Opinion
21-2346
06-15-2023
ROBERT S. PANTON, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
NONPRECEDENTIAL DISPOSITION
Argued June 6, 2023
Petition for Review of an Order of the Board of Immigration Appeals. No. A031-257-320
Before MICHAEL B. BRENNAN, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge THOMAS L. KIRSCH II, Circuit Judge
ORDER
Robert panton, a Jamaican national, was released from federal prison after a district court reduced his life sentence for a heroin conspiracy conviction. Because of his conviction, he now faces removal to Jamaica. He argues that an immigration judge and the Board of Immigration Appeals incorrectly denied him deferral of removal under the Convention Against Torture. Because each relied on reasonable factual conclusions and did not misapply the law, we deny his petition for review.
Background
Panton came to the United States as a lawful permanent resident in 1970 when he was four years old. In the 1990s, he participated in a large heroin distribution conspiracy in New York City. The leader of the conspiracy was arrested. Because Panton was not arrested at the same time, some believed he was an informant. This led to serious retaliation-Panton was approached on the street and shot. He survived and, while recovering, was arrested for his role in the conspiracy. He was convicted of conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A), and sentenced to life in prison.
In 1998, while Panton was in prison, a group of prisoners accosted him. The group threatened him, accusing him of cooperating with the government in exchange for a reduced sentence. Panton avoided a violent altercation that day by showing them his sentencing paperwork, confirming his life sentence. But only some group members were satisfied that he had not cooperated. Panton was later threatened once more but ultimately "let alone" when suspicions of cooperation could not be substantiated.
Another member of the drug-trafficking conspiracy, Ward Johnson, did cooperate with the government and, in return, received a shorter sentence-just 18 months in prison. Johnson was a member of the Shower Posse gang, which has a strong presence in Jamaica and New York City. Johnson was murdered around 2013, possibly as retaliation for cooperating.
In 2020, a federal district court reduced Panton's sentence and he was released from prison. The court reasoned, in part, that Panton's sentence was disproportionately harsh, and he had clearly dedicated himself to being a "law-abiding" person. For instance, while participating in a youth outreach program, Panton-on his own initiative after spotting signs of abuse-helped a child report her sexual abuse to the authorities.
After Panton's release, the Department of Homeland Security initiated removal proceedings based on his conviction for an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). Because Panton's sentence exceeded five years, he could not qualify for asylum, id. § 1231(b)(3)(B), but he remained eligible for one narrow path to relief: deferral of removal based on the Convention Against Torture. See 8 C.F.R. § 1208.17. If granted deferral of removal, Panton could not be removed to Jamaica until an immigration judge determined that he was no longer at risk of being tortured there. Id.
Panton sought deferral, arguing that he was more likely than not to be tortured if removed to Jamaica. At a hearing before an immigration judge, Panton offered evidence that gangs, including the Shower Posse, are powerful forces in Jamaica; that gangs sometimes operate in tandem with the government; and that the government cannot and would not meaningfully protect him. Panton added that in Jamaica's capital of Kingston (where he would live if removed), gangs often control access to basic resources such as jobs and food. Panton stated that the Shower Posse would target him out of a mistaken belief that he played a role in Johnson's murder or cooperated with the government. Panton also stated that the gang may attack him because of his connection to his cousin, a former rival gang member. (Their connection is public knowledge because Panton produced music with him.)
The immigration judge denied Panton's application for deferral of removal, concluding that Panton had not shown he was more likely than not to be tortured if removed to Jamaica. The judge determined that Panton had not identified any nonspeculative or specific risk of harm: He produced no evidence that gangs had any reason to target him, particularly since he had never cooperated with the government, and any connection to a gang was outdated and highly tenuous.
Panton appealed to the Board of Immigration Appeals, which dismissed his appeal. The Board ruled that the immigration judge had appropriately considered the record as a whole in concluding that Panton had not met his burden for protection under the Convention Against Torture. This petition followed.
Analysis
To qualify for protection under the Convention Against Torture, Panton needed to show it was "more likely than not" that he would be tortured if he returned to Jamaica. 8 C.F.R. § 1208.17(a). We review the immigration judge's decision, as supplemented by the Board's decision, under the substantial evidence standard. Cabrera-Ruiz v. Garland, 37 F.4th 395, 399 (7th Cir. 2022). We disturb findings of fact only when any reasonable factfinder would be compelled to do so. Id.
Panton first argues that the judge and the Board misunderstood "key aspects" of his claim. Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010). Panton contends that the judge overlooked his connections to known gang members, and that he was threatened three times: when he was shot on the street, when he was nearly attacked in prison, and one later time in prison. Such oversights, Panton insists, show that the judge failed to comprehend the specific threat he faced from gangs in Jamaica. And the judge's discussion was so cursory, Panton explains, that the Board had no reason in its order even to name the Shower Posse.
But this is too stingy a view of the judge's decision. The judge acknowledged Johnson's and the cousin's gang ties and discussed the shooting and first prison confrontation. True, the judge did not mention the second prison confrontation, but this was not a key aspect of Panton's claim-he mentioned it only once briefly during his testimony and explained that it ended without escalation. And although the Board did not mention the Shower Posse, the judge repeatedly did, and we review the judge's and Board's decisions together. See Cabrera-Ruiz, 37 F.4th at 399.
Panton extends this argument, urging that the judge ignored specific reasons the gangs would investigate him if he returned. For instance, Panton insists that the gangs would naturally investigate him because he has an American accent, his return would be publicized in the press, and he would be forced to interact with gangs to access basic resources. Panton fears that after investigating him (revealing his connections to former gang members and that he is "law-abiding") the gangs may not hesitate to torture him because of their "long memories."
The judge did not need to consider these reasons to investigate, however, because he reasonably concluded that, even if an investigation occurred, it was unlikely to lead to torture. The judge determined that no gang had any specific reason to target Panton-who was never a gang member, never cooperated with the government in an action against a gang, and was imprisoned at the time of Johnson's murder. True, Panton has faced retaliation (he was shot and later confronted in prison) because some believed him to be a cooperator. But that was decades ago, so the judge's conclusion that this threat had abated was not unreasonable, especially given the absence of any evidence that Panton ever cooperated.
In his reply brief, Panton adds that the judge and the Board ignored his argument that he may be targeted by Jamaican security forces because he is a known drug trafficker. But Panton raised that Jamaican security forces may target him only in his brief to the Board and only in support of his argument that the government would acquiesce to his torture. The Board fairly declined to reach that argument because, without any likelihood of torture, government acquiescence was not at issue.
Next, Panton argues that the judge failed to consider the cumulative risks he faced, as an immigration judge must. See Nyandwi v. Garland, 15 F.4th 836, 839 (7th Cir. 2021). But the judge did consider the risks in the aggregate, discussing the relevant facts and concluding that "the evidence that [Panton] would actually be harmed if he returned to Jamaica is really nonexistent."
We therefore DENY the petition for review.