Summary
This Board of Immigration Appeals decision reviews an Immigration Judge's grant of deferral of removal under the Convention Against Torture (CAT) for a Haitian national convicted of carjacking. The BIA finds that generalized reports of bribery in Haitian prisons and gang violence do not meet the "more likely than not" standard required for CAT protection, nor do they establish government consent or acquiescence. Consequently, the Board sustains the Department of Homeland Security's appeal, vacates the CAT relief, and orders the respondent's removal to Haiti while affirming his ineligibility for withholding of removal due to a particularly serious crime conviction.
Topics
Practice areas
Questions Presented
- Whether the respondent's carjacking conviction was a particularly serious crime barring withholding of removal under the INA and the CAT.
- Whether the respondent established that it was more likely than not that he would be tortured in Haiti by, at the instigation of, or with the consent or acquiescence of a Haitian public official.
- Whether anecdotal reports of bribery and generalized evidence of gang violence, vigilante violence, prison conditions, or Haitian government instability established a personal likelihood of CAT-qualifying torture.
- Whether the Immigration Judge properly considered the respondent's mental illness in assessing whether his conviction was a particularly serious crime.
Holdings
- The respondent's conviction for carjacking under 18 U.S.C. § 2119 was a particularly serious crime, barring withholding of removal under section 241(b)(3) of the INA and withholding of removal under the CAT.
- A CAT applicant relying on a chain of future events must establish that every step in the hypothetical chain is more likely than not to occur, and an applicant fearing torture from multiple sources must establish that the cumulative probability exceeds 50 percent.
- Poor prison conditions, indefinite detention, and anecdotal reports that some criminal deportees are tortured until bribes are paid do not, without more, establish that the respondent personally is more likely than not to experience CAT-qualifying torture.
- Generalized evidence of Haitian government instability and inability to control gangs is insufficient, without more, to establish government consent or acquiescence to torture.
Key quotations
“Poor prison conditions and indefinite detention, without more, do not constitute torture.” (29 I&N Dec. at 321)
“Generalized evidence that mass atrocities have happened in an area that the respondent might move to is insufficient to establish that it is more likely than not that the respondent himself will be tortured there.” (29 I&N Dec. at 322)
“This generalized evidence of government instability is insufficient to meet the respondent’s burden to show that the Haitian government would consent or acquiesce to his torture.” (29 I&N Dec. at 323)
Factual background
The respondent, a Haitian national who entered the United States as an asylee and later became a lawful permanent resident, was convicted of carjacking under 18 U.S.C. § 2119 after threatening a car-dealership employee with a drywall saw during a purported test drive. DHS charged him as removable for having been convicted of an aggravated felony. He claimed that return to Haiti would expose him to torture in prison, by gangs, or through vigilante violence, based principally on his status as a criminal deportee and his mental illness.
Procedural history
The Immigration Judge found the respondent ineligible for asylum and withholding of removal because of his conviction for a particularly serious crime, but granted deferral of removal under the CAT after finding that torture in Haiti was more likely than not. DHS appealed the CAT grant, and the respondent cross-appealed the particularly-serious-crime determinations. The Board sustained DHS's appeal, denied the respondent's cross-appeal, vacated the CAT protection order, and ordered removal to Haiti.