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


4-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2896




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                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                            Nos. 05-2896 and 05-3605


                            JOEL JEAN BAPTISTE,
                                       Petitioner

                                         v.

                            ATTORNEY GENERAL
                           OF THE UNITED STATES,
                                       Respondent


                     Petition for Review of an Order of the
                      United States Department of Justice
                         Board of Immigration Appeals
                            (BIA No. A47-384-739)
                  Immigration Judge: Honorable Grace A. Sease

            Initially Docketed as an Appeal from EDPA No. 05-cv-01710
                   Prior to the Enactment of the Real ID Act of 2005


                    Submitted Under Third Circuit LAR 34.1(a)
                                March 26, 2007

           Before: RENDELL, BARRY and CHAGARES, Circuit Judges.

                             (Filed:   April 25, 2007)


                           OPINION OF THE COURT



RENDELL, Circuit Judge.
       The Immigration and Naturalization Service instituted removal proceedings

against Petitioner Joel Jean Baptiste, who sought asylum and withholding of removal

under the Immigration and Nationality Act (“INA”), 66 Stat. 163, 8 U.S.C. § 1101 et seq.

The immigration judge (“IJ”) denied relief, as did the Board of Immigration Appeals

(“BIA”), which issued a final order of removal. The BIA, like the IJ, found that Baptiste

had failed to establish eligibility for asylum, withholding, or protection under the United

Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT”), as implemented by the Foreign Affairs Reform and

Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112

Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231). We will deny

Baptiste’s petition for review.


                                      DISCUSSION

       We review the decision of the BIA for substantial evidence. See Abdulrahman v.

Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). Baptiste is a Haitian citizen who entered this

country with a green card in 2000 at the age of 27. He was convicted on March 2, 2004

in the Court of Common Pleas for Philadelphia County of indecent assault of a minor.

See 18 Pa. Cons. Stat. § 3126. Removal proceedings were instituted based on the belief

that Baptiste’s offense was an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and a crime

of moral turpitude committed within five years of admission to the United States, 8

U.S.C. § 1227(a)(2)(A)(i). The IJ’s decision in the Government’s favor on the former


                                             2
ground was reversed by the BIA, but Baptiste still concedes removability on the ground

of committing a crime of moral turpitude punishable by imprisonment for more than one

year.

        Baptiste sought asylum, withholding of removal, and protection under the CAT

based on his assertion that he was disabled and would be subjected to persecution upon

return to Haiti. His putative disabilities consisted of a limp and depression. As the IJ and

the BIA observed, and as his brief before us reflects, Baptiste offers nothing to suggest

that he will be persecuted by any entity in Haiti on the basis of these conditions; at the

most he has described the chaotic situation of civil unrest in Haiti faced by all Haitians.

        We consider Baptiste’s contentions in turn. With regard to asylum, Baptiste has

failed to demonstrate “persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). Even had Baptiste demonstrated that disabled Haitians

constitute a particular social group, he has not demonstrated “membership” in any

practical sense because his conditions are exceedingly minor. The only medication

Baptiste is currently being prescribed is Motrin and he offered no evidence that his

physical condition in any way led to persecution while he lived in Haiti. The problem for

Baptiste was not credibility–the IJ found Baptiste credible for the most part. Relief was

simply unwarranted because Baptiste did little more than describe the overall chaotic

conditions in Haiti. The order denying the asylum claim is supported by substantial



                                              3
evidence.1

       As the standard for a claim for withholding of removal is more stringent than the

standard for asylum, Baptiste’s withholding claim must fail as well. See Balazoski v. INS,

932 F.2d 638, 640 (7th Cir. 1991) (“Applicants for withholding of deportation, by

contrast, must satisfy a higher standard. They must show that there is a ‘clear probability’

that they will face persecution in the country to which they will be deported.”). There

was no clear probability that Baptiste faces persecution upon return to Haiti.

       Finally, Baptiste’s CAT claim must fail. Under the CAT, the “burden of proof is

on the applicant for withholding of removal . . . to establish that it is more likely than not

that he or she would be tortured if removed to the proposed country of removal. The

testimony of the applicant, if credible, may be sufficient to sustain the burden of proof

without corroboration.” 8 C.F.R. § 208.16(c)(2). 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 physical control of the victim; and

(5) not arising from lawful sanctions.” Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA


  1
    The BIA and the IJ both considered Baptiste’s application for asylum, even though he
presented his asylum request more than four years after entering the United States and
offered no reasons why this procedural defect should be excused. See 8 U.S.C. §
1158(a)(2)(B). Accordingly, while we find that the denial on the merits of the request for
asylum is supported by substantial evidence in light of the failure to show past
persecution or a “well-founded fear of persecution,” we will deny the petition for review
of the asylum claim as procedurally defaulted. 8 U.S.C. § 1101(a)(42)(A).


                                               4
2002). Baptiste has failed to offer any evidence that he faces torture upon his return to

Haiti; again his claim centers around the general upheaval Haitian citizens face on a daily

basis.2


                                       CONCLUSION

          For the reasons described above, the decision by the BIA denying Baptiste’s

asylum, withholding, and CAT claims is supported by substantial evidence. The petition

for review will be denied.




  2
    Baptiste only refers indirectly to the fact that his act of committing a crime in the
United States means that he will be held in Haiti’s preventive detention facility upon his
removal to that country. See Auguste v. Ridge, 395 F.3d 123, 129 (3d Cir. 2005) (“Since
at least 2000, it has been the policy of the Haitian government to detain deported
Haitians, who have incurred a criminal record while residing in the United States and who
have already served their sentences, in preventive detention.”). But Baptiste has offered
nothing that would suggest that his physical or mental conditions are such that the act of
placing Baptiste in the facility–knowing the odiousness of the facility–constitutes torture.
See Lavira v. Att’y Gen. of the United States, 478 F.3d 158, 166-72 (3d Cir. 2007).
Instead, Baptiste makes only a generalized attack on life in Haiti, one which must
necessarily fail.



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