     17-2182-ag
     Manning v. Barr

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3                             ____________________
 4
 5                                  August Term, 2018
 6
 7   (Argued: June 14, 2019                                 Decided: March 31, 2020)
 8
 9                                Docket No. 17-2182-ag
10
11                                ____________________
12
13   KENNETH MANNING, AKA Anthony Manning,
14   AKA Bud Manning, AKA Kenny Manning,
15
16                                  Petitioner,
17
18                     v.
19
20   WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
21
22                                  Respondent.
23
24                                ____________________
25
26   Before: POOLER, CHIN, and SULLIVAN, Circuit Judges.
27
28         Petition for review of a decision by the Board of Immigration Appeals

29   (“BIA”), denying Kenneth Manning’s application for deferral of removal under

30   the Convention Against Torture. We hold that the jurisdictional provision in 8
 1   U.S.C. § 1252(a)(2)(C), which limits this Court’s jurisdiction, applies only to cases

 2   where the Immigration Judge (“IJ”) has found a petitioner removable based on

 3   covered criminal activity, and that it does not apply where a petitioner’s order of

 4   removal is based solely on unlawful presence. We also hold that the IJ and BIA

 5   discounted Manning’s credible testimony without proper explanation, failed to

 6   consider substantial and material evidence that Manning is likely to be killed if

 7   removed to Jamaica, and erroneously placed a burden on Manning to prove he

 8   could not internally relocate in order to avoid torture. Accordingly, we GRANT

 9   the petition for review and REMAND Manning’s application for deferral of

10   removal for further proceedings consistent with this opinion.

11         GRANTED and REMANDED.

12   Judge Sullivan dissents in a separate opinion.

13                      ____________________

14                             EDMUND POLUBINSKI III (Daniel S. Magy, on the
15                             brief), Davis Polk & Wardwell LLP, New York, NY, for
16                             Petitioner Kenneth Manning.
17
18                             SCOTT STEWART (Carl McIntyre, Assistant Director,
19                             Nancy Friedman, Senior Director, on the brief), for Joseph
20                             H. Hunt, Assistant Attorney General, Civil Division,
21                             United States Department of Justice, Washington, D.C.,
22                             for Respondent William P. Barr, United States Attorney
23                             General.


                                               2
 1   POOLER, Circuit Judge:

 2         We hold that the jurisdictional provision in 8 U.S.C. § 1252(a)(2)(C), which

 3   limits this Court’s jurisdiction, applies only to cases where the Immigration

 4   Judge (“IJ”) has found a petitioner removable based on covered criminal activity,

 5   and that it does not apply where a petitioner’s order of removal is based solely

 6   on unlawful presence. We also hold that the IJ and the Board of Immigration

 7   Appeals (“BIA”) discounted Manning’s credible testimony without proper

 8   explanation, failed to consider substantial and material evidence that he is likely

 9   to be killed if removed to Jamaica, and erroneously placed a burden on him to

10   prove he could not internally relocate in order to avoid torture. Accordingly, we

11   GRANT the petition for review and REMAND Manning’s application for

12   deferral of removal for further proceedings consistent with this opinion.

13                                    BACKGROUND

14         Kenneth Manning came to the United States from Kingston, Jamaica in

15   1985. Three years later, Manning was arrested by federal authorities in a sweep

16   of arrests of associates of a Jamaican gang known as the Renkers Posse.

17         Delroy Edwards, who was then the leader of the Renkers Posse, was also

18   apprehended. At the time the United States Attorney for the Eastern District of



                                              3
 1   New York described Edwards as “one of the most feared crack-organization

 2   enforcers in America.” Certified Record on Appeal (“CAR”) at 643. As the leader

 3   of the Renkers Posse, Edwards tortured and killed those he believed had

 4   wronged him. Edwards was eventually convicted of 42 counts of murder,

 5   assault, kidnapping, and drug charges, and he received seven consecutive life

 6   sentences. The trial was nationally publicized, covered by news outlets such as

 7   the New York Times and the Associated Press.

 8         Manning is related to Edwards through a half-sibling and they came from

 9   the same neighborhood in Jamaica. The two were “like brothers” growing up—

10   they formed the Renkers Posse together as teenagers. CAR at 527. After

11   Manning’s arrest, he agreed to cooperate with the government in its prosecution

12   of Edwards. He provided information about criminal acts not alleged in the

13   indictment and testified at trial. His testimony was, according to the government

14   in its sentencing letter, “critical to virtually the entire case” and the “centerpiece”

15   of Edwards’s conviction on four murder charges. CAR at 564. The government

16   explained that it could not “overstate the fullness, completeness, and value of

17   [Manning’s] cooperation,” and that he “continues to provide important

18   assistance in related cases.” Id.



                                                4
 1         Manning pled guilty to second degree murder in New York state court and

 2   racketeering charges in federal court. He was ultimately sentenced to 20 years to

 3   life imprisonment in New York state court and 15 years in federal court.

 4   Manning served 28 years in prison before his release in 2016. Throughout his

 5   incarceration, Manning remained in protective custody because of his

 6   cooperation in the Edwards trial.

 7         As part of his protective custody, Manning was kept in a separate section

 8   from the prison’s general population. Special arrangements had to be made

 9   when he used common areas such as the cafeteria, the medical unit, and the

10   library. Manning identified himself to other inmates by his initials, and his

11   visitors had to first be vetted by an office in Washington D.C. Every six months

12   for 28 years in two different federal prisons, the government reviewed

13   Manning’s protective custody status and affirmed his placement each time.

14         When Manning was granted parole in August 2016, the Department of

15   Homeland Security served him with a Notice to Appear and charged him as

16   removable for being “present in the United States without being admitted or

17   paroled.” CAR at 942. The IJ determined that Manning was removable as

18   charged and designated Jamaica as the country of removal. Manning filed an



                                              5
 1   application for deferral of removal under the Convention Against Torture

 2   (“CAT”) on the ground that, if removed to Jamaica, he would be killed in

 3   retaliation for his earlier cooperation.

 4         Manning submitted testimony and documentary evidence in support of

 5   his application, and the IJ held a hearing. The IJ determined that the testimony

 6   was credible but concluded that Manning was no longer in danger, reasoning

 7   that Manning had not established that anyone in Jamaica “intend[ed] to torture

 8   him because he testified against a different gang member some 20 years ago” and

 9   that he had “not established that he could not relocate to another part of Jamaica

10   . . . where he could live without being identified.” CAR at 68. After Manning

11   appealed, the BIA affirmed the denial, adopting the IJ’s conclusions on the basis

12   that Manning had “not established that the [IJ’s] determination on the likelihood

13   of torture was clearly erroneous.” CAR at 4. The BIA found “no clear error in the

14   manner in which the [IJ] weighed the evidence of record.” CAR at 4.

15         Manning next petitioned this Court for review of the BIA’s order and also

16   moved for a stay of removal, to proceed in forma pauperis, and for assignment of

17   pro bono counsel. The government filed a motion to dismiss the appeal for lack

18   of jurisdiction. This Court granted Manning’s motions and instructed counsel “to



                                                6
 1   brief, in addition to the merits of the CAT claim and any other issues, whether

 2   this Court’s jurisdiction is limited by 8 U.S.C. § 1252(a)(2)(C) even though

 3   Petitioner was not ordered removed on the basis of his criminal conviction.” Dkt.

 4   No. 42 at 1.

 5                                      DISCUSSION

 6      I.      Jurisdiction

 7           The government argues that this Court lacks jurisdiction to review

 8   Manning’s petition pursuant to 8 U.S.C. § 1252(a)(2)(C), known as the “criminal

 9   alien bar,” which provides a limited exception to Section 1252(a)(1)’s general

10   grant of jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1).

11           Manning argues that this Court retains jurisdiction for three reasons: (1)

12   Section 1252(a)(2)(C) does not bar jurisdiction because Manning was not

13   removed on the basis of his criminal convictions; (2) despite this Court’s

14   precedent to the contrary, Section 1252(a)(2)(C) does not apply to petitions

15   challenging denials of applications for deferral of removal; and (3) even if Section

16   1252(a)(2)(C) does apply to limit jurisdiction, this Court should consider

17   Manning’s appeal because this Court retains jurisdiction over questions of law

18   under Section 1252(a)(2)(D). We agree with Manning’s first argument. We hold



                                               7
 1   that Section 1252(a)(2)(C) does not bar this Court’s jurisdiction where a

 2   petitioner’s order of removal is based solely on unlawful presence, even if the

 3   petitioner could have been—but was not—ordered removed based on a covered

 4   criminal offense. 1

 5           In interpreting the terms of a statute, “our analysis begins with the text” of

 6   Section 1252(a)(2)(C), “and we look to both the language itself and the specific

 7   context in which that language is used.” Merit Mgmt. Grp., LP v. FTI Consulting,

 8   Inc., 138 S. Ct. 883, 893 (2018) (internal quotation marks and brackets omitted)

 9   (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Otherwise, “words

10   will be interpreted as taking their ordinary, contemporary, common meaning.”

11   Arriaga v. Mukasey, 521 F.3d 219, 225 (2d Cir. 2008) (quoting Perrin v. United

12   States, 444 U.S. 37, 42 (1979)).

13           The statutory language at issue states that “no court shall have jurisdiction

14   to review any final order of removal against an alien who is removable by reason

15   of having committed a criminal offense covered in [certain sections of the

16   statute].” 8 U.S.C. § 1252(a)(2)(C). The government argues that the phrase “is

17   removable by reason of having committed a criminal offense” captures criminal




     1   Accordingly, we do not address Manning’s second or third arguments.
                                                8
 1   conduct beyond that which was used as basis of the final order of removal.

 2   Because Manning does not challenge that he is an aggravated felon, the

 3   government argues, 8 U.S.C. § 1252(a)(2)(C) prevents judicial review of the

 4   petition because he was theoretically removable based on that conviction.

 5         We disagree. A fair reading of “is removable,” when juxtaposed with the

 6   first part of the provision, makes clear that it refers back to the “final order or

 7   removal” mentioned earlier. The two phrases are not, as the government

 8   suggests, separate and unrelated requirements. Put another way, if an order is

 9   “final” then the person must have been ordered removed for some reason. And if

10   that person is removable “by reason of having committed a criminal offense”

11   then the order must have been predicated on the person having committed one

12   of the covered criminal offenses. To conclude otherwise—that “removable by

13   reason of having committed a criminal offense” means that a person merely could

14   have been found removable based on a covered offense no matter what the basis

15   of the IJ’s determination in the final order of removal—unmoors the second part

16   of the provision from the first part and belies the plain text when both are read

17   together.




                                                9
 1         An examination of “the broader statutory structure,” Merit Mgmt., 138 S.

 2   Ct. at 893, confirms this interpretation. Under the Immigration and Nationality

 3   Act (“INA”), a person can only be charged removable based on one of the

 4   covered criminal offenses if the IJ explicitly determines so. The INA provides that

 5   the IJ’s proceedings are the “sole and exclusive procedure for determining

 6   whether an alien may be . . . removed,” 8 U.S.C. § 1229a(a)(1); that, when such

 7   proceedings conclude, the IJ “shall decide whether an alien is removable,” id. §

 8   1229a(c)(1)(A); and that the IJ’s determination regarding removability “shall be

 9   based only on the evidence produced at the hearing,” id. The fact that the

10   removability determination inheres in the IJ lends further support to the

11   interpretation that the IJ must have actually predicated the order of removal on a

12   covered criminal offense.

13         We join the majority of the other circuits that have considered the issue

14   and hold that the jurisdictional provision in Section 1252(a)(2)(C) is limited to

15   cases where the IJ has charged a petitioner removable based on covered criminal

16   activity. See Mena-Flores v. Holder, 776 F.3d 1152, 1157-60 (10th Cir. 2015);

17   McAllister v. Att’y Gen., 444 F.3d 178, 184 (3d Cir. 2006); Alvarez-Santos v. INS, 332

18   F.3d 1245, 1253 (9th Cir. 2003); Lemus-Rodriguez v. Ashcroft, 350 F.3d 652, 654 (7th



                                               10
 1   Cir. 2003); accord Yousefi v. INS, 260 F.3d 318, 324–25 (4th Cir. 2001) (interpreting

 2   similar language in predecessor statute); Choeum v. INS, 129 F.3d 29, 40 (1st Cir.

 3   1997) (same). 2

 4         Our conclusion is also consistent with this Circuit’s precedent. See Flores v.

 5   Holder, 779 F.3d 159, 163 n.1 (2d Cir. 2015) (rejecting government’s assertion of

 6   lack of jurisdiction pursuant to Section 1252(a)(2)(C) because (1) petitioner “was

 7   not, however, found removable for having committed an aggravated felony,”

 8   and (2) in any event, “we retain jurisdiction to review constitutional claims and

 9   questions of law”(internal quotation marks)); see also Ortiz-Franco v. Holder, 782

10   F.3d 81, 90-91 (2d Cir. 2015) (“[T]he applicability of § 1252(a)(2)(C) is a

11   straightforward inquiry: Was the alien charged with removability because of a

12   relevant crime, and did the IJ correctly sustain that charge?”(internal quotation

13   marks omitted)). Contrary to the government’s argument, our decision in Qui

14   Guan Di Zhang v. INS, 274 F.3d 103 (2d Cir. 2001), does not require a different




     2The two circuits that have concluded otherwise both faced circumstances where
     the order of removal was initially predicated on a covered criminal offense. See
     Fernandez-Bernal v. Att’y Gen., 257 F.3d 1304, 1310 (11th Cir. 2001) (holding that
     Section 1252(a)(2)(C) applied when petitioner was ordered removed on basis of
     controlled-substance conviction that was later expunged); Lopez-Elias v. Reno, 209
     F.3d 788, 793 (5th Cir. 2000) (holding that basis for petitioner’s removal, burglary,
     constituted a “crime of violence” for purposes of Section 1252(a)(2)(C)).
                                               11
 1   interpretation of Section 1252(a)(2)(C). Zhang considered the scope of covered

 2   crimes that are subject to the jurisdictional limitation in Section 1252(a)(2)(C). 274

 3   F.3d at 108. It did not address whether “is removable by reason of” means

 4   actually found removable by reason of a covered criminal offense or could have

 5   been found removable by reason of a covered criminal offense.

 6         Likewise, our interpretation comports with a) due process, which affords a

 7   petitioner the right to notice and a fair opportunity to be heard—before the case

 8   reaches the Court of Appeals, see Ali v. Reno, 22 F.3d 442, 448 (2d Cir. 1994); b) the

 9   “strong presumption of judicial review of administrative action[s],” INS v. St.

10   Cyr, 533 U.S. 289, 298 (2001); and c) the “longstanding principle of construing any

11   lingering ambiguities in deportation statutes in favor of the alien,” INS v.

12   Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

13         Here, as the motions panel already noted, Manning was “not ordered

14   removed on the basis of his criminal conviction.” Dkt. No. 42 at 1; see also CAR at

15   942 (Notice to Appear charging Manning only with being “present in the United

16   States without being admitted or paroled”). As such, Section 1252(a)(2)(C) does

17   not limit this Court’s jurisdiction over Manning’s petition.




                                               12
 1      II.      Manning’s CAT Claim

 2            Where the “BIA adopt[s] and affirm[s] the IJ’s decision, we review the two

 3   decisions in tandem.” Ruqiang Yu v. Holder, 693 F.3d 294, 297 (2d Cir. 2012). In

 4   doing so, we review questions of law de novo, Harbin v. Sessions, 860 F.3d 58, 63

 5   (2d Cir. 2017), and factual findings under the substantial evidence standard, Kone

 6   v. Holder, 596 F.3d 141, 146 (2d Cir. 2010). The substantial evidence standard

 7   requires that factual findings “be supported by reasonable, substantial and

 8   probative evidence in the record when considered as a whole.” Kone, 596 F.3d at

 9   146 (internal quotation marks omitted). It requires “a certain minimum level of

10   analysis from the IJ and BIA, as well as some indication that the IJ considered

11   material evidence supporting a petitioner’s claim.” Castro v. Holder, 597 F.3d 93,

12   100 (2d Cir. 2010) (internal quotation marks omitted). This Court will “vacate and

13   remand for new findings . . . if the agency’s reasoning or its factfinding process

14   was sufficiently flawed.” Xiao Kui Lin v. Muaksey, 553 F.3d 217, 220 (2d Cir. 2009).

15            The CAT prohibits the government from removing Manning to any

16   country where it is “more likely than not that he . . . would be tortured.” 8 C.F.R.

17   § 1208.16(c)(2). “[T]o prevail on a CAT claim the alien need only proffer objective

18   evidence that he or she is likely to be tortured in the future.” Ramsameachire v.



                                               13
 1   Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004). “The burden of proof is on the applicant

 2   . . . to establish that it is more likely than not that he or she would be tortured if

 3   removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Torture is

 4   “the intentional infliction of pain or suffering that is perpetrated or sanctioned by

 5   a nation’s authorities.” Ramsameachire, 357 F.3d at 184. Because the BIA declined

 6   to reach the IJ’s decision regarding government acquiescence, it is not before this

 7   Court. See Passi v. Mukasey, 535 F.3d 98, 100 (2d Cir. 2008). We review the BIA’s

 8   determination that Manning is not eligible for deferral of removal under the CAT

 9   on the sole ground that he “has not established that the Immigration Judge’s

10   determination on the likelihood of torture was clearly erroneous.” CAR at 4.

11           Manning argues that the BIA’s denial of Manning’s CAT claim was legally

12   erroneous and not supported by substantial evidence for three reasons: (1) the IJ

13   and BIA discounted Manning’s credible testimony without proper explanation;

14   (2) the IJ and BIA ignored substantial and material evidence that Manning is

15   likely to be killed if removed to Jamaica; and (3) the IJ and BIA erred in requiring

16   Manning to prove that he could not relocate to another part of Jamaica in order

17   to establish his CAT claim. We agree as to each and address each argument in

18   turn.



                                                14
 1       A. Credible Testimony

 2          In making a credibility determination, the IJ is to “[c]onsider[] the totality

 3   of the circumstances, and all relevant factors.” 8 U.S.C. § 1229a(c)(4)(C). If the IJ

 4   determines that a petitioner’s testimony is credible but nonetheless insufficient to

 5   meet his burden of proof, the IJ must “explain specifically, either in its decision

 6   or otherwise in the record: (1) why it is reasonable under the BIA's standards to

 7   expect such corroboration; and (2) why [petitioner’s] proffered explanations for

 8   the lack of such corroboration are insufficient.” Diallo v. INS, 232 F.3d 279, 290

 9   (2d Cir. 2000). 3

10          We have before vacated and remanded where, for example, “the IJ

11   identified no inconsistencies in the [petitioner’s] testimony and made no adverse

12   credibility finding, [but] apparently dismissed significant portions of the

13   [petitioner’s] testimony as uncorroborated, without discussing whether such

14   corroboration would have been obviously material and reasonably available.”

15   Poradisova v. Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (citing Diallo, 232 F.3d at 287-

16   89). We have similarly done so where the IJ identified specific documents needed


     3 Although Diallo precedes the REAL ID Act, we have previously noted that
     “[t]he corroboration standard under the REAL ID Act [of 2005] closely tracks our
     pre-REAL ID Act case law.” Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir. 2018)
     (citing Diallo, 232 F.3d at 285-86).
                                               15
 1   to corroborate a petitioner’s testimony but “failed to explain why additional

 2   documentation was crucial.” Bangoura v. Bd. of Immigration Appeals, 235 F. App’x

 3   804, 806 (2d Cir. 2007) (citing Diallo, 232 F.3d at 288).

 4         Here, the IJ determined that Manning was credible: “I do find in this case

 5   that [Manning] has been a credible witness, so credibility is not at issue.

 6   [Manning] has testified candidly and consistently with his earlier submissions

 7   and I have no reason at this point to doubt his credibility.” CAR at 62. Manning’s

 8   credible testimony included that he broke the code of silence in Jamaica, which is

 9   punishable by death; that it is common knowledge that he informed on

10   dangerous criminals; that he “is getting out [of prison] soon,” CAR at 167, so that

11   it would become common knowledge if he were to return to Jamaica because he

12   and Edwards share familial and social connections; and that he received death

13   threats during his incarceration warning him that he would be killed if he

14   returned to Jamaica.

15         Yet the IJ concluded that “although [Manning] has testified credibl[y] . . . I

16   do not find he has met his burden of proof that it is more likely than not that he

17   would suffer torture” if removed to Jamaica. CAR at 67.




                                                16
 1         We hold that the IJ committed reversible error in discounting Manning’s

 2   credible testimony without explaining why further corroboration would be

 3   necessary or whether such corroboration would have been obviously material

 4   and reasonably available. After all, Manning’s testimony was corroborated by

 5   the affidavit of Dr. Anthony Harriott, an expert on Jamaican organized crime. Dr.

 6   Harriott’s affidavit, which the IJ had before it, contradicted the IJ’s finding. Dr.

 7   Harriott concluded that “[d]espite his long stay in prison in the USA and a

 8   possible waning of the influence of Delroy Edwards, were Mr. Manning to be

 9   returned to Jamaica, his life would be put at risk.” CAR at 540. He noted that the

10   death threats Manning received “were delivered in anticipation of his removal

11   from the USA to Jamaica [and] [s]uch threats are consistent with the

12   institutionalization of the code of silence.” CAR at 539. He further stated: “given

13   that Mr. Manning collaborated with the US authorities and that his collaboration

14   contributed to the conviction of Delroy Edwards, were Mr. Manning to be

15   removed to Jamaica, his life would be at risk.” CAR at 538.

16         In finding that Manning’s credible testimony (and also Dr. Harriott’s

17   corroborating affidavit) was insufficient, the IJ determined—and the BIA

18   agreed—that Manning’s “fear concerning future torture appears to be



                                               17
 1   generalized and unsupported, and relies on a series of suppositions that are

 2   simply too speculative.” CAR at 4. But this assertion fails to “explain specifically,

 3   either in its decision or otherwise in the record: (1) why it is reasonable under the

 4   BIA's standards to expect [additional] corroboration [of Manning’s credible

 5   testimony]; and (2) why [Manning’s] proffered explanations for the lack of such

 6   corroboration are insufficient.” Diallo, 232 F.3d at 290. The IJ found that

 7   Manning’s testimony was credible and consistent. Manning testified that he

 8   faced near-certain lethal reprisal in Jamaica despite the passage of time, and an

 9   expert on Jamaican gang violence provided support and context for that

10   contention. The IJ erred as a matter of law by failing to identify what additional

11   corroborating evidence was needed or to explain why it was reasonable to expect

12   additional corroboration.

13      B. Consideration of Evidence

14         The IJ and BIA also ignored substantial and material evidence that

15   Manning is likely to be killed if removed to Jamaica. “In assessing whether it is

16   more likely than not that an applicant would be tortured in the proposed country

17   of removal, all evidence relevant to the possibility of future torture shall be

18   considered. . . .” 8 C.F.R. § 1208.16(c)(3). While the IJ or BIA need not “expressly



                                              18
 1   parse or refute on the record each individual . . . piece of evidence,” it “should

 2   demonstrate that it has considered [material] evidence, even if only to dismiss

 3   it.” Wang v. B.I.A., 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation marks

 4   omitted). “Where the immigration court fails to consider important evidence

 5   supporting a petitioner's claim, we are deprived of the ability adequately to

 6   review the claim and must vacate the decision and remand for further

 7   proceedings.” Id. at 275 (internal quotation marks omitted).

 8         From the outset, we find error in the IJ’s and BIA’s failure to consider the

 9   unrebutted expert affidavit of Dr. Harriott, which we assume to be credible. See

10   Chen, 417 F.3d at 272. As discussed in Section II.A, supra, Dr. Harriott concluded

11   that Manning’s life was still at risk if he were removed to Jamaica. And “it is not

12   sufficient simply to ignore” Dr. Harriott’s affidavit “when announcing a

13   conclusion” regarding likelihood of torture. Chen, 417 F.3d at 272. 4 Instead, the IJ




     4The IJ failed to mention Dr. Harriott’s expert affidavit when concluding that
     Manning had failed to establish it was more likely than not that he would be
     tortured if removed to Jamaica. Although government acquiescence is not before
     us, we note that the IJ did mention Dr. Harriott’s affidavit in that portion of the
     opinion. The IJ cited Dr. Harriott’s affidavit as support for its conclusion that
     “[a]lthough [Jamaica] still has a long way to go, it does appear that the Jamaican
     government are not acquiescing or turning a blind eye.” CAR at 94. But Dr.
     Harriott’s affidavit posits a contrary conclusion, stating that today the country
     has a “generally tolerant attitude to the use of violence against criminal suspects”
                                              19
 1   asserted that Manning “has failed to establish that it is more likely than not that

 2   any of those people currently in those [other] gangs would intend to torture him

 3   because he testified against a different gang member some 20 years ago.” CAR at

 4   68. Dr. Harriott explained, however, that the code of silence, also known as

 5   “informi fi dead,” is “strict[ly] enforce[d]”and gang members “are expected to

 6   remain loyal to the group and not collaborate with the police.” CAR at 539. If

 7   not, Dr. Harriott said, “[v]iolations result in near certain and swift death.” Id.

 8   Finally, Dr. Harriott said that even today “[t]he Southside gangs to which

 9   Edwards was affiliated are active in Jamaica and are very capable groups.” CAR

10   at 540.

11         The IJ and BIA further erred in failing to consider significant and material

12   evidence of the death threats Manning received. He stated in a declaration

13   submitted to the IJ that everyone in his family in Jamaica knew he informed on

14   the gang, and that his family members were afraid to attend his immigration

15   proceedings out of fear that they would be perceived as associating with him.

16   According to Manning, Edwards’s family, too, made clear that the threat

17   persisted—including one family member saying that if Manning returns to


     and “the Jamaican police are unlikely to offer any meaningful protection to
     someone like Mr. Manning who was convicted of serious crimes.” CAR at 540.
                                               20
 1   Jamaica, he is “going to die.” CAR at 160-62. Markedly, Manning also said that

 2   the mother of his children had relayed to him that Edwards’s “family and other

 3   people would say ‘when Kenneth back in Jamaica, we gonna kill him.’” CAR at

 4   531. Manning’s nephew also submitted a declaration, which the IJ did not

 5   acknowledge, stating:

 6         My mother is considered like an outcast in her family because
 7         Kenneth informed.
 8         ...
 9         [Edwards] used to be the one who gave [the community members]
10         money. They look at him as a big shot and he was taking care of
11         them down there even when he was in the United States. They
12         blame Kenneth for the loss of that support.
13
14         Delroy has two siblings in Jamaica . . . . He also has many children.
15         ...
16         People don’t forgive in Jamaica. I believe that if my uncle Kenneth is
17         deported to Jamaica, I wouldn’t give it a month before he is
18         murdered. . . .
19
20         I believe that if he is deported, [Edwards’s] siblings will learn that
21         Kenneth is out and then someone will kill him. The attitude is, we
22         are going to teach him how to keep his mouth shut. People in the
23         posses down there know Kenneth and [Edwards].
24
25   CAR at 543-44.

26         For his part, Edwards, while incarcerated, published a blog in 2015 that

27   specifically mentioned Manning’s cooperation with the government, and called

28   those that testified against him “rats.” CAR at 600. He wrote that the cooperators


                                              21
 1   “[s]hould have taken their own lives rather than face dishonor” by informing. Id.

 2   (“I grew up internalizing the thought that you never, ever rat on people; and in a

 3   Jamaica run on the ancient warrior code ‘death before dishonor.’ ‘Informa Fi

 4   dead’ was a phrase inculcated in the mind of every ghetto kid. However none [of

 5   the cooperators] honored those codes.”).

 6         This evidence is material to the possibility of Manning’s future torture.

 7   There was no evidence before the IJ or BIA that placed a time limit on the danger.

 8   In fact, as noted above, the government reviewed Manning’s protective custody

 9   status every six months for 28 years and affirmed his placement each time.

10   Because the IJ and BIA erred in overlooking material evidence, we must vacate

11   and remand.

12      C. Internal Relocation

13         “In assessing whether it is more likely than not that an applicant would be

14   tortured in the proposed country of removal, all evidence relevant to the

15   possibility of future torture shall be considered, including . . . [e]vidence that the




                                               22
 1   applicant could relocate to a part of the country of removal where he or she is not

 2   likely to be tortured.” 8 C.F.R. § 1208.16(c)(3)(ii).

 3         The governing regulations, to be sure, do not require an applicant to prove

 4   that it is not possible to relocate to a different area of the country in order to

 5   evade torture. The IJ erred as a matter of law in placing such a burden on

 6   Manning. See CAR at 68 (stating that Manning’s claim failed in part because he

 7   “has not established that he could not relocate to another part of Jamaica . . .

 8   where he could live without being identified”). The government argues, without

 9   citing to any regulation or precedent from this Circuit, that “[a] CAT applicant

10   always has the burden to establish that internal relocation is not possible.” Gov’t

11   Br. at 27. We disagree. That the IJ shall consider “[e]vidence that the applicant

12   could relocate” does not mean there is a burden on the applicant to establish

13   relocation is not possible. 8 C.F.R. § 1208.16(c)(3)(ii). Rather, evidence that an

14   applicant can relocate to another part of the country where he or she is “not

15   likely to be tortured” is only one of a number of factors an agency is to consider.

16   See 8 C.F.R. § 1208.16(c)(3).

17         Even more problematic is the IJ’s supposition that Manning could avoid

18   torture in Jamaica by simply cutting off all contact with his family and friends:



                                                23
 1   “[T]here is no reason why he could not go back to Jamaica and relocate to

 2   another part without contacting his family or placing anyone on notice he is

 3   back.” CAR at 68. We have never before held that internal relocation is satisfied

 4   by assuming that a petitioner must essentially live incommunicado and isolated

 5   from loved ones. And we decline to do so here. Cf. Nuru v. Gonzales, 404 F.3d

 6   1207, 1219 (9th Cir. 2005) (“[I]t will rarely be safe to remove a potential torture

 7   victim on the assumption that torture will be averted simply by locating him to

 8   another part of the country.”).

 9                                       CONCLUSION

10         For the foregoing reasons, Manning’s petition for review is thus

11   GRANTED and his application for deferral of removal under the CAT is

12   REMANDED for further proceedings consistent with this opinion.




                                               24
RICHARD J. SULLIVAN, Circuit Judge, dissenting

      Unlike the majority, I find that the plain text of the criminal alien bar,

8 U.S.C. § 1252(a)(2)(C), strips this Court of jurisdiction to review Manning’s

petition. The criminal alien bar states, in pertinent part:

             [N]o court shall have jurisdiction to review any final
             order of removal against an alien who is removable by
             reason of having committed a [covered] criminal offense
             ....

8 U.S.C. § 1252(a)(2)(C). The majority interprets this provision to apply only to

aliens who have been ordered removed on the basis of a covered criminal offense.

In a nutshell, then, the majority reads the phrase “is removable by reason of” to

mean “has been ordered removed by reason of.”


      But the criminal alien bar supplies no support for this interpretation of its

text. Likewise, the broader statutory scheme counsels against such a reading. And

even if this Court did have jurisdiction, I would deny Manning’s petition to defer

his removal under the Convention Against Torture (“CAT”) on the merits.

Accordingly, I respectfully dissent.
                                           I.


      The criminal alien bar strips this Court of jurisdiction to review final

removal orders against “an[y] alien who is removable by reason of having

committed” a covered criminal offense. 8 U.S.C. § 1252(a)(2)(C). Reduced to its

plain meaning, this provision states that courts may not review the removal order

of any alien who has been convicted of certain crimes. See Zhang v. I.N.S., 274 F.3d

103, 108 (2d Cir. 2001) (“[Section] 1252(a)(2)(C) simply states that certain aliens

who are removable have no right to direct review; and it identifies them as the

aliens who have committed a criminal offense of the class set forth in

§ 1227(a)(2)(A)(iii).”); see also Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000). Thus, the

relevant text of the criminal alien bar applies “based on the category of ‘alien’

whose final order of removal is the subject of appeal, not the reason the ‘order’

issue[d].” Ortiz-Franco v. Holder, 782 F.3d 81, 92 n.1 (2d Cir. 2015) (Lohier, J.,

concurring). Accordingly, the criminal alien bar applies whenever an alien is

removable by reason of having committed a criminal offense covered by § 1227, not

merely when the order of removal is issued on that basis. Other circuits have

reached this same conclusion. See Fernandez-Bernal v. Att’y Gen. of U.S., 257 F.3d

1304, 1310 (11th Cir. 2001) (finding that the petitioner “‘[wa]s removable’ within


                                           2
the meaning of § 1252(a)(2)(C) because at his hearing before the immigration judge

and at oral argument before [the Eleventh Circuit], he admitted, through his

counsel, to committing the offense of possession of cocaine”; “so long as [the

petitioner] is in fact removable under § 1182(a)(2), we lack jurisdiction to review

his final order of removal.”); Lopez-Elias v. Reno, 209 F.3d 788, 793 (5th Cir. 2000)

(“What the INS originally charged is of no consequence; so long as the alien in fact

is removable for committing an aggravated felony, this court has no jurisdiction,

irrespective of whether the INS originally sought removal for that reason.”); see

also Ortiz-Franco, 782 F.3d at 91-92, 92 n.1 (Lohier, J., concurring) (“‘[B]y reason of’

modifies ‘alien,’ not ‘order.’”).


      The plain meaning of the provision’s language is consistent with the

statutory purpose of § 1252. “[I]t is beyond cavil that one of Congress’s principal

goals in enacting [the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996] was to expedite the removal of aliens who have been convicted of

aggravated felonies.”     Zhang, 274 F.3d at 108.      Limiting the judicial review

available to that class of aliens clearly furthers that aim. Unsurprisingly, then, this

reading sits comfortably with the statute’s legislative history. See Ortiz-Franco, 782

F.3d at 92 n.1 (Lohier, J., concurring) (“[N]othing in the legislative history supports


                                           3
the . . . view that § 1252(a)(2)(C)’s jurisdictional bar applies only to orders that

determine an alien is removable by virtue of having committed a qualifying

crime.”); see also H.R. Rep. No. 109-72, at 174 (2005) (Conf. Rep.), reprinted in 2005

U.S.C.C.A.N. 240, 299 (“[U]nder this section, criminal aliens will have fewer

opportunities to delay their removal . . . .”).


      The majority argues that this reading “unmoors the second part of the

provision from the first part and belies the plain text when both are read together”

– i.e., it separates the criminal conviction from the final removal order. But that is

problematic only if one starts from the majority’s conclusion and works

backwards. The majority’s concern for “unmoor[ing]” portions of the text makes

sense only if those provisions were intended to be moored together in the first

place. But, as discussed above, nothing in the text of the criminal alien bar

supports that proposition. Indeed, had Congress intended to join those two

provisions, it easily could have written the statute to do so – e.g., “[N]o court shall

have jurisdiction to review any final order of removal against an alien who has been

ordered removed by reason of having committed a criminal offense . . . .”


      The majority’s interpretation is further belied when placed within the

broader statutory scheme. As used throughout the statute, the terms “removable”


                                           4
and “removed” have distinct meanings. The former refers to aliens that can be

deported, while the latter refers to only those aliens that are actually deported (or

ordered to be deported). See, e.g., 8 U.S.C. §§ 1227(a), 1229a(e)(2). Accordingly,

while every alien that is “removed” must be “removable,” the reverse is not

necessarily the case. The majority ignores this distinction by reading the phrase

“an alien who is removable” to refer to only the subset of removable aliens who

are actually ordered removed. This runs afoul of the “presumption that a given

term is used to mean the same thing throughout a statute.” Brown v. Gardner, 513

U.S. 115, 118 (1994).


      Moreover, while it is true that determinations of whether an alien is

“removable” are generally left to the Immigration Judge (“IJ”) under 8 U.S.C.

§ 1229a(a)(1) and (c)(1)(A), that does not limit courts’ ability to assess whether they

possess jurisdiction under § 1252(a)(2)(C). Indeed, it is well-understood that this

Court retains the ability “to determine underlying jurisdictional facts such as

whether there was a conviction and whether the offense of conviction was an

aggravated felony.” Zhang, 274 F.3d at 108; see also Ming Lam Sui v. I.N.S., 250 F.3d

105, 110 (2d Cir. 2001) (“[T]his court retains jurisdiction to review the underlying

jurisdictional fact at issue—namely, whether Sui has been convicted of an


                                          5
aggravated felony.”); Kuhali v. Reno, 266 F.3d 93, 100–01 (2d Cir.2001) (“[T]o say

that a court possesses the authority to ascertain its jurisdiction over a matter is not

tantamount to saying that the legislature has designated the court as a forum for

resolution on the merits of those issues that happen to underlie the jurisdictional

inquiry.”); Bell, 218 F.3d at 89–90. Thus, this Court may assess whether, on the

record created below, a petitioning alien has been convicted of a covered criminal

offense.


       Here, there is no question that Manning is removable by reason of having

been convicted of an aggravated felony – he admits as much. 1 The criminal alien

bar therefore plainly applies to Manning’s removal order. And while a limited

exception to this bar exists for “certain legal claims,” 8 U.S.C. § 1252(a)(2)(D),

Manning’s only colorable challenge is to the IJ’s factual determinations concerning

the likelihood of his torture upon return to Jamaica. 2 Accordingly, I believe that

this Court lacks jurisdiction to review Manning’s petition.



1There is therefore no risk that the Court must engage in a far-ranging fact-finding expedition in
conflict with the statute’s mandate that the IJ act as sole factfinder.
2The Supreme Court recently held that under the § 1252(a)(2)(D) exception, courts have
jurisdiction to consider mixed questions of law and fact, including “the application of a legal
standard to established facts.” Guerrero-Lasprilla v. Barr, No. 18–776, slip op. at 11 (Mar. 23,
2020). In a letter filed pursuant to Federal Rule of Appellate Procedure 28(j), Manning argues
that his claim falls within this exception. Doc. No. 123. That is simply fanciful. Manning’s
primary argument is that the IJ improperly disregarded both his credible testimony and other

                                                6
                                              II.


       But even if this Court had jurisdiction, I would deny Manning’s petition on

the merits.


       Manning relies on a chain of suppositions to argue that he is “more likely

than not . . . [to] be tortured if removed” to Jamaica. 8 C.F.R. §§ 1208.16(c)(2),

1208.17(a). In short, Manning posits that even though he last set foot in Jamaica

three decades ago, people in Jamaica will: (i) know who he is; (ii) know and

remember that he cooperated with New York prosecutors 20 years ago; (iii) want

to do him harm; and (iv) know where and how to find him once he returns. On

top of all that, Manning argues that Jamaican police are corrupt and will permit

him to be killed. Because Manning carries the burden of proof to defer his

deportation under CAT, he must demonstrate not only that each individual link

in that chain is more likely than not to occur, but that the “entire chain will come



material corroborating evidence. But, as discussed below, the IJ appropriately considered – and
rejected – the evidence Manning put forward because it was insufficient to meet Manning’s
heavy burden. The weighing of evidence to reach a factual conclusion is the meat and potatoes
of fact finding, and does not fall within the reach of § 1252(a)(2)(D). To be sure, Manning does
identify what, if true, would be a legal error: that the IJ misapplied the law concerning
Manning’s ability to relocate upon his return to Jamaica to avoid torture. But this claim is “so
insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction.” Barco-
Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008). Accordingly, Manning raises no “colorable”
legal issues for our consideration and his petition does not fall within the § 1252(a)(2)(D)
exception to the criminal alien bar. See id.

                                               7
together to result in the probability of [his] torture.” In re J-F-F-, 23 I. & N. Dec.

912, 917–18, 918 n.4 (A.G. 2006); see also Savchuck v. Mukasey, 518 F.3d 119, 123 (2d

Cir. 2008) (same).


      When considered as a whole, the record amply supports the IJ’s rejection of

Manning’s application. First, much of Manning’s evidence is far too general to be

accorded great weight. For instance, though Manning states that he is certain that

he will be killed for cooperating with prosecutors against members of the Renkers

Posse, he admits that he “never really s[ought] [out] any information about the

posse” since his placement in protective custody. CAR 193–94. In addition,

Manning notes that he served his prison sentence in protective custody. But a

finding that Manning would be in danger if he were to be placed in the general

prison population in New York does not equate to a finding that his life would be

in danger in Jamaica. Indeed, it is not uncommon for cooperating witnesses to be

placed in protective custody while they are in prison, given the general antipathy

for cooperators among inmates. Lastly, Manning points to a blog post written by

Delroy Edwards as proof that he is likely to face torture or death upon his return

to Jamaica. But the blog post doesn’t say anything about Manning (other than

listing him among the other codefendants) and merely refers to all of Edwards’s


                                          8
codefendants collectively. Significantly, the blog post does not contain any overt

threats towards those codefendants.


      Second, much of Manning’s evidence is so dated as to no longer reliably

describe the present circumstances in Jamaica. For instance, while Manning relies

on statements from the mother of his children that he is in danger, the two have

not spoken in many years (and she has since died). Likewise, Manning relies on a

declaration from his nephew, who was last in Jamaica over a decade ago.


      Third, the five-page declaration provided by Manning’s expert witness, Dr.

Anthony Harriott, is both highly general and at best ambiguous beyond its

conclusory assertion that Manning would be at risk if he were to return to Jamaica.

On the one hand, Dr. Harriott concludes that gangs are still quite active in Jamaica

and that the police tolerate crime directed at criminals. On the other hand, he

states that “torture is illegal” in Jamaica and that the police and army have recently

undertaken a series of anti-gang campaigns. CAR 538, 540. Moreover, while Dr.

Harriott states that many “Southside gangs” are still active in Jamaica, he does not

indicate that the Renkers Posse is one of those gangs, nor does he describe the

existence of a relationship between the Renkers Posse and the active gangs that




                                          9
would suggest that active gang members would have any reason to harm

Manning. CAR 539-40.


      Fourth, Manning’s ability to relocate in Jamaica is a relevant factor that the

IJ was permitted to consider when engaging in the CAT analysis.                8 C.F.R.

§ 1208.16(c)(3)(ii); see also Dan-Xia Cao v. Gonzales, 214 F. App’x 20, 22 (2d Cir. 2007)

(“As for CAT relief, an applicant’s ability to relocate in her country of removal to

avoid torture is just one of many factors an adjudicator should consider in the CAT

eligibility analysis.”). As the IJ found, there is simply no evidence that Manning

would be unable to lead a peaceful life if he were to return to Jamaica somewhere

other than Kingston. Indeed, even Manning’s own expert witness admitted that

the gang violence Manning fears is “concentrated in the urban parishes of

Kingston and St. Andrew (both of which constitute the city of Kingston) and the

other largely urban parishes.” CAR 538. Moreover, the IJ did not, as Manning

suggests, “requir[e] Mr. Manning to prove that he could not relocate internally to

another part of Jamaica to establish his CAT claim.” Pet. Br. at 47. Rather, the IJ

appropriately considered Manning’s ability to relocate as only one of myriad

factors that supported its rejection of Manning’s petition. Maldonado v. Lynch, on

which Manning relies, is not to the contrary. See 786 F.3d 1155, 1164 (9th Cir. 2015)


                                           10
(en banc) (“Section 1208.16(c)(2) does not place a burden on an applicant to

demonstrate that relocation within the proposed country of removal is impossible

because the IJ must consider all relevant evidence; no one factor is determinative.”

(emphasis added)).


      At bottom, Manning bore the burden of showing that his removal would

“more likely than not” result in his torture. 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a).

To do so, he adduced evidence that was too general, conclusory, or dated to be of

much persuasive value. As a result, the IJ concluded that Manning failed to meet

his burden. I agree.


                       *                  *                   *

      Accordingly, because this Court lacks jurisdiction to review Manning’s

removal, and because, even on the merits, Manning has failed to demonstrate

that he is more likely than not to be tortured if he returns to Jamaica, I would

deny the petition.




                                          11
