Francois v. Ashcroft, 04-CV-1961 (WJM).
| Decision Date | 01 November 2004 |
| Docket Number | No. 04-CV-1961 (WJM).,04-CV-1961 (WJM). |
| Citation | 343 F.Supp.2d 327 |
| Parties | Kesner FRANCOIS, A36-470-712, Petitioner, v. John ASHCROFT, et al., Respondents. |
| Court | U.S. District Court — District of New Jersey |
Regis Fernandez, Newark, NJ, for Petitioner.
Neil R. Gallagher, Assistant U.S. Attorney, Newark, NJ, for Respondents.
Petitioner Kesner Francois filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 seeking a declaration that his removal should be deferred under Article 3 of the United Nations Convention Against Torture ("CAT"). For the reasons stated below, the Court denies the petition for writ of habeas corpus.
Kesner Francois is a native and citizen of Haiti. On March 8, 1979, he was admitted as a lawful permanent resident to the United States. In 2003, petitioner visited Haiti three times. It was not until August 19, 2003, when he returned from his third trip, that an immigration inspector realized that Francois had a criminal record. Francois had been convicted on May 8, 1992 for possession of a controlled substance in violation of New Jersey Penal Code 2C:35-10(a)(1). He had also been convicted on October 29, 1997 for aggravated assault in the second degree in violation of New Jersey Penal Code 2C:12-1B(1), which led to a six year sentence in prison.
After his criminal record came to light, Francois was immediately placed in removal proceedings. That day, a Notice to Appear issued, charging Francois with inadmissibility pursuant to §§ 212(a)(2)(A)(i)(II) and 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act ("INA").1 During the removal proceedings, Francois conceded that he was removable as charged. Petitioner sought asylum or withholding of removal, but both requests were denied by the presiding Immigration Judge ("IJ").
Petitioner also sought to defer removal to Haiti under Article 3 of the CAT, arguing that if removed to Haiti, he will be indefinitely imprisoned and subjected to torture. Petitioner, not having been imprisoned in Haiti, nor knowing anyone that had been, relied on official and unofficial reports describing the conditions faced by criminal deportees and Haitian prisoners to support his case. These reports were the U.S. State Department's Country Report on Human Rights Practices — Haiti 2002 ("2002 Country Report"), the Human Rights Watch's World Report 2003 — Haiti ("World Report 2003") and the INS Resource Information Center's Haiti: Information on Conditions in Haitian Prisons and Treatment of Criminal Deportees ("Conditions in Haitian Prisons"). The essential elements of the reports are summarized as follows:
Criminal deportees who are removed to Haiti are routinely imprisoned. The Haitian authorities do this as a preventive measure to prevent returning criminals from further exacerbating the country's already high levels of crime. U.S. criminal deportees are incarcerated in the National Penitentiary with the general prison population. They are held indefinitely, with one exception.2 If the deportee has a close family member who is willing to claim responsibility, then the deportee may be released approximately three months after incarceration. However, this exception is narrow. The INS Information Resource Center reports that:
Criminal deportees are released from the National Penitentiary after a close family member presents proof of identification as well as proof of relationship to the deportee and must swear in writing that they will take responsibility for the deportee upon release and further, that they agree that in the event that the deportee is alleged to commit a crime, and is not apprehended, the responsible person will be subject to arrest until such a time that the deportee is apprehended. In 2001, 4-5 families have been subjected to arrest, with one family member imprisoned for three months until the police were able to arrest the deportee. This deters some families from coming forward or following through with the process for releasing their loved ones from detention when first deported to Haiti.
Conditions in Haitian Prisons at 4. In addition, not just any family member can claim responsibility for the deportee. Often times, authorities require that a close relative, such as a mother, come forward. In short, detention of a criminal deportee can last anywhere from a short duration to an indefinite duration.
The conditions of Haitian prisons are atrocious. Although the prison population of the National Penitentiary was reduced to 1,700 prisoners in 2002,3 it remains overcrowded with extremely poor and antiquated facilities. Despite recent improvements in prison administration, 2002 Country Report at 6. Many prisoners also suffered from diseases, including "preventable diseases such as beriberi, AIDS, and tuberculosis." Id. Human rights groups, such as the International Committee of the Red Cross and the Haitian Red Cross, were freely permitted to enter prisons and "monitor conditions, and assist prisoners and detainees with medical care, food, and legal aid." Id. at 7.
In addition to suffering under those abysmal conditions, prisoners are also grossly mistreated by prison officials. In its 2001 report, the State Department set forth the following detailed description of mistreatment:
Police mistreatment of suspects at both the time of arrest and during detention remains pervasive in all parts of the country. Beating with fists, sticks, and belts is by far the most common form of abuse. However, international organizations documented other forms of mistreatment, such as burning with cigarettes, choking, hooding, and kalot marassa (severe boxing of the ears which can result in eardrum damage). Those who reported such abuse often had visible injuries consistent with the alleged maltreatment. There were also isolated allegations of torture by electric shock. Mistreatment also takes the form of withholding medical treatment from injured jail inmates. Police almost never are prosecuted for the abuse of detainees.
Conditions in Haitian Prisons at 2 (quoting U.S. State Department's Country Report on Human Rights Practices — Haiti 2001 ("2001 Country Report")).
Petitioner relied on these reports to argue before the IJ that if removed to Haiti and detained, he would be subjected to these appalling conditions, forcing him to endure severe pain and suffering. In other words, he argued that he would be tortured if not granted relief under CAT.
On November 4, 2003, after a full hearing and after reviewing this evidence, the IJ granted petitioner deferral of removal under CAT. Since the parties had stipulated that petitioner would likely be detained by the authorities if deported, the IJ's analysis focused on whether it was more likely than not that Francois would be tortured while detained. In her opinion, the IJ recognized that torture was "a lot more than food deprivation or being crowded in a cell." (IJ Op. at 4). Rather, as she noted, it "has to be very severe either physical or mental cruelty and harm that is calculated to harm one on account of some aspect of that person or calculated to harm the respondent in order to harm others." (Id.). The IJ then went on to discuss the facts of this case and how they were similar to those discussed in Matter of J-E-, 23 I. & N. Dec. 291, 2002 WL 481156 (BIA 2002) (en banc), a case in which the Board of Immigration Appeals ("BIA") held that the criminal alien had not demonstrated that he would more likely than not be tortured if incarcerated in a Haitian prison.
Ultimately, the IJ found that this case differed from Matter of J-E- for two reasons. First, the Third Circuit in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.2003) allegedly expressed concern that the BIA in Matter of J-E- found only isolated instances of torture supporting the deportee's claim for relief. Second, even though she had found this case to be factually similar to Matter of J-E-, the IJ broke from that binding precedent and found that petitioner had shown more than isolated instances of torture; indeed, she found that petitioner had submitted evidence of systematic and large-scale abuse that rose to the level of torture. Based on those conclusions, the IJ found that this case warranted deferral of removal under CAT.
The Department of Homeland Security ("DHS," formerly known as the Immigration and Naturalization Service) appealed to the BIA. The DHS argued on appeal that petitioner had failed to show that he will more likely than not be tortured if removed to Haiti, and therefore had not satisfied his burden under CAT. On April 8, 2004, the BIA agreed with the DHS and reversed the IJ's decision. The BIA found that this case fell within the ambit of Matter of J-E-, i.e., indefinite detention, poor prison conditions, and harsh treatment while imprisoned does not constitute torture under CAT. The BIA also found Zubeda to be distinguishable on its facts because that case involved an alien that feared being raped upon return to the Democratic Republic of Congo, where incidents of gang rape, mutilation and mass murder were countrywide and systematic. (BIA Op. at 2).
This petition for writ of habeas corpus followed. On April 28, 2004, this Court stayed Francois' transfer outside the District of New Jersey pending resolution of this petition. Francois contends that there are two reasons why his petition for writ of habeas corpus should be granted: 1) the BIA erred when it reversed the IJ's decision by relying on Matter of J-E- when Matter of J-E- had been overruled by the Third Circuit's Zubeda decision; and 2) regardless of Matter of J-E-'s validity, the BIA erred because the record in this case, unlike the record in Matter of J-E-, demonstrates that criminal...
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