2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-2013

Dave Pierre v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3773

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DLD-226 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-3773

____________

DAVE SILVESTER PIERRE, a/k/a David Pier, a/k/a 

David Piere, a/k/a David S. Pierre, a/k/a Lionel A. Escobar,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

Dave Silvester Pierre,

Petitioner

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A036-803-804)

Immigration Judge: Walter A. Durling

__________________________________

Submitted on a Motion for Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 2, 2013

Before: AMBRO, SMITH and CHAGARES, Circuit Judges

(Opinion filed: June 5, 2013)

____________

OPINION

____________

PER CURIAM
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Dave Silvester Pierre (“Pierre”) petitions for review of the Board of Immigration 

Appeals’ final order of removal. For the reasons that follow, we will grant the Attorney 

General’s motion for summary action and summarily deny the petition.

Pierre, a native and citizen of Antigua and Barbuda, was previously removed from the 

United States in 1993 for several crimes, including drug trafficking. Upon returning to 

Antigua, Pierre was detained for three months and released when his sister, a United States 

citizen living in St. Croix, posted bail. He used his “green card” to enter the Virgin Islands, 

where his family lives. Eventually, he returned to New Jersey. On March 30, 2009, the 

Department of Homeland Security reinstated the prior order of removal, and Pierre pleaded 

guilty to unlawful re-entry, in violation of 8 U.S.C. § 1326(a), and was imprisoned for 18 

months.

After Pierre was unable to establish that he had acquired citizenship through his 

naturalized mother,1he sought protection under the Convention Against Torture, claiming that 

he likely would be tortured in Antigua because he had been beaten and raped while in custody 

the last time he was removed there. On May 10, 2012, Pierre appeared in Immigration Court

and testified that he was physically abused by prison guards and other prisoners, which 

included being raped by another prisoner and being beaten by prison guards with their fists and 

batons. He received treatment for an injury to his leg after his release. He testified that he 

fears being tortured if he is removed again because he is likely to encounter the same 

mistreatment by prison authorities. He has no family ties to Antigua and will be viewed as a 

 

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Pierre’s mother was naturalized on June 13, 1988 but Pierre was 22 years old at the time and 

was therefore unable to derive citizenship through her.
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criminal deportee. In support of his claim, Pierre’s sister testified over the telephone that he 

appeared bruised and beaten when she freed him from the Antiguan prison in 1993, and that he 

informed her that he had been raped. 

The Immigration Judge denied CAT relief and ordered Pierre’s removal to Antigua. 

The IJ found that Pierre was not believable because his testimony was self-serving and 

unpersuasive, and it conflicted with the Asylum Officer’s October 1, 2010 Record of Sworn 

Statement (“ROSS”), in which it was reported that Pierre repeatedly denied having any 

problems while he was detained in a holding facility in Antigua. His testimony also conflicted 

with a March 30, 2009 ROSS, in which it was reported that he denied any fear of persecution 

or torture if removed to Antigua, and with a Reasonable Fear Determination dated October 20, 

2010. In addition, even when asked during his Reasonable Fear hearing on May 31, 2011, 

Pierre never mentioned that he had been raped. When asked if he had been mistreated, his 

answer was vague and rambling. The IJ further determined that Pierre’s case was not 

rehabilitated by his sister’s testimony because, in pertinent part, her testimony did not explain 

why Pierre, when he had numerous opportunities to inform various immigration authorities 

that he suffered abuse in Antigua in 1993, failed to do so. 

The IJ also concluded that Pierre’s background evidence did not corroborate his 

assertion that criminal deportees are subjected to torture by or with the acquiescence of the 

government of Antigua. The IJ pointed out that the background materials, although they show 

overcrowding and poor prison conditions, also show that the government does not tolerate 

abusive behavior by prison guards, and international human rights organizations have ready 

access to the prison. The IJ specifically discussed an affidavit from Donald Anthonyson, 
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which notes that deportees are stigmatized by Antiguan society and which affirms tough prison 

conditions.

Pierre appealed to the Board of Immigration Appeals. On September 12, 2012, the 

Board dismissed the appeal. It held that, in light of the adverse credibility determination, 

which the Board found was fully supported by the record, Pierre failed to show that he was 

tortured in the past or likely would be tortured in the future in Antigua.

Pierre timely petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), 

(b)(1). We previously denied his motion for a stay of removal. After Pierre filed a two-page 

opening brief, the Attorney General moved for summary denial of the petition for review. 

Pierre has responded in opposition to the motion. In his opening brief, Pierre argues that the 

statement he made in 2009 was made under the stress of having been taken into custody by 

immigration authorities after living freely in the United States for a period of 15 years 

(following his illegal re-entry). He answered questions without thinking about them. 

Moreover, he contends, the IJ did not take the time to look into his case. In his response to the 

motion for summary denial, he argues that the agency erred in determining the “government 

acquiescence” issue, and in ignoring the evidence from his sister and his Antigua expert, 

Donald Anthonyson, and he argues that he has no family in Antigua because his family moved 

to the Virgin Islands after he was born.

We will grant the Government’s motion and summarily deny the petition for review 

because no substantial question is presented by it, Third Circuit LAR 27.4 and I.O.P. 10.6. To 

qualify for protection under the CAT, an applicant bears the burden of showing that it is more 

likely than not that he would be tortured if removed to the proposed country of removal. 8 
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C.F.R. § 1208.16(c)(2); Kamara v. Att’y Gen. of U.S., 420 F.3d 202, 212-13 (3d Cir. 2005). 

For an act to constitute torture, it must be: (1) an act causing severe physical or mental pain or 

suffering; (2) intentionally inflicted; (3) for a proscribed purpose; (4) by or at the instigation of 

or with the consent or acquiescence of a public official who has custody or control of the 

victim; and (5) not arising from lawful sanctions. Id. at 213; 8 C.F.R. § 1208.18(a)(1)-(8). The 

“acquiescence of a public official” requirement does not require actual knowledge of torturous 

conduct, but can be satisfied by a showing that the government is willfully blind to the conduct 

in question or has breached its legal responsibility to prevent it. Silva-Rengifo v. Att’y Gen. of 

U.S., 473 F.3d 58, 70 (3d Cir. 2007). An applicant’s criminal convictions in the United States 

are not a bar to deferral of removal under the CAT, 8 C.F.R. § 1208.17(a).

Where the Board substantially relies on the IJ’s adverse credibility determination, we 

review both decisions. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We must 

consider the record as a whole and may reverse only if “any reasonable adjudicator would be 

compelled” to reach a conclusion contrary to that of the agency. 8 U.S.C. § 1252(b)(4)(B). 

The IJ may consider the totality of the evidence in finding a lack of credibility, and 

inconsistencies need not go to the heart of the claim. 8 U.S.C. § 1158(b)(1)(B)(iii). See also

Kaita v. Att’y Gen. of U.S., 522 F.3d 288, 296 n.6 (3d Cir. 2008) (same).

We are not compelled to reach a conclusion contrary to that of the agency in Pierre’s 

case because Pierre had a full and fair hearing, and the concerns noted by the agency are 

substantial and seriously undermined Pierre’s credibility. In affirming the IJ, the Board 

properly considered Pierre’s testimony and that of his sister, expressly discussed the evidence 

in some detail, and explained why it found no error in the IJ’s adverse credibility 
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determination. The Board observed that Pierre’s testimony regarding his past treatment in 

Antigua conflicted with other sworn statements he had made, including a statement to an 

Asylum Officer in October 2010, in which he repeatedly stated that he had no problems while 

he was detained in a holding facility in Antigua. In his 2009 statement, he indicated that he 

had no fear of persecution or torture should he be removed from the United States. In the 

October 10, 2010 Reasonable Fear Determination he was reported to have stated that he stayed 

by himself during the 21⁄2 months that he was held in the holding facility. 

The Board properly rejected Pierre’s attempt to explain away the inconsistencies 

between his prior statements and in-court testimony. During his hearing Pierre was given the 

opportunity to explain the inconsistency between his 2009 statement and his testimony, but the 

IJ found his explanation self-serving. His argument on appeal that he answered questions in 

2009 without thinking about them does not persuade us that this finding is unreasonable. 

Moreover, the Board validly rejected the testimony of Pierre’s sister on the ground that the 

sister’s testimony did not overcome Pierre’s failure to mention being raped or assaulted during 

his interviews. Last, Pierre’s background evidence plainly did not corroborate his assertion 

that criminal deportees are subjected to torture by or with the acquiescence of the government 

of Antigua. As explained by the IJ, the Anthonyson affidavit affirms tough prison conditions 

but does not attribute them to any particular reason much less any intent by Antiguan prison 

authorities to inflict severe pain or suffering. Accordingly, Pierre did not demonstrate that it is 

more likely than not that he would be tortured for any reason in Antigua, 8 C.F.R. § 

1208.16(c). See Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir. 2005) (denying petition for 

review where “the IJ’s adverse credibility determination forecloses [the CAT] claim”).
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For the foregoing reasons, we will grant the Attorney General’s motion for summary 

action and summarily deny the petition for review.