“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Second Circuit judge Richard Sullivan tried to uphold the deportation of a Jamaican man despite credible evidence that he would be tortured and killed if returned there. The March 2020 case is Manning v. Barr.

Kenneth Manning came to the U.S. from Jamaica in the 1980s. A few years later, Manning was arrested and pleaded guilty for his involvement in a Jamaican gang. Another Jamaican immigrant, Delroy Edwards, whom  Manning had known in Jamaica, was also arrested. Manning agreed to testify against Edwards, who was convicted of multiple counts of murder, assault, kidnapping, and drug offenses. The government wrote that Manning’s testimony was “critical to virtually the entire case.” In fact, the government explained that it “could not overstate the fullness, completeness, and value” of Manning’s cooperation, and that he also provided “important assistance in related cases.”

Manning served 28 years in prison before his release in 2016. While he was in prison, he remained under protective custody because of threats against him due to his cooperation in the Edwards trial. The government reviewed and affirmed the protective custody arrangements every six months.

Upon his release on parole, the Department of Homeland Security (DHS) sought to deport him back to Jamaica. He tried to defer his removal based on evidence that he would be tortured and killed if he was returned to Jamaica based on his testimony and cooperation against Edwards. Although Manning’s testimony was found to be credible, his application was denied by DHS.  He then petitioned the Second Circuit for review.

In a 2-1 decision, the Second Circuit agreed to suspend the deportation and ordered DHS to reconsider the evidence Manning submitted. The majority explained that DHS had committed legal error by disregarding Manning’s credible testimony without a proper explanation. The majority went on to find that DHS had ignored other  “substantial and material evidence” that Manning would be killed if he returned to Jamaica. That evidence included an affidavit of an expert on Jamaican organized crime who corroborated Manning’s risk if he returned, despite the many years that had passed since his testimony, evidence from Manning and family members of more recent threats, and a 2015 blog entry Edwards wrote, which condemned Manning’s testimony. An Edwards family member was quoted as stating that if Manning returned to Jamiaca, “he is going to die.”

But Sullivan dissented, agreeing with the government’s claim that there was substantial evidence to support DHS’ conclusion and that the court did not have jurisdiction because Manning had committed a criminal offense. The majority explained that position was clearly incorrect. Manning’s evidence was “unrebutted,” the majority pointed out, and DHS clearly erred because that evidence was “ignored.” As to jurisdiction, the majority noted, the record was clear that DHS sought to remove Manning because of his presence in the U.S., not his criminal conviction. As a result, the majority concluded, the “plain text” of the law, the  “broader statutory structure,” and precedent in the Second Circuit and the “majority of the other circuits” led to the conclusion that the court had jurisdiction.

As a result of the majority’s decision, therefore, DHS will specifically consider the evidence of Manning’s risk of torture or murder if he is deported to Jamaica. If it had been up to Sullivan, however, Manning would have been returned there without such consideration.