Luistilus Bonnet v. Garland ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2175
CLAUDE MARY LUISTILUS BONNET,
Petitioner,
v.
MERRICK B. GARLAND,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta and Barron, Circuit Judges.
Talwani,** District Judge.
Julia Ciachurski,*** with whom Mary P. Holper, Peter
Alfredson, and Boston College Legal Services LAB, Immigration
Clinic were on brief, for petitioner.
Tim Ramnitz, Attorney, Office of Immigration Litigation,
Civil Division, with whom Bryan Boynton, Acting Assistant Attorney
General, Civil Division, and Shelley R. Goad, Assistant Director,
Office of Immigration Litigation, were on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
** Of the District of Massachusetts, sitting by designation.
*** On July 27, 2021, the Court granted leave for Julia
Ciachurski, a recent law school graduate, to participate in oral
argument pursuant to 1st Cir. R. 46.0(f)(1)(B).
December 13, 2021
BARRON, Circuit Judge. Claude Mary Luistilus Bonnet, a
native and citizen of Haiti, petitions for review of an order of
the Board of Immigration Appeals ("BIA") that affirms the denial
of his application for protection under the Convention Against
Torture ("CAT"). We deny the petition.
I.
Bonnet immigrated to the United States as a legal
permanent resident in 1999, when he was sixteen years old. In
December 2017, Bonnet pleaded guilty in Massachusetts state court
to multiple counts of possession with intent to distribute Class
B and Class E controlled substances. He was sentenced to six
months of incarceration.
Subsequently, the Department of Homeland Security
("DHS") issued Bonnet a Notice to Appear that alleged that he was
subject to removal under Sections 237(a)(2)(A)(iii) and (B)(i) of
the Immigration and Nationality Act ("INA") due to his conviction
for possession to distribute a Class E substance, see 8 U.S.C.
§ 1227(a)(2). Bonnet, proceeding pro se, filed a Form I-589
application for asylum, withholding of removal, and protection
under the CAT.
An Immigration Judge ("IJ") held a hearing on the merits
of the claims on July 13, 2018, at which Bonnet and certain of his
family members testified. Following the hearing, the IJ issued an
oral decision that denied Bonnet the relief that he requested on
- 3 -
his claims. The IJ found that Bonnet was statutorily ineligible
for asylum and withholding of removal because his conviction for
possession of a Class E substance with intent to distribute was a
conviction of a "particularly serious crime," see 8 U.S.C.
§ 1158(b)(2)(B)(i). The IJ also denied Bonnet's claim for
protection under the CAT because it concluded both that Bonnet did
"not fear anyone in particular," and that he had not brought
forward sufficient evidence to demonstrate that he was entitled to
protection under the CAT.
Bonnet appealed the IJ's ruling to the BIA. Bonnet's
conviction for possession with intent to distribute a Class E
substance was vacated while the appeal was pending. The BIA
granted Bonnet's unopposed motion to remand on December 6, 2018,
because he had only been found removable based on that conviction.
Bonnet was issued an amended Notice to Appear on
February 6, 2019. The Notice to Appear alleged that Bonnet was
removable due to his conviction for possession with intent to
distribute a Class B substance, see 8 U.S.C. § 1227(a)(2)(A)(iii),
(B)(i).
Bonnet, now represented, submitted an Amended Form I-
589. At a master calendar hearing in front of the IJ on February
20, 2019, Bonnet represented that he would present new evidence
that was unavailable when he proceeded pro se in responding to his
earlier Notice to Appear based on the now-vacated conviction.
- 4 -
Bonnet subsequently submitted a declaration from Dr.
Chelsey Kivland, an anthropologist at Dartmouth College. The
declaration concerned the treatment in Haiti of criminal deportees
to that country.
The IJ then held a merits hearing on April 9, 2019. The
IJ admitted Kivland as an expert without objection from the
government. She testified about conditions in Haiti.
The IJ denied Bonnet's application for asylum,
withholding of removal, and protection under the CAT. Bonnet
appealed to the BIA, which adopted and affirmed the IJ's decision,
while offering its own reasoning in support of its ruling.
Bonnet timely filed this petition for review.1 The
petition challenges only the denial of his request for protection
under the CAT.
II.
To make out a CAT claim, a petitioner must show "that it
is more likely than not that he will be tortured if returned to
1 Soon thereafter, Bonnet filed a motion to stay his removal
pending the resolution of this appeal. The motion was denied in
an order relying on 8 U.S.C. § 1252(a)(2) and our decision in
Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006), which interpreted
that statute to deprive us of jurisdiction to hear challenges to
the factual conclusions underlying decisions denying applications
for immigration relief by aliens who are removable by reason of an
aggravated felony conviction, id. at 63. Between the denial of
the stay and briefing to us, the Supreme Court decided Nasrallah
v. Barr, 140 S. Ct. 1683 (2020), which interpreted § 1252(a)(2)
differently and made clear that we do have jurisdiction to resolve
Bonnet's petition, see id. at 1688.
- 5 -
his home country." Mazariegos v. Lynch, 790 F.3d 280, 287 (1st
Cir. 2015) (citing Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.
2004)). This requires the applicant to "offer specific objective
evidence showing that he will be subject to: '(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.'" Romilus, 385 F.3d at 8(emphasis omitted) (quoting Elien v. Ashcroft, 364 F.3d 392, 398
(1st Cir. 2004)); see also 8 C.F.R. § 208.18(a).
"When the BIA has adopted and affirmed the IJ's ruling,
but has included discussion of some of the IJ's bases for decision,
we review both the IJ's and BIA's opinions." Chanthou Hem v.
Mukasey, 514 F.3d 67, 69 (1st Cir. 2008). We review the findings
of fact below "under the 'substantial evidence' standard to
determine if those findings are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Marroquín-Rivera v. Sessions, 861 F.3d 7, 9 (1st Cir.
2017) (quoting Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir.
2014)). We review claims of legal error "de novo, 'subject to
appropriate principles of administrative deference.'" Ordonez-
Quino, 760 F.3d at 87 (quoting Larios v. Holder, 608 F.3d 105, 107
(1st Cir. 2010)).
- 6 -
III.
Bonnet bases his CAT claim in part on the torture that
he contends that he would be subject to in Haiti while "imprisoned"
there as a criminal deportee, and we begin with his challenge to
the denial of that aspect of his CAT claim. Bonnet advances
numerous arguments in support of this challenge,2 but the necessary
premise for each of them is the same: that the IJ erred in finding
-- or, at the least, that the BIA erred in affirming the IJ's
finding -- that Bonnet had failed to show that it was more likely
than not that he would be "detain[ed]" in Haiti.
This premise necessarily underlies each of Bonnet's
arguments regarding this aspect of his CAT claim, because he relies
with respect to it on Kivland's testimony regarding the likelihood
that criminal deportees will be subjected to deliberate abuse in
2 Those contentions are that: (1) the IJ erroneously applied
a heightened standard of proof by requiring him in effect to prove
that "all Haitian prisoners are subjected to what amounts to
torture"; (2) the IJ erred by discrediting Kivland's testimony
that all Haitian prisoners are subject to acts of torture --
including a "very severe" form of ear boxing, aggressive head-
shaving causing lacerations to the scalp, and beatings of genitalia
-- and by prohibiting her, against its prior policy, from making
that "reasonable inference"; (3) the BIA affirmed the finding that
he was not likely to be tortured based on an erroneous
determination that "a qualified expert's conclusions drawn from
over 100 conversations with Haitian prisoners was insufficient to
prove what would happen to Mr. Bonnet inside of a Haitian prison,"
a finding which was based in part on mischaracterizations of State
Department reports; and (4) that the BIA erred by failing to
distinguish his case from Matter of J-E-, 23 I. & N. Dec. 291 (BIA
2002), in which the BIA held that Haitian prison conditions, though
appalling, did not constitute torture, id. at 301.
- 7 -
Haitian "jail and prisons," including treatment that may rise to
the level of torture. Thus, if he cannot show that he would be
detained in a jail or prison in Haiti, then her testimony about
the treatment to which criminal deportees are subjected in Haitian
jails or prisons cannot provide the support that he contends that
it supplies.
We thus must review Kivland's testimony on this critical
point. Kivland testified that upon their arrival in Haiti
deportees "go through processing . . . by Haitian authorities."
She described this "processing" as occurring "at the . . . airport
or . . . a jail that is close to the airport." Kivland went on to
explain in her testimony that, during "processing," criminal
deportees are "fingerprinted, photographed and questioned
regarding the[ir] criminal history and the nature of their
charges." Kivland also testified that although criminal deportees
are supposed to "be processed and released on the day of arrival,"
certain of them are subject to "further questioning" and may "be
detained."
In elaborating on the "processing" of criminal
deportees, Kivland testified that individual officers responsible
for conducting it have "much discretion" regarding who "needs to
be further questioned because they constitute a threat to society
or would violate []one of the law enforcement priorities of the
Haitian police." She also explained that she considered criminal
- 8 -
deportees to have undergone "prolonged detention" if they were not
released on the day of processing and instead were held over.
Kivland testified that the longest period of "prolonged
detention" that she had heard of lasted "a month" and that the
average length of "prolonged detention" is "[t]hree to five days."
She did testify, however, that some criminal deportees "had not
been detained beyond one day of processing." Moreover, Kivland
did not testify that criminal deportees who are released the same
day or who are not held in "jail or prison" are themselves subject
to the kind of abuse that she testified that criminal deportees
who are held in Haitian jails and prisons face.
Following the close of evidence at the proceedings at
which Kivland testified, the IJ found that Bonnet had "merely shown
that an officer could detain him in the officer's discretion, not
that an officer is more likely than not to detain [Bonnet] upon
his return to Haiti." Then, in denying Bonnet's appeal of that
finding, the BIA found that the IJ's finding that Bonnet had "not
demonstrated that it is more likely than not that he will be
imprisoned is not clearly erroneous" and noted that Kivland had
not discussed the "likelihood" that Bonnet "would be imprisoned or
detained upon initial screening."
Thus, Bonnet must show that the IJ's finding -- as
affirmed by the BIA -- is not sustainable on this record. To do
so, Bonnet directs our attention to the fact that Kivland was asked
- 9 -
at the proceedings before the IJ whether a prior drug conviction,
a lack of familial ties in Haiti, and perceived political
opposition to the ruling regime would each make it "more or less
likely" that a criminal deportee would experience "prolonged
detention in [Haitian] prisons" and that, for each, she said
"[m]ore likely."
Bonnet argues that it was clear in context that Kivland
meant in so answering that it was "more likely than not" that
Bonnet would "suffer prolonged detention in a Haitian prison."
Thus, Bonnet contends, it follows that in finding that he had
failed to establish it was more likely than not that he would be
detained beyond the day of processing, the IJ (or, at least, the
BIA) either ignored portions of the record or impermissibly imposed
a "formalistic requirement" that Kivland use the words "more likely
than not" that prior BIA precedent neither compelled nor supported.
We do not agree. The portions of Kivland's testimony on
which Bonnet relies in pressing this challenge are fairly construed
just as the IJ and the BIA construed them: to have addressed only
the risk that Bonnet would be held in "prolonged detention in these
prisons" relative to the risk that other criminal deportees would
be so detained. So construed, those portions of Kivland's
testimony do not purport to address whether Bonnet was more likely
than not to be held in "prolonged detention" in a jail or prison
in Haiti. Nor does Bonnet explain what supports his assertion
- 10 -
that the context of Kivland's statements in those portions of her
testimony makes clear that she was speaking about the absolute --
rather than the relative -- degree of risk of detention beyond the
day of processing that he faced. Thus, Bonnet fails to show either
how the IJ erred in finding, or how the BIA erred in affirming the
IJ in finding, that his contention that he was more likely than
not to be tortured in Haiti while in "prolonged detention" depended
on a "series of suppositions," In re J-F-F-, 23 I. & N. Dec. 912,
917 (A.G. 2006), that created too much uncertainty for it to carry
his burden.3
There is one loose end to address. Bonnet contends that
the record in his case is indistinguishable from precedent from
other circuits that granted petitions for review from petitioners
facing removal to Haiti whom IJs and the BIA had denied CAT
protection. See Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012);
Jean-Pierre v. U.S. Att'y Gen., 500 F.3d 1315 (11th Cir. 2007).
But, in those cases, the IJ either found, or did not dispute, that
the petitioner had met his burden to show that it was more likely
3 We note that Kivland's declaration stated that because of
Bonnet's risk factors, "Bonnet will be wrongfully detained upon
arrival" (emphasis added). But, Bonnet does not argue to us -- and
argued, at best, in a cursory fashion to the BIA -- that Kivland's
testimony should be read in light of this statement in the
declaration or that the relevant section of the declaration was
improperly ignored. Thus, any argument that the BIA and IJ erred
by failing to consider Kivland's statement in her declaration is
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
- 11 -
than not that he would be imprisoned in Haiti following his arrival
in that country. Ridore, 696 F.3d at 913 ("[W]e have the testimony
of [an expert] who testified that clearly this individual upon his
return back to Haiti will be turned over to the Haitian authorities
who will immediately intern him in one of their prison facilities
where he will be held indefinitely . . . ."); Jean-Pierre, 500
F.3d at 1317 (assuming, presumably based on past Haitian policy
and without dispute from the government, that "criminal deportees
from the United States are subject to indefinite detention in
Haitian prisons").4
Moreover, Jean-Pierre is distinguishable because Kivland
testified that Haiti has prohibited indefinite detention of
criminal deportees since 2006, while the IJ in Jean-Pierre denied
his petition for relief under the CAT on January 3, 2006, see 500
F.3d at 1319. As for Ridore, the IJ there does appear to have
found that the petitioner in that case was more likely than not to
face such extended detention in a Haitian prison based on the lack
of his family ties in Haiti, 696 F.3d at 914, 919, and that is a
factor to which Bonnet also points. But, the IJ here found
otherwise. And, as we have explained, Bonnet has not presented us
with a sufficient basis for overturning that finding.
4 In Jean-Pierre, the IJ and BIA appear to have based their
decisions denying relief only on a determination that, once in a
Haitian prison, the applicant would not suffer torture. 500 F.3d
at 1319-20.
- 12 -
IV.
Bonnet separately challenges the rejection of his
request for CAT protection based on the likelihood that he would
be tortured by vigilante mobs in Haiti if he were removed to that
country. Bonnet's arguments on this score take aim at the IJ's
and BIA's application of our decision in Costa v. Holder, 733 F.3d
13 (1st Cir. 2013).
The IJ and BIA each cited Costa in rejecting Bonnet's
claim that he would be tortured by vigilantes with the consent or
acquiescence of government officials. Bonnet argues that the IJ
and the BIA each not only relied on that case but also erred in
doing so because he is asserting that the record shows a systemic
governmental failure to control vigilantes and Costa does not
address such a contention. He alternatively argues that we must
"remand to the BIA to apply its evolving precedent regarding when
a government actor is acting in an official capacity for the
purposes of CAT relief."
The problem for Bonnet is that the IJ and BIA merely
cited Costa as an additional ground for rejecting Bonnet's
petition. Thus, even if his argument about how Costa may be
distinguished is persuasive, he must also show that it is more
likely than not that he would be tortured by vigilantes for this
aspect of his CAT claim to have merit. See Mazariegos, 790 F.3d
at 287 (setting out five parts of a prima facie claim of torture,
- 13 -
only one of which concerns the role of public officials); J-F-F-,
23 I. & N. Dec. at 917-18, 918 n.4 (requiring applicants for
protection under the CAT to show that each step in a hypothetical
chain of events is more likely than not to happen for them to show
that they are more likely than not to be subject to torture). Yet,
the BIA affirmed the IJ's finding that he had not made that
showing, and Bonnet does not develop an argument challenging that
finding (or the BIA's affirmance of it) in his petition.5 His
challenge to the denial of his CAT claim based on the violence
that he alleges that he would face from vigilantes in Haiti
therefore necessarily fails.6
V.
The petition for review is denied.
5 Bonnet contended to the IJ and in his reply brief that he
could establish the requisite risk of torture based on the
aggregate of the various risks of torture he alleged that he would
face. He did not develop this argument in his opening brief, so
it is waived, and we take no position on either the merits of the
argument or whether the BIA's analysis is consistent with this
approach. Zannino, 895 F.2d at 17.
6 We note that the IJ also found that Bonnet had not
established a prima facie case on his CAT claim on the basis of
the harm that he contended that he would suffer at the hands of
the Tonton Macoute, a paramilitary organization in Haiti. Bonnet
has not developed a challenge to that ruling in his petition for
review.
- 14 -