Ray Fuller v. Jefferson Sessions III
Filed opinion of the court by Judge Wood. The motion for a stay of removal is DENIED, but GRANT Fuller's motion to proceed in forma pauperis. Diane P. Wood, Circuit Judge; Daniel A. Manion, Circuit Judge, concurring; Ilana Diamond Rovner, Circuit Judge. [6878336-2] [6878335-2] [6895062-1]  [17-3176]--[Edited 01/09/2018 by JAD to add the panel information to the docket text.]
United States Court of Appeals
For the Seventh Circuit
JEFFERSON B. SESSIONS, III, Attorney General of the United
On Motion for Stay of Removal and for In forma pauperis status in connection with a Petition for Review from the Board of Immigration Appeals.
SUBMITTED OCTOBER 23, 2017 — DECIDED JANUARY 8, 2018
Before WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.
WOOD, Chief Judge. Petitioner Ray Fuller is in the final
stages of removal proceedings in which the U.S. Department
of Homeland Security is seeking to have him sent back to his
native Jamaica. This court has seen Fuller’s case before: in
2016, we considered Fuller’s petition for review from the de-
cision of the Board of Immigration Appeals to deny his applications for withholding of removal under the Immigration
and Nationality Act (INA) and withholding and deferral of
removal under the Convention Against Torture (CAT). See
Fuller v. Lynch, 833 F.3d 866 (7th Cir. 2016) (Fuller I). We concluded that we had no jurisdiction to review the Board’s characterization of Fuller’s 2004 conviction for attempted criminal
sexual assault as a “particularly serious crime,” within the
meaning of 8 U.S.C. § 1231(b)(3)(B)(ii). That label has serious
consequences: it barred Fuller from withholding of removal
under both the INA and CAT. Turning to Fuller’s request for
deferral of removal under CAT, the Board found (as had the
Immigration Judge (IJ)) that Fuller had not credibly shown
that he was bisexual, nor that the Jamaican government
would regard him as such. Fuller urged us to revisit the evidence and to conclude otherwise, but we found that substantial evidence supported the Board’s finding and that we had
no power to conduct a de novo review of the record. One member of the panel dissented.
After our decision, Fuller returned to the Board with a motion to reopen or reconsider its ruling; he referred to new affidavits in that motion. The Board denied the new motion on
February 3, 2017, and Fuller did not file a petition for review
of that order. On March 2, 2017, Fuller filed a Form EOIR-26
(a notice of appeal from an IJ decision), which the Board construed as yet another motion to reopen. Fuller said in that motion that he was “ignorant, unprepared, and un-represented”
at his original hearing and he asked for a chance to prove his
credibility with respect to his sexual orientation. He included
letters from three friends who live in Jamaica. Each writer
says that he has known Fuller since childhood and believes
that Fuller will be killed if he is forced to return to Jamaica.
We refer to them as Writers A, B, and C. They have requested
that their names not be publicized because they fear that they
will be targeted as sympathizers of gay people and harmed.
The Board and this court, however, have their names.
Writer A, the first witness, describes an incident in which
Fuller was shot at a house party hosted by a college friend in
Ocho Rios. Writer A’s statement is consistent with Fuller’s
written statement, but not his oral testimony. (We note that
although the official language of Jamaica is Jamaican Standard English, which is easily understood in the United States,
the first language of most Jamaicans is Jamaican Patois or Creole, which is not. See Alpha Omega Translations, https://alphaomegatranslations.com/foreign-language/the-two-mainlanguages-of-jamaica/.) Writer A also described an incident in
Harbor View in which Fuller was beaten so badly that he was
found on the side of the road by a passing motorist. Writer A
says that he learned about the Harbor View incident through
a newspaper article, which depicted it as a robbery. He does
not claim first-hand knowledge about either the Ocho Rios or
the Harbor View incident. The second witness, Writer B, described the same two attacks mentioned by Writer A without
saying when they occurred. Writer B did say, however, that
he was with Fuller at the Ocho Rios party, and that he remembered that one of Fuller’s cousins had been sent to kill him.
Finally, Writer C wrote that he was in the area when Fuller
was shot in Ocho Rios during college, and that he saw the
damage when he got there about 30 minutes after the shooting. Writer C related that he visited Fuller after he was beaten
and stabbed at the bus stop in Harbor View. Writer C also described the anti-gay culture in Jamaica; he noted that there
were multiple incidents in which gay men were tortured or
killed, and he contended that Fuller is now a “marked man”
in Jamaica because his sexual orientation is now a matter of
The Board denied Fuller’s motion to reopen on March 31,
2017, because it was untimely and number-barred, and because (the Board said) it did not qualify for any exception to
those rules and failed to demonstrate circumstances so exceptional that they warranted the use of the Board’s sua sponte
power to revisit a case. The Board was unimpressed by
Fuller’s new evidence. It mailed the March 31 order to the
McHenry County Jail, where Fuller had been detained, but
Fuller did not receive it. Later the Board granted Fuller’s motion to reissue its decision. Fuller then filed a timely petition
for review from the reissued decision.
We do not now have the merits of his new petition before
us. Concerned that he may be removed at any moment, Fuller
(acting pro se) has filed two interim motions: one to stay removal pending our consideration of the petition for review,
and the other for permission to proceed in forma pauperis. He
has this to say about his new facts:
The new evidence was previously unavailable to the Petitioner because of deprivation of
his right to counsel and did not understand [sic]
the requirements for a withholding of removal
and/or deferral of removal claim. The person(s)
submitting the affidavits of support were out of
touch with the Petitioner for over ten years,
making it hard to get any communication going
between them. Moreover, the said persons were
afraid of repercussions for these letters; the
mere existence of the letters can cause the senders to be attacked for defending the Petitioner, a
persona non grata in the island of Jamaica.
The Petitioner wishes to prove that his life
would be in mortal danger if he was to be removed to Jamaica. The Petitioner beseeches the
court to temper justice in his case and allow him
the opportunity to defend his case before the
court. The DHS/ICE have already approached
Mr. Fuller, insisting that he sign a deportation
order, he has refused to do so but has been told
that he faces federal charges if he continues to
refuse to comply.
This is far from a frivolous motion: indeed, we were concerned enough about these allegations to cause us to ask the
Attorney General to file a formal response to them. He has
done so. The government offers two primary responses. First,
it argues that nothing Fuller has said changes the fact that his
motion to reopen was untimely and number-barred; second,
it argues that the new evidence does not change the IJ’s finding that his assertion that he is bisexual was not credible. The
government adds that there is a public interest in prompt execution of removal orders.
If Fuller’s new evidence compelled the conclusion that his
removal to Jamaica would indeed be a death sentence, we
would be inclined to grant the stay of removal and recruit
counsel for him, so that this issue could be explored more
thoroughly before this court. We are loathe to think that U.S.
immigration law is so draconian that it compels a court to
send a man to certain death, just because he violated the time
and number requirements for motions to reopen. We note in
this connection that, while the Board’s denial of a motion to
reopen that presents new evidence rests on a discretionary
ground and is thus to that extent unreviewable, see Pilch v.
Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003), this court remains
authorized to review constitutional claims and questions of
law, including whether the Board considered all relevant evidence before exercising its discretion. See 8 U.S.C.
§ 1252(a)(2)(D); Joseph v. Lynch, 793 F.3d 739, 741–42 (7th Cir.
But we must also take the government’s second argument
into account: that the Board did consider Fuller’s new evidence and was not persuaded that it would have made a difference in the IJ’s credibility determination. The IJ spelled out
the reasons for that ruling, and this court reviewed those reasons in its earlier opinion. See Fuller I, 833 F.3d at 871. While
we might have given a more sympathetic reading to Fuller’s
new evidence, we note again that the IJ’s (and the Board’s)
decision on a motion to reopen “is discretionary and unreviewable.” Id. at 872. It is sobering to realize that if the Board
has made the wrong call, the consequence for Fuller may be
death. It is also unclear to us whether the Board took into account the effect of these proceedings on the risks Fuller will
face if he is sent back to Jamaica: whatever the old evidence
showed when this case first arose, it is clear on the record before this court that Fuller now identifies himself as bisexual.
Given the instantaneous availability of documents on the Internet, there is no doubt that the facts revealed in these documents will become known, and Fuller’s life may well be in
danger. The Attorney General has the discretion to take these
facts into account, even after the judicial phase of proceedings
is at an end. We hope that he refrains from acting while
Fuller’s case is pending before this court, and if Fuller should
fail to prevail on the merits, we hope that any later action
takes full account of the serious risk to life that Fuller faces.
The motion for a stay of removal is DENIED, but we GRANT
Fuller’s motion to proceed in forma pauperis.
MANION, Circuit Judge, concurring. A fact-bound case
such as this underscores why “the Attorney General’s discretionary judgment whether to grant relief … shall be conclusive unless manifestly contrary to the law and an abuse of
discretion.” I agree with the court’s previous judgment in
Fuller v. French, 833 F.3d 866 as well as the decision today to
deny the motion for a stay of removal. Deference to the IJ’s
finding and the Board’s conclusion is important for me at
this late date because it appears that with all of the discrepancies, the only clear evidence that Fuller is bisexual is because he says so. Any added risk to his life is brought on by
his careless and seemingly indiscriminate sexual behavior.
Fuller has filed a motion to reopen with affidavits reflecting
on his activities many years ago. The Board denied his motion and the current petition seeks review of that order. As
the court explains, the Board has reviewed Fuller’s new evidence and its denial is largely discretionary and unreviewable. Of course, there is some concern that because Fuller has
publically identified himself as bisexual, he faces danger in
Jamaica. Based on the earlier opinion as well as the dissent,
it is probable that his sexual activity had been well known
locally long ago. For example, as the opinion indicated, “he
told the IJ while married to Wood he had multiple affairs
with men and women,” and he partied in the “gay-friendly
resort town of Ocho Rios.” As the opinion also notes, his
family (his sisters, a cousin, and apparently his parents) have
effectively abandoned him because of his sexual activity. The
dissent also noted his testimony disclosed “at length and in
detail about his being bisexual and having had a number of
sexual relationships with both men and women beginning
when he was a pre-teen.” The dissent also pointed out “another wrinkle,” “that homosexuals often are antipathetic to
bisexuals,” citing another publication entitled, “Why Do
Gays Hate Bisexuals.” Even though it does not appear that
he was hiding his sexual activity while in Jamaica, it is obvious he would rather be here than go back there. He committed a serious crime here, and he appears rightfully deportable. But all of that is for the Board of Immigration Appeals
One option the Board may consider would be to deport
him to a country other than Jamaica, perhaps giving him an
opportunity for a voluntary departure to any country he prefers. For now, we deny his motion for a stay of removal, but
grant his motion to proceed in forma pauperis in his now
pending petition to reopen.
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