Bernadin v. Ashcroft , 105 F. App'x 281 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2328
JEAN RONY BERNADIN,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Howard, Circuit Judge.
Kevin MacMurray on brief for petitioner.
Joan E. Smiley, Attorney, Office of Immigrant Litigation,
Richard M. Evans, Assistant Director, and Peter D. Kiesler,
Assistant Attorney General, on brief for respondent.
July 26, 2004
LYNCH, Circuit Judge. The Board of Immigration Appeals
(BIA) ordered Jean Rony Bernadin, a Haitian, deported after he was
convicted of domestic violence (Family Abuse-Assault and Battery)
against the mother of one of his children. In doing so, it
reversed a grant of asylum by the Immigration Judge (IJ).
Bernadin now attempts to appeal from the BIA's final
order denying asylum. That he may not do; he took no timely action
to seek review from that order. See Stone v. INS, 514 U.S. 386,
405-06 (1995). His petition is timely only from the BIA's later
decision denying his motion to reconsider, and we treat his
petition as a challenge to the denial of reconsideration. Our
review of denials of motions to reconsider is for abuse of
discretion, Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003); there
was no abuse of discretion here.
I.
Bernadin entered the United States as a lawful permanent
resident on or about April 22, 1993. Following his conviction in
Massachusetts for Family Abuse-Assault and Battery, Mass. Gen. Laws
ch. 265, § 13(A), the Immigration and Naturalization Service (INS)
issued him a Notice to Appear on August 3, 1998, charging Bernadin
as being removable from the United States under
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act.1 8
1
At the time, Bernadin actually had three convictions for
Family Abuse-Assault and Battery. However, because two of them
were on direct appeal and thus not final judgments, the INS based
-2-
U.S.C. § 1227(a)(2)(A)(iii). This section allows for removal of an
alien convicted after entry of an aggravated felony, defined in the
Act, § 101(a)(43)(F), as a crime of violence for which the term of
imprisonment imposed is at least one year. Id.; 8 U.S.C. §
1101(a)(43)(F). As Bernadin received time served of less than one
year for his conviction, the INS withdrew its Notice under
§ 237(a)(2)(A)(iii), and issued a new Notice under
§ 237(a)(2)(E)(i), which allows for removal of an alien who has
been convicted of, among other things, a crime of domestic
violence, regardless of the length of sentence. 8 U.S.C. §
1227(a)(2)(E)(i).
Bernadin sought asylum under § 208(b) of the Act,
claiming both that he had suffered from past persecution in Haiti
as a result of a cousin's association with the Ton Ton Macoutes and
that he had a well-founded fear of future persecution should he be
deported. The IJ granted his asylum claim, finding that although
Bernadin's past treatment did not rise to the level of past
persecution, Bernadin nonetheless did possess a well-founded fear
of future persecution should he return to Haiti. A combination of
factors led the IJ to that decision. The IJ first noted that, as
a criminal deportee, there was a high probability that Bernadin
would be jailed immediately on return to Haiti. This probability,
its Notice to Appear solely on the one final judgment. Bernadin
has noted that this judgment is the subject of a collateral attack.
-3-
the judge explained, together with Bernadin's lack of family to
assist in getting him out of jail and his family's previous
political associations, meant that Bernadin might be left in jail
indefinitely, or worse.
The INS appealed this decision to the BIA, arguing that
Bernadin did not establish a well-founded fear of future
persecution as a matter of law. Bernadin did not respond. On May
28, 2003, the BIA overturned the ruling of the IJ, agreeing with
the INS that Bernadin had no well-founded fear of future
persecution. Specifically, the BIA found:
The respondent claims he would be tortured or killed in
Haiti. We find that the evidence does not indicate that
he has a well-founded fear or that it is more likely than
not that the respondent would be harmed for one of the
protected reasons. The respondent also does not meet the
requirement that the government would acquiesce in his
intentional mistreatment. The respondent did not support
his assertion that he was arrested because of his family
ties, rather than for some other reason. The Department
of State, Profile of Asylum Claims and Country Conditions
- Haiti, March 31, 1998, . . . does not support a
conclusion that former associates of the Macoutes are
persecuted. After so long a period of time, the
possibility that someone would seek the respondent out
for harm seems remote. Such an act would also be a
personal vendetta, not persecution.
The BIA also examined the claim that criminal returnees
to Haiti are imprisoned under conditions that amount to
persecution:
The Immigration Judge found that criminal returnees to
Haiti are imprisoned under conditions which amount to
persecution. We do not disagree that the respondent
faces at least a possibility of imprisonment upon return
to his country. While the treatment in prison may be
-4-
harsh, these conditions are universal in Haitian prisons
and are not directed at the returnees. Moreover, the
returnees may be released upon review of their cases.
There has been no evidence presented which makes a case
that the respondent has a well-founded fear or will more
likely than not be intentionally subjected to persecution
or torture. The possibility that the respondent may
suffer under these poor prison conditions is not
sufficient to substantiate a finding that the Haitian
government acquiesces in the "torture" of criminal
deportees who are detained, as that term is defined by
regulation. As a result, we find that the evidence fails
to establish a well founded fear of persecution or that
the respondent will more likely than not be subjected to
treatment rising to the level of torture in Haiti as a
result of his status as a criminal detainee.
(citations omitted)
Bernadin did not seek timely judicial review of the BIA's
decision.
On June 27, 2003, he instead filed a motion to
reconsider, which was denied by the BIA on August 29, 2003. In
denying the motion, the BIA stated that Bernadin's motion "fails to
persuade us of any error of fact or law in our last decision which
would affect the result in his case." Bernadin thereafter
petitioned this court for review. We construe the petition,
despite its arguments addressed only to the BIA's initial denial of
asylum, to be from the denial of the motion to reconsider.2
2
We are concerned that counsel for Bernadin failed to
inform us of the untimeliness of the petition vis-á-vis the BIA's
initial asylum decision and of the later denial of the motion for
reconsideration. At the least, counsel has woefully failed to meet
his duty of candor to the court. See Mass. R. of Prof'l Conduct
3.3. We expect that such conduct will not recur.
-5-
II.
In petitioning the BIA to reconsider a decision,
respondent's motion "shall state the reasons for the motion by
specifying the errors of fact or law in the prior Board decision
and shall be supported by pertinent authority." 8 C.F.R.
§ 1003.2(b)(1). This is distinguished from a motion to reopen,
which requires the petitioner to provide new evidence that "is
material and was not available and could not have been discovered
or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).
Thus, one petitioning for a motion to reconsider need not present
new law or facts that would materially alter the previous decision,
but must point to errors of fact or law by the BIA in its previous
decision.
In his motion to reconsider, Bernadin claimed that the
BIA committed a legal error by determining that there was
insufficient evidence of a well-founded fear of persecution without
holding that the IJ's finding as to Bernadin's credibility was
clearly erroneous. His asylum claim had two prongs. First, he
claimed that as a criminal deportee, he will be placed in prison
under conditions that amount to torture upon returning to Haiti.
Second, he claimed that, due to his cousin's past relationship with
the Ton Ton Macoutes, he will upon returning to Haiti be persecuted
for his political affiliation. In the motion to reconsider,
Bernadin argued that, because the IJ found him to be credible and
-6-
he testified that both of the above were true, to find that he did
not have a well-founded fear of persecution would require that the
BIA find the IJ's credibility determination clearly erroneous,
which the BIA did not do. See 8 C.F.R. § 1003.1(d)(3)(i).
This claim is mistaken. The BIA's decision on Bernadin's
first argument -- that as a criminal deportee he will be placed in
prison under conditions that amount to torture -- rested on two
grounds that are independent of the credibility of Bernadin's
testimony; namely, the state of prison conditions in Haiti (a fact
issue), and the question whether Bernadin's placement in those
conditions as a criminal deportee rises to the level of torture as
defined by the Act (a legal issue that the BIA reviews de novo).
It was well within the discretion of the BIA not to reconsider its
finding that "[t]he possibility that the respondent may suffer
under these poor prison conditions is not sufficient to
substantiate a finding that the Haitian government acquiesces in
the 'torture' of criminal deportees who are detained, as that term
is defined by regulation."
The BIA's decision denying Bernadin's second argument --
that he has a well-founded fear of persecution based on his
family's past political associations -- also rested on two grounds
independent of the credibility of his testimony: first, what
Bernadin's likely treatment will be upon returning to Haiti due to
his past association with a family member involved with the Ton Ton
-7-
Macoutes, and second, whether that treatment rises to the level of
persecution as a matter of law as defined by the Act. The first
ground may rest in part on Bernadin's testimony, but much of it
depends on the general treatment in Haiti of those who were
involved with the Ton Ton Macoutes in the past, which is a fact
issue independent of Bernadin's credibility. The second ground is
a question of law for the BIA to consider de novo -- another issue
on which the credibility of Bernadin's testimony simply has no
bearing. In making the decision not to reconsider its finding that
the evidence did not rise to the level of a well-founded fear of
future persecution, the BIA was well within its scope of
discretion.
In essence, Bernadin's argument is that the BIA had to
accept the IJ's finding that his testimony was credible, and that
if his testimony was credible, then his claim of future persecution
must be allowed. But that is not so. The BIA had ample reasons to
deny the motion to reconsider its initial decision, which rested on
grounds that did not depend on Bernadin's credibility. The BIA
committed no error of law or fact nor did it inexplicably depart
from precedent so as to render its decision an abuse of discretion.
We affirm the BIA and deny the petition for review.
-8-