Boto Jima v. William P. Barr

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1104
                        ___________________________

                                  Boto Sugar Jima

                             lllllllllllllllllllllPetitioner

                                           v.

              William P. Barr, Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                    ____________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                                  ____________

                         Submitted: September 24, 2019
                            Filed: November 8, 2019
                                 ____________

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

       Boto Sugar Jima seeks review of a final order of removal issued by the Board
of Immigration Appeals (“BIA”). The BIA granted the Department of Homeland
Security’s (“DHS”) appeal of an immigration judge’s (“IJ”) order granting Jima
deferral of removal under the Convention Against Torture (“CAT”). For the reasons
set forth below, we deny the petition for review.
                                  I. Background

       Jima is a native and citizen of South Sudan whose status was adjusted to lawful
permanent resident of the United States in 2006. Jima was born into the Mabaan tribe
and fled Sudan at the age of three after his parents were killed during the Sudanese
civil war. One of Jima’s brothers was also killed during the civil war. Jima and two
surviving older brothers settled in Des Moines, Iowa.

      In 2016, Jima was charged with willful injury causing bodily harm in violation
of 

(2)1 after he “use[d] a knife to stab the victim numerous times
causing bodily injury to the head and upper torso.” Jima pled guilty and was
sentenced to five years of imprisonment but the five years were suspended in lieu of
probation.

      In 2017, DHS served Jima with a Notice to Appear on the charge that he was
removable from the United States under 

 (a)(2)(A)(iii) due to his
conviction for an aggravated felony. In response, Jima filed an I-589 application for
asylum and withholding of removal.

       Before the IJ, Jima testified that he fled the country because his parents and
oldest brother were killed during the Sudanese civil war. He further explained his
oldest brother was kidnapped and killed by the militia in South Sudan because of his
tribal membership. Jima testified he currently has no contact with anyone in South
Sudan, but has been told about ongoing violence, about how many people are dying,
and about how the Sudanese are “raping everybody.” Jima stated he believed that if




      1
       Due to a scrivener’s error Jima’s original sentencing order shows a conviction
under 

(1), however, a nunc pro tunc order was issued on October
11, 2018, correcting the charge to § 708.4(2).

                                         -2-
he were returned to South Sudan both the government and the opposition would kill
or torture him due to his tribal affiliation.

       After the hearing, the IJ determined Jima was ineligible for either asylum or
withholding of removal due to his aggravated felony conviction. The IJ determined
that a violation of 

(2) was a crime of violence as defined in 

(b), and thus qualified as an aggravated felony under 

(a)(43)(F). This determination makes the conviction a ground for removal
from the United States and made Jima ineligible for asylum or withholding of
removal. But the IJ granted Jima deferral of removal under CAT because the IJ found
Jima credible, and determined it was more likely than not he would be tortured if
returned to South Sudan.

       DHS then appealed the IJ’s decision granting deferral of removal under CAT
to the BIA.

       Meanwhile, the Supreme Court issued a decision holding the federal criminal
code’s definition of “crime of violence” in § 16(b) was unconstitutionally vague.
Sessions v. Dimaya, 

 (2018). Importantly, this decision left intact the
§ 16(a) “crime of violence” definition. As a result, the BIA requested additional
briefing from the parties to address whether Jima’s conviction under 

 was a removable offense as a crime of violence under 

(a),
rather than under § 16(b) as the IJ had found.

      In the supplemental briefs Jima maintained that his conviction under 

(2) was not a crime of violence under § 16(a), but conceded his
argument appeared to be foreclosed by Eighth Circuit precedent. In light of Jima’s
concession that his conviction was a crime of violence, the BIA deemed the issue of
removability waived.



                                         -3-
       The BIA next turned to the IJ’s determination that Jima would likely be
tortured if returned to South Sudan. The BIA found the IJ clearly erred because the
decision was based on a chain of assumptions stemming from South Sudan’s general
inter-ethnic violence. The BIA also discussed the lack of evidence tying a threat of
violence to Jima’s particular tribe in South Sudan. Finding clear error, the BIA
sustained DHS’s appeal, vacated the grant of CAT protection, and ordered Jima’s
removal to South Sudan.

                                     II. Analysis

      Jima petitions this court for review of the BIA order. First, Jima alleges the
BIA incorrectly applied the clear error standard in reviewing the IJ’s likelihood
determination. Second, Jima maintains that a conviction under 

(2)
does not constitute a crime of violence under 

(a). Reviewing de novo,
we deny the petition.

                     A. Jurisdiction and Standard of Review

       When an alien is removable for having been convicted of an aggravated felony,
this court’s jurisdiction is limited to “constitutional claims or questions of law.”
Gallimore v. Holder, 

 (8th Cir. 2013) (quoting 

(a)(2)(D)). Whether the BIA weighed the IJ’s factual findings under the
correct legal standard is a question of law, and as such, this court has jurisdiction to
review that narrow question. Waldron v. Holder, 

 (8th Cir. 2012).
Additionally, whether a conviction for a particular state offense qualifies as a basis
for removability as an aggravated felony under 

(a)(2)(A)(iii) is also
a question of law. Roberts v. Holder, 

 (8th Cir. 2014). We review
such questions of law de novo. Doe v. Holder, 

 (8th Cir. 2011).




                                          -4-
                      B. Removability for Crime of Violence

       An alien convicted of an aggravated felony is removable from the United
States. 

(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated
felony at any time after admission is deportable.”). Under the Immigration and
Nationality Act a “crime of violence . . . for which the term of imprisonment is at least
one year” qualifies as an aggravated felony. 

(a)(43)(F). A crime of
violence is, in turn, defined in 

. Under § 16(a), a crime of violence is
“an offense that has as an element the use, attempted use, or threatened use of
physical force against a person or property of another.”

       To determine whether a state conviction qualifies as a crime of violence, we
typically “apply a categorical approach, looking to the elements of the offense as
defined in the . . . statute of conviction rather than to the facts underlying the
defendant’s . . . conviction.” United States v. Dawn, 

 (8th Cir.
2012) (alteration in original) (quoting United States v. Parks, 

 (8th
Cir. 2010)). Jima was convicted of a class D felony for willful injury under 

(2). Under § 708.4, “[a]ny person who does an act which is not justified
and which is intended to cause serious injury to another commits willful injury,” and
the act is a class D felony when the person “causes bodily injury to another.” 

(2). The Iowa Supreme Court defines “bodily injury” in broad terms.
To cause bodily injury means to cause “physical pain, illness, or any impairment of
physical condition.” Iowa v. McKee, 

 (Iowa 1981).

       Notably, § 708.4(2) does not contain an explicit force element as included in

(a)’s crime of violence definition. But lacking an explicit force
element is not fatal. In United States v. Rice, we held an Arkansas offense involving
“intentionally or knowingly, without legal justification, caus[ing] physical injury”
was a crime of violence because it contained an implied force element. 

,
705–06 (8th Cir. 2016) (quoting 

 (2006)). We reasoned

                                          -5-
that because the defendant was convicted of causing physical injury to another, the
offense must include the use of physical force to commit such injury as an implied
element. 

. Relying on the Supreme Court’s decision in United States v.
Castleman, we held a conviction under the Arkansas statute, although lacking an
explicit force element, “included the use of physical force as an element because ‘[i]t
is impossible to cause bodily injury without applying force.’” 

 (alteration
in original) (quoting United States v. Castleman, 

 (2014)).

       Our analysis in Rice applies to this case. One cannot cause bodily injury to
another without using the force capable of producing that injury. Under Castleman,
even indirect harm contains an element of force. 

. We conclude
Jima’s conviction was a crime of violence in satisfaction of 

(a) and a
valid basis for removal under 

(a)(2)(A)(iii) because it is “impossible
to cause bodily injury without applying [the] force” necessary to cause the injury.
Rice, 

 (quoting Castleman, 

).

                     C. Application of Clear Error Review

      Next, Jima alleges the BIA incorrectly applied the clear error standard in
reviewing the IJ’s decision. The BIA reviews an IJ’s findings of fact, including
credibility determinations and the likelihood of future events, under a clearly
erroneous standard. See Flores v. Holder, 

 (8th Cir. 2012); 

(d)(3)(i). Under clear error review, the BIA may not overturn an IJ’s
determination simply because it would have decided the facts differently. See
Garcia-Mata v. Sessions, 

 (8th Cir. 2018). “[T]he BIA does not
have authority to engage in factfinding, except to take administrative notice of
commonly known facts.” Nabulwala v. Gonzales, 

 (8th Cir.
2007) (citing 

(d)(3)(iv)).




                                         -6-
       Here, the BIA correctly identified and explicitly stated it must review the IJ’s
likelihood determination under a clear error standard. In undertaking this analysis,
the BIA outlined and considered the IJ’s factual findings without engaging in any
factfinding itself. The BIA concluded Jima’s fears were “largely based on
speculation” and the IJ’s “likelihood finding” was “based on a chain of assumptions
stemming from South Sudan’s general inter-ethnic violence.” The BIA applied its
precedent that an IJ clearly errs when relying solely on a “chain of assumptions and
fear of what might happen,” because such assumptions do not demonstrate a clear
likelihood of torture to the petitioner as required for relief under CAT. Ademo v.
Lynch, 

 (8th Cir. 2015) (quoting Matter of M-B-A-, 

, 479–80 (BIA 2002)). Under BIA precedent, a petitioner must establish “‘that
each link in the hypothetical chain of events leading to the claim of likely torture’ is
more likely than not to occur.” 

 (quoting In re S-V-, 

(BIA 2000)).

       Under CAT, the “existence of a consistent pattern of gross, flagrant, or mass
violations of human rights in a particular country does not, as such, constitute a
sufficient ground for determining that a particular person would be in danger of being
subjected to torture upon his or her return to that country.” Ademo, 

(quoting In re S-V-, 

 (BIA 2000)). Instead, the petitioner
must show “specific grounds exist that indicate the individual would be personally
at risk.” 

 (quoting same). The BIA identified the IJ’s clear error in Jima’s case by
showing that the IJ, rather than examining the likelihood of Jima’s prospective
torture, instead looked at the likelihood of a pattern of gross or mass violations of
human rights in South Sudan. The IJ failed to clearly articulate a more personalized
fear of torture specific to Jima.

       It must be noted, “torture” denotes more than a generalized fear of bodily
injury. Torture is an “extreme form of cruel and inhumane treatment” inflicted with
the purpose of obtaining information, punishment, intimidation, or coercion. 8 C.F.R.

                                          -7-
§ 1208.18(a)(1)–(2). In this case, the BIA highlighted how the IJ did not discuss any
motive for the South Sudanese to torture Jima; it instead discussed the generalized
violence to which Jima may be exposed on return.

        The BIA did not walk through the chain of assumptions which it determined
the IJ undertook, but one can easily map them out. First, one must assume Jima
would be relocated to a part of South Sudan currently engaged in a civil war and
experiencing human rights violations. Next, one must assume Jima, as a member of
the Mabaan tribe, would be persecuted. And finally, one must assume the violence
Jima could suffer would amount to an extreme form of cruel and inhumane treatment,
that is, torture. The BIA clearly noted that the IJ did not demonstrate why it was more
likely than not each of these steps would occur.

       As the BIA noted, this string of assumptions, although plausible, is nothing
more than a chain of hypothetical inferences and does not demonstrate a clear
likelihood of torture. As such, the BIA conducted a logical, clear error analysis and
reached a permissible conclusion.

                                  III. Conclusion

      For the foregoing reasons, we deny the petition for review.
                      ______________________________




                                         -8-