Jeune v. U.S. Attorney Gen.

• Decision Date: 08 January 2016
• Docket Number: No. 13–11683.,13–11683.
• Citation: 810 F.3d 792
• Parties: Yasmick JEUNE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

810 F.3d 792

Yasmick JEUNE, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 13–11683.

United States Court of Appeals, Eleventh Circuit.

Jan. 8, 2016.

Romy Louise Lerner, Rebecca Sharpless, Lindsay Adkin, University of Miami School of Law, Coral Gables, FL, for Petitioner.

Drew Brinkman, Joanna L. Watson, Ernesto Horacio Molina, Jr., Krystal Samuels, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Georgina M. Picos, Ice Field Office Director Krome SPC, Michelle Ressler, District Counsel's Office USICE, Miami, FL, for Respondent.

Before WILLIAM PRYOR, JULIE CARNES, and SILER,^* Circuit Judges.

JULIE CARNES, Circuit Judge:

Petitioner Yasmick Jeune,¹ a native and citizen of Haiti, seeks review of an order by the Board of Immigration Appeals ("BIA") affirming an immigration judge's denial of Petitioner's request that he not be removed from this country. The Department of Homeland Security ("DHS") had sought to remove Petitioner after the latter's convictions for two criminal offenses. Before the immigration judge, Petitioner contended that, because he is a homosexual, he had been persecuted in the past while living in Haiti and, if returned, he would be persecuted again. The immigration judge concluded that Petitioner had failed to prove either of those assertions. In its review of Petitioner's appeal of that ruling, the BIA concurred with that decision.

Now Petitioner appeals to our Court the denial of his application for withholding of removal. But he has shifted from his previous reliance on his homosexuality as the sole basis for his claims of past and future persecution, and now also focuses on his present assertion that he is a transgender individual. He faces obstacles, both as to our jurisdiction to review his claims and as to the merits of those claims. As to the jurisdictional obstacles, we lack jurisdiction to review claims by an alien that the latter has failed to exhaust or preserve. Because Petitioner did not assert before the BIA arguments he now makes challenging the immigration judge's finding of no past persecution, he has failed to exhaust that claim, and we have no jurisdiction to consider it.

As to the rejection by the BIA and immigration judge (collectively, "the agency") of Petitioner's claim that he would be persecuted if returned to Haiti, Petitioner's status as a criminal alien deprives us of jurisdiction to consider whether he produced sufficient evidence to prove the likelihood of future persecution. Instead, our review is limited to the question whether the agency committed a legal error in its approach to this question and, in particular, whether the latter gave "reasoned consideration" to the applicant's claims. After careful review, and with the benefit of oral argument, we conclude that the agency committed no legal error and that its consideration of Petitioner's claims was reasoned. For the above reasons, we dismiss the petition for review as to Petitioner's claim of past persecution and deny as to his claim of future persecution.

I. BACKGROUND

A. Initiation of Removal Proceedings

In October 2004, Petitioner was paroled into the United States for the purpose of filing an adjustment of status application as a dependent under the Haitian Responsibility and Immigration Fairness Act. His status was subsequently adjusted to that of a lawful permanent resident in January 2006.

In March 2009, Petitioner was convicted in a Florida state court for possessing cocaine. Then, in March 2012, he was again convicted in Florida for carrying a concealed firearm. Shortly after this second conviction, DHS charged that Petitioner was removable for being an alien convicted of a firearms offense, pursuant to 8 U.S.C. § 1227(a)(2)(C), and for being an alien convicted of a controlled substance offense, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). DHS served Petitioner with a notice to appear on these charges.

Petitioner appeared before an immigration judge and conceded that he was removable based on these convictions. But in an effort to be allowed to remain in this country, he applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT"), which are potentially available to an applicant who can show that he has been or will be persecuted in his native country based on the applicant's membership in a particular social group. Petitioner indicated that, as a homosexual, he was a member of a particular social group and therefore entitled to pursue the above relief.

B. Merits Hearing on Withholding of Removal Application

The immigration judge conducted a hearing on Petitioner's application at which Petitioner appeared as the only witness. Twenty-four years old at the time of the hearing, Petitioner testified that he had been in the United States since he was sixteen. As to the sexual orientation on which he based his request for withholding of removal,² Petitioner testified that he had been aware he was gay since he was six or seven years old. In describing the hostile treatment he had received as a result of his sexual orientation, he noted that an uncle had once beaten him with a stick and threatened to shoot him, so unhappy was the uncle at having a gay nephew. Also, kids at his school had beaten him up, and he testified about one particular instance that occurred when, as an 11 or 12–year old, he was walking to school and another child called him a "faggot" and threatened to kill him. When Petitioner tried to run away, other children standing around hit him with a "plastic thing" and grabbed his backpack, which caused him to fall down. After he fell, the kids jumped on him and beat him up. When Petitioner told his teacher about this incident, the teacher told him that such things would continue to happen unless he changed.

On another occasion, Petitioner was walking home from buying groceries and passed by a group of people. One of the men in the group called Petitioner a "faggot" and said that the next time Petitioner passed by, he would "be missing." A woman then threw a rock that hit Petitioner in the face, and Petitioner ran away, at which point a man in the group had his dog chase Petitioner. The dog stopped after Petitioner fell down and started screaming.

C. Immigration Judge's Decision

After considering the evidence, the immigration judge denied Petitioner's application and ordered him removed to Haiti. The judge did not question Petitioner's veracity, but he nevertheless determined that the cumulative effect of the described conduct of Petitioner's family, neighbors, and community members constituted only harassment and discrimination, and simply did not rise to the level of severity necessary to support a conclusion that Petitioner had been persecuted while living in Haiti. Indeed, the immigration judge noted that Petitioner had encountered similar discrimination while in the United States, and had even resorted to carrying a gun to protect himself.

As to the background materials concerning conditions in Haiti, the immigration judge indicated that he had reviewed all of the pertinent background materials introduced into evidence. Summarizing them, the judge noted that same-sex conduct had been legal in Haiti since 1986. Further, there were no confirmed reports of official discrimination against the lesbian, gay, bisexual, and transgender ("LGBT") community, albeit such individuals faced "widespread societal discrimination including social stigma and targeted physical violence, sexual assault, and employment insecurity." The materials also suggested that there were certain areas in Haiti with no instances of harassing conduct toward gay people. In particular, rural provinces are more tolerant of the gay community, and some men have been able to live openly as couples in one province. Thus, the immigration judge found that there were certain areas of Haiti in which Petitioner could live without fear of harassment based on his sexual orientation. In short, the immigration judge concluded that Petitioner had failed to meet his burden of showing either past or future persecution based on his sexual orientation.

D. Petitioner's Appeal to the BIA

Petitioner filed a notice of appeal to the BIA in which he stated that the immigration judge erred in denying his application for relief. The notice asserted that, if returned to Haiti, Petitioner would suffer persecution sufficient to meet the definition of torture and also that he was "a gay man who suffered past persecution in Haiti."

In the brief filed in support of that appeal, Petitioner asserted that "being a gay man, one who also dresses as a woman," he had met his burden of proving the likelihood of future persecution if returned to Haiti. In challenging the immigration judge's finding that Petitioner faced only discrimination—not persecution—Petitioner argued that the immigration judge had misinterpreted the evidence in the record and had only considered "favorable evidence in the written record as to country conditions for homosexuals and transvestites." Petitioner further argued that the immigration judge's finding that he could live safely in certain neighborhoods in Haiti was "too restrictive an interpretation of internal resettlement."

E. BIA Decision

The BIA affirmed the immigration judge's denial of withholding of removal. As to the claim of past persecution, it noted that Petitioner had failed to state any legal or factual basis in his brief for the assertion made in his notice of appeal that he had suffered past persecution. In any event, the BIA concluded that any harassment Petitioner had suffered in Haiti in the past did not amount to persecution.

The BIA further agreed with the immigration judge that Petitioner had not met his burden of showing it was more likely than not that he would be persecuted in Haiti. Specifically, the evidence reflected that same-sex sexual activity between consenting adults had been legal since 1986, albeit homosexuality and transgenderism remained...