Yasmick Jeune v. U.S. Attorney General

810 F.3d 792, 2016 U.S. App. LEXIS 282
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 8, 2016
Docket13-11683
StatusPublished
Cited by216 cases

This text of 810 F.3d 792 (Yasmick Jeune v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yasmick Jeune v. U.S. Attorney General, 810 F.3d 792, 2016 U.S. App. LEXIS 282 (11th Cir. 2016).

Opinion

JULIE CARNES, Circuit Judge:

Petitioner Yasmick Jeune, 1 a native and citizen of Haiti, seeks review of an order by the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of Petitioner’s request that he not be removed from this country. The De *796 partment of Homeland Security (“DHS”) had sought to remove Petitioner .after the latter’s convictions for two criminal offenses. Before the immigration judge, Petitioner contended that, because he is a homosexual, he had been persecuted in the past while living in Haiti and, if returned, he would be persecuted again. The immigration judge concluded that Petitioner had failed to prove either of those assertions. In its review of Petitioner’s appeal of that ruling, the BIA concurred with that decision.

Now Petitioner appeals to our Court the denial of his application for withholding of removal. But he has shifted from his previous reliance on his homosexuality as the sole basis for his claims of past and future persecution, and now also focuses on his present assertion that he is a transgender individual. He faces obstacles, both as to our jurisdiction to review his claims and as to the merits of those claims. As to the jurisdictional obstacles, we lack jurisdiction to review claims by an alien that the latter has failed to exhaust or preserve. Because Petitioner did not assert before the BIA arguments he now makes challenging the immigration judge’s finding of no past persecution, he has failed to exhaust that claim, and we have no jurisdiction to consider it.

As to the rejection by the BIA and immigration judge (collectively, “the agency”) of Petitioner’s claim that he would be persecuted if returned to Haiti, Petitioner’s status as a criminal alien deprives us of jurisdiction to consider whether he produced sufficient evidence to prove the likelihood of future persecution. Instead, our review is limited to the question whether the agency committed a legal error in its approach to this question and, in particular; whether the latter gave “reasoned consideration” to the applicant’s claims. After careful review, and with the benefit of oral argument, we conclude that the agency committed no legal error and that its consideration of Petitioner’s claims was reasoned. For the above reasons, we dismiss the petition for review as to Petitioner’s claim of past persecution and deny as to his claim of future persecution.

I. BACKGROUND

A. Initiation of Removal Proceedings

In October 2004, Petitioner was paroled into the United States for the purpose of filing an adjustment of status application as a dependent under the Haitian Responsibility and Immigration Fairness Act. His status was subsequently adjusted to that of a lawful permanent resident in January 2006.

In March 2009, Petitioner was convicted in a Florida state court for possessing cocaine. Then, in March 2012, he was again convicted in Florida for carrying a concealed firearm. Shortly after this second conviction, DHS charged that Petitioner was removable for being an alien convicted of a firearms offense, pursuant to 8 U.S.C. § 1227(a)(2)(C), and for being an alien convicted of a controlled substance offense, pursuant to 8 U.S.C. § 1227(a)(2)(B)®. DHS served Petitioner with a notice to appear on these charges.

Petitioner appeared before an immigration judge and conceded that he was removable based on these convictions. But in an effort to be allowed to remain in this country, he applied for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”), which are potentially available to an applicant who can show that he has been or will be persecuted in his native country based on the applicant’s membership in a particular social group. Petitioner indicated that, as a homosexual, he was *797 a member of a particular social group and therefore entitled to pursue the above relief.

B. Merits Hearing on Withholding of Removal Application

The immigration judge conducted a hearing on Petitioner’s application at which Petitioner appeared as the only witness. Twenty-four years old at the time of the hearing, Petitioner testified that he had been in the United States since he was sixteen. As to the sexual orientation on which he based his request for withholding of removal, 2 Petitioner testified that he had been aware he was gay since he was six or seven years old. In describing the hostile' treatment he had received as a result of his sexual orientation, he noted that an uncle had once beaten him with a stick and threatened to shoot him, so unhappy was the uncle at having a gay nephew. Also, kids at his school had beaten him up, and he testified about one particular instance that occurred when, as an 11 or 12-year old, he was walking to school and another child called him a “faggot” and threatened to kill him. When Petitioner tried to run away, other children standing around hit him with a “plastic thing” and grabbed his backpack, which caused him to fall down. After he fell, the kids jumped on him and beat him up. When Petitioner told his teacher about this incident, the teacher told him that such things would continue to happen unless he changed.

On another occasion, Petitioner was walking home from buying groceries and passed by a group of people. One of the men in the group called Petitioner a “fag-got” and said that the next time Petitioner passed by, he would “be missing.” A woman then threw a rock that hit Petitioner in the face, and Petitioner ran away, at which point a man in the group had his dog chase Petitioner. The dog stopped after Petitioner fell down and started screaming.

C. Immigration Judge’s Decision

After considering the evidence, the immigration judge denied Petitioner’s application and ordered him removed to Haiti. The judge did not question Petitioner’s veracity, but he nevertheless determined that the cumulative effect of the described conduct of Petitioner’s family, neighbors, and community members constituted only harassment and discrimination, and simply did not rise to the level of severity necessary to support a conclusion that Petitioner had been persecuted while living in Haiti. Indeed, the immigration judge noted that Petitioner had encountered similar discrimination while in the United States, and had even resorted to carrying a gun to protect himself.

As to the background materials concerning conditions in Haiti, the immigration judge indicated that he had reviewed all of the pertinent background materials introduced into evidence. Summarizing them, the judge noted that same-sex conduct had been legal in Haiti since 1986. Further, there were no confirmed reports of official discrimination against the lesbian, gay, bisexual, and transgender (“LGBT”) community, albeit such individuals faced “widespread societal discrimination including social stigma and targeted physical violence, sexual assault, and employment *798

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Bluebook (online)
810 F.3d 792, 2016 U.S. App. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yasmick-jeune-v-us-attorney-general-ca11-2016.