Verissimo v. Immigration & Naturalization Service

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-2-2005
Verissimo v. INS
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1945
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Recommended Citation
"Verissimo v. INS" (2005). 2005 Decisions. Paper 1078.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 03-1945
________________
SYLVESTER VERISSIMO,
Appellant
v.
IMMIGRATION AND NATURALIZATION SERVICE
__________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 02-CV-00570)
District Judge: Honorable Yvette Kane
________________
Submitted Under Third Circuit LAR 34.1(a)
May 23, 2005
BEFORE: RENDELL, AMBRO and FUENTES, Circuit Judges
(Filed : June 2, 2005)
________________
OPINION
________________
PER CURIAM
Sylvester Verissimo is a native and citizen of Nigeria. He entered the United
States as a conditional permanent resident in 1990, but never applied to remove the
conditional status. Based on several criminal convictions, Verissimo was served with a
Notice to Appear, charging him as being removable for committing an aggravated felony.
Verissimo sought withholding of removal, and withholding and deferral of removal
under the United Nations Convention Against Torture (CAT).
The Immigration Judge (IJ) denied withholding of removal under INA § 241(b)(3),
finding that Verissimo had not met his burden of showing that the past mistreatment he
testified to was on account of any political activity, but the IJ granted withholding of
removal under CAT. The IJ found that it was more likely than not that Verissimo would
be interrogated upon his return to Nigeria as a deportee, and that he would likely be
subjected to “cruel and degrading conditions of detention and likely be tortured in hopes
of extracting a bribe.”
The INS appealed, and the Board of Immigration Appeals (BIA) found that
“respondent’s claims of torture or mistreatment are highly speculative and are not
supported by the record.” The BIA vacated and reversed the IJ’s grant of withholding of
removal.
Verissimo filed a habeas petition, and several other documents in the United States
District Court for the Middle District of Pennsylvania, which the Court construed together
as a habeas petition. Verissimo’s main claim was that the BIA incorrectly reversed the IJ
on his CAT claim. Verissimo also later filed a motion for release on bond pending
disposition of the habeas petition.
The District Court concluded that it lacked subject matter jurisdiction over
Verissimo’s petition to the extent it sought review of the BIA decision denying him
2
withholding of removal under the Convention Against Torture. Dist. Ct. Op., 1/30/03, at
3. The Court also denied Verissimo’s petition for relief from detention pending removal.
After Verissimo filed an appellate brief in this Court, the Government filed an
unopposed motion to have the matter remanded to the District Court for consideration of
the effect of our decision in Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003),1 and
also for consideration of the fact that Verissimo had been removed on September 24,
2003. We retained jurisdiction and remanded the matter to the District Court.
On remand, the Court recognized that it had jurisdiction to consider Verissimo’s
CAT claim, but that its jurisdiction was limited to statutory and constitutional claims
asserting erroneous application of legal principles to undisputed facts. Bakhtriger v.
Elwood, 360 F.3d 414, 424 (3d Cir. 2004).2 The Court found that Verissimo’s only claim
of legal error was a vague statement that the BIA’s decision was “manifestly contrary to
law.” The Court recognized that it could not review the BIA’s decision to the extent it
rested on a finding of insufficiency of the evidence. Bakhtriger, 360 F.3d at 420. The
Court also found that the BIA had not applied an improper standard of review of the IJ’s
decision.
We agree with the District Court that Verissimo’s vague allegations of legal error
1
In Ogbudimkpa, this Court held that a district court has jurisdiction to consider a
habeas petition raising violations of the CAT.
2
The District Court correctly found that the fact that Verissimo had been removed did
not strip the Court of jurisdiction, due to the continuing collateral consequences for
Verissimo. Chong v. INS, 264 F.3d 378, 385 (3d Cir. 2001).
3
are not sufficient to compel a holding that the BIA erred in sustaining the Government’s
appeal.3 For the foregoing reasons, we will affirm the District Court’s judgment.
3
In a supplemental brief filed in the District Court, Verissimo appears to have claimed
that he would be jailed upon return to Nigeria, and that general prison conditions could
constitute torture. It is not clear whether he raised this claim (as opposed to a claim that
he would be detained and beaten to extract a bribe) before the IJ and the BIA. Assuming
he did exhaust his administrative remedies, this claim is foreclosed by Auguste v. Ridge,
395 F.3d 123, 145-46 (3d Cir. 2005), in which we held that indefinite detention in
deplorable prison conditions does not rise to the level of “torture,” absent a showing of
specific intent to inflict pain and suffering.
4