2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-2010

Ovianie Altine v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3766

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IMG-278 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3766

___________

OVIANIE ALTINE; LOCHART PROPHETE,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order 

of the Board of Immigration Appeals

Agency Nos. A79 508 960, A96 277 754

Immigration Judge: Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 18, 2010

Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges

(Opinion filed : September 13, 2010)

______

OPINION

___________

PER CURIAM

Lochart Prophete and Ovianie Altine, husband and wife, petition for review of an

order of the Board of Immigration Appeals (“BIA” or “Board”), which dismissed their

appeal from an Immigration Judge’s (“IJ”) final removal orders. We will dismiss the
2

joint petition for review for lack of jurisdiction.

I.

Altine and Prophete are natives and citizens of Haiti who arrived in the United

States in 2001 and 2002 respectively. The Government charged both with being

inadmissible and issued them notices to appear. Both petitioners filed timely applications

for asylum, withholding of removal, and for protection under the United Nations

Convention Against Torture (“CAT”). The applications were consolidated. In testimony

before the IJ, Altine, the lead petitioner, recounted a June 2001 incident during which

three men broke into the political office building she was cleaning, asked for her cousin,

who was a magistrate and who had been a candidate for mayor. The men brandished a

gun and raped her. 

Prophete testified that in December 2001 two men forced him into a vehicle and

took him to a room, beat him with a rubber baton, and kicked him in the head. Prophete,

a French professor, stated that the men accused him of being an “intellectual giving

problems in [Haiti],” and he feared returning to work because he knew of other professors

who had been beaten and killed. A.R. at 251. He left for the United States one year after

the attack. Prophete testified that he feared returning to Haiti due to the unstable political

situation in the country.

The IJ, finding the testimony of both petitioners credible, denied Altine’s claims
3

because she did not show that men who raped her were individuals the government of

Haiti was unable or unwilling to control or that the rape was calculated to persecute her

on account of a protected ground. A.R. at 90. The IJ also found that she did not explain

why she feared returning to Haiti, and she thus failed to show a well-founded fear of

future persecution. 

Similarly, the IJ found that while Prophete’s testimony was credible, he failed to

identify his persecutors and could not prove that they were government agents or forces

the government was unable or unwilling to control. Further, according to the IJ, Prophete

failed to present evidence that professors in Haiti are a social group subject to

persecution. As in his wife’s case, the IJ found that Prophete’s fear of general

lawlessness in Haiti was not a valid basis for a well-founded fear of future persecution. 

Finally, the IJ found that neither petitioner was eligible for relief under the CAT.

Petitioners appealed to the BIA, which affirmed the IJ’s findings and dismissed the

appeal. The petitioners filed a timely petition for review.

II. 

We have jurisdiction to review a removal order pursuant to 8 U.S.C. § 1252, but

we may “review a final order of removal only if the alien has exhausted all administrative

remedies available to the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). A petitioner must

“raise and exhaust his or her remedies as to each claim or ground for relief if he or she is

to preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft, 330
4

F.3d 587, 594-95 (3d Cir. 2003).

Altine and Prophete raise only one issue in their brief here: “whether the [record]

evidence of country conditions in Haiti for 2001, the only year in which the petitioners

were persecuted, was so deficient in content that the ‘findings of fact’ on which the

denials are based lack substantial evidence in the record as a whole, and amount to

unlawful agency action that must be reversed and remanded to afford petitioners a

proceeding providing fundamental procedural fairness.” Petitioners’ Brief at 2-3. 

Petitioners argue that the IJ should have introduced the State Department’s Country 

Report on Human Rights Practices for Haiti for the year 2001, because the only report in

the record describing 2001 conditions in Haiti is a 2004 State Department “Background

Note” which is not detailed enough to give a proper context for Petitioners’ claims. 

Petitioners state that they exhausted administrative remedies for this claim because their

notice of appeal to the Board states that the IJ’s denial of asylum relief “represents an

improper application of controlling legal principals [sic].” A.R. 43.

We agree with the Government that nothing in Petitioners’ notice of appeal or

brief to the Board alerts the Board to a claim that the record was inadequate or that the

matter needed to be remanded for consideration of the 2001 Country Report or any other

evidence. Instead, Petitioners argued that the IJ erred in denying relief on the basis of

evidence already in the record. Because we lack jurisdiction to consider the only issue
5

raised by Petitioners, we must dismiss the petition for review.