United States Court of Appeals
For the First Circuit
No. 03-1335
JEAN PROSPER ELIEN,
Petitioner,
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and Cyr, Senior Circuit Judge.
Susan A. Roche for petitioner.
Frances M. McLaughlin, Attorney, Office of Immigration
Litigation, Peter D. Keisler, Assistant Attorney General, and Linda
S. Wendtland, Assistant Director, were on brief for respondent.
April 16, 2004
CYR, Senior Circuit Judge. Jean Prosper Elien, a Haitian
national and citizen, petitions for review of the Board of
Immigration Appeal’s (BIA) denial of his motion to reopen his
deportation proceeding on account of changed conditions in Haiti.
We affirm.
I
BACKGROUND
Elien entered the United States in 1981, as a non-
immigrant visitor, and remained beyond his authorized stay.
Thirteen years later, in 1994, the Immigration and Naturalization
Service (INS) finally commenced deportation proceedings against
him. Elien proceeded to concede deportability, then sought
suspension of deportation or voluntary departure. In August 1996,
an immigration judge (IJ) denied both requests, and ordered Elien
deported.1 Elien appealed to the BIA.
In 2000, while the BIA appeal was pending, Haiti
implemented a new policy, whereby it detained all repatriated
Haitians who had incurred a criminal record while residing in the
United States, based on the presumption that their exposure to
1
The IJ determined that Elien was not entitled to suspension
of deportation because: (1) a 1994 conviction for theft
constituted a crime of moral turpitude which precluded the
requisite finding of “good moral character,” and (2) Elien's
numerous arrests, use of aliases, as well as his use of cocaine,
precluded a discretionary suspension. Finally, the IJ found that
Elien’s failure to demonstrate good moral character precluded a
grant of voluntary departure as well.
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American violence and crime predisposed them to recidivist criminal
behavior upon their return to Haiti. The United States State
Department and press reports suggest that Haitian authorities
subject detainees to indefinite terms of imprisonment, inhumane
prison conditions, and in some cases, torture.
In July 2001,2 the BIA denied Elien’s appeal from the
deportation order issued by the IJ in 1996. Elien submitted a
motion to reopen the deportation proceeding in order to adjudicate
an application for asylum, withholding of deportation, and
protection under the United Nations Convention Against Torture
(CAT), claiming that Haiti would detain him indefinitely based upon
his convictions for two “minor” criminal offenses committed while
in the United States. In due course, the BIA denied the motion to
reopen, and Elien now petitions for review.
II
DISCUSSION
A. Asylum Application
Elien contends that the BIA has neither adequately
explained its rationale for determining that he is not entitled to
asylum under the Immigration and Naturalization Act (INA), nor
2
In 1999, the BIA closed the Elien case, so as to enable him
to apply for relief under the newly enacted Haitian Refugee
Immigration Fairness Act (HRIFA), Pub. L. No. 104-277, 112 Stat.
2681 (1998). The INS denied his HRIFA application, and in May 2001,
the BIA reinstated Elien's deportation appeal. The HRIFA interlude
plays no part in this appeal.
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cited to substantial record evidence supporting its decision.
Under the INA the term “refugee” is defined as a person unable or
unwilling to return to the country of nationality “because of
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). Before
the BIA, Elien contended that (i) he is a member of a “particular
social group,” consisting of deported Haitian nationals with
criminal records in the United States; and (2) undisputed evidence
– such as State Department reports – establishes that his
membership in that "particular social group" will render him
subject to “persecution,” viz., indefinite detainment, inhumane
prison conditions, and torture.
Since motions to reopen deportation proceedings are
strongly disfavored, see Mabikas v. INS, 358 F.3d 145, 148 (1st
Cir. 2004), we review the BIA’s denial of such a motion only for an
abuse of discretion, id., and the movant bears the burden to prove
an entitlement to asylum, 8 C.F.R. § 208.13. The BIA tersely
rejected the asylum claim filed by Elien:
To support his motion, [Elien], through
counsel, makes the interesting but unavailing
argument that his extensive and serious
criminal history during his presence in the
United States has now rendered him a “refugee”
within the meaning of the [INA] and, because
of the many crimes he has committed in this
country, he faces persecution in his native
Haiti. In other words, by repeatedly flouting
the criminal laws of this country, [Elien]
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allegedly now warrants relief from deportation
under the immigration laws of this country.
However, the evidence submitted with the
motion does not, in our view[,] demonstrate
that [Elien] faces the likelihood of
persecution on account of his race,
nationality, religion, political opinion, or
membership in a particular social group.
Elien maintains that the BIA’s treatment of his claim violates due
process, principally because its final sentence does not specify
which element of the “refugee” definition in subsection
1101(a)(42)(A) he failed to establish – viz., his membership in a
protected class or a well-founded fear of persecution. A BIA
decision need not be encyclopedic, however, and normally will
satisfy the dictates of due process provided its essential
rationale and factual findings are clear enough to enable
meaningful appellate review. See, e.g., Morales v. INS, 208 F.3d
323, 328 (1st Cir. 2000). Such is the case here. Characterizing
Elien’s argument as “unavailing,” the BIA explicitly stated that
its recognition of a “social group” consisting of deported Haitian
nationals with criminal records in the United States would serve to
encourage and reward aliens who committed crimes while in the
United States, thus immunizing them from deportation. Elien has
posited no other conceivable connotation for the language employed
by the BIA.
Next, we turn to the merits of the contention that the
INA recognizes deported Haitian nationals with criminal records in
the United States as a protected “social group” eligible for
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asylum. As the scope of the statutory term “particular social
group” presents a pure issue of law, we review the BIA decision de
novo. See Meguenine v. INS, 139 F.3d 25, 27 n.2 (1st Cir. 1998).
The INA does not define the term “particular social group,”
however, nor is the term free from ambiguity. See Lwin v. INS, 144
F.3d 505, 510 (7th Cir. 1998) (noting that “the meaning of ‘social
group’ remains elusive”). Presumably, the term refers to “a[ny]
group with some immutable trait (such as an ethnic group) or a
mutable trait which a member of that group should not, in good
conscience, be required to change (such as a religious adherent’s
beliefs),” Meguenine, 139 F.3d at 27 n.2; see also In Matter of
Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985) (noting that examples
of common, immutable characteristics may include sex, race,
kinship, and past experiences such as former military service or
land ownership). Yet, even this judicial gloss leaves ample room
for case-by-case definition. Elien nonetheless maintains that the
class of repatriated criminals with which he identifies himself has
two immutable characteristics: its members have permanent criminal
records in the United States, and the Haitian government thus
perceives them as likely recidivists.
As immigration law frequently implicates some expertise
in matters of foreign policy, BIA interpretations of the statutes
and regulations it administers are accorded substantial deference.
See INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial
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deference to the Executive Branch is especially appropriate in the
immigration context where officials ‘exercise especially sensitive
political functions that implicate questions of foreign
relations.’”) (citation omitted). "The power of an administrative
agency to administer a congressionally created and funded program
necessarily requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by Congress."
Morton v. Ruiz, 415 U.S. 199, 231 (1974).3
When a statute is silent or ambiguous, therefore, we
uphold the implementing agency's statutory interpretation, provided
it is “reasonable” and consistent with the statute. See
Urena-Ramirez v. Ashcroft, 341 F.3d 51, 54 n.3 (1st Cir. 2003)
(citing INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987));
Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir.
1999) (noting that agency rationale need only be reasonable,
3
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 866 (1984) (“Federal judges – who have no
constituency – have a duty to respect legitimate policy choices
made by those who do. The responsibilities for assessing the wisdom
of such policy choices and resolving the struggle between competing
views of the public interest are not judicial ones: ‘Our
Constitution vests such responsibilities in the political
branches.’"); Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir.
2000) (“In this case, because the law – particularly section 1158
– is silent about the validity of Plaintiff's purported asylum
applications, it fell to the INS to make a discretionary policy
choice.”); cf. Hernandez-Patino v. INS, 831 F.2d 750, 753 (7th Cir.
1987) (“The better view may be to accept the fact that Congress, in
refusing to define ‘extreme’ hardship fully, avoided the
substantive policy decision and has deferred to agency
expertise.”).
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logical, and nonarbitrary); see also Capric v. Ashcroft, 355 F.3d
1075, 1086 n.4 (7th Cir. 2004). Accordingly, we are to defer to
the interpretation given the term “social group” by the BIA even if
we conclude that the term is susceptible to more than one
permissible interpretation. See Mugalli v. Ashcroft, 258 F.3d 52,
55 (2d Cir. 2001).
The BIA determined that, whether or not Haitians who
commit crimes in the United States are subjected to “persecution”
upon repatriation, it would be unsound policy to recognize them as
a “social group” safeguarded by the asylum statute. See
Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992) (rejecting
comparable argument that “drug traffickers” were protected “social
group” under INA, precluding their deportation to Iran).4 Such
recognition unquestionably would create a perverse incentive for
Haitians coming to or residing in the United States to commit
crimes, thereby immunizing themselves from deportation to Haiti.
Moreover, the BIA has never extended the term “social group” to
encompass persons who voluntarily engaged in illicit activities.
Cf. In Matter of Acosta, 19 I. & N. Dec. at 233 (noting that
examples of common, immutable characteristics may include sex,
race, kinship, and past experiences such as former military service
4
Elien cites to dicta from Bastanipour, suggesting that aliens
who commit only “minor” crimes might be entitled to protection as
refugees. In exercising its interpretative prerogative under
Chevron, however, the BIA obviously is not bound by such dicta.
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or land ownership). Finally, as the BIA has held, although some of
Haiti’s detention practices may violate detainee rights, in general
“Haiti has a legitimate national interest in protecting its
citizens from increased criminal activity.” In re J-E-, 23 I. & N.
Dec. 291, 300 (BIA 2002). Accordingly, we cannot conclude that the
choice the BIA has made between these competing policies is either
unreasonable or impermissible.5
As the BIA rationale turned entirely upon the legal issue
relating to the proper interpretation of “social group,” the
argument Elien advances on appeal – that the BIA did not cite any
record evidence, such as State Department reports describing
Haiti’s indefinite detention policy and inhumane prison conditions
– is unavailing as well. Such record evidence relates only to the
second prong of his argument, viz., that he had a “well-founded
fear of persecution,” which inquiry becomes moot once it is
determined that Elien is not a member of a social group protected
by the asylum statute. See 8 U.S.C. § 1101(a)(42)(A) (requiring
that persecution be “on account of . . . membership in a particular
social group”) (emphasis added).6
5
While the instant petition for review of the BIA decision was
pending, President Jean-Bertrand Aristide was removed from power.
The potential effect of these events upon Haiti’s detention policy
is unknown.
6
Elien argues that the BIA committed reversible error in
adverting to “his extensive and serious criminal history.” He
contends that the record instead shows but two convictions for
“minor” criminal offenses. See Mansour v. INS, 230 F.3d 902, 908
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B. Convention Against Torture
Finally, Elien contends that the BIA inadequately
explained its rationale for holding that he was not entitled to
protection under Article 3 of CAT, and failed to cite substantial
record evidence supporting that decision. The BIA decision states:
Nor does the evidence demonstrate that the
Haitian government will, more likely than not,
torture [Elien] or acquiesce in his torture by
others. The respondent may or may not be
detained on his return to Haiti; since he has
committed no crimes in that country, at least
since his presence here, he may be detained
for screening prior to release back into the
population. While the prison conditions in
Haiti may not equal the standards of those in
the United States, the record does not support
the conclusory allegation that, more likely
than not, the respondent will be tortured. In
the absence of persuasive evidence of the
likelihood of torture, we find no basis for
reopening to remand to the [IJ] to adjudicate
a claim for which [Elien] has not shown
eligibility.
The CAT, as implemented by the Foreign Affairs Reform and
(7th Cir. 2000) (reversing BIA denial of asylum application based
on BIA’s clear misunderstanding of record). We disagree. Elien
has been convicted of theft and possession of a controlled
substance, and it is primarily a matter of opinion (not one of
fact) whether such offenses are to be characterized as “serious” or
“minor.” In his brief before the BIA, moreover, Elien alternately
advocated that the BIA define the protected relevant “social group”
as all Haitians with U.S. criminal records, viz., subject to
detention without any individualized review of the nature and
severity of the offenses of conviction, while at other times he
suggested that the “social group” be defined narrowly as Haitians
with “minor” criminal records. Given this incertitude, Elien
cannot fault the BIA for characterizing his argument as an
invitation to create a comprehensive class which includes both
serious and “minor” criminals.
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Restructuring Act (FARRA), Pub. L. No. 105-277, 112 Stat 2681-761,
2681-822 (1998), prohibits the “involuntary return of any person to
a country in which there are substantial grounds for believing the
person would be in danger of being subjected to torture.”
Although FARRA does not define the term “torture,” the INS
implementing regulations interpret it as "any act by which severe
pain or suffering, whether physical or mental, is intentionally
inflicted on a person . . . when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." 8 C.F.R. § 208.18(a)(1); see also Saint Fort
v. Ashcroft, 329 F.3d 191, 196 (1st Cir. 2003). “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.” In re J-E-, 23 I. & N. Dec. at 297 (citing 8 C.F.R. §
208.18(a)). The alien applying for CAT protection must bear the
burden to prove, by objective evidence, that it is more likely than
not that he will be tortured if he is deported. 8 C.F.R. §
208.16(c)(2); § 208.17(a) (emphasis added).
In interpreting the statutory term “torture,” the BIA
previously has held that a Haitian national failed to meet his
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burden of proof by simply adducing anecdotal evidence of “isolated
acts of torture” in Haiti’s detention facilities, such as burning
with cigarettes and electric shock, and no record evidence was
adduced that Haiti used torture pervasively or as a matter of
policy on detainees. In re J-E-, 23 I. & N. Dec. at 303; see
Khouzam v. Ashcroft, No. 02-4109, 2004 WL 349895, at *8 (2d Cir.
Feb. 24, 2004) (noting that “the [In re J-E-] respondent had failed
to show that the torture was ‘pervasive and widespread’”) (citation
omitted). For this reason, J-E- could not prove that it was more
likely than not that he would be tortured if he were deported. In
re J-E-, 23 I. & N. Dec. at 304 (contrasting Al-Saher v, INS, 268
F.3d 1143 (9th Cir. 2001), where alien proved that Iranian
authorities “routinely tortured detainees”) (emphasis added).
Elien acknowledges the import of the In re J-E- decision,
but simply contends that he should be given a chance to adduce his
own factual record and to prove that the torture of Haitian
detainees is more pervasive. While we acknowledge the general
principle that Elien is not limited per se to the evidentiary
record developed by J-E-, he has made no attempt on appeal to
demonstrate in what respect his proffer is qualitatively different
than or superior to the In re J-E- record, which likewise was
supported by comparable State Department and media reports. In
order to be entitled to reopen his deportation proceeding in the
wake of In re J-E-, Elien was required – at least – to make a
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proffer before the BIA which would permit a finding by an IJ that
torture of detainees was widespread in Haiti. Given the utter
absence of any such proffer, the rationale of In re J-E- precludes
this appeal.
Affirmed.
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