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Cole v. United States AG

United States Court of Appeals for the Eleventh Circuit

March 14, 2013, Decided; March 14, 2013, Filed

No. 11-15557

Opinion

MARCUS, Circuit Judge:

 [*520]  At issue in this appeal is whether the Board of Immigration Appeals ("BIA") correctly found petitioner Chadrick Cole removable as an aggravated felon, and whether its denial of his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT") was proper. The BIA found Cole removable and denied his claims for asylum and withholding of removal because his underlying offense — pointing a firearm  [**2] at another person, in violation of S.C. Code § 16-23-410 — was a particularly serious crime of violence that disqualified him from those forms of relief. The BIA further denied his claim for CAT relief based for the most part on factual determinations that he would not be tortured upon return to his native Jamaica. After thorough review, we deny Cole's petition.

The relevant facts are these. Petitioner Chadrick Cole is a native and citizen of Jamaica who was born on November 7, 1988. Cole was admitted into the United States as a lawful permanent resident in 2006.

On April 6, 2009, Cole violated a South Carolina criminal statute, S.C. § 16-23-410, which criminalizes pointing a firearm  [*521]  at another person. Cole pleaded guilty to the offense in a South Carolina Court of General Sessions and was sentenced, under the South Carolina Youthful Offender Act ("SCYOA"), to an indeterminate term of imprisonment not to exceed five years. On November 12, 2010, the Department of Homeland Security ("DHS") sought to remove Cole pursuant to two sections of the Immigration and Nationality Act ("INA"): Title 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in  [**3] 8 U.S.C. § 1101(a)(43)(E); and 8 U.S.C. § 1227(a)(2)(C), for having been convicted of a firearms offense.

The DHS later amended the charge of removability pursuant to § 1227(a)(2)(A)(iii) and alleged, in addition to the original charges, that Cole also was convicted of an aggravated felony as defined by § 1101(a)(43)(F), which covers crimes of violence for which the term of imprisonment is at least one year. Soon thereafter, Cole submitted an application for asylum, withholding of removal, and relief under the CAT. Cole also moved for a continuance so that he could obtain additional documentary evidence from Jamaica, but the IJ denied this motion and scheduled a hearing for Cole's application.

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712 F.3d 517 *; 2013 U.S. App. LEXIS 5152 **; 24 Fla. L. Weekly Fed. C 128; 2013 WL 978199

CHADRICK CALVIN COLE, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent.

Subsequent History: US Supreme Court certiorari denied by Cole v. Holder, 2013 U.S. LEXIS 5613 (U.S., Oct. 7, 2013)

Prior History:  [**1] Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A058-741-346.

Disposition: PETITION DENIED.

CORE TERMS

torture, alien, immigration, purposes, sentence, removal, withholding, firearm, violent crime, aggravated felony, disabilities, convicted, term of imprisonment, deportees, expunged, asylum, indeterminate sentence, serious crime, five year, physical force, violence, ineligible, deference, substantial risk, guilty plea, maximum, guilt, state law, confrontation, burglary

Immigration Law, Judicial Review, Standards of Review, De Novo Standard of Review, Judicial Proceedings, Jurisdiction, Scope of Review, Substantial Evidence, Grounds for Deportation & Removal, Criminal Activity, General Overview, Deportation & Removal, Judicial Review, Aggravated Felonies, Asylum, Refugees & Related Relief, Asylum, Eligibility for Asylum, Restriction on Removal, Exceptions to Removal Restriction, Convention Against Torture, Criminal Law & Procedure, Weapons Offenses, Use of Weapons, Preservation for Review, Administrative Proceedings, Evidence, Administrative Appeals, US Board of Immigration Appeals, Constitutional Foundations, Due Process