sheckells claimed that she feared that Mr.
Edward and his relatives would torture, rape, and kill her if she were removed to Jamaica.
The IJ denied relief, reasoning that Sheckells failed to demonstrate that she had faced or
would likely face torture at the hands of the government or of private individuals acting
with the government’s acquiescence. The BIA agreed, and Sheckells filed a petition for
review. The Government filed a motion to dismiss.
II
We will first address the motion to dismiss. The Government argues that INA
§ 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)] precludes us from exercising jurisdiction over
the petition for review. Section 242(a)(2)(C) withdraws appellate jurisdiction over final
orders of removal where the petitioner has been convicted of certain crimes, including
drug offenses such as distribution. That provision clearly implicates Sheckells’ drug
conviction. However, INA § 242(a)(2)(D) expressly preserves judicial review over
questions of law, including “issues of application of law to fact, where the facts are
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undisputed and not the subject of challenge.” Kamara v. Att’y Gen., 420 F.3d 202, 211
(3d Cir. 2005) (internal citations and quotation marks omitted). Sheckells does not
contest any of the Agency’s factual determinations. Rather, as discussed below, she
contends that the IJ and BIA incorrectly applied the law governing CAT relief to the
undisputed facts of her case. As such, the motion to dismiss lacks merit, and we will
deny it.
III
Because the BIA issued its own opinion, we review its decision rather than that of
the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to
the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review the Agency’s legal
conclusions de novo, subject to established principles of deference. See Smriko v.
Ashcroft, 387 F.3d 279, 282 (3d Cir. 2004).
To qualify for deferral of removal under the CAT, an applicant must satisfy the
same requirements as an applicant for withholding of removal under the CAT. See 8
C.F.R. § 208.17(a). That is, the applicant must demonstrate that it is more likely than not
that she would be tortured if removed to the proposed country of removal. See Kamara
420 F.3d at 212-13; 8 C.F.R. § 208.16(c)(2). For an act to constitute torture, it must be,
inter alia, committed “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. § 208.18(a)(1).
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“For purposes of CAT claims, acquiescence to torture requires only that government
officials remain willfully blind to torturous conduct and breach their legal responsibility
to prevent it.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007).
In denying relief, the IJ held – and the BIA agreed – that Sheckells failed to meet
her evidentiary burden. Specifically, the IJ noted that Sheckells provided no evidence:
(1) of the killing or her brother’s conviction; (2) of her alleged attacker’s existence;
(3) that she was actually attacked; or (4) that the Jamaican government in any way
authorized, supported, or acquiesced in any revenge attacks by Mr. Edward and his
relatives against Sheckells or her family. Given the dearth of evidence presented in
support of her request for relief, the IJ concluded that Sheckells failed to demonstrate that
it was more likely than not that she would be tortured if removed to Jamaica. We agree.
In her petition, Sheckells argues that she satisfied her burden because although the
Jamaican government is not “in cahoots” with her attackers, the vendetta against her
family is being carried out by individuals the government is unable to control, thus
satisfying the CAT standard. This argument is unpersuasive, however. Even if we were
to accept Sheckells’ reasoning, we are not compelled to disagree, see Kamara, 420 F.3d at
211, with the IJ’s conclusion that Sheckells simply failed to present sufficient evidence to
sustain her burden of proof. Accordingly, we will deny the petition for review.
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