Hubert Charles Johnson v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4221
HUBERT CHARLES JOHNSON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A37-331-916)
Immigration Judge: Honorable Walter A. Durling
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: December 23, 2009)
OPINION
PER CURIAM
Hubert Johnson petitions for review of the Board of Immigration Appeals’
(“BIA”) September 26, 2008 decision sustaining the Government’s appeal of the
Immigration Judge’s grant of relief under the Convention Against Torture (“CAT”). The

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Government has moved to dismiss the petition for review for lack of jurisdiction. For the
reasons that follow, we will deny the Government’s motion and the petition for review.
I. Background
Johnson, a native and citizen of Jamaica who suffers from bipolar disorder, entered
the United States as a lawful permanent resident in 1981. In 1986, a Florida state court
convicted him of importing and possessing a controlled substance. In light of that
conviction, he was ultimately placed in removal proceedings. In 1999, an Immigration
Judge (“IJ”) ordered that he be removed to Jamaica, and the BIA subsequently affirmed
that decision without an opinion.
In 2002, Johnson’s removal proceedings were reopened so that he could apply for
relief under former 8 U.S.C. § 1182(c). While that application was pending, a federal
district court convicted him of bank robbery, which rendered him ineligible for § 1182(c)
relief. He then applied for CAT relief, arguing that, were he to return to Jamaica – where
he had no family or other contacts – he would not have access to medication for his
bipolar disorder. He further alleged that, because his bipolar disorder would be
uncontrolled, he would likely come to the attention of the Jamaican authorities, who
would imprison him and ultimately torture him because of his mental illness.
In October 2006, after a hearing on the merits, the IJ granted Johnson’s request for
CAT relief. The Government appealed to the BIA, which sustained the appeal in
February 2007. Johnson petitioned us to review the BIA’s decision, and we subsequently
granted the Government’s motion to remand to the BIA for reconsideration of its

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decision. On remand, the BIA again held that Johnson had failed to establish his
entitlement for CAT relief. He petitioned for review of that decision, and we sua sponte
remanded the case so that the BIA could consider the impact of our recent decision in
Lavira v. Attorney General of the United States, 478 F.3d 158 (3d Cir. 2007). The BIA in
turn remanded the case to the IJ, who issued a decision in May 2008 granting Johnson’s
request for CAT relief. As before, the Government appealed the IJ’s decision to the BIA.
In September 2008, the BIA sustained the Government’s appeal. The BIA held
that “[t]here is insufficient evidence in the record to support the [IJ’s] finding that
[Johnson] will, more likely than not, be subjected to torture upon return to Jamaica.”
(BIA Decision of Sept. 26, 2008, at 3.) The BIA reached this conclusion
even assuming, arguendo, that [Johnson] will likely be denied
his medication, that he will, more likely than not, experience
bipolar disorder symptoms if deprived of his medication, and
that he will, more likely than not, come to the attention of law
enforcement and be imprisoned as a result of such bipolar
disorder symptoms and resulting actions.
(Id.)
Johnson petitioned for review of the BIA’s September 2008 decision, and the
Government has since moved to dismiss the petition for lack of jurisdiction.
II. Jurisdiction
Although we generally lack jurisdiction to review final orders of removal against
certain criminal aliens, like Johnson, see 8 U.S.C. § 1252(a)(2)(C), we nonetheless have
jurisdiction to review constitutional claims or legal questions that a criminal alien raises

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1In the same vein, we also need not decide Johnson’s related claim that the BIA’s
application of the wrong standard of review in its February 2007 decision resulted in an
incorrect ruling on the merits.
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in his petition for review. See 8 U.S.C. § 1252(a)(2)(D). This jurisdiction “includes
review of the BIA’s application of law to undisputed fact.” Singh v. Gonzales, 432 F.3d
533, 541 (3d Cir. 2006). In this case, Johnson argues that the BIA both applied the wrong
standard of review and misapplied governing law. Because these claims fall within the
scope of our jurisdiction, we will deny the Government’s motion to dismiss and turn to
the merits of Johnson’s petition.
III. Discussion
Johnson first challenges the BIA’s February 2007 decision sustaining the
Government’s appeal of the IJ’s original grant of CAT relief. He argues that, in rejecting
the IJ’s factual finding that Johnson would be unable to obtain medication for his bipolar
disorder were he to return to Jamaica, the BIA applied the wrong standard of review. We
need not decide this claim, for the BIA’s most recent (and controlling) decision denying
Johnson’s CAT claim did not turn on this factual finding. 1
Johnson’s remaining claim relates to the BIA’s denial of CAT relief in its
September 2008 decision. Pursuant to 8 C.F.R. § 208.16(c)(2), an alien seeking CAT
relief must show that “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” Johnson argues that the BIA misapplied
this standard to the facts of his case. We disagree. Contrary to what Johnson alleges,

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there is no indication that the BIA failed to consider the record as a whole in rendering its
decision. The BIA’s decision examined all of the evidence and explained why that
evidence failed to meet the standard for CAT relief.
As part of his argument, Johnson takes issue with the BIA’s treatment of a letter
submitted from Dr. Aggrey Irons, a psychiatrist in Jamaica. Dr. Irons’ letter stated that if
Johnson did not have “close, interested family members resident in Jamaica,” his
condition would likely relapse, which in turn would almost certainly lead to his
interaction with the police and subsequent criminal detention. Dr. Irons further stated
that, once detained, Johnson would face “an alarmingly high possibility of extrajudicial
execution.” In concluding that Johnson had failed to show that he would more likely than
not be tortured, the BIA noted, inter alia, that Dr. Irons’ letter “does not quantify what he
means by an ‘alarmingly high possibility of extrajudicial execution.’” (BIA Decision of
Sept. 26, 2008, at 4.)
The BIA’s observation is both accurate and relevant. Because Dr. Irons did not
expand on his statement, one cannot determine whether his reference to “an alarmingly
high possibility” is tantamount to “more likely than not” or some lesser likelihood.
Indeed, one could certainly argue that if one out of every 100 inmates – a mere one
percent – were subject to extrajudicial execution, that would constitute an “alarmingly
high” rate. Accordingly, we find no error in the BIA’s treatment of this evidence.
In light of the above, we will deny Johnson’s petition for review, as well as his
request for oral argument.

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