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Bernard v. Sessions

United States Court of Appeals, Seventh Circuit

February 8, 2018

Andre Ray Bernard, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued January 24, 2018

         Petition for Review of an Order of the Board of Immigration Appeals. No. A077-767-738.

          Before Bauer, Kanne, and Barrett, Circuit Judges.

          PER CURIAM.

         Andre Bernard, a Jamaican citizen, petitions for review of the denial of his applications for statutory withholding of removal and deferral of removal under Article 3 of the Convention Against Torture. The Board of Immigration Appeals upheld those decisions. First, the Board concluded, the immigration judge correctly found Bernard ineligible for withholding of removal on the ground that he had committed a "particularly serious crime, " see 8 U.S.C. § 1231(b)(3)(B)(ii); second, the Board agreed that Bernard had not shown that, if removed to Jamaica, he likely would be tortured with the acquiescence of a public official on account of his bisexuality or political opinions. We dismiss for lack of jurisdiction the portion of Bernard's petition seeking review of the "particularly serious crime" designation, and deny the remainder of the petition, as substantial evidence supports the IJ's reasoning as adopted and supplemented by the Board.

         I. Background

         Bernard grew up in Spanish Town, Jamaica, where he and his family supported the Jamaica Labour Party, one of the two major political parties in the country. Bernard says he realized as a preteen that he was bisexual, but hid it for fear of how his family would react. His fear was based in part on an event he witnessed at age eleven: Two men who were caught having sexual relations in his neighborhood were "chased down and ... stoned, beaten, and also burnt with car tires." (A.R. 217.) His family members were present and encouraged the mob, "shouting, kill, kill, kill the batty boys, and praising the people who were throwing the rocks."[1] (A.R. 219.) Bernard also says he was influenced by popular music in Jamaica, some of which encouraged "anyone to shoot and kill gay men, or people of the LGBT community." (A.R. 259.) Still, he had a secret relationship with another preteen boy for about a year and a half while living in Jamaica.

         Bernard arrived in the United States in 1998, when he was 19 years old, on a temporary visitor's visa. He married an American citizen, Bose Andrews, but they divorced in 2009. Bernard then had a long relationship with another woman, Jennifer Hunter, but dated men at the same time.

         Between 2002 and 2013 Bernard was convicted of multiple crimes including weapons and drug offenses. Most relevant to this appeal is his conviction in February 2011 for domestic battery, 720 ILCS 5/12-3.2(a)(1). Bernard pleaded guilty to stabbing his girlfriend's sister with a kitchen knife. Bernard, however, said then and still maintains he acted in self-defense. He was sentenced to twelve months "conditional discharge, " which he completed satisfactorily, meaning he never served time in custody.

         In January 2016, an agent of the Department of Homeland Security took Bernard into custody. Bernard conceded removability. He applied for withholding of removal, see 8 U.S.C. § 1231(b)(3)(A), and for deferral of removal under Article 3 of the Convention Against Torture, see 8 C.F.R. § 1208.17. He explained that, if removed to Jamaica, he feared persecution or torture on the basis of his bisexuality and membership in the Jamaica Labour Party.

         Immigration Judge Robin Rosche heard evidence on two separate days. Bernard described his experiences living in Jamaica, including the same-sex relationship he had in his youth, the mob violence he witnessed, and his participation in the Jamaica Labour Party. He testified that family members who live in Jamaica would not approve of his bisexuality and that one uncle in particular would try to "beat it out of" him. (A.R. 223.) He said that his relatives were aware of his sexual orientation because rumors were "going around" (A.R. 253); he came out to his father while in custody and believes that since then his father has talked to people in Jamaica about his bisexuality.

         Bernard also explained that several of his family members have been murdered because of their affiliation with the Jamaica Labour Party and its related gang, the One Order Posse. He said that if he returned, opposition party members or others might recognize him and kill him too. But he acknowledged that only "word of mouth" informed his belief that the murders were politically motivated, and he suggested that at least one of the victims was murdered by the One Order Posse itself, not the opposition.

         Several other witnesses testified. Nina Porter, Bernard's friend, testified that she had seen him in romantic relationships with men and that she did not believe his family in Jamaica would accept his sexual orientation. Ainsley Bernard (petitioner's father) testified that he was afraid for Bernard to return to Jamaica, but that he did not accept Bernard's bisexuality. He also explained that he had spoken about his son's sexual orientation to family members in Jamaica and that a relative threatened to "beat it out" of Bernard. (A.R. 319-20.) Further, Ainsley testified that another relative (Bernard's "aunt's boyfriend") was killed for being gay (but, he elaborated, the murder was more likely motivated by rumors that the man was "buying sexual favors from ... young kids"). (A.R. 322.) Ainsley confirmed that several relatives had been killed for participating in the Jamaica Labour Party, but also explained that the party is currently in power. Bernard's siblings Vanessa, Kimon, and Gregg testified as well, and confirmed the reports of violence against LGBT people and the murders of various family members. But none of the witnesses was able to provide specific details about any of the murders.

         Both sides also submitted articles and reports about the conditions in Jamaica. These reports confirm that violence against the LGBT community is prevalent, particularly for homeless youth, women, and people whose appearance is gender non-conforming; law enforcement often acquiesces to the violence by standing by and doing nothing to prevent it. Further, the reports describe that homosexual acts are illegal under "anti-buggery" laws. But many reports also indicate progress-the first "pride parade" recently was held without incident, several government ...


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