On Petition for Review of an Order of the Board of Immigration Appeals (BIA 1:A038-576-174) Immigration Judge: Hon. Walter Durling
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: SLOVITER, CHAGARES, and JORDAN, Circuit Judges.
Tehram Steve Roye petitions for review of a final order of the Board of Immigration Appeals (the "BIA" or the "Board") ordering him removed from the United States based on his state-law convictions for aggravated assault and endangering the welfare of a child. Roye asserts that he is entitled to deferral of removal under the United Nations Convention Against Torture ("CAT") because, if removed to his home country, he will likely be imprisoned and, with the consent or acquiescence of the Jamaican government, be subjected to torture by other prisoners and prison guards. Because the BIA erred in its review of Roye's claims, we will grant his petition for review, vacate the BIA's order of removal, and remand the matter for further proceedings consistent with this opinion.
Roye is a fifty-eight-year-old native of Jamaica, who was admitted to the United States on April 5, 1984 as the spouse of a U.S. citizen. On April 30, 1992, he pled guilty in the Pennsylvania Court of Common Pleas to committing an aggravated assault, in violation of 18 Pa. C.S.A. § 2702(a)(1), and to endangering the welfare of a child, in violation of 18 Pa. C.S.A. § 4304. The amended information to which he pled alleged that he had "sexual intercourse . by forcible compulsion" with his eight-month old daughter. (Administrative Record ("A.R.") at 760.)The trial judge sentenced Roye to a term of six to twenty years' imprisonment but "strongly recommend[ed] that consideration be given to [his] immediate transfer into . [a] psychiatric [f]acility." (Id. at 763.)
Fourteen years after Roye pled guilty, the Department of Homeland Security ("DHS") issued a Notice to Appear ("NTA"), charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
A. Roye's Application for Deferral of Removal
Roye subsequently filed, on February 11, 2009, a Form I-589, Application for Asylum and Withholding of Removal, seeking deferral of removal under the CAT. On that form, Roye stated that he "fear[s] . rape and death if returned to Jamaica," and that his "mental illness gives rise to bizarre and criminal behavior that will make him a clear target for police officers and other inmates who sexually assault inmates with mental illnesses." (A.R. at 747.)
An Immigration Judge ("IJ") held a hearing on May 26, 2009, during which Roye's counsel presented three witnesses.*fn1 Dr. Anne Weidman testified that, after examining Roye, she diagnosed him as having schizoaffective disorder, bipolar type. She said that the nature of Roye's condition was such that he would need to take medication for the remainder of his life, but she noted that Roye often refused to take medication "outside a treatment environment." (Id. at 298.) Dr. Weidman also observed that Roye suffered manic and depressive episodes, and "had incidents in which he set his cell on fire and . [became] very sexually preoccupied . ." (Id. at 299.)
Nancy Anderson, an attorney who has practiced law in Jamaica and who was a member of the Independent Jamaican Council for Human Rights,*fn2 also testified during the hearing. She said that many mentally ill persons in Jamaica are prosecuted for minor offenses and are incarcerated, often indefinitely. She also described the general experience of mentally ill inmates in Jamaican prisons, indicating that they are frequently subjected to physical and sexual abuse by both fellow prisoners and prison officials. She said that "the most prevalent abuse is sexual," but that mentally ill inmates also suffer other kinds of physical abuse because it "is easy to inflict on someone who is . on some medication." (Id. at 316-17.) Anderson believed that, if Roye were returned to Jamaica, he was "likely to be incarcerated for an indefinite period of time if he's arrested," and "would be exposed to abuse by guards and other inmates" while in prison. (Id. at 340-41.)
Anderson also testified regarding the extent to which Jamaican prison officials are involved in the abuse of mentally ill prisoners. When asked to describe that involvement, Anderson replied: a lot of complaints . are of ill treatment at the hands of these correctional officers or warders.
. [T]hings are done that they must know about and they must be able to see, but they do nothing to prevent it or to assist . the mentally ill[inmates]. There are some warders . who will call me and say that this person is being abused, they don't know by who, but I should come and have a look at the situation or I should send someone to speak to them, and -- but that -- those are few and far between. I really believe that . I believe that some of the ...