NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 19-2210 __________
JOAS CLAUDE MICHEL AVRIL, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A200-442-291) Immigration Judge: Leo A. Finston ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 2, 2020 Before: KRAUSE, MATEY and COWEN, Circuit Judges
(Opinion filed: January 3, 20202) ___________
OPINION* ___________
PER CURIAM
Joas Claude Michel Avril, proceeding pro se, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Judge (“IJ”) denying Avril’s applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons discussed
below, we will deny the petition for review.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. Avril, a citizen and native of Haiti, entered the United States in 2005.
In July 2018, the Government commenced removal proceedings. Avril conceded that he
was removable, but he applied for asylum, withholding of removal, and CAT protection.
In support of his applications, Avril testified that he was targeted for kidnapping
by criminals in Haiti who were motivated by a need for money. Those criminals never
succeeded in kidnapping Avril, but he remains fearful that he will be kidnapped for
ransom in Haiti. After Avril left for the United States, his home in Haiti was burglarized
and the occupants were attacked. Avril’s mother, uncle, grandmother, and other family
members have also been the victims of crime in Haiti.
The IJ found that Avril testified credibly but that his claims for relief were
insufficient to merit relief. The IJ denied Avril’s application for asylum, finding that it
was not filed within one year of his arrival in the United States and that there were no
grounds to excuse the untimeliness. With respect to Avril’s withholding claim, the IJ
determined that Avril failed to show that his alleged past persecution or fear of future
persecution was on account of any protected ground. In the alternative, the IJ found that
Avril failed to show that he suffered any past harm rising to the level of persecution, and
that he failed to show a clear probability that he would personally suffer future
2 persecution. Similarly, the IJ determined that Avril was not entitled to CAT relief
because he failed to demonstrate a likelihood that he would be tortured if he were
returned to Haiti.
The BIA agreed with the IJ’s analysis and conclusions. The BIA added that the
country conditions reports of generalized violence in Haiti did not establish that it was
more likely than not that Avril would personally be tortured. The BIA also determined
that it would not consider new evidence that Avril presented on appeal, which included
letters about various crimes in Haiti. Thus, the BIA affirmed the IJ’s decision. This
petition for review followed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). When, as here, the BIA adopts
the findings of the IJ and discusses some of the bases for the IJ’s opinion, our review
encompasses both decisions. See Guzman v. Att’y Gen. U.S., 770 F.3d 1077, 1082 (3d
Cir. 2014). We review the agency’s legal conclusions de novo, but we must uphold the
agency’s factual findings “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Mendoza-Ordonez v. Att’y
Gen. U.S., 869 F.3d 164, 169 (3d Cir. 2017).
3 III.
Avril raises challenges to the agency’s ruling on his withholding and CAT claims,
and he challenges the BIA’s determination that it would not consider the new evidence
that he presented on appeal.1
To obtain withholding of removal, an alien must show that he will be persecuted,
meaning his “life or freedom would be threatened” upon his removal to a particular
country “because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Garcia v. Att’y
Gen. U.S., 665 F.3d 496, 505 (3d Cir. 2011). The alien must show a “clear probability”
of persecution, meaning “that persecution would ‘more likely than not’ occur.” Garcia,
665 F.3d at 505 (citations omitted). A showing of past persecution gives rise to a
rebuttable presumption of future persecution. Id. Where a withholding claim is based on
membership in a “particular social group,” an alien must show “that the group itself is
properly cognizable as a social group within the meaning of the statute, and that his
membership in the group is one central reason why he was or will be targeted for
persecution.” Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677, 684–85 (3d Cir. 2015)
(quotation marks and citation omitted).
1 Avril has waived any arguments regarding the denial of his application for asylum on timeliness grounds by failing to present them in his brief. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). In any event, we lack jurisdiction to review factual or discretionary determinations concerning the timeliness of an asylum application. See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). 4 Here, substantial evidence supports the agency’s determination that Avril’s
persecutors in Haiti did not target him on account of any protected ground. When asked
why the criminals in Haiti had targeted him, Avril testified only that he is wealthy and
that the criminals need money. Avril did not provide any other reason why he was or will
be targeted for persecution. This record does not compel a conclusion contrary to the
agency’s finding that Avril’s persecutors in Haiti did not target him on account of any
protected ground. See Shehu v. Att’y Gen. U.S., 482 F.3d 652, 657 (3d Cir. 2007)
(holding that substantial evidence supported the agency’s finding that persecution was
“motivated by a bare desire for money,” as opposed to any protected grounds); see also
Orellana-Arias v. Sessions,
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 19-2210 __________
JOAS CLAUDE MICHEL AVRIL, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A200-442-291) Immigration Judge: Leo A. Finston ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 2, 2020 Before: KRAUSE, MATEY and COWEN, Circuit Judges
(Opinion filed: January 3, 20202) ___________
OPINION* ___________
PER CURIAM
Joas Claude Michel Avril, proceeding pro se, petitions for review of an order of
the Board of Immigration Appeals (“BIA”) affirming the decision of the Immigration
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Judge (“IJ”) denying Avril’s applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). For the reasons discussed
below, we will deny the petition for review.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. Avril, a citizen and native of Haiti, entered the United States in 2005.
In July 2018, the Government commenced removal proceedings. Avril conceded that he
was removable, but he applied for asylum, withholding of removal, and CAT protection.
In support of his applications, Avril testified that he was targeted for kidnapping
by criminals in Haiti who were motivated by a need for money. Those criminals never
succeeded in kidnapping Avril, but he remains fearful that he will be kidnapped for
ransom in Haiti. After Avril left for the United States, his home in Haiti was burglarized
and the occupants were attacked. Avril’s mother, uncle, grandmother, and other family
members have also been the victims of crime in Haiti.
The IJ found that Avril testified credibly but that his claims for relief were
insufficient to merit relief. The IJ denied Avril’s application for asylum, finding that it
was not filed within one year of his arrival in the United States and that there were no
grounds to excuse the untimeliness. With respect to Avril’s withholding claim, the IJ
determined that Avril failed to show that his alleged past persecution or fear of future
persecution was on account of any protected ground. In the alternative, the IJ found that
Avril failed to show that he suffered any past harm rising to the level of persecution, and
that he failed to show a clear probability that he would personally suffer future
2 persecution. Similarly, the IJ determined that Avril was not entitled to CAT relief
because he failed to demonstrate a likelihood that he would be tortured if he were
returned to Haiti.
The BIA agreed with the IJ’s analysis and conclusions. The BIA added that the
country conditions reports of generalized violence in Haiti did not establish that it was
more likely than not that Avril would personally be tortured. The BIA also determined
that it would not consider new evidence that Avril presented on appeal, which included
letters about various crimes in Haiti. Thus, the BIA affirmed the IJ’s decision. This
petition for review followed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). When, as here, the BIA adopts
the findings of the IJ and discusses some of the bases for the IJ’s opinion, our review
encompasses both decisions. See Guzman v. Att’y Gen. U.S., 770 F.3d 1077, 1082 (3d
Cir. 2014). We review the agency’s legal conclusions de novo, but we must uphold the
agency’s factual findings “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Mendoza-Ordonez v. Att’y
Gen. U.S., 869 F.3d 164, 169 (3d Cir. 2017).
3 III.
Avril raises challenges to the agency’s ruling on his withholding and CAT claims,
and he challenges the BIA’s determination that it would not consider the new evidence
that he presented on appeal.1
To obtain withholding of removal, an alien must show that he will be persecuted,
meaning his “life or freedom would be threatened” upon his removal to a particular
country “because of the alien’s race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Garcia v. Att’y
Gen. U.S., 665 F.3d 496, 505 (3d Cir. 2011). The alien must show a “clear probability”
of persecution, meaning “that persecution would ‘more likely than not’ occur.” Garcia,
665 F.3d at 505 (citations omitted). A showing of past persecution gives rise to a
rebuttable presumption of future persecution. Id. Where a withholding claim is based on
membership in a “particular social group,” an alien must show “that the group itself is
properly cognizable as a social group within the meaning of the statute, and that his
membership in the group is one central reason why he was or will be targeted for
persecution.” Gonzalez-Posadas v. Att’y Gen. U.S., 781 F.3d 677, 684–85 (3d Cir. 2015)
(quotation marks and citation omitted).
1 Avril has waived any arguments regarding the denial of his application for asylum on timeliness grounds by failing to present them in his brief. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). In any event, we lack jurisdiction to review factual or discretionary determinations concerning the timeliness of an asylum application. See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). 4 Here, substantial evidence supports the agency’s determination that Avril’s
persecutors in Haiti did not target him on account of any protected ground. When asked
why the criminals in Haiti had targeted him, Avril testified only that he is wealthy and
that the criminals need money. Avril did not provide any other reason why he was or will
be targeted for persecution. This record does not compel a conclusion contrary to the
agency’s finding that Avril’s persecutors in Haiti did not target him on account of any
protected ground. See Shehu v. Att’y Gen. U.S., 482 F.3d 652, 657 (3d Cir. 2007)
(holding that substantial evidence supported the agency’s finding that persecution was
“motivated by a bare desire for money,” as opposed to any protected grounds); see also
Orellana-Arias v. Sessions, 865 F.3d 476, 486 (7th Cir. 2017) (explaining that “wealth
alone is not cognizable as a social group”).
Moreover, substantial evidence also supports the agency’s alternative
determination that Avril’s asserted harms do not rise to the level of persecution.
Although Avril was threatened, none of those threats materialized while Avril was living
in Haiti. After coming to the United States, Avril was the victim of a single burglary of
his home in Haiti. This record does not compel a conclusion contrary to the agency’s
determination that Avril failed to show past persecution or a clear probability of future
persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (holding that
“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”). Avril argues that the BIA applied the wrong standard for
persecution, but the BIA cited and properly applied authorities, including Lie, which set
5 forth the correct standard. See BIA Op. at 1; see also Lie, 396 F.3d at 536 (explaining
that persecution includes “threats to life, confinement, torture, and economic restrictions
so severe that they constitute a threat to life or freedom”) (quoting Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993)).
Avril’s CAT claim fails for similar reasons. An alien seeking relief under the
CAT must demonstrate that it is “more likely than not” that he will be tortured in the
event of return to a designated country. 8 C.F.R. § 1208.16(c)(2). The agency’s
determination that Avril has not met this standard, based on the same set of facts
discussed above, is supported by substantial evidence. Avril argues that the BIA failed to
consider the country conditions reports before reaching its conclusion, but the BIA
expressly considered those reports before denying Avril’s CAT claim. See BIA Op. at 1.
To the extent that Avril challenges the weight that the BIA gave to those reports, we note
that, while the reports provide evidence of generalized violence and crime in Haiti, they
do not compel a conclusion contrary to the BIA’s determination that Avril failed to show
that it was more likely that not that he would personally be tortured upon his return to
Haiti. Cf. Zubeda v. Ashcroft, 333 F.3d 463, 478 (3d Cir. 2003) (explaining that “reports
of generalized brutality within a country do not necessarily allow an alien to sustain
his/her burden under the Convention Against Torture”).
The BIA properly declined to consider the new evidence that Avril submitted with
his appeal, as the BIA’s review is limited to the record before the IJ. See 8 C.F.R.
§ 1003.1(d)(3)(iv); Saravia v. Att’y Gen. U.S., 905 F.3d 729, 734 (3d Cir. 2018) (noting
that the BIA ignored supplemental evidence on appeal “as required by law”). To the
6 extent that Avril argues that the BIA should have remanded the proceedings to the IJ for
consideration of the new evidence, we note that “a party asserting that the Board cannot
properly resolve an appeal without further factfinding must file a motion for remand.” 8
C.F.R. § 1003.1(d)(3)(iv). As Avril did not file a motion for remand, we cannot fault the
BIA for not considering a remand here.
Accordingly, we will deny the petition for review.