2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-2006

Francois v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-4523

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Recommended Citation

"Francois v. Atty Gen USA" (2006). 2006 Decisions. Paper 996.

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No: 04-4523

 KESNER FRANCOIS,

 Appellant

 v.

*ALBERTO GONZALES, Attorney General;

*MICHAEL CHERTOFF, DEPARTMENT OF

HOMELAND SECURITY,

BUREAU OF IMMIGRATION & CUSTOMS

ENFORCEMENT;

MICHAEL J. GARCIA, Associate Secretary of

the Department of Homeland Security, Bureau

of Immigration & Customs Enforcement;

JOHN TORRES, District Director, Department

of Homeland Security-Bureau of Immigration

& Customs Enforcement; MICHAEL ABODE, Warden,

Middlesex County Jail, North Brunswick, New Jersey

*(Amended pursuant the F.R.A.P. 43(c))

On Petition for Review from the 

Board of Immigration Appeals (A 36 470 712)
2

Initially docketed as an 

Appeal from the United States District Court

for the District of New Jersey prior to the 

enactment of the Real ID Act

(Civ. No. 04-cv-01961)

District Judge: Hon. William J. Martini

Argued: February 2, 2006

Before: McKEE, SMITH and VAN ANTWERPEN,

Circuit Judges

(Opinion filed: May 19, 2006)

REGIS FERNANDEZ, ESQ. (Argued)

18 Green Street, Third Floor

Newark, NJ 07102

Attorney for Appellant

CHRISTOPHER J. CHRISTIE, ESQ.

United States Attorney

District of New Jersey

NEIL R. GALLAGHER, ESQ.

Assistant United States Attorney

RUDOLPH A. FILKO, ESQ. (Argued)

Assistant United States Attorney

970 Broad Street, Suite 700

Newark, NJ 07102

Attorneys for Appellees
3

OPINION

McKEE, Circuit Judge.

Kesner Francois appeals the district court’s denial of the

petition for a writ of habeas corpus that he filed pursuant to 28

U.S.C. § 2241, seeking relief from removal based upon alleged

violations of the Convention Against Torture (“CAT”). For the

reasons that follow, we will convert Francois’ habeas petition

into a petition for review, and deny his petition.

I. FACTS AND PROCEDURAL HISTORY

Francois, a native and citizen of Haiti, was admitted to

the United States as a lawful permanent resident on March 8,

1979. On May 8, 1992, Francois was convicted of possession

of a controlled substance in state court. On October 29, 1997,

he was convicted of aggravated assault in state court and

sentenced to six years in prison.

 Francois returned to Haiti three times in 2003. On

August 10, 2003, Francois arrived at JFK International Airport

in New York City and sought admission to the United States as

a returning resident. Entry was denied, and he was taken into

the custody of the Bureau of Immigration and Customs Affairs

(“ICE”) because his criminal convictions made him

inadmissible. He was eventually served with a Notice to

Appear, charging him with being a removable alien under

provisions of the Immigration and Nationality Act (“INA”)

based upon his criminal convictions in state court.
1

These reports are discussed in some detail below.

Francois relied upon these reports because he had never been

imprisoned in Haiti, nor did he know anyone who had been. 

4

 In the removal proceedings that followed, Francois

conceded removability, but applied for asylum, withholding of

removal, and relief under Article 3 of the Convention Against

Torture (“CAT”). In support of the latter claim, Francois

alleged that, as a criminal deportee being returned to Haiti, he

would be indefinitely imprisoned by Haitian authorities and

tortured if returned. That allegation was supported by official

and unofficial reports describing the conditions faced by

criminal deportees and Haitian prisoners.1

 The immigration

judge (“IJ”) denied Francois’ claim for asylum and withholding

of removal, but granted relief under the CAT based upon the

reported conditions in Haitian detention facilities. The

Department of Homeland Security (“DHS”) appealed the IJ’s

decision to the Board of Immigration Appeals, and the BIA

reversed. 

Francois thereafter filed a petition for habeas corpus in

district court pursuant to 28 U.S.C. § 2241. The district court

denied habeas relief concluding that Francois “failed to show

more than isolated instances of torture occur in Haitian prisons.”

Francois v. Ashcroft, 343 F. Supp. 2d 327, 337 (D.N.J. 2004).

 This appeal followed.

II. EFFECT OF REAL ID ACT

District courts had jurisdiction over habeas petitions
5

alleging violations of the CAT when Francois filed his habeas

petition in 2004. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222

(3d Cir. 2003). Review was “confined to questions of

constitutional law and statutory interpretation.” Bakktrigher v.

Elwood, 360 F.3d 414, 424 (3d Cir. 2004). “[T]he broader

species of review for substantial evidence and abuse of

discretion typical of APA challenges” was “wholly out of

bounds.” Id. at 423. Accordingly, § 2241 habeas proceedings

did “not embrace review of the exercise of discretion, or the

sufficiency of the evidence.” Id. at 420. Instead, the habeas

court’s jurisdiction was limited to “pure questions of law,”and

to “issues of application of law to fact, where the facts are

undisputed and not the subject of challenge.” Id. at 420. 

However, “[t]his jurisdictional framework was radically

overhauled . . . with the passage of the REAL ID Act of 2005,

Pub.L. No. 109-13, 119 Stat. 231.” Kamara v. Att’y Gen. of the

United States, 420 F.3d 202, 209 (3d Cir. 2005). Section 106(a)

of the REAL ID Act, the provision we are concerned with,

amended 8 U.S.C. § 1252(a)(2) of the INA by eliminating the

district courts’ habeas corpus jurisdiction (28 U.S.C. §§ 2241,

1361 and 1651) over final orders of removal in nearly all cases.

Consequently, a petition for review filed in the appropriate

court of appeals “is [now] the sole and exclusive means for

judicial review of any cause or claim under the United Nations

Convention Against Torture and Other Forms of Cruel,

Inhuman, or Degrading Treatment or Punishment, except as

provided in subsection (e) of this section.” REAL ID Act §

106(a)(1)(B), 8 U.S.C. § 1252(a)(4). Section 106(a)(1)(A)(iii)

of the REAL ID Act also amended 8 U.S.C. § 1252 by adding

a new provision, § 1252(a)(2)(D), which states:
2

“REAL ID Act § 106(b) provides that § 1252(a)(2)(D),

‘shall take effect upon the date of the enactment of this division

and shall apply to cases in which the final administrative order

of removal . . . was issued before, on, or after the date of the

enactment of this division.’” Kamara, 420 F.3d at 210. 

6

Nothing in subparagraph (B) or (C), or in any

other provision of this Act (other than this

section) which limits or eliminates judicial

review, shall be construed as precluding review of

constitutional claims or questions of law raised

upon a petition for review filed with an

appropriate court of appeals in accordance with

this section.

8 U.S.C. § 1252(a)(2)(D). With this amendment,

Congress evidenced its intent to restore judicial

review of constitutional claims and questions of

law presented in petitions for review of final

removal orders. This now permits all aliens,

including criminal aliens, to obtain review of

constitutional claims and questions of law upon

filing of a petition for review with an appropriate

court of appeals.

Kamara, 420 F.3d at 210 (quoting Papageorgiou v. Gonzalez,

413 F.3d 356, 358 (3d Cir. 2005)). 

In explicitly making these amendments retroactive,2
7

Congress provided that habeas petitions filed under § 2241,

which were pending in the district courts as of May 11, 2005,

shall be transferred to the court of appeals “for the circuit in

which a petition for review could have been properly filed . . .

[and treated] as if it had been filed pursuant to a petition for

review,” with an exception not relevant to our discussion.

REAL ID Act § 106(c). Kamara, 420 F.3d at 210, 

As we recognized in Kamara, the “REAL ID Act is silent

as to the exact procedural posture which faces us here, i.e. an

appeal from a district court’s habeas decision that is now

pending before the court of appeals.” 420 F.3d at 210 (citing

Bonhometre v. Gonzalez, 414 F.3d 442 (3d Cir. 2005)). In

Kamara, we affirmed Congress’s intent “to provide aliens with

one chance for judicial review in the court of appeals[.]” We

therefore concluded that the appropriate way to treat a pending

appeal from the district court’s habeas petition, is to “vacate and

disregard the [d]istrict [c]ourt’s opinion and address the claims

raised in [the] habeas petition as if they were presented before

us in the first instance as a petition for review.” 420 F.3d at 210

(citing Bonhometre, 414 F.3d at 445). Accordingly, we will

consider Francois’ claims as if they were first presented in a

petition for review of the BIA’s decision.

III. STANDARD OF REVIEW

Even though Francois’ § 2241 habeas petition has been

converted into a petition for review, our standard of review

remains the same. “A review for ‘constitutional claims or

questions of law,’ as described in § 106(a)(1)(A)(iii) of the

REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), mirrors our previously

enunciated standard of review over an alien’s habeas petition.”
3

Article 3 of the CAT states: “No State Party shall expel,

return (“refouler”) or extradite a person to another State where

there are substantial grounds for believing that he would be in

danger of being subjected to torture.” Art. 3(1), S. Treaty Doc.

No. 100-20, 1465 U.N.T.S. 85.

8

Kamara, 420 F.3d at 211. Accordingly, in examining Francois’

claims, “we are limited to pure questions of law, and to issues

of application of law to fact, where the facts are undisputed and

not the subject of challenge.” Id. (citations and internal

quotations omitted). We review the “BIA’s legal decisions de

novo, but will afford Chevron deference to the BIA’s reasonable

interpretations of statutes which it is charged with

administering.” Id. (citations omitted).

IV. THE CONVENTION AGAINST TORTURE

On October 21, 1998, the President signed into law the

Foreign Affairs Reform and Restructuring Act of 1998

(“FARRA”), Pub.L. No. 105-277, Div. G., 112 Stat. 2681-761,

authorizing the implementation of Article 3 of the Convention

Against Torture3

 and requiring implementing regulations to be

promulgated by the applicable agencies within 120 days. As

directed, the Department of Justice, which then included the

Immigration and Naturalization Service, promulgated

regulations setting forth the procedures by which aliens could

obtain relief under the CAT. See 64 Fed. Reg. 8478, codified at

8 C.F.R. §§ 208.16(c), 208.17 & 208.18(a). 

8 C.F.R. § 208.18(a)(1), the regulatory definition of
9

torture, mirrors the definition of torture contained in Article 1 of

the CAT, which is then clarified by six additional provisions,

several of which are relevant here:

(a)(1) Torture is defined as any act by which

severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for

such purposes as obtaining from him or her or a

third person information or a confession,

punishing him or her for an act he or she or a

third person has committed or is suspected of

having committed, or intimidating or coercing

him or her or a third person, or for any reason

based on discrimination of any kind, when such

pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence

of a public official or other person acting in an

official capacity.

(a)(2) Torture is an extreme form of cruel and

inhuman treatment and does not include lesser

forms of cruel, inhuman or degrading treatment or

punishment that does not amount to torture.

(a)(3) Torture does not include pain or suffering

arising only from, inherent in or incidental to

lawful sanctions.

(a)(4) In order to constitute torture, mental pain or

suffering must be prolonged mental harm caused

by or resulting from:
10

(i) The intentional infliction or

threatened infliction of severe

physical pain or suffering;

(ii) The administration or

application,or threatened

administration or application, of

mind altering substances or other

procedures calculated to disrupt

profoundly the senses or the

personality;

(iii) The threat of imminent death;

or

(iv) The threat that another person

will imminently be subjected to

death, severe physical pain or

suffering, or the administration of

mind altering substances or other

procedures calculated to disrupt

profoundly the sense or personality.

(a)(5) In order to constitute torture, an act must be

specifically intended to inflict severe physical or

mental pain or suffering. An act that results in

unanticipated or unintended severity of pain and

suffering is not torture.

The Department of Justice also promulgated regulations

specifying the elements and the burden of proof for a CAT
4

Applicants for CAT relief can seek either deferral of

removal or withholding of removal. Regulations for

withholding of removal are found at 8 C.F.R. § 208.16 and the

regulations for deferral are found at § 208.17. “However, the

general standards of eligibility for each are identical, i.e., a

requirement that an alien establish that future ‘torture’ is ‘more

likely than not.’” Auguste v. Ridge, 395 F.3d 123, 134 n. 8 (3d

Cir. 2005). 

11

claim. Section 208.16(c)(2) provides that “[t]he burden of proof

is on the applicant for withholding of removal4 to establish that

it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” If an applicant

establishes that he “more likely than not would be tortured”

upon removal to his home country, withholding or deferral of

removal is mandatory. 8 C.F.R. §§ 208.16(c)(3) and (4). The

objective evidence to be considered in evaluating a CAT claim

includes “[e]vidence of past torture inflicted upon the

applicant;” “[e]vidence of gross, flagrant or mass violations of

human rights within the country of removal;” and “[o]ther

relevant information regarding conditions in the country of

removal.” See 8 C.F.R. § 208.16(c)(3); see also 8 C.F.R. §

208.17(a). 

V. DISCUSSION

Francois contends that he is entitled to CAT relief

because, as a criminal deportee, he will be indefinitely detained
5

The parties stipulated that Francois would likely be

detained if he was removed to Haiti.

12

in a Haitian prison5

 upon his return, and he will be forced to

endure appalling prison conditions that are tantamount to

“torture.” As noted earlier, this claim rests only upon

generalized prison conditions rather than any specific treatment

that would be intentionally directed at him. In support of his

claim, Francois cited: (1) the U.S. State Department’s Country

Report on Human Rights Practices – Haiti 2002 (“2002

Country Report”); (2) the Human Rights Watch’s World Report

2003 – Haiti (“World Report 2003”); and (3) the INS Resource

Information Centers’ Haiti – Information on Conditions in

Haitian Prisons and Treatment of Criminal Deportees

(“Conditions in Haitian Prisons”). 

Our assessment of these country reports is substantially

the same as district court’s. As we noted above, the district

court’s opinion has been vacated by operation of the REAL ID

Act. However, since that court’s assessment is consistent with

our own, and since the government does not challenge the

district court’s findings, we will set forth substantial portions of

the district court’s summary of those reports in the interest of

judicial economy. 

The district court described the essential elements of

these reports as follows:

Criminal deportees who are removed to Haiti are

routinely imprisoned. The Haitian authorities do
13

this as a preventive measure to prevent returning

criminals from further exacerbating the country’s

already high levels of crime. U.S. criminal

deportees are incarcerated in the National

Penitentiary with the general prison population.

They are held indefinitely, with one exception.

343 F. Supp. 2d. at 328-29. Although Haitian authorities detain

returning aliens such as Francois “indefinitely,” the district

court explained that:

[T]he reports use the word “indefinitely” not to

connote that the criminal alien will never be

released, but to suggest that the person will be

held without notice of when they will be released.

On average, it appears that most detained

deportees were released after several months of

imprisonment, although there were instances

where people were detained up to 10 months. 

Id. at 329 n.2. If the deportee has a close family member, then

the deportee may be released approximately three months after

incarceration. Id. at 329. However, this exception is narrow.

Criminal deportees are released from the National

Penitentiary after a close family member presents

proof of identification as well as proof of

relationship to the deportee and must swear in

writing that they will take responsibility for the

deportee upon release and further, that they agree

that in the event that the deportee is alleged to
14

commit a crime, and is not apprehended, the

responsible person will be subject to arrest until

such a time as the deportee is apprehended. In

2001, 4-5 families have been subjected to arrest,

with one family member imprisoned for three

months until the police were able to arrest the

deportee. This deters some families from coming

forward or following through with the process for

releasing their loved ones from detention when

first deported to Haiti.

Id. at 329 (quoting Conditions in Haitian Prisons at 4).

Moreover, it appears that “not just any family member can

claim responsibility for the deportee. Authorities often require

that a close relative, such as a parent, come forward. In short,

detention of a criminal deportee can last anywhere from a short

duration to an indefinite duration.” Id. 

The conditions of Haitian prisons are atrocious.

Although the prison population of the National

Penitentiary was reduced to 1,700 prisoners in

2002, it remains overcrowded with extremely

poor and antiquated facilities. Despite recent

improvements in prison administration, prisoners

and detainees continue to suffer from a lack of

basic hygiene, malnutrition, poor quality health

care, and, in some facilities, 24-hour confinement.

Most prisons periodically suffered from lack of

water, especially in the provinces. Many

prisoners also suffered from diseases, including

‘preventable diseases such as beriberi, AIDS, and
15

tuberculosis. Human rights groups, such as the

International Committee of the Red Cross and the

Haitian Red Cross, were freely permitted to enter

prisons and monitor conditions, and assist

prisoners and detainees with medical care, food,

and legal aid. 

Id. (footnote, internal quotation marks, bracket and citations

omitted).

The district court also noted that, in addition to “those

abysmal conditions, prisoners are also grossly mistreated by

prison officials.” Id. In quoting the State Department’s

Country Report on Human Right’s Practices – Haiti 2001, the

district court wrote: 

Police mistreatment of suspects at both the time

of arrest and during detention remains pervasive

in all parts of the country. Beatings with fists,

sticks, and belts is by far the most common form

of abuse. However, international organizations

documented other forms of mistreatment, such as

burning with cigarettes, choking, hooding, and

kalot marassa (severe boxing of the ears, which

can result in eardrum damage). Those who

reported such abuse often had visible injuries

consistent with the alleged maltreatment. There

were also isolated allegations of torture by

electric shock. Mistreatment also takes the form

of withholding medical treatment from injured

jail inmates. Police almost never are prosecuted
16

for the abuse of detainees.

Id. at 329-30. 

We therefore have no trouble concluding that the

conditions Francois will likely face in Haitian prisons following

his removal to Haiti are inhumane and deplorable. That does

not, however, end our inquiry, because it does not establish that

those conditions constitute “torture” under the CAT. That

inquiry is controlled by our decision in Auguste v. Ridge, 395

F.3d 123 (3d Cir. 2005), and we conclude that Auguste

precludes granting Francois relief. 

Auguste, like Francois, was a Haitian alien facing

removal after being convicted of crimes in the United States.

Auguste claimed that his entire family lived in the United States,

just as Francois does. Auguste also based his claim for relief

under the CAT upon his assertion that he would be “indefinitely

detained upon his arrival in Haiti in prisons that are notorious

for their brutal and deplorable conditions that have been

compared to those existing on slave ships.” 395 F.3d at 128.

However, Francois, like Auguste, does not claim that he was

tortured in Haiti, nor does Francois allege any kind of coercion,

force, cruelty or brutality would be personally directed at him if

he were returned to Haiti. Rather, Francois’ claim for relief

rests solely upon “the likelihood that he would be detained upon

arrival and subject to harsh prison conditions.” Id. at 134. We

rejected Auguste’s attempt to equate harsh prison conditions

with “torture” because conditions of confinement, without more,

do not constitute torture under the CAT. Francois’ claim is

factually indistinguishable from the one we rejected in Auguste.
17

 Accordingly, we hold that Francois is not eligible for relief

under the CAT.

Francois attempts to avoid the impact of Auguste by

relying upon our discussion of the CAT in Zubeda v. Ashcroft,

333 F.3d 463 (3d Cir. 2003). Francois argues that his claim

satisfies the intent element for torture as set forth in Zubeda. 

There, in discussing the intent required of persecutors under the

CAT, we stated: “the Convention [Against Torture] simply

excludes severe pain or suffering that is the unintended

consequence of an intentional act.” Id. at 473. However,

Francois’ reliance on Zubeda ignores that our entire discussion

there was in the context of a woman who alleged that she would

be raped if returned to her native country, and we had to

determine if that allegation could support relief under the CAT

on the record there.

In Zubeda, we granted a petition for review, vacated the

BIA’s denial of relief under the CAT, and remanded for further

proceedings before the BIA. However, the IJ had found that

Zubeda had established a likelihood that she would be subjected

to acts of violence specifically directed against her including the

likelihood that she would be raped if returned to the Democratic

Republic of the Congo. 

In explaining why Auguste had not satisfied his burden

under the CAT, we noted that “[t]he District Court concluded

that ‘there must be some sort of underlying intentional direction

of pain and suffering against a particular petitioner, more so than

simply complaining of the general state of affairs that constitute

conditions of confinement in a place, even as unpleasant as
6

 We do not, of course, suggest that conditions of

confinement can never satisfy the burden a petitioner must

establish to qualify for relief under the CAT. We hold only that

Francois has not satisfied that burden on this record.

18

Haiti.’” 395 F.3d at 137. Given our discussion in Auguste, we

conclude that the generalized allegations of prison conditions

Francois advances here do not rise to the level of “torture.”6

VI. CONCLUSION

For all of the above reasons, we will vacate the district

court’s opinion and deny Francois’ petition for review of the

decision of the BIA.