Kesnel Fort v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2995
___________
KESNEL SAINT FORT,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A209-866-636)
Immigration Judge: John B. Carle
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 19, 2019
Before: GREENAWAY, Jr., RESTREPO, and FUENTES, Circuit Judges
(Opinion filed: July 12, 2019)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Kesnel Saint Fort, a citizen of Haiti, petitions for review of a final order of
removal. For the following reasons, we will deny the petition.
After living in Brazil for approximately three years, Saint Fort arrived in the
United States in 2016. The Government charged him with removability as an arriving
alien with no valid entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Based on his
experiences in both Haiti and Brazil, Saint Fort applied for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). An Immigration
Judge denied relief on May 24, 2017. On November 9, 2017, the Board of Immigration
Appeals affirmed the denial of asylum and withholding as it pertained to Haiti. But the
Board also concluded that “the record is not adequate for appellate review with respect to
[Saint Fort’s] claimed fear of torture in Haiti or Brazil or his claimed past persecution and
fear of future persecution in Brazil for withholding of removal purposes.” Accordingly,
the BIA remanded the matter to the IJ for development of the record and consideration of
those issues. On remand, Saint Fort provided additional testimony and submitted current
country reports. On April 17, 2018, the IJ again denied relief. 1 In an order dated August
29, 2018, the BIA affirmed and adopted the IJ’s decision, and dismissed the appeal.
Saint Fort filed a pro se petition for review.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Because the BIA adopted the
findings of the IJ and also commented on the sufficiency of the IJ’s determinations, we
1
Saint Fort filed a petition for review of the IJ’s decision. In response, the Government
filed a motion to dismiss, which we granted. See C.A. No. 18-1998 (order entered
August 2, 2018).
2
review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242
(3d Cir. 2004). Our review of these decisions is for substantial evidence, considering
whether they are “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Lin-Zheng v. Att’y Gen., 557 F.3d 147, 155 (3d Cir.
2009) (en banc) (internal citation omitted). The decisions 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) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d
Cir. 2001)).
To establish eligibility for asylum, Saint Fort needed to demonstrate either past
persecution or a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion. Wang v.
Gonzales, 405 F.3d 134, 138 (3d Cir. 2005). To establish eligibility for withholding of
removal, he needed to demonstrate that it was more likely than not that his life or
freedom would be threatened on account of a protected ground. See 8 U.S.C.
§ 1231(b)(3)(A); see also Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003);. To
be eligible for withholding of removal under the CAT, “[t]he burden of proof is on the
applicant … to establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); see also
Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir. 2005). Torture is defined as the
intentional infliction of severe pain or suffering “by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1).
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I. Haiti
In support of his claims, Saint Fort testified that a Haitian government official,
Deputy Blaise, was interested in having a romantic relationship with a woman named
Houdela, who was already dating Saint Fort. According to Saint Fort, Deputy Blaise
believed that he could break up the relationship by injuring Saint Fort. Sometime
between 2011 and 2012, individuals who operated under the command of Deputy Blaise
used fists and sticks to beat Saint Fort, knocking out one of his teeth. In 2012, Deputy
Blaise sent men to Saint Fort’s house, where they destroyed a wall and beat him again.
Deputy Blaise was present during both incidents. Saint Fort reported the attacks to the
police, but no action was taken. In March 2013, a group of men attacked Saint Fort, who
was cut on the leg by a machete. He escaped to a friend’s house. The friend, a nurse,
cleaned and bandaged the wound. The next month, Saint Fort and Houdela fled to Brazil.
Meanwhile, in Haiti, Saint Fort’s family moved to another town because they feared that
their home would be destroyed. In addition, Saint Fort’s uncle warned him that he was
being sought in Haiti, and his brother observed Deputy Blaise at the airport when a large
number of deportees returned by plane.
In his decision of May 24, 2017, the IJ concluded that Saint Fort was ineligible for
asylum and withholding of removal because the incidents of harm that he described did
not rise to the level of persecution and because he failed to show that he feared
persecution on account of a protected ground. Substantial evidence supports the
conclusion that the actions taken by Deputy Blaise were not on account of a protected
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ground. 2 See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009) (“[A] key
task for any asylum applicant is to show a sufficient ‘nexus’ between persecution and one
of the listed protected grounds.”). Saint Fort’s past injuries and fear of future harm stem
solely from a personal conflict with Deputy Blaise. See Amanfi v. Ashcroft, 328 F.3d
719, 727 (3d Cir. 2003) (noting that “retaliation in response to a personal dispute” is not
“a ground for asylum [or] withholding of removal”). Because Saint Fort failed to
establish asylum eligibility, he also necessarily failed to satisfy the clear probability
standard required for withholding of removal. See Zubeda, 333 F.3d at 469-70.
Substantial evidence also supports the determination that Saint Fort’s allegations
about torture in Haiti are not sufficient for CAT relief. The IJ concluded that Saint Fort
did not suffer harm in Haiti rising to the level of torture. As noted above, Deputy Blaise
ordered his subordinates to beat up Saint Fort on several occasions. Those beatings
resulted in the loss of a tooth and a cut on his leg. Deputy Blaise’s men also destroyed a
wall of Saint Fort’s home. Although these incidents are serious, they do not amount to
the type of extreme cruel and inhuman treatment constituting torture. See Shardar v.
Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004) (holding BIA did not err in determining that
petitioner, who was “severely beaten,” was not tortured); Jo v. Gonzales, 458 F.3d 104,
109 (2d Cir. 2006) (stating that “the concept of torture has its focus on injury to persons,
2
In light of this determination, we need not address the IJ’s alternative conclusion that
Saint Fort was not eligible for asylum based on his experiences in Haiti because he had
firmly resettled in Brazil, see INA § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.13(c)(2)(i)(B),
and because Saint Fort was not eligible for an exception to the firm resettlement bar. See
8 C.F.R. § 1208.15(a) & (b).
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rather than on damage to property.”).
In addition, the record does not compel the conclusion that Deputy Blaise would
more likely than not torture Saint Fort upon his return to Haiti. As the IJ noted, Saint
Fort only speculates that Deputy Blaise still works for the Haitian government and is still
interested in harming him more than five years after Saint Fort left Haiti. See Denis v.
Att’y Gen., 633 F.3d 201, 218 (3d Cir. 2011) (explaining that applicant’s “unsupported
speculation” about what he believed would happen to him if removed “does not rise to
the level of proof necessary to demonstrate that he will more likely than not be singled
out for torture.”). Although Saint Fort’s brother observed Deputy Blaise at the airport as
a plane carrying deportees arrived, Saint Fort admitted that he is not sure that Deputy
Blaise was looking for him. Also, Saint Fort claimed that he did not know whether his
family had any problems with Deputy Blaise after they moved to a new town.
Accordingly, the record does not compel the conclusion that Saint Fort is entitled to relief
under the CAT.
II. Brazil
While living in Brazil, Saint Fort was robbed four times. Two of the robberies
occurred just after he had been paid his wages. In fact, one of the robberies was carried
out by Saint Fort’s co-workers. During one of the robberies, the perpetrators poured acid
on his leg, but Saint Fort was not seriously injured because the acid did not soak through
his pants. Saint Fort reported some of the robberies to the police, but they did not
investigate. Saint Fort also claimed that, in addition to the robberies, a Brazilian man
pulled a knife on him at a bus stop, but Saint Fort ran away and was not injured.
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According to Saint Fort, these incidents occurred because of hostilities toward Haitians.
“[P]ersecution connotes extreme behavior, including threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (quotations omitted). It
“does not include all treatment that our society regards as unfair, unjust, or even unlawful
or unconstitutional.” Id. The isolated incidents in Brazil, which resulted in no injuries to
Saint Fort, simply do not rise to the level of persecution. See Lie v. Ashcroft, 396 F.3d
530, 536 (3d Cir. 2005) (holding that “two isolated criminal acts, perpetrated by unknown
assailants, which resulted only in the theft of some personal property and a minor injury,
is not sufficiently severe to be considered persecution.”). Furthermore, there is no
evidence, beyond Saint Fort’s speculation, that the perpetrators of these incidents targeted
him because he is Haitian. See Ndayshimiye, 557 F.3d at 128-29. In addition, although
the 2016 State Department Country Report on Human Rights Practices indicates that
Haitians and other minorities face discrimination in Brazil, it also states that the Brazilian
government worked to combat such mistreatment and provided social assistance to
Haitian migrants. Lastly, neither Saint Fort’s description of the incidents in Brazil nor
the background material demonstrate that it is more likely than not that he would be
tortured if he were removed there.
For the foregoing reasons, we will deny the petition for review.
7