USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10567 Non-Argument Calendar ____________________
YVES SANTAIS, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A203-044-585 USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 2 of 8
2 Opinion of the Court 22-10567
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM: Yves Santais petitions for review of the Board of Immigra- tion Appeals’ order affirming the denial of his application for asy- lum, withholding of removal, and relief under the Convention Against Torture. We partly dismiss and partly deny Santais’s peti- tion. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Santais is a Haitian native and citizen. He was admitted to the United States in September 2008 and became a lawful perma- nent resident in 2011. In 2013, he was indicted in Georgia state court for pointing a gun at a female’s head, punching her in the face, and kicking her in the abdomen. He was convicted by a jury of false imprisonment and battery and was sentenced to ten years’ imprisonment for the false imprisonment conviction and one year for the battery conviction, set to run consecutively. The federal government began deportation proceedings af- ter the convictions, charging that Santais was removable as a noncitizen convicted of an “aggravated felony.” Santais applied for asylum, withholding of removal, and protection under the conven- tion. USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 3 of 8
22-10567 Opinion of the Court 3
The immigration judge held a videoconference merits hear- ing on Santais’s application. Santais appeared pro se. The only substantive documents in the record were his application and ac- companying statement, deportation notice, criminal case records, and the Haiti 2020 Human Rights Report by the United States State Department. Santais testified (through an interpreter) that from 2001 until 2008, the United States paid him to inform on supporters of former Haitian President Jean Bertrand Aristide. Santais acknowledged Aristide’s presidency ended in 2004 but insisted his supporters remained violent and dangerous. Santais claimed that in 2008 someone “outed” him and told Aristide’s supporters he was an informant. He alleged that Aristide’s supporters then assaulted and beat him. He testified that, after that beating, he feared “they would definitely finish me off” and flew to the United States the next month. Santais conceded that he didn’t know who led Haiti’s current government, but still insisted he’d be murdered as “a trai- tor” if he went back to Haiti. The immigration judge denied Santais’s application in its en- tirety because his testimony was not credible and lacked corrobo- ration. Alternatively, the immigration judge found that Santais didn’t qualify for asylum or withholding of removal because his battery conviction was an “aggravated felony conviction,” both his convictions were “particularly serious,” and he hadn’t sufficiently established he’d be persecuted in Haiti. Finally, the immigration judge found Santais ineligible for convention protection because he USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 4 of 8
4 Opinion of the Court 22-10567
hadn’t shown that, if returned to Haiti, he’d more likely than not be tortured by or with the Haitian government’s acquiescence. Santais appealed to the board. He argued that he’d testified honestly at his hearing and he challenged the underlying facts of his state convictions. The board affirmed without opinion, and Santais timely petitioned for our review. 1 II. STANDARD OF REVIEW When the board affirms without opinion, we review the im- migration judge’s opinion. See K.Y. v. U.S. Att’y Gen., 43 F.4th 1175, 1180 (11th Cir. 2022). We review legal conclusions and our subject matter jurisdiction de novo. Id. We review factual findings (including credibility determinations) under the highly deferential substantial evidence standard, only reversing when the record compels it. Hasan-Nayem v. U.S. Att’y Gen., No. 21-12402, ___ F.4th ___, 2022 WL 17480085, at *7 (11th Cir. Dec. 7, 2022).
1 Santais’s petition includes federal and state constitutional arguments, but these must be dismissed for lack of jurisdiction. We lack jurisdiction over— and therefore can’t review—issues not presented to the board. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Santais never explicitly or implicitly presented any constitutional arguments to the board. Accord- ingly, the board never “had a full opportunity to consider” them, and our re- view would improperly “interfere[] with the administrative process.” Id. at 1298 (quotation omitted). USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 5 of 8
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III. DISCUSSION Santais challenges the denial of his claims for asylum, with- holding of removal, and relief under the convention. We assume (without deciding) that the immigration judge lacked substantial evidence to support the adverse credibility finding. But see, e.g., id., at *9 (“[E]ven where an applicant’s explanations for implausible aspects of his claim are tenable—e.g., explanations for inconsisten- cies and omissions—that alone generally does not compel a reason- able fact-finder to reverse an adverse credibility determination.”). Still, Santais’s claims fail because his state convictions are “particu- larly serious,” and the immigration judge’s finding that Santais would not likely be tortured if returned to Haiti is supported by substantial evidence. A. Asylum & Withholding of Removal A conviction for a “particularly serious crime” bars a noncit- izen’s asylum and withholding of removal claims. See 8 USC §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). An immigration judge may make an individualized determination that a conviction was for a “particularly serious crime.” See K.Y., 43 F.4th at 1187. Liberally construing Santais’s pleadings, he appears to chal- lenge the immigration judge’s individualized determination that his convictions were for “particularly serious crimes.” This pre- sents a legal issue over which we have jurisdiction. See id. at 1185– 87. USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 6 of 8
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Santais’s convictions qualify as particularly serious. He was convicted of crimes “directed at a person” and received a lengthy eleven-year aggregate sentence. See id. at 1188 (finding a crime’s seriousness “reflected by the lengthy 42-month sentence”). Santais pointed a gun at his female supervisor’s head and intentionally punched her “in the face,” causing “visible bodily harm.” “Add that all up, and the details . . . easily allow an inference” that his convic- tions were for particularly serious crimes. Id. (quotation omitted). Santais’s asylum and withholding of removal claims fail. Santais disputes details of his altercation with his supervisor, but we must dismiss those factual challenges for lack of jurisdic- tion. If a noncitizen is found removable for an “aggravated felony” conviction, we only have jurisdiction to review his or her asylum and withholding of removal claims for legal, not factual, error. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C)–(D); see also Nasrallah v. Barr, 140 S. Ct. 1683, 1687–88 (2020). That’s the case here.
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USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10567 Non-Argument Calendar ____________________
YVES SANTAIS, Petitioner, versus U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A203-044-585 USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 2 of 8
2 Opinion of the Court 22-10567
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM: Yves Santais petitions for review of the Board of Immigra- tion Appeals’ order affirming the denial of his application for asy- lum, withholding of removal, and relief under the Convention Against Torture. We partly dismiss and partly deny Santais’s peti- tion. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Santais is a Haitian native and citizen. He was admitted to the United States in September 2008 and became a lawful perma- nent resident in 2011. In 2013, he was indicted in Georgia state court for pointing a gun at a female’s head, punching her in the face, and kicking her in the abdomen. He was convicted by a jury of false imprisonment and battery and was sentenced to ten years’ imprisonment for the false imprisonment conviction and one year for the battery conviction, set to run consecutively. The federal government began deportation proceedings af- ter the convictions, charging that Santais was removable as a noncitizen convicted of an “aggravated felony.” Santais applied for asylum, withholding of removal, and protection under the conven- tion. USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 3 of 8
22-10567 Opinion of the Court 3
The immigration judge held a videoconference merits hear- ing on Santais’s application. Santais appeared pro se. The only substantive documents in the record were his application and ac- companying statement, deportation notice, criminal case records, and the Haiti 2020 Human Rights Report by the United States State Department. Santais testified (through an interpreter) that from 2001 until 2008, the United States paid him to inform on supporters of former Haitian President Jean Bertrand Aristide. Santais acknowledged Aristide’s presidency ended in 2004 but insisted his supporters remained violent and dangerous. Santais claimed that in 2008 someone “outed” him and told Aristide’s supporters he was an informant. He alleged that Aristide’s supporters then assaulted and beat him. He testified that, after that beating, he feared “they would definitely finish me off” and flew to the United States the next month. Santais conceded that he didn’t know who led Haiti’s current government, but still insisted he’d be murdered as “a trai- tor” if he went back to Haiti. The immigration judge denied Santais’s application in its en- tirety because his testimony was not credible and lacked corrobo- ration. Alternatively, the immigration judge found that Santais didn’t qualify for asylum or withholding of removal because his battery conviction was an “aggravated felony conviction,” both his convictions were “particularly serious,” and he hadn’t sufficiently established he’d be persecuted in Haiti. Finally, the immigration judge found Santais ineligible for convention protection because he USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 4 of 8
4 Opinion of the Court 22-10567
hadn’t shown that, if returned to Haiti, he’d more likely than not be tortured by or with the Haitian government’s acquiescence. Santais appealed to the board. He argued that he’d testified honestly at his hearing and he challenged the underlying facts of his state convictions. The board affirmed without opinion, and Santais timely petitioned for our review. 1 II. STANDARD OF REVIEW When the board affirms without opinion, we review the im- migration judge’s opinion. See K.Y. v. U.S. Att’y Gen., 43 F.4th 1175, 1180 (11th Cir. 2022). We review legal conclusions and our subject matter jurisdiction de novo. Id. We review factual findings (including credibility determinations) under the highly deferential substantial evidence standard, only reversing when the record compels it. Hasan-Nayem v. U.S. Att’y Gen., No. 21-12402, ___ F.4th ___, 2022 WL 17480085, at *7 (11th Cir. Dec. 7, 2022).
1 Santais’s petition includes federal and state constitutional arguments, but these must be dismissed for lack of jurisdiction. We lack jurisdiction over— and therefore can’t review—issues not presented to the board. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Santais never explicitly or implicitly presented any constitutional arguments to the board. Accord- ingly, the board never “had a full opportunity to consider” them, and our re- view would improperly “interfere[] with the administrative process.” Id. at 1298 (quotation omitted). USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 5 of 8
22-10567 Opinion of the Court 5
III. DISCUSSION Santais challenges the denial of his claims for asylum, with- holding of removal, and relief under the convention. We assume (without deciding) that the immigration judge lacked substantial evidence to support the adverse credibility finding. But see, e.g., id., at *9 (“[E]ven where an applicant’s explanations for implausible aspects of his claim are tenable—e.g., explanations for inconsisten- cies and omissions—that alone generally does not compel a reason- able fact-finder to reverse an adverse credibility determination.”). Still, Santais’s claims fail because his state convictions are “particu- larly serious,” and the immigration judge’s finding that Santais would not likely be tortured if returned to Haiti is supported by substantial evidence. A. Asylum & Withholding of Removal A conviction for a “particularly serious crime” bars a noncit- izen’s asylum and withholding of removal claims. See 8 USC §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). An immigration judge may make an individualized determination that a conviction was for a “particularly serious crime.” See K.Y., 43 F.4th at 1187. Liberally construing Santais’s pleadings, he appears to chal- lenge the immigration judge’s individualized determination that his convictions were for “particularly serious crimes.” This pre- sents a legal issue over which we have jurisdiction. See id. at 1185– 87. USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 6 of 8
6 Opinion of the Court 22-10567
Santais’s convictions qualify as particularly serious. He was convicted of crimes “directed at a person” and received a lengthy eleven-year aggregate sentence. See id. at 1188 (finding a crime’s seriousness “reflected by the lengthy 42-month sentence”). Santais pointed a gun at his female supervisor’s head and intentionally punched her “in the face,” causing “visible bodily harm.” “Add that all up, and the details . . . easily allow an inference” that his convic- tions were for particularly serious crimes. Id. (quotation omitted). Santais’s asylum and withholding of removal claims fail. Santais disputes details of his altercation with his supervisor, but we must dismiss those factual challenges for lack of jurisdic- tion. If a noncitizen is found removable for an “aggravated felony” conviction, we only have jurisdiction to review his or her asylum and withholding of removal claims for legal, not factual, error. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C)–(D); see also Nasrallah v. Barr, 140 S. Ct. 1683, 1687–88 (2020). That’s the case here. The immigration judge found Santais’s battery conviction—a crime of violence for which the term of imprisonment was at least one year—qualified as an “aggravated felony.” See id. 8 U.S.C § 1101(a)(43)(F); Talamantes-Enriquez v. U.S. Att’y Gen., 12 F.4th 1340, 1351–52 (11th Cir. 2021) (explaining that Georgia misde- meanor simple battery based on physical contact causing harm to the victim—a lesser offense than felony battery itself—is a crime of violence), cert. denied, 142 S. Ct. 1119 (2022). Stripped down, San- tais’s factual challenges are collateral attacks on his state convic- tions’ validity. But a “petition for review of an agency’s USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 7 of 8
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immigration determination is not the correct forum” for such at- tacks. Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1247 (11th Cir. 2016). B. The Convention To qualify for convention protection, a noncitizen must “es- tablish that it is more likely than not that he or she would be tor- tured if removed to the proposed country of removal.” Reyes- Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)). The torture must be “by or at the instigation of or with the consent or acquiescence of a public offi- cial acting in an official capacity or other person acting in an official capacity.” Id. (quoting 8 C.F.R. § 208.18(a)(1)). Unlike Santais’s asylum and withholding of removal claims, we can review his con- vention claim for factual error. Priva v. U.S. Att’y Gen., 34 F.4th 946, 957 (11th Cir. 2022). Nothing in the record compels us to reverse the immigra- tion judge’s finding that Santais didn’t show that, if returned to Haiti, he’d more likely than not be tortured by or with the acqui- escence of the Haitian government. Santais testified that the Aris- tide government ended nearly two decades ago, and, as the immi- gration judge found, the record lacks evidence that the current Hai- tian government would more likely than not participate in or ac- quiesce to his torture. The state department human rights report doesn’t mention former President Aristide or his supporters or oth- erwise link them to the current Haitian government. Nor does the report identify United States government collaborators as individ- uals facing particular danger in Haiti. USCA11 Case: 22-10567 Document: 22-1 Date Filed: 02/03/2023 Page: 8 of 8
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IV. CONCLUSION The petition’s constitutional arguments and factual chal- lenges to the state convictions are dismissed. The petition’s asy- lum, withholding of removal, and convention claims are denied. PETITION DISMISSED IN PART, DENIED IN PART.