Fremont v. Barr ( 2020 )

19-369
Fremont v. Barr
BIA
Connelly, IJ
A078 370 967
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 20th day of August, two thousand twenty.
PRESENT:
GUIDO CALABRESI,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
GARY FREMONT,
Petitioner,
v. 19-369
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Julia B. Beskin, Owen F. Roberts,
Avi Panth, Quinn Emanuel Urquhart
& Sullivan, LLP, New York, NY.
FOR RESPONDENT: Ethan P. Davis, Acting Assistant
Attorney General; Stephen J.
Flynn, Assistant Director; Robert
Michael Stalzer, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Gary Fremont, a native and citizen of Haiti,
seeks review of a January 15, 2019 decision of the BIA
affirming a September 11, 2018 decision of an Immigration
Judge (“IJ”) ordering Fremont’s removal to Haiti for a crime
involving moral turpitude (“CIMT”), finding Fremont competent
to proceed, and denying Fremont’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Gary Fremont, No. A 078 370
967 (B.I.A. Jan. 15, 2019), aff’g No. A 078 370 967 (Immig.
Ct. Batavia Sept. 11, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we review both the
IJ’s and BIA’s decisions “for the sake of completeness.”
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Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
(2d Cir. 2006). We review factual findings for substantial
evidence and questions of law and the application of law to
undisputed facts de novo. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see
also Diop v. Lynch, 807 F.3d 70, 75 (4th Cir. 2015)
(“Competency has long been considered an issue of fact.”).
Removability
We identify no error in the agency’s conclusion that
Fremont is removable for having committed a CIMT within five
years of the date of his admission. The Government must
prove removability by clear and convincing evidence. Singh
v. Dep’t of Homeland Sec., 526 F.3d 72, 78 (2d Cir. 2008).
When the applicable evidentiary standard is clear and
convincing evidence, we review findings of fact “under a more
demanding variation of the substantial evidence standard . .
. .” Centurion v. Holder, 755 F.3d 115, 119 (2d Cir. 2014)
(internal quotation marks and citation omitted). Under this
standard, the petition for review may be granted if we
determine that “any rational trier of fact would be compelled
to conclude that the proof did not rise to the level of clear
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and convincing evidence.” Id. (internal quotation marks
omitted).
An alien is removable if he is “convicted of a crime
involving moral turpitude committed within five years . . .
after the date of admission, . . . for which a sentence of
one year or longer may be imposed.” 8 U.S.C.
§ 1227(a)(2)(A)(i). Fremont conceded that his conviction for
attempted robbery conviction is a CIMT, but disputes that the
Government met its burden of proving that the date of
commission fell within five years of his admission. In
determining the date of commission of the offense, the agency
relied on a document entitled “Complaint/Arrest Affidavit,”
which reflects that the attempted robbery occurred on January
5, 2007.
Contrary to Fremont’s argument, the agency was not
limited to the record of conviction to establish the date on
which he committed the offense. The term “record of
conviction” generally means “a charging document (such as an
indictment), a signed plea agreement, a verdict or judgment
of conviction, a record of the sentence; a plea colloquy
transcript, and jury instructions.” Akinsade v. Holder, 678
4
F.3d 138, 144 (2d Cir. 2012) (internal quotation marks
omitted). This is the record that the agency is limited to
when determining whether a conviction is a CIMT. See Wala
v. Mukasey, 511 F.3d 102, 109-10 (2d Cir. 2007). We have not
held, however, that the agency is limited to the record of
conviction in establishing the date of the commission of an
offense under 8 U.S.C. § 1227(a)(2)(A)(i). Meanwhile, the
BIA has held that the agency is not limited to a record of
conviction in determining the non-element facts of a charge
of removability, e.g., In re Babaisakov, 24 I. & N. Dec. 306,
317–21 (BIA 2007) (permitting any admissible evidence bearing
on victim’s loss in aggravated felony case), a holding that
comports with subsequent Supreme Court precedent.
See Nijhawan v. Holder, 557 U.S. 29, 41–43 (2009) (rejecting
argument that agency is limited in what documents it may
review in determining amount of loss for fraud offense).
That 8 U.S.C. § 1227(a)(2)(A)(i) requires the relevant CIMT
conviction to have been “committed within five years”
supports the agency’s reading in this case: although a
determination of whether a conviction qualifies as a CIMT
should be based on the “record of conviction,” a determination
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of when the relevant offense was committed may take into
account any reliable evidence.
Fremont also argues that, even if the Complaint/Arrest
Affidavit is admissible, it does not amount to clear and
convincing evidence of the date that the offense was
committed. We disagree, and conclude that it does. The
document was sworn before the deputy clerk or a notary, is
date-stamped contemporaneously with its creation, and was
obtained from the relevant state court rather than the police
department. Cf. Francis v. Gonzales, 442 F.3d 131, 143
(2d Cir. 2006) (holding that foreign police report was
admissible, but not “clear and convincing evidence,” and
noting preference for documents from courts rather than law
enforcement). Accordingly, this document constitutes clear
and convincing evidence that Fremont committed the relevant
offense on January 5, 2007, a date within five years of his
January 27, 2002 admission.
Competency
“[T]he test for determining whether an alien is competent
to participate in immigration proceedings is whether he or
she has a rational and factual understanding of the nature
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and object of the proceedings, can consult with the attorney
or representative if there is one, and has a reasonable
opportunity to examine and present evidence and cross-examine
witnesses.” Matter of M-A-M-, 25 I. & N. Dec. 474, 479
(BIA 2011). “When there are indicia of incompetency, an
Immigration Judge must take measures to determine whether a
respondent is competent to participate in proceedings.” Id.
at 480. For example, an IJ may ask questions regarding “the
nature of the proceedings, [] the respondent’s state of
mind[,] [and] . . . whether he or she currently takes or has
taken medication to treat a mental illness;” the IJ may also
continue proceedings to permit an evaluation. Id. at 480-81.
Applying the test for competency, an IJ “must weigh the
results from the measures taken and determine . . . whether
the respondent is sufficiently competent to proceed with the
hearing without safeguards.” Id. at 481.
While, contrary to the IJ’s written statement, the record
presented some indicia of incompetency, including evidence
that Fremont had been diagnosed with a mental illness and
prescribed medication for that condition, we find no basis
for remand. The IJ asked questions relevant to a determination
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of competency and Fremont benefited from the safeguard of
being represented by counsel. Although the IJ did not
conduct a separate competency hearing, at the beginning of
Fremont’s merits hearing, the IJ asked him questions to
determine his competency. Fremont’s responses established
that he understood the purpose of the proceeding was to remove
him from the United States based on his criminal conviction.
See id. at 480 (listing competency concerns as including
understanding of the “nature of the proceedings”).
Furthermore, the record before the IJ reflected that
Fremont had been able to provide his attorney with detailed
information for his asylum application, including, for
example, the names, dates, and places of birth of his seven
children. While his application and testimony included only
a limited level of detail about the past harm that his family
suffered in Haiti, this is not necessarily an indication of
a lack of competency. Fremont simply may not have known the
information: he testified that he never knew the political
party to which his mother belonged, for example, while, in
contrast, he provided detailed information about his mental
health history.
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Finally, as the IJ concluded, where the record raises a
competency issue, the customary response in the immigration
context is for the IJ to put safeguards such as legal
representation in place. Fremont already had that safeguard.
Id. at 481–82 (“Immigration Judges have discretion to
determine which safeguards are appropriate, given the
particular circumstances in a case before them.”); see also
8 U.S.C. § 1229a(b)(3) (“If it is impracticable by reason of
an alien’s mental incompetency for the alien to be present at
the proceeding, the Attorney General shall prescribe
safeguards to protect the rights and privileges of the
alien.”); Matter of M-J-K-, 26 I. & N. Dec. 773, 777
(BIA 2016) (“The participation of counsel increases the
likelihood of finding a means to proceed fairly, . . .”).
Here, although the record contained only limited evidence of
what happened to Fremont’s family in Haiti, with the
assistance of his attorney Fremont was able to present his
mother’s death certificate and evidence of country conditions
in Haiti, including evidence regarding mental health care
there. Accordingly, we conclude that on this record it
cannot be said that any reasonable factfinder would be
9
compelled to find Fremont not competent: he understood he was
in removal proceedings because of his criminal conviction and
he was able to work with his counsel to prepare applications
for relief. See 8 U.S.C. § 1252(b)(4)(B).
Asylum
To establish asylum eligibility, an applicant must show
that he has suffered past persecution or has a well-founded
fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. § 1101(a)(42). If the
applicant is found to have suffered past persecution, he is
presumed to have a well-founded fear of future persecution on
the basis of the original claim. 8 C.F.R. § 1208.13(b)(1).
Fremont did not corroborate his claim or establish past
persecution on the basis of political opinion. While “[t]he
testimony of the applicant may be sufficient to sustain the
applicant’s burden without corroboration,” the applicant must
present testimony that “is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the
applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii).
“[T]he trier of fact may weigh the credible testimony along
10
with other evidence of record” and may require corroboration
of even credible testimony through available or “reasonably
obtain[able]” evidence. Id. The agency did not err in
determining that Fremont failed to corroborate his political
opinion claim.
The agency properly identified the missing evidence,
noting that Fremont failed to provide any information from
family members to confirm that his mother and uncle were
killed and his father detained by supporters of the Lavalas
party. Fremont did not show that relevant evidence was not
reasonably available as he testified that his siblings were
in the United States, that he was in contact with his cousin
and father in the United States, and at least one cousin
provided some information to his attorney. See also 8 U.S.C.
§ 1252(b)(4) (determinations regarding availability of
corroborating evidence shall not be reversed unless a court
determines that “a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable”).
An asylum applicant generally should be given an
opportunity to explain why specific corroboration is missing,
but here, Fremont was not asked specifically why he did not
11
supply affidavits from his family members. Explanation is
not always necessary, however, depending on the kind of
corroboration that the IJ seeks. Liu v. Holder, 575 F.3d
193, 198–99 (2d Cir. 2009). Fremont ultimately bore, and
failed to carry, the burden of explaining why he did not
provide affidavits from any family members, and particularly
from his father, who had experienced the alleged past harm.
Id. at 199.
Furthermore, Fremont did not allege past harm that was
directed at him, as required to state an asylum claim.
Fremont points to his testimony that people came looking for
his father and that “when they c[a]me to [his] mom, they get
everybody in the house paid the consequences.” But Fremont
left Haiti years before his mother’s alleged murder in 2018,
and he did not identify what harm, if any, he suffered before
he came to the United States. Moreover, “an asylum applicant
cannot claim past persecution based solely on harm that was
inflicted on a family member on account of that family
member’s political opinion or other protected
12
characteristic.” Jiang v. Gonzales, 500 F.3d 137, 141
(2d Cir. 2007).
Absent a showing of past persecution, Fremont had the
burden to show a well-founded fear of future persecution.
8 C.F.R. § 1208.13(b)(2); Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). Apart from his challenge to the
corroboration finding, Fremont does not address the agency’s
conclusion that he did not establish a well-founded fear on
account of his family’s political opinions or on account of
any proposed social groups. Any challenge to that finding
has been waived as a result. Zhang v. Gonzales, 426 F.3d
540, 545 n.7 (2d Cir. 2005) (issues and claims “not
sufficiently argued” in briefs are waived on appeal).
Because Fremont failed to carry his burden of proof for
asylum, he necessarily failed to meet the higher burden for
withholding of removal. See Lecaj v. Holder, 616 F.3d 111,
119 (2d Cir. 2010). On petition for review, Fremont does not
challenge the agency’s denial of CAT protection.
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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