Oxygene v. Lynch

• Decision Date: 22 February 2016
• Docket Number: 15–1099.,Nos. 14–2380,s. 14–2380
• Citation: 813 F.3d 541
• Parties: Wilerms OXYGENE, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent. Wilerms Oxygene, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

813 F.3d 541

Wilerms OXYGENE, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

Wilerms Oxygene, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

Nos. 14–2380

15–1099.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2015.

Decided: Feb. 22, 2016.

ARGUED:Tamara L. Jezic, Yacub Law Offices, Woodbridge, Virginia, for Petitioner. Jeffery R. Leist, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Assistant Director, Gladys M. Steffens Guzman, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and KEENAN, Circuit Judges.

Petitions for review denied in part and dismissed in part by published opinion. Judge MOTZ

wrote the opinion, in which Judge KING and Judge KEENAN joined.

DIANA GRIBBON MOTZ

, Circuit Judge:

Wilerms Oxygene petitions for review of orders denying his application for deferral of removal under the Convention Against Torture ("CAT") and subsequent motion to reopen his removal proceedings. For the reasons that follow, the petition for review is denied in part and dismissed in part.

I.

In 1994, Oxygene, accompanied by his mother and siblings, fled political violence in his native country of Haiti. This violence included occasions when death squads fired on the family home while Oxygene and others were inside the house. Oxygene entered the United States as a refugee; in 1996 the United States granted him lawful permanent resident status.

Five years later, a Virginia court convicted Oxygene of several state crimes, including burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security ("DHS" or "the Government") commenced removal proceedings against him. Oxygene conceded that he was removable under various subsections of 8 U.S.C. § 1227(a)(2) (2012)

due to his convictions for aggravated felonies and firearm offenses, but applied for deferral of removal under the CAT.

At his removal hearing before an Immigration Judge ("IJ"), Oxygene testified to his family's past persecution in Haiti and his fear that, if removed, he would face indefinite detention in Haitian prisons. Oxygene also expressed fear that, if detained in Haiti, he would not receive the medical care necessary to prevent his latent tuberculosis

from becoming active. Oxygene and his sister testified that they had no remaining family members in Haiti who could provide support in the form of food, medicine, or payment for release from detention.

Oxygene submitted documentary evidence to substantiate his allegations of poor prison conditions in Haiti. The administrative record contains several State Department country reports for Haiti, a report from various non-governmental organizations submitted to the United Nations ("the 2011 NGO report"), and news articles and press releases concerning human rights abuses in the country. Together, these sources paint a bleak picture of what criminal deportees like Oxygene can expect upon removal to Haiti.

According to the State Department country reports, as early as 2000, Haiti began detaining criminal deportees "who [have] already served full sentences overseas ... for indefinite periods of time." The 2013 country report describes "detention center overcrowding" as "severe," explaining that "[i]n some prisons detainees slept in shifts due to lack of space" and that "[s]ome prisons had no beds for detainees, and some cells had no access to sunlight." Prisoners and detainees generally had no access to treated drinking water, and approximately seventy percent "suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness." As a result, the report concludes that malaria

, drug-resistant tuberculosis, and other infectious diseases present a "serious problem." The 2013 country report also states that, despite laws prohibiting such practices, on several occasions police "allegedly beat or otherwise abused detainees and suspects," and "corrections officers use[d] physical punishment and psychological abuse to mistreat prisoners."

The record is unclear as to whether Haiti's blanket policy of detaining criminal deportees remains in force. While the 2013 State Department report makes no mention of the policy, the 2011 NGO report indicates that Haitian officials have continued to detain a majority of criminal deportees immediately upon arrival. A 2013 press release by the human rights group Alternative Chance also notes skepticism as to recent claims by the Haitian government that it had abandoned the indefinite detention program.

The IJ carefully considered this documentary evidence and the testimony of Oxygene and his sister when evaluating Oxygene's claim for CAT relief. The IJ found "no doubt that prison conditions in Haiti remain deplorable, and that as a criminal deportee [Oxygene] may possibly be held in custody upon his return to Haiti for some unknown period of time in those poor conditions." He also noted that Oxygene "could be at a higher risk than normal of disease, given his diagnosis of latent tuberculosis

." Finally, the IJ recognized that "[t]he record evidence even indicates that there have been some incidents of mistreatment of Haitian prisoners so severe as to constitute torture."

Despite these findings, the IJ denied Oxygene's application for deferral of removal under the CAT. The IJ found that Oxygene had not demonstrated that it was more likely than not he would suffer torture upon removal to Haiti. The IJ concluded that application of BIA precedent, In re J–E–, 23 I. & N. Dec. 291 (BIA 2002)

(en banc), foreclosed Oxygene's argument that Haiti's detention policy and prison conditions necessarily constitute torture under the CAT. This was so, the IJ explained, because Oxygene offered "no evidence that the [Haitian] authorities intentionally and deliberately detain deportees in order to inflict torture." Rather, the record only contained evidence of "isolated incidents" of mistreatment by correctional officers that would qualify as torture. Thus, Oxygene failed to meet the more-likely-than-not burden of proof required for relief under the CAT.

Oxygene appealed the IJ's removal order to the Board of Immigration Appeals ("BIA") and at the same time moved the BIA to remand the case for the IJ to consider whether Oxygene's recent diagnoses of post-traumatic stress disorder

and depression impacted his CAT claim. The BIA affirmed the removal order and denied the remand motion for lack of evidence concerning the recent diagnoses. Oxygene then moved the BIA to reconsider this decision, attaching relevant medical evidence and an article on the stigma associated with mental illness in Haiti. The BIA construed this filing as a timely motion to reopen the removal proceedings and denied it, concluding that Oxygene failed to show that the new evidence would change the result of the case.

Oxygene filed two appeals to this court—one challenges the BIA's denial of his application for CAT relief, and the other challenges its denial of his motion to reopen the removal proceedings. We have consolidated the two cases.

II.

Oxygene concedes that a Virginia court convicted him of committing an aggravated felony. For this reason, Congress has limited our jurisdiction over his petition for review of the order denying him CAT relief to questions of law and constitutional claims. See 8 U.S.C. § 1252(a)(2)(C), (D) (2012)

; Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir.2008). Congress has similarly limited our review of the order denying his motion to reopen his removal proceedings. See § 1252(a)(2)(C), (D)

; Larngar v. Holder, 562 F.3d 71, 75 (1st Cir.2009). Given this limitation, as a "threshold question," we must analyze each argument Oxygene raises to determine whether it presents a legal or constitutional question, or raises only a factual dispute. Saintha, 516 F.3d at 248–252.

In challenging the order denying his application for CAT relief, Oxygene offers two arguments. First, he maintains that In re J–E–, on which the IJ and BIA relied, incorrectly states the legal test for the intent necessary to establish torture under the CAT. This is a question of law over which we retain jurisdiction despite Oxygene's aggravated felony conviction. See 8 U.S.C. § 1252(a)(2)(D)

; Cherichel v. Holder, 591 F.3d 1002, 1009 (8th Cir.2010). Oxygene argues in the alternative that, even if In re J–E– correctly states the intent requirement for CAT claims, the IJ and BIA erred in their application of that requirement to his case. At bottom, Oxygene contends that substantial evidence does not support the IJ and BIA decisions to deny him CAT relief. We ordinarily can "review[ ] decisions to deny CAT relief for substantial evidence." Suarez–Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir.2013). But when an applicant for CAT relief has committed an aggravated felony, § 1252(a)(2)(C) eliminates appellate review for sufficiency of evidence. See Saintha, 516 F.3d at 249–50. Consequently, we lack jurisdiction to consider his alternative argument.¹

In his challenge to the order denying his motion to reopen his application for CAT relief, Oxygene maintains that, given his recent mental health diagnoses, the BIA abused its discretion in denying relief. According to Oxygene, Haitian officials will likely single him out for torture because of the stigma associated with mental health conditions in Haiti. But the BIA disagreed, finding that that the record evidence, along with his newly proffered evidence, did not demonstrate that it was more likely than not Oxygene would suffer torture upon removal. This constitutes a quintessentially factual determination over which we lack jurisdiction. See Hernandez–Nolasco v. Lynch, 807 F.3d 95, 99 (4th Cir.2015)

.

Accordingly, we turn now to consider a single issue: whether In re J–E–...