Argued: December 8, 2015
On Petitions for Review of Orders of the Board of Immigration Appeals.
Tamara L. Jezic, YACUB LAW OFFICES, Woodbridge, Virginia, for Petitioner.
Jeffery R. Leist, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Assistant Director, Gladys M. Steffens Guzman, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before MOTZ, KING, and KEENAN, Circuit Judges.
DIANA GRIBBON OTZ, CIRCUIT JUDGE
Wilerms Oxygene petitions for review of orders denying his application for deferral of removal under the Convention Against Torture ("CAT") and subsequent motion to reopen his removal proceedings. For the reasons that follow, the petition for review is denied in part and dismissed in part.
In 1994, Oxygene, accompanied by his mother and siblings, fled political violence in his native country of Haiti. This violence included occasions when death squads fired on the family home while Oxygene and others were inside the house. Oxygene entered the United States as a refugee; in 1996 the United States granted him lawful permanent resident status.
Five years later, a Virginia court convicted Oxygene of several state crimes, including burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security ("DHS" or "the Government") commenced removal proceedings against him. Oxygene conceded that he was removable under various subsections of 8 U.S.C. § 1227(a)(2) (2012) due to his convictions for aggravated felonies and firearm offenses, but applied for deferral of removal under the CAT.
At his removal hearing before an Immigration Judge ("IJ"), Oxygene testified to his family's past persecution in Haiti and his fear that, if removed, he would face indefinite detention in Haitian prisons. Oxygene also expressed fear that, if detained in Haiti, he would not receive the medical care necessary to prevent his latent tuberculosis from becoming active. Oxygene and his sister testified that they had no remaining family members in Haiti who could provide support in the form of food, medicine, or payment for release from detention.
Oxygene submitted documentary evidence to substantiate his allegations of poor prison conditions in Haiti. The administrative record contains several State Department country reports for Haiti, a report from various non-governmental organizations submitted to the United Nations ("the 2011 NGO report"), and news articles and press releases concerning human rights abuses in the country. Together, these sources paint a bleak picture of what criminal deportees like Oxygene can expect upon removal to Haiti.
According to the State Department country reports, as early as 2000, Haiti began detaining criminal deportees "who [have] already served full sentences overseas . . . for indefinite periods of time." The 2013 country report describes "detention center overcrowding" as "severe, " explaining that "[i]n some prisons detainees slept in shifts due to lack of space" and that "[s]ome prisons had no beds for detainees, and some cells had no access to sunlight." Prisoners and detainees generally had no access to treated drinking water, and approximately seventy percent "suffered from a lack of basic hygiene, malnutrition, poor quality health care, and water-borne illness." As a result, the report concludes that malaria, drug-resistant tuberculosis, and other infectious diseases present a "serious problem." The 2013 country report also states that, despite laws ...