Vocknal Paul v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1979
___________
VOCKNAL PAUL,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A203-608-138)
Immigration Judge: John B. Carle
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 7, 2021
Before: GREENAWAY, JR., KRAUSE and BIBAS, Circuit Judges
(Opinion filed: January 29, 2021)
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OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Vocknal Paul, proceeding pro se, petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal from the decision of an immigration
judge (IJ) denying his application for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). For the reasons that follow, we will deny the
petition for review.
In July 2019, Paul, a citizen of Haiti, was placed in removal proceedings for being
present without admission or parole, and as an applicant for admission who lacked a valid
entry document. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(7)(A)(i)(I). Paul admitted
the allegations; conceded removability; and applied for asylum, withholding of removal,
and CAT relief.
The IJ denied all relief after a hearing at which Paul testified about the loss of his
parents in the devastating earthquake of 2010 and his other experiences, including an
attack in which he was stabbed and robbed as a homeless youth on the streets of Haiti.
Although the IJ found Paul’s testimony credible, he ruled that Paul was not entitled to
asylum or withholding of removal because the group “Haitian homeless” did not meet the
particularity requirement for a social group because it was “vast, diffuse, and
amorphous.” (IJ Op. at 7). The IJ explained that such a group “would encompass
individuals of any gender, any age and persons from varying backgrounds in Haiti and
varying capacities to change their situation,” and noted as an example that “an individual
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could be homeless as a result of economic circumstances, illness or fractured family ties.”
(Id.).1 The IJ also ruled that the experiences Paul described did not constitute torture
under the CAT standard.
The BIA summarily affirmed and dismissed the appeal. Paul filed a timely
petition for review to this Court.2
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.
§ 1252. “If the BIA summarily affirms an IJ’s order, we review the IJ’s decision as the
final administrative determination.” En Hui Huang v. Att’y Gen., 620 F.3d 372, 379 (3d
Cir. 2010) (citation omitted). We review the agency’s findings of fact for substantial
evidence, considering whether it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157,
161 (3d Cir. 1998) (internal quotation marks and citation omitted). The decision must be
affirmed “unless the evidence not only supports a contrary conclusion, but compels it.”
Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal quotation marks and
citation omitted).
1
The IJ also ruled that even if “Haitian homeless” constituted a cognizable social group,
Paul had failed to establish a nexus between membership in that group and the harm he
suffered, or the harm that he fears suffering upon his return to Haiti.
2
The Government argues that Paul failed to challenge the IJ’s ruling regarding the
particularity requirement for a social group in his appeal to the BIA and in this appeal,
and thus that this issue is unexhausted and forfeited. However, based on our review of
Paul’s briefs, we conclude that he indeed raised this issue both before the BIA and in this
Court, and therefore we will address the merits.
3
To make out a prima facie case for asylum, Paul must show that he was
persecuted, or has a well-founded fear of persecution, “on account” of a statutorily
protected ground, including “race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13. Paul sought
asylum on the basis of his membership in the purported particular social group of
“Haitian homeless.” To be cognizable, a particular social group must be “‘(1) composed
of members who share a common immutable characteristic, (2) defined with particularity,
and (3) socially distinct within the society in question.’” S.E.R.L. v. Att’y Gen., 894 F.3d
535, 540 (3d Cir. 2018) (quoting In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).3
The IJ did not err in holding that the group Haitian homeless did not meet the
particularity requirement to be a cognizable social group because it was vast, diffuse, and
amorphous. See S.E.R.L., 894 F.3d at 552 (explaining that “particularity” standard
requires the group to have “discrete and definable boundaries that are not amorphous,
overbroad, diffuse, or subjective”) (quotation marks and alteration omitted); Escobar v.
Gonzales, 417 F.3d 363, 368 (3d Cir. 2005) (concluding that “[p]overty, homelessness
and youth are far too vague and all encompassing to be characteristics that set the
3
The determination of whether a proffered particular social group exists is a mixed
question of law and fact. S.E.R.L., 894 F.3d at 542-43. We exercise plenary review over
“the ultimate legal question” as to whether a particular social group exists and review for
substantial evidence the underlying factual findings. Id. at 543.
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perimeters for a protected group”).4 Furthermore, because Paul failed to meet his burden
for establishing an entitlement to asylum, he also failed to establish the higher burden
required for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d
Cir. 2003).
Finally, with regard to his CAT claim, Paul was required to show that “it is more
likely than not” that he would be tortured “by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity,” if he
were removed. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Sevoian v. Ashcroft, 290
F.3d 166, 174-75 (3d Cir. 2002). “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or degrading treatment or
punishment that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). The IJ correctly
held that Paul’s past experiences in Haiti, including the single occurrence of being the
victim of a violent robbery with a financial objective, did not amount to torture. Cf.
Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (concluding that the BIA did not
err in determining that petitioner, who was “severely beaten” while in police custody,
was not tortured). Moreover, the IJ correctly held that Paul failed to establish a
likelihood that he would be tortured if he returned to Haiti.
4
Paul argues in his brief that the IJ “erred” in relying on Escobar because the IJ in
Escobar made an adverse credibility determination. Although this factual distinction is
correct, it does not help Paul because in Escobar the BIA held that “even if Escobar
testified credibly, ‘Honduran street children’ did not constitute a ‘particular social group
for purposes of asylum and withholding of removal,’” 417 F.3d at 365, and that is the
5
Accordingly, we will deny the petition for review.
holding that this Court affirmed.
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