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Jima v. Barr

United States Court of Appeals, Eighth Circuit

November 8, 2019

Boto Sugar Jima Petitioner
v.
William P. Barr, Attorney General of the United States Respondent

          Submitted: September 24, 2019

          Petition for Review of an Order of the Board of Immigration Appeals

          Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         Boto 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.

         I. Background

         Jima is 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.

         In 2016, Jima was charged with willful injury causing bodily harm in violation of Iowa Code § 708.4(2)[1] 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.

         In 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.

         Before 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.

         After 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.

         DHS then appealed the IJ's decision granting deferral of removal under CAT to the BIA.

         Meanwhile, 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 had found.

         In the 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 ...


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