DLD-226                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 12-3773
                                   ____________

               DAVE SILVESTER PIERRE, a/k/a David Pier, a/k/a
             David Piere, a/k/a David S. Pierre, a/k/a Lionel A. Escobar,

                                          v.

               ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent

                             Dave Silvester Pierre,
                                               Petitioner
                     __________________________________

                       On a Petition For Review of an Order
                        of the Board of Immigration Appeals
                            (Agency No. A036-803-804)
                       Immigration Judge: Walter A. Durling
                     __________________________________

                    Submitted on a Motion for Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 2, 2013

             Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                            (Opinion filed: June 5, 2013)
                                  ____________

                                     OPINION
                                   ____________


PER CURIAM



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      Dave Silvester Pierre (“Pierre”) petitions for review of the Board of Immigration

Appeals’ final order of removal. For the reasons that follow, we will grant the Attorney

General’s motion for summary action and summarily deny the petition.

      Pierre, a native and citizen of Antigua and Barbuda, was previously removed from the

United States in 1993 for several crimes, including drug trafficking.      Upon returning to

Antigua, Pierre was detained for three months and released when his sister, a United States

citizen living in St. Croix, posted bail. He used his “green card” to enter the Virgin Islands,

where his family lives. Eventually, he returned to New Jersey. On March 30, 2009, the

Department of Homeland Security reinstated the prior order of removal, and Pierre pleaded

guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(a), and was imprisoned for 18

months.

      After Pierre was unable to establish that he had acquired citizenship through his

naturalized mother,1 he sought protection under the Convention Against Torture, claiming that

he likely would be tortured in Antigua because he had been beaten and raped while in custody

the last time he was removed there. On May 10, 2012, Pierre appeared in Immigration Court

and testified that he was physically abused by prison guards and other prisoners, which

included being raped by another prisoner and being beaten by prison guards with their fists and

batons. He received treatment for an injury to his leg after his release. He testified that he

fears being tortured if he is removed again because he is likely to encounter the same

mistreatment by prison authorities. He has no family ties to Antigua and will be viewed as a


1
 Pierre’s mother was naturalized on June 13, 1988 but Pierre was 22 years old at the time and
was therefore unable to derive citizenship through her.
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criminal deportee. In support of his claim, Pierre’s sister testified over the telephone that he

appeared bruised and beaten when she freed him from the Antiguan prison in 1993, and that he

informed her that he had been raped.

       The Immigration Judge denied CAT relief and ordered Pierre’s removal to Antigua.

The IJ found that Pierre was not believable because his testimony was self-serving and

unpersuasive, and it conflicted with the Asylum Officer’s October 1, 2010 Record of Sworn

Statement (“ROSS”), in which it was reported that Pierre repeatedly denied having any

problems while he was detained in a holding facility in Antigua. His testimony also conflicted

with a March 30, 2009 ROSS, in which it was reported that he denied any fear of persecution

or torture if removed to Antigua, and with a Reasonable Fear Determination dated October 20,

2010. In addition, even when asked during his Reasonable Fear hearing on May 31, 2011,

Pierre never mentioned that he had been raped. When asked if he had been mistreated, his

answer was vague and rambling.         The IJ further determined that Pierre’s case was not

rehabilitated by his sister’s testimony because, in pertinent part, her testimony did not explain

why Pierre, when he had numerous opportunities to inform various immigration authorities

that he suffered abuse in Antigua in 1993, failed to do so.

       The IJ also concluded that Pierre’s background evidence did not corroborate his

assertion that criminal deportees are subjected to torture by or with the acquiescence of the

government of Antigua. The IJ pointed out that the background materials, although they show

overcrowding and poor prison conditions, also show that the government does not tolerate

abusive behavior by prison guards, and international human rights organizations have ready

access to the prison. The IJ specifically discussed an affidavit from Donald Anthonyson,

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which notes that deportees are stigmatized by Antiguan society and which affirms tough prison

conditions.

       Pierre appealed to the Board of Immigration Appeals. On September 12, 2012, the

Board dismissed the appeal. It held that, in light of the adverse credibility determination,

which the Board found was fully supported by the record, Pierre failed to show that he was

tortured in the past or likely would be tortured in the future in Antigua.

       Pierre timely petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1),

(b)(1). We previously denied his motion for a stay of removal. After Pierre filed a two-page

opening brief, the Attorney General moved for summary denial of the petition for review.

Pierre has responded in opposition to the motion. In his opening brief, Pierre argues that the

statement he made in 2009 was made under the stress of having been taken into custody by

immigration authorities after living freely in the United States for a period of 15 years

(following his illegal re-entry).     He answered questions without thinking about them.

Moreover, he contends, the IJ did not take the time to look into his case. In his response to the

motion for summary denial, he argues that the agency erred in determining the “government

acquiescence” issue, and in ignoring the evidence from his sister and his Antigua expert,

Donald Anthonyson, and he argues that he has no family in Antigua because his family moved

to the Virgin Islands after he was born.

       We will grant the Government’s motion and summarily deny the petition for review

because no substantial question is presented by it, Third Circuit LAR 27.4 and I.O.P. 10.6. To

qualify for protection under the CAT, an applicant bears the burden of showing that it is more

likely than not that he would be tortured if removed to the proposed country of removal. 8

                                                 4
C.F.R. § 1208.16(c)(2); Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 212-13 (3d Cir. 2005).

For an act to constitute torture, it must be: (1) an act causing severe physical or mental pain or

suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of

or with the consent or acquiescence of a public official who has custody or control of the

victim; and (5) not arising from lawful sanctions. Id. at 213; 8 C.F.R. § 1208.18(a)(1)-(8). The

“acquiescence of a public official” requirement does not require actual knowledge of torturous

conduct, but can be satisfied by a showing that the government is willfully blind to the conduct

in question or has breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen. of

U.S., 473 F.3d 58, 70 (3d Cir. 2007). An applicant’s criminal convictions in the United States

are not a bar to deferral of removal under the CAT, 8 C.F.R. § 1208.17(a).

       Where the Board substantially relies on the IJ’s adverse credibility determination, we

review both decisions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We must

consider the record as a whole and may reverse only if “any reasonable adjudicator would be

compelled” to reach a conclusion contrary to that of the agency. 8 U.S.C. § 1252(b)(4)(B).

The IJ may consider the totality of the evidence in finding a lack of credibility, and

inconsistencies need not go to the heart of the claim. 8 U.S.C. § 1158(b)(1)(B)(iii). See also

Kaita v. Att’y Gen. of U.S., 522 F.3d 288, 296 n.6 (3d Cir. 2008) (same).

       We are not compelled to reach a conclusion contrary to that of the agency in Pierre’s

case because Pierre had a full and fair hearing, and the concerns noted by the agency are

substantial and seriously undermined Pierre’s credibility.        In affirming the IJ, the Board

properly considered Pierre’s testimony and that of his sister, expressly discussed the evidence

in some detail, and explained why it found no error in the IJ’s adverse credibility

                                                 5
determination. The Board observed that Pierre’s testimony regarding his past treatment in

Antigua conflicted with other sworn statements he had made, including a statement to an

Asylum Officer in October 2010, in which he repeatedly stated that he had no problems while

he was detained in a holding facility in Antigua. In his 2009 statement, he indicated that he

had no fear of persecution or torture should he be removed from the United States. In the

October 10, 2010 Reasonable Fear Determination he was reported to have stated that he stayed

by himself during the 2½ months that he was held in the holding facility.

       The Board properly rejected Pierre’s attempt to explain away the inconsistencies

between his prior statements and in-court testimony. During his hearing Pierre was given the

opportunity to explain the inconsistency between his 2009 statement and his testimony, but the

IJ found his explanation self-serving. His argument on appeal that he answered questions in

2009 without thinking about them does not persuade us that this finding is unreasonable.

Moreover, the Board validly rejected the testimony of Pierre’s sister on the ground that the

sister’s testimony did not overcome Pierre’s failure to mention being raped or assaulted during

his interviews. Last, Pierre’s background evidence plainly did not corroborate his assertion

that criminal deportees are subjected to torture by or with the acquiescence of the government

of Antigua. As explained by the IJ, the Anthonyson affidavit affirms tough prison conditions

but does not attribute them to any particular reason much less any intent by Antiguan prison

authorities to inflict severe pain or suffering. Accordingly, Pierre did not demonstrate that it is

more likely than not that he would be tortured for any reason in Antigua, 8 C.F.R. §

1208.16(c). See Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir. 2005) (denying petition for

review where “the IJ’s adverse credibility determination forecloses [the CAT] claim”).

                                                6
      For the foregoing reasons, we will grant the Attorney General’s motion for summary

action and summarily deny the petition for review.




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