Saintha v. Mukasey

• Decision Date: 14 February 2008
• Docket Number: No. 06-2304.,06-2304.
• Citation: 516 F.3d 243
• Parties: Mackentoch SAINTHA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

516 F.3d 243

Mackentoch SAINTHA, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 06-2304.

United States Court of Appeals, Fourth Circuit.

Argued November 1, 2007.

Decided February 14, 2008.

Petitioner for review of decision of the Board of Immigration Appeals (BIA).

ARGUED: John R. Ingrassia, Proskauer & Rose, L.L.P., Washington, D.C.; Elizabeth Hutton McGrail, Capital Area Immigrants' Rights Coalition, Washington, D.C., for Petitioner. Janice Kay Redfern, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before GREGORY and DUNCAN, Circuit Judges, and James A. BEATY, Jr., Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

Petition for review dismissed in part and denied in part by published opinion. Judge DUNCAN wrote the opinion, in which Judge GREGORY and Judge BEATY joined.

OPINION

DUNCAN, Circuit Judge:

The petitioner, Mackentoch Saintha ("Saintha"), was admitted to this country as a refugee and was subsequently granted lawful permanent resident status. When later convicted of an aggravated felony and placed into removal proceedings, Saintha sought relief pursuant to Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"), Dec. 10.1984, 23 I.L.M. 1027, 1465 U.N.T.S. 85, and under section 209 of the Immigration and Nationality Act (the "INA"), codified at 8 U.S.C. § 1159(c). An Immigration Judge ("IJ") found Saintha entitled to deferral of removal under the CAT, but ineligible for adjustment of status and a waiver of inadmissibility under the INA. On review, the Board of Immigration Appeals ("BIA") found insufficient evidence to sustain the CAT claim, but agreed with the IJ that Saintha was ineligible for the relief he sought under the INA. Saintha's petition asks us to review both BIA determinations. For the reasons that follow, we dismiss the portion of Saintha's petition requesting relief under the CAT for lack of jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C), and we deny the petition as to Saintha's requests for adjustment of status and a waiver of inadmissibility under the INA.

I.

Saintha, along with his family, fled his native Haiti in 1994 to escape political violence. He was subsequently admitted to the United States as a refugee pursuant to 8 U.S.C. § 1157. In October 1995, he sought and was granted an adjustment to lawful permanent resident ("LPR") status under section 209(a) of the INA, 8 U.S.C. § 1159(a), retroactive to his admission date. After multiple convictions for petty larceny, Saintha was convicted of robbery and sentenced to fifteen years' confinement.¹ As a result of this aggravated felony conviction, the government charged him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii). See id. ("Any alien who is convicted of an aggravated felony at any time after admission is deportable.")

In the ensuing removal proceedings, Saintha sought deferral of removal pursuant to the implementing regulations of the CAT. See 8 C.F.R. §§ 208.16(c), 208.17(a), 208.18(b)(1). To be entitled to deferral of removal, the applicant must "establish that it is more likely than not that he [will] be tortured if removed to the proposed country of removal."² 8 C.F.R. § 208.16(c)(2). An act is not "torture" for CAT purposes unless it 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. § 208.18(a)(1).

Saintha argued at his removal hearing that, if he were returned to Haiti, he would more likely than not be tortured with the acquiescence of the Haitian government in retribution for the involvement of his stepfather, Edy Lorisme, in the political party Organisation Populaire de Bon-Repos ("OPB").³ In support of Saintha's claim, Lorisme testified that his sister was beaten and killed in 1988 because of her affiliation with OPB. Saintha and Lorisme also both testified to an instance in 1992 when Lorisme's political opponents came to the family's home in the early hours of the morning and ordered Lorisme outside. According to Saintha, Lorisme did not leave the house and the group dispersed without further incident. After this episode, however, Lorisme sought and obtained refugee status for himself and his family, and they fled Haiti for the United States.

Saintha and Lorisme further testified that their friends and relatives continued to be victimized by politically motivated violence after their departure. They explained that shortly after the family's arrival to the United States, a friend and political ally and his wife were killed in Haiti in retaliation for their political activities. They also alleged that Lorisme's political enemies forced Lorisme into hiding when he visited Haiti in 2003, and that these enemies subsequently burned Saintha's grandmother to death. Shortly after Lorisme's return to the United States, the family learned that a cousin of Saintha's had also been killed. Although unaware of the details of the cousin's death, Saintha and Lorisme insisted that she was killed for her political beliefs.

As to the Haitian government's involvement, Lorisme testified that he did not know "what power [the Haitian police] have . . . to protect" his son, and that the police did not protect anyone. J.A. 123. Saintha submitted as additional evidence the State Department's 2005 Country Report on Human Rights Practices in Haiti. The Report indicated that there was widespread political corruption in Haiti, that prison conditions were substandard, and that the Haitian police were guilty of human rights violations and did little to protect Haitian citizens.

During the removal proceedings, Saintha also sought relief in the form of an adjustment of status under 8 U.S.C. § 1159(a), and in conjunction with that adjustment, a waiver of inadmissibility under § 1159(c). Saintha sought such relief because, though he had previously been granted. LPR status, the imminent removal order would strip him of such status and with it the consequent right to remain legally in the United States indefinitely as a lawful permanent resident. See 8 C.F.R. § 1001.1(p). Furthermore, even if he were granted deferral of removal under the CAT, he still would not have regained his permanent resident status. See 8 C.F.R. § 208.17(d). Such deferral, if granted, would also be subject to `termination in the future if an immigration judge determined that it was no longer, likely that Saintha would be tortured in the country to which he would be removed. See id. In light of these limits to CAT relief, Saintha therefore sought to adjust a second time to LPR status under § 1159(a) in order to remain in the United States permanently. His multiple criminal convictions, however, rendered him inadmissible, and therefore ineligible for adjustment of status. See 8 U.S.C. § 1182(a)(2)(8) ("Any alien convicted of 2 or more offenses . . ., regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible."). Accordingly, he was unable to adjust his status absent a discretionary waiver of inadmissibility, pursuant to § 1159(c), from either the Secretary of Home-land Security or the Attorney General.

On April 10, 2006, the IJ found Saintha removable as charged. The IJ then granted his request for deferral of removal under the CAT, but found him ineligible for an adjustment to LPR status and a waiver of inadmissibility under the INA. These rulings prevented Saintha from being immediately removed to Haiti, but left open that possibility in the future should the country conditions improve. Both Saintha and the government appealed their respective unfavorable rulings to the BIA.

In an opinion issued November 16, 2006, the BIA reversed the IJ's decision finding Saintha eligible for relief under the CAT, but affirmed the IJ's decision as to Saintha's request for adjustment of status and waiver of inadmissibility. Regarding Saintha's CAT claim, the BIA found (1) no clear error in the IJ's findings of fact; (2) that the Haitian government and Lorisme's enemies would have the ability to learn of Saintha's return to Haiti; and (3) that it was more likely than not that Lorisme's enemies would seek to torture Saintha. The BIA nevertheless denied the claim, finding that, "upon considering the record in its totality there is insufficient evidence . . . that the Haitian government would acquiesce in [Saintha's]' torture." J.A. 292.

As to Saintha's requests for relief under the INA, the BIA found that under the plain language of § 1159(a)(1) a refugee who has already acquired LPR status is precluded from subsequently re-adjusting to LPR status. Inasmuch as Saintha could not seek adjustment of status, he was likewise ineligible to seek a waiver of inadmissibility under § 1159(c). Saintha filed a timely appeal and obtained a temporary stay of removal on January 9, 2007.

II.

Saintha first argues that the BIA erred in finding insufficient evidence to conclude that the Haitian government would likely acquiesce in his torture, and in finding him ineligible for deferral of removal under the CAT as a result. Before we reach the merits of that argument, however, we must first determine whether we have jurisdiction to consider Saintha's claim. The government contends that we do not, asserting that because Saintha is removable by reason of an aggravated felony conviction and has not, in its view, raised a constitutional...