                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2005

Verissimo v. INS
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1945




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"Verissimo v. INS" (2005). 2005 Decisions. Paper 1078.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 03-1945
                                   ________________

                              SYLVESTER VERISSIMO,

                                                 Appellant

                                            v.

                IMMIGRATION AND NATURALIZATION SERVICE
                           __________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civ. No. 02-CV-00570)
                        District Judge: Honorable Yvette Kane
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 23, 2005

             BEFORE: RENDELL, AMBRO and FUENTES, Circuit Judges

                                  (Filed : June 2, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

      Sylvester Verissimo is a native and citizen of Nigeria. He entered the United

States as a conditional permanent resident in 1990, but never applied to remove the

conditional status. Based on several criminal convictions, Verissimo was served with a
Notice to Appear, charging him as being removable for committing an aggravated felony.

 Verissimo sought withholding of removal, and withholding and deferral of removal

under the United Nations Convention Against Torture (CAT).

       The Immigration Judge (IJ) denied withholding of removal under INA § 241(b)(3),

finding that Verissimo had not met his burden of showing that the past mistreatment he

testified to was on account of any political activity, but the IJ granted withholding of

removal under CAT. The IJ found that it was more likely than not that Verissimo would

be interrogated upon his return to Nigeria as a deportee, and that he would likely be

subjected to “cruel and degrading conditions of detention and likely be tortured in hopes

of extracting a bribe.”

       The INS appealed, and the Board of Immigration Appeals (BIA) found that

“respondent’s claims of torture or mistreatment are highly speculative and are not

supported by the record.” The BIA vacated and reversed the IJ’s grant of withholding of

removal.

       Verissimo filed a habeas petition, and several other documents in the United States

District Court for the Middle District of Pennsylvania, which the Court construed together

as a habeas petition. Verissimo’s main claim was that the BIA incorrectly reversed the IJ

on his CAT claim. Verissimo also later filed a motion for release on bond pending

disposition of the habeas petition.

       The District Court concluded that it lacked subject matter jurisdiction over

Verissimo’s petition to the extent it sought review of the BIA decision denying him

                                              2
withholding of removal under the Convention Against Torture. Dist. Ct. Op., 1/30/03, at

3. The Court also denied Verissimo’s petition for relief from detention pending removal.

       After Verissimo filed an appellate brief in this Court, the Government filed an

unopposed motion to have the matter remanded to the District Court for consideration of

the effect of our decision in Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003),1 and

also for consideration of the fact that Verissimo had been removed on September 24,

2003. We retained jurisdiction and remanded the matter to the District Court.

       On remand, the Court recognized that it had jurisdiction to consider Verissimo’s

CAT claim, but that its jurisdiction was limited to statutory and constitutional claims

asserting erroneous application of legal principles to undisputed facts. Bakhtriger v.

Elwood, 360 F.3d 414, 424 (3d Cir. 2004).2 The Court found that Verissimo’s only claim

of legal error was a vague statement that the BIA’s decision was “manifestly contrary to

law.” The Court recognized that it could not review the BIA’s decision to the extent it

rested on a finding of insufficiency of the evidence. Bakhtriger, 360 F.3d at 420. The

Court also found that the BIA had not applied an improper standard of review of the IJ’s

decision.

       We agree with the District Court that Verissimo’s vague allegations of legal error



  1
   In Ogbudimkpa, this Court held that a district court has jurisdiction to consider a
habeas petition raising violations of the CAT.
  2
    The District Court correctly found that the fact that Verissimo had been removed did
not strip the Court of jurisdiction, due to the continuing collateral consequences for
Verissimo. Chong v. INS, 264 F.3d 378, 385 (3d Cir. 2001).

                                             3
are not sufficient to compel a holding that the BIA erred in sustaining the Government’s

appeal.3 For the foregoing reasons, we will affirm the District Court’s judgment.




  3
    In a supplemental brief filed in the District Court, Verissimo appears to have claimed
that he would be jailed upon return to Nigeria, and that general prison conditions could
constitute torture. It is not clear whether he raised this claim (as opposed to a claim that
he would be detained and beaten to extract a bribe) before the IJ and the BIA. Assuming
he did exhaust his administrative remedies, this claim is foreclosed by Auguste v. Ridge,
395 F.3d 123, 145-46 (3d Cir. 2005), in which we held that indefinite detention in
deplorable prison conditions does not rise to the level of “torture,” absent a showing of
specific intent to inflict pain and suffering.

                                              4
