Toussaint v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-26-2006
Toussaint v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-3311
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3311
EDNA TOUSSAINT,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a decision and order of
the Board of Immigration Appeals
(BIA No. A30-139-224)
Argued June 13, 2006
BEFORE: FISHER, GREENBERG, and LOURIE,* Circuit Judges
(Filed: July 26, 2006)
Ruchi Thaker
Matthew L. Guadagno (argued)
Jules E. Coven
Kerry W. Bretz
Bretz and Coven
305 Broadway
Suite 100
New York, NY 10007
*Honorable Alan D. Lourie, United States Circuit Judge for the
Federal Circuit, sitting by designation.
Attorneys for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Richard M. Evans
Assistant Director
David E. Dauenheimer
Carl H. McIntyre, Jr. (argued)
Senior Litigation Counsel
United States Department of
Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
Edna Toussaint petitions for review of a final decision and
order of the Board of Immigration Appeals (“BIA”) issued on January
6, 2003, ordering her removal to Haiti. In reaching its decision the
BIA reversed a decision and order of an immigration judge (“IJ”)
granting Toussaint withholding of removal under the Immigration and
Nationality Act (“INA”) and under the Convention Against Torture
(“CAT”). We will deny the petition for review.
II. FACTS AND PROCEDURAL HISTORY
Toussaint was born in Haiti in 1954 but entered the United
States as a lawful permanent resident in 1970 and since has not
returned to Haiti. She is a widow whose husband died in 1992, and
she has six children who live in the United States and are United
States citizens.
2
In March 2001 the Supreme Court of the State of New York
convicted Toussaint on two counts of criminal sale of a controlled
substance (cocaine) and one count of attempted criminal sale of a
controlled substance (cocaine) causing the Immigration and
Naturalization Service (“INS”) to initiate removal proceedings against
her. In those removal proceedings, which led to the petition in this
case, Toussaint conceded her removability but sought asylum and
withholding of removal under the INA and protection under the CAT.
Toussaint predicated her claim on an assertion that she would be
persecuted and mistreated on account of her deceased father’s and her
political views if she returned to Haiti.1 In this regard she claimed
that her father, who had been an official in the former Duvalier
regime in Haiti, had been detained and tortured in a Haitian prison
from 1988 to 1996. Toussaint also said that she “ha[d] been
threatened with death were [she] to return to Haiti” by two
unidentified men in Miami, Florida. In her application for asylum,
however, she did not explain the reason the men gave for making
these statements beyond indicating that it was because of her
“political views.” See J.A. at 226.
The original IJ entertaining this matter found that Toussaint
was ineligible for relief because she had committed “particularly
serious” crimes, but he nevertheless agreed to consider further the
issue of deferral of removal. J.A. at 88. At a subsequent hearing,
however, a different IJ ruled that Toussaint’s offenses were not
particularly serious, and thus he considered her claims for asylum and
withholding of removal on the merits.2 The second IJ ultimately
denied her claim for asylum but granted her claim for withholding of
removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3),
and, alternatively, granted Toussaint withholding of removal under
1
Both of these possibilities seem to have been mentioned in these
proceedings, but inasmuch as Toussaint left Haiti when she was about
16 years old, more than 30 years before the INS initiated these
proceedings, we believe that her troubles are derivative to those of her
father. In any event, the distinction does not impact on our outcome.
2
Noncitizens convicted of “particularly serious” crimes are
excluded from eligibility for withholding of removal. See INA §
241(b)(3)(B)(ii); 8 U.S.C. § 1231(b)(3)(B)(ii). The government does not
challenge the conclusion of the second IJ that Toussaint’s crimes were
not particularly serious, and, inasmuch as the parties have not addressed
that possible question, we treat the crimes as not particularly serious
without deciding the issue.
3
the CAT. In ordering the withholding of removal, the IJ relied on
State Department country reports, Toussaint’s “credible testimony”
that “[s]he was threatened by men who were aware of her father,”
J.A. at 50, and prior decisions in which the BIA recognized the
“likelihood of torture of criminal detainees [in] Haiti.” J.A. at 55.
The IJ further explained:
[I]t’s highly dubious that the government of Haiti
would alter its de facto policy of ill-treatment by
treating this particular respondent [Toussaint] more
humanely than other citizens under similar
circumstances. I would also note, and this is very
important I believe, that [Toussaint] has no family
members in Haiti. There is evidence that if a criminal
detainee is removed to Haiti and is able to rely on
friends, or particularly, family, to bribe the guards . . .
it usually leads to the release of that person, primarily
through the payment of bribes. [Toussaint] has no one
in Haiti to do that for her.
J.A. at 56.
The INS appealed from the decision and order of the IJ to the
BIA, which reversed the decision and order of the IJ and ordered
Toussaint’s removal to Haiti. In reaching its conclusion, the BIA first
determined that Toussaint was not entitled to withholding of removal
under section 241(b)(3)(A) of the INA because the BIA “was unable
to find that it is more likely than not that [Toussaint] will be
persecuted on account of an enumerated ground.” J.A. at 7. The BIA
explained: “The reason for her father’s arrest and mistreatment is
unclear. We further note that he was released from prison, and
apparently lived for approximately 2 more years there without
incident.” Id. When reaching its conclusion the BIA was aware of
Toussaint’s testimony that “she was approached in Miami, Florida, by
unknown individuals who . . . warned her that she would be in danger
if she returns to Haiti.” Id. Nevertheless, it explained that it could
not “identify any background or compelling testimonial evidence that
convinces us that it [is] more likely than not that [Toussaint] will be
persecuted in her country.” Id. In the final paragraph of its decision,
the BIA denied Toussaint relief under the CAT. Id. In this regard it
principally relied on Matter of J-E-, 23 I & N Dec. 291 (BIA 2002)
(en banc), a decision in which, as it explained in this case, it held that
“neither indefinite detention nor inhuman prison conditions in Haiti
constitutes torture.” J.A. at 7.
Subsequently Toussaint challenged the decision and order of
the BIA by filing a petition for a writ of habeas corpus in the United
4
States District Court for the Southern District of New York.
Following the enactment of section 106 of the REAL ID Act, the
parties appropriately stipulated to the transfer of the habeas petition to
this court to be treated as a petition for review.3
3
Section 106(a) of the REAL ID Act amended a jurisdictional
provision in the INA, 8 U.S.C. § 1252(a)(2), by eliminating district court
habeas corpus jurisdiction (28 U.S.C. §§ 2241, 1361, 1651) over final
orders of removal in nearly all cases so that an alien may seek review of
an order of removal under the INA only by a petition for review filed in
the appropriate court of appeals. Moreover, a petition for review filed
in the appropriate court of appeals “is the sole and exclusive means for
judicial review of any cause or claim under the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment, except as provided in subsection
(e) of this section.” REAL ID Act § 106(a)(1)(B), 8 U.S.C. §
1252(a)(4).
Although the government does not dispute that we have
jurisdiction over this petition to review the decision and order of the
BIA, we explain our jurisdiction because, as we recently stated in
Romanishyn v. Attorney General, No. 05-3141, 2006 U.S. App. LEXIS
18225, at *8 (3d Cir. July 20, 2006), “[o]ur jurisdiction extends only to
constitutional claims and questions of law.” (citing 8 U.S.C. §
1252(a)(2)(D)). To start with, we have recognized that “this
[jurisdiction] includes review of the BIA’s application of law to
undisputed fact.” Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006).
The question here involves not disputed facts but whether the facts, even
when accepted as true, sufficiently demonstrate that it is more likely
than not that she will be subject to persecution or torture upon removal
to Haiti. In this regard we point out that the REAL ID Act contemplates
that a court of appeals can review some administrative findings of fact
as it provides that: “[A]dministrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). Therefore, we have jurisdiction
to review the BIA’s application of law to the facts of this case to
determine whether “any reasonable adjudicator would be compelled to
conclude to the contrary” of the BIA. See 8 U.S.C. § 1252(b)(4)(B).
In reaching our result on this jurisdictional point, we believe that
the government’s silence on the issue is significant because it does not
hesitate to question a court of appeals’ jurisdiction if it is of the view
that the court lacks it. In Romanishyn, the government did exactly that.
5
III. JURISDICTION AND STANDARD OF REVIEW
We review the “BIA’s legal decisions de novo, but will afford
Chevron deference to the BIA’s reasonable interpretations of statutes
which it is charged with administering.” Kamara v. Attorney
General, 420 F.3d 202, 211 (3d Cir. 2005) (citation omitted).4 We
review the BIA’s factual determinations under the substantial
evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)
(en banc). We will affirm the BIA’s findings unless “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B).
IV. DISCUSSION
A. Background
Section 241(b)(3)(A) of the INA mandates the withholding of
a removal that would threaten an alien’s life or freedom on account of
race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1231(b)(3)(A). To obtain mandatory
withholding of removal under the INA, an alien must “establish by a
‘clear probability’ that his/her life or freedom would be threatened in
the proposed country of deportation.” Zubeda v. Ashcroft, 333 F.3d
463, 469 (3d Cir. 2003). “‘[C]lear probability’ means that it is ‘more
likely than not’ that an alien would be subject to persecution.” Id.
(citation omitted).
The withholding of removal provisions in the INA were
augmented on October 21, 1998, when the Foreign Affairs Reform
and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277,
Div. G., 112 Stat. 2681-761, 2681-822, authorizing the
implementation of Article 3 of the CAT5 and requiring the applicable
See also Hanan v. Gonzales, 449 F.3d 834, 836 (8th Cir. 2006).
In this case venue is proper in this circuit because Toussaint
challenged the disposition of removal proceedings completed in York,
Pennsylvania. See 8 U.S.C. § 1252(b)(2).
4
The reference to Chevron is to Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).
5
Article 3.1. of the CAT states: “No State Party shall expel,
return (‘refouler’) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being
6
agencies to promulgate implementing regulations within 120 days
became law. As directed, the Department of Justice, which then
included the INS, promulgated regulations setting forth the
procedures by which aliens could obtain relief under the CAT. See 8
C.F.R. §§ 208.16(c), 208.17, 208.18(a).
The regulations implementing the CAT provide that “[i]n
order to constitute torture, an act must be specifically intended to
inflict severe physical or mental pain or suffering. An act that results
in unanticipated or unintended severity of pain and suffering is not
torture.” 8 C.F.R. § 208.18(a)(5). Significantly, the pain and
suffering must be “inflicted by or at the institution of a public official
or other person acting in an official capacity.” 8 C.F.R. §
208.18(a)(1). The Department of Justice regulations also specify the
elements and the burden of proof for a CAT claim. In harmony with
the INA, section 208.16(c)(2) provides that “[t]he 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.” If an applicant establishes that he or
she “more likely than not would be tortured” upon removal to his or
her home country, withholding or deferral of removal is mandatory. 8
C.F.R. §§ 208.16(c)(3), (4). The objective evidence to be considered
in evaluating a CAT claim includes “[e]vidence of past torture
inflicted upon the applicant;” “[e]vidence of gross, flagrant or mass
violations of human rights within the country of removal;” and
“[o]ther relevant information regarding conditions in the country of
removal.” See 8 C.F.R. §§ 208.16(c)(3), 208.17(a).
B. Sufficiency of the BIA’s Findings
Toussaint argues that the BIA erred in reversing the IJ’s grant
of relief because the IJ’s findings of facts “were different from the
finding[s] in Matter of J-E-, [23 I. & N. Dec. 291 (BIA 2002) (en
banc)]” on which the BIA relied in this case. Petitioner’s br. at 21.
According to Toussaint, “the BIA should have, at a minimum,
addressed the [IJ’s] findings of fact to reconcile the different findings
of the [IJ] and Matter of J-E-.” Id. at 18. Toussaint primarily claims
that in contrast to the findings in J-E, the IJ’s finding in this case was
that the Haitian authorities “had the intent to inflict[] pain and
suffering due to the fact that they deliberately and unlawfully detain
and mistreat criminal deportees in order to obtain bribes from the
deportees’ family members.” Id. at 22. Toussaint further claims that
the BIA erred in relying on J-E- without considering certain
subjected to torture.” 1465 U.N.T.S. 114.
7
documentary evidence regarding the inhumane conditions in Haitian
prisons.
Generally, “[i]n order for us to be able to give meaningful
review to [a BIA] decision, we must have some insight into its
reasoning.” Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003).
“[W]e are particularly concerned about being able to give meaningful
review to the BIA’s decision where the BIA reverses the IJ without
explanation.” Id. at 233 (emphasis in original). Accordingly, the BIA
should indicate its reasons for discrediting certain testimony or
documentary evidence. See Abdulai v. Ashcroft, 239 F.3d 542, 554-
55 (3d Cir. 2001); Sotto v. INS, 748 F.2d 832, 836-37 (3d Cir. 1984).
In Awolesi, we vacated a decision and order of the BIA and remanded
the case for further consideration when “the BIA reversed the
decision of the IJ [granting asylum], with only the opaque explanation
that ‘the evidence is insufficient’ and ‘the arguments made by the
[INS] on appeal . . . are persua[sive].’” 341 F.3d at 229. We
explained that the decision and order precluded us from performing a
meaningful review of the removal order inasmuch as “we cannot tell
whether the BIA was making a legal decision that [the petitioner] was
statutorily ineligible for asylum or whether it found [the petitioner’s]
story incredible.” Id.
We will not hold, however, that a BIA decision is insufficient
merely because its discussion of certain issues “could have been more
detailed.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002).
After all, candor requires us to acknowledge that sometimes our own
discussions could be more detailed. Rather, the BIA’s analysis
merely must be adequate to allow for meaningful review of the BIA’s
decision, and “the BIA is not required to write an exegesis on every
contention.” Zubeda, 333 F.3d at 477 (citing Mansour v. INS, 230
F.3d 902, 908 (7th Cir. 2000)) (internal quotation marks omitted). In
fact there is no advantage in writing a long opinion when a short one
will do as the parties do not want law review articles, they want
intelligible opinions explaining the basis for the court’s
determination. Such opinions may or may not require lengthy
discussions.
The opinion that we considered in Sevoian is an example of an
adequate but concise BIA opinion. There we denied a petition for
review of a decision and order of the BIA even though the decision
did not address explicitly each type of evidence the petitioner
presented. 290 F.3d at 178. We explained that the “Board’s opinion
recognized and addressed [the petitioner’s] key contention under the
Convention Against Torture--that if removed, [the petitioner] would
end up in the Georgian criminal justice system, and that suspects and
8
criminals in Georgia are tortured.” Id.
In this case, the BIA adequately explained its reasoning in its
decision and order to allow for our meaningful review. Unlike the
BIA in Awolesi, in this case the BIA offered more than an “opaque
explanation” explaining its decision to reverse, and its two-page
decision provides much more insight than the four-sentence order at
issue in Awolesi. Here the BIA considered Toussaint’s claim that it is
more likely than not that she will be persecuted “on account of her
father’s [political] position[.]” J.A. at 7. In rejecting this claim, the
BIA explained: “The reason for her father’s arrest and mistreatment is
unclear. We further note that he was released from prison, and
apparently lived for approximately 2 more years there without
incident.” Id.
The BIA also acknowledged Toussaint’s testimony that “she
was approached in Miami, Florida, by unknown individuals who . . .
warned her that she would be in danger if she returns to Haiti.” Id.
Notwithstanding its awareness of that testimony, the BIA explained
that it could not “identify any background or compelling testimonial
evidence that convinces us that it [is] more likely than not that
[Toussaint] will be persecuted in her country.” J.A. at 7. Moreover, a
general statement, or even a finding, that a person would be in danger
in a particular place does not mean she is likely to be persecuted there
for purposes of the INA inasmuch as ordinary criminal activity may
put a person in danger and some places are more dangerous than
others. Overall, it is clear from the BIA’s decision that, although it
did not find Toussaint’s testimony incredible, it found that her
testimony was insufficient to meet her burden of proof. Indeed, the
BIA’s reference to “insufficient evidence” indicates that it weighed
the evidence and found it lacking, and thus made a factual finding
rejecting Toussaint’s claim. See Sevoian, 290 F.3d at 175. We are
satisfied that the record both with respect to the evidence presented
and lack of evidence supports the BIA’s decision, and thus we cannot
conclude that a reasonable fact-finder would be compelled to find to
the contrary. See id.
We also find that the BIA properly relied on J-E- in denying
Toussaint protection under the CAT. In J-E-, the BIA acknowledged
that acts inflicted against accused criminals can constitute torture. 23
I. & N. Dec. at 302-04. It found that “there are isolated instances of
mistreatment in Haitian prisons that rise to the level of torture,” id. at
302, but that the alien in that case had failed to produce sufficient
evidence to show that he would more likely than not be subjected to
such mistreatment. Id. at 304. The BIA stated, for example, that the
alien had failed to show that the torture was “pervasive and
9
widespread.” Id. at 303. Ultimately, the BIA found that, although the
practice of detaining deportees for an indeterminate period “is
unacceptable and must be discontinued, there is no evidence that
Haitian authorities are detaining criminal deportees with the specific
intent to inflict severe physical or mental pain and suffering.” Id. at
300.6 Therefore, the BIA in this case properly relied on J-E- to
support its finding “that neither indefinite detention nor inhuman
prison conditions in Haiti constitutes torture.” J.A. at 7.
While we acknowledge that J-E- did not specifically mention
the fact that the release of a detainee from a Haitian prison often
depends on the payment of bribes by the detainee’s family members
to Haitian authorities, the BIA was not required to address expressly
evidence concerning bribery in relying on J-E-. In J-E-, the BIA
considered extensive evidence concerning various conditions and
practices in Haitian prisons. Although the BIA found such conditions
to be inhuman and deplorable, it denied relief because it concluded
that the evidence nonetheless failed to satisfy the specific intent
element of the definition of torture. 23 I. & N. Dec. at 300. Thus,
though we do not applaud the practice of bribery that apparently is
prevalent in Haitian prisons, a demonstration of its existence is not
adequate to satisfy the specific intent element of the definition of
torture. Rather, it is a general practice not directed at “a particular
petitioner,” here Toussaint. See Francois v. Gonzales, 448 F.3d 645,
652 (3d Cir. 2006) (citing Auguste v. Ridge, 395 F.3d 123, 137 (3d
Cir. 2005)). To the contrary, bribery seems to be part of “the general
state of affairs that constitute[s] conditions of confinement” in Haiti.
Auguste, 395 F.3d at 137. Accordingly even if Toussaint has made a
showing of its existence, she has not “allege[d] any kind of coercion,
force, cruelty or brutality [that] would be personally directed at [her]
if [she] were returned to Haiti.” Francois, 448 F.3d at 652.
Therefore, the BIA properly analogized Toussaint’s claims regarding
indefinite detention and bribery to those it rejected in its previous
holding in J-E-.
Furthermore our opinion in Auguste, 395 F.3d 123, forecloses
Toussaint’s allegation that evidence of bribery renders her case
distinguishable from other cases in which the BIA denied relief. In
Auguste, we affirmed the denial of a habeas petition in which the
6
We do not believe that it is the function of the BIA to tell other
countries that they must “discontinue” internal practices. Rather, if the
BIA objects to another country’s practices, it should concern itself with
what the consequence of those practices will be in removal proceedings
appealed to it.
10
petitioner challenged the IJ’s reliance on J-E-, emphasizing, inter alia,
“that release [from Haitian prisons] often depends on the family
members of the deportees petitioning the Haitian Ministry of Interior
for release and their ability to pay anywhere between $ 1,000 to $
20,000.” Id. at 129. Like Toussaint, the petitioner in Auguste did not
have family members in Haiti. We nonetheless rejected the
petitioner’s claims based, in part, on the BIA’s holding in J-E- that
“there is no evidence that Haitian authorities are detaining criminal
deportees with the specific intent to inflict severe physical or mental
pain or suffering.” Id. at 152 (citation omitted).
Finally, we recognize that the evidence in this case included
country reports and various articles concerning the mistreatment of
criminal deportees in Haiti and the inhuman conditions in Haiti
prisons which the BIA failed to mention specifically in its decision.
However, we said in Zubeda that “[t]he BIA stated that it had
considered ‘background evidence[,]’ and we assume that this is a
reference to the country reports that were introduced before the [IJ.]”7
333 F.3d at 477. Similarly, our review of the record satisfies us that
the BIA considered the country reports and the articles as background
evidence in this case. Therefore, the BIA did not err in failing to
mention specifically the country reports and the documentary
evidence regarding prison conditions in Haiti. We reiterate that its
reference to “background evidence” suffices to demonstrate its
acknowledgment and consideration of the documentary evidence.
C. Separate Analyses of CAT and INA Claims
Next Toussaint argues that the BIA failed to analyze
separately her claims under the INA and the CAT. Toussaint
contends that “the CAT and the withholding of removal analysis
focus on different elements and therefore must be treated
independently.” Petitioner’s br. at 31.
We agree that the BIA must consider the claims separately.
Thus, even though claims for withholding of removal under the INA
and for protection under the CAT are likely to overlap, they seek “two
separate forms of relief,” and “each claim deserves individualized
7
In Zubeda we nonetheless vacated the BIA’s decision because
the country reports proffered in that case “d[id] not address the prison
conditions in the manner that the BIA suggest[ed] in its exceedingly
brief reference to ‘background evidence’”and instead pertained to
“country wide, systematic incidents of gang rape, mutilation, and mass
murder.” 333 F.3d at 477.
11
consideration.” Mansour, 230 F.3d at 907; see also Ramsameachire
v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004) (“[T]he BIA’s
decision with respect to an alien’s claims for asylum and withholding
of removal pursuant to the INA should never, in itself, be
determinative of the alien’s CAT claim.”). In Zubeda, we concluded
that the BIA erred, inter alia, in “allowing rulings on [the petitioner’s]
asylum and withholding of deportation claim to control her claim
under the [CAT].” 333 F.3d at 479. Similarly, the Court of Appeals
for the Seventh Circuit remanded Mansour to the BIA insofar as the
BIA had denied protection under the CAT, but the court upheld the
BIA’s denial of petitioner’s asylum and withholding of removal
claims. The court explained that, although the BIA thoroughly
addressed the petitioner’s asylum and withholding of removal claims,
it “in a minimalistic and non-detailed manner addressed [petitioner’s
CAT] claim.” 230 F.3d at 908. The court reasoned that “[the
petitioner’s] two claims differ enough in nature that each warrants
individualized treatment” inasmuch as his “ethnic/religious affiliation
. . . was the primary basis for his [CAT] claim, [but he] did not center
his asylum [or withholding] claim around his ethnic/religious
background.” Id. at 909.
Here, however, contrary to Toussaint’s assertion, we are
satisfied that the BIA separately analyzed Toussaint’s claims under
the INA and the CAT. First, the BIA determined that Toussaint was
not entitled to withholding of removal under the INA. In doing so,
the BIA considered Toussaint’s testimony regarding the unidentified
men in Miami who allegedly threatened her, the likelihood that her
father’s political views would be imputed to her, and “background”
evidence.8 Next, the BIA separately addressed Toussaint’s “request
under the Convention [Against Torture].” The BIA explained the
relevance of its recent holding in J-E- and relied on J-E- in
concluding that “there is insufficient evidence in the record to
establish that it is more likely than not that [Toussaint] will be
subjected to [isolated acts of torture] if she is detained upon her return
to Haiti.” J.A. at 7.
D. Social Group
Finally, Toussaint asserts that the BIA, in considering her
claim under the INA, failed to consider that her status as a criminal
8
As we have indicated, we are satisfied that the “background”
evidence to which the BIA referred in its decision consisted of the
documentary evidence proffered by Toussaint, such as the country
reports.
12
deportee renders her a member of a social group on account of which
she more than likely than not will be persecuted.9 The government
answers that Toussaint’s “principal complaint that she is eligible for
withholding of removal as a member of a social group of criminal
deportees was not presented at her hearing and thus it is waived
because of her failure to exhaust administrative remedies.”
Respondent’s br. at 8. Toussaint disputes this contention.
Regardless of whether Toussaint waived this claim, we are
impressed with the precedents of other courts of appeals establishing
that, for purposes of the INA, criminal deportees are not recognized
as a social group. See, e.g., Eilien v. Ashcroft, 364 F.3d 392, 397 (1st
Cir. 2004); Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992)
(“Whatever its precise scope, the term ‘particular social groups’
surely was not intended for the protection of members of the criminal
class in this country . . . .”). We will follow those precedents as we
hardly can conceive that Congress would select criminals as a group
warranting special protection in removal cases. In this regard we
point out that Congress sometimes selects criminals for negative
treatment under the INA on account of their records. See 8 U.S.C. §§
1227(a)(2), 1231(b)(3)(B). We reject the notion that Congress would
take the opposite approach in this context.
For the foregoing reasons, we will deny the petition for
review.
9
Unlike the CAT, the INA requires the applicant to establish that
deportation would threaten his or her life or freedom on account of race,
religion, nationality, membership in a particular social group, or political
opinion. INA § 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A).
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