[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15925 NOVEMBER 1, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A096-494-153
EDOUARD ADRIEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 1, 2011)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Edouard Adrien petitions for review of the Board of Immigration Appeals’
(“BIA”) decision that vacated the order of the Immigration Judge (“IJ”) granting
Adrien withholding of removal under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c). After review, we dismiss in part and deny in part
Adrien’s petition for review.
I. BACKGROUND
A. Prior Convictions and Notice to Appear
In 2004, Adrien, a native and citizen of Haiti, was paroled into the United
States. In 2005, his status was adjusted to that of a lawful permanent resident.
By 2009, Adrien accumulated a number of criminal convictions, including
two convictions for fleeing and eluding a police officer, in violation of Florida
Statutes § 316.1935(a); a conviction for burglary of an unoccupied conveyance, in
violation of Florida Statutes § 810.02(4)(B); and a conviction for third degree
grand theft, in violation of Florida Statutes § 812.014(2)(C).
In 2009, the Department of Homeland Security (“DHS”) issued a Notice to
Appear (“NTA”), charging Adrien with removability, pursuant to the Immigration
and Nationality Act (“INA”) § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for
being convicted of two crimes involving moral turpitude not arising out of a single
2
scheme of criminal conduct. Subsequently, the DHS filed a second charge of
removal, alleging that Adrien was removable, pursuant to INA § 237(a)(2)(A)(i), 8
U.S.C. § 1227(a)(2)(A)(i), for being convicted within five years of admission of a
crime involving moral turpitude, and for which a sentence of one year or longer
could have been imposed. At an initial hearing, Adrien admitted the factual
allegations in the second charge in the NTA and conceded removability as an alien
who was convicted of a crime of moral turpitude within five years of admission.
B. Application for Withholding of Removal
In February 2010, Adrien filed an application for withholding of removal
under the INA and CAT. Adrien alleged he feared harm or mistreatment if
returned to Haiti because the Haitian government detains all criminal deportees
upon arrival in Haiti, and Adrien, as an American deportee, would be singled out
for exceptionally harsh treatment in a Haitian prison.
Either Adrien or the government submitted this documentary evidence: (1)
Adrien’s criminal history showing his aforementioned criminal convictions; (2) a
New York Times article discussing the collapse of Haiti’s mental health system
after the 2010 Haitian earthquake; (3) Adrien’s medical records from his time in
DHS detention, showing his diagnosis of psychosis and his receipt of psychotic
medication; (4) a U.S. Department of State 2009 Human Rights Report on Haiti
3
(“2009 Country Report”); and (5) a U.S. Department of State 2008 Human Rights
Report on Haiti (“2008 Country Report”).1
C. Removal Hearings
At a March 2010 removal hearing, Adrien testified that he had “mental
problems” for which he was taking medication and had received psychiatric
treatment. Adrien sometimes heard voices, saw images and felt depressed. The
voices told Adrien to kill himself because “they need[ed] [him] to come and live
with them.” As a result, the IJ continued removal proceedings to allow evidence
of Adrien’s mental condition to be gathered.
At a June 2010 removal hearing, Adrien testified that he began having
mental problems in Haiti, that he was bipolar and had trouble answering questions
and that he saw images, including images of his deceased father trying to kill him.
Adrien believed that if he returned to Haiti he would suffer, and perhaps die,
because Haiti does not have facilities to help people with his problems. If he were
put in jail, Adrien would not be given food or water, and he had no one in Haiti
who could bring food and water to him. The prison also would not have medical
facilities to treat him.
D. IJ’s Order
1
Although the 2009 Country Report was prepared on March 11, 2010, it did not address
the January 12, 2010 earthquake in Haiti.
4
The IJ found Adrien removable as a criminal alien, pursuant to INA
§ 237(a)(2)(A)(i), (ii), 8 U.S.C. § 1227(a)(2)(A)(i), (ii), denied Adrien withholding
of removal under the INA, but granted withholding of removal under CAT. As to
withholding of removal under the INA, the IJ determined that Adrien failed to
establish that he would be persecuted on account of his mental illness. The IJ
explained that the fact that life would be difficult for Adrien in Haiti because he
would not be able to get medical care was not a ground for withholding of removal
under the INA.
With regard to withholding of removal under CAT, the IJ noted that Adrien
presented a “difficult case because we don’t know what is going on in Haiti.” The
IJ pointed to the newspaper article, which indicated that, since the earthquake,
mentally ill people were “being left to fend on their own.” The IJ found that the
2009 Country Report was outdated, and that, because DHS had halted removals to
Haiti after the earthquake, it was “not even clear that [the Haitian government]
would detain criminal deportees.” The IJ concluded that this Court’s decision in
Jean-Pierre v. U.S. Attorney General, 500 F.3d 1315 (11th Cir. 2007), established
that severe mental problems combined with detention in Haitian prison “may be
enough to meet the standard [under CAT].”
The IJ found that Adrien has “mental problems” and takes “anti-psychotic
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medicine.” Citing Jean-Pierre, the IJ stated that “people with mental problems are
treated harshly by the authorities in [Haitian] prisons. One of the reasons is that in
Haiti you have voodoo. They believe that people are possessed.” The IJ noted
that Adrien’s medical records indicated that he engaged in anti-social behavior,
heard voices and saw people trying to kill him. The IJ stated that Haitian prison
officials “don’t have the medicines to give” the mentally ill and that Adrien might
act up without medication. Acknowledging that the “decision [was] hard to make
in a vacuum,” the IJ decided to “err on the side of humanitarianism” and found
that Adrien had met the standard for withholding of removal under CAT.
E. BIA’s Decision Vacating the IJ’s Order
Adrien did not appeal the IJ’s decision. The government, however,
appealed the IJ’s grant of withholding of removal under CAT. Among other
things, the government argued that (1) Adrien failed to show he would be subject
to torture in Haiti or any nexus between his mental illness and being subject to
torture, and (2) the IJ had misapplied Jean-Pierre.
The BIA sustained the government’s appeal, vacated the IJ’s grant of
withholding of removal under CAT, and reinstated the IJ’s removal order.
Because the IJ did not make a credibility determination, the BIA presumed Adrien
was credible. The BIA also found that the IJ’s findings of fact—that Adrien was
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mentally ill and that treatment for mental illness in Haiti was not available—were
not clearly erroneous.2 Nonetheless, the BIA determined that the IJ “concluded,
incorrectly, that [Adrien] was eligible for protection under the Convention Against
Torture.”
The BIA explained that the IJ had “strung together a series of suppositions
about what might be the situation in Haiti once the country [was] sufficiently
stabilized for deportations to resume.” Specifically, the IJ assumed that Adrien
would come in contact with Haitian authorities even though there was no evidence
that Adrien would be arrested or kept in jail as a criminal deportee.3 The BIA
concluded that the IJ improperly relied on Jean-Pierre as evidence that all mentally
ill people will be tortured in Haiti and that Jean-Pierre instead stands for the
general proposition that each applicant must prove that he will be singled out for
torture. Accordingly, the BIA concluded that Adrien had not met his burden to
show it was more likely than not that he personally would be tortured by the
2
The 2009 Country Report indicated that due to widespread poverty and a shortage of
public services, people with physical and mental disabilities were severely disadvantaged in
Haiti. However, there were no reports of discrimination by the government against the disabled
or of abuse in mental health facilities.
3
According to the 2008 and 2009 Country Reports, repatriated Haitians were detained
“upon their return for approximately two weeks.” The 2009 report described this detention as
“administrative quarantine” for returning citizens who “had local criminal charges pending or
when local family members could not be located.” The Haitian government was trying to
improve these returnees’ release time to ten days or less. Although Adrien claimed he has no
family in Haiti, he has not claimed, much less proved, that he has local criminal charges awaiting
him in Haiti.
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Haitian government “because he did not show that it was more likely than not that
he would be detained and would be singled out for torture.” Adrien filed this
petition for review.
II. DISCUSSION
A. Jurisdiction to Review CAT Claim
On appeal, Adrien argues that the BIA erred in vacating the IJ’s order
granting him withholding of removal under CAT.4 Specifically, Adrien argues
that his evidence showed he more likely than not would be subjected to torture if
he were returned to Haiti. We conclude, however, that we lack jurisdiction to
review Adrien’s CAT claim.5
Under the INA, federal courts lack jurisdiction to review final orders of
removal “against an alien who is removable by reason of having committed” a
crime involving moral turpitude, except to the extent the alien raises
“constitutional claims or questions of law.” INA § 242(a)(2)(C), (D) 8 U.S.C.
§ 1252(a)(2)(C), (D). Where such a criminal alien raises a constitutional claim or
4
To the extent Adrien’s opening brief challenges the IJ’s denial of his request for
withholding of removal under the INA and argues that he showed a pattern or practice of
persecution of the mentally ill by Haitian jail officials, Adrien failed to exhaust this claim with
the BIA, and we lack jurisdiction to review it. See Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250-51 (11th Cir. 2006).
5
We review de novo issues of subject matter jurisdiction. Amaya-Artunduaga, 463 F.3d
at 1250 (11th Cir. 2006).
8
question of law, we do not have jurisdiction to review the factual determinations
made by the IJ or the BIA, but we retain jurisdiction to review the application of
those undisputed facts to a legal standard. Jean-Pierre v. U.S. Att’y Gen., 500
F.3d 1315, 1320-22 (11th Cir. 2007). Thus, we have jurisdiction to review a claim
that a particular set of facts meets the legal definition of torture under CAT. Id. at
1322. But, we lack jurisdiction to review “the administrative fact findings of the
IJ or the BIA as to the sufficiency of the alien’s evidence and the likelihood that
the alien will be tortured if returned to the country in question.” Singh v. U.S.
Att’y Gen., 561 F.3d 1275, 1280 (11th Cir. 2009).
Adrien admits he is an alien removable by virtue of his prior convictions for
crimes involving moral turpitude. As such, we have jurisdiction only to the extent
Adrien raises a colorable constitutional claim or a question of law. See INA
§ 242(a)(2)(C), (D), 8 U.S.C. § 1252(a)(2)(C), (D). Adrien argues, like the alien in
Singh, that his evidence was sufficient to show that he more likely than not will be
tortured in Haiti. Thus, Adrien does not raise a constitutional claim or a question
of law. See Singh, 561 F.3d at 1281 (explaining that an alien who “merely argues
that he showed that it was more likely than not that he would suffer torture upon
return to Jamaica” does not fall under the “constitutional claim or question of law”
exception in INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)). Accordingly, we
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dismiss Adrien’s petition for lack of jurisdiction to the extent he challenges the
BIA’s finding that he failed to show a likelihood that he would be tortured.
B. BIA’s Standard of Review
Adrien also argues that the BIA erroneously vacated the IJ’s order using a
de novo standard of review rather than a clear error standard. We retain
jurisdiction to review this legal question. See INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D).
Contrary to Adrien’s argument, the BIA did not err in conducting a de novo
review of whether Adrien met his burden of proof for CAT relief. Although the
BIA must review an IJ’s findings of fact for clear error, 8 C.F.R. § 1003.1(d)(3)(i),
it “may review questions of law, discretion, and judgment, and all other issues in
appeals from decisions of [the IJ] de novo.” Id. § 1003(d)(3)(ii). In interpreting 8
C.F.R. § 1003(d)(3), the BIA has concluded that it reviews de novo the IJ’s
“application of a particular standard of law to those facts” and may “conclude that
the foundation for the [IJ’s] legal conclusions was insufficient or otherwise not
supported by the evidence of record.” In re A-S-B-, 24 I.&N. Dec. 493, 496, 497
(BIA 2008) (applying de novo review to whether alien established future
persecution for purposes of withholding of removal under INA); see also H-L-H-
& Z-Y-Z-, 25 I.&N. Dec. 209, 212-13 (BIA 2010) (applying de novo review to
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whether alien established future persecution for purposes of asylum).6
Here, the BIA accepted Adrien’s testimony as credible and concluded that
the IJ’s fact findings were not clearly erroneous. The BIA concluded that these
adjudicated facts were insufficient to establish eligibility for CAT relief because
there was no evidence that Haitian officials were likely to detain Adrien at all after
the earthquake and thus it was speculation whether Adrien would likely be
subjected to conditions in a Haitian prison that amounted to torture. We find no
error in the BIA’s application of de novo review.
DISMISSED IN PART; DENIED IN PART.
6
Adrien does not argue that the agency’s interpretation of its own regulations is not
entitled to deference. See Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1326 (11th Cir. 2003)
(explaining that we defer to the agency’s “interpretation of its own regulations unless that
interpretation is plainly erroneous or inconsistent with the regulation”).
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