Priva v. U.S. Attorney Gen.

Decision Date12 May 2022
Docket Number20-12521
Parties Emmanuel PRIVA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Petitioner.

Sarah Pergolizzi, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Before Wilson, Lagoa, and Ed Carnes, Circuit Judges.

Lagoa, Circuit Judge:

Emmanuel Priva, a native and citizen of Haiti, petitions this Court for review of his Final Administrative Removal Order and adverse reasonable fear determination, which were both issued during Priva's expedited removal proceedings as an alien convicted of an aggravated felony under the Immigration and Nationality Act ("INA") § 238(b), 8 U.S.C. § 1228(b). Under 8 C.F.R. § 208.31(g)(1), no further administrative appeal was available to Priva, but he could seek direct review by this Court. After careful review and with the benefit of oral argument, we deny the petition.


On December 19, 2014, Priva entered the United States on an R-1 non-immigrant visa. Priva applied to adjust his status to that of conditional permanent resident, which was approved on August 25, 2017. On March 1, 2018, Priva was arrested on several counts of visa fraud and conspiracy to commit visa fraud, in violation of 18 U.S.C. §§ 1546(a) and 371. On December 12, 2019, Priva was convicted of those counts and sentenced to twenty-seven months’ imprisonment.

On March 11, 2020, the Department of Homeland Security ("DHS") issued Priva, who was serving his sentence in a federal correctional facility in Georgia, a Notice of Intent to Issue a Final Administrative Removal Order ("FARO") under INA, § 238(b), 8 U.S.C. § 1228(b). The notice of intent stated that Priva was deportable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he was convicted of an aggravated felony as defined in INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P). The notice also stated that Priva may be represented, at no expense to the government, by counsel. Priva acknowledged receipt of the notice and requested withholding or deferral of removal, stating that he feared persecution and torture if he was returned to Haiti. On May 14, 2020, DHS issued Priva a FARO based on the notice of intent.1

Priva's case was referred to an asylum officer to determine whether Priva had a "reasonable fear" of prosecution or torture. On May 19, 2020, Priva briefly sat for a reasonable fear interview, telling the asylum officer that he had an attorney to represent him. His attorney asked to reschedule the interview so he could speak with Priva first, and that request was granted. Priva was also served later in the reasonable fear interview proceedings with a list of pro bono legal service providers.

First Reasonable Fear Interview

On May 26, 2020, Priva sat for his first substantive reasonable fear interview with an asylum officer. During this interview, Priva's counsel appeared telephonically. Priva was read, with help from an interpreter, a M-488 form explaining the reasonable fear process. Priva stated that he understood it and had no questions about the information. He also received and signed a physical copy of that form, which had attached to it the list of pro bono legal service providers. Priva was offered "48 hours to rest and consult with family members, friends, or anyone else between the time that [he] receive[d] that information and ... the interview," but he elected to continue. During the interview, Priva stated that he lived in Haiti from 2009 to 2011 but had not returned since 2011. Priva also stated that he was "never" physically harmed, threatened, or mistreated by anyone in Haiti.

As to "future harm," Priva asserted that he was "afraid to return" to Haiti, specifically stating:

In the last few years I was involved in helping some folks enter the U.S. from my country. ... The deal was you give me money and if you do not get your visa then you would get your money back. I was not able to reimburse those people because the government stole my car, my bank account, they stole everything I had. So now I'm unable to reimburse them. They know me and I know them. If I go there without being able to reimburse people there is no way that I will make it out. They are waiting for their money. They said that in their statements and emails.

Priva stated that if he could not reimburse the people he owed money to, which Priva estimated to be at least 100, he "would be persecuted and tortured and killed." Priva claimed that he had received threats from more than twenty people. He stated that he began receiving threats in 2018 following his arrest, as the people threatening him had "googled" his name and knew he was in jail. The asylum officer asked Priva for an example of such threats. Priva responded that the individuals "cursed" him and stated that if they did not get their money back, and if he was deported back to Haiti, "then [his] life will pay for [the] money," as they could get machetes or guns. Priva also claimed that his wife used to receive "many" threatening messages. He claimed that his friends and brother were also threatened by these people.

The asylum officer asked what Priva meant when he stated he would be persecuted, to which Priva replied he could be killed with a machete, as he knew of "many groups of people" who had killed "many people before [him]." Priva also named the "group of people" he owed money to as "police officers" whom he used to deal with, or people "related to them." Priva stated that seven other people who were in the same situation were killed by the people they owed money to but that he did not know if the 100 people he owed money to had specifically killed others. He also stated that "two ministers" in Haiti had threatened him. Additionally, Priva said a police officer had sent a message to his friend a month prior stating that "with [his] gun [he doesn't] play and [he could] blow [his] mind within a second" and demanding Priva to send the money. Priva also stated that this police officer could find him because "Haiti is so small and very connected," that he "was dealing with everybody in every single area," that the people who he owed money could see him on social media as a deportee, and that he could not hide. And he said that if someone knew his address in Haiti, the people who he owed money to could find him. Priva asserted that the Haitian government could not protect him because it was not able to "even protect itself," as civilians in the country often killed police officers and government officials. He stated that there was no other reason he feared to return to Haiti and that there was nowhere in Haiti he could live and be safe.

As to relief under the Convention Against Torture, Priva stated that he had never experienced any mistreatment, threats, or harm from anyone in the Haitian government, military, or police until he "got involved in this situation," referencing the threats from the "police officers." He also stated a "minister" working for the government had threatened to kill him because of the owed money and that he was afraid he could be harmed by public officials in the future. And he claimed that if he reported the threats, things would get "even worse" because Haitian officials and police were "corrupt." But Priva stated he never reported a crime to the police in Haiti where they refused to help him. The asylum officer asked Priva if he knew of anyone who had reported a crime to the police in Haiti, and he stated that "[i]t became worse for them," that his friend reported to the police that his girlfriend was kidnapped by a group of people and the police had killed him because the kidnappers worked for the police. Priva also stated he was never threated or harmed—and did not fear being threatened or harmed—in Haiti because of his race, ethnicity, religion, political beliefs, or nationality. And he was not a member of any groups or organizations in Haiti.

Second Reasonable Fear Interview

On May 28, 2020, Priva attended another reasonable fear interview. Priva's counsel was present telephonically. During this interview, Priva's counsel asked Priva when he was first threatened, which Priva said occurred when he was in detention for his visa fraud conviction. During his questioning of Priva, Priva's counsel did not introduce any evidence of country conditions in Haiti.

Third and Final Reasonable Fear Interview

On June 3, 2020, Priva had a final reasonable fear interview, where counsel was again present telephonically. The asylum officer asked Priva if he ever was directly threatened by any of the people he feared. Priva replied that he had directly spoken, with help from a friend, to a man named "Jon," who had previously sent him money. Jon called Priva "a thief" because he owed him money. Jon also stated that "he will make sure he will get his money" using "every single tool" if Priva was sent back to Haiti and that "they" would terminate Priva. Priva said that Jon, who was a police officer for seventeen years, was fired because he mistakenly killed a person and that Jon reminded him of the incident.

Priva also said that Jon's brother, a police officer in Haiti, knew he owed Jon money and claimed that Jon and his brother could "use every single tool to finish" him, as they had done it before. Priva understood "tools" to mean that Jon had a gun. And he stated that Jon still had close connections to the Haitian police.

Asylum Officer's Reasonable Fear Findings

Following the final interview, the asylum officer made the following reasonable fear findings: the asylum officer found Priva credible but concluded there was "no reasonable fear of persecution established and no reasonable fear of torture established." In the "Reasonable Fear Determination Checklist and Written Analysis," the asylum officer found that Priva "ha[d] not...

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