Submitted: September 24, 2019
Petition for Review of an Order of the Board of Immigration
GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
Sugar Jima seeks review of a final order of removal issued by
the Board of Immigration Appeals ("BIA"). The BIA
granted the Department of Homeland Security's
("DHS") appeal of an immigration judge's
("IJ") order granting Jima deferral of removal
under the Convention Against Torture ("CAT"). For
the reasons set forth below, we deny the petition for review.
a native and citizen of South Sudan whose status was adjusted
to lawful permanent resident of the United States in 2006.
Jima was born into the Mabaan tribe and fled Sudan at the age
of three after his parents were killed during the Sudanese
civil war. One of Jima's brothers was also killed during
the civil war. Jima and two surviving older brothers settled
in Des Moines, Iowa.
2016, Jima was charged with willful injury causing bodily
harm in violation of Iowa Code § 708.4(2) after he
"use[d] a knife to stab the victim numerous times
causing bodily injury to the head and upper torso." Jima
pled guilty and was sentenced to five years of imprisonment
but the five years were suspended in lieu of probation.
2017, DHS served Jima with a Notice to Appear on the charge
that he was removable from the United States under 8 U.S.C.
§ 1227 (a)(2)(A)(iii) due to his conviction for an
aggravated felony. In response, Jima filed an I-589
application for asylum and withholding of removal.
the IJ, Jima testified that he fled the country because his
parents and oldest brother were killed during the Sudanese
civil war. He further explained his oldest brother was
kidnapped and killed by the militia in South Sudan because of
his tribal membership. Jima testified he currently has no
contact with anyone in South Sudan, but has been told about
ongoing violence, about how many people are dying, and about
how the Sudanese are "raping everybody." Jima
stated he believed that if he were returned to South Sudan
both the government and the opposition would kill or torture
him due to his tribal affiliation.
the hearing, the IJ determined Jima was ineligible for either
asylum or withholding of removal due to his aggravated felony
conviction. The IJ determined that a violation of Iowa Code
§ 708.4(2) was a crime of violence as defined in 18
U.S.C. § 16(b), and thus qualified as an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F). This
determination makes the conviction a ground for removal from
the United States and made Jima ineligible for asylum or
withholding of removal. But the IJ granted Jima deferral of
removal under CAT because the IJ found Jima credible, and
determined it was more likely than not he would be tortured
if returned to South Sudan.
then appealed the IJ's decision granting deferral of
removal under CAT to the BIA.
the Supreme Court issued a decision holding the federal
criminal code's definition of "crime of
violence" in § 16(b) was unconstitutionally vague.
Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Importantly, this decision left intact the § 16(a)
"crime of violence" definition. As a result, the
BIA requested additional briefing from the parties to address
whether Jima's conviction under Iowa Code § 708.4
was a removable offense as a crime of violence under 18
U.S.C. § 16(a), rather than under § 16(b) as the IJ
supplemental briefs Jima maintained that his conviction under
Iowa Code § 708.4(2) was not a crime of violence under
§ 16(a), but conceded his argument appeared to be
foreclosed by Eighth Circuit precedent. In light of
Jima's concession that his ...