Thiersaint v. Holder

09-2734-ag (L)
Thiersaint v. Holder
BIA
Straus, IJ
A044 588 716
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28th day of February, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
Circuit Judges.*
_______________________________________
EMMANUEL THIERSAINT,
Petitioner,
v. 09-2734-ag (L);
11-4247-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Muneer I. Ahmad, New Haven, CT.
*
The Honorable Susan L. Carney was originally a member of
this panel but recused herself from consideration of this
appeal. The remaining two members of the panel, who are in
agreement, decide this appeal in accordance with Second
Circuit Internal Operating Procedure E.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Susan K. Houser, Senior
Litigation Counsel; W. Daniel Shieh,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Emmanuel Thiersaint, a native and citizen of Haiti,
seeks review of a May 27, 2009 order of the BIA, affirming
the February 27, 2009 decision of Immigration Judge (“IJ”)
Michael W. Straus, which denied his application for deferral
of removal under the Convention Against Torture (“CAT”). In
re Emmanuel Thiersaint, No. A044 588 716 (B.I.A. May 27,
2009), aff’g No. A044 588 716 (Immig. Ct. N.Y. City Feb. 27,
2009). Thiersaint also seeks review of a September 19, 2011
decision of the BIA denying his motion to reopen, and moves
for leave to proceed in forma pauperis (“IFP”) and for a
stay of removal in connection with this petition. In re
Emmanuel Thiersaint, No. A044 588 716 (B.I.A. Sept. 19,
2011). The petitions for review are consolidated for
purposes of this order. We assume the parties’ familiarity
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with the underlying facts and procedural history of the
case.
I. Docket Number 09-2734 - Direct Appeal
Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to
review any final order of removal against an alien who is
removable by reason of having been convicted of an
aggravated felony. See De La Rosa v. Holder, 598 F.3d 103,
107 (2d Cir. 2010); see also Poole v. Mukasey, 522 F.3d 259,
262 (2d Cir. 2008). Notwithstanding 8 U.S.C.
§ 1252(a)(2)(C), we retain jurisdiction to consider any
“constitutional claims or questions of law” raised in a
petition for review. See 8 U.S.C. § 1252(a)(2)(D).
Thiersaint does not dispute that he was subject to
removal by virtue of his conviction of an aggravated felony.
Thus, Thiersaint’s conviction of an aggravated felony, which
served as the basis for his order of removal, falls squarely
within the jurisdiction-stripping statute.
See 8 U.S.C. § 1252(a)(2)(C). However, because Thiersaint
argues in his petition that the BIA erred by failing to
consider his central legal argument in denying his
application for CAT relief, he presents a question of law
for review over which we retain jurisdiction. See Gui Yin
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Liu v. INS, 475 F.3d 135, 137-38 (2d Cir. 2007) (finding
that we retain jurisdiction to review a petition when the
agency “unambiguously mischaracterized a central element of
the record,” because that raises a question of law).
Thiersaint argues that the agency failed to address his
central argument that he would be individually and
intentionally singled out for torture by Haitian prison
officials because of his physical disability. Thiersaint
further asserts that the BIA failed to consider his claim
under Pierre v. Gonzales, 502 F.3d 109, 121 (2d Cir. 2007),
wherein this Court held that beyond evidence of inhumane
prison conditions, a claimant can demonstrate a likelihood
of torture by providing some evidence that the authorities
act with the specific intent to inflict severe physical or
mental pain or suffering because of certain characteristics
or medical conditions that a claimant possesses.
The record reflects that the agency considered all of
Thiersaint’s legal arguments and the evidence he submitted
in support of his claim. First, the IJ expressly considered
“whether based on [Thiersaint’s] particular characteristics
[he would] be subjected to torture,” and found that while
Thiersaint’s situation presents “a close case,” he had
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failed to establish that he will more likely than not be
tortured upon his return to Haiti, as there was
“insufficient evidence to show widespread physical beatings
intended by Haitian government officials of criminal
deportees, or even criminal deportees similarly situated to
[Thiersaint].” In re Emmanuel Thiersaint, No. A044 588 716
(Immig. Ct. N.Y. City Feb. 27, 2009); see also Jian Hui Shao
v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (rejecting the
notion that the agency must “expressly parse or refute on
the record each individual argument or piece of evidence
offered by the petitioner”) (internal quotation marks
omitted). Moreover, although the IJ accorded “some weight”
to a report submitted by Thiersaint’s expert witness, which
suggested that disabled criminal deportees are especially
vulnerable to mistreatment, the IJ reasonably determined
that this evidence was “insufficient . . . to show that
[Thiersaint would] be targeted by Haitian officials for
torture.” In re Emmanuel Thiersaint, No. A044 588 716
(Immig. Ct. N.Y. City Feb. 27, 2009); see also Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
(finding that the weight afforded to the applicant’s
evidence in immigration proceedings “lies largely within the
discretion of the IJ”) (internal quotation marks omitted).
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Indeed, while the expert’s report provides general examples
of the poor prison conditions to which criminal deportees
may be subjected, and discusses in general terms the
treatment of physically disabled persons in Haiti, it does
not identify any specific instances in which a physically
disabled criminal deportee had been targeted for torture
because of his physical characteristics. See Pierre, 502
F.3d at 121-22.
Moreover, although the BIA did not expressly address
whether Thiersaint will more likely than not be singled out
for harsh treatment because of his physical disability, as
with the IJ, we presume that the BIA “has taken into account
all of the evidence before [it], unless the record
compellingly suggests otherwise.” Xiao Ji Chen, 471 F.3d at337 n.17. Here, nothing in the record compels the
conclusion that the BIA ignored any of Thiersaint’s legal
arguments or the evidence he submitted in support of his
claim. To the contrary, the BIA expressly referenced the
country condition evidence and the expert witness report in
its decision, and acknowledged Thiersaint’s physical
disability and the potential hardships that he may endure in
prison as a result of his condition, and found that the
“lack of medical care and likely pain that [Thiersaint] will
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experience due to the leg amputation . . . is an unfortunate
but unintended consequence of the poor conditions in the
Haitian prisons,” and that this “unintended consequence is
not the type of proscribed purpose contemplated by the
[CAT].” In re Emmanuel Thiersaint, No. A044 588 716 (B.I.A.
May 27, 2009). Because the agency considered the basis of
Thiersaint’s claim and the evidence submitted in support of
that claim, and Thiersaint raises no other legal or
constitutional challenges to the denial of CAT relief, the
agency’s denial of CAT relief is not subject to further
review. See Pierre, 502 F.3d at 121-22; see also 8 U.S.C.
§ 1252(a)(2)(C),(D).
We finally address Thiersaint’s argument that he was
deprived of due process when the BIA failed to send him a
copy of the DHS’s opposition brief and denied his untimely
motion for an extension of time to file a reply brief.
Respondent alleges, and petitioner does not dispute, that
the Department of Homeland Security made proper service of
its brief by mailing a copy to petitioner at his correct
address. Because Thiersaint has not cited any legal
authority or procedural rules that explicitly require the
BIA to send him copies of an opposition brief, and because
he has had a meaningful opportunity to address all the
7
issues implicated in that brief, we conclude that he has
failed to demonstrate a due process rights violation.
II. Docket Number 11-4247-ag - Motion to Reopen
Pursuant to 28 U.S.C. § 1915(a) and (e), this Court may
permit an indigent appellant to proceed IFP, but must
dismiss the appeal if the Court determines that it is
frivolous. An appeal is frivolous when it “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). The jurisdictional bar
contained in 8 U.S.C. § 1252(a)(2)(C) applies equally to a
petition seeking review of the BIA’s denial of a motion to
reopen. See Durant v. INS, 393 F.3d 113, 115-16 (2d Cir.
2004).
We review the BIA’s denial of Thiersaint’s motion to
reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). Where, as here, the BIA considers
relevant evidence of country conditions in evaluating the
motion to reopen, we review the BIA’s factual findings under
the substantial evidence standard. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
An alien may file only one motion to reopen and must do
so within 90 days of the agency’s final administrative
decision. 8 U.S.C. § 1229a(c)(7)(A),(C); 8 C.F.R.
8
§ 1003.2(c)(2). Although Thiersaint’s motion was
indisputably untimely because it was filed more than two
years after the BIA issued its final order of removal, there
is no time limitation for filing a motion to reopen if it is
“based on changed country conditions arising in the country
of nationality or the country to which removal has been
ordered, if such evidence is material and was not available
and would not have been discovered or presented at the
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
also 8 C.F.R. § 1003.2(c)(3)(ii).
Assuming that we retain jurisdiction over Thiersaint’s
claim that the BIA abused its discretion in finding that his
evidence did not materially affect his eligibility for
deferral of removal under the CAT, his claim is without
merit. As the BIA noted, while the evidence indicated that
criminal deportees continued to encounter “unduly harsh
conditions” in Haitian prisons, it did not indicate that
Thiersaint will more likely than not be individually and
intentionally singled out for torture by or with the
acquiescence of Haitian prison officials because of his
physical disability. See 8 C.F.R. § 1208.17; see also
Pierre, 502 F.3d at 121. Moreover, nothing in the record
compells the conclusion that the BIA failed to consider any
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of Thiersaint’s evidence. See Jian Hui Shao, 546 F.3d at
169; Xiao Ji Chen, 471 F.3d at 337 n.1.
Contrary to Thiersaint’s argument that the BIA applied
the wrong legal standard in concluding that his evidence was
not material to his claim for CAT relief, a review of the
record confirms that the BIA properly identified and applied
the standard set forth in 8 C.F.R. § 1003.2(c)(1), which
states that a “motion to reopen proceedings shall not be
granted unless it appears to the Board that evidence sought
to be offered is material and was not available and could
not have been discovered or presented at the former
hearing.”
For these reasons, Thiersaint’s motion to proceed IFP
is denied and the petition for review is dismissed because
it lacks an arguable basis in law or fact. See 28 U.S.C.
§ 1915(e); Neitzke, 490 U.S. at 325.
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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