NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3619
___________
CLARK JEAN JUNIOR JEAN BAPTISTE
a/k/a Clark Jean Baptiste, a/k/a Clark Baptiste, a/k/a Stevenson Jean Baptiste,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-505-094)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2016
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: December 23, 2016)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Clark Jean Junior Jean-Baptiste (“Petitioner”), proceeding pro se, has requested
review of a Board of Immigration Appeals (“BIA”) decision dated September 2, 2016.
Finding that Petitioner’s claims all lack merit, we will deny the petition for review.
Petitioner is a native and citizen of Haiti. He entered the United States in 2006
when he was 16 years old. Petitioner became a lawful permanent resident, then
committed several crimes, while residing in Irvington, New Jersey.
In March 2015, Petitioner was issued a Notice to Appear, charging removability
based on aspects of his criminal history. An Immigration Judge (“IJ”) determined that
Petitioner was removable under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(C).1
Petitioner then applied for asylum and withholding/deferral of removal.
Petitioner and his father, Etienne, testified at an evidentiary hearing. Etienne in particular
testified that he was a lieutenant in the Haitian army under then-president Jean-Bertrand
Aristide until the 1991 coup, after which Etienne fled to the United States. When asked
why he feared for Petitioner’s safety, were he returned to Haiti, Etienne offered little
more than generalities: “Well, because of the way things are in Haiti . . . . [W]hen you go
to Haiti, [ ] it’s either you go to jail, or you get killed.”
After hearing testimony from the witnesses and considering documentary evidence
submitted by both sides, the IJ denied all relief. In rejecting Petitioner’s request for relief
under the Convention Against Torture (“CAT”), the IJ found that although Petitioner
1
Pursuant to § 1227(a)(2)(A)(iii), an alien convicted of an “aggravated felony” after
admission to the United States is removable. Pursuant to § 1227(a)(2)(C), most firearm
convictions render an alien removable.
2
“claims that he would be tortured because of the political actions of his father, his father
fled Haiti over 25 years ago, and there’s no evidence that he has been threatened,
targeted, or identified since that time.”
The BIA affirmed. It reasoned that Petitioner is an aggravated felon under 8
U.S.C. § 1101(a)(43)(G)—and thus ineligible for asylum—because he was convicted of
robbery in violation of N.J.S.A. 2C:15-1, and was sentenced to three years in prison.2
The BIA reasoned further that Petitioner failed to demonstrate eligibility for withholding
of removal under the Immigration and Nationality Act because the articulated bases for
relief were either non-cognizable or without record support. Finally, for the reasons
given by the IJ, the BIA determined that Petitioner was not entitled to CAT relief.
This timely petition for review followed. On October 11, 2016, a panel of this
Court denied Petitioner’s motions to stay removal and for appointment of counsel.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), limited by § 1252(a)(2) to
constitutional claims and questions of law because Petitioner was found removable as an
aggravated felon.3 We review constitutional and other legal questions de novo.
Of the claims raised by Petitioner over which we may exercise jurisdiction, none
has any merit.4 Indeed, we roundly rejected certain of his claims—arguing for
2
Section 1101(a)(43)(G) provides one of the many meanings of “aggravated felony”: “a
theft offense (including receipt of stolen property) or burglary offense for which the term
of imprisonment [is] at least one year.”
3
Petitioner does not challenge his removability as an aggravated felon under 8 U.S.C.
§ 1101(a)(43)(G) and 8 U.S.C. § 1227(a)(2)(A)(iii). Therefore, this issue is waived.
Voci v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005).
3
recognition of “criminal deportees” as a statutorily protected “social group,” and for our
adoption in immigration cases of a “state-created danger” theory of relief—both of which
we rejected a decade ago in precedential opinions.5 In addition, we deem irrelevant
Petitioner’s claim that since he was not convicted of a “particularly serious crime” with
an aggregate sentence of at least five years, he evades the bar to relief under 8 U.S.C. §
1231(b)(3)(B)(ii); Petitioner was found ineligible for asylum (only) not under that
provision, but under 8 U.S.C.
§ 1158(b)(2)(B)(i). Finally, while Petitioner argues that his due process rights were
violated during the removal hearing, he does not support this claim with any substance
sufficient to make it reviewable by this Court.6
For the above-stated reasons, we will deny the petition for review.
4
Regarding whether Petitioner is entitled to CAT relief, we note that the inquiry has two
distinct parts: one is factual (“what is likely to happen to the petitioner if removed[?]”),
and one is a legal (“does what is likely to happen amount to the legal definition of
torture?”). Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010). The BIA deferred to
the IJ’s factual finding that Petitioner was unlikely to be harmed upon removal to Haiti.
Because of Petitioner’s aggravated felony conviction, that finding is unreviewable by this
Court. See Green v. Att’y Gen., 694 F.3d 503, 507 (3d Cir. 2012).
5
See Toussaint v. Att’y Gen., 455 F.3d 409, 418 (3d Cir. 2006) (“[W]e hardly can
conceive that Congress would select criminals as a group warranting special protection in
removal cases.”); Kamara v. Att’y Gen., 420 F.3d 202, 217 (3d Cir. 2005) (“We . . . hold
that the state-created danger exception has no place in our immigration jurisprudence.”).
6
See John Wyeth & Bros. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir.
1997) (arguments raised in passing are considered waived).
4