Anti-American Attitude Doesn't Warrant Asylum

Shawn Allison, a native and citizen of Jamaica, entered the U.S. without inspection in 1994. In 2011, the Department of Homeland Security charged him with removability as an alien present without being admitted or paroled. Allison conceded removability, but disputed his date of entry. The immigration judge found him removable as charged.

Allison filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). While he admitted that he was never physically harmed in Jamaica, he claimed to fear returning “because the Jamaican police and local gangs are anti-American and would torture or physically injury him. He further asserted that he would be targeted as a deportee from America.”

Is anyone surprised that Allison failed to persuade the courts with that argument?

The Third Circuit Court of Appeals explains that, in order to qualify for withholding of removal, a petitioner must demonstrate that it is more likely than not that his life or freedom would be threatened because of his race, religion, nationality, membership in a particular social group, or political opinion if he returns to his country. An applicant can meet this standard by demonstrating past persecution, which creates a rebuttable presumption of future persecution, or by showing a clear probability of future persecution if the applicant is removed.

To qualify for relief under the CAT, a petitioner must show that "it is more likely than not that he or she would be tortured" if returned to the designated country of removal.

The IJ denied Allison's request for withholding of removal because he had not submitted any evidence to support his argument that deportees are specifically targeted for persecution in Jamaica. The IJ then denied Allison's application for CAT protection, finding his claims of likely torture speculative.

The Board of Immigration Appeals agreed that Allison had not demonstrated his eligibility for withholding of removal or relief under the CAT.

After reviewing the record, the Third Circuit Court of Appeals concluded that -- even assuming returning deportees constitute a social group -- the Country Report did not support a finding that deportees from the U.S. are specifically targeted by gangs and/or the Jamaican police as a result of their status. The appellate court further reasoned that the evidence did not compel a conclusion that it is more likely than not Allison would be tortured by or with the consent of the Jamaican government.

Related Resources:

• Shawn Allison v. Attorney General (Third Circuit Court of Appeals)
• Post-Departure Bars and Legal Double-Standards (FindLaw's Third Circuit Blog)
• Delayed Evidence Creates Credibility Problem (FindLaw's Third Circuit Blog)