329 F.3d 191 (1st Cir. 2003), 02-2451, Saint Fort v. Ashcroft

Docket Nº:02-2451
Citation:329 F.3d 191
Party Name:KELLY SAINT FORT, Petitioner, Appellant, v. JOHN ASHCROFT, Attorney General, Respondent, Appellee.
Case Date:May 09, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 191

329 F.3d 191 (1st Cir. 2003)

KELLY SAINT FORT, Petitioner, Appellant,

v.

JOHN ASHCROFT, Attorney General, Respondent, Appellee.

No. 02-2451

United States Court of Appeals, First Circuit

May 9, 2003

Heard March 6, 2003.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

Page 192

Allan M. Tow for appellant.

Christopher C. Fuller, Senior Litigation Counsel, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael P. Lindemann, Assistant Director, and Janice R. Redfern, Attorney, Office of Immigration Litigation, were on brief for appellee.

Before Lynch, Circuit Judge, Campbell, Senior Circuit Judge, and Howard, Circuit Judge.

LYNCH, Circuit Judge.

Kelly Saint Fort, a Haitian and a legal permanent resident of the United States, committed an aggravated felony and so the Immigration and Naturalization Service initiated removal proceedings to deport him. Saint Fort claimed protection from deportation, "deferral of removal, " under the United Nations Convention Against Torture ("CAT"), arguing he would be jailed and tortured if returned to Haiti. An Immigration Judge ("IJ") agreed; the Board of Immigration Appeals ("BIA"), on review, did not. Saint Fort seeks to have Page 193

judicial review of his case; as a matter of statutory law, he may not petition for review in the court of appeals, given the nature of his claims. This left only habeas corpus jurisdiction, which he invoked in the district court. The district court dismissed the habeas petition for lack of jurisdiction, accepting the government's argument. The case is before us on appeal from that dismissal. The respondent Attorney General argues that no court has jurisdiction, even under habeas, to review any aspect of the BIA's determination. The issue is one of first impression for this court. We reject that argument and hold that habeas jurisdiction remains available here. Reviewing Saint Fort's claims about the BIA's determination under the CAT, we reject his claim of denial of due process and so affirm, on that ground, the dismissal of his habeas petition.

I.

Saint Fort, now 27 years old, entered the United States in 1988, at the age of 12, and settled in the Dorchester area of Boston as a lawful permanent resident. In 1999, Saint Fort was convicted in New Hampshire of second-degree assault and receiving stolen property, and was sentenced to concurrent prison terms of two to four years. Saint Fort v. Ashcroft, 223 F.Supp.2d 343, 343-44 (D. Mass. 2002). Subsequently, removal proceedings were instituted against him as an aggravated felon. See Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii) (2000) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (aggravated felonies include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year").

Saint Fort responded by requesting asylum, withholding of deportation, and non-refoulement (non-return) under the CAT. Because of his status as an aggravated felon, he was ineligible for asylum and withholding of deportation. In a November 6, 2001 hearing before an IJ on his CAT claim, Saint Fort presented little evidence to substantiate his fear of torture. He informed the IJ that he had no family in Haiti, and that if he returned his life would be "over." He asserted that deportees were routinely tortured in Haiti. When cross-examined as to the basis for his belief, he said that at least a year earlier he had read an article in a newspaper he thought was called "U.S. Today" which said that deportees were being killed in Haiti. Saint Fort did not have a copy of this article at the hearing. Saint Fort also said that he had friends from the Dominican Republic who advised him to pray that he not be deported because, if he were, he would certainly be tortured. Saint Fort did not offer any testimony relating to himself or his family to explain why he might be targeted for mistreatment.1

In addition to his testimony, Saint Fort also submitted supporting documentation, including country reports on Haiti and a BIA decision on conditions in Haiti. That unpublished decision, In re Perez, was issued on October 22, 2001.2 In Perez, the Page 194

BIA relied on the State Department's country report on Haiti, which noted in pertinent part that deportees are now being held indefinitely in Haitian prisons. Conditions in those prisons, the BIA stated, were "extremely poor, to the point that the health of detainees is severely compromised by lack of adequate food and medical attention. Moreover, . . . police forces beat, torture, and otherwise mistreat detainees. As a direct result of these conditions, multiple detainees have died while in custody." The BIA concluded that it was "more likely than not" that the petitioner in Perez would "be subjected to torture by or with the acquiescence of a public official in Haiti." As a result, Perez was found to have met his burden of proof under the CAT, and he was granted deferral of removal to Haiti. The IJ issued an oral decision in Saint Fort's case on the same day as the hearing. He found that, as an aggravated felon, Saint Fort was statutorily ineligible for asylum or withholding of removal, but eligible for deferred removal under the CAT. The IJ reviewed country reports on Haiti, the BIA's decision in Perez, and Saint Fort's hearing testimony. He noted Saint Fort's testimony that "he has no family in Haiti, and that he will be tortured if he returns to Haiti and [is] put in jail." The IJ concluded that it was more likely than not that Saint Fort would be imprisoned and tortured if returned to Haiti. The IJ reasoned,

The reports concerning the conditions of Haitian jails lead[] only to one conclusion, that the respondent's return to Haiti and being detained and placed in jail in Haiti, would subject him to torture, based on the conditions of jails in Haiti as stated in the documentation submitted . . . and what is contained in [Perez].

The IJ granted Saint Fort's application for deferred removal under the CAT. The INS appealed the IJ's decision to the BIA. The BIA reversed the IJ's decision, in reliance on an intervening published BIA decision and the absence of other evidence from Saint Fort. That published decision, In re J-E-, 23 I. & N. Dec. 291 (BIA), available at 2002 WL 481156 (Mar. 22, 2002), reversed course and found that conditions in Haiti's jails did not constitute torture under the CAT. In J-E-, the BIA reviewed a case, similar to Perez, in which the petitioner argued—based on country condition reports, newspaper articles, and a letter from an official at the State Department—that prison conditions in Haiti amounted to torture. Id. at 293. In a reversal from Perez — but without citing Perez — the BIA concluded in J-E- that the indefinite detention of criminal deportees by Haitian authorities did not constitute torture within the meaning of the relevant regulations, 8 C.F.R. § 208.18(a) (2002), because there was no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture. 23 I. & N. Dec. at 299-302. Citing the decision in J-E-, the BIA dismissed Saint Fort's appeal and ordered him removed to Haiti.

Saint Fort did not timely apply for reconsideration by the BIA.3 He filed a petition for review of the BIA's decision in the court of appeals under 8 U.S.C. § 1252(b). This court questioned whether it had jurisdiction in the case because Saint Fort had been convicted of an aggravated felony, and there was no question as to that fact Page 195

or the fact that he was not a U.S. citizen. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense . . . ."). Saint Fort then voluntarily dismissed the petition for review in the court of appeals and turned to the district court. On June 27, 2002, Saint Fort filed a petition for habeas corpus with the district court. He alleged that the BIA's decision violated his statutory and regulatory rights under the INA and the Administrative Procedure Act, and his constitutional rights under the Due Process and Equal Protection Clauses, because (1) it denied him the opportunity to present evidence of the possibility he will be tortured in Haiti, (2) it upset settled expectations established by In re Perez, (3) the decision-making was arbitrary and inconsistent, and (4) the application of In re J-E- was impermissibly retroactive. The government responded that the district court lacked jurisdiction because Saint Fort had failed to exhaust his administrative remedies. Saint Fort, 223 F.Supp.2d at 343.

The district court expressed skepticism about Saint Fort's petition, noting that a motion to reopen on the basis of new evidence would be futile because Saint Fort had conceded that he had no new evidence, and also commenting that the debate over retroactivity was "somewhat besides the point" given that In re J-E did not announce a new rule. Id. at 345. Still, on September 30, 2002, the district court remanded the case to the BIA for clarification of the grounds of its denial and continued Saint Fort's stay of removal during that period. Id. at 346. The district court said it was troubled by the BIA's holding that Saint Fort had offered no evidence to the IJ that he would be tortured when, in fact, the IJ had both Saint Fort's documentary evidence and his testimony, and when the IJ had found Saint Fort credible. Id. at 345-46.

The government then...

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