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Stanton-Black v. Garland, 21-60782 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60782 Visitors: 14
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

                                                                       October 26, 2021
                                   No. 21-60782
                                                                         Lyle W. Cayce
   Roderick Winston Stanton-Black,



   Merrick Garland, U.S. Attorney General,


                        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   opinion should not be published and is not precedent except under the limited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.
Case: 21-60782      Document: 00516069987          Page: 2      Date Filed: 10/26/2021

                                    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

Case: 21-60782      Document: 00516069987          Page: 3    Date Filed: 10/26/2021

                                    No. 21-60782

   ‘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.” 
 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

Case: 21-60782      Document: 00516069987           Page: 4    Date Filed: 10/26/2021

                                     No. 21-60782

   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
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)).

Case: 21-60782    Document: 00516069987         Page: 5   Date Filed: 10/26/2021

                                 No. 21-60782

         For the forgoing reasons, IT IS ORDERED that Petitioner’s mo-
   tion for stay of removal pending review is DENIED.

Source:  CourtListener

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