Kesnel Fort v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: July 12, 2019
• Docket: 18-2995
• Status: Unpublished

Opinion

NOT PRECEDENTIAL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) ___________

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).

3 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

4 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). 5 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.

6 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.