          United States Court of Appeals
                     For the First Circuit


No. 17-1518

                      NIGEL HOPETON MORRIS,

                           Petitioner,

                               v.

                   JEFFERSON B. SESSIONS, III,
                        ATTORNEY GENERAL,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                             Before

                       Howard, Chief Judge,
                Lipez and Barron, Circuit Judges.



     Ilana Etkin Greenstein, with whom Macias & Greenstein, LLC,
was on brief for petitioner.
     Gregory A. Pennington, Jr., with whom Chad A. Readler, Acting
Assistant Attorney General, Civil Division, Carl H. McIntyre,
Assistant Director, and Brooke M. Maurer, Trial Attorney, Office
of Immigration Litigation, Civil Division, were on brief for
respondent.

                          May 30, 2018
                  BARRON, Circuit Judge.         This case concerns Nigel Hopeton

Morris'       petition     for   review     of    a   decision       by   the    Board     of

Immigration Appeals ["BIA"] to deny his application for deferral

of removal based on the protection to which he claims to be

entitled      under     the   United   Nations        Convention      Against         Torture

["CAT"].          We deny the petition.

                                            I.

                  Morris came to the United States in 1999 from his country

of birth, Jamaica.            While in this country, he became a lawful

permanent resident and lived in Massachusetts, though he visited

his family in Jamaica several times over the years.                                  In 2013,

Morris was convicted in Massachusetts state court of the following

state law offenses: indecent assault and battery on a person 14

years old or older, assault to rape, and assault and battery.                              He

was sentenced to a term of incarceration of five years.1

                  In 2016, the Department of Homeland Security initiated

removal proceedings against Morris on the ground that he was

removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I), which provides

that       "any    alien   convicted   of    . . .      a    crime    involving         moral

turpitude . . .            is inadmissible."          Morris did not dispute that

his    Massachusetts          convictions        were       for   crimes        of     "moral


       1
       Though Morris does not dispute the fact of his convictions,
he also notes that in July 2016, the New England Innocence Project
filed a motion for a new trial on his behalf in state court in
Massachusetts.


                                          - 2 -
turpitude."     The Immigration Judge ("IJ") thus concluded that

Morris was removable under § 1182(a)(2)(A)(i), and was ineligible

for   asylum   or   withholding     of   removal.       Nevertheless,       Morris

contended at his removal proceedings that, pursuant to 8 C.F.R.

§ 1208.17, he was "eligible . . . for deferral of removal under

the Convention Against Torture [CAT]" based on the fact that a

gang leader in Jamaica -- with ties to the Jamaican Constabulary

Force (the Jamaican police) ("JCF") -- had threatened to kill him

for being an informant.

           The Immigration and Naturalization Service promulgated

§ 1208.17 in March of 1999 apparently in order to implement the

Foreign Affairs Reform and Restructuring Act ("FARRA").                Congress

enacted FARRA in 1998 to comply with the CAT.            See Foreign Affairs

Reform and Restructuring Act of 1998, Pub. L. No. 105-277, Div.

G., Title XXII, 112 Stat. 2681-822.

           The CAT requires, among other things, that "[n]o state

. . . expel, return ('refouler') or extradite a person to another

State where there are substantial grounds for believing that he

would be in danger of being subjected to torture."                    Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment,    Dec.   10,   1984,    1465    U.N.T.S.    85,   art.    3,    §   1.

Consistent with the United States' obligation under the CAT, 8

C.F.R § 1208.17 provides that an alien who




                                     - 3 -
          has been ordered removed; has been found under
          § 1208.16(c)(3) to be entitled to protection
          under the Convention Against Torture; and is
          subject to the provisions for mandatory denial
          of     withholding     of    removal     under
          § 1208.16(d)(2) or (d)(3), shall be granted
          deferral of removal to the country where he or
          she is more likely than not to be tortured.

8 C.F.R. § 1208.17(a).   The regulation further provides that to be

entitled to deferral of removal an alien must show that it is "more

likely than not that he or she would be tortured if removed to the

proposed country of removal."   8 C.F.R. § 1208.16(c)(2).

          The regulation defines torture as

          any act by which severe pain or suffering,
          whether physical or mental, is intentionally
          inflicted on a person for such purposes as
          obtaining from him or her or a third person
          information or a confession, punishing him or
          her for an act he or she or a third person has
          committed or is suspected of having committed,
          or intimidating or coercing him or her or a
          third person, or for any reason based on
          discrimination of any kind, when such pain or
          suffering   is   inflicted   by   or  at   the
          instigation of or with the consent or
          acquiescence of a public official or other
          person acting in an official capacity.

8 C.F.R. § 1208.18(a)(1).   The government does not dispute Morris'

contention that the harm that he contends that he would face in

Jamaica from the gang leader would qualify as torture.

          The IJ denied Morris' claim for deferral of removal, and

the BIA affirmed the IJ's ruling. Morris now petitions for review.




                                - 4 -
                                    II.

          The government argues that we lack jurisdiction over

Morris'   petition.          The   government     relies      on    8      U.S.C.

§ 1252(a)(2)(C),     which    provides     that   "no     court    shall    have

jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed a [qualifying]

criminal offense."

          Morris does not dispute that he was convicted of a

qualifying offense.    He nevertheless contends that we may consider

his petition.   He does so in part based on the exception in 8

U.S.C. § 1252(a)(2)(D) that states that:

          [n]othing in subparagraph (B) or (C), or in
          any other provision of this chapter (other
          than this section) which limits or eliminates
          judicial review, shall be construed as
          precluding review of constitutional claims or
          questions of law raised upon a petition for
          review filed with an appropriate court of
          appeals in accordance with this section.

We thus begin with Morris' contention that he is bringing a

challenge that this exception encompasses.              We then consider his

separate challenge, which he acknowledges does not allege that

either the IJ or the BIA made an error of law.              He contends that

we may review it nonetheless because the jurisdictional bar simply

does not apply at all to an order denying an alien's claim for

deferral of removal.




                                   - 5 -
                                A.

          Morris rightly contends that his challenge to the order

denying his deferral of removal claim falls within the exception

to the jurisdictional bar insofar as it is "legal in nature."   And

he argues that at least part of his challenge is "legal in nature"

because he is contending that the agency mischaracterized the

record and misapplied the relevant law to undisputed facts.    In so

arguing, Morris relies principally on Mukamusoni v. Ashcroft, 390

F.3d 110 (1st Cir. 2004), in which we held that the BIA in that

case "committed errors of law and misapplied the law by focusing

narrowly on only parts of the record that supported its decision."

Id. at 120.

          To assess Morris' contention, we first describe the

evidence that Morris submitted in support of his deferral of

removal claim in the proceedings before the IJ.   We then describe

the rulings by the IJ and the BIA denying his claim for deferral

of removal.   Finally, we explain why Morris' challenge to those

rulings under the exception to the jurisdictional bar fails.

                                1.

          At the removal proceedings, Morris, through his own

testimony and declaration, offered the following account of why he

believed that he would be tortured if he were removed to Jamaica.

His older brother, Wayne Morris, was a member of a drug trafficking

organization called the "British Link-Up Crew" that operated in


                              - 6 -
Jamaica but was based in the United Kingdom.          Wayne was closely

associated with the organization's leader, Owen Clarke.

            On several occasions, Clarke and Wayne accused each

other of being informants.    Fearing retribution by Clarke, who is

wealthy and had "connections in the Jamaican police force," Wayne

hired his nephew to be his bodyguard.        The nephew was murdered in

2011, and no one was arrested for the crime.

            At some point after Wayne's nephew was killed, Morris

traveled to Jamaica from Massachusetts.            While in Jamaica on

December 27, 2011, Morris encountered Clarke who "confronted" him

and said:      "All [indiscernible] informer for dead."          Morris

testified before the IJ that, via this encounter, Clarke was

"trying to tell me . . . that me and my brother are to die, and he

was making it known that I deliver the message to my brother."

            Morris also described this encounter in his declaration.

There, he stated that Clarke had "pulled up next to my car" and

"made threatening comments to me."        Specifically, Morris stated in

his declaration that "[Clarke] said that my brother was an informer

and through my relationship with my brother, that made me an

informer and that informers did not deserve to live." Morris added

that he told his brother what Clarke did that afternoon "but [his

brother] dismissed it."

            In 2015, Wayne was "murdered by two gunmen" in Kingston,

Jamaica.    No arrest was made.     Morris stated in his declaration


                                  - 7 -
that his brother was murdered by "people associated with Owen

Clarke" and that "Owen Clarke is protected by corrupt authorities."

            In addition to this evidence concerning the likelihood

that Clarke would target him, Morris also provided evidence to

support his contention that the harm that he feared from Clarke

would be "inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in an

official capacity."     8 C.F.R. § 1208.18(a)(1).    That evidence

included both documents and expert testimony.

            Specifically, Morris introduced several human rights

reports and newspaper articles on gang violence in Jamaica that

addressed connections between organized crime and the JCF.   Morris

also provided the testimony of an expert, Anthony Harriott, who

was a professor and the director of the Institute of Criminal

Justice and Security at the University of the West Indies in

Kingston.    Harriott testified about the likelihood that Clarke

would contract with the JCF to exact retribution against Morris.

                                 2.

            The IJ rejected Morris' claim for deferral of removal.

In doing so, the IJ made a number of findings.   Some pertained to

the issue of whether Morris had met his burden to show that it was

more likely than not that Clarke would target him if Morris were

to return to Jamaica.    The IJ found that Morris had not met his

burden in that regard because it was not clear from the record


                               - 8 -
that Morris "would even be known by [Clarke]" and that it was also

unclear whether Clarke possessed the connections to "orchestrate"

Morris' murder.

           Other findings by the IJ pertained to whether Morris had

met his burden to show that it was more likely than not that,

insofar as the record showed that Clarke would target Morris,

Clarke would do so with the involvement (direct or indirect) of

the JCF.   For example, the IJ determined that Harriott's testimony

concerning the likelihood that Clarke would use (directly or

indirectly) the JCF in targeting Morris for harm was speculative.

           For example, the IJ found that Harriott, whom the IJ

accepted as an expert in the field of criminology or criminal

justice in Jamaica and found to be credible, was of the view that

"[Clarke's] role is such that he probably has some contacts

remaining in the police force, and he may 'possibly' use them as

contacts against the respondent." (emphasis added).    The IJ went

on to conclude that Harriott "could only speculate as to what Owen

Clarke would do or whether he would outsource any murder or murder

for hire to the police, or another organization, or keep it in-

house."

           After Morris appealed the IJ's ruling, the BIA affirmed.

The BIA did so on the ground that the IJ did not clearly err as to

its "interpretation of the expert witness's testimony regarding

contracting    relationships   between    the   drug   trafficking


                               - 9 -
organization and corrupt police officers, and inferences regarding

the likely resources available to the brother's former associate."

                               3.

          To decide whether there is merit to Morris' challenge,

insofar as it relies on the exception to the jurisdictional bar,

it is important to keep in mind what he must show to demonstrate

that he is entitled to deferral of removal.   Morris must show not

simply that it is more likely than not that Clarke would target

him if he were removed to Jamaica.    Morris also must show that it

is more likely than not that the harm that he claims that he will

suffer in consequence of Clarke targeting him will be "inflicted

by or at the instigation of or with the consent or acquiescence of

a public official or other person acting in an official capacity."

8 C.F.R. § 1208.18(a)(1).   Thus, in order to make a successful

challenge pursuant to the exception to the jurisdictional bar,

Morris must show that the IJ (or the BIA) made an error of law

with respect to each of these two issues.   And because he does not

make that showing with respect to the latter of these two issues,

we need not address his challenge to the portion of the IJ's

decision that concerns the former.

          With respect to that portion of the IJ's ruling that

concerns the likelihood that Clarke would involve the JCF, Morris

contends that the IJ made an error of law in the following way.

Morris argues that the IJ ignored the documentary evidence that


                             - 10 -
Morris put forth about gang violence in Jamaica and how the

Jamaican government addresses it and mistakenly considered only

Harriott's testimony.          And, Morris argues, the IJ ignored this

other evidence, despite its clear relevance, only because the IJ

misapprehended the actual argument that Morris was making as to

why it was likely that Clarke would target him at all.                           In

consequence, Morris contends that the IJ made an error of law that

deprived    Morris      of   his    constitutional     right   under    the   Fifth

Amendment to procedural due process.

            We may assume that Morris is right that, in light of

Mukamusoni, a failure by an immigration judge to consider a

relevant part of the record based on a misapprehension of the

nature of the petitioner's argument constitutes an error of law

for   purposes     of    the       exception     to   the   jurisdictional     bar.

Mukamusoni, 390 F.3d at 120.            But, even if that is the case, we do

not read the IJ to have made the error of law that Morris discerns.

            Contrary to Morris' contention, the IJ expressly stated

at the outset of its opinion that it had considered the "background

evidence"   that     Morris    had     submitted,     including   the    "articles

pertaining to . . . Jamaica's human rights record."                    The IJ then

went on to find that Morris' expert, Harriott, could only speculate

as to whether Clarke would coordinate with the JCF in the event

that he chose to harm Morris.




                                        - 11 -
          We thus do not read the record to show that the IJ

considered only Harriott's testimony in assessing the strength of

Morris' showing as to the likelihood that Clarke would rely on the

assistance of the JCF to target him.    Rather, we read the record

to show that the IJ weighed all of the evidence in finding that

Morris' showing concerning the likely involvement of the JCF in

any plan by Clarke to target Morris was too speculative.    For this

reason, Morris' reliance on Mukamusoni is misplaced.

          The record is at odds, therefore, with the premise

underlying Morris' argument that the IJ made an error of law in

finding that Morris did not satisfy his burden to show that it was

more likely than not that the harm that he contends that he would

suffer would be "inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity."   8 C.F.R. § 1208.18(a)(1).   And, because

Morris identifies no other error of law that the IJ (or, by

extension, the BIA) made as to that issue, Morris' challenge to

the order denying his deferral of removal claim, insofar as it is

based on the exception to the jurisdictional bar, necessarily

fails.

                                 B.

          Morris separately contends that the jurisdictional bar

simply does not apply to a petition for review from an order

denying a claim for deferral of removal.   He argues that an order


                              - 12 -
of deferral of removal is not an order encompassed by 8 U.S.C.

§ 1252(a)(2)(C)'s reference to "any final order of removal."     He

thus argues that we may review his petition even if he is not

challenging the rulings below on the ground that either the IJ or

the BIA made an error of law.    On the basis of this contention,

Morris therefore argues that there is no jurisdictional bar to our

review of his challenge to the sufficiency of the evidentiary

support for the findings that the IJ made.     See Morgan v. Holder,

634 F.3d 53, 57 (1st Cir. 2011) (noting that "rejecting a factual

finding is inappropriate unless the record is such as to compel a

reasonable factfinder to reach a different conclusion.")

          Morris acknowledges that we have previously treated

petitions for review of orders denying deferral of removal claims

as if they were subject to the jurisdictional bar that 8 U.S.C.

§ 1252(a)(2)(C) establishes.    See Gourdet v. Holder, 587 F.3d 1,

5-6 (1st Cir. 2009); Magasouba v. Mukasey, 543 F.3d 13, 14 (1st

Cir. 2008).   But, he rightly points out, the petitioners in those

cases did not challenge the applicability of the jurisdictional

bar as he now does.   Moreover, as Morris also notes, although some

other circuits have adopted the government's position that the

jurisdictional bar does apply to orders denying claims for deferral

of removal, other circuits have rejected it.    Compare Ortiz-Franco

v. Holder, 782 F.3d 81, 86 (2d Cir. 2015), Saintha v. Mukasey, 516

F.3d 243, 247-48 (4th Cir. 2008), Balogun v. Ashcroft, 270 F.3d


                               - 13 -
274, 279 (5th Cir. 2001), and Ventura-Reyes v. Lynch, 797 F.3d

348, 358 (6th Cir. 2015), with Wanjiru v. Holder, 705 F.3d 258,

263 (7th Cir. 2013), Agonafer v. Sessions, 859 F.3d 1198, 1202-03

(9th Cir. 2017).

             Notwithstanding Morris' arguments as to why we should

join those circuits that have found that the bar does not apply,

we need not decide whether it does.2                  Even if we assume that the

bar does not apply to orders denying deferral of removal claims,

Morris' petition still must be denied.                   See Telles v. Lynch, 639

F.   App'x    658,    659       (1st     Cir.    2016)    (assuming     hypothetical

jurisdiction    when      the    petitioner       does    not   state   a   colorable

constitutional       or   legal        claim    and   that   substantial     evidence

supports the IJ's holding that the petitioner has not established

a "reasonable possibility" of persecution or torture).

             We reach this conclusion because we do not see how the

record may be read to compel the conclusion that Morris satisfied

his burden to show that the harm that he fears from Clarke would



     2 To the extent that Morris argues that we have jurisdiction
pursuant to 8 U.S.C. § 1252(b)(9), we are skeptical that this
provision independently confers jurisdiction that does not
otherwise exist. See Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 483 (1999) (describing § 1252(b)(9) as an
"unmistakable 'zipper' clause"); see also Mahadeo v. Reno, 226
F.3d 3, 12 (1st Cir. 2000) (explaining that a zipper clause
"consolidates or 'zips' 'judicial review' of immigration
proceedings into one action in the court of appeals.")




                                         - 14 -
be "inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity."    8 C.F.R. § 1208.18(a)(1).         In so concluding,

we note that substantial evidence supports the IJ's finding that

Morris' key witness concerning the practices of the JCF, Harriott,

"could only speculate as to . . . whether [Clarke] would outsource

any   murder   or   murder   for   hire     to   the   police,   or   another

organization."

           In testifying about the prevalence of drug-trafficking

networks in Jamaica involving corrupt police officers in their

efforts to enact violence, Harriott testified, for example, that

he was aware of several cases in which drug-trafficking networks

in Jamaica contracted with police to carry out retribution on

informants and that he was "not aware of any case in which the

punishment for being an informant or being suspected of being an

informant is anything less than death." But Harriott did not focus

on the particular practices of the British Link-Up Crew.              Rather,

in offering that testimony, he described the practices of drug

trafficking networks "in general."

           Moreover, the IJ found that Harriott was of the view

that "[Clarke's] role is such that he probably has some contacts

remaining in the police force, and he may 'possibly' use them as

contacts against the respondent," and that description is not

clearly contradicted by the record.          After all, Harriott did not


                                   - 15 -
testify that it was more likely than not that Clarke would use the

JCF to target Morris. He instead testified only that Clarke likely

had contacts with the JCF and that using police officers is a "low

risk way of [delivering violence]."

           Nor does Morris' documentary evidence suffice to make up

for the limitations in Harriott's testimony.          That documentary

evidence -- from such sources as the United States Department of

State, the Inter-American Commission on Human Rights, and the

United    Nations   --   describes   "the   rampant   corruption   and

criminality within the Jamaican police in general, and connections

between the police and criminal gangs and organized crime in

particular." But that documentary evidence does not discuss Clarke

or his gang in particular.    In fact, Morris does not contend that

anything in this general documentary evidence -- in and of itself

-- compels the conclusion that Clarke would be more likely than

not to involve the JCF in the event that he targeted Morris for

harm.    Thus, Morris cannot show that the record, when considered

as a whole, compels the conclusion that he has met his burden to

show what he must to demonstrate that he is entitled to deferral

of removal pursuant to 8 C.F.R. § 1208.17(a).

                                 III.

            The petition for review is denied.




                                - 16 -
