FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAMION NATHANIAL BROMFIELD, 

Petitioner, No. 05-75844

v. Agency No. 

M A44-134-417 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 13, 2008—Seattle, Washington

Filed September 15, 2008

Before: Betty B. Fletcher and Richard A. Paez,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

12843
COUNSEL

Matthew H. Adams, Esq., Northwest Immigrants Rights Project, Seattle, Washington, for the petitioner. 

Paul F. Stone, Esq. (argued) and R. Alexander Goring, Esq.,

U.S. Department of Justice, Civil Division, Washington, D.C.,

and Ronald E. LeFevre, Department of Homeland Security,

San Francisco, California, for the respondent. 

OPINION

B. FLETCHER, Circuit Judge: 

Damion Nathanial Bromfield (“Bromfield”) petitions this

court for review of a Board of Immigration Appeals (“BIA”)

BROMFIELD v. MUKASEY 12847
order affirming an Immigration Judge’s (“IJ”) denial of

Bromfield’s application for withholding of removal under

INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the Convention

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”). We hold that the evidence

in the record compels the conclusion that there exists in

Jamaica a pattern or practice of persecution of gay men and

that the IJ applied the wrong legal standard in evaluating

Bromfield’s CAT claim. Accordingly, we remand Bromfield’s case so that the agency can reconsider whether Bromfield will more likely than not be persecuted or tortured if

removed to Jamaica. 

I. Background

Bromfield is a Jamaican national who came to the United

States as a legal permanent resident in 1993 at the age of fifteen. Four years later, when he was nineteen, Bromfield

“came out” as a gay man. Prior to coming out, Bromfield

made two short trips to Jamaica to visit his extended family.

He cites violence against homosexuals in Jamaica as one of

the reasons why he has not returned to his home country.1

Bromfield was placed in removal proceedings after pleading guilty to misdemeanor sexual abuse in the third degree

and contributing to the sexual delinquency of a minor. The

government charged him as removable for having been convicted of an aggravated felony. Unable to obtain counsel,

Bromfield admitted the charges against him and conceded

removability. The IJ found that Bromfield was ineligible for

asylum as a result of his convictions.2 But the IJ declined to

1We accept Bromfield’s testimony as true because the BIA did not

make an adverse credibility determination. Kalubi v. Ashcroft, 364 F.3d

1134, 1137 (9th Cir. 2004). 

2Bromfield did not challenge this finding before the BIA. As a result,

we do not consider whether the crimes actually constitute aggravated felonies or whether he is eligible for asylum. 

12848 BROMFIELD v. MUKASEY
find that Bromfield was convicted of a particularly serious

crime. Accordingly, he permitted Bromfield to apply for withholding of removal and relief under CAT.3

In support of his application, Bromfield testified that as a

gay man he would be beaten and killed if returned to Jamaica.

In support of this belief, Bromfield testified about articles that

he had read about violence against gay men in Jamaica and

expressed concern that his father might have told his extended

family that he was gay. He also submitted documentary evidence in support of his claim, including the 2005 U.S. State

Department Country Report for Jamaica (“Country Report”).

According to the report, violence against homosexuals is

widespread, and is perpetrated by both private individuals and

public officials such as police officers and prison personnel.

The report also noted that Jamaican law criminalizes homosexual conduct, making it punishable by up to ten-years

imprisonment, and that the prime minister had stated that the

government would not be pressured into changing its antihomosexual laws. 

The IJ denied Bromfield’s claims on the merits. The IJ

rejected the CAT claim because he concluded that Bromfield

had not “demonstrated any . . . interest or risk to him from the

[Jamaican] government.” In rejecting Bromfield’s claim for

withholding of removal, the IJ relied heavily on the fact that

Bromfield had visited Jamaica twice without incident prior to

coming out as a gay man and continued to have contact with

his Jamaican-born father. He also noted that Bromfield was

not politically active. Looking to the Country Report, the IJ

acknowledged that gay people suffered discrimination, but

3The relief Bromfield seeks under CAT is a form of withholding of

removal. See 8 C.F.R. § 208.16(c). Except in the jurisdiction discussion,

infra, where the same restrictions apply regardless of whether withholding

is sought on the basis of persecution or torture, the phrase “withholding

of removal,” as used in this opinion, refers to withholding based on risk

of future persecution, while the phrase “relief under CAT” refers to withholding based on risk of torture. 

BROMFIELD v. MUKASEY 12849
characterized violence against them as “random acts of violence” that do not constitute persecution. Thus the IJ concluded that Bromfield had not carried his burden and was not

entitled to either form of relief. 

Bromfield filed a pro se brief before the BIA arguing that

the IJ erred in denying relief because Bromfield had shown

regular and widespread persecution and torture of homosexuals in Jamaica carried out at least in part by the Jamaican

government. The BIA dismissed the appeal and affirmed the

IJ’s conclusion that Bromfield failed to sustain the high burden of proof applicable to withholding of removal. The BIA

also stated that the record supported the conclusion that

Bromfield failed to establish that he would more likely than

not be tortured if returned to Jamaica, but did not offer any

explanation. Bromfield timely petitioned for review.

II. Jurisdiction

The government argues that we do not have jurisdiction

over this petition for review because Bromfield was found

removable on the basis of his conviction for an aggravated

felony. We have jurisdiction to determine whether we have

jurisdiction, Ramadan v. Gonzales, 479 F.3d 646, 649 (9th

Cir. 2007) (per curiam), and we conclude that we do. 

[1] This court lacks jurisdiction “to review any final order

of removal against an alien who is removable by reason of

having committed [an aggravated felony].” 8 U.S.C.

§ 1252(a)(2)(c); see also 8 U.S.C. § 1227(a)(2)(A)(iii). But

this provision applies only “to removal orders, and not to

applications for asylum, withholding of removal, or CAT

relief.” Arteaga v. Mukasey, 511 F.3d 940, 942 n.1 (9th Cir.

2007) (citing Morales v. Gonzales, 478 F.3d 972, 980 (9th

Cir. 2007)). Therefore, if the IJ denies withholding of removal

or CAT relief on the merits, rather than relying on the aggravated felony conviction, we have jurisdiction to review the

merits of these claims. See id. (reviewing withholding of

12850 BROMFIELD v. MUKASEY
removal and CAT claims on the merits despite the fact that

petitioner was found removable as an alien convicted of an

aggravated felony); see also Unuakhaulu v. Gonzales, 416

F.3d 931, 933 (9th Cir. 2005) (holding that because “8 U.S.C.

§ 1252(a)(2)(C) divests us only of jurisdiction to review

orders of removal that are actually based on a petitioner’s

prior aggravated felony conviction . . . [w]e . . . have jurisdiction to review the BIA’s nondiscretionary denial of withholding, which was not predicated on Unuakhaulu’s aggravated

felony”).4

[2] Withholding of removal—whether under INA

§ 241(b)(3) or CAT—is nondiscretionary relief that must be

granted to any alien who establishes that he will more likely

than not be persecuted or tortured, respectively, in the proposed country of removal. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.

§ 1208.16(d)(1). Even if the applicant has carried his burden

of proof, however, withholding of removal will be denied in

four narrow circumstances, one of which is potentially relevant here: an alien is not eligible for withholding of removal

if he has been convicted of a particularly serious crime. 8

U.S.C. § 1231(b)(3)(B)(ii). If an individual convicted of an

aggravated felony is sentenced to five-years imprisonment, he

is deemed to have been convicted of a particularly serious

4The government attempts to distinguish Unuakhaulu by pointing out

that the IJ ordered Bromfield removable as charged—i.e., on the basis of

the aggravated felony charge in his Notice to Appear—whereas the IJ in

Unuakhaulu did not specify whether Unuakhaulu was ordered removed

because of his aggravated felony or because he overstayed his visa. See

416 F.3d at 934. The government’s argument fails. Our subsequent precedent makes clear than even in cases where the aggravated felony is the

only basis for the finding of removability, we have jurisdiction to review

the IJ’s determination on the merits. See Arteaga, 511 F.3d at 942 & n.1.

Bromfield was denied relief not because of his conviction but because the

IJ and BIA thought that he had failed to prove his withholding of removal

and CAT claims on the merits. Thus, we have jurisdiction to review Bromfield’s petition in so far as it challenges the denial of relief on the withholding of removal and CAT claims and not the finding of removability

on account of the felony conviction. See Unuakhaulu, 416 F.3d at 937. 

BROMFIELD v. MUKASEY 12851
crime and is ineligible for withholding of removal. Id. If, on

the other hand, the individual is sentenced to less than fiveyears imprisonment, he remains eligible for withholding of

removal unless the Attorney General (acting through the IJ

and the BIA) determines that the crime at issue was “particularly serious.” Id.; Afridi v. Gonzales, 442 F.3d 1212, 1220-21

(9th Cir. 2006). 

[3] Bromfield was convicted of an aggravated felony for

which he was sentenced to less than one-year imprisonment.

He therefore remained eligible for withholding of removal

unless the IJ determined that his conviction was for a particularly serious crime. The IJ declined to reach this conclusion,

and denied Bromfield’s application for withholding of

removal and relief under CAT on the merits. Because the IJ

denied the claim on the merits and not on the basis of Bromfield’s conviction, we have jurisdiction to determine whether

the IJ erred in determining that Bromfield had not established

that he would more likely than not be persecuted or tortured

in Jamaica. 

III. Scope and Standard of Review

Where, as here, the BIA’s order indicates that it may have

engaged in de novo review of the IJ’s decision but does not

provide any legal analysis, we review the IJ’s oral decision

“as a guide to what lay behind the BIA’s conclusion[s].”

Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000).

We review the IJ’s application of legal standards de novo.

Morales, 478 F.3d at 983. The IJ’s factual findings, on the

other hand, are reviewed for substantial evidence. Id. Under

this standard, we reverse the BIA if the evidence presented

would compel a reasonable factfinder to reach a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1

(1992). 

IV. Withholding of Removal Under INA § 241(b)(3)

[4] Bromfield is entitled to withholding of removal under

INA § 241(b)(3) if he establishes that he would more likely

12852 BROMFIELD v. MUKASEY
than not be persecuted on account of his sexual orientation if

he were removed to Jamaica. 8 C.F.R. § 1208.16(b); Karouni

v. Gonzales, 399 F.3d 1163, 1172 (9th Cir. 2005) (citing

Hernandez-Montiel v. INS, 225 F.3d 1084, 1094 (9th Cir.

2000)) (holding that homosexuals are members of a particular

social group for purposes of asylum and withholding of

removal). He can meet his burden either by presenting evidence that he would be singled out for persecution or by

establishing that there is a pattern or practice of persecution

of a group of similarly-situated individuals and that his “inclusion in and identification with such group of persons

[makes] it . . . more likely than not that his . . . life or freedom

would be threatened” in Jamaica. 8 C.F.R. § 1208.16(b)(2). 

[5] In rejecting Bromfield’s claim, the IJ relied on the following facts: (1) although Bromfield’s father did not approve

of his sexual orientation, he did not reject Bromfield; (2)

Bromfield was not politically active; and (3) Bromfield voluntarily went to Jamaica twice before coming out. The IJ also

concluded that the Country Report was insufficient to sustain

Bromfield’s claim because it establishes only that homosexuals are the victims of harassment and random acts of violence,

neither of which rise to the level of persecution. As we

explain below, the IJ improperly relied on the first three facts

and his interpretation of the Country Report is not supported

by substantial evidence. We therefore reverse and remand for

reconsideration of Bromfield’s withholding claim.

The most glaring error in the IJ’s opinion is his interpretation of the Country Report. Although the Country Report

noted that “a culture of severe discrimination” against homosexuals exists in Jamaica, it did not end there. It went on to

recognize that “[t]here were numerous cases of violence

against persons based on sexual orientation, including by

police and vigilante groups.” These included mob attacks,

stabbings, and targeted shootings. The problem is so pervasive that Jamaican government entities described the brutality

against homosexuals as “widespread.” 

BROMFIELD v. MUKASEY 12853
[6] Whether particular conduct constitutes persecution or

“random” violence turns on the perpetrator’s motive. See,

e.g., Ndom v. Ashcroft, 384 F.3d 743, 752 (9th Cir. 2004). If

the perpetrator is motivated by his victim’s protected status—

including sexual orientation—he is engaging in persecution,

not random violence. See id. at 753. Applying this rule to the

undisputed facts contained in the Country Report, it is clear

that the IJ erred when he ignored the perpetrators’ motive in

attacking homosexuals. The Country Report does not describe

random violence. Rather, it makes clear that homosexuals are

the victims of targeted violence on account of their sexual orientation. Therefore, the IJ’s conclusion that the Country

Report does not establish that homosexuals are persecuted in

Jamaica is not supported by substantial evidence. 

[7] In addition to his error in not recognizing that violence

is targeted against homosexuals, the IJ erred in failing to consider all of the evidence contained in the Country Report. In

particular, the IJ did not so much as mention the Jamaican law

criminalizing homosexual conduct. This law, known as the

Offenses Against the Person Act, prohibits “ ‘acts of gross

indecency’ (generally interpreted as any kind of physical intimacy) between men, in public or in private.” The Country

Report makes clear that this is not a statute that remains on

the books but is not enforced. In fact, according to the Country Report, then-Prime Minister P.J. Patterson responded to

criticism from the international community by stating that

Jamaica would not be pressured into changing its antihomosexual laws.

[8] The Offenses Against the Person Act is relevant

because prosecution under the statute is a form of persecution.

Although legitimate criminal prosecution generally does not

constitute persecution, prosecution motivated by a protected

ground does. See Bandari v. INS, 227 F.3d 1160, 1168 (9th

Cir. 2000) (holding that petitioner was attacked by police not

because he violated a neutral law against public displays of

affection but because he was in an interfaith relationship); see

12854 BROMFIELD v. MUKASEY
also Karouni, 399 F.3d at 1172-73 (holding that evidence that

homosexual acts were criminalized and actively punished in

the proposed country of removal compelled the conclusion

that petitioner had a well-founded fear of future persecution).

In this case, there is no doubt that prosecution of homosexuals

under the statute is motivated by a protected ground—the

prosecution is because of a protected ground. There is nothing

neutral about the government’s use of a statute to prohibit

homosexual conduct but not any other sexual activity.

Because the prohibition is directly related to a protected

ground—membership in the particular social group of homosexual men—prosecution under the law will always constitute

persecution.5 This is true even though the statute criminalizes

conduct, not sexual orientation per se. Karouni, 399 F.3d at

1173 (“[W]e see no appreciable difference between an individual . . . being persecuted for being a homosexual and being

persecuted for engaging in homosexual acts. [Either way t]he

persecution . . . qualifies as persecution on account of . . .

membership in the particular social group of homosexuals.”

(citing 8 U.S.C. § 1101(a)(42)(A))). 

[9] Our review of the Country Report compels the conclusion that there exists in Jamaica a pattern or practice of persecution of gay men. It follows that if Bromfield had not been

convicted of an aggravated felony, he would have been eligi5

In oral argument the government relied heavily on Fisher v. INS, 79

F.3d 955 (9th Cir. 1996) (en banc), in support of its position that prosecution under the Offenses Against the Person Act would not constitute persecution. The government’s reliance is misplaced. In Fisher, a majority of

the en banc panel concluded that the petitioner had failed to establish that

if she were prosecuted for not following Iran’s strict laws governing

women’s dress and conduct, the prosecution would be on account of her

religious or political beliefs. Id. at 961-62. In contrast, there is no question

that if Bromfield were prosecuted under the Jamaican law it would be on

account of his sexual orientation. Whereas any woman who violated the

dress and conduct laws could be prosecuted regardless of her religious or

political beliefs, only men perceived as gay can be prosecuted under the

Offenses Against the Person Act. Thus Fisher is inapposite. 

BROMFIELD v. MUKASEY 12855
ble for asylum. See Mgoian v. INS, 184 F.3d 1029, 1035 (9th

Cir. 1999) (“[I]f [an applicant] is able to show a ‘pattern or

practice’ of persecution against a group of which she is a

member, then she will be eligible for asylum.”). But in order

to be entitled to withholding of removal, Bromfield must

establish that he will more likely than not be persecuted, not

merely that he has a well-founded fear of persecution.

Because we conclude that the IJ erred, we remand Bromfield’s case to the BIA so that it can determine in the first

instance whether he has met his burden for withholding of

removal in light of the record evidence that there exists a pattern or practice of persecution of gay men in Jamaica. See,

e.g., Knezevic v. Ashcroft, 367 F.3d 1206, 1213, 1214-15 (9th

Cir. 2004) (holding that record compelled finding of pattern

or practice of persecution and remanding for BIA to reconsider application for withholding). 

[10] Although the IJ’s misinterpretation of the Country

Report is a sufficient basis for remanding the case, it is not the

only error that must be corrected on remand. The IJ also erred

by relying on the fact that Bromfield’s father had not disowned him and that Bromfield voluntarily visited Jamaica

twice before coming out at the age of nineteen. To the extent

that the IJ’s reliance on these facts is based on his conjecture

about how a Jamaican man would treat his homosexual son

and whether a teenager who had not yet identified himself as

gay would voluntarily travel to Jamaica to visit his family,

such conjecture does not constitute substantial evidence to

support the IJ’s decision. See Karouni, 399 F.3d at 1176.

These facts are entirely irrelevant to a determination of

whether Bromfield will be persecuted in Jamaica today. 

[11] Turning first to Bromfield’s relationship with his

father, it is completely irrelevant that Bromfield’s father—

who has lived in the United States for over a decade—has not

cut off all communication with Bromfield. Whether his

comparatively-tolerant attitude results from the fact that he

has not lived in Jamaica for many years or from his love for

12856 BROMFIELD v. MUKASEY
his son, a father’s refusal to disown his son is not evidence

that the son will not be persecuted in the proposed country of

removal. Moreover, the record is clear that Bromfield’s father

does not approve of his son’s sexual orientation. In fact, he

refused to speak to Bromfield for two years after he found out

that Bromfield was gay. His attitude thus supports Bromfield’s position that Jamaican society is not accepting of

homosexuality, and in no way undermines Bromfield’s claim

that he would be persecuted if removed to Jamaica. 

[12] Similarly, the fact that Bromfield made two short trips

to visit his family in Jamaica before he came out does not

undermine his claim. Importantly, Bromfield has not been to

Jamaica since he came out as a gay man. He has therefore

never been in a position to be persecuted on account of his

sexual orientation. Moreover, the short duration and purpose

of the trips—to visit family—further reduced the likelihood

that he would be persecuted. Thus the fact that he was not

persecuted as a teenager has no bearing on the likelihood that

he would be persecuted in Jamaica today. 

[13] Finally, we note that while Bromfield’s lack of political activism could be relevant in determining the likelihood

that he would be persecuted, it is by no means dispositive.

The Country Report gives some indication that high-profile

gay-rights activists are at a heightened risk of persecution. But

the risk is not limited to those individuals. In light of the statute criminalizing homosexual conduct and the widespread,

targeted violence against homosexuals, all gay men are at

risk. 

We therefore grant Bromfield’s petition for review and

remand his case to the BIA to determine whether he has

established a clear probability of persecution in light of the

fact that there exists a pattern or practice of persecution of gay

men in Jamaica. This will require the IJ to consider the Jamaican law criminalizing homosexual conduct and the frequency

with which that law is enforced, and to determine whether

BROMFIELD v. MUKASEY 12857
that frequency, combined with evidence of widespread violence targeted at homosexuals, makes it more likely than not

that Bromfield will be persecuted on account of his sexual orientation if removed to Jamaica. 

V. Convention Against Torture

[14] Bromfield is entitled to relief under CAT if he establishes that he would more likely than not be tortured in

Jamaica. 8 C.F.R. § 1208.16(c)(2). Torture is defined as “any

act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes

as . . . punishing him . . . for an act he . . . has committed . . .

or for any reason based on discrimination of any kind . . .

when such pain or suffering is inflicted by or at the instigation

of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1). Acts constituting torture are varied, and

include beatings and killings. See Comollari v. Ashcroft, 378

F.3d 694, 697 (7th Cir. 2004) (citing 28 U.S.C. § 1350 (note))

(killings); Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.

2001) (beatings). 

[15] The IJ rejected Bromfield’s CAT claim because he had

not demonstrated that he was at risk of harm from the Jamaican government. This conclusion is based on an error of law.

Bromfield was not required to show that the government

would torture him; he could satisfy his burden by showing

that the government acquiesces in torture of gay men. 8

C.F.R. § 1208.18(a)(1). “Acquiescence” requires only that

public officials were aware of the torture but “remained willfully blind to it, or simply stood by because of their inability

or unwillingness to oppose it.” Ornelas-Chavez v. Gonzales,

458 F.3d 1052, 1060 (9th Cir. 2006). The record here compels

the conclusion that the Jamaican government not only acquiesces in the torture of gay men, but is directly involved in

such torture. The government criminalizes homosexual conduct, making it punishable by up to ten years in prison. This

12858 BROMFIELD v. MUKASEY
is an indicator of the government’s position toward gay men,

as is the fact that the police generally do not investigate complaints of human rights abuses suffered by gay men. Moreover, the Country Report further indicates that police officers

and prison wardens are directly responsible for a portion of

these abuses. Therefore, Bromfield has established sufficient

involvement by the Jamaican government in the torture of gay

men to bring it within the regulatory definition.

[16] We remand Bromfield’s case to the BIA to determine

whether, in light of the Jamaican government’s acquiescence

and involvement in the torture of homosexual men, it is more

likely than not that Bromfield will be tortured if removed to

Jamaica. In evaluating Bromfield’s claim, the agency must

consider “all evidence relevant to the possibility of future torture,” including the Country Report, which establishes that

gay men are victims of beatings, killings, and other forms of

torture. See 8 C.F.R § 1208.16(c)(3).

VI. Conclusion

The IJ erred in failing to find that the Country Report established that there exists a pattern or practice of persecution of

homosexual men in Jamaica. We therefore remand Bromfield’s withholding of removal claim so that the agency can

determine in the first instance whether Bromfield has established that he will more likely than not be persecuted in light

of this pattern or practice. Evidence of Bromfield’s relationship with his father or his two prior visits to Jamaica are irrelevant to that determination. Additionally, we remand

Bromfield’s CAT claim so that the agency can apply the correct legal standard and determine whether Bromfield is entitled to relief under CAT. On remand, the agency should

permit both parties to submit new evidence relevant to these

claims. 

PETITION GRANTED; REMANDED.

BROMFIELD v. MUKASEY 12859