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Chadrick Calvin Cole v. U.S. Attorney General
Citations: 712 F.3d 517; 2013 WL 978199; 2013 U.S. App. LEXIS 5152Docket: 11-15557
Court: Court of Appeals for the Eleventh Circuit; March 14, 2013; Federal Appellate Court
Original Court Document: View Document
Chadrick Calvin Cole, a citizen of Jamaica and a lawful permanent resident of the U.S., was found removable as an aggravated felon by the Board of Immigration Appeals (BIA) based on his conviction for pointing a firearm at another person, which is classified as a particularly serious crime under South Carolina law. The BIA denied his applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT), concluding that Cole's offense disqualified him from these forms of relief. The Department of Homeland Security (DHS) initiated removal proceedings against Cole, citing multiple provisions of the Immigration and Nationality Act (INA) related to aggravated felonies and firearms offenses. During proceedings, Cole argued that he faced persecution in Jamaica due to his developmental disabilities, potential government abuse as a deportee, and political violence linked to his family's affiliation with the People's National Party. He testified about his severe health issues and difficulties he would encounter if returned to Jamaica, including discrimination and lack of access to employment and healthcare. The BIA based its denial of CAT relief primarily on factual findings that Cole would not be tortured upon his return to Jamaica. Ultimately, the court upheld the BIA's decision, denying Cole’s petition for review. Cole expressed a profound fear of returning to Jamaica as a deportee due to reports that most deportees do not survive their return. He mentioned that deportees are temporarily detained in a facility called "Central," which he had not personally seen. Cole’s family ties included his father and brother Kevin, who are supporters of the People's National Party (PNP), opposing the Jamaica Labour Party (JLP). Kevin was shot in 2000 and is now wheelchair-bound and in hiding, leading Cole to fear politically motivated violence if he were returned. During cross-examination, Cole acknowledged the possibility of relocating to a safer area in Jamaica where his political affiliations were less known. On June 20, 2011, an Immigration Judge (IJ) denied Cole's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), ordering his removal to Jamaica. The IJ ruled that Cole's conviction constituted a "conviction" under the Immigration and Nationality Act (INA) and found him removable under two charges related to his crime. The IJ classified Cole’s offense as a “crime of violence” due to its nature involving the threatened use of physical force, which resulted in a prison term exceeding one year, making him removable under 8 U.S.C. 1227(a)(2)(A)(iii). As an aggravated felon, Cole was ineligible for asylum under 8 U.S.C. 1158(b)(2)(A)(ii) and for withholding of removal under 8 U.S.C. 1231(b)(3)(B)(ii), which applies to those convicted of particularly serious crimes. The IJ also found that Cole failed to prove he was more likely than not to face persecution upon his return. Regarding Cole's CAT claims, the IJ made specific factual findings that rejected all his theories of torture. The IJ noted that the Jamaican government was taking steps to improve the situation for persons with disabilities, negating the possibility of government-sanctioned torture based on Cole’s disabilities. There was insufficient evidence to suggest that the Jamaican government tortures deportees, as measures were reportedly in place to manage crime associated with deportees rather than to harm them. Even if Cole's claims of temporary detention were accepted as true, they did not meet the legal standard for torture. Cole's fear of persecution due to imputed political association was not substantiated, especially given his prior years in Jamaica without incident related to his family's political affiliations and the documented decline in political violence. The IJ concluded that Cole could also relocate within Jamaica to avoid potential harm. Consequently, the IJ denied all forms of relief sought by Cole and mandated his removal to Jamaica. Cole subsequently appealed this decision, including the denial of his motion for a continuance, to the Board of Immigration Appeals (BIA). On October 28, 2011, the Board of Immigration Appeals (BIA) dismissed Cole's appeal, largely affirming the Immigration Judge's (IJ) decision. The BIA determined that Cole's conviction under the South Carolina Youthful Offender Act (SCYOA) constituted a conviction for immigration purposes, unlike juvenile delinquency proceedings. It upheld Cole’s removability under 8 U.S.C. 1227(a)(2)(A)(iii) as an aggravated felon convicted of a crime of violence, relying on a definition involving substantial risk of physical force, differing from the IJ's basis. The BIA rejected Cole's argument regarding the lack of a mens rea requirement in S.C. Code 16-23-410. Cole's applications for asylum and withholding of removal were denied, as his status as an aggravated felon barred him from asylum under 8 U.S.C. 1158(b)(2)(A)(ii). The BIA also noted that his indeterminate sentence was treated as a five-year imprisonment, precluding withholding of removal under 1231(b)(3)(B)(ii). The BIA adopted the IJ's findings that Cole failed to prove his claims for withholding of removal and Convention Against Torture (CAT) relief, as the evidence did not demonstrate a likelihood of torture by the Jamaican government. Additionally, the BIA dismissed Cole's due process challenge regarding the IJ's denial of a continuance, stating there was no prejudice, as the sought documentary evidence was not relevant to the IJ’s decision. Cole subsequently appealed the BIA's decision. The reviewing court will focus on the BIA's decision while considering the IJ's reasoning only to the extent it is expressly adopted. The court has jurisdiction to review constitutional questions and legal interpretations de novo, while deferring to the BIA’s interpretations of ambiguous terms in the Immigration and Nationality Act (INA). Factual determinations are reviewed under the substantial evidence standard, requiring a compelling basis for reversal. The REAL ID Act of 2005 limits jurisdiction in cases where removability is based on criminal offenses, allowing review only for constitutional claims or legal questions. The jurisdictional issue is intertwined with the merits of the case, specifically regarding Cole's conviction's classification for immigration purposes and its categorization as a crime of violence or aggravated felony. These determinations will influence Cole's removability under 8 U.S.C. § 1227(a)(2)(A)(iii) and the scope of review for his remaining claims. Relevant statutes include definitions in 8 U.S.C. § 1101(a) concerning "conviction" and "aggravated felony," which establish that an alien can be removable for committing an aggravated felony. The eligibility for asylum and withholding of removal is also affected by the classification of the crime. The pivotal question is whether Cole’s conviction under the South Carolina Youthful Offender Act (SCYOA) qualifies as a conviction for immigration purposes. Cole argues that it does not, which, if valid, would prevent his removability. However, the definition of "conviction" under 8 U.S.C. § 1101(a)(48)(A) includes formal judgments of guilt and findings of guilt accompanied by punishment, which Cole's SCYOA conviction meets. The statute does not differentiate based on the offender's age or the possibility of future expungement. The Court of General Sessions accepted Cole's guilty plea and imposed a sentence, satisfying both necessary conditions under the statute. Previous decisions support this interpretation, affirming that even expunged convictions are considered valid for immigration purposes. A petitioner convicted of marijuana possession in Missouri had his conviction expunged under Mo. Rev. Stat. 610.105. The Court determined that the expunged conviction still constituted a conviction for immigration purposes, referencing 8 U.S.C. 1101(a)(48)(A), which defines a conviction as valid if a judge or jury found the alien guilty or if the alien entered a guilty plea, and if a punishment was imposed. The petitioner pled guilty and received a year of probation, fulfilling these criteria. The Court asserted that expungement does not negate the conviction for immigration purposes, as state rehabilitative measures do not affect the statutory definition of conviction. The case of Singh v. U.S. Att’y Gen. illustrated a similar principle; a 15-year-old who pleaded guilty to felonies in Florida argued against his conviction being recognized for immigration purposes. The Court upheld that regardless of the offender's age, the conviction counted as valid under the same statutory definition, aligning with decisions from other circuits. Both cases established that neither expungement nor the age of the offender alters the status of a conviction for immigration purposes. Legislative history from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 supports this interpretation, indicating that a conviction is recognized immediately upon a finding of guilt, irrespective of later expungement or sentence suspension. The revised definition of "conviction" broadens its scope, ensuring that federal interpretations remain unaffected by state laws that may mitigate the consequences of a conviction. It clarifies that even if adjudication is deferred, an original finding of guilt suffices for establishing a conviction under immigration laws. Consequently, the potential expungement of Cole’s sentence by the South Carolina court is irrelevant, reaffirming that a guilty plea combined with a court-imposed punishment constitutes a conviction for immigration purposes according to 8 U.S.C. § 1101(a)(48)(A). Cole's SCYOA conviction qualifies as a conviction under this statute, and his arguments to the contrary lack support in the statutory text and its legislative history. Cole argues that his conviction under S.C. Code § 16-23-410 is not a crime of violence, which is classified as an aggravated felony rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). The court holds that this offense indeed qualifies as a crime of violence, validating the BIA's determination of Cole's removability. This classification makes Cole ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(ii), and the court's jurisdiction over his remaining claims is restricted to legal and constitutional issues as per 8 U.S.C. § 1252(a)(2)(C) and (D). An aggravated felony includes a crime of violence, defined under federal law as offenses involving the use or threat of physical force or those felonies that inherently risk such force. The court employs a categorical approach, assessing whether the elements of the state offense satisfy the definition of a crime of violence, rather than examining the specifics of Cole's case. It adheres to interpretations from the state supreme court and, in their absence, respects rulings from intermediate appellate courts unless compelling evidence suggests a different outcome. The analysis involves determining if the state law offense possesses a mens rea exceeding mere negligence, referencing precedents that align with this approach. The Supreme Court highlighted that under 18 U.S.C. § 16(a), a "crime of violence" necessitates the "use of physical force" against another's person or property, implying an active employment of force and a higher intent than mere negligence. The Court assessed that the Florida offense lacked mens rea, thus failing to qualify as a crime of violence. In analyzing § 16(b), the Court clarified that it does not cover all negligent actions but pertains to offenses that inherently involve a substantial risk of physical force being utilized against another. Burglary was cited as a prime example, where the nature of the crime involves a significant risk of confrontation requiring the use of force. The South Carolina statute S.C. Code § 16-23-410, which criminalizes the act of pointing or presenting a firearm at another, was examined. Initially, it appeared that the statute might not meet the mens rea requirement established in Leocal. However, the South Carolina Court of Appeals interpreted "presenting" as indicating a threatening manner, thus necessitating an intentional mens rea. Consequently, to secure a conviction, evidence of specific intent to present a firearm threateningly must be demonstrated. The Board of Immigration Appeals (BIA) correctly concluded that S.C. Code § 16-23-410 qualifies as a crime of violence under § 16(b), as it includes an intentional mens rea and presents a substantial risk of provoking confrontations that could lead to the use of physical force. The Court drew parallels to burglary, emphasizing that the primary danger arises from the potential for direct encounters with victims, which heightens the likelihood of intentional force being employed. An encounter where a perpetrator threatens a victim with a firearm, whether loaded or unloaded, poses a significant risk of intentional force being used. The Fourth Circuit previously ruled that S.C. Code 16-23-410 qualifies as a crime of violence under 18 U.S.C. 16(b), supported by precedents indicating that pointing a firearm is inherently threatening and often leads to physical force. The distinction between pointing and presenting a firearm is negligible, as both actions involve threatening behavior, and both are considered intentional acts under the statute. Therefore, Cole's conviction for pointing a firearm is classified as a crime of violence, leading to significant legal implications: he is deemed a removable alien under 8 U.S.C. 1227(a)(2)(A)(iii), ineligible for asylum due to being convicted of a particularly serious crime under 1158(b)(2)(A)(ii), and his requests for withholding of removal and CAT relief will only be considered if they raise legal or constitutional issues, as per 1252(a)(2)(C). An indeterminate prison sentence of up to five years is classified as a “particularly serious crime” in the context of asylum law and is equivalent to an aggravated felony conviction under the Immigration and Nationality Act (INA). Specifically, the INA stipulates that an alien convicted of an aggravated felony with an aggregate prison term of five years or more is automatically barred from withholding removal, granting the Attorney General no discretion in such cases. However, the Attorney General retains discretion to deny withholding of removal based on what they consider a particularly serious crime, regardless of sentence length. The document raises a significant question regarding whether an indeterminate sentence under the State of Florida's youthful offender act should be treated as a five-year term of imprisonment for immigration purposes. The government contests the adequacy of Cole's argument on this issue in his brief, emphasizing that to properly raise a claim, it must be distinctly identified and elaborated upon in the argument section. Despite some initial ambiguity, Cole successfully maintained this issue in his brief, specifically asserting that the determination of particularly serious crime status involves discretion, and that indeterminate sentences for youthful offenders should not be equated with those for adult offenders. Cole contends that his indeterminate sentence under the South Carolina Youth Offender Act (SCYOA) should not be considered a five-year sentence for immigration purposes. The Board of Immigration Appeals (BIA) has historically interpreted indeterminate sentences by their maximum duration, but there is a split among circuits on whether this interpretation deserves Chevron deference. The Tenth Circuit, in Nguyen v. INS, upheld the BIA’s rule, aligning it with the rationale of the Sentencing Guidelines that define "sentence of imprisonment" based on the maximum imposed. Conversely, the Sixth Circuit in Shaya v. Holder rejected this deference, arguing that the determination of sentence length is more about interpreting state law than the Immigration and Nationality Act (INA). Following the Shaya approach, an examination of South Carolina state law indicates that Cole’s indeterminate sentence should be regarded as a five-year term, as affirmed by the South Carolina Supreme Court in State v. Ellis, which clarified that probation and actual incarceration are part of a defendant's term of imprisonment. If the BIA's interpretation were followed, the outcome would be the same based on longstanding precedent. Consequently, Cole’s five-year indeterminate sentence qualifies as a five-year sentence under 8 U.S.C. § 1231(b)(3)(B), rendering him statutorily ineligible for withholding of removal due to committing a particularly serious crime. The only potential immigration relief left for Cole is under the United Nations Convention Against Torture. Signatory nations to the Convention Against Torture (CAT) are prohibited from expelling, returning, or extraditing individuals to states where there is a substantial risk of torture. The Foreign Affairs Reform and Restructuring Act of 1998 mandates U.S. agencies to create regulations ensuring compliance with CAT obligations, stating that individuals like Cole are eligible for relief if they can demonstrate a likelihood of torture upon removal. Torture is defined as the intentional infliction of severe pain or suffering for purposes such as obtaining information or punishment, and must involve a public official's involvement or consent. While judicial review is limited to legal and constitutional claims under 8 U.S.C. 1252(a)(2)(D), the court retains authority to scrutinize the Board of Immigration Appeals (BIA)'s denial of torture claims, viewing these as mixed questions of law and fact. In a referenced case (Jean-Pierre), the court previously ruled that it could review whether specific conduct constituted torture despite changes to the review process under the REAL ID Act. In Cole's situation, factual findings by the Immigration Judge (IJ) regarding the treatment of individuals with disabilities in Jamaica were deemed unreviewable. The IJ concluded that the Jamaican government is making efforts to combat discrimination against persons with disabilities, ultimately finding no possibility of torture with government acquiescence in Cole’s case. Cole's second claim regarding the torture of deportees upon return to Jamaica was dismissed by the Immigration Judge (IJ), who found insufficient evidence to support the assertion that the Jamaican government tortures returning aliens. The IJ noted that the government actively identifies dangerous deportees rather than discriminating against them, and the Jamaican police require approval from the Supreme Court to monitor potentially threatening deportees. The Board of Immigration Appeals (BIA) adopted the IJ's reasoning in denying Cole's request for Convention Against Torture (CAT) relief. Regarding Cole's argument that he would face targeting due to imputed political association, the IJ concluded that Cole failed to demonstrate it was more likely than not that he would encounter violent reprisal based on his family's ties to the People's National Party (PNP). This conclusion was supported by several factors: Cole had lived in Jamaica for many years, including five years after a politically motivated attack on his brother, without being targeted; there was a documented decline in political violence in Jamaica; and Cole indicated he could relocate within the country. The BIA's decision concerning the likelihood of torture based on Cole's disabilities could not be reviewed, as it was firmly founded on the IJ's finding that the Jamaican government combats the marginalization of the disabled. Additionally, the likelihood of future harm related to political opinion was deemed improbable by the IJ, which is a factual question not subject to appeal. The IJ evaluated Cole's claims of severe harm and found them unlikely to occur. Even if Cole's allegations about temporary detention were accepted as true, they did not meet the legal definition of torture. The IJ concluded that the described conditions of temporary detention at "Central," where deportees are processed, do not align with what has been considered torture in this Circuit or others. Prior cases indicated that for treatment to qualify as torture, it typically involves severe physical abuse or intentional infliction of suffering beyond mere detention. Kang faces a substantial risk of severe physical abuse if removed to China, including actions aimed at causing her significant pain and suffering, such as beatings and electric shocks. In contrast, Cole's situation lacks similar allegations of egregious abuse, as neither the Immigration Judge (IJ) nor the Board of Immigration Appeals (BIA) found evidence supporting such claims. The BIA's findings do not constitute legal error. Cole's arguments regarding the weight of evidence are outside the jurisdiction of review, and he fails to demonstrate that the IJ and BIA did not adequately consider his claims or evidence. The IJ's detailed opinion and the BIA's affirmation fulfilled the requirement for a reasoned decision. Additionally, Cole's due process claim regarding the IJ’s denial of a continuance to gather more evidence of his disabilities was not substantiated. He did not show that the absence of this evidence caused substantial prejudice or would have altered the outcome of his case. The IJ found his testimony credible and primarily denied his application based on legal grounds, including statutory ineligibility for asylum. Consequently, Cole's petition is denied.