                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3165




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                                                               NOT PRECEDENTIAL


                         IN THE UNITED STATES COURT
                                  OF APPEALS
                             FOR THE THIRD CIRCUIT


                                    NO. 06-3165


                                  RONY ALTIDOR
                                    Petitioner

                                          v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                              Respondent



        On Petition for Review of an Order of the Board of Immigration Appeals
                                   No. A25-432-984
                         Immigration Judge: Hon. Miriam Mills


                                Argued June 13, 2007

                  BEFORE: McKEE, STAPLETON and NYGAARD
                               Circuit Judges

                         (Opinion Filed: September 13, 2007)




Martin A. Kascavage (Argued)
Schoener & Kascavage
400 Market Street, Suite 420
Philadelphia, PA 19106
 Attorney for Petitioner

Jeffrey Clair (Argued)
Room 3127
U.S. Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Washington, D.C. 20530
 and
Richard M. Evans
Paul Fiorino
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
 Attorneys for Respondent



                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Rony Altidor petitions this court for review of a final order of removal of the

Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the

petition.

                                      I. Background

       Altidor is a native and citizen of Haiti. He came to the United States from Haiti in

November 1999, and received a visitor’s visa authorizing him to stay for six months.

Altidor overstayed his visa, however, and applied for asylum in October 2001. In

February 2002, the Immigration and Naturalization Service (now the Department of


                                             2
Homeland Security) served him with a Notice to Appear and instituted removal

proceedings against him. Altidor conceded removability and requested asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”).

In December 2004, the Immigration Judge (“IJ”) held a hearing at which Altidor gave the

following testimony in support of his claims for relief.

       Altidor’s claims are primarily based on incidents that occurred while he was

serving as a police officer in the Haitian National Police (“HNP”). In November 1998,

Altidor arrested an individual for illegal possession of a firearm, but was subsequently

ordered to release the suspect by his superior, Inspector Gerol. Altidor later learned that

the suspect, who vowed to retaliate against him, was a good friend of Inspector Gerol.

       In December 1998, Altidor was involved in an automobile accident in front of a

church where he had taken his ill son for spiritual treatment. As Altidor discussed the

accident with the owner of the other automobile, he was accosted by a man wielding a

knife and demanding money for the accident. In response, Altidor, who was dressed in

plain clothes but still on duty, announced that he was a police officer, pulled out his gun,

and fired warning shots into the air. Several of the assailant’s associates thereafter

surrounded Altidor and set fire to his car. The group fled the scene, however, after an

eyewitness called the police. Altidor later learned that the assailant and his associates

were members of a gang.

       Altidor promptly filed a police report addressing the December 1998 incident.

Approximately two weeks later, Inspector Gerol and other police officials questioned

                                              3
Altidor about discharging his firearm during the encounter. Gerol also expressed his

displeasure with Altidor for arresting his friend in November 1998, and accused Altidor

of being a CIA agent because he had received police training in the United States.1

       According to Altidor, Gerol and his associates thereafter arrested him without

explanation. They sent him to a prison that housed gang members where he was beaten

by the inmates. Three weeks later, Altidor was transferred to the national penitentiary

and detained for another eight months. While imprisoned in the national penitentiary,

Altidor was attacked by inmates who discovered that he had worked as a police officer.

In September 1999, a judge withdrew the arrest warrant that had been issued against

Altidor and he was released from prison.

       Upon his release, HNP transferred Altidor from Port-au-Prince to Gonaives, where

he resumed his duties as a police officer. While Altidor was working in Gonaives, he

learned that gang members had on several occasions come looking for him at the

residence he still maintained in Port-au-Prince, and he also received threatening telephone

calls. Altidor believed that the gang members were looking for him because of his

involvement in the December 1998 incident. In November 1999, Altidor fled to the

United States.

       At the close of the hearing, the IJ denied Altidor’s applications for asylum,

withholding of removal, and CAT protection. The IJ declined to consider the merits of


   1
    Altidor had previously traveled to the United States on two occasions, “once as a
visitor and once for police training.” App. at P2; A.R. 205.

                                             4
Altidor’s asylum claim, which had been filed out of time, because he did not qualify for

an exception to the one-year limitations period. See 8 U.S.C. § 1158(a)(2)(D). In

rejecting his claim for withholding of removal, the IJ found that Altidor had failed to

establish that any persecution he suffered was “on account of” a protected ground under 8

U.S.C. § 1253(h). The IJ denied Altidor’s claim for CAT relief because he had not shown

that there was a reasonable likelihood he would be tortured if he returned to Haiti. The IJ

found, however, that Altidor was eligible for voluntary departure.

       Altidor appealed to the BIA, which adopted and affirmed the IJ’s decision. This

petition for review followed.2

                                         II. Asylum

       Altidor does not dispute that his asylum application was untimely filed. Instead,

he challenges the IJ’s determination that he was not entitled to tolling of the limitations

period under 8 U.S.C. § 1158(a)(2)(D), arguing that the IJ improperly discredited his

explanation for the filing delay. We, however, lack jurisdiction to review the IJ’s

discretionary determination that Altidor was ineligible for tolling under the asylum

statute. See 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any



   2
    We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA adopted
and affirmed the IJ’s decision, we review the IJ’s decision. Gao v. Ashcroft, 299 F.3d
266, 271 (3d Cir. 2002). This court reviews the IJ’s findings and conclusions for
“substantial evidence,” and will uphold them unless the evidence “was so compelling that
no reasonable factfinder could fail to find the alien eligible for [relief].” Lie v. Ashcroft,
396 F.3d 530, 534 n.3 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 480
(1992)).

                                              5
determination of the Attorney General under [8 U.S.C. § 1158(a)(2)]”); Sukwanputra v.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (“[D]espite the changes of the REAL ID Act,

8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction to review a

decision regarding whether an alien established changed or extraordinary circumstances

that would excuse his untimely filing [pursuant to § 1158(a)(2)(D)].”) (citations omitted).

Accordingly, we do not consider Altidor’s challenge to the IJ’s disposition of his asylum

claim.

                                 III. Withholding of Removal

         To obtain mandatory withholding of removal, an alien must establish by a “clear

probability” that his life or freedom would be threatened on account of his race, religion,

nationality, membership in a particular social group, or political opinion in the proposed

country of removal. Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003). An alien

can establish eligibility for withholding of removal by either demonstrating past

persecution or by showing a likelihood of future persecution. 8 C.F.R. § 1208.16(b);

Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998). To show past persecution, which

is the focus of Altidor’s claim here, an alien must demonstrate “(1) an incident, or

incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the

statutorily protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Konan v. Attorney General, 432

F.3d 497, 501 (3d Cir. 2005) (citation omitted).

         Altidor contends that the IJ erred in concluding that his alleged persecution by his

                                               6
corrupt police superiors and the gang members did not constitute persecution on account

of a “political opinion,” which he characterizes as his enforcement of the law without

corruption. In rejecting this argument, the IJ noted that Altidor had testified that he was

not politically active, and that there was “no evidence that those who harmed [him] were

politically motivated.” App. at 10. The IJ noted in particular the lack of evidence that

“political ideologies motivat[ed] [Altidor’s] wrongful detention” by his police superiors.

Id. The IJ concluded that, at most, the record reflected nothing more than “some

professional jealousy against [Altidor] by his superiors” because he had trained in the

United States. Id.

       The IJ’s findings in this respect are supported by substantial evidence. The record

shows that Altidor was targeted by his alleged persecutors for his conscientious police

work rather than on account of any political opinion he held or that was imputed to him.

Although “[r]efusal to accede to government corruption can constitute a political opinion”

in certain circumstances, Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (police

officer’s exposure and prosecution of corruption that “is inextricably intertwined with

governmental operation” may amount to an expression of political opinion), there is no

suggestion that Altidor’s faithful discharge of his ordinary police duties was motivated by

anything other than his own professional ethics, or that his persecutors were motivated by

anything other than personal retribution. In fact, through his counsel, Altidor admitted at

the hearing that he was persecuted simply because he “uph[e]ld the rule of the law” in his

capacity as a police officer. A.R. at 95. In short, Altidor’s mere performance of his

                                              7
ordinary police duties without corruption does not constitute a political opinion or

imputed political opinion for purposes of withholding of removal, as the IJ correctly

found. See Konan, 432 F.3d at 504 (attack of police officers “because they are police

officers,” rather than “because they are [government] loyalists,” is not on account of a

political opinion); Marku v. Ashcroft, 380 F.3d 982, 989 (6th Cir. 2004) (upholding denial

of asylum where alien “presented no evidence to compel the conclusion that [her

supervisor] or anyone else knew that she was even opposed to government corruption or

had any other political opinion”).

       For similar reasons, the IJ also correctly concluded that the alleged persecution

suffered by Altidor was not on account of his membership in a “particular social group.”

As a general matter, “particular social group,” as the phrase is used in the immigration

statutes, refers to “a group of persons all of whom share a common, immutable

characteristic.” Escobar v. Gonzales, 417 F.3d 363, 366 (3d Cir. 2005) (quoting Matter

of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)). Contrary to Altidor’s suggestion, the

BIA has recognized that active members of a police force do not constitute a “particular

social group” because the “dangers faced by policemen as a result of that status alone . . .

are perils arising from the nature of their employment and domestic unrest rather than ‘on

account of’ immutable characteristics or beliefs.” Matter of Fuentes, 19 I. & N. Dec. 658,

661 (BIA 1988). Although Altidor contends on appeal that the inmate attacks he suffered

while imprisoned in the national penitentiary were on account of his status as a former

police officer, which the BIA has recognized to be a protected social group, see id. at 662

                                             8
(observing that alien’s status as former policeman “is in fact an immutable characteristic,

as it is one beyond the capacity of the [alien] to change”), the current record fails to

demonstrate (1) that the harm suffered by Altidor while imprisoned in the national

penitentiary amounted to persecution, or (2) that the government acquiesced in any such

incidents of harm.

        In sum, substantial evidence supports the IJ’s denial of relief on Altidor’s

withholding of removal claim.3

                                     IV. CAT Protection

        “An applicant for relief on the merits under [Article 3] of the [CAT] bears the

burden of establishing ‘that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 174-

75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). 8 C.F.R. § 208.16(c)(3) provides

that:

        In assessing whether it is more likely than not that an applicant would be
        tortured in the proposed country of removal, all evidence relevant to the
        possibility of future torture shall be considered, including, but not limited
        to:
        (i) Evidence of past torture inflicted upon the applicant;
        (ii) Evidence that the applicant could relocate to a part of the country of
        removal where he or she is not likely to be tortured;
        (iii) Evidence of gross, flagrant or mass violations of human rights within


   3
     Altidor also challenges certain adverse credibility determinations made by the IJ in
assessing his claim for withholding of removal. As the IJ recognized, however, even
assuming that Altidor’s testimony was wholly credible, his withholding of removal claim
still must fail because he cannot show that his alleged persecution was “on account of” a
statutorily protected ground.

                                               9
       the country of removal, where applicable; and
       (iv) Other relevant information regarding conditions in the country of
       removal.

The standard for relief under the CAT “has no subjective component, but instead requires

the alien to establish, by objective evidence, that he is entitled to relief.” Id. at 175. We

have stated that: “For an act to constitute torture under the [CAT] and the implementing

regulations, it must be: (1) an act causing severe physical or mental pain or suffering; (2)

intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation

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

control of the victim; and (5) not arising from lawful sanctions.” Auguste v. Ridge, 395

F.3d 123, 151 (3d Cir. 2005) (citations omitted).

       Altidor’s CAT claim was principally based on inmate attacks he allegedly suffered

while in prison. In rejecting his claim, the IJ found that Altidor had failed to articulate

with sufficient specificity the nature of the harm inflicted upon him in prison, noting in

particular that Altidor’s testimony that he “endured all sorts of humiliation in the hands of

prisoners” and that “[e]veryone was shocked to see how I was being treated [in jail]” was

too vague to support a claim of torture. A.R. at P59; A.R. at 390.

       Altidor did, however, provide at least some additional information about the harm

he allegedly suffered while in prison. In an asylum interview that was submitted as an

exhibit at the hearing, Altidor stated under oath that “one of the prisoners hit me in the

eye and I still have problems with my vision.” App. at P3. Nevertheless, this isolated

incident falls far short of satisfying the narrow definition of torture under CAT. In short,

                                               10
even assuming for the sake of argument that Altidor would likely be imprisoned if he

returned to Haiti, substantial evidence supports the IJ’s finding that Altidor failed to

demonstrate that he would more likely than not be tortured in prison. The IJ, therefore,

properly denied Altidor’s claim for CAT relief.4

                                       V. Conclusion

       For the foregoing reasons, we will deny Altidor’s petition for review.




   4
     Altidor also suggests that the IJ denied him a full and fair opportunity to testify in
support of his claims for relief at the administrative hearing. Although Altidor’s hearing
testimony spans over one-hundred pages of transcript, he insists that the IJ improperly
limited his testimony by telling him to “get to the point” on one occasion, A.R. at 87, and
making other similar remarks during the course of the hearing. Because Altidor failed to
raise this claim of procedural error before the BIA, however, we lack jurisdiction to
consider it. See Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990) (procedural errors
correctable through the administrative process are subject to exhaustion requirement); see
also Bonhometre, 414 F.3d at 448 (applying exhaustion requirement to claim that IJ failed
to completely develop the record).

                                              11
