                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 29, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60943
                          Summary Calendar



     JONAS ROBERT,

                                          Petitioner,

          versus


     JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                          Respondent.




               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A47 030 318



Before GARWOOD, STEWART and PRADO, Circuit Judges.

PER CURIAM:*

     Jonas Robert petitions for review of an order of the Board of

Immigration Appeals (“BIA”) summarily affirming the immigration

judge’s (“IJ’s”) decision to deny his application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).

     Before the IJ, Robert, who was then represented by counsel,


     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
admitted the truth of the charges in the notice to appear (NTA) and

conceded his removability.   He filed an application for asylum or

withholding of removal, asserting that he feared being subjected to

torture in his home country on return thereto, which was explained

only by the statement that “enclosed are documented articles

detailing how deportees are treated in Haiti.”      These articles

describe a policy of the Haitian government to detain in prison for

periods averaging one or two months returning criminal deportees

and the deplorable conditions of such prisons.     Robert’s asylum

application answers “no” to each of the following questions:

     “2.   Have your or any member of your family ever
           belonged   to   or   been   associated   with   any
           organizations or groups in your home country, such
           as, but not limited to, a political party, student
           group,   labor   union,   religious   organization,
           military or paramilitary group, civil patrol,
           guerrilla organization, ethnic group, human rights
           group, or the press or media?”

     “3.   Have you or any member of your family ever been
           mistreated or threatened by the authorities of your
           home country or any other country or by a group or
           groups that are controlled by the government, or
           that the government of the country is unable to
           unwilling to control?”

Robert’s testimony reflects that he was 23 years old at the time of

the hearing and had been born and lived in Haiti until he was 20,

when he came to the United States, and that when he lived in Haiti

neither he nor his mother or father had any trouble with the

government. He was unaware of the policy of the Haitian government

towards returning deportees until after he came to the United



                                 2
States when he learned of it by word of mouth and reading.

     Robert argues that his Massachusetts conviction for malicious

damage to property did not involve a crime of moral turpitude, thus

he is not removable under 8 U.S.C. § 1227(a)(2)(A)(i)(2000).            He

also argues that the IJ erroneously determined that he failed to

show membership in a cognizable social group, i.e. Haitian criminal

deportees who are automatically imprisoned upon arrival in Haiti.

He argues that he showed fear of future persecution by the Haitian

government because of the deplorable prison conditions which, he

argues, constitute torture under the CAT.

     When, as in this case, the BIA summarily affirms an order of

an Immigration Judge, the underlying order is subject to appellate

review as the “final agency decision” of Immigration and Customs

Enforcement (formerly the Immigration and Naturalization Service).

Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003).              A

final agency decision must be affirmed “if there is no error of law

and if reasonable, substantial, and probative evidence on the

record, considered as a whole, supports the decision’s factual

findings.”   Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).

Conclusions of law by the BIA with respect to the construction of

the INA and its regulations are afforded Chevron deference. INS v.

Aguirre-Aguirre,    526   U.S.   415,   424-25   (1999)   (citing   Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842 (1984)).


                                    3
       After reviewing the record and the briefs, we conclude that

the decision is supported by substantial evidence and that the

evidence in the record does not compel a conclusion contrary to

that reached by the IJ and BIA.         See Carbajal-Gonzalez v. INS, 78

F.3d 194, 197 (5th Cir. 1996); Chun v. INS, 40 F.3d 76, 78 (5th

Cir. 1994).

       Robert’s argument that malicious damage to property is not a

crime involving moral turpitude was not raised before the IJ or the

BIA.    This court therefore lacks jurisdiction to consider it.              8

U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th

Cir. 2001).     The same is true of Robert’s argument, not raised

before either the IJ or the BIA, that his fear of persecution is

based on his membership in a particular social group, i.e., Haitian

deportees.    8 U.S.C. § 1252(d)(1); Wang, 260 F.3d at 452-53.              An

applicant for asylum under the INA must establish persecution or a

well-founded fear of persecution “on account of race, religion,

nationality, membership in a particular social group or political

opinion.”     8 U.S.C. § 1101(a)(42)(A).         The same is likewise true

for    withholding   of   deportation    under    the   INA.   8   U.S.C.    §

1231(b)(3)(A).



       Accordingly, Robert has not properly preserved, and we must

reject, his challenge to the denial of his application for asylum

and/or withholding of deportation under the INA.               And, in any


                                    4
event, there was substantial evidence to support such denial.   INS

v. Elias-Zacarias, 502 U.S. 478, 481 & n.1. (1992).

     Roberts primarily seeks the protection of CAT on the ground

that Haiti’s treatment of involuntarily repatriated criminals is

akin to torture.   He maintains that upon being deported to Haiti he

will be detained for some indefinite period in that country’s

notorious prison system as part of an official policy designed to

frighten returning criminals into obeying Haitian law.    He argues

that the condition of these prisons is so abominable that simply

being incarcerated in one is a form of torture prohibited by CAT.

     Claims for relief under the CAT do not require that the

prospective torture be inflicted on any one or more of the grounds

specified in 8 U.S.C. §§ 1101(a)(42)(A) and 1231(b)(4)(A).

     Robert’s claim is foreclosed by Matter of J-E-, 23 I. & N.

Dec. 291, 296 (BIA 2002).   In Matter of J-E-, an en banc panel of

the BIA, considering substantially similar facts, held that Haiti’s

practice of detaining criminal deportees in its backward prison

system does not constitute torture under CAT.   Petitioner makes no

effort to distinguish Matter of J-E-.    Instead, he argues that it

was wrongly decided and should not be followed by this court.

Petitioner, however, simply attacks Matter of J-E- on questions of

law and regulatory interpretation that were squarely addressed by

the BIA sitting en banc. Under the principle of Chevron deference,




                                  5
this court must respect those determinations.1                    Wang, 260 F.3d at

451 (“We will give the agency’s interpretation of its own rules

controlling weight unless it is plainly erroneous or inconsistent

with       the    regulation”)    (citation      and   internal    quotation   marks

omitted).          Moreover, the evidence before the IJ supports the IJ’s

finding          that   the   practices   and    prison   conditions    imposed   on

returning criminal deportees are not violative of the CAT and

Robert has presented nothing to compel a contrary finding.

       Robert’s petition for review is

                                          DENIED.




       1
       The court notes that the facts alleged by Petitioner do not
implicate the issue addressed in Azanor v. Ashcroft, 364 F.3d 1013,
1019-20 (9th Cir. 2004), in which the Ninth Circuit held that one
specific aspect of the Matter of J-E- decision was erroneous.

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