                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-29-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3535




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"Louis v. Atty Gen USA" (2009). 2009 Decisions. Paper 1113.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1113


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-3535
                                     ___________

                                 MAKENTON LOUIS,
                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                            Respondent

                      ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A42-499-773)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 18, 2009

            Before: RENDELL, FUENTES and ALDISERT, Circuit Judges

                             (Opinion filed: June 29, 2009)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Makenton Louis petitions for review of an order of the Board of Immigration

Appeals (BIA). For the reasons below, we will deny the petition for review.
       Louis, a native of Haiti, entered the United States in 1991 as an immigrant. In

2006, Louis was charged as removable as an aggravated felon. He applied for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT). Louis

asserted that he had been stabbed and beaten in 1992 because he was a supporter of

Aristide. He alleged that his attacker, Ti Machine, is a member of the Haitian security

force who would have control over his detention as a criminal deportee in Haiti. He

further contended that his prior treatment for latent tuberculosis (TB) made him more

susceptible to contracting TB in detention in Haiti. Louis also argued that as a

Rastafarian, he could be tortured or killed.

       After a hearing, the IJ found Louis removable and ineligible for asylum or

withholding of removal. She denied deferral of removal under the CAT and ordered

Louis removed to Haiti. The BIA affirmed. It concluded that the IJ did not clearly err in

determining that Louis’s alleged former persecutor had no current intention to torture

Louis or control over the conditions of Louis’s possible detention. The BIA agreed with

the IJ’s discounting of testimony regarding the torture and killing of Rastafarians because

there was no documentary evidence. Louis filed a timely petition for review.

       Louis only challenges the denial of relief under the CAT. Because Louis is an

aggravated felon, a determination he does not challenge, our review of the denial of relief

under the CAT is limited to constitutional claims or questions of law. 8 U.S.C. §

1252(a)(2)(C) & (D). To be eligible for deferral of removal under the CAT, Louis must



                                               2
demonstrate that it is more likely than not that he would be tortured if removed to Haiti. 8

C.F.R. § 208.17. We may not reverse the BIA’s decision unless the record evidence

would compel a reasonable fact-finder to conclude that Louis had met his burden. I.N.S.

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

       Louis argues that he will be tortured in Haiti by being detained in poor conditions.

In Pierre v. Attorney General, 528 F.3d 180 (3d Cir. 2008)(en banc), we determined that

the alien was not entitled to CAT relief because he had not shown that the Haitian

authorities had the specific intent to torture him by imprisoning him. Pierre required a

feeding tube and argued that he required daily medical care. We concluded that the pain

Pierre would experience from the poor conditions and lack of medical care in detention

was the unintended result of Haiti’s extreme poverty. Id. at 189. We noted that in order

to obtain relief under the CAT, an alien must show that the torturer has the goal or

purpose of inflicting severe pain or suffering. Id. at 190. Under Pierre, Louis fails to

qualify for relief under the CAT.

       Louis argues that Ti Machine, who attacked him in 1992, has the intent to torture

him.1 Louis contends that Ti Machine is affiliated with the Haitian authorities and would

have control over his detention in Haiti if he were removed. One of Louis’s sisters stated

in an affidavit that after she and her brother arranged for Louis’s release from jail in



   1
    Louis stated that after he was stabbed and beaten unconscious by Ti Machine in
1992, he woke up in jail and was not given food or medical attention for three days.
Louis’s brother had to pay Ti Machine to get Louis released.

                                               3
1992, they “were told to warn [Louis] that he is Traitor and if they ever see him on the

streets of Haiti again money could not buy his freedom.” She stated that Ti Machine

“apparently is now a sergeant of Haiti’s anti-gang Special Forces.” C.A.R. at 815-16.

She testified before the IJ that she saw Ti Machine in a truck with other military men in

2006. Louis also submitted an affidavit from Joel Juste, a friend of Louis from detention

in the United States. Juste stated that another criminal deportee, Joel Calistin, reported

that Ti Machine was the person Calistin paid to be released from detention because Ti

Machine was a sergeant in the anti-gang unit. C.A.R. at 886.

       The IJ concluded, and the BIA agreed, that Louis had not presented any evidence

that Ti Machine had any interest in torturing Louis if he were returned to Haiti or that Ti

Machine was aligned with the government. As noted earlier, we lack jurisdiction over

Louis’s challenge to the factual findings of the IJ. 8 U.S.C. § 1252(a)(2)(C) & (D).

Moreover, Louis has not demonstrated that the record compels a finding that Ti Machine

will have control over Louis’s detention or the intent to torture him. He offers only

testimony of the beating in 1992 as well as his sister’s belief and a second-hand report

that Ti Machine is now a sergeant in the anti-gang unit.

       The IJ found that Louis’s diagnosis of latent tuberculosis was not sufficient to

support an argument that he would be singled out for torture or that he would contract TB

if detained in Haiti. The possibility of Louis contracting TB is not distinguishable from

the medical problems suffered by the alien in Pierre. As for Louis’s contention that he



                                              4
would be tortured or killed because he is a Rastafarian, we agree with the IJ that there is

no documentary evidence to support this claim. Louis also argues that the officials in

Haiti demand bribes for the release of criminal deportees. However, this does not compel

a finding that the officials have the specific intent to torture Louis.

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




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