Elien v. Ashcroft

• Citation: 364 F.3d 392
• Decision Date: 16 April 2004
• Docket Number: No. 03-1335.,03-1335.
• Parties: Jean Prosper ELIEN, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

364 F.3d 392

Jean Prosper ELIEN, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.

No. 03-1335.

United States Court of Appeals, First Circuit.

Heard December 3, 2003.

Decided April 16, 2004.

COPYRIGHT MATERIAL OMITTED

Susan A. Roche, for petitioner.

Frances M. McLaughlin, Attorney, Office of Immigration Litigation, Peter D. Keisler, Assistant Attorney General, and Linda S. Wendtland, Assistant Director, were on brief, for respondent.

Before TORRUELLA and LIPEZ, Circuit Judges, and CYR, Senior Circuit Judge.

CYR, Senior Circuit Judge.

Jean Prosper Elien, a Haitian national and citizen, petitions for review of the Board of Immigration Appeal's (BIA) denial of his motion to reopen his deportation proceeding on account of changed conditions in Haiti. We affirm.

I BACKGROUND

Elien entered the United States in 1981, as a non-immigrant visitor, and remained beyond his authorized stay. Thirteen years later, in 1994, the Immigration and Naturalization Service (INS) finally commenced deportation proceedings against him. Elien proceeded to concede deportability, then sought suspension of deportation or voluntary departure. In August 1996, an immigration judge (IJ) denied both requests, and ordered Elien deported.¹ Elien appealed to the BIA.

In 2000, while the BIA appeal was pending, Haiti implemented a new policy, whereby it detained all repatriated Haitians who had incurred a criminal record while residing in the United States, based on the presumption that their exposure to American violence and crime predisposed them to recidivist criminal behavior upon their return to Haiti. The United States State Department and press reports suggest that Haitian authorities subject detainees to indefinite terms of imprisonment, inhumane prison conditions, and in some cases, torture.

In July 2001,² the BIA denied Elien's appeal from the deportation order issued by the IJ in 1996. Elien submitted a motion to reopen the deportation proceeding in order to adjudicate an application for asylum, withholding of deportation, and protection under the United Nations Convention Against Torture (CAT), claiming that Haiti would detain him indefinitely based upon his convictions for two "minor" criminal offenses committed while in the United States. In due course, the BIA denied the motion to reopen, and Elien now petitions for review.

II DISCUSSION

A. Asylum Application

Elien contends that the BIA has neither adequately explained its rationale for determining that he is not entitled to asylum under the Immigration and Naturalization Act (INA), nor cited to substantial record evidence supporting its decision. Under the INA the term "refugee" is defined as a person unable or unwilling to return to the country of nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Before the BIA, Elien contended that (i) he is a member of a "particular social group," consisting of deported Haitian nationals with criminal records in the United States; and (2) undisputed evidence — such as State Department reports — establishes that his membership in that "particular social group" will render him subject to "persecution," viz., indefinite detainment, inhumane prison conditions, and torture.

Since motions to reopen deportation proceedings are strongly disfavored, see Mabikas v. INS, 358 F.3d 145, 148 (1st Cir.2004), we review the BIA's denial of such a motion only for an abuse of discretion, id., and the movant bears the burden to prove an entitlement to asylum, 8 C.F.R. § 208.13. The BIA tersely rejected the asylum claim filed by Elien:

To support his motion, [Elien], through counsel, makes the interesting but unavailing argument that his extensive and serious criminal history during his presence in the United States has now rendered him a "refugee" within the meaning of the [INA] and, because of the many crimes he has committed in this country, he faces persecution in his native Haiti. In other words, by repeatedly flouting the criminal laws of this country, [Elien] allegedly now warrants relief from deportation under the immigration laws of this country. However, the evidence submitted with the motion does not, in our view [,] demonstrate that [Elien] faces the likelihood of persecution on account of his race, nationality, religion, political opinion, or membership in a particular social group.

Elien maintains that the BIA's treatment of his claim violates due process, principally because its final sentence does not specify which element of the "refugee" definition in subsection 1101(a)(42)(A) he failed to establish — viz., his membership in a protected class or a well-founded fear of persecution. A BIA decision need not be encyclopedic, however, and normally will satisfy the dictates of due process provided its essential rationale and factual findings are clear enough to enable meaningful appellate review. See, e.g., Morales v. INS, 208 F.3d 323, 328 (1st Cir.2000). Such is the case here. Characterizing Elien's argument as "unavailing," the BIA explicitly stated that its recognition of a "social group" consisting of deported Haitian nationals with criminal records in the United States would serve to encourage and reward aliens who committed crimes while in the United States, thus immunizing them from deportation. Elien has posited no other conceivable connotation for the language employed by the BIA.

Next, we turn to the merits of the contention that the INA recognizes deported Haitian nationals with criminal records in the United States as a protected "social group" eligible for asylum. As the scope of the statutory term "particular social group" presents a pure issue of law, we review the BIA decision de novo. See Meguenine v. INS, 139 F.3d 25, 27 n. 2 (1st Cir.1998). The INA does not define the term "particular social group," however, nor is the term free from ambiguity. See Lwin v. INS, 144 F.3d 505, 510 (7th Cir.1998) (noting that "the meaning of `social group' remains elusive"). Presumably, the term refers to "a[ny] group with some immutable trait (such as an ethnic group) or a mutable trait which a member of that group should not, in good conscience, be required to change (such as a religious adherent's beliefs)," Meguenine, 139 F.3d at 27 n. 2; see also In Matter of Acosta, 19 I. & N. Dec. 211, 233, 1985 WL 56042 (BIA 1985) (noting that examples of common, immutable characteristics may include sex, race, kinship, and past experiences such as former military service or land ownership). Yet, even this judicial gloss leaves ample room for case-by-case definition. Elien nonetheless maintains that the class of repatriated criminals with which he identifies himself has two immutable characteristics: its members have permanent criminal records in the United States, and the Haitian government thus perceives them as likely recidivists.

As immigration law frequently implicates some expertise in matters of foreign policy, BIA interpretations of the statutes and regulations it administers are accorded substantial deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ("[J]udicial deference to the Executive Branch is especially appropriate in the immigration context where officials `exercise especially sensitive political functions that implicate questions of foreign relations.'") (citation omitted). "The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974).³

When a statute is silent or ambiguous, therefore, we uphold the implementing agency's statutory interpretation, provided it is "reasonable" and consistent with the statute. See Urena-Ramirez v. Ashcroft, 341 F.3d 51, 54 n. 3 (1st Cir.2003) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir.1999) (noting that agency rationale need only be reasonable, logical, and nonarbitrary); see also Capric v. Ashcroft, 355 F.3d 1075, 1086 n. 4 (7th Cir.2004). Accordingly, we are to defer to the interpretation given the term "social group" by the BIA even if we conclude that the term is susceptible to more than one permissible interpretation. See Mugalli v. Ashcroft, 258 F.3d 52, 55 (2d Cir.2001).

The BIA determined that, whether or not Haitians who commit crimes in the United States are subjected to "persecution" upon repatriation, it would be unsound policy to recognize them as a "social group" safeguarded by the asylum statute. See Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir.1992) (rejecting comparable argument that "drug traffickers" were protected "social group" under INA, precluding their deportation to Iran).⁴ Such recognition unquestionably would create a perverse incentive for Haitians coming to or residing in the United States to commit crimes, thereby immunizing themselves from deportation to Haiti. Moreover, the BIA has never extended the term "social group" to encompass persons who voluntarily engaged in illicit activities. Cf. In Matter of Acosta, 19 I. & N. Dec. at 233 (noting that examples of common, immutable characteristics may include sex, race, kinship, and past experiences such as former military service or land ownership). Finally, as the BIA has held, although some of Haiti's detention practices may violate detainee rights, in general "Haiti has a legitimate national interest in protecting its citizens from increased criminal activity." In re J-E-, 23 I. & N. Dec. 291, 300, 2002 WL 481156 (BIA 2002). Accordingly, we cannot conclude that the choice the BIA has made between these competing policies is either unreasonable or...