Compere v. Nielsen

• Decision Date: 24 January 2019
• Docket Number: Case No. 18-cv-1036-PB
• Citation: 358 F.Supp.3d 170
• Parties: Patrice COMPERE v. Kirstjen M. NIELSEN, Secretary of Homeland Security, et al.
• Court: U.S. District Court — District of New Hampshire

358 F.Supp.3d 170

Patrice COMPERE

v.Kirstjen M. NIELSEN, Secretary of Homeland Security, et al.

Case No. 18-cv-1036-PB

United States District Court, D. New Hampshire.

Signed January 24, 2019

Gilles R. Bissonnette, Henry Klementowicz, SangYeob Kim, American Civil Liberties Union of New Hampshire, Concord, NH, Ragini Shah, Suffolk University of Law, Boston, MA, for Patrice Compere.

Michael T. McCormack, T. David Plourde, Terry L. Ollila, U.S. Attorney's Office, Concord, NH, for Kirstjen M. Nielsen, Secretary of Homeland Security, et al.

MEMORANDUM AND ORDER

Paul Barbadoro, United States District Judge

Patrice Compere, a Haitian national, is subject to an outstanding removal order. Although he has challenged the order by filing a motion to reopen his case with the Board of Immigration Appeals ("BIA"), the government plans to return him to Haiti without acting on his motion. Compere argues in a habeas corpus petition that the conditions he will face in Haiti if he is removed will make it impossible for him to litigate his motion. He therefore seeks a stay of the removal order to permit him to obtain a ruling on the motion from the BIA and, if necessary, to seek judicial review of any adverse ruling in the court of appeals.¹

The government has responded by arguing that I lack the power to interfere with its plan to execute the removal order because Congress has stripped district courts of their habeas corpus jurisdiction to consider challenges to removal orders. I reject this argument because the jurisdiction-stripping provisions on which the government relies cannot be used to deny Compere his right to habeas corpus relief without violating the Constitution's Suspension Clause. I also grant Compere the relief he seeks because removing him to Haiti before he can litigate his motion to reopen would violate his rights under federal law.

I. Background

A. Patrice Compere

Compere has lived in the United States since he was two. His grandmother, mother, and siblings are United States citizens. So are his two children, ages four and nine. Compere, however, is not. Born in Haiti in October, 1987, he left the country and entered the United States on humanitarian parole in August, 1989. He has not been back to Haiti since.²

Compere has had trouble with the law. He has drug convictions for possession to distribute a Class A substance (Heroin) in 2011, possession of a Class B substance (Suboxone ) in 2015, and possession of a Class B substance (Adderall-Amphetamine) in 2016. Doc. No. 7-3 at 2.³

B. Procedural history

Compere has been in detention since his arrest by Immigration and Customs ("ICE") officials on October 2, 2017.

The circumstances that led to his arrest are disquieting. See Transcript of Immigration Court Proceedings, Doc. No. 13-2 at 49-50. After serving his most recent criminal sentence, Compere asked his probation officer how to obtain a work authorization. The officer recommended that he contact ICE. Compere followed that advice and met with ICE Officer Hamel who told Compere to submit certain documents to ICE, such as his mother's naturalization certificate. Compere provided the documents Hamel was seeking but he did not hear from ICE again for two months. On October 2, 2017, Compere called Hamel and was informed that he would be required to attend a hearing before an immigration judge. Compere went to the Immigration Court in Boston and called Hamel again, who informed him that the hearing would not occur that day. Instead, he was arrested and taken into ICE custody, where he remains today.

ICE began removal proceedings against Compere by filing a Notice to Appear ("NTA") in the Boston Immigration Court on October 24, 2017.⁴ Compere did not challenge the government's contention that he was removable. Instead, he claimed that he was entitled to a deferral of removal under the Convention Against Torture ("CAT"). He based his CAT claim on his contention that he will be imprisoned and tortured by the Haitian government if he is removed to Haiti.

An immigration judge held two hearings in March of 2017 and ultimately concluded both that Compere was removable for the reasons cited in the NTA and that he was not entitled to a deferral of removal under the CAT. See Doc. No. 7-3 at 2, 15. Compere submitted that it is more likely than not that he will be incarcerated and tortured if returned to Haiti because he is a criminal deportee and his uncle is a prominent opposition political figure who ran for president of Haiti in 2015. See Doc. No. 7-3 at 13. The Immigration Court recognized that "grim prospects await Haitian criminal deportees." Doc. No. 7-3 at 13. It also noted that Compere does not have any close family relatives in Haiti and Marie Gabrielle Renois, Compere's aunt and the wife of a Haitian anti-corruption journalist and politician Clarens Renois, currently resides in Mali because she does not feel safe in Haiti. Doc. No. 7-3 at 14.

Nonetheless, the Court rejected Compere's CAT claim. It concluded that "prior Board of Immigration Appeals precedent has established that the conditions within Haitian prisons are generally insufficient to satisfy a respondent's burden for relief under the Convention Against Torture." Doc. No. 7-3 at 14 (citing Matter of J-E-, 23 I. & N. Dec. 291 (BIA 2002) ). The J-E- decision demonstrated, said the Court, that "there is no evidence that [Haitian authorities] are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture." Doc. No. 7-3 at 14 (citing J-E- at 301 ). The Immigration Judge also rejected Compere's argument that he would face a heightened risk due to his relationship to Clarens Renois, because Compere is a fairly distant relative and there is "considerable evidence that Mr. Renois's family has not been tortured." Doc. No. 7-3 at 15. Accordingly, the Immigration Court found that "it is not more likely than not that the respondent would be tortured by the government or with its acquiescence were he to be returned to Haiti." Doc. No. 7-3 at 15.

Compere appealed to the Board of Immigration Appeals ("BIA") and the BIA affirmed the Immigration Judge's denial of his application for deferral of removal. See Doc. No. 9-4. He then appealed to the First Circuit Court of Appeals on October 25, 2018, and moved for a stay of removal in that court the next day.

Compere argued in his motion for a stay that the BIA relied on the wrong precedent in rejecting his CAT claim. The Circuit ultimately denied Compere's motion on November 7, 2018, explaining that

[p]etitioner fails to adequately argue and show that he has a colorable legal or constitutional issue that surmounts the jurisdictional bar. See 8 U.S.C. § 1252(a)(2)(C) & (D). Moreover, insofar as his arguments might be construed as raising a colorable legal issue, he does not make a strong showing of likely success on the merits. See Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

Compere v. Sessions, No. 18-2058 (1st Cir. Nov. 7, 2018).⁵ Compere filed a motion to reconsider that order the next day. The Circuit denied Compere's motion on November 19, 2018. See Doc No. 9-6. Compere moved to dismiss his appeal on January 10, and the Circuit dismissed his petition on January 11, 2019. See Compere, No. 18-2058 (1st Cir. Jan. 11, 2019).

Compere filed a motion to reopen his case with the BIA November 8, 2018, the day after the Circuit denied his motion for a stay of removal. His motion asserts that he plans "to introduce newly obtained evidence, material to his claim of deferral of removal under the Convention against Torture, that was unavailable at the time of his hearing before the Boston Immigration Court." See Doc. No. 9-8 at 2. The next day, he moved the BIA to stay his removal on an emergency basis pending resolution of his motion to reopen. Doc. No. 9-9 at 2. The BIA denied that motion on December 27, 2018. See Doc. No. 18-2 at 2.⁶

Compere supports his motion to reopen with a new expert declaration by Dr. Chelsey L. Kivland, an Assistant Professor in the Department of Anthropology at Dartmouth College.⁷ See Doc. No. 9-14. Kivland asserts that Compere will likely face prolonged detention upon arrival in Haiti because he speaks very little French or Haitian Creole and because "Mr. Compere reports that he has no family in Haiti with whom he is in contact." Doc. No. 9-14 at 2. She submits that because Compere is a deportee with drug convictions, "he will likely be detained and interrogated about his drug crimes and drug-trafficking activities," which is "likely to lead to prolonged detention as he will be subject to additional processing and scrutiny." Doc. No. 9-14 at 2-3. Kivland also claims that, due to Compere's relationship with Renois, he "is likely to be detained ... as a political threat." Doc. No. 9-14 at 3. Even if he is not detained upon arrival, Kivland declares, he faces a heightened risk of imprisonment because police in Haiti unfairly target criminal deportees with drug convictions. Doc. No. 9-14 at 3.

Kivland avers that Haiti uses inhumane prison conditions as part of an intentional effort to punish and deter criminal behavior. Doc. No. 9-4 at 3. She contends that the "squalid conditions and cruel treatment [in Haitian prisons] do not simply reflect the weak infrastructure of a government that is under-resourced, but rather intentional decisions on the part of the Haitian government to under-fund this sector." Doc. No. 9-14 at 4 (citing Erin Mobekk, UN Peace Operations: Lessons from Haiti , 1994-2016 (2017) ). The poor conditions "are part of an intentional effort to instill in the public fear of prison," according to Kivland. Doc. No. 9-14 at 4. She quotes a police officer for the first circumscription of Port-au-Prince, whom she interviewed in March, 2018, saying that prison should produce a "kind of misery which makes the misery of poverty look like paradise." Doc. No. 9-14 at 4. "Such comments do not merely reflect the opinion of individuals," Kivland...