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


5-19-2006

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Precedential or Non-Precedential: Precedential

Docket No. 04-4523




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                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                   No: 04-4523

                KESNER FRANCOIS,
                         Appellant

                             v.

    *ALBERTO GONZALES, Attorney General;
   *MICHAEL CHERTOFF, DEPARTMENT OF
             HOMELAND SECURITY,
   BUREAU OF IMMIGRATION & CUSTOMS
                 ENFORCEMENT;
   MICHAEL J. GARCIA, Associate Secretary of
    the Department of Homeland Security, Bureau
       of Immigration & Customs Enforcement;
   JOHN TORRES, District Director, Department
     of Homeland Security-Bureau of Immigration
& Customs Enforcement; MICHAEL ABODE, Warden,
 Middlesex County Jail, North Brunswick, New Jersey

       *(Amended pursuant the F.R.A.P. 43(c))

          On Petition for Review from the
    Board of Immigration Appeals (A 36 470 712)




                         1
                 Initially docketed as an
       Appeal from the United States District Court
        for the District of New Jersey prior to the
               enactment of the Real ID Act
                  (Civ. No. 04-cv-01961)
         District Judge: Hon. William J. Martini

                Argued: February 2, 2006

    Before: McKEE, SMITH and VAN ANTWERPEN,
                    Circuit Judges

              (Opinion filed: May 19, 2006)

REGIS FERNANDEZ, ESQ. (Argued)
18 Green Street, Third Floor
Newark, NJ 07102
Attorney for Appellant

CHRISTOPHER J. CHRISTIE, ESQ.
United States Attorney
District of New Jersey
NEIL R. GALLAGHER, ESQ.
Assistant United States Attorney
RUDOLPH A. FILKO, ESQ. (Argued)
Assistant United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Attorneys for Appellees




                            2
                           OPINION

McKEE, Circuit Judge.

        Kesner Francois appeals the district court’s denial of the
petition for a writ of habeas corpus that he filed pursuant to 28
U.S.C. § 2241, seeking relief from removal based upon alleged
violations of the Convention Against Torture (“CAT”). For the
reasons that follow, we will convert Francois’ habeas petition
into a petition for review, and deny his petition.

       I. FACTS AND PROCEDURAL HISTORY

       Francois, a native and citizen of Haiti, was admitted to
the United States as a lawful permanent resident on March 8,
1979. On May 8, 1992, Francois was convicted of possession
of a controlled substance in state court. On October 29, 1997,
he was convicted of aggravated assault in state court and
sentenced to six years in prison.

       Francois returned to Haiti three times in 2003. On
August 10, 2003, Francois arrived at JFK International Airport
in New York City and sought admission to the United States as
a returning resident. Entry was denied, and he was taken into
the custody of the Bureau of Immigration and Customs Affairs
(“ICE”) because his criminal convictions made him
inadmissible. He was eventually served with a Notice to
Appear, charging him with being a removable alien under
provisions of the Immigration and Nationality Act (“INA”)
based upon his criminal convictions in state court.


                                3
       In the removal proceedings that followed, Francois
conceded removability, but applied for asylum, withholding of
removal, and relief under Article 3 of the Convention Against
Torture (“CAT”).       In support of the latter claim, Francois
alleged that, as a criminal deportee being returned to Haiti, he
would be indefinitely imprisoned by Haitian authorities and
tortured if returned. That allegation was supported by official
and unofficial reports describing the conditions faced by
criminal deportees and Haitian prisoners.1 The immigration
judge (“IJ”) denied Francois’ claim for asylum and withholding
of removal, but granted relief under the CAT based upon the
reported conditions in Haitian detention facilities. The
Department of Homeland Security (“DHS”) appealed the IJ’s
decision to the Board of Immigration Appeals, and the BIA
reversed.

        Francois thereafter filed a petition for habeas corpus in
district court pursuant to 28 U.S.C. § 2241. The district court
denied habeas relief concluding that Francois “failed to show
more than isolated instances of torture occur in Haitian prisons.”
Francois v. Ashcroft, 343 F. Supp. 2d 327, 337 (D.N.J. 2004).
This appeal followed.

              II. EFFECT OF REAL ID ACT

       District courts had jurisdiction over habeas petitions


       1
       These reports are discussed in some detail below.
Francois relied upon these reports because he had never been
imprisoned in Haiti, nor did he know anyone who had been.

                                4
alleging violations of the CAT when Francois filed his habeas
petition in 2004. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222
(3d Cir. 2003). Review was “confined to questions of
constitutional law and statutory interpretation.” Bakktrigher v.
Elwood, 360 F.3d 414, 424 (3d Cir. 2004). “[T]he broader
species of review for substantial evidence and abuse of
discretion typical of APA challenges” was “wholly out of
bounds.” Id. at 423. Accordingly, § 2241 habeas proceedings
did “not embrace review of the exercise of discretion, or the
sufficiency of the evidence.” Id. at 420. Instead, the habeas
court’s jurisdiction was limited to “pure questions of law,”and
to “issues of application of law to fact, where the facts are
undisputed and not the subject of challenge.” Id. at 420.

        However, “[t]his jurisdictional framework was radically
overhauled . . . with the passage of the REAL ID Act of 2005,
Pub.L. No. 109-13, 119 Stat. 231.” Kamara v. Att’y Gen. of the
United States, 420 F.3d 202, 209 (3d Cir. 2005). Section 106(a)
of the REAL ID Act, the provision we are concerned with,
amended 8 U.S.C. § 1252(a)(2) of the INA by eliminating the
district courts’ habeas corpus jurisdiction (28 U.S.C. §§ 2241,
1361 and 1651) over final orders of removal in nearly all cases.
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 United Nations
Convention Against Torture and Other Forms of Cruel,
Inhuman, or Degrading Treatment or Punishment, except as
provided in subsection (e) of this section.” REAL ID Act §
106(a)(1)(B), 8 U.S.C. § 1252(a)(4). Section 106(a)(1)(A)(iii)
of the REAL ID Act also amended 8 U.S.C. § 1252 by adding
a new provision, § 1252(a)(2)(D), which states:

                               5
       Nothing in subparagraph (B) or (C), or in any
       other provision of this Act (other than this
       section) which limits or eliminates judicial
       review, shall be construed as precluding review of
       constitutional claims or questions of law raised
       upon a petition for review filed with an
       appropriate court of appeals in accordance with
       this section.

8 U.S.C. § 1252(a)(2)(D). With this amendment,

       Congress evidenced its intent to restore judicial
       review of constitutional claims and questions of
       law presented in petitions for review of final
       removal orders. This now permits all aliens,
       including criminal aliens, to obtain review of
       constitutional claims and questions of law upon
       filing of a petition for review with an appropriate
       court of appeals.

Kamara, 420 F.3d at 210 (quoting Papageorgiou v. Gonzalez,
413 F.3d 356, 358 (3d Cir. 2005)).

       In explicitly making these amendments retroactive,2


       2
         “REAL ID Act § 106(b) provides that § 1252(a)(2)(D),
‘shall take effect upon the date of the enactment of this division
and shall apply to cases in which the final administrative order
of removal . . . was issued before, on, or after the date of the
enactment of this division.’” Kamara, 420 F.3d at 210.

                                6
Congress provided that habeas petitions filed under § 2241,
which were pending in the district courts as of 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 to our discussion.
REAL ID Act § 106(c). Kamara, 420 F.3d at 210,
        As we recognized in Kamara, the “REAL ID Act is silent
as to the exact procedural posture which faces us here, i.e. an
appeal from a district court’s habeas decision that is now
pending before the court of appeals.” 420 F.3d at 210 (citing
Bonhometre v. Gonzalez, 414 F.3d 442 (3d Cir. 2005)). In
Kamara, we affirmed Congress’s intent “to provide aliens with
one chance for judicial review in the court of appeals[.]” We
therefore concluded that the appropriate way to treat a pending
appeal from the district court’s habeas petition, is to “vacate and
disregard the [d]istrict [c]ourt’s opinion and address the claims
raised in [the] habeas petition as if they were presented before
us in the first instance as a petition for review.” 420 F.3d at 210
(citing Bonhometre, 414 F.3d at 445). Accordingly, we will
consider Francois’ claims as if they were first presented in a
petition for review of the BIA’s decision.

               III. STANDARD OF REVIEW

       Even though Francois’ § 2241 habeas petition has been
converted into a petition for review, our standard of review
remains the same. “A review for ‘constitutional claims or
questions of law,’ as described in § 106(a)(1)(A)(iii) of the
REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our previously
enunciated standard of review over an alien’s habeas petition.”

                                7
Kamara, 420 F.3d at 211. Accordingly, in examining Francois’
claims, “we are limited to pure questions of law, and to issues
of application of law to fact, where the facts are undisputed and
not the subject of challenge.” Id. (citations and internal
quotations omitted). 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.” Id. (citations omitted).

    IV. THE CONVENTION AGAINST TORTURE

       On October 21, 1998, the President signed into law the
Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”), Pub.L. No. 105-277, Div. G., 112 Stat. 2681-761,
authorizing the implementation of Article 3 of the Convention
Against Torture3 and requiring implementing regulations to be
promulgated by the applicable agencies within 120 days. As
directed, the Department of Justice, which then included the
Immigration and Naturalization Service, promulgated
regulations setting forth the procedures by which aliens could
obtain relief under the CAT. See 64 Fed. Reg. 8478, codified at
8 C.F.R. §§ 208.16(c), 208.17 & 208.18(a).

       8 C.F.R. § 208.18(a)(1), the regulatory definition of


       3
        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.

                               8
torture, mirrors the definition of torture contained in Article 1 of
the CAT, which is then clarified by six additional provisions,
several of which 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 in 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:

                                 9
             (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 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 and the burden of proof for a CAT

                               10
claim. Section 208.16(c)(2) provides that “[t]he burden of proof
is on the applicant for withholding of removal4 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).

                      V. DISCUSSION

      Francois contends that he is entitled to CAT relief
because, as a criminal deportee, he will be indefinitely detained




       4
         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).

                               11
in a Haitian prison5 upon his return, and he will be forced to
endure appalling prison conditions that are tantamount to
“torture.” As noted earlier, this claim rests only upon
generalized prison conditions rather than any specific treatment
that would be intentionally directed at him. In support of his
claim, Francois cited: (1) the U.S. State Department’s Country
Report on Human Rights Practices – Haiti 2002 (“2002
Country Report”); (2) the Human Rights Watch’s World Report
2003 – Haiti (“World Report 2003”); and (3) the INS Resource
Information Centers’ Haiti – Information on Conditions in
Haitian Prisons and Treatment of Criminal Deportees
(“Conditions in Haitian Prisons”).

        Our assessment of these country reports is substantially
the same as district court’s. As we noted above, the district
court’s opinion has been vacated by operation of the REAL ID
Act. However, since that court’s assessment is consistent with
our own, and since the government does not challenge the
district court’s findings, we will set forth substantial portions of
the district court’s summary of those reports in the interest of
judicial economy.

        The district court described the essential elements of
these reports as follows:

       Criminal deportees who are removed to Haiti are
       routinely imprisoned. The Haitian authorities do


       5
       The parties stipulated that Francois would likely be
detained if he was removed to Haiti.

                                12
      this as a preventive measure to prevent returning
      criminals from further exacerbating the country’s
      already high levels of crime. U.S. criminal
      deportees are incarcerated in the National
      Penitentiary with the general prison population.
      They are held indefinitely, with one exception.

343 F. Supp. 2d. at 328-29. Although Haitian authorities detain
returning aliens such as Francois “indefinitely,” the district
court explained that:

      [T]he reports use the word “indefinitely” not to
      connote that the criminal alien will never be
      released, but to suggest that the person will be
      held without notice of when they will be released.
      On average, it appears that most detained
      deportees were released after several months of
      imprisonment, although there were instances
      where people were detained up to 10 months.

Id. at 329 n.2. If the deportee has a close family member, then
the deportee may be released approximately three months after
incarceration. Id. at 329. However, this exception is narrow.

      Criminal deportees are released from the National
      Penitentiary after a close family member presents
      proof of identification as well as proof of
      relationship to the deportee and must swear in
      writing that they will take responsibility for the
      deportee upon release and further, that they agree
      that in the event that the deportee is alleged to

                              13
       commit a crime, and is not apprehended, the
       responsible person will be subject to arrest until
       such a time as the deportee is apprehended. In
       2001, 4-5 families have been subjected to arrest,
       with one family member imprisoned for three
       months until the police were able to arrest the
       deportee. This deters some families from coming
       forward or following through with the process for
       releasing their loved ones from detention when
       first deported to Haiti.

Id. at 329 (quoting Conditions in Haitian Prisons at 4).
Moreover, it appears that “not just any family member can
claim responsibility for the deportee. Authorities often require
that a close relative, such as a parent, come forward. In short,
detention of a criminal deportee can last anywhere from a short
duration to an indefinite duration.” Id.

       The conditions of Haitian prisons are atrocious.
       Although the prison population of the National
       Penitentiary was reduced to 1,700 prisoners in
       2002, it remains overcrowded with extremely
       poor and antiquated facilities. Despite recent
       improvements in prison administration, prisoners
       and detainees continue to suffer from a lack of
       basic hygiene, malnutrition, poor quality health
       care, and, in some facilities, 24-hour confinement.
       Most prisons periodically suffered from lack of
       water, especially in the provinces. Many
       prisoners also suffered from diseases, including
       ‘preventable diseases such as beriberi, AIDS, and

                               14
       tuberculosis. Human rights groups, such as the
       International Committee of the Red Cross and the
       Haitian Red Cross, were freely permitted to enter
       prisons and monitor conditions, and assist
       prisoners and detainees with medical care, food,
       and legal aid.

Id. (footnote, internal quotation marks, bracket and citations
omitted).

        The district court also noted that, in addition to “those
abysmal conditions, prisoners are also grossly mistreated by
prison officials.” Id. In quoting the State Department’s
Country Report on Human Right’s Practices – Haiti 2001, the
district court wrote:

       Police mistreatment of suspects at both the time
       of arrest and during detention remains pervasive
       in all parts of the country. Beatings 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 medical treatment from injured
       jail inmates. Police almost never are prosecuted

                               15
       for the abuse of detainees.

Id. at 329-30.

       We therefore have no trouble concluding that the
conditions Francois will likely face in Haitian prisons following
his removal to Haiti are inhumane and deplorable. That does
not, however, end our inquiry, because it does not establish that
those conditions constitute “torture” under the CAT. That
inquiry is controlled by our decision in Auguste v. Ridge, 395
F.3d 123 (3d Cir. 2005), and we conclude that Auguste
precludes granting Francois relief.

        Auguste, like Francois, was a Haitian alien facing
removal after being convicted of crimes in the United States.
Auguste claimed that his entire family lived in the United States,
just as Francois does. Auguste also based his claim for relief
under the CAT upon his assertion that he would be “indefinitely
detained upon his arrival in Haiti in prisons that are notorious
for their brutal and deplorable conditions that have been
compared to those existing on slave ships.” 395 F.3d at 128.
However, Francois, like Auguste, does not claim that he was
tortured in Haiti, nor does Francois allege any kind of coercion,
force, cruelty or brutality would be personally directed at him if
he were returned to Haiti. Rather, Francois’ claim for relief
rests solely upon “the likelihood that he would be detained upon
arrival and subject to harsh prison conditions.” Id. at 134. We
rejected Auguste’s attempt to equate harsh prison conditions
with “torture” because conditions of confinement, without more,
do not constitute torture under the CAT. Francois’ claim is
factually indistinguishable from the one we rejected in Auguste.

                               16
 Accordingly, we hold that Francois is not eligible for relief
under the CAT.

        Francois attempts to avoid the impact of Auguste by
relying upon our discussion of the CAT in Zubeda v. Ashcroft,
333 F.3d 463 (3d Cir. 2003). Francois argues that his claim
satisfies the intent element for torture as set forth in Zubeda.
There, in discussing the intent required of persecutors under the
CAT, we stated: “the Convention [Against Torture] simply
excludes severe pain or suffering that is the unintended
consequence of an intentional act.” Id. at 473. However,
Francois’ reliance on Zubeda ignores that our entire discussion
there was in the context of a woman who alleged that she would
be raped if returned to her native country, and we had to
determine if that allegation could support relief under the CAT
on the record there.

        In Zubeda, we granted a petition for review, vacated the
BIA’s denial of relief under the CAT, and remanded for further
proceedings before the BIA. However, the IJ had found that
Zubeda had established a likelihood that she would be subjected
to acts of violence specifically directed against her including the
likelihood that she would be raped if returned to the Democratic
Republic of the Congo.

        In explaining why Auguste had not satisfied his burden
under the CAT, we noted that “[t]he District Court concluded
that ‘there must be some sort of underlying intentional direction
of pain and suffering against a particular petitioner, more so than
simply complaining of the general state of affairs that constitute
conditions of confinement in a place, even as unpleasant as

                                17
Haiti.’” 395 F.3d at 137. Given our discussion in Auguste, we
conclude that the generalized allegations of prison conditions
Francois advances here do not rise to the level of “torture.”6

                    VI. CONCLUSION

       For all of the above reasons, we will vacate the district
court’s opinion and deny Francois’ petition for review of the
decision of the BIA.




       6
          We do not, of course, suggest that conditions of
confinement can never satisfy the burden a petitioner must
establish to qualify for relief under the CAT. We hold only that
Francois has not satisfied that burden on this record.

                              18
