Francois v. Gonzales, 04-4523.

• Decision Date: 19 May 2006
• Docket Number: No. 04-4523.,04-4523.
• Citation: 448 F.3d 645
• Parties: Kesner FRANCOIS, Appellant v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General; Michael Chertoff,<SMALL><SUP>*</SUP></SMALL> Department of Homeland Security, Bureau of Immigration & Customs Enforcement; Michael J. Garcia, Associate Secretary of the Department of Homeland Security, Bureau of Immigration & Customs Enforcement; John Torres, District Director, Department of Homeland Security-Bureau of Immigration & Customs Enforcement; Michael Abode, Warden, Middlesex County Jail, North Brunswick, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

448 F.3d 645

Kesner FRANCOIS, Appellant v. Alberto GONZALES,^* Attorney General; Michael Chertoff,^* Department of Homeland Security, Bureau of Immigration & Customs Enforcement; Michael J. Garcia, Associate Secretary of the Department of Homeland Security, Bureau of Immigration & Customs Enforcement; John Torres, District Director, Department of Homeland Security-Bureau of Immigration & Customs Enforcement; Michael Abode, Warden, Middlesex County Jail, North Brunswick, New Jersey.

No. 04-4523.

United States Court of Appeals, Third Circuit.

Argued February 2, 2006.

Filed May 19, 2006.

Regis Fernandez, (Argued), Newark, NJ, for Appellant.

Christopher J. Christie, United States Attorney, District of New Jersey, Neil R. Gallagher, Assistant United States Attorney, Rudolph A. Filko, (Argued), Assistant United States Attorney, Newark, NJ, for Appellees.

Before McKEE, SMITH and VAN ANTWERPEN, Circuit Judges.

McKEE, Circuit Judge.

Kesner Francois appeals the district court's denial of the petition for a writ of habeas corpus that he filed pursuant to 28 U.S.C. § 2241, seeking relief from removal based upon alleged violations of the Convention Against Torture ("CAT"). For the reasons that follow, we will convert Francois' habeas petition into a petition for review, and deny his petition.

I. FACTS AND PROCEDURAL HISTORY

Francois, a native and citizen of Haiti, was admitted to the United States as a lawful permanent resident on March 8, 1979. On May 8, 1992, Francois was convicted of possession of a controlled substance in state court. On October 29, 1997, he was convicted of aggravated assault in state court and sentenced to six years in prison.

Francois returned to Haiti three times in 2003. On August 10, 2003, Francois arrived at JFK International Airport in New York City and sought admission to the United States as a returning resident. Entry was denied, and he was taken into the custody of the Bureau of Immigration and Customs Affairs ("ICE") because his criminal convictions made him inadmissible. He was eventually served with a Notice to Appear, charging him with being a removable alien under provisions of the Immigration and Nationality Act ("INA") based upon his criminal convictions in state court.

In the removal proceedings that followed, Francois conceded removability, but applied for asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture ("CAT"). In support of the latter claim, Francois alleged that, as a criminal deportee being returned to Haiti, he would be indefinitely imprisoned by Haitian authorities and tortured if returned. That allegation was supported by official and unofficial reports describing the conditions faced by criminal deportees and Haitian prisoners.¹ The immigration judge ("IJ") denied Francois' claim for asylum and withholding of removal, but granted relief under the CAT based upon the reported conditions in Haitian detention facilities. The Department of Homeland Security ("DHS") appealed the IJ's decision to the Board of Immigration Appeals, and the BIA reversed.

Francois thereafter filed a petition for habeas corpus in district court pursuant to 28 U.S.C. § 2241. The district court denied habeas relief concluding that Francois "failed to show more than isolated instances of torture occur in Haitian prisons." Francois v. Ashcroft, 343 F.Supp.2d 327, 337 (D.N.J.2004). This appeal followed.

II. EFFECT OF REAL ID ACT

District courts had jurisdiction over habeas petitions alleging violations of the CAT when Francois filed his habeas petition in 2004. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir.2003). Review was "confined to questions of constitutional law and statutory interpretation." Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir.2004). "[T]he broader species of review for substantial evidence and abuse of discretion typical of APA challenges" was "wholly out of bounds." Id. at 423. Accordingly, § 2241 habeas proceedings did "not embrace review of the exercise of discretion, or the sufficiency of the evidence." Id. at 420. Instead, the habeas court's jurisdiction was limited to "pure questions of law," and to "issues of application of law to fact, where the facts are undisputed and not the subject of challenge." Id. at 420.

However, "[t]his jurisdictional framework was radically overhauled . . . with the passage of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231." Kamara v. Att'y Gen. of the United States, 420 F.3d 202, 209 (3d Cir.2005). Section 106(a) of the REAL ID Act, the provision we are concerned with, amended 8 U.S.C. § 1252(a)(2) of the INA by eliminating the district courts' habeas corpus jurisdiction (28 U.S.C. §§ 2241, 1361 and 1651) over final orders of removal in nearly all cases. Consequently, a petition for review filed in the appropriate court of appeals "is [now] the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e) of this section." REAL ID Act § 106(a)(1)(B), 8 U.S.C. § 1252(a)(4). Section 106(a)(1)(A)(iii) of the REAL ID Act also amended 8 U.S.C. § 1252 by adding a new provision, § 1252(a)(2)(D), which states:

Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). With this amendment,

Congress evidenced its intent to restore judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders. This now permits all aliens, including criminal aliens, to obtain review of constitutional claims and questions of law upon filing of a petition for review with an appropriate court of appeals.

Kamara, 420 F.3d at 210 (quoting Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005)).

In explicitly making these amendments retroactive,² Congress provided that habeas petitions filed under § 2241, which were pending in the district courts as of May 11, 2005, shall be transferred to the court of appeals "for the circuit in which a petition for review could have been properly filed . . . [and treated] as if it had been filed pursuant to a petition for review," with an exception not relevant to our discussion. REAL ID Act § 106(c). Kamara, 420 F.3d at 210,

As we recognized in Kamara, the "REAL ID Act is silent as to the exact procedural posture which faces us here, i.e. an appeal from a district court's habeas decision that is now pending before the court of appeals." 420 F.3d at 210 (citing Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir.2005)). In Kamara, we affirmed Congress's intent "to provide aliens with one chance for judicial review in the court of appeals[.]" We therefore concluded that the appropriate way to treat a pending appeal from the district court's habeas petition, is to "vacate and disregard the [d]istrict [c]ourt's opinion and address the claims raised in [the] habeas petition as if they were presented before us in the first instance as a petition for review." 420 F.3d at 210 (citing Bonhometre, 414 F.3d at 445). Accordingly, we will consider Francois' claims as if they were first presented in a petition for review of the BIA's decision.

III. STANDARD OF REVIEW

Even though Francois' § 2241 habeas petition has been converted into a petition for review, our standard of review remains the same. "A review for `constitutional claims or questions of law,' as described in § 106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our previously enunciated standard of review over an alien's habeas petition." Kamara, 420 F.3d at 211. Accordingly, in examining Francois' claims, "we are limited to pure questions of law, and to issues of application of law to fact, where the facts are undisputed and not the subject of challenge." Id. (citations and internal quotations omitted). We review the "BIA's legal decisions de novo, but will afford Chevron deference to the BIA's reasonable interpretations of statutes which it is charged with administering." Id. (citations omitted).

IV. THE CONVENTION AGAINST TORTURE

On October 21, 1998, the President signed into law the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277, Div. G., 112 Stat. 2681-761, authorizing the implementation of Article 3 of the Convention Against Torture³ and requiring implementing regulations to be promulgated by the applicable agencies within 120 days. As directed, the Department of Justice, which then included the Immigration and Naturalization Service, promulgated regulations setting forth the procedures by which aliens could obtain relief under the CAT. See 64 Fed.Reg. 8478, codified at 8 C.F.R. §§ 208.16(c), 208.17 & 208.18(a).

8 C.F.R. § 208.18(a)(1), the regulatory definition of torture, mirrors the definition of torture contained in Article 1 of the CAT, which is then clarified by six additional provisions, several of which are relevant here:

(a)(1) Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

(a)(2) Torture is an extreme form of cruel and inhuman treatment and does not include...