Cadet v. Bulger, No. 03-14565.
| Citation | 377 F.3d 1173 |
| Decision Date | 20 July 2004 |
| Docket Number | No. 03-14565. |
| Parties | Jean Neckson CADET, Petitioner-Appellant, v. John M. BULGER, Acting Director, Immigration and Naturalization Service, Michael Garcia, Acting Commissioner, Immigration and Naturalization Service, United States Attorney General, John Ashcroft, United States Department of Immigration and Naturalization Service, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Daniel H. Bromberg, Joseph Rogers Derbis, Jones, Day, Reavis & Pogue, Washington, DC, for Petitioner-Appellant.
Anthony P. Nicastro, David V. Bernal, Washington, DC, Anne R. Schultz, Asst. U.S. Atty., Dexter A. Lee, Laura Thomas Rivero, Miami, FL, for Respondents-Appellees.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, HULL and PRYOR, Circuit Judges.
Jean Neckson Cadet, a Haitian national convicted of a firearm and two robbery offenses in the United States, appeals the denial of his habeas petition, brought pursuant to 28 U.S.C. § 2241. Cadet argues that the BIA's order removing him to Haiti violates the Convention Against Torture ("CAT") and the Eighth Amendment. After review, we conclude that § 2241 habeas jurisdiction remains available to Cadet but that the district court properly denied his § 2241 petition.
In 1991, at age 18, Cadet fled Haiti and illegally entered the United States.1 In January 2001, Cadet was convicted of robbery and carrying a concealed firearm in Florida state court. Cadet was sentenced to concurrent terms of ten and five years' imprisonment, respectively. In February 2001, Cadet was convicted of the separate offense of robbery with a firearm and sentenced to another concurrent ten-year prison sentence.
In March 2001, the Immigration and Naturalization Service ("INS") served Cadet with a notice to appear, charging that he was removable as an alien convicted of two or more criminal offenses with aggregate sentences imposed of five years or more, and as an alien present in the United States without having been admitted or paroled.
Before the Immigration Judge ("IJ"), Cadet, pro se, argued that he was entitled to relief under CAT and that he should not be returned to Haiti. According to Cadet, passengers died on his father's boat in Haiti, the passengers' families had killed his father, and they would target Cadet if he returned to Haiti.
In addressing Cadet's claim that deceased passengers' families would target and torture Cadet, the IJ determined in a July 24, 2001, order that Cadet had not offered evidence showing that the family members were government officials or that the Haitian government would acquiesce in or consent to his torture. The IJ also noted that it "has carefully reviewed the INS's filing of country condition evidence ... and finds no objective evidence to support the respondent's subjective view that his perceived problems if returned might amount to torture under the Convention Against Torture." The IJ concluded that Cadet was not entitled to CAT relief based on allegations that he would be tortured by the families of dead passengers.
The IJ sua sponte raised the issue of indefinite detention in Haitian prisons. The IJ reviewed the INS's evidence regarding Haiti, including the State Department's 2000 Country Report and a letter from William Dilday, the director of the Office of Country Reports and Asylum Affairs. The IJ noted that both the 2000 Country Report and the Dilday letter indicated that Haiti has a policy of mandatorily detaining returned criminal deportees. Regarding this detention policy, the IJ concluded that, while it may not agree with the Haitian government's policy, "the Court cannot find that this is anything but a lawful government sanction imposed by the Haitian government in an effort to protect its citizens...." The IJ further noted that release mechanisms existed in Haiti and, accordingly, that Cadet's detention upon returning to Haiti would not be indefinite but temporary. The IJ concluded that the prospect of Cadet's detention upon returning to Haiti did not constitute torture within the meaning of CAT.2 Cadet, through counsel, appealed to the Board of Immigration Appeals ("BIA").
On appeal, the BIA reviewed the same evidence submitted to the IJ. With respect to the Haitian prison conditions, the BIA determined that Cadet "faces a likelihood of imprisonment upon return to his country," but concluded that, because Cadet's likely detention would be only temporary and could reasonably be motivated by concerns for immigration control and public safety, Haiti's "indefinite detention of criminal deportees by itself is not torture." The BIA further noted that "[a]ccording to the State Department, a commission in Haiti has been developed to review each case of an alien deported to Haiti to determine when to release a criminal deportee." The BIA acknowledged, however, that "[t]he State Department indicated that the commission does not meet on a regular basis, and therefore many deportees must wait weeks in police holding cells before being released."
The BIA also determined that although "prison conditions in Haiti are poor," the poor conditions are universal, not directed at criminal deportees, and insufficient to show the Haitian government acquiesces in "torture" as defined by the regulations under CAT. The BIA concluded that Cadet's "evidence fails to establish a prima facie case that [he] will more likely than not be subjected to treatment rising to the level of torture" if returned to Haiti. Specifically, the BIA explained:
While the treatment in prison may be harsh, these conditions are universal in Haitian prisons and are not directed at the returnees. Moreover, the detainees may be released upon review of their cases. There has been no evidence presented which makes a prima facie case that the respondent will more likely than not be intentionally subjected to torture. We are not convinced that the possibility that the respondent may suffer under these poor prison conditions is sufficient to substantiate a finding that the Haitian government acquiesces in the "torture" of criminal deportees who are detained, as that term is defined by regulation.
Consequently, on January 18, 2002, the BIA dismissed Cadet's appeal.
Although Cadet filed a petition for review with this Court, this Court entered a May 22, 2002, order dismissing his appeal "for want of prosecution because [Cadet] [ ] failed to file the record excerpts within the time fixed by the rules." On June 19, 2002, this Court denied Cadet's motion to reinstate his appeal.
On January 17, 2003, Cadet filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Cadet's § 2241 petition challenged his final removal order denying his CAT claims. In his § 2241 petition, Cadet alleged (1) that, as a criminal deportee from the United States, Haiti would detain him indefinitely, (2) that the prison conditions lack basic hygiene, food, and medical care, and (3) that he would be beaten by prison authorities. Cadet claims that these factors constitute "torture" and entitle him to CAT relief. Cadet also argued that his removal to Haiti would violate the Eighth Amendment's prohibition of cruel and unusual punishment.
After referring Cadet's § 2241 petition to the magistrate judge for review, the district court adopted the magistrate judge's subsequent report recommending that Cadet's § 2241 petition be denied. Regarding Cadet's CAT claims, the district court agreed with the magistrate judge that it had authority to review only purely legal issues and lacked authority to review fact findings by the IJ and BIA at the administrative level. Both the district court and the magistrate judge considered the issue of whether the conditions and treatment in Haitian prisons constitute CAT-prohibited "torture" as a fact question already determined by the IJ and BIA at the administrative level and beyond the scope of habeas review. The magistrate judge's report noted that although Cadet styles his claims as "a matter of law," Cadet's argument is actually more a factual one to the effect that the treatment of deportees in Haitian prisons rises to the level of severe pain and suffering necessary to constitute torture.
Considering Cadet's claims beyond habeas review, the magistrate judge and the district court adopted the IJ's and BIA's fact findings that the Haitian prison conditions do not rise to the level of torture and that Cadet had failed to carry his burden to show that he more likely than not would be tortured if returned to Haiti. Specifically, the district court adopted the magistrate judge's report, which determined as follows:
Citing to reports issued by the State Department as well as newspaper articles and other anecdotal evidence, petitioner [Cadet] asserted that Haitian prisons are "death-traps," insofar as the conditions are deficient in hygiene, health care, food and water, and would result in his torture because he would be held indefinitely and would be beaten by prison officials. The BIA found petitioner's newly raised argument unavailing, finding that the prison conditions do not rise to torture under the CAT because the "[prison] conditions are universal in Haitian prisons and are not directed at the returnees." The BIA also found that Haiti's motivations for the detention of criminal returnees "reasonably include immigration control and public safety." Accordingly, petitioner's appeal was dismissed....
... Though styled "a matter of law" by the petitioner, the petitioner centers his argument through the presentation of facts, culled from State Department reports, newspapers, and other anecdotal evidence. This same argument, though not raised by petitioner, was considered by the IJ in the petitioner's initial...
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