Toussaint v. Attorney General of U.S.

• Decision Date: 26 July 2006
• Docket Number: No. 05-3311.,05-3311.
• Citation: 455 F.3d 409
• Parties: Edna TOUSSAINT, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 409

455 F.3d 409

Edna TOUSSAINT, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 05-3311.

United States Court of Appeals, Third Circuit.

Argued June 13, 2006.

Filed July 26, 2006.

Ruchi Thaker, Matthew L. Guadagno (argued), Jules E. Coven, Kerry W. Bretz, Bretz and Coven, New York, NY, Attorneys for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Richard M. Evans, Assistant Director, David E. Dauenheimer, Carl H. McIntyre, Jr., (argued), Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, DC, Attorneys for Respondent.

Before FISHER, GREENBERG, and LOURIE,^* Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Edna Toussaint petitions for review of a final decision and order of the Board of Immigration Appeals ("BIA") issued on January 6, 2003, ordering her removal to Haiti. In reaching its decision the BIA reversed a decision and order of an immigration judge ("IJ") granting Toussaint withholding of removal under the Immigration and Nationality Act ("INA") and under the Convention Against Torture ("CAT"). We will deny the petition for review.

II. FACTS AND PROCEDURAL HISTORY

Toussaint was born in Haiti in 1954 but entered the United States as a lawful permanent resident in 1970 and since has not returned to Haiti. She is a widow whose husband died in 1992, and she has six children who live in the United States and are United States citizens.

In March 2001 the Supreme Court of the State of New York convicted Toussaint on two counts of criminal sale of a controlled substance (cocaine) and one count of attempted criminal sale of a controlled substance (cocaine) causing the Immigration and Naturalization Service ("INS") to initiate removal proceedings against her. In those removal proceedings, which led to the petition in this case, Toussaint conceded her removability but sought asylum and withholding of removal under the INA and protection under the CAT. Toussaint predicated her claim on an assertion that she would be persecuted and mistreated on account of her deceased father's and her political views if she returned to Haiti.¹ In this regard she claimed that her father, who had been an official in the former Duvalier regime in Haiti, had been detained and tortured in a Haitian prison from 1988 to 1996. Toussaint also said that she "ha[d] been threatened with death were [she] to return to Haiti" by two unidentified men in Miami, Florida. In her application for asylum, however, she did not explain the reason the men gave for making these statements beyond indicating that it was because of her "political views." See J.A. at 226.

The original IJ entertaining this matter found that Toussaint was ineligible for relief because she had committed "particularly serious" crimes, but he nevertheless agreed to consider further the issue of deferral of removal. J.A. at 88. At a subsequent hearing, however, a different IJ ruled that Toussaint's offenses were not particularly serious, and thus he considered her claims for asylum and withholding of removal on the merits.² The second IJ ultimately denied her claim for asylum but granted her claim for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and, alternatively, granted Toussaint withholding of removal under the CAT. In ordering the withholding of removal, the IJ relied on State Department country reports, Toussaint's "credible testimony" that "[s]he was threatened by men who were aware of her father," J.A. at 50, and prior decisions in which the BIA recognized the "likelihood of torture of criminal detainees [in] Haiti." J.A. at 55. The IJ further explained:

[I]t's highly dubious that the government of Haiti would alter its de facto policy of ill-treatment by treating this particular respondent [Toussaint] more humanely than other citizens under similar circumstances. I would also note, and this is very important I believe, that [Toussaint] has no family members in Haiti. There is evidence that if a criminal detainee is removed to Haiti and is able to rely on friends, or particularly, family, to bribe the guards . . . it usually leads to the release of that person, primarily through the payment of bribes. [Toussaint] has no one in Haiti to do that for her.

J.A. at 56.

The INS appealed from the decision and order of the IJ to the BIA, which reversed the decision and order of the IJ and ordered Toussaint's removal to Haiti. In reaching its conclusion, the BIA first determined that Toussaint was not entitled to withholding of removal under section 241(b)(3)(A) of the INA because the BIA "was unable to find that it is more likely than not that [Toussaint] will be persecuted on account of an enumerated ground." J.A. at 7. The BIA explained: "The reason for her father's arrest and mistreatment is unclear. We further note that he was released from prison, and apparently lived for approximately 2 more years there without incident." Id. When reaching its conclusion the BIA was aware of Toussaint's testimony that "she was approached in Miami, Florida, by unknown individuals who . . . warned her that she would be in danger if she returns to Haiti." Id. Nevertheless, it explained that it could not "identify any background or compelling testimonial evidence that convinces us that it [is] more likely than not that [Toussaint] will be persecuted in her country." Id. In the final paragraph of its decision, the BIA denied Toussaint relief under the CAT. Id. In this regard it principally relied on Matter of J-E-, 23 I & N Dec. 291 (BIA 2002) (en banc), a decision in which, as it explained in this case, it held that "neither indefinite detention nor inhuman prison conditions in Haiti constitutes torture." J.A. at 7.

Subsequently Toussaint challenged the decision and order of the BIA by filing a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. Following the enactment of section 106 of the REAL ID Act, the parties appropriately stipulated to the transfer of the habeas petition to this court to be treated as a petition for review.³

III. JURISDICTION AND STANDARD OF REVIEW

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." Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir.2005) (citation omitted).⁴ We review the BIA's factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). We will affirm the BIA's findings unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

IV. DISCUSSION

A. Background

Section 241(b)(3)(A) of the INA mandates the withholding of a removal that would threaten an alien's life or freedom on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To obtain mandatory withholding of removal under the INA, an alien must "establish by a `clear probability' that his/her life or freedom would be threatened in the proposed country of deportation." Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). "`[C]lear probability' means that it is `more likely than not' that an alien would be subject to persecution." Id. (citation omitted).

The withholding of removal provisions in the INA were augmented on October 21, 1998, when the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277, Div. G., 112 Stat. 2681-761, 2681-822, authorizing the implementation of Article 3 of the CAT⁵ and requiring the applicable agencies to promulgate implementing regulations within 120 days became law. As directed, the Department of Justice, which then included the INS, promulgated regulations setting forth the procedures by which aliens could obtain relief under the CAT. See 8 C.F.R. §§ 208.16(c), 208.17, 208.18(a).

The regulations implementing the CAT provide that "[i]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture." 8 C.F.R. § 208.18(a)(5). Significantly, the pain and suffering must be "inflicted by or at the institution of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a)(1). The Department of Justice regulations also specify the elements and the burden of proof for a CAT claim. In harmony with the INA, section 208.16(c)(2) provides that "[t]he burden of proof is on the applicant for withholding of removal to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." If an applicant establishes that he or she "more likely than not would be tortured" upon removal to his or her home country, withholding or deferral of removal is mandatory. 8 C.F.R. §§ 208.16(c)(3), (4). The objective evidence to be considered in evaluating a CAT claim includes "[e]vidence of past torture inflicted upon the applicant;" "[e]vidence of gross, flagrant or mass violations of human rights within the country of removal;" and "[o]ther relevant information regarding conditions in the country of removal." See 8 C.F.R. §§ 208.16(c)(3), 208.17(a).

B. Sufficiency of the BIA's Findings

Toussaint argues that the BIA erred in reversing the IJ's grant of relief because the IJ's findings of facts "were different from the finding[s] in Matter of J-E-, [23 I. & N. Dec. 291 (BIA 2002) (en banc)]" on which the BIA relied in this case. Petitioner's br. at 21. According to Toussaint, "the BIA should have, at a minimum, addressed the [IJ's] findings of fact to reconcile the different findings of the [IJ] and Matter of J-E-." Id. at 18. Toussaint primarily claims that in contrast to the...