Immigration – Removal Proceedings

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7^th Circuit Court of Appeals

Case Name: Ray Fuller v. Matthew G. Whitaker

Case No.: 17-3176

Officials: WOOD, Chief Judge, and MANION and ROVNER, Circuit Judges.

Focus: Immigration – Removal Proceedings

Ray Fuller asked the Board of Immigration Appeals to exercise its authority to reopen his removal proceeding sua sponte so that he could present new evidence in support of his request to defer his removal from this country under the Convention Against Torture (“CAT”). Fuller contends that he likely will face torture upon return to his native Jamaica because he is bisexual. The Board previously had sustained an Immigration Judge’s finding that Fuller had not presented a credible case as to his alleged sexual orientation and fear of torture. In support of his motion to reopen, Fuller submitted to the Board several new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the Board explained that “[Fuller’s] motion does not challenge our conclusions regarding his credibility or his eligibility for deferral of removal, and we do not find that his letters of support would materially alter these findings.” A.R. 3 (internal record citation omitted). Because the Board’s stated rationale for disposing of Fuller’s motion reflects a misapprehension of the basis for his request, and because we cannot be confident that the Board’s mistake did not taint the exercise of its otherwise unreviewable discretion over the merits of the motion, we conclude that the Board committed legal error in denying his request for relief. On that basis, we grant Fuller’s petition for review and remand to the Board for further proceedings.

Remanded. Petition Granted

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.