United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2004
Charles R. Fulbruge III
Clerk
No. 03-60943
Summary Calendar
JONAS ROBERT,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A47 030 318
Before GARWOOD, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Jonas Robert petitions for review of an order of the Board of
Immigration Appeals (“BIA”) summarily affirming the immigration
judge’s (“IJ’s”) decision to deny his application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”).
Before the IJ, Robert, who was then represented by counsel,
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
admitted the truth of the charges in the notice to appear (NTA) and
conceded his removability. He filed an application for asylum or
withholding of removal, asserting that he feared being subjected to
torture in his home country on return thereto, which was explained
only by the statement that “enclosed are documented articles
detailing how deportees are treated in Haiti.” These articles
describe a policy of the Haitian government to detain in prison for
periods averaging one or two months returning criminal deportees
and the deplorable conditions of such prisons. Robert’s asylum
application answers “no” to each of the following questions:
“2. Have your or any member of your family ever
belonged to or been associated with any
organizations or groups in your home country, such
as, but not limited to, a political party, student
group, labor union, religious organization,
military or paramilitary group, civil patrol,
guerrilla organization, ethnic group, human rights
group, or the press or media?”
“3. Have you or any member of your family ever been
mistreated or threatened by the authorities of your
home country or any other country or by a group or
groups that are controlled by the government, or
that the government of the country is unable to
unwilling to control?”
Robert’s testimony reflects that he was 23 years old at the time of
the hearing and had been born and lived in Haiti until he was 20,
when he came to the United States, and that when he lived in Haiti
neither he nor his mother or father had any trouble with the
government. He was unaware of the policy of the Haitian government
towards returning deportees until after he came to the United
2
States when he learned of it by word of mouth and reading.
Robert argues that his Massachusetts conviction for malicious
damage to property did not involve a crime of moral turpitude, thus
he is not removable under 8 U.S.C. § 1227(a)(2)(A)(i)(2000). He
also argues that the IJ erroneously determined that he failed to
show membership in a cognizable social group, i.e. Haitian criminal
deportees who are automatically imprisoned upon arrival in Haiti.
He argues that he showed fear of future persecution by the Haitian
government because of the deplorable prison conditions which, he
argues, constitute torture under the CAT.
When, as in this case, the BIA summarily affirms an order of
an Immigration Judge, the underlying order is subject to appellate
review as the “final agency decision” of Immigration and Customs
Enforcement (formerly the Immigration and Naturalization Service).
Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003). A
final agency decision must be affirmed “if there is no error of law
and if reasonable, substantial, and probative evidence on the
record, considered as a whole, supports the decision’s factual
findings.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).
Conclusions of law by the BIA with respect to the construction of
the INA and its regulations are afforded Chevron deference. INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (citing Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984)).
3
After reviewing the record and the briefs, we conclude that
the decision is supported by substantial evidence and that the
evidence in the record does not compel a conclusion contrary to
that reached by the IJ and BIA. See Carbajal-Gonzalez v. INS, 78
F.3d 194, 197 (5th Cir. 1996); Chun v. INS, 40 F.3d 76, 78 (5th
Cir. 1994).
Robert’s argument that malicious damage to property is not a
crime involving moral turpitude was not raised before the IJ or the
BIA. This court therefore lacks jurisdiction to consider it. 8
U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir. 2001). The same is true of Robert’s argument, not raised
before either the IJ or the BIA, that his fear of persecution is
based on his membership in a particular social group, i.e., Haitian
deportees. 8 U.S.C. § 1252(d)(1); Wang, 260 F.3d at 452-53. An
applicant for asylum under the INA must establish 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). The same is likewise true
for withholding of deportation under the INA. 8 U.S.C. §
1231(b)(3)(A).
Accordingly, Robert has not properly preserved, and we must
reject, his challenge to the denial of his application for asylum
and/or withholding of deportation under the INA. And, in any
4
event, there was substantial evidence to support such denial. INS
v. Elias-Zacarias, 502 U.S. 478, 481 & n.1. (1992).
Roberts primarily seeks the protection of CAT on the ground
that Haiti’s treatment of involuntarily repatriated criminals is
akin to torture. He maintains that upon being deported to Haiti he
will be detained for some indefinite period in that country’s
notorious prison system as part of an official policy designed to
frighten returning criminals into obeying Haitian law. He argues
that the condition of these prisons is so abominable that simply
being incarcerated in one is a form of torture prohibited by CAT.
Claims for relief under the CAT do not require that the
prospective torture be inflicted on any one or more of the grounds
specified in 8 U.S.C. §§ 1101(a)(42)(A) and 1231(b)(4)(A).
Robert’s claim is foreclosed by Matter of J-E-, 23 I. & N.
Dec. 291, 296 (BIA 2002). In Matter of J-E-, an en banc panel of
the BIA, considering substantially similar facts, held that Haiti’s
practice of detaining criminal deportees in its backward prison
system does not constitute torture under CAT. Petitioner makes no
effort to distinguish Matter of J-E-. Instead, he argues that it
was wrongly decided and should not be followed by this court.
Petitioner, however, simply attacks Matter of J-E- on questions of
law and regulatory interpretation that were squarely addressed by
the BIA sitting en banc. Under the principle of Chevron deference,
5
this court must respect those determinations.1 Wang, 260 F.3d at
451 (“We will give the agency’s interpretation of its own rules
controlling weight unless it is plainly erroneous or inconsistent
with the regulation”) (citation and internal quotation marks
omitted). Moreover, the evidence before the IJ supports the IJ’s
finding that the practices and prison conditions imposed on
returning criminal deportees are not violative of the CAT and
Robert has presented nothing to compel a contrary finding.
Robert’s petition for review is
DENIED.
1
The court notes that the facts alleged by Petitioner do not
implicate the issue addressed in Azanor v. Ashcroft, 364 F.3d 1013,
1019-20 (9th Cir. 2004), in which the Ninth Circuit held that one
specific aspect of the Matter of J-E- decision was erroneous.
6