Presently before the Court is the pro se application for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2241, of
petitioner Paul R. Julmiste ("Julmiste" or "Petitioner"). The
Petitioner challenges an order of removal, entered by an
Immigration Judge and affirmed by the Board of Immigration
Appeals, claiming that removal will violate his rights under the
U.S. Constitution, federal statutes and international human
rights law. For the reasons set forth below, Petitioner's
application for habeas corpus relief will be denied.
Facts and Procedural History
Petitioner and his family were lawfully admitted to the United
States as immigrants from Haiti in 1979. Petitioner is a twenty
five year old male who has lived continuously in the United
States for approximately 23 years. At the time of his
incarceration he was a resident of New Jersey. Neither Mr.
Julmiste nor the members of his family have returned to Haiti
since moving to the U.S. and none of Mr. Julmiste's family
members still reside in Haiti. However, Mr. Julmiste's parents
have maintained strong ties with a politically and socially
active Haitian refugee, named Alerte Noel. After surviving a
violent attack and being left for dead by a political/military
group in Haiti, Ms. Noel fled to the U.S. where she has
participated in humanitarian relief efforts and has also brought
suit against the group allegedly responsible for the attack.
On August 19, 1996, Petitioner entered a plea of guilty in the
State of New Jersey, Superior Court, Essex County for the
offense of Conspiracy to Possess with Intent to Distribute
Cocaine and was sentenced to probation. On September 29, 1997,
Petitioner was convicted in State of New Jersey, Superior Court,
Essex County for the offenses of Aggravated Manslaughter and
Unlawful Possession of a Weapon. Petitioner was sentenced to ten
years for the offense of aggravated manslaughter and an
additional five years for weapon possession.
On November 8, 1999, Petitioner received a Notice to Appear
("NTA") from the Immigration and Naturalization Service
("INS").*fn1 After serving approximately three years of his
sentence, Petitioner was transferred from prison in New Jersey
to a federal detention center in Oakdale, Louisiana. Removal
proceedings by the INS commenced on August 4, 2000. As a result
of his criminal convictions, Petitioner was charged removable
under the Immigration and Nationality Act ("INA") §§
237(a)(2)(B)(i), 237(a)(2)(iii), and 237(a)(2)(c), 8 U.S.C.A. §
1227(a)(2).*fn2 After numerous continuances, the hearing
resumed on November 16, 2000 and the Petitioner, through his
counsel, applied for
a deferral of removal under Article III of the Convention
Against Torture ("CAT")*fn3 claiming that he would be
tortured upon return to Haiti and that therefore, a deferral was
On September 13, 2001, Immigration Judge ("IJ") Charles A.
Weigland, III, denied Petitioner's application for deferral of
removal and ordered Petitioner to be removed from the United
States to Haiti. Petitioner appealed to the Board of Immigration
Appeals ("BIA"), but his appeal was dismissed on May 21, 2002.
While the BIA recognized the existence of "isolated acts of
torture" in Haitian prisons, the BIA denied Petitioner's request
because it concluded Petitioner failed to carry his burden of
demonstrating that it was "more likely than not" that he would
be subjected to torture upon returning to Haiti. Decision of the
Board of Immigration Appeals, In re: Paul Robert Julmiste,
File No. A36 470 829 — Oakdale (May 21, 2002). The BIA further
held "that neither indefinite detention nor inhuman prison
conditions . . . constitutes torture." Id.
On June 19, 2002, Petitioner filed in the United States
District Court for the District of New Jersey an emergency
petition for a writ of habeas corpus and a complaint requesting
declaratory and injunctive relief with a stay of deportation.
Petitioner alleges the BIA's ruling was arbitrary and capricious
and also makes a claim of ineffective assistance of counsel.
The permanent judicial review amendments ("permanent rules")
to the Illegal Immigration Reform and Immigrant Responsibility
Act ("IIRIRA") govern deportation proceedings initiated after
April 1, 1997.*fn4 See IIRIRA § 309(c). The permanent
rules, which revised the previous rules governing jurisdiction
and judicial review, tightly limit federal review of immigration
cases. IIRIRA § 306(a), 8 U.S.C.A. § 1252(g). See generally
Merisier v. INS, No. 00 CIV 0393 GBD AJP, 2000 WL 1281243, at
*5-6 (S.D.N.Y. Sept. 12, 2000) (discussing the 1996 Amendments
and their effects on federal court jurisdiction). The passage of
the Antiterrorism and Effective Death Penalty Act ("AEDPA") also
limited judicial review with respect to removal orders for
certain criminal aliens by repealing and revising sections of
the INA.*fn5 See generally id. Following the passage of the
IIRIRA and the AEDPA,*fn6 federal courts are no longer able
to provide direct judicial review of denials of discretionary
relief to criminal aliens. See 8 U.S.C.A. §§ 1252(a)(2)(C)
("Orders Against Criminal Aliens"
provides in relevant part that, "Notwithstanding any other
provision of law, no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed a criminal offense . . ."), 1252(g)
(dictates exclusive jurisdiction); Liang v. INS, 206 F.3d 308,
313-14 (3d Cir. 2000).
However, the Third Circuit has consistently maintained its
federal jurisdiction over habeas cases involving criminal
aliens, even though it may no longer engage in "judicial
review." Liang, 206 F.3d at 317 (Finding there is no express
intent by Congress to preclude jurisdiction, and holding "a
repeal of habeas jurisdiction will not be found by
implication."). The Third Circuit was clear in holding "any
challenge by a criminal alien to the BIA's interpretation of the
immigration laws or to the constitutionality of those laws, even
a claim involving substantial constitutional issues, must be
made through a habeas petition rather than through a petition
for review." Liang, 206 F.3d at 315 (referring to its decision
in Catney v. INS, 178 F.3d 190, 195 (3d Cir. 1999)).
The Supreme Court recently resolved a split in the circuits
and affirmed the continued vitality of federal jurisdiction of
habeas petitions by criminal aliens. INS v. St. Cyr,
533 U.S. 289, 297-314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Specifically, the Supreme Court held in St. Cyr that the 1996
Amendments did not divest federal courts of jurisdiction under
28 U.S.C. § 2241 to hear challenges from criminal aliens
regarding pure questions of law. Id. The Supreme Court found
the "lack of a clear, unambiguous, and express statement of
congressional intent" to preclude habeas review, in addition to
the great potential for constitutional problems arising from the
preclusion of such review, to be compelling considerations
supporting its decision. Id. at 314, 121 S.Ct. 2271.
Therefore, this Court may review Petitioner's claim under the
CAT insofar as Mr. Julmiste argues that his removal to Haiti
would, as a matter of law, violate his rights under federal law
and international human rights law. See Calcano-Martinez v.
INS, 232 F.3d 328, 342 (2d Cir. 2000) ("Although not all
challenges that an alien may launch against his removal are
cognizable under habeas, purely legal statutory and
constitutional claims are within § 2241's scope.").
Standard of Review
In general, agency actions should be reviewed with a great
degree of deference when the agency is interpreting the statutes
and regulations which it administers. Chevron U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 865-66, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984). In this context, Congress has
dictated through IIRIRA the intended standard for review
regarding findings of facts supporting final orders of
removal.*fn7 IIRIRA calls for a determination whether "any
reasonable adjudicator would be compelled to
conclude to the contrary."*fn8 U.S.C. § 1252(b)(4)(B). While
there may remain some confusion regarding "the exact scope of §
2241 habeas review of INS factual determinations after
IIRIRA . . . the standard of review must be at least as deferential as
it was before the 1996 Amendments, when the courts applied the
substantial evidence test to asylum applications and accorded
`substantial deference' to the BIA's findings of fact." Soto v.
Ashcroft, No. 00 CV 5986 AJP, 2001 WL 1029130, at *7 (S.D.N.Y.
Sept. 7, 2001) (citations and quotations omitted). The Supreme
Court has spoken on this issue and held that an alien seeking
judicial reversal of an immigration agency's administrative
decision must show that the evidence was "so compelling that no
reasonable factfinder could fail to find" in his favor. INS v.
Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117
L.Ed.2d 38 (1992). The standard of review is, therefore,
deferential and "exceedingly narrow." Purveegiin v. INS
Processing Center, 73 F. Supp.2d 411, 417-18 (S.D.N.Y. 1999)
Substantial evidence is defined as "more than a mere scintilla
and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (citations omitted). The
substantial evidence standard requires that the BIA's finding be
upheld unless the evidence not only supports, but goes further
to compel a contrary conclusion. See Elias-Zacarias, 502 U.S.
at 481 & n. 1, 112 S.Ct. 812; Abdille v. Ashcroft,
242 F.3d 477, 483-84 (3d Cir. 2001) (regarding a request for asylum).
While the Supreme Court was dealing with a denial of asylum in
Elias-Zacarias, the substantial evidence standard articulated
is also applicable to the factual findings supporting the BIA's
conclusion that the Petitioner failed to meet his burden of
proof under CAT. See Elias-Zacarias, 502 U.S. 478, 112 S.Ct.
812 (1992); Kourteva v. INS, 151 F. Supp.2d 1126, 1130
(N.D.Cal. 2001) (denying habeas petition, the district court
applied the substantial evidence standard and affirmed BIA's
decision to deny relief under CAT because there was substantial
evidence supporting BIA's decision.).
The Convention Against Torture Treaty (CAT)
Petitioner brings this claim under Article III of the United
Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.*fn9 Petitioner asserts
that he will be
tortured upon return to Haiti, and the U.S. is therefore
obligated by the CAT to not remove him.*fn10
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 . . .
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 a 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."
8 C.F.R. § 208.18(a)(1). Furthermore, torture "is an extreme form
of cruel and inhuman treatment and does not include lesser forms
of cruel, inhuman or degrading treatment."
8 C.F.R. § 208.18(a)(2). "[P]ain and suffering" stemming from lawful
sanctions will not be considered torture.
8 C.F.R. § 208.18(a)(3). When invoking the protections of this treaty, a
petitioner has the burden of proof to show that it is "more
likely than not" that he will be tortured, as defined above,
upon removal to the said country. 8 C.F.R. § 208.16(c)(2)
(Burden of proof is on the applicant to "establish that it is
more likely than not that he or she would be tortured . . .").
The IJ or BIA may rely on the applicant's testimony alone if
it is credible. 8 C.F.R. § 208.16(c)(2). If the applicant's
testimony alone is not credible, then the administrative
adjudicator shall consider all evidence relevant to the
possibility of future torture, which may include evidence of
past torture, evidence of gross, flagrant or mass violations of
human rights within the country of removal, and any other
relevant information regarding conditions in the country of
removal. 8 C.F.R. § 208.16(c).
Under CAT, the IJ must first determine if the petitioner has
shown that it is more likely than not that he will be tortured
upon return to the country of removal. If the petitioner has
satisfied his burden of proof, then the IJ may grant either a
Withholding of Removal or a Deferral of Removal. The withholding
of removal has limited application and is subject to conditions;
it is not available to aliens considered to be dangers to
society, such as convicted criminal felons.
8 C.F.R. § 208.16(d)(2) (Withholdings of removals are subject to mandatory
denials if the alien falls under § 241(b)(3)(B) of the INA),
208.16(d)(3) (Only one exception exists and its application is
limited to offenders tried before April 1, 1997.).*fn11 A
deferral of removal may be available to aliens whose request for
a withholding of removal would be subject to a mandatory denial.
8 C.F.R. § 208.16(d)(2), 208.16(d)(3), 208.17(a). Since
Petitioner's prior convictions constitute "serious crimes," a
deferral of removal is the only form of relief available to him.
Evaluation of Evidence
The evidence put forth in support of Petitioner's claim under
CAT regarding potential torture in Haiti is comprised of
findings of fact that this Court should review under the
deferential substantial evidence standard. Because this Court
finds the INS' holding was supported by substantial evidence,
Petitioner's application for a writ of habeas corpus will be
At his removal hearing and appeal to the BIA, Petitioner put
forth evidence from the U.S. Department of State, Amnesty
International, media sources and personal contacts. While these
articles do show that Haiti is a poor, unstable, war torn
country, they do not suggest that the Petitioner, himself, will
personally suffer torture upon return to Haiti. Mr. Julmiste has
cited no evidence showing he has been active in any of the
political, economic or social happenings in Haiti. It is
possible that Mr. Julmiste will serve a lengthy prison term in
Haiti, as a consequence of his criminal offenses in the U.S.,
but that possibility alone does not fall within the definition
of torture. While the CAT can protect an individual from removal
to a country when he has shown it is more likely than not he
will be tortured, the CAT does not provide protection from
general ills, such as corruption, poverty and dilapidated prison
conditions. See e.g. Sevoian v. Ashcroft, 290 F.3d 166, 175-76
(3d Cir. 2002) (State Department Report showing that prisoners
are routinely abused and certain political defendants have been
tortured in the past did not "suggest whether much or any of the
`beating and abuse' . . . [would match] the extreme level that
violates the Convention Against Torture.").
Petitioner has provided letters from his family and a
political refugee named Alerte Noel which contend that Mr.
Julmiste is in danger because his parents have offered support
to Ms. Noel. Mr. Julmiste's arguments that by name association
alone he will be tortured in retribution for his parents
involvement with Ms. Noel are unpersuasive and do not satisfy
his burden of proof. See e.g., Sevoian, 290 F.3d at 176
(Second hand testimony regarding abuses against similarly
situated third parties is not sufficient, "in light of other
evidence, to outweigh the deference" accorded to the BIA.);
Merisier, 2000 WL 1281243, at * 12 (S.D.N.Y. Sept. 12, 2000)
("Haiti's violent past, and even [Petitioner's] relatives'
alleged participation in it, is not, without more, substantial
grounds for believing that removing [Petitioner] to Haiti would
likely result in his being tortured.").
While the BIA recognized the dangers and hardships associated
with living in Haiti, it properly concluded that the Petitioner
failed to produce sufficient evidence to suggest a likelihood
that he, himself, would be subjected to torture. In spite of the
unfortunate consequences*fn12 that may befall the Petitioner,
living without his family in a war torn, politically unstable
and poor country, neither the federal immigration laws nor the
treaty obligations under CAT provide relief for him.
Because the BIA's decision was based on substantial evidence
and the Petitioner failed to make a sufficient showing that his
removal to Haiti would likely result in his being subjected to
torture of the type contemplated by the CAT, the Court will deny
Ineffective Assistance of Counsel Claim
This Court dismisses Petitioner's claim of ineffective
assistance of counsel on the merits. A respondent has a right to
be represented by counsel, "at no expense to the government",
see 8 U.S.C.A. 1229a(b)(4)(a), but since a deportation hearing
is civil, and not criminal, an alien is not guaranteed appointed
counsel. See e.g., INS v. Lopez-Mendoza, 468 U.S. 1032, 1038,
104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) ("Consistent with the
civil nature of the proceeding various protections that apply in
the context of a criminal trial do not apply in a deportation
hearing."); Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir.
1993). Consequently, an alien must make a claim of ineffective
assistance of counsel under the due process clause of the Fifth
Amendment to the U.S. Constitution, and not under the Sixth
Amendment. Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.
2001); Michelson v. INS, 897 F.2d 465 (10th Cir. 1990).
Despite the fact that there is no guarantee of counsel, when
one does appear on behalf of an alien, some courts have found
the counsel's incompetence may prejudice the alien and "may make
the hearing fundamentally unfair and give rise to a Fifth
Amendment due process objection." Hernandez v. Reno,
238 F.3d 50, 55 (1st Cir. 2001). See also Pop v. INS, 279 F.3d 457, 460
(7th Cir. 2002) ("In this circuit, however, whether there exists
a constitutional right to effective assistance of counsel in
immigration cases is virtually foreclosed. . . . [and if the
claim is not foreclosed, then the alien must] at a minimum show
actual prejudice."). In order to succeed, an alien must show
more than mere ineffective assistance. Rodriguez-Lariz v. INS,
282 F.3d 1218, 1226 (9th Cir. 2002). Indeed, an alien must
establish that his counsel was so ineffective as to have created
prejudice by impinging upon the fundamental fairness of the
hearing. Id. The Third Circuit, citing the First Circuit Court
of Appeals, found ineffective assistance of counsel may amount
to a denial of due process "if the alien was prevented from
reasonably presenting his case." Xu Yong Lu, 259 F.3d at 131
(quoting Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988)).
In the instant case, Petitioner claims that counsel could have
applied for other relief, but Petitioner's belief that such
relief was available to him is misplaced and without legal
basis. See Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th
Cir. 1999) (Taking a restrictive approach, holding since waiver
relief is so speculative, "an attorney's deficient
representation does not deprive an alien of due process if the
deficient representation merely prevents the alien from being
eligible for suspension of deportation."). Petitioner also
claims that counsel erred by failing to produce certain
evidence, such as a 60 minutes videotape on Haiti, and that as a
consequence of this error, Petitioner was prejudiced. These
allegations are without merit, as Petitioner was able to
reasonably present his case. See Xu Yong Lu, 259 F.3d at 131.
Mr. Julmiste has not shown his counsel's performance had been
deficient or that the degree of deficiency was so severe that
Petitioner was prejudiced and denied a fair trial.
Because the decision to order removal was supported by
substantial evidence and consistent with the CAT, and because
the Petitioner has failed to put forth sufficient
evidence to support his claim, Petitioner's application for a
writ of habeas corpus will be denied and all additional requests
for relief will not be considered.