NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-2860
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GARY LEAFORD CODNER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A095-130-504)
Immigration Judge: Walter Durling
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2013
Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges
(Opinion filed: January 10, 2014)
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OPINION
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PER CURIAM
Petitioner Gary Codner petitions for review of the Board of Immigration Appeals’
final order of removal. For the reasons that follow, we will grant the petition for review
and remand the matter for further proceedings.
Codner, a native and citizen of Jamaica, came to the United States in 1997 and
overstayed his visa. In 2002, he was placed in removal proceedings, which then were
administratively closed as it appeared that he would be able to adjust his status on the
basis of a bona fide marriage. His case remained administratively closed until Codner
was charged with, and convicted of, possession with intent to deliver in violation of 35
Pa. Cons. Stat. Ann. § 780-113(a)(30), and simple possession in violation of 35 Pa. Cons.
Stat. Ann. § 780-113(a)(16), and sentenced to a term of imprisonment of 3-5 years.
Removal proceedings were reopened and Codner was found removable under 8
U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at any time after admission has been
convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of
a State, the United States, or a foreign country relating to a controlled substance (as
defined in section 802 of Title 21), other than a single offense involving possession for
one’s own use of 30 grams or less of marijuana, is deportable.”). Codner applied for
asylum, withholding of removal, and protection under the Convention Against Torture,
contending that he is gay, and that Jamaica is a virulently homophobic country where the
Kingston police either turn a blind eye toward anti-gay violence or actively participate in
it.
Codner, now 47 years-old, testified in support of his application at a merits
hearing on December 6, 2012. He testified that he is gay and that he left Jamaica in 1997
to escape the homophobia. Codner recounted that he was once a victim of serious anti-
gay violence and offered to show the gunshot scars on his leg and foot from a 1994
assault. He testified that his 18-year old nephew was murdered in 2008 when the nephew
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spoke up in his defense. Codner was then cross-examined about why he did not
previously disclose his homosexuality. He was also cross-examined about his
relationships with men in the United States, and whether he had sexual relations with his
wives. Codner explained that he is only open about his sexual orientation with other gay
men. He remains fearful, even in the United States, explaining that: “I grew up in an
environment where … all faggots is supposed to – all batty boys, as they say it in
Jamaica, supposed to [be] dead because God make Adam and Eve, not Adam and Steve.”
A.R. 382-83. He explained that no one asked him directly, in connection with any of his
immigration proceedings, if he feared returning to Jamaica until recently, see id. at 386-
87, and that, with an approved visa petition, he saw no need to make the disclosure
earlier, see id. at 399-400. With respect to his experiences in Jamaica, he testified that he
did not have a girlfriend and was a hairdresser, which caused others to question his sexual
orientation. See id. at 408.
In support of his application, Codner submitted letters from: (1) Pastor Dalton
Scott, attesting to the death of Codner’s nephew, Alrick Bennett, because he had
defended his uncle; (2) Kingston Inspector of Police E. Byfield, attesting to his
knowledge of the family and Codner’s reputation for being gay; (3) Justice of the Peace
Willward Wellington, stating that Codner is homosexual but is otherwise a wonderful
human and a caring person; (4) his mother, Eulalee Gayle, stating that Codner is gay and
was beaten in Jamaica and that a close family member was killed defending his honor;
(5) his sister, Rose Codner-Bennett, stating that her son, Codner’s nephew, was shot to
death for defending his uncle’s honor and that Codner is well-known in the community
3
for being gay; (6) her son, Alake Bennett, stating that his brother, Alrick Bennett, was
shot and killed on March 12, 2008 because he chose to challenge the taunts about
Codner’s homosexuality, and that the family has been stigmatized by neighbors and
subjected to abuse and threats because of Codner’s homosexuality; (7) Legent Lennon, a
friend, stating that Codner was badly beaten in 1993 for being gay and that his nephew
was shot to death trying to defend his honor; (8) Imogene Simpson, a friend, stating that
Codner “may be Gay but I know him to be a nice person” and “Jamaica is not forward
thinking when it comes on to being homo”; (9) Errol Powell, who has known Codner
since he was a boy who displayed “effeminate behavior,” stating that Codner’s nephew
was shot dead because Codner is gay, and discussing rampant homophobia in Jamaica;
(10) Sheeren Adams, stating that Codner is gay, that he was harassed and beaten in 1993,
and that “the monsters” heard that he might return to Jamaica in 2008 and so they stalked
his family, eventually shooting to death his nephew in March 2008; and (11) Lorna
White, who had known Codner since he was a child, stating that Codner might be killed
in Jamaica if someone “knows of [his] past.” A.R. 476-87.
Codner also submitted his nephew’s death certificate, showing the cause of his
death on March 12, 2008 to be a gunshot wound to the chest, and articles showing the
existence of homophobia in Jamaica. He also submitted the State Department’s 2009
Human Rights Report on Jamaica, which notes that homosexual acts are punishable by up
to 10 years in prison and which details numerous acts of anti-gay violence in Kingston
and Montego Bay.
4
In its closing argument, the Department of Homeland Security argued that
Codner’s testimony that he is gay was not believable because he only disclosed the truth
about his sexual orientation when he ran out of other options to remain in the United
States, and because he has fathered children by having sexual relations with women.
Moreover, he provided no letters from persons in the United States attesting to his
homosexuality, and thus failed to corroborate his claim.
In a decision issued from the bench, the Immigration Judge found that Codner
was ineligible for asylum, statutory withholding of removal, and withholding of removal
under the CAT because his marijuana conviction, for which he received a sentence of 3-5
years, constituted a “particularly serious crime.” The IJ then denied Codner’s CAT
application for deferral of removal, see generally 8 C.F.R. § 1208.17, on the basis that he
did not testify truthfully about his sexual orientation. The IJ observed that Codner had
traveled to the United States twice after being shot in the foot in Jamaica in 1994 and
prior to settling here permanently in 1997, and that, if he really feared for his life, he
would not have returned each time to Jamaica. The IJ expressed his disbelief that
Codner’s nephew was killed defending his honor because the nephew would have been a
baby in 1997 and thus never personally knew Codner. The IJ also noted that Codner had
been married twice, that both of his wives had filed visa petitions on his behalf, and that
he had never disclosed to either of his wives that he is gay. The IJ noted that Codner had
fathered two children, and had testified to having sexual relations with six different
women, whereas he testified that he had only one serious relationship with a man from
2008 until 2010, and sexual encounters with two other men of a more casual nature. The
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IJ agreed with DHS that the timing of Codner’s disclosure of his sexual orientation was
highly suspicious, and the IJ agreed that Codner should have corroborated his claim with
letters from someone in the United States. The IJ called the letters from Codner’s family
and friends “suspect,” stating that they were submitted on the day of the hearing, A.R.
333.
Codner appealed to the Board of Immigration Appeals. On April 5, 2013, the
Board denied the appeal. The Board noted that Codner did not challenge on appeal that
he was removable for having been convicted of a violation relating to a controlled
substance, and the Board agreed with the IJ that deferral of removal under the CAT was
the only form of relief available to Codner because of his state drug conviction.1 The
Board then reviewed the adverse credibility determination for clear error, 8 C.F.R. §
1003.1(d)(3)(i). The Board affirmed the IJ’s denial of CAT relief for the reasons stated
in the IJ’s decision. The Board reasoned that Codner did not present sufficient credible
evidence both that he is gay and that it is more likely that not that he will be tortured if
returned to Jamaica. The Board noted in the margin that Codner had submitted several
news articles on appeal, but those articles did not “rehabilitate his non-credible claim of
being a homosexual.” A.R. 172.
1
An alien must exhaust all administrative remedies as a prerequisite to raising a claim
before this Court. See 8 U.S.C. § 1252(d)(1); Alleyne v. Immigration & Naturalization
Serv., 879 F.2d 1177, 1182 (3d Cir.1989). Codner’s failure to challenge these issues
before the Board constitutes a failure to exhaust administrative remedies and deprives us
of jurisdiction over the issue of whether deferral of removal under the CAT was the only
form of relief available to Codner, see Lin v. Att’y Gen. of U.S., 543 F.3d 114, 119–20
(3d Cir. 2008).
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Codner did not petition for review of this decision. Instead, on April 29, 2013,
and thus within 30 days of Board’s prior decision, Codner filed an item pro se with the
Board, which he called a motion to reopen. Although Codner stated that he had new
evidence that was not previously available, he also took issue with the IJ’s determination
that he did not testify credibly about the murder of his nephew, Alrick Bennett, A.R. 163,
and he took issue with the Board’s statement that the Jamaican Government would
protect him, citing Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008) (“The
record here compels the conclusion that the Jamaican government not only acquiesces in
the torture of gay men, but is directly involved in such torture.”). The Department of
Homeland Security submitted a response in opposition to the motion. In reply to this
response, Codner once again submitted his news articles, and his letters from his mother,
Pastor Scott, Inspector Byfield, Justice of the Peace Wellington, Rose Codner-Bennett, A.
Bennett, Legent Lennon, Imogene Simpson, Errol Powell, and Sheeren Adams, among
other items. On June 10, 2013, the Board denied the motion, concluding that Codner’s
arguments concerning his sexual orientation had been previously considered and rejected.
The Board noted that the evidence submitted with the motion was previously considered.
Codner timely petitions for review. We previously granted him a stay of removal.
In his Informal Brief, he challenges the determination that he does not qualify for deferral
of removal under the CAT, and argues that the IJ’s adverse credibility determination is
insupportable. See Petitioner’s Informal Brief, at 2. He argues specifically that his
testimony about his nephew was genuine and could not reasonably have been
disbelieved. See id. at 4. The Department of Homeland Security argues, in pertinent
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part, that we lack jurisdiction to review the Board’s April 5, 2013 decision because
Codner did not timely appeal it, see 8 U.S.C. § 1252(b)(1) (providing for 30 days to
appeal),2 that our scope of review is thus limited here, and that, as to the Board’s June 10,
2013 decision over which we do have jurisdiction, the Board acted within its discretion
when it denied Codner’s motion to reopen.
With respect to the question of our jurisdiction in this matter, we conclude that
Codner’s self-titled “motion to reopen” was, at least in part, a true motion for
reconsideration. In fact, the Department of Homeland Security opposed the motion by
submitting a form response, in which the following box was checked: “It is a motion to
reconsider that does not specify the errors of fact or law in the prior decision or is not
supported by pertinent authority. 8 C.F.R. § 1003.2(b)(1). Respondent’s motion raises
the same issues he raised in his appeal which the Board denied on April 5, 2013.”
Moreover, as a motion for reconsideration, it was timely filed because it was filed within
30 days of the Board’s April 5, 2013 decision. 8 C.F.R. § 1003.2(b)(2). We note also,
that, in the case of a motion for reconsideration, “[s]ome review of the merits decision is
required in order to determine whether the [Board] erred in concluding, on
reconsideration, that [the alien] had not shown any error of fact or law in that decision
2
The Board’s decision on the merits and its order denying a motion to reconsider “are
two separate final orders.” Castro v. Att’y Gen. of U.S., 671 F.3d 356, 364 (3d Cir.
2012) (internal quotation marks omitted) (quoting Stone v. Immigration & Naturalization
Serv., 514 U.S. 386, 405 (1995)). “Either one may be the subject of a petition for judicial
review, which must be filed within thirty days of the date of the order,” id. (citing 8
U.S.C. § 1252(a)(1), (b)(1)), but the filing of a timely motion for reconsideration “does
not toll the thirty-day period for seeking review of the earlier merits decision,” id. (citing
Stone, 514 U.S. at 398–99)).
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that would alter the outcome.” Castro v. Att’y Gen. of U.S., 671 F.3d at 356, 354 (3d
Cir. 2012).
Although we generally have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a
final order of the Board denying reconsideration, and our scope of our review includes
some review of the Board’s merits decision, Codner’s case presents yet another
jurisdictional question. A CAT applicant must show that “it is more likely than not that
[he] would be tortured in the proposed country of removal.” 8 C.F.R. § 1208.16(c)(3). In
Kaplun v. Att’y Gen. of U.S., 602 F.3d 260 (3d Cir. 2010), we stated that whether future
torture was likely turned on two questions: “(1) what is likely to happen to the petitioner
if removed; and (2) does what is likely to happen amount to the legal definition of
torture?” Id. at 271. The first question is factual; only the second is legal. See id. The
agency denied Codner’s CAT application solely on the basis that he did not credibly
prove that he is gay; in other words, the agency considered only the factual question of
whether Codner provided sufficient proof concerning what is likely to happen to him if
removed. This is not a reviewable question. See Green v. Att’y Gen. of U.S., 694 F.3d
503, 506 (3d Cir. 2012) (addressing CAT application of Jamaican citizen for deferral of
removal and holding that Court lacks “jurisdiction to review factual findings underlying a
removal order against an alien who has committed a controlled substance offense”).
In Codner’s case, however, he does not just disagree with the IJ’s weighing of the
evidence. See Cospito v. Att'y Gen. of the U.S., 539 F.3d 166, 170 (3d Cir.2008)
(argument that certain evidence has been discounted amounts to nothing more than
quarrel over the correctness of the factual findings of the agency). Instead, his case
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presents a legal and reviewable question concerning whether the IJ overlooked and
improperly failed to consider material and probative evidence. Here, the IJ was presented
with letters from friends and family that, if credible, could corroborate Codner’s position
but the record does not disclose why he found them to be “suspect.” We held in
Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006), that this is a reviewable
question under the jurisdictional statute, 8 U.S.C. § 1252(a)(2)(D). Because the letters, if
considered, might have resulted in a favorable credibility determination, we find that a
remand is appropriate so that the genuineness or authenticity of the letters may be
reconsidered, and, if found genuine, Codner’s credibility be reevaluated, see id., for
purposes of his CAT deferral of removal claim.
Like the IJ, the BIA did not explain why it discounted letters attesting to Codner’s
homosexuality. The agency may not ignore evidence favorable to an alien, and must do
more than “cherry-pick” a few pieces of evidence to support its conclusion. Huang v.
Att’y Gen. of U.S., 620 F.3d 372, 388–89 (3d Cir. 2010). A motion for reconsideration is
a “request that the Board reexamine its decision in light of additional legal arguments, a
change of law, or perhaps an argument or aspect of the case which was overlooked.” In
re Ramos, 23 I. & N. Dec. 336, 338 (BIA 2002) (quoting Matter of Cerna, 20 I. & N.
Dec. 299, 402 n.2 (BIA 1991). Here, the Board, in deciding the motion for
reconsideration, abused its discretion by not reconsidering the underlying merits of
Codner’s claim, in view of its and the IJ’s mistake in seemingly excluding significant,
probative evidence in support of Codner’s claim that he is gay. If authentic and truthful,
the letters from Codner’s family and friends are at least as probative, if not more so, of
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his sexual orientation as any affidavit he might have obtained from a sexual partner in the
United States.
For the foregoing reasons, we will grant the petition for review and remand the
matter for further proceedings. Codner’s “Affidavit of Judicial Notice, etc.,” which
appears to be a request for immigration bail, is denied without prejudice to his pursuing it
before the agency.
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