Michael Ho-Sue v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: June 27, 2018
• Docket: 17-2340
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-2340 _____________

MICHAEL ANTHONY HO-SUE, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _____________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A079-616-884) Immigration Judge: Walter A. Durling ______________

Submitted Under Third Circuit L.A.R. 34.1(a) April 16, 2018 ______________

Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges.

(Opinion Filed: June 27, 2018)

______________

OPINION * ______________

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

Michael Ho-Sue petitions for review of a final order of the Board of Immigration

Appeals (“BIA”) denying his applications for discretionary cancellation of removal under

8 U.S.C. § 1229b(a) and deferral of removal under the Convention Against Torture

(“CAT”). But because Ho-Sue is removable as an alien convicted of a controlled

substance offense, our jurisdiction is limited to constitutional claims and questions of

law. See 8 U.S.C. § 1252(a)(2)(C)–(D). To the extent that Ho-Sue raises constitutional

or legal issues, his arguments lack merit. We will accordingly deny his petition for

review.

I. BACKGROUND

Ho-Sue is a citizen of Jamaica who first arrived in the United States in 2000 and

eventually became a legal permanent resident. In 2011, he was convicted in

Pennsylvania on charges of conspiracy and possession with intent to deliver marijuana.

See 18 Pa. Cons. Stat. § 903(a)(1) (2018); 35 Pa. Stat. and Cons. Stat. Ann. § 780-

113(a)(30) (West 2018). He was sentenced to nine months to five years in prison and

was ultimately credited for time served of 1,478 days. As a result of the convictions,

removal proceedings were initiated in 2013, and an Immigration Judge (“IJ”) ultimately

found that Ho-Sue was removable as both an alien convicted of a controlled substance

offense, and as an alien convicted of an aggravated felony. See 8 U.S.C.

§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i).

Ho-Sue subsequently filed an application for deferral of removal under the CAT. 2 In support of the application, Ho-Sue stated that he had been threatened by lottery

scammers in Jamaica after one of his ex-girlfriends, Lisa Parvaiz, had stolen $25,000

from them. According to Ho-Sue, the police in Jamaica were paid off by the scammers

and deliberately avoided arresting the group’s leaders. Ho-Sue blamed the scammers for

the 2008 shooting death of his cousin, and he claimed that someone had approached his

mother when she was in Jamaica to say that her son would be killed if he ever returned to

Jamaica. Ho-Sue said that he believed these threats to be credible and that he feared his

life would be in danger if he ever went back.

The IJ found Ho-Sue’s testimony credible, but nonetheless denied the CAT

application. The IJ reasoned that Ho-Sue had not established how his cousin’s killing

had anything to do with him. More importantly, despite the threats Ho-Sue had

apparently received, he had returned to Jamaica for his cousin’s funeral and suffered no

harm. The IJ also concluded that Ho-Sue had failed to establish that the Jamaican

authorities would acquiesce or willfully turn a blind eye to any non-governmental actors

that might subject him to violence. To the contrary, there was evidence that Jamaican

authorities had actively attempted to combat lottery scammers. Thus, Ho-Sue had not

met his burden of showing that it was more likely than not that he would be tortured with

the acquiescence of the Jamaican government.

Following the denial of Ho-Sue’s CAT application, the IJ dismissed the

aggravated felony ground for removal, which made Ho-Sue eligible for discretionary

cancellation of removal under 8 U.S.C. § 1229b(a). Ho-Sue filed a cancellation 3 application within weeks, and the IJ conducted a hearing, at which both Ho-Sue and his

wife, Shamika, testified. During his testimony, Ho-Sue acknowledged his convictions

but maintained his innocence, claiming that witnesses had lied about him at his trial.

Shamika, whom Ho-Sue had recently married while serving his prison sentence for the

marijuana convictions, testified that she had known Ho-Sue for twelve years and that

their relationship had produced a now nine-year-old son. Shamika added that she had

five other children from a previous relationship, all of whom loved Ho-Sue and

considered him their father. She further testified that Pervaiz had contacted her on

multiple occasions threatening to kill Ho-Sue if he ever returned to Jamaica. Out of fear

of Pervaiz, Shamika said that she and her children would not follow Ho-Sue to Jamaica if

he was removed there.

The IJ decided to grant Ho-Sue’s application. While acknowledging the lack of

corroborating evidence, the IJ found both Ho-Sue and Shamika to be credible. Although

the IJ expressly refused to condone Ho-Sue’s criminal record, he ultimately concluded

that Ho-Sue’s role as a father figure to six children warranted discretionary relief.

The BIA disagreed, however. Considering both the denial of the CAT application

and the grant of the discretionary cancellation application, the Board concluded that Ho-

Sue was entitled to neither form of relief. With respect to the cancellation application,

the BIA gave less weight to Ho-Sue’s family ties, explaining that Ho-Sue’s contact with

and support for his step-children must necessarily have been limited due to his extended

time in prison. The Board then gave more weight to Ho-Sue’s criminal record, stressing 4 that Ho-Sue still had not accepted responsibility for his crimes but instead maintained his

innocence—despite the fact that five pounds of marijuana were found in his bedroom and

eighty-seven pounds were found in a car parked in his driveway. “Given the nature and

seriousness of the . . . crime, and [Ho-Sue’s] unwillingness to accept responsibility for his

actions,” the Board concluded that he had “not demonstrated any meaningful

rehabilitative potential” that would justify cancellation of removal as a matter of

discretion. A.R. 5. It therefore reversed the IJ’s order.

Regarding the CAT application, the BIA agreed with the IJ that Ho-Sue’s

connection to his cousin’s killing was speculative and that his return to Jamaica for the

funeral cast doubt on the validity of the scammers’ threats. It also agreed that evidence

showed that Jamaican authorities investigate and attempt to combat lottery scamming.

Thus, Ho-Sue could not meet his burden under the Convention. The BIA accordingly

sustained the IJ’s CAT decision and reinstated the order of removal. Ho-Sue then filed a

petition for review with this Court.

II. JURISDICTION & STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3), and we have jurisdiction

under 8 U.S.C. § 1252(a)(1). Because Ho-Sue is removable by virtue of a controlled

substance conviction, our jurisdiction is limited to constitutional claims and questions of

law. 1 8 U.S.C. § 1252(a)(2)(C)–(D). We review such issues de novo. Guzman v. Att’y

1 To the extent that Ho-Sue is challenging the BIA’s denial of his application for cancellation of removal, our jurisdiction is limited to constitutional and legal questions by 5 Gen., 770 F.3d 1077, 1082 (3d Cir. 2014).

III. DISCUSSION

A. Discretionary Cancellation of Removal Under 8 U.S.C. § 1229b(a)

In challenging the BIA’s denial of his cancellation application, Ho-Sue appears to

make two different legal arguments, both of which focus on the evidence that the BIA

relied upon in reversing the IJ. First, he contends that the BIA committed legal error by

considering facts that led to his arrest but not to his ultimate conviction. Second, he

argues that the Board engaged in impermissible factfinding by citing an affidavit of

probable cause that had not been expressly mentioned in the IJ’s written decision.

With regard to the first argument, Ho-Sue contends that the BIA should not have

considered the eighty-seven pounds of marijuana that were found in the car parked in his

driveway because, at his criminal trial, the jury was unable to reach a verdict on the

charge of possession of marijuana in an automobile and a mistrial was declared on that

count.

The legal authority underlying this contention is unclear, however. Ho-Sue frames

his argument as a due process claim, but we have held that aliens have no due process

liberty interest in being considered for discretionary relief because such relief is “a matter

of grace rather than of right.” See United States v. Torres, 383 F.3d 92, 104–06 (3d Cir.

2004). The traditional rules of evidence are also inapplicable in immigration

an additional provision: 8 U.S.C. § 1252(a)(2)(B)(i), which bars review of the agency’s discretionary determinations under 8 U.S.C. § 1229b. 6 proceedings, and “arrest reports historically have been admissible in such proceedings.”

Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). Indeed, “there is no per se bar to the agency’s

consideration of hearsay-laden police reports where convictions have not followed.”

Arias-Minaya v. Holder, 779 F.3d 49, 54–55 (1st Cir. 2015) (citing Paredes-Urrestarazu

v. INS, 36 F.3d 801, 810 (9th Cir. 1994); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir.

1985)). And “in the context of determining whether an alien warrants discretionary relief

from removal, the fact of an arrest and its attendant circumstances . . . may have

probative value in assessing his character (and, thus, his suitability for discretionary

relief).” Id. at 54.

To the extent there are—despite the lack of cognizable constitutional protection—

any limits on the BIA’s ability to consider the circumstances surrounding Ho-Sue’s

arrest, we think they are inapplicable here. Ho-Sue has failed to explain how the

evidence the BIA considered is in any way unreliable. To the contrary, Ho-Sue’s

criminal defense counsel signed a stipulation of facts acknowledging that the eighty-

seven pounds of marijuana were in fact found in the car parked in Ho-Sue’s driveway.

Accordingly, we see no basis to conclude that the BIA somehow committed legal error

by considering that drug quantity in determining whether Ho-Sue was entitled to

discretionary relief—despite the fact that no conviction resulted. To the extent Ho-Sue

takes issue with the weight that the BIA gave this particular evidence, we are without

jurisdiction to review that discretionary determination. See Cospito v. Att’y Gen., 539

F.3d 166, 170–71 (3d Cir. 2008). 7 Ho-Sue next argues that the BIA erred by referencing an affidavit of probable

cause that had not been expressly mentioned in the IJ’s written decision. It is true that the

BIA may not “engage in factfinding in the course of deciding appeals,” 8 C.F.R.

§ 1003.1(d)(3)(iv), but the BIA did not do so here. In its written decision, the IJ had

already acknowledged that Ho-Sue’s criminal record was a relevant consideration, and it

had observed that the eighty-seven pounds of marijuana had been found in the car outside

of his home, in addition to the roughly five pounds found in his bedroom. The BIA

subsequently repeated these facts in its opinion, and then added in a footnote that “[a]n

affidavit of probable cause contained in the conviction records states that [Ho-Sue] was

involved in the trafficking of large quantities of marijuana and an associate made

multiple trips on behalf of the respondent to pick up as much as 200 pounds of marijuana

at a time.” A.R. 5. Importantly, the “conviction records” to which the BIA referred were

the same records that were submitted to the IJ when it was considering Ho-Sue’s

application. Indeed, the affidavit of probable cause was a part of the same exhibit that the

IJ cited when it referenced the various drug quantities.

Thus, in essence, the IJ made a factual finding regarding Ho-Sue’s criminal record

based on the documentary evidence before it, and it summarized that evidence in its

written decision. The BIA then looked at the same evidence and mentioned a particular

piece of information that the IJ did not reference in its summary of the evidence. We do

not think the prohibition on factfinding bars the BIA from employing such reasoning

when it weighs the various considerations. In fact, when it reverses the IJ, “[t]he BIA 8 must show that it reviewed the record and considered the evidence upon which the IJ

relied, and it must explain why the record warrants a different conclusion than the one

reached by the IJ.” Huang v. Att’y Gen., 620 F.3d 372, 387 (3d Cir. 2010). In other

words, the factfinding bar must provide the BIA some room to explain itself when it

disagrees with the IJ. Here, the IJ had already observed that Ho-Sue’s criminal record

was a relevant factor, and the BIA merely cited documentary evidence that was in the

record and available to the IJ during its initial review. Under these circumstances, we are

unpersuaded that the BIA engaged in impermissible factfinding. Accordingly, we will

deny Ho-Sue’s petition for review of the BIA’s order denying his application for

discretionary cancellation of removal.

B. Deferral of Removal under the CAT

In assessing Ho-Sue’s CAT claim, we review both the BIA’s and the IJ’s decisions

to the extent that the BIA relied upon the IJ’s findings in its decision. See Guzman, 770

F.3d at 1082 (“Where ‘the BIA adopts and affirms the decision of the IJ, as well as

provides its own reasoning,’ we review both the IJ’s and BIA’s decisions.”) (quoting

Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir. 2008)). To be eligible for relief under

the CAT, Ho-Sue must establish that he would more likely than not be subject to torture

if removed to Jamaica. 8 C.F.R. § 1208.16(c)(2). “For an act to constitute torture under

the [CAT] and the implementing regulations, it must be: (1) an act causing severe

physical or mental pain or suffering; (2) intentionally inflicted; (3) for an illicit or

proscribed purpose; (4) by or at the instigation of or with the consent or acquiescence of a 9 public official who has custody or physical control of the victim; and (5) not arising from

lawful sanctions.” Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017) (alteration in

original) (quoting Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005)).

Ho-Sue argues that the BIA and the IJ erred in concluding that he failed to

establish that the Jamaican government would acquiesce to any harm he would suffer.

He contends that both the BIA’s and the IJ’s decisions were grounded in the proposition

that the Jamaican government could not be acquiescent because it takes measures to

combat lottery scamming. This premise, Ho-Sue contends, is inconsistent with

Pieschacon-Villegas v. Attorney General, 671 F.3d 303, 312 (3d Cir. 2011), in which we

held that “an applicant can establish governmental acquiescence even if the government

opposes the . . . organization that is engaged in torturous acts.” See also Gomez-Zuluaga

v. Att’y Gen., 527 F.3d 330, 351 (3d Cir. 2008) (“The mere fact that the . . . government

is engaged in a protracted civil war with the [alleged torturers] does not necessarily mean

that it cannot remain willfully blind to [their] torturous acts . . . .”).

Ho-Sue’s argument fails for two reasons. First, in concluding that Ho-Sue had

failed to meet his burden on the acquiescence question, neither the BIA nor the IJ relied

solely on the fact that the Jamaican government opposes lottery scammers. Instead, they

each acknowledged that Ho-Sue had presented evidence of police corruption, but

ultimately concluded that Ho-Sue’s evidence was nonetheless insufficient to prove that

the government would be acquiescent or willfully blind. Importantly, neither the BIA nor

the IJ made the kind of “unqualified statement[]” that we found problematic in 10 Pieschacon-Villegas, 671 F.3d at 311. They did not say or suggest that an applicant

could never prove acquiescence or willful blindness when a government takes measures

to combat alleged tortures. They simply evaluated all of the relevant evidence and

concluded that Ho-Sue could not meet his burden.

Second, even if Ho-Sue could meet his burden on the acquiescence issue, both the

BIA and the IJ concluded in the alternative that Ho-Sue failed to establish that it was

more likely than not that he would, if removed, suffer harm rising to the level of torture—

that is, an act causing severe physical or mental pain or suffering, see Myrie, 855 F.3d at

515. Indeed, both the BIA and the IJ reasoned that Ho-Sue’s connection to his cousin’s

killing was speculative and that Ho-Sue had been able to return to Jamaica without being

hurt. Accordingly, even if the BIA and IJ had committed legal error on the acquiescence

question, Ho-Sue still would not be eligible for relief under the CAT.

IV. CONCLUSION

For the foregoing reasons, we will deny Ho-Sue’s petition for review.