January 24, 2018
for Review of an Order of the Board of Immigration Appeals.
Bauer, Kanne, and Barrett, Circuit Judges.
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.
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." (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.
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.
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.
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.
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.
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.
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.
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