Andre Morris v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: June 2, 2022
• Docket: 21-2558
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-2558 ___________

ANDRE JAMAL MORRIS, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

_______________________

On Petition for Review of Decision of the Board of Immigration Appeals BIA No. A040-161-592 (U.S. Immigration Judge: Alice Hartye) ______________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 14, 2022

Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.

(Filed: June 2, 2022)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge

Andre Jamal Morris petitions for review of a final order of removal issued by the

Board of Immigration Appeals (BIA). For the reasons detailed below, we will deny his

petition for review.

I.

Morris is a native and citizen of Barbados who was admitted to the United States

as a lawful permanent resident on November 17, 1986. In 2019, he was arrested and

convicted for intent to possess and possession with intent to distribute a controlled

substance. As a consequence of his drug convictions, the Department of Homeland

Security charged him with being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an

alien convicted of an aggravated felony relating to illicit trafficking in a controlled

substance, and under § 1227(a)(2)(B)(i) as an alien convicted of a violating any law

related to a controlled substance. Morris conceded the charges of removability but filed

an I-589 application seeking relief under the Convention Against Torture (CAT).

At a hearing before the Immigration Judge (IJ), Morris was the sole witness to

testify. He described himself as openly gay and HIV positive. Although he claimed no

past persecution, he testified he feared returning to Barbados because of its “Antibuggery

Act,” which criminalizes same-sex activity, and because of discrimination against people

of the LGBT community. AR 142-43. On cross examination however, he acknowledged

there have been no recent prosecutions under the Antibuggery Act in Barbados. Both

Morris and the DHS submitted documentary evidence consisting of various reports and

2 news articles relating to discrimination in Barbados against people of the LGBT

community. Morris also asserted he feared returning to Barbados because he believed he

would be unable to receive quality medication and healthcare for his HIV.

The IJ concluded Morris failed to establish that he would more likely than not face

torture upon his return to Barbados and therefore denied Morris relief and issued a final

order of removal. Morris appealed, and the BIA affirmed. Morris now petitions this

Court to review the BIA’s decision.

II.1

Where, as here, “the ‘BIA’s opinion directly states that the BIA is deferring to the

IJ, or invokes specific aspects of the IJ’s analysis and factfinding in support of the BIA’s

conclusions,’ we review both decisions.” Uddin v. Att’y Gen., 870 F.3d 282, 289 (3d Cir.

2017) (quoting Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 2012)). We review

the agency's factual findings under the “highly deferential” substantial-evidence standard:

“The agency's ‘findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

1 The BIA has appellate jurisdiction over an immigration judge’s decisions in removal proceedings under 8 C.F.R. §§ 1003.1(b) and 1240.14. We have jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1). This appeal was timely filed within 30 days of the final order of removal. 8 U.S.C. 1252(b)(1). Venue is also proper in our court because Morris’s removal proceedings were completed in York, Pennsylvania. 8 U.S.C. § 1252(b)(2).

3 III.

To qualify for protection under the CAT, Morris must show that it is “more likely

than not that he . . . would be tortured,” if he would be removed to Barbados.

8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by, or at the instigation of, or

with the consent or acquiescence of” a Barbadian public official. Id. at 1208.18(a)(1). In

assessing whether a petitioner is eligible for relief under the CAT, the IJ should consider

“what is likely to happen to the petitioner if removed,” and then consider if “what is

likely to happen amount[s] to the legal definition of torture?” Myrie v. Att’y Gen., 855

F.3d 509, 516 (3d Cir. 2017).

As regards Morris’s claimed fear of prosecution for same-sex activity, given

reports indicating that Barbados does not enforce its laws criminalizing same-sex activity,

the agency did not err in concluding that Morris failed to establish that he would be

prosecuted on his return to Barbados. The agency also properly concluded that Morris

failed to establish he would be discriminated against on his return to Barbados. Morris

claimed no past persecution, and he provided no evidence of specific threats against him.

And general reports on the existence of discrimination against the LGBT community and

people with HIV in Barbados are insufficient to establish a threat of torture meriting CAT

relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir. 2003) (holding that

country condition reports were “insufficient to demonstrate that it is more likely than not

that a particular civilian, in this case [the petitioner], will be tortured” if returned to his

home country).

Moreover, given the absence of evidence indicating Barbadian officials would

4 participate in potential discrimination, the agency was also correct in concluding Morris

failed to establish that potential discrimination would qualify as torture meriting CAT

relief. Similarly, Morris’s potential diminished ability to receive medication and

healthcare for his HIV does not qualify as torture meriting CAT relief because he failed

to demonstrate that this diminished ability was specifically intended by Barbadian

officials. See Pierre v. Att’y Gen., 528 F.3d 180, 189 (3d Cir. 2008) (holding the

“unintended consequence of the poor conditions” in Haitian prisons “is not the type of

proscribed purpose contemplated by the CAT”). Accordingly, the agency’s conclusion

that Morris was ineligible for relief under the CAT was correct and supported by

substantial evidence.

For these reasons, we will deny Morris’s Petition for Review of the BIA’s

judgment.