Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-2328

JEAN RONY BERNADIN,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Circuit Judge,

Lipez, Circuit Judge,

and Howard, Circuit Judge.

Kevin MacMurray on brief for petitioner.

Joan E. Smiley, Attorney, Office of Immigrant Litigation,

Richard M. Evans, Assistant Director, and Peter D. Kiesler,

Assistant Attorney General, on brief for respondent. 

July 26, 2004
1 At the time, Bernadin actually had three convictions for

Family Abuse-Assault and Battery. However, because two of them

were on direct appeal and thus not final judgments, the INS based

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LYNCH, Circuit Judge. The Board of Immigration Appeals

(BIA) ordered Jean Rony Bernadin, a Haitian, deported after he was

convicted of domestic violence (Family Abuse-Assault and Battery)

against the mother of one of his children. In doing so, it

reversed a grant of asylum by the Immigration Judge (IJ). 

Bernadin now attempts to appeal from the BIA's final

order denying asylum. That he may not do; he took no timely action

to seek review from that order. See Stone v. INS, 514 U.S. 386,

405-06 (1995). His petition is timely only from the BIA's later

decision denying his motion to reconsider, and we treat his

petition as a challenge to the denial of reconsideration. Our

review of denials of motions to reconsider is for abuse of

discretion, Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003); there

was no abuse of discretion here.

I.

Bernadin entered the United States as a lawful permanent

resident on or about April 22, 1993. Following his conviction in

Massachusetts for Family Abuse-Assault and Battery, Mass. Gen. Laws

ch. 265, § 13(A), the Immigration and Naturalization Service (INS)

issued him a Notice to Appear on August 3, 1998, charging Bernadin

as being removable from the United States under

§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act.1 8
its Notice to Appear solely on the one final judgment. Bernadin

has noted that this judgment is the subject of a collateral attack.

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U.S.C. § 1227(a)(2)(A)(iii). This section allows for removal of an

alien convicted after entry of an aggravated felony, defined in the

Act, § 101(a)(43)(F), as a crime of violence for which the term of

imprisonment imposed is at least one year. Id.; 8 U.S.C. §

1101(a)(43)(F). As Bernadin received time served of less than one

year for his conviction, the INS withdrew its Notice under

§ 237(a)(2)(A)(iii), and issued a new Notice under

§ 237(a)(2)(E)(i), which allows for removal of an alien who has

been convicted of, among other things, a crime of domestic

violence, regardless of the length of sentence. 8 U.S.C. §

1227(a)(2)(E)(i).

Bernadin sought asylum under § 208(b) of the Act,

claiming both that he had suffered from past persecution in Haiti

as a result of a cousin's association with the Ton Ton Macoutes and

that he had a well-founded fear of future persecution should he be

deported. The IJ granted his asylum claim, finding that although

Bernadin's past treatment did not rise to the level of past

persecution, Bernadin nonetheless did possess a well-founded fear

of future persecution should he return to Haiti. A combination of

factors led the IJ to that decision. The IJ first noted that, as

a criminal deportee, there was a high probability that Bernadin

would be jailed immediately on return to Haiti. This probability,
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the judge explained, together with Bernadin's lack of family to

assist in getting him out of jail and his family's previous

political associations, meant that Bernadin might be left in jail

indefinitely, or worse. 

The INS appealed this decision to the BIA, arguing that

Bernadin did not establish a well-founded fear of future

persecution as a matter of law. Bernadin did not respond. On May

28, 2003, the BIA overturned the ruling of the IJ, agreeing with

the INS that Bernadin had no well-founded fear of future

persecution. Specifically, the BIA found: 

The respondent claims he would be tortured or killed in

Haiti. We find that the evidence does not indicate that

he has a well-founded fear or that it is more likely than

not that the respondent would be harmed for one of the

protected reasons. The respondent also does not meet the

requirement that the government would acquiesce in his

intentional mistreatment. The respondent did not support

his assertion that he was arrested because of his family

ties, rather than for some other reason. The Department

of State, Profile of Asylum Claims and Country Conditions

- Haiti, March 31, 1998, . . . does not support a

conclusion that former associates of the Macoutes are

persecuted. After so long a period of time, the

possibility that someone would seek the respondent out

for harm seems remote. Such an act would also be a

personal vendetta, not persecution.

The BIA also examined the claim that criminal returnees

to Haiti are imprisoned under conditions that amount to

persecution:

The Immigration Judge found that criminal returnees to

Haiti are imprisoned under conditions which amount to

persecution. We do not disagree that the respondent

faces at least a possibility of imprisonment upon return

to his country. While the treatment in prison may be
2 We are concerned that counsel for Bernadin failed to

inform us of the untimeliness of the petition vis-á-vis the BIA's

initial asylum decision and of the later denial of the motion for

reconsideration. At the least, counsel has woefully failed to meet

his duty of candor to the court. See Mass. R. of Prof'l Conduct

3.3. We expect that such conduct will not recur.

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harsh, these conditions are universal in Haitian prisons

and are not directed at the returnees. Moreover, the

returnees may be released upon review of their cases.

There has been no evidence presented which makes a case

that the respondent has a well-founded fear or will more

likely than not be intentionally subjected to persecution

or torture. The possibility that the respondent may

suffer under these poor prison conditions is not

sufficient to substantiate a finding that the Haitian

government acquiesces in the "torture" of criminal

deportees who are detained, as that term is defined by

regulation. As a result, we find that the evidence fails

to establish a well founded fear of persecution or that

the respondent will more likely than not be subjected to

treatment rising to the level of torture in Haiti as a

result of his status as a criminal detainee. 

(citations omitted)

Bernadin did not seek timely judicial review of the BIA's

decision. 

On June 27, 2003, he instead filed a motion to

reconsider, which was denied by the BIA on August 29, 2003. In

denying the motion, the BIA stated that Bernadin's motion "fails to

persuade us of any error of fact or law in our last decision which

would affect the result in his case." Bernadin thereafter

petitioned this court for review. We construe the petition,

despite its arguments addressed only to the BIA's initial denial of

asylum, to be from the denial of the motion to reconsider.2
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II.

In petitioning the BIA to reconsider a decision,

respondent's motion "shall state the reasons for the motion by

specifying the errors of fact or law in the prior Board decision

and shall be supported by pertinent authority." 8 C.F.R.

§ 1003.2(b)(1). This is distinguished from a motion to reopen,

which requires the petitioner to provide new evidence that "is

material and was not available and could not have been discovered

or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).

Thus, one petitioning for a motion to reconsider need not present

new law or facts that would materially alter the previous decision,

but must point to errors of fact or law by the BIA in its previous

decision.

In his motion to reconsider, Bernadin claimed that the

BIA committed a legal error by determining that there was

insufficient evidence of a well-founded fear of persecution without

holding that the IJ's finding as to Bernadin's credibility was

clearly erroneous. His asylum claim had two prongs. First, he

claimed that as a criminal deportee, he will be placed in prison

under conditions that amount to torture upon returning to Haiti.

Second, he claimed that, due to his cousin's past relationship with

the Ton Ton Macoutes, he will upon returning to Haiti be persecuted

for his political affiliation. In the motion to reconsider,

Bernadin argued that, because the IJ found him to be credible and
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he testified that both of the above were true, to find that he did

not have a well-founded fear of persecution would require that the

BIA find the IJ's credibility determination clearly erroneous,

which the BIA did not do. See 8 C.F.R. § 1003.1(d)(3)(i). 

This claim is mistaken. The BIA's decision on Bernadin's

first argument -- that as a criminal deportee he will be placed in

prison under conditions that amount to torture -- rested on two

grounds that are independent of the credibility of Bernadin's

testimony; namely, the state of prison conditions in Haiti (a fact

issue), and the question whether Bernadin's placement in those

conditions as a criminal deportee rises to the level of torture as

defined by the Act (a legal issue that the BIA reviews de novo).

It was well within the discretion of the BIA not to reconsider its

finding that "[t]he possibility that the respondent may suffer

under these poor prison conditions is not sufficient to

substantiate a finding that the Haitian government acquiesces in

the 'torture' of criminal deportees who are detained, as that term

is defined by regulation."

The BIA's decision denying Bernadin's second argument --

that he has a well-founded fear of persecution based on his

family's past political associations -- also rested on two grounds

independent of the credibility of his testimony: first, what

Bernadin's likely treatment will be upon returning to Haiti due to

his past association with a family member involved with the Ton Ton
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Macoutes, and second, whether that treatment rises to the level of

persecution as a matter of law as defined by the Act. The first

ground may rest in part on Bernadin's testimony, but much of it

depends on the general treatment in Haiti of those who were

involved with the Ton Ton Macoutes in the past, which is a fact

issue independent of Bernadin's credibility. The second ground is

a question of law for the BIA to consider de novo -- another issue

on which the credibility of Bernadin's testimony simply has no

bearing. In making the decision not to reconsider its finding that

the evidence did not rise to the level of a well-founded fear of

future persecution, the BIA was well within its scope of

discretion.

In essence, Bernadin's argument is that the BIA had to

accept the IJ's finding that his testimony was credible, and that

if his testimony was credible, then his claim of future persecution

must be allowed. But that is not so. The BIA had ample reasons to

deny the motion to reconsider its initial decision, which rested on

grounds that did not depend on Bernadin's credibility. The BIA

committed no error of law or fact nor did it inexplicably depart

from precedent so as to render its decision an abuse of discretion.

We affirm the BIA and deny the petition for review.