CA7 on New Evidence: Fuller III

Fuller v. Whitaker

"Fuller contends that he likely will face torture upon return to his native Jamaica because he is bisexual. The Board previously had sustained an Immigration Judge’s finding that Fuller had not presented a credible case as to his alleged sexual orientation and fear of torture. In support of his motion to reopen, Fuller submitted to the Board several new letters of support from acquaintances attesting to prior incidents in which he was the victim of violence in Jamaica owing to his sexual orientation. In denying this request, the Board explained that “[Fuller’s] motion does not challenge our conclusions regarding his credibility or his eligibility for deferral of removal, and we do not find that his letters of support would materially alter these findings.” A.R. 3 (internal record citation omitted). Because the Board’s stated rationale for disposing of Fuller’s motion reflects a misapprehension of the basis for his request, and because we cannot be confident that the Board’s mistake did not taint the exercise of its otherwise unreviewable discretion over the merits of the motion, we conclude that the Board committed legal error in denying his request for relief. On that basis, we grant Fuller’s petition for review and remand to the Board for further proceedings."

[Hats off to pro bono publico counsel from Jenner & Block: Barry Levenstam, David Diesenhouse, Tali Leinwand and Matthew Price!]