17-2182-ag Manning v. Barr 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2018 6 7 (Argued: June 14, 2019 Decided: March 31, 2020) 8 9 Docket No. 17-2182-ag 10 11 ____________________ 12 13 KENNETH MANNING, AKA Anthony Manning, 14 AKA Bud Manning, AKA Kenny Manning, 15 16 Petitioner, 17 18 v. 19 20 WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, 21 22 Respondent. 23 24 ____________________ 25 26 Before: POOLER, CHIN, and SULLIVAN, Circuit Judges. 27 28 Petition for review of a decision by the Board of Immigration Appeals 29 (“BIA”), denying Kenneth Manning’s application for deferral of removal under 30 the Convention Against Torture. We hold that the jurisdictional provision in 8 1 U.S.C. § 1252(a)(2)(C), which limits this Court’s jurisdiction, applies only to cases 2 where the Immigration Judge (“IJ”) has found a petitioner removable based on 3 covered criminal activity, and that it does not apply where a petitioner’s order of 4 removal is based solely on unlawful presence. We also hold that the IJ and BIA 5 discounted Manning’s credible testimony without proper explanation, failed to 6 consider substantial and material evidence that Manning is likely to be killed if 7 removed to Jamaica, and erroneously placed a burden on Manning to prove he 8 could not internally relocate in order to avoid torture. Accordingly, we GRANT 9 the petition for review and REMAND Manning’s application for deferral of 10 removal for further proceedings consistent with this opinion. 11 GRANTED and REMANDED. 12 Judge Sullivan dissents in a separate opinion. 13 ____________________ 14 EDMUND POLUBINSKI III (Daniel S. Magy, on the 15 brief), Davis Polk & Wardwell LLP, New York, NY, for 16 Petitioner Kenneth Manning. 17 18 SCOTT STEWART (Carl McIntyre, Assistant Director, 19 Nancy Friedman, Senior Director, on the brief), for Joseph 20 H. Hunt, Assistant Attorney General, Civil Division, 21 United States Department of Justice, Washington, D.C., 22 for Respondent William P. Barr, United States Attorney 23 General. 2 1 POOLER, Circuit Judge: 2 We hold that the jurisdictional provision in 8 U.S.C. § 1252(a)(2)(C), which 3 limits this Court’s jurisdiction, applies only to cases where the Immigration 4 Judge (“IJ”) has found a petitioner removable based on covered criminal activity, 5 and that it does not apply where a petitioner’s order of removal is based solely 6 on unlawful presence. We also hold that the IJ and the Board of Immigration 7 Appeals (“BIA”) discounted Manning’s credible testimony without proper 8 explanation, failed to consider substantial and material evidence that he is likely 9 to be killed if removed to Jamaica, and erroneously placed a burden on him to 10 prove he could not internally relocate in order to avoid torture. Accordingly, we 11 GRANT the petition for review and REMAND Manning’s application for 12 deferral of removal for further proceedings consistent with this opinion. 13 BACKGROUND 14 Kenneth Manning came to the United States from Kingston, Jamaica in 15 1985. Three years ...
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