Bazile v. Garland
| Docket Number | 22-1767 |
| Decision Date | 04 August 2023 |
| Parties | JEAN BAZILE, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
William Keefe for petitioner.
Spencer Shucard, Trial Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, and Keith I. McManus, Assistant Director, Office of Immigration Litigation, were on brief for respondent.
SangYeob Kim, with whom Gilles Bissonnette and American Civil Liberties Union of New Hampshire were on brief, for various First Circuit-based Immigration Law Practitioners, Nonprofit
Organizations, Law School Clinics, and a Public Defender Agency, amici curiae. [*]
Before Barron, Chief Judge, Selya and Howard, Circuit Judges.
In this case, we grapple with the question of how venue is to be determined in removal proceedings. This is a question of first impression in this circuit - and one that has divided the courts of appeals elsewhere. After answering the venue question and confirming that venue is appropriate here, we turn to the merits and conclude that the agency's rejection of the petitioner's application for deferral of removal under the United Nations Convention Against Torture (CAT) is supported by substantial evidence on the record as a whole. Accordingly, we deny the petition for judicial review.
We briefly rehearse the relevant facts and travel of the case. The petitioner, Jean Bazile, is a Haitian national. He entered the United States in 1997 at age seven after his father - who had already emigrated to the United States - sponsored an application for his permanent residence. Since then, the petitioner has dwelt in Massachusetts as a lawful permanent resident.
We fast-forward to 2016. Late that year, the petitioner pleaded guilty in a Massachusetts state court to charges of carrying a firearm without a license, see Mass. Gen. Laws ch. 269, § 10(a); assault and battery with a dangerous weapon, see id. ch. 265, § 15A(b); carrying a loaded firearm without a license, see id. ch. 269, § 10(n); and discharging a firearm within 500 feet of a building, see id. ch. 269, § 12E. The court sentenced him to thirty months' imprisonment for carrying a firearm without a license and two years of probation for each of the other offenses (to run concurrently).
In June of 2019, the Department of Homeland Security (DHS) initiated removal proceedings, serving the petitioner with a notice to appear (NTA). The NTA charged that the petitioner was removable due to his conviction for carrying a firearm without a license, see 8 U.S.C. § 1227(a)(2)(C); 18 U.S.C. § 921(a), and directed him to appear at the Boston immigration court (where DHS had filed the NTA).
The petitioner participated in a number of virtual hearings between July of 2020 and April of 2022. No single immigration judge (IJ) presided over these hearings but, rather, three different IJs presided at various times. The first two IJs were physically present in Boston, but the third IJ was physically located in Fort Worth, Texas. At all relevant times, the petitioner - who was detained - was physically present in Massachusetts.
In the course of these proceedings, the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the CAT. The petitioner also applied for adjustment of status and cancellation of removal but later withdrew those applications.
The Fort Worth IJ held a hearing on the merits of the petitioner's claims for relief on April 13, 2022. The petitioner, still in Massachusetts, participated virtually, as did the lawyers. The IJ ruled that the petitioner's 2016 conviction for assault and battery with a dangerous weapon was a "particularly serious crime" that rendered the petitioner ineligible for asylum and withholding of removal. See 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). This left the petitioner's claim for deferral of removal under the CAT. See 8 C.F.R. § 1208.17(a).
In support of his remaining claim, the petitioner presented evidence of current country conditions and historical political turmoil, his own affidavit, letters from his parents and his sister, and testimony from his father, his sister, and himself.[1] He argued that, if removed to Haiti, he would be tortured based on his family's involvement in the 1980s with Lavalas (a political party whose supporters were at one time targets of political violence).
In a bench decision, the IJ denied the petitioner's application for deferral of removal under the CAT. The IJ found the witnesses to be generally credible but concluded that the petitioner had not carried his burden of showing that he would more likely than not be tortured if returned to Haiti. Even accepting as true that the petitioner's father had been involved in the Lavalas party in the 1980s and that supporters of that party were persecuted then, the IJ reasoned that the witnesses had not sufficiently connected those historical facts to a present risk of future harm. Nor had the witnesses explained why the dangers that the petitioner's father had faced would redound to the petitioner's detriment some three decades later. For one thing, the testimony from the petitioner and his sister about potential harm was comprised primarily of secondhand information, insupportable inferences, and undue speculation. For another thing, the other evidence showed no more than widespread political turbulence, which failed to demonstrate that the petitioner would be specifically targeted upon his return. The IJ thus concluded that the petitioner's claim that he would likely be tortured was too "speculative," denied his CAT application, and ordered him removed to Haiti.
The petitioner appealed the IJ's decision to the Board of Immigration Appeals (BIA). On September 9, 2022, the BIA adopted the IJ's findings and dismissed the appeal in a written decision. This timely petition for judicial review ensued.
Before reaching the merits of the petitioner's CAT claim, an antecedent question looms. A petition for review of a final order of removal must be "filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." 8 U.S.C. § 1252(b)(2). In an era in which many removal hearings are conducted virtually, more than one judicial circuit may stake a plausible claim to venue. Consequently, the question as to where the IJ "completed the proceedings" may be freighted with uncertainty.
Such a question lurked in the penumbra of this case. On the one hand, the IJ who presided over the petitioner's merits hearing was physically located in Fort Worth, Texas. On the other hand, Boston, Massachusetts, was the designated hearing location and both the decision of the immigration court and its order of removal were filed and docketed there. Texas is within the jurisdiction of the Fifth Circuit whereas Massachusetts is within the jurisdiction of the First Circuit. Arguably, then, either of those circuits may be the circuit in which the IJ completed the proceedings.[2] Compare Herrera-Alcala v Garland, 39 F.4th 233, 241-43 (4th Cir. 2022) with Sarr v. Garland, 50 F.4th 326, 331-33 (2d Cir. 2022).
To avoid uncertainty, we issued an order to show cause why the case should not be transferred to the Fifth Circuit. After responses were received, we reserved the resolution of the venue question to the merits panel. We have had the benefit of helpful briefing on this question by both the parties and the amici. We address the question now.
Because the mechanics of removal proceedings are central to resolving the question of venue, a brief description of the process helps to set the stage. Removal proceedings are commenced when DHS serves a noncitizen with a charging document (typically an NTA) and files that document with an administrative control immigration court. See 8 C.F.R. §§ 1003.14(a), 1003.31(f). The administrative control court is one that "creates and maintains [r]ecords of [p]roceedings" for immigration courts or hearing locations within a given geographic area with the result that all documents related to a particular case heard in those immigration courts or hearing locations must be filed in that administrative control court. Id. § 1003.11; see id. § 1003.31(f).
Many administrative control courts are situated in the same place as the courts and hearing locations whose records they are assigned to maintain. For instance, the administrative control court for the Boston immigration court and most Massachusetts detention centers is situated in Boston. But an administrative control court's assigned area may include courts or hearing locations in other places, in which event all records (including the charging document) would properly be filed in one place even though the hearing location is in another place. See 8 C.F.R. § 1003.11; see, e.g., Sarr, 50 F.4th at 329-30 ().
An NTA ordinarily includes a designated hearing location. See 8 C.F.R. § 1003.18(b). At the outset of the removal proceedings, the noncitizen attends a master calendar hearing, see, e.g., id. § 1240.17(b), (f)(1), either personally or virtually. That master calendar hearing is followed by an individualized merits hearing at which both DHS and the noncitizen may present evidence on contested matters (including applications for relief from removal). See, e.g., id. § 1240.17(f)(1),(4).
Flexibility is the watchword: hearings may be conducted in person,...
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