Filed: Oct. 26, 2021
Latest Update: Oct. 27, 2021
Case: 21-60782 Document: 00516069987 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 26, 2021
No. 21-60782
Lyle W. Cayce
Clerk
Roderick Winston Stanton-Black,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A 035-166-856
Before Smith, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Roderick Winston Stanton-Black, a citizen of Jamaica, first came to
the United States in 1978 as a lawful permanent resident. On January 10,
1995, he was convicted for conspiracy to possess and distribute cocaine and
was sentenced to more than forty years in prison. On February 9, 2021, the
Department of Homeland Security served him with a Notice to Appear,
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-60782
alleging that he was removable pursuant to the Immigration and Nationality
Act by virtue of his aggravated felony.
Stanton-Black admitted that he was removable under the Immigration
and Nationality Act but sought protection under the “Convention Against
Torture” (CAT). See Convention Against Torture, and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465
U.N.T.S. 85 (entered into force for the United States Nov. 20, 1994). He
alleged that in 2010, while he was in prison, a man consensually performed a
sex act on him. A gang composed of Jamaican men known as the “Rude
Boys” took Stanton-Black outside and punched him in the face three or four
times. They told him that by engaging in homosexual activity he was
disrespecting the Rastafarian and Jamaican community, and that they would
murder him when he returned to Jamaica. Based on these events, Stanton-
Black alleges that he is entitled to relief under the CAT.
The Immigration Judge ordered Stanton-Black removed to Jamaica
and denied his request for protection under the CAT. The Immigration Judge
concluded that while Stanton-Black was punched, he had not shown that it
was more likely than not that he would be tortured by or with the consent of
the Jamaican government. The Board of Immigration Appeals affirmed the
decision of the Immigration Judge and dismissed Stanton-Black’s
administrative appeal. Stanton-Black then filed a petition for review, along
with an emergency request for a stay of removal.
We review the Immigration Judge’s factual determinations for
substantial evidence, meaning that we will only reverse if we decide “not only
that the evidence supports a contrary conclusion, but also that the evidence
compels it.” Milat v. Holder,
755 F.3d 354, 359 (5th Cir. 2014) (quoting Chen
v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006)). This review is highly
deferential. “[A] reviewing court must accept ‘administrative findings’ as
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‘conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Garland v. Ming Dai,
141 S. Ct. 1669, 1677 (2021)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
Motions for a stay of removal are governed by the four-factor test
announced in Nken v. Holder: “(1) whether the stay applicant has made a
strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.”
556 U.S. 418, 434 (2009) (quoting
Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). The first two factors “are the
most critical.”
Id. The third and fourth factors merge where, as here, the
Government opposes the stay.
Id. at 435.
We start with the merits. To succeed on the merits, Stanton-Black
must show two things: “first, [that it is] more likely than not that the alien
will be tortured upon return to his homeland; and second, [that there is]
sufficient state action involved in that torture.” Tamara-Gomez v. Gonzales,
447 F.3d 343, 350–51 (5th Cir. 2006). Stanton-Black has not shown either of
these things. The Immigration Judge’s determination that Stanton-Black was
not tortured was not unreasonable. Stanton-Black was punched three or four
times, did not require medical care, and has not been injured by the Rude
Boys again for the rest of his time in prison. He does not allege that any other
person has been tortured by the Rude Boys for homosexual activity. And
Stanton-Black provided the Immigration Judge with absolutely no evidence
linking the Rude Boys and the Jamaican government, much less evidence that
the two organizations cooperate to torture homosexuals. To the contrary, the
Immigration Judge noted that a Human Rights Report on the country of
Jamaica contained no reference to the Rude Boys at all. Therefore,
substantial evidence supported the Immigration Judge’s factual findings that
Stanton-Black “has not met the high burden to show[] that he is more likely
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than not to be tortured in Jamaica by the Rude Boys” and “has also not
demonstrated that the Jamaican government would more likely than not
acquiesce to such torture even if it were to occur.” Cf. Blake v. U.S. Att’y
Gen.,
945 F.3d 1175, 1178 (11th Cir. 2019) (denying motion for emergency
stay of removal because petitioner did not show that he would be “tortured
by or with the consent or acquiescence of Jamaican officials on returning to
his home country”).
Nor has Stanton-Black demonstrated that he would be irreparably
harmed if he had to pursue his petition from abroad. He argues that it would
be extremely difficult to pursue relief from Jamaica as he is proceeding pro se.
But the Supreme Court explicitly stated that this is not enough to meet the
second Nken factor. “[T]he burden of removal alone cannot constitute the
requisite irreparable injury. Aliens who are removed may continue to pursue
their petitions for review, and those who prevail can be afforded effective
relief by facilitation of their return, along with restoration of the immigration
status they had upon removal.” Nken,
556 U.S. at 435.
Finally, the third and fourth factors, which merge in cases such as this
one where the government opposes the stay, weigh against granting the
emergency stay. “Of course there is a public interest in preventing aliens
from being wrongfully removed, particularly to countries where they are
likely to face substantial harm.”
Id. at 436. However, as explained above,
Stanton-Black has not shown that he is being wrongfully removed or that he
is being removed to a country where he is likely to face substantial harm. And
absent this consideration, the public has an “interest in prompt execution of
removal orders: The continued presence of an alien lawfully deemed
removable undermines the streamlined removal proceedings IIRIRA
established, and ‘permit[s] and prolong[s] a continuing violation of United
States law.’”
Id. at 436 (alterations in original) (quoting Reno v. American–
Arab Anti–Discrimination Comm.,
525 U.S. 471, 490 (1999)).
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For the forgoing reasons, IT IS ORDERED that Petitioner’s mo-
tion for stay of removal pending review is DENIED.
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