USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10567
Non-Argument Calendar
____________________
YVES SANTAIS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-044-585
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2 Opinion of the Court 22-10567
____________________
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Yves Santais petitions for review of the Board of Immigra-
tion Appeals’ order affirming the denial of his application for asy-
lum, withholding of removal, and relief under the Convention
Against Torture. We partly dismiss and partly deny Santais’s peti-
tion.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Santais is a Haitian native and citizen. He was admitted to
the United States in September 2008 and became a lawful perma-
nent resident in 2011. In 2013, he was indicted in Georgia state
court for pointing a gun at a female’s head, punching her in the
face, and kicking her in the abdomen. He was convicted by a jury
of false imprisonment and battery and was sentenced to ten years’
imprisonment for the false imprisonment conviction and one year
for the battery conviction, set to run consecutively.
The federal government began deportation proceedings af-
ter the convictions, charging that Santais was removable as a
noncitizen convicted of an “aggravated felony.” Santais applied for
asylum, withholding of removal, and protection under the conven-
tion.
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22-10567 Opinion of the Court 3
The immigration judge held a videoconference merits hear-
ing on Santais’s application. Santais appeared pro se. The only
substantive documents in the record were his application and ac-
companying statement, deportation notice, criminal case records,
and the Haiti 2020 Human Rights Report by the United States State
Department. Santais testified (through an interpreter) that from
2001 until 2008, the United States paid him to inform on supporters
of former Haitian President Jean Bertrand Aristide. Santais
acknowledged Aristide’s presidency ended in 2004 but insisted his
supporters remained violent and dangerous. Santais claimed that
in 2008 someone “outed” him and told Aristide’s supporters he was
an informant. He alleged that Aristide’s supporters then assaulted
and beat him. He testified that, after that beating, he feared “they
would definitely finish me off” and flew to the United States the
next month. Santais conceded that he didn’t know who led Haiti’s
current government, but still insisted he’d be murdered as “a trai-
tor” if he went back to Haiti.
The immigration judge denied Santais’s application in its en-
tirety because his testimony was not credible and lacked corrobo-
ration. Alternatively, the immigration judge found that Santais
didn’t qualify for asylum or withholding of removal because his
battery conviction was an “aggravated felony conviction,” both his
convictions were “particularly serious,” and he hadn’t sufficiently
established he’d be persecuted in Haiti. Finally, the immigration
judge found Santais ineligible for convention protection because he
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4 Opinion of the Court 22-10567
hadn’t shown that, if returned to Haiti, he’d more likely than not
be tortured by or with the Haitian government’s acquiescence.
Santais appealed to the board. He argued that he’d testified
honestly at his hearing and he challenged the underlying facts of
his state convictions. The board affirmed without opinion, and
Santais timely petitioned for our review. 1
II. STANDARD OF REVIEW
When the board affirms without opinion, we review the im-
migration judge’s opinion. See K.Y. v. U.S. Att’y Gen.,
43 F.4th
1175, 1180 (11th Cir. 2022). We review legal conclusions and our
subject matter jurisdiction de novo.
Id. We review factual findings
(including credibility determinations) under the highly deferential
substantial evidence standard, only reversing when the record
compels it. Hasan-Nayem v. U.S. Att’y Gen., No. 21-12402, ___
F.4th ___,
2022 WL 17480085, at *7 (11th Cir. Dec. 7, 2022).
1
Santais’s petition includes federal and state constitutional arguments, but
these must be dismissed for lack of jurisdiction. We lack jurisdiction over—
and therefore can’t review—issues not presented to the board. See Indrawati
v. U.S. Att’y Gen.,
779 F.3d 1284, 1297 (11th Cir. 2015). Santais never explicitly
or implicitly presented any constitutional arguments to the board. Accord-
ingly, the board never “had a full opportunity to consider” them, and our re-
view would improperly “interfere[] with the administrative process.”
Id. at
1298 (quotation omitted).
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22-10567 Opinion of the Court 5
III. DISCUSSION
Santais challenges the denial of his claims for asylum, with-
holding of removal, and relief under the convention. We assume
(without deciding) that the immigration judge lacked substantial
evidence to support the adverse credibility finding. But see, e.g.,
id., at *9 (“[E]ven where an applicant’s explanations for implausible
aspects of his claim are tenable—e.g., explanations for inconsisten-
cies and omissions—that alone generally does not compel a reason-
able fact-finder to reverse an adverse credibility determination.”).
Still, Santais’s claims fail because his state convictions are “particu-
larly serious,” and the immigration judge’s finding that Santais
would not likely be tortured if returned to Haiti is supported by
substantial evidence.
A. Asylum & Withholding of Removal
A conviction for a “particularly serious crime” bars a noncit-
izen’s asylum and withholding of removal claims. See
8 USC
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). An immigration judge may
make an individualized determination that a conviction was for a
“particularly serious crime.” See K.Y., 43 F.4th at 1187.
Liberally construing Santais’s pleadings, he appears to chal-
lenge the immigration judge’s individualized determination that
his convictions were for “particularly serious crimes.” This pre-
sents a legal issue over which we have jurisdiction. See id. at 1185–
87.
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6 Opinion of the Court 22-10567
Santais’s convictions qualify as particularly serious. He was
convicted of crimes “directed at a person” and received a lengthy
eleven-year aggregate sentence. See id. at 1188 (finding a crime’s
seriousness “reflected by the lengthy 42-month sentence”). Santais
pointed a gun at his female supervisor’s head and intentionally
punched her “in the face,” causing “visible bodily harm.” “Add that
all up, and the details . . . easily allow an inference” that his convic-
tions were for particularly serious crimes. Id. (quotation omitted).
Santais’s asylum and withholding of removal claims fail.
Santais disputes details of his altercation with his supervisor,
but we must dismiss those factual challenges for lack of jurisdic-
tion. If a noncitizen is found removable for an “aggravated felony”
conviction, we only have jurisdiction to review his or her asylum
and withholding of removal claims for legal, not factual, error. See
8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C)–(D); see also Nasrallah
v. Barr,
140 S. Ct. 1683, 1687–88 (2020). That’s the case here. The
immigration judge found Santais’s battery conviction—a crime of
violence for which the term of imprisonment was at least one
year—qualified as an “aggravated felony.” See
id. 8 U.S.C §
1101(a)(43)(F); Talamantes-Enriquez v. U.S. Att’y Gen.,
12 F.4th
1340, 1351–52 (11th Cir. 2021) (explaining that Georgia misde-
meanor simple battery based on physical contact causing harm to
the victim—a lesser offense than felony battery itself—is a crime of
violence), cert. denied,
142 S. Ct. 1119 (2022). Stripped down, San-
tais’s factual challenges are collateral attacks on his state convic-
tions’ validity. But a “petition for review of an agency’s
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22-10567 Opinion of the Court 7
immigration determination is not the correct forum” for such at-
tacks. Gelin v. U.S. Att’y Gen.,
837 F.3d 1236, 1247 (11th Cir. 2016).
B. The Convention
To qualify for convention protection, a noncitizen must “es-
tablish that it is more likely than not that he or she would be tor-
tured if removed to the proposed country of removal.” Reyes-
Sanchez v. U.S. Att’y Gen.,
369 F.3d 1239, 1242 (11th Cir. 2004)
(quoting
8 C.F.R. § 208.16(c)(2)). The torture must be “by or at the
instigation of or with the consent or acquiescence of a public offi-
cial acting in an official capacity or other person acting in an official
capacity.”
Id. (quoting
8 C.F.R. § 208.18(a)(1)). Unlike Santais’s
asylum and withholding of removal claims, we can review his con-
vention claim for factual error. Priva v. U.S. Att’y Gen.,
34 F.4th
946, 957 (11th Cir. 2022).
Nothing in the record compels us to reverse the immigra-
tion judge’s finding that Santais didn’t show that, if returned to
Haiti, he’d more likely than not be tortured by or with the acqui-
escence of the Haitian government. Santais testified that the Aris-
tide government ended nearly two decades ago, and, as the immi-
gration judge found, the record lacks evidence that the current Hai-
tian government would more likely than not participate in or ac-
quiesce to his torture. The state department human rights report
doesn’t mention former President Aristide or his supporters or oth-
erwise link them to the current Haitian government. Nor does the
report identify United States government collaborators as individ-
uals facing particular danger in Haiti.
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8 Opinion of the Court 22-10567
IV. CONCLUSION
The petition’s constitutional arguments and factual chal-
lenges to the state convictions are dismissed. The petition’s asy-
lum, withholding of removal, and convention claims are denied.
PETITION DISMISSED IN PART, DENIED IN PART.
