Baptiste v. Attorney General , 229 F. App'x 66 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-25-2007
Baptiste v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2896
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"Baptiste v. Atty Gen USA" (2007). 2007 Decisions. Paper 1223.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-2896 and 05-3605
JOEL JEAN BAPTISTE,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A47-384-739)
Immigration Judge: Honorable Grace A. Sease
Initially Docketed as an Appeal from EDPA No. 05-cv-01710
Prior to the Enactment of the Real ID Act of 2005
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2007
Before: RENDELL, BARRY and CHAGARES, Circuit Judges.
(Filed: April 25, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
The Immigration and Naturalization Service instituted removal proceedings
against Petitioner Joel Jean Baptiste, who sought asylum and withholding of removal
under the Immigration and Nationality Act (“INA”), 66 Stat. 163, 8 U.S.C. § 1101 et seq.
The immigration judge (“IJ”) denied relief, as did the Board of Immigration Appeals
(“BIA”), which issued a final order of removal. The BIA, like the IJ, found that Baptiste
had failed to establish eligibility for asylum, withholding, or protection under the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (“CAT”), as implemented by the Foreign Affairs Reform and
Restructuring Act (“FARRA”), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112
Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231). We will deny
Baptiste’s petition for review.
DISCUSSION
We review the decision of the BIA for substantial evidence. See Abdulrahman v.
Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003). Baptiste is a Haitian citizen who entered this
country with a green card in 2000 at the age of 27. He was convicted on March 2, 2004
in the Court of Common Pleas for Philadelphia County of indecent assault of a minor.
See 18 Pa. Cons. Stat. § 3126. Removal proceedings were instituted based on the belief
that Baptiste’s offense was an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and a crime
of moral turpitude committed within five years of admission to the United States, 8
U.S.C. § 1227(a)(2)(A)(i). The IJ’s decision in the Government’s favor on the former
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ground was reversed by the BIA, but Baptiste still concedes removability on the ground
of committing a crime of moral turpitude punishable by imprisonment for more than one
year.
Baptiste sought asylum, withholding of removal, and protection under the CAT
based on his assertion that he was disabled and would be subjected to persecution upon
return to Haiti. His putative disabilities consisted of a limp and depression. As the IJ and
the BIA observed, and as his brief before us reflects, Baptiste offers nothing to suggest
that he will be persecuted by any entity in Haiti on the basis of these conditions; at the
most he has described the chaotic situation of civil unrest in Haiti faced by all Haitians.
We consider Baptiste’s contentions in turn. With regard to asylum, Baptiste has
failed to demonstrate “persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). Even had Baptiste demonstrated that disabled Haitians
constitute a particular social group, he has not demonstrated “membership” in any
practical sense because his conditions are exceedingly minor. The only medication
Baptiste is currently being prescribed is Motrin and he offered no evidence that his
physical condition in any way led to persecution while he lived in Haiti. The problem for
Baptiste was not credibility–the IJ found Baptiste credible for the most part. Relief was
simply unwarranted because Baptiste did little more than describe the overall chaotic
conditions in Haiti. The order denying the asylum claim is supported by substantial
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evidence.1
As the standard for a claim for withholding of removal is more stringent than the
standard for asylum, Baptiste’s withholding claim must fail as well. See Balazoski v. INS,
932 F.2d 638, 640 (7th Cir. 1991) (“Applicants for withholding of deportation, by
contrast, must satisfy a higher standard. They must show that there is a ‘clear probability’
that they will face persecution in the country to which they will be deported.”). There
was no clear probability that Baptiste faces persecution upon return to Haiti.
Finally, Baptiste’s CAT claim must fail. Under the CAT, the “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. The
testimony of the applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration.” 8 C.F.R. § 208.16(c)(2). For an act to constitute torture it must
be: “(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.” Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA
1
The BIA and the IJ both considered Baptiste’s application for asylum, even though he
presented his asylum request more than four years after entering the United States and
offered no reasons why this procedural defect should be excused. See 8 U.S.C. §
1158(a)(2)(B). Accordingly, while we find that the denial on the merits of the request for
asylum is supported by substantial evidence in light of the failure to show past
persecution or a “well-founded fear of persecution,” we will deny the petition for review
of the asylum claim as procedurally defaulted. 8 U.S.C. § 1101(a)(42)(A).
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2002). Baptiste has failed to offer any evidence that he faces torture upon his return to
Haiti; again his claim centers around the general upheaval Haitian citizens face on a daily
basis.2
CONCLUSION
For the reasons described above, the decision by the BIA denying Baptiste’s
asylum, withholding, and CAT claims is supported by substantial evidence. The petition
for review will be denied.
2
Baptiste only refers indirectly to the fact that his act of committing a crime in the
United States means that he will be held in Haiti’s preventive detention facility upon his
removal to that country. See Auguste v. Ridge, 395 F.3d 123, 129 (3d Cir. 2005) (“Since
at least 2000, it has been the policy of the Haitian government to detain deported
Haitians, who have incurred a criminal record while residing in the United States and who
have already served their sentences, in preventive detention.”). But Baptiste has offered
nothing that would suggest that his physical or mental conditions are such that the act of
placing Baptiste in the facility–knowing the odiousness of the facility–constitutes torture.
See Lavira v. Att’y Gen. of the United States, 478 F.3d 158, 166-72 (3d Cir. 2007).
Instead, Baptiste makes only a generalized attack on life in Haiti, one which must
necessarily fail.
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