8th Cir. Applies Criminal Deportation in Convention Against Torture

By Kelly Cheung on May 24, 2013 | Last updated on March 21, 2019

Bryan St. Patrick Gallimore was arrested and convicted of second degree burglary with a sentence of no more than ten years. Gallimore was consequently facing criminal deportation as an alien convicted of an aggravated felony.

Gallimore sought to stay in the U.S. by seeking deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). However, he was denied because of the criminal alien bar under 8 U.S.C. Section 1227.

To be eligible for deferment under CAT, one must show that when returning to their home country, they are more likely than not to be tortured with the consent or acquiescence of a public official. However, criminal deportation laws also apply.

Seeking his deferral of removal, Gallimore testified to the IJ that he was intimidated by a Jamaican political party before moving to the U.S. and another political party kidnapped and mistreated him when he visited Jamaica back in 2003.

He claimed that the same political party murdered his friend who had helped free him from the kidnappers. If he returned to Jamaica, he feared that one of the political parties would have the police find and kill him.

The IJ found that Gallimore was not mistreated to the level rising to a CAT level of torture and there was no evidence showing that the government was behind it. On appeal, the Board of Immigration Appeals affirmed the decision to deny him deferral of removal. Gallimore's evidence was insufficient to find he was more likely than not to be tortured by or with the Jamaican government's acquiescence.

Gallimore claimed that the IJ and BIA applied the wrong legal standard when evaluating whether the Jamaican government was "willfully blind" to torture by political parties. He argued that the IJ and BIA misinterpreted or inappropriately weighed the evidence.

Gallimore's arguments failed with Eighth Circuit Court and his petition for review was denied. The Eighth Circuit could not decide the merits of his case because it statutorily could not review the final order for removal. Whether or not the IJ or BIA made the wrong factual determinations, this court has no power to review that.

Gallimore's claim did not take long for it to be denied by the Eighth Circuit. Relying on a Ninth Circuit court case, Bromfield v. Mukasey, did not serve him well.

Relying on the Ninth Circuit opinion, Gallimore's argument was that the criminal bar does not apply to a denial for deferral under CAT, but it does in the Eighth Circuit. In this circuit, an aggravated felony bars an alien and will have to be removed. Unfortunately for Gallimore, the Ninth Circuit could not spare him from removal in the Eighth Circuit.

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