                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2006

Thomas v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3229




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                                                             NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                No: 05-3229

                           DOUGLAS THOMAS,

                                      Petitioner

                                          v.

                     ATTORNEY GENERAL OF THE
                          UNITED STATES,

                                      Respondent

                    Petition for Review of an Order of the
                        Board of Immigration Appeals
                          (Agency No. A26-582-649)

                          Argued October 4, 2006

           Before: McKEE, AMBRO and NYGAARD, Circuit Judges

                     (Opinion filed: December 22, 2006 )


JONATHAN FEINBERG, ESQ. (Argued)
Kairys, Rudovsky, Epstein & Messing
924 Cherry Street, Suite 500
Philadelphia, PA 19107
Attorneys for Petitioner


CHRISTOPHER J. CHRISTIE, ESQ.
United States Attorney
District of New Jersey
COLLETTE R. BUCHANAN, ESQ. (Argued)

                                      1
Assistant United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Attorneys for Respondent

                                        OPINION

McKEE, Circuit Judge.

       Douglas Thomas petitions for review of a decision of the Board of Immigration

Appeals sustaining the Department of Homeland Security’s appeal of an order of the

Immigration Judge. The IJ had granted Thomas relief under the Convention Against

Torture (“CAT”) and thereby precluded his removal to Haiti. For the reasons that

follow, we will deny the petition for review.

                                               I.

       Inasmuch as we are writing primarily for the parties who are familiar with this

case, we need not reiterate the factual or procedural background of this appeal except

insofar as may be helpful to our discussion.

       In proceedings before an IJ, Thomas conceded deportability but applied for relief

under the CAT, waiver of removal under former § 212(c) of the INA, and for removal

of his conditional permanent resident status through an I-751 waiver.

       At a merits hearing before the IJ, Thomas testified in support of his application for

protection under the CAT. He contended that because he is a criminal deportee he will

be indefinitely detained in a Haitian prison upon his return and that he will be forced to

endure appalling prison conditions that amount to torture. He further contended that he

                                               2
would be injured or killed because he assisted the prosecution of three Haitian drug

dealers – Teddy Delinois, Reginald LaRouche and Jeremy Kernase.

       He submitted documentary evidence, most notably the U.S. State Department’s

Country Reports on Human Rights Practices - 2000, to support his claim for CAT relief

based upon the conditions in Haitian prisons. That report corroborates his claim that

criminals who are deported to Haiti are detained in Haitian prisons and that the prison

conditions are beyond deplorable.1

       Thomas also contended that Haitian officials connected with Delinois and

LaRouche would injure or kill him if he is returned. He offered only his own testimony

in support of that claim.

       The IJ granted Thomas’s application for adjustment of status to lawful permanent

resident. However, the IJ denied Thomas’s application for an INA § 212(c) waiver. The


       1
           For example, the Country Report states:

       Police mistreatment of suspects at both the time of arrest and during
       detention remains pervasive in all parts of the country. Beating with fists,
       sticks, and belts is by far the most common form of abuse. However,
       international organizations documented other forms of mistreatment, such
       as burning with cigarettes, choking, hooding, and kalot marassa (severe
       boxing of the ears, which can result in eardrum damage). Those who
       reported such abuse often had visible injuries consistent with the alleged
       maltreatment. There were also isolated allegations of torture by electric
       shock. Mistreatment also takes the form of withholding of medical
       treatment from injured jail inmates. Police almost never are prosecuted for
       the abuse of detainees.

App. 71-72.

                                              3
IJ also concluded that since Thomas had been convicted of a particularly serious crime,

he was ineligible for withholding of removal. However, the IJ did grant Thomas’s

application for deferral of removal pursuant to the CAT.

       The IJ explained:

       he’ll be placed in a situation where I believe he will be tortured. The
       intentional infliction of mental and physical suffering. The correction
       system, the government, the people behind the government, the people
       connected with the drug people all have the ability to harm him once he’s
       in prison. There are myriad of different ways that they can harm him, and I
       believe that torture is one of them and I believe that it is more likely than
       not that he will be tortured upon return to Haiti, once he’s taken into
       custody and I don’t think there’s any question he’ll be taken into custody
       because of his open and notorious testimony in the Federal courts against
       the Haitian drug dealers.

Ap. 19-20.

                                              II

       Both Thomas and the government appealed to the BIA. The BIA sustained the

government’s appeal, vacated the IJ’s order and ordered Thomas removed from the

United States to Haiti. It held that Thomas’s detention upon return to Haiti does not,

without more, establish that it is more likely than not that he will be subjected to

“torture” within the meaning of the CAT. It based that holding on its precedential

opinion in Matter of J-E, 23 I. & N. Dec. 291 (BIA 2002).

       In addressing Thomas’s claim of retribution from Haitian drug dealers,2 the BIA


       2
           The BIA’s review of this claim was based on a de novo review of the factual
                                                                             (continued...)

                                              4
noted:

         [Thomas] contended that people linked to Teddy Delinois will harm him.
         He asserted that Mr. Delinois has an aunt, Beret Delinois, who was married
         to a former drug lord, Jean-Claude Paul, who had a right-hand man, Danny
         Toussant, who is now a senator, who has a security force that would harm
         him upon his return. Accordingly, the . . . contention that someone three
         steps removed from Mr. Delinios will seek him out and torture him is
         speculative. It is also unlikely in light of [Thomas’s] admission that Beret
         Delinois and Jean-Claude Paul died in 1988 and 1990, respectively, over a
         decade ago, which was prior to [Thomas’s] cooperation with the
         authorities.

App. 3A. The BIA also noted the lack of corroborating evidence to support his claims.

Thomas testified that his cousin in Haiti had told him that Toussant was aware of his

pending removal. He testified that his cousin knew this because his cousin’s uncle is part

of the Haitian National Police Force. The BIA was skeptical because Thomas failed to

submit an affidavit or letter from his cousin or his cousin’s uncle. The BIA explained:

“considering the alleged harm as a result of [Thomas’s] deportation to Haiti, the absence

of such proof from a family member undermines the credulity of the assertions.” App.

3B. The BIA also noted that Thomas adduced no proof that his cousin’s uncle is even a

member of the police force in Haiti.

         Similarly, the BIA explained the following with regard to Thomas’s professed fear


         2
        (...continued)
record. Under currently applicable regulations, the BIA’s review of the IJ’s factual
findings is under a “clearly erroneous” standard. 8 C.F.R. § 1003.1(d)(3)(i). However,
the current regulations do not apply to this case because Thomas’s appeal to the BIA was
filed before the current regulations calling for the clearly erroneous standard were
implemented in September 2002. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).

                                              5
of retribution from Reginald LaRouche:

       [Thomas] also contended that relatives of Reginald LaRouche will harm
       him if he is deported to Haiti. This conclusion is similarly based on the
       testimony of [Thomas]. [He] contended that Mr. LaRouche’s father “is a
       millionaire and owns a hotel” and is “well-connected politically.”
       However, when asked how Mr. LaRouche’s father would know that he is
       fighting deportation, [Thomas] explained that a “middleman” may have
       told Mr. LaRouche and that a friend relayed this information to him. Yet,
       this “friend” was not present at [Thomas’s] hearing, despite the fact that he
       is a United States Citizen.

App. 3B.

       Given Thomas’s failure to support his assertion that he will be targeted by Haitian

drug dealers upon his return to Haiti, the BIA concluded that he had not met his burden

under the CAT. It conceded that an applicant’s testimony, standing alone, can suffice

where it is believable, consistent, and is sufficiently detailed to provide a plausible and

coherent account of the basis of the fear. However, the BIA concluded that Thomas’s

testimony did not satisfy that test because it was not sufficiently documented, detailed or

credible. Id.3



       3
          Although we agree with that Thomas has not established the likelihood of
torture under our precedent, we nevertheless hasten to add a note of caution insofar as the
BIA seems to have expected documentary evidence of threats against Thomas by Haitian
drug dealers. It is highly unlikely that drug dealers, or those associated with them,
would generate documentary evidence of illegal activity or threats of revenge against
someone who has cooperated with the government. The BIA did not elaborate upon the
kind of documentary evidence Thomas might reasonably be expected to have of any such
threats, and we cannot imagine any such documents. Nevertheless, as we shall explain,
our concern with this facet of the BIA’s ruling does not undermine the conclusion that
Thomas has not shown eligibility for relief under the CAT.

                                              6
                                             IV.

       Thomas filed a petition for a writ of habeas corpus in the district court pursuant to

28 U.S.C. § 2241 in which he challenged the BIA’s removal order. The petition was

pending on May 11, 2005, when the REAL ID Act of 2005, Pub.L No. 109-13, Div. B,

119 Stat. 231, was enacted. Section 106(a) of the REAL ID Act amended 8 U.S.C. §

1252(a)(2) of the INA by eliminating the district court’s habeas corpus jurisdiction over

final orders of removal in nearly all cases. Francois v. Gonzales, 448 F.3d 645, 647 (3d

Cir. 2006). “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 [CAT].” Id. (quoting REAL ID Act § 106(a)(1)(B), 8 U.S.C. § 1252(a)(4)). A

related provision, § 106(c) of the REAL ID Act, “provided that habeas petitions filed

under § 2241 which were pending in the district court before 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 here.” Francois, at 647 (citing REAL ID Act §

106(c)). Consequently, Thomas’s habeas petition was transferred to this court and was

converted into a petition for review.

                                              VI.

       Although 8 U.S.C. § 1252(a)(2)(C) nominally operates to strip courts of appeals

of jurisdiction to adjudicate petitions for review of removal orders filed by aggravated


                                               7
felons, the REAL ID Act restores our jurisdiction to review “constitutional claims and

questions of law” by amending 8 U.S.C. § 1252(a)(2)(D). Thus, our review is limited to

“pure questions of law” and “issues of application of law to fact, where the facts are

undisputed and not the subject of challenge.” Kamara v. Att’y Gen. of the United States,

420 F.3d 202, 210-11 (3d Cir. 2005). We review the BIA’s legal conclusions de novo,

but afford deference to the BIA’s reasonable interpretations of statutes which it is

charged with administering. Id. However, we do not have jurisdiction to review the

discretionary or factual determinations of the BIA. Id.

                   VI. THE CONVENTION AGAINST TORTURE

       On October 21, 1998, the President signed the Foreign Affairs Reform and

Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, Div. G., 112 Stat. 2681-

761, into law. That Act implemented Article 3 of the Convention Against Torture4 and

required that implementing regulations be promulgated by the interested agencies within

120 days. As directed, the Department of Justice promulgated regulations setting forth

the procedures by which aliens could obtain CAT relief. See 64 Fed. Reg. 8478, codified

at 8 C.F.R. §§ 208.16(c), 208.17 & 208.18(a).5


       4
        Article 3 of the CAT states: “No State Party shall expel, return (“refouler”) or
extradite a person to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture.” Art. 3(1), S. Treaty Doc. No. 100-
20, 1465 U.N.T.S. 85.
       5
       The Immigration and Naturalization Service (“INS”) was then an agency under
the Department of Justice.

                                             8
       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. Certain subsections of § 208.18 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 lesser forms of cruel, inhuman or degrading treatment or
       punishment that does not amount to torture.

       (a)(3) Torture does not include pain or suffering arising only from, inherent
       it or incidental to lawful sanctions.

       (a)(4) In order to constitute torture, mental pain or suffering must be
       prolonged mental harm caused by or resulting from:

                 (i) The intentional infliction or threatened infliction of severe
                 physical pain or suffering;

                 (ii) The administration or application, or threatened
                 administration or application, of mind altering substances or
                 other procedures calculated to disrupt profoundly the senses
                 or the personality;

                 (iii) The threat of imminent death; or

                 (iv) The threat that another person will imminently be
                 subjected to death, severe physical pain or suffering, or the
                 administration of mind altering substances or other
                 procedures calculated to disrupt profoundly the sense or

                                                 9
              personality.

       (a)(5) In 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.

       The Department of Justice also promulgated regulations specifying the elements of

a CAT claim, and the burden of proof. Section 208.16(c)(2) provides that “[t]he burden

of proof is on the applicant for withholding of removal6 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 “more likely than not would be tortured” upon removal

to his home country, withholding or deferral of removal is mandatory. 8 C.F.R. §§

208.16(c)(3) and (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); see also 8 C.F.R. § 208.17(a).

                                    VII. DISCUSSION

       Thomas makes two arguments in support of his petition for review. Each is



       6
         Applicants for CAT relief can seek either deferral of removal or withholding of
removal. Regulations for withholding of removal are found at 8 C.F.R. § 208.16 and the
regulations for deferral are found at § 208.17. “However, the general standards of
eligibility for each are identical, i.e., a requirement that an alien establish that future
‘torture’ is ‘more likely than not.’” Auguste v. Ridge, 395 F.3d 123, 134 n. 8 (3d Cir.
2005).

                                               10
discussed below.

                A. The BIA Applied an Impermissible “Specific Intent”
                          Requirement to the CAT Claim.

       Before the BIA, Thomas contended that he was entitled to CAT relief because, as a

criminal deportee, he will be detained in a Haitian prison where he will be subjected to

horrendous conditions tantamount to torture. However, the BIA quickly rejected that

argument stating: “the fact that [Thomas] may be subject to imprisonment in Haiti does

not without more establish that it is more likely than not he would be tortured. See Matter

of J-E, 23 I&N Dec. 291 (BIA 2002).” App. 2A.

       In Matter of J-E, the BIA held that the use of the terms “intentionally inflicted” and

“specifically intended” in the regulatory definitions of torture constitute a “specific intent”

requirement. In his petition for review, Thomas argues that the BIA’s reliance on Matter

of J-E in denying his claim for CAT relief was error because the BIA applied an

impermissible “specific intent” standard to his CAT claim. In Thomas’s view, our

decision in Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003), overruled Matter of J-E.

       We disagree. In Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), decided after

Zubeda, we rejected the very argument Thomas is making here, and held that the brutal

and horrendous conditions that prison inmates and detainees face in Haiti do not amount

to torture.   We again rejected this argument in Francois v. Gonzales, 448 F.3d 645 (3d

Cir. 2006). We distinguished our analysis there from our analysis in Zubeda as follows:

“[o]ur entire discussion [in Zubeda] was in the context of a woman who alleged that she

                                              11
would be raped if returned to her native country, and we had to determine if that

allegation could support relief under the CAT . . .”. The situation here is quite different.

Accordingly, Auguste and Francois control Thomas’s prison conditions claim.

       In fact, the only thing distinguishing Thomas’s situation from that in Auguste and

Francois is Thomas’s claim that because of his cooperation with the government in the

prosecution of Haitian drug dealers, relatives of those drug dealers would harm or kill him

with the consent of or acquiescence of Haitian government if he was returned to Haiti. As

noted, that claim was rejected by the BIA. The BIA concluded that that claim was not

supported by the record, and we cannot review the BIA’s factual determinations.7

       Undeterred, Thomas argues that even if the specific intent standard discussed in

Zubeda is the appropriate one, the BIA applied an unlawful “heightened” specific intent

standard. Thomas notes that his application for CAT relief was premised upon two

grounds. The first was prison conditions; the second was his contention that he would be

subjected to torture because of he assisted in prosecuting Haitian drug dealers. Although

the IJ agreed with his second ground, the BIA rejected it. It wrote:

       In our review, we find that the record does not support [Thomas’s]
       assertions at his hearing that relatives of the individuals he helped prosecute,
       or people connected with these relatives, are waiting for him in Haiti and
       plan to torture him.


       7
         Pursuant to the REAL ID Act’s amendments to 8 U.S.C. § 1252(a)(2)(D), we
have jurisdiction to consider a petition for review of an alien convicted of a drug
trafficking crime, but our jurisdiction is limited to that of constitutional claims and
questions of law. Kamara v. Attorney Att’y , 420 F.3d 202, 211 (3d Cir. 2005).

                                             12
App. 3A (emphasis added). In Thomas’s view, the italicized words demonstrate that the

BIA applied an impermissible heightened specific intent standard to his claim. Thus, he

submits that had the BIA applied the Auguste “specific intent” standard, it would have

been compelled to find that he proved that associates of the drug dealers possessed the

necessary intent. We disagree.

       The statement in question cannot be read out of context, and it is clear from the

totality of the BIA’s discussion that it understood that the intent required under the

applicable regulation.

                         B. Remand for Additional Factfinding.

       Thomas asks that we remand to the BIA if we decide that the current record does

not establish eligibility for CAT relief. He contends that in the four and one-half year

time period between his hearing before the IJ and our receipt of the administrative record,

dramatic changes have occurred in Haiti, most notably the ouster of President Jean-

Bertrand Aristide on February 24, 2004. He claims these changes have worsened human

rights conditions in general and conditions for detained deportees in particular.

       However, we do not believe that we have jurisdiction to remand for additional

factfinding. Under normal administrative review:

              If a party to a proceeding to review applies to the court of appeals in
              which the proceeding is pending for leave to adduce additional
              evidence and shows to the satisfaction of the court that--
                      (1) the additional evidence is material; and
                      (2) there were reasonable grounds for failure to adduce the evidence
                      before the agency; the court may order the additional evidence and

                                              13
                      any counterevidence the opposite party desires to offer to be taken by
                      the agency. The agency may modify its findings of fact, or make new
                      findings, by reason of the additional evidence so taken, and may
                      modify or set aside its order, and shall file in the court the additional
                      evidence, the modified findings or new findings, and the modified
                      order or the order setting aside the original order.

28 U.S.C. § 2347©) (emphasis added). In immigration cases, the jurisdictional statute

allows us to review decisions of the BIA as final agency determinations in the usual manner

under 28 U.S.C. §§ 2341 et seq., except that it specifically bars us from remanding to the

agency for further factfinding. 8 U.S.C. § 1252(a)(1) (“[T]he court may not order the

taking of additional evidence under 28 U.S.C. § 2347©)”) (emphasis added). In addition,

the jurisdictional statute stipulates that “the court of appeals shall decide the petition only

on the administrative record on which the order of removal is based.” 8 U.S.C. §

1252(b)(a)(4)(A) (emphasis added). When read together, these two provisions reflect a

congressional intent to extend our jurisdiction only to review of the final order of removal.

It does not further extend to order additional factfinding.

       In Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004), we stated that “Congress

could require the Courts of Appeals, in their sound discretion, on motion or sua sponte, to

grant petitions for review of the BIA, and remand when it appears from judicially

noticeable materials that the record compiled before the agency does not generally reflect

contemporary country conditions.” However, we also held that we are unable to afford any

such relief under current law and that the appropriate procedure is moving to reopen

proceedings on the basis of new facts. We also encouraged the BIA and the Government to

                                               14
take responsibility for updating records when necessary. Id. at 330-31. We reiterated the

Berishaj holding in Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 218 (3d Cir. 2005),

again holding that we are unable to look beyond the administrative record. We again

requested that the Attorney General screen cases that are inappropriate for appellate review

because of changed circumstances, but this was, as in Berishaj, no more than a request,

reflecting our holding that we could not force the parties to update the record through

remand. Id.

       Although we do not think that we have jurisdiction to remand for additional

factfinding, we do believe that Thomas can move to reopen. The typical time and numeric

limitations on motions to reopen do not apply when the purpose of the motion is “[t]o apply

or reapply for asylum or withholding of deportation based on changed circumstances

arising in the country of nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available and could not have been

discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). It is true

that Thomas ultimately seeks deferral of removal rather than withholding, but regulations

actually classify deferral of removal not as a separate claim for relief but as relief that is

given as a matter of right if the alien would be eligible for withholding of removal but for

his criminal conviction. The regulation reads:

              An alien who: has been ordered removed; has been found
              under § 208.16(c)(3) [the withholding of removal regulation]
              to be entitled to protection under the Convention Against
              Torture; and is subject to the provisions for mandatory denial

                                               15
             of withholding of removal under § 208.16(d)(2) or (d)(3), shall
             be granted deferral of removal to the country where he or she is
             more likely that not to be tortured.

8 C.F.R. § 2087.17(a) (emphasis added). Thus, Thomas should be able to move to reopen

for the purposes of applying for deferral of removal based on changed circumstances.

                                 VIII. CONCLUSION

      For all of the above reasons, we will deny the petition for review.




                                            16
