Anthony Lloyd Murry v. MERRICK B. GARLAND, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3109
A NTHONY LLOYD M URRY ,
Petitioner,
v.
M ERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A098-126-854
____________________
S UBMITTED O CTOBER 5, 2021 — DECIDED O CTOBER 7, 2021
____________________
Before EASTERBROOK, K ANNE, and S T. EVE, Circuit Judges.
PER C URIAM . Anthony Lloyd Murry, a Jamaican citizen,
petitions for review of an order of the Board of Immigration
Appeals denying him relief from removal. Murry fears that
private citizens may confront him, a gay man, about his sex-
ual orientation or the government may punish him for violat-
ing Jamaica’s anti-sodomy laws. But Jamaica rarely enforces
its anti-sodomy laws for consensual sexual relations, and

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2 No. 20-3109
recent reports show growing public support for gay rights.
Because substantial evidence supports the Board’s decision
that Murry does not face a likelihood of state-sanctioned per-
secution, we deny Murry’s petition.
I. BACKGROUND
Murry has lived in the United States for 16 years. He en-
tered in 2005 as the fiancé of a United States citizen, whom he
married one month later. Murry eventually applied for per-
manent residence based on the marriage, but the
United States Citizenship and Immigration Services denied
the application in 2011. The government then started removal
proceedings. In the decade since, Murry has remained in the
United States without authorization.
At his removal hearing, Murry sought relief based on his
sexual orientation—he testified that he has been attracted to
men since he was a teenager in Jamaica in the 1980s. Murry
said that he was attacked once, in 2004, after a man publicly
called him gay and urged bystanders to shun him. Five men
then hit and kicked Murry, who was bruised; fearing reper-
cussions, he did not seek medical care or ask the police for
help.
The immigration judge also considered evidence about
how the treatment of gay people in Jamaica has evolved
among private and public actors since 2004. Historically, most
of Jamaican society has been homophobic: news articles de-
scribe demonstrations against gay rights and the murders of
two gay activists; two news reports, over a decade old, de-
scribe some Jamaican police officers harming or refusing to
help the victims of anti-gay violence; and sex between men
remains illegal. But attitudes are changing. According to a

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No. 20-3109 3
recent report that Murry himself submitted, the government
rarely enforces its anti-sodomy laws for consensual sex, and a
major newspaper has called for the repeal of these laws. An-
other article reports that Jamaican police officers have pro-
tected gay people from violence; similarly, Jamaica’s public
defender has called for prosecution of homophobic attackers.
In addition, prominent government officials have endorsed
gay rights. Jamaica’s former prime minister, for example,
publicly advocated for representation in government of mem-
bers of the gay and lesbian communities. And a former mayor
participated in a gay pride celebration, affirming that she was
accountable to gay and lesbian residents.
After reviewing this evidence, the IJ denied Murry relief
from removal. As relevant to the issues that he raises on ap-
peal, the IJ first ruled that Murry was ineligible for withhold-
ing of removal. The IJ reasoned that the private attack on
Murry in 2004 did not demonstrate state-sanctioned past per-
secution, and the other evidence of the country’s conditions
did not show a clear probability of future persecution. Sec-
ond, the IJ found Murry ineligible for protection under the
Convention Against Torture because he did not demonstrate
a substantial risk of torture in Jamaica by or with the consent
of the Jamaican government. The Board of Immigration Ap-
peals adopted and affirmed the IJ’s findings, and it dismissed
Murry’s appeal.
II. A NALYSIS
On appeal, Murry first contends that the IJ should have
granted him the relief of withholding of removal. To receive
this relief from the IJ, Murry needed to prove that his “life or
freedom would be threatened in [Jamaica] because of [his]
race, religion, nationality, membership in a particular social

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4 No. 20-3109
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). To
demonstrate that his “life or freedom would be threatened,”
Murry had to show either past persecution in Jamaica on ac-
count of his identity as a gay man, or a “clear probability” of
future persecution on the same ground. Garcia-Arce v. Barr,
946 F.3d 371, 377 (7th Cir. 2019).
In challenging the agency’s decision, Murry faces an up-
hill battle. He argues that the attack on him in 2004 shows past
persecution, and news reports of homophobic incidents in the
past, plus Jamaica’s anti-sodomy laws, show a risk of future
persecution. But this court reviews for substantial evidence
the agency’s adverse findings that Murry did not suffer and
will not likely suffer persecution. That is, this court must ac-
cept those findings unless the evidence compels otherwise.
Chuchman v. Garland, 4 F.4th 483, 486 (7th Cir. 2021).
For two reasons, the evidence does not compel the conclu-
sion that Murry established past persecution based on the in-
cident in 2004. First, persecution requires the use of “signifi-
cant physical force.” Stanojkova v. Holder, 645 F.3d 943, 948
(7th Cir. 2011). But because Murry received only bruises from
the attack in 2004, the record did not require a finding that the
attackers used such force. See Tsegmed v. Sessions, 859 F.3d
480, 485 (7th Cir. 2017) (ruling evidence of petitioner’s arrest,
including three punches to the face and denial of food, did not
compel a conclusion of persecution). Second, even if this inci-
dent did involve “significant physical force,” Murry needed
to show government complicity. See Bitsin v. Holder, 719 F.3d
619, 628 (7th Cir. 2013). But his failure to tell the authorities
about the attack justified the IJ’s finding that the government
was not complicit in or unwilling to respond to it.

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No. 20-3109 5
Similarly, the record does not compel a finding that in the
future Jamaica will persecute gay men generally or single out
Murry individually for his sexual orientation. See 8 C.F.R.
§ 208.16(b)(2). Murry cites anecdotal reports of past homo-
phobic violence, but these reports principally involve private
attacks, not state-sanctioned efforts to target gay men.
See Halim v. Holder, 755 F.3d 506, 512 (7th Cir. 2014). And the
older reports of some police officers allowing or participating
in attacks do not compel a finding of state-sponsored homo-
phobia. They are amply counterbalanced by other reports of
officers protecting gay men from violence and the more recent
reports of increasing public acceptance of gay rights, includ-
ing among government officials. This evidence sufficiently
supports the IJ’s finding that future state-based persecution is
speculative. Murry’s concern that Jamaica’s anti-sodomy laws
are still on the books does not change this conclusion because
he does not dispute that these laws are rarely used to prose-
cute consensual sexual relations. He also worries that if he re-
turns to Jamaica he might face private attacks from family or
friends. But apart from the private nature of these feared at-
tacks, Murry never suggested, as he must under 8 C.F.R.
§ 208.16(b)(3)(iii), that if he returns to Jamaica he could not
reasonably relocate to avoid these people.
For similar reasons, the IJ’s ruling that Murry failed to
qualify for relief under the Convention Against Torture is
sound. To qualify for protection under the Convention,
Murry needed to show that he would more likely than not be
tortured if removed. Bernard v. Sessions, 881 F. 3d 1042, 1047
(7th Cir. 2018); 8 C.F.R. § 208.16(c)(2). Torture is the inten-
tional infliction of “severe pain or suffering, whether physical
or mental,” at the hands of, or acquiescence of, a “public offi-
cial acting in an official capacity … .” 8 C.F.R. § 208.18(a)(1).

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6 No. 20-3109
But conduct that is not persecution under the Immigration
and Nationality Act cannot amount to torture under the Con-
vention. See Bathula v. Holder, 723 F.3d 889, 904 (7th Cir. 2013).
Because Murry relies on the same evidence for his claim about
torture as for his claim about withholding of removal, the IJ’s
denial of relief was proper.
III. CONCLUSION
We therefore DENY Murry’s petition for review.

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