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Toussaint v. Attorney General of the United States

July 26, 2006; as amended September 29, 2006

EDNA TOUSSAINT,
v.
PETITIONER ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of a decision and order of the Board of Immigration Appeals (BIA No. A30-139-224).

The opinion of the court was delivered by: Greenberg, Circuit Judge

PRECEDENTIAL

Argued June 13, 2006

BEFORE: FISHER, GREENBERG, and LOURIE,*fn1 Circuit Judges

OPINION OF THE COURT

I. INTRODUCTION

Edna Toussaint petitions for review of a final decision and order of the Board of Immigration Appeals ("BIA") issued on January 6, 2003, ordering her removal to Haiti. In reaching its decision the BIA reversed a decision and order of an immigration judge ("IJ") granting Toussaint withholding of removal under the Immigration and Nationality Act ("INA") and under the Convention Against Torture ("CAT"). We will deny the petition for review.

II. FACTS AND PROCEDURAL HISTORY

Toussaint was born in Haiti in 1954 but entered the United States as a lawful permanent resident in 1970 and since has not returned to Haiti. She is a widow whose husband died in 1992, and she has six children who live in the United States and are United States citizens.

In March 2001 the Supreme Court of the State of New York convicted Toussaint on two counts of criminal sale of a controlled substance (cocaine) and one count of attempted criminal sale of a controlled substance (cocaine) causing the Immigration and Naturalization Service ("INS") to initiate removal proceedings against her. In those removal proceedings, which led to the petition in this case, Toussaint conceded her removability but sought asylum and withholding of removal under the INA and protection under the CAT. Toussaint predicated her claim on an assertion that she would be persecuted and mistreated on account of her deceased father's and her political views if she returned to Haiti.*fn2 In this regard she claimed that her father, who had been an official in the former Duvalier regime in Haiti, had been detained and tortured in a Haitian prison from 1988 to 1996. Toussaint also said that she "ha[d] been threatened with death were [she] to return to Haiti" by two unidentified men in Miami, Florida. In her application for asylum, however, she did not explain the reason the men gave for making these statements beyond indicating that it was because of her "political views." See J.A. at 226.

The original IJ entertaining this matter found that Toussaint was ineligible for relief because she had committed "particularly serious" crimes, but he nevertheless agreed to consider further the issue of deferral of removal. J.A. at 88. At a subsequent hearing, however, a different IJ ruled that Toussaint's offenses were not particularly serious, and thus he considered her claims for asylum and withholding of removal on the merits.*fn3 The second IJ ultimately denied her claim for asylum but granted her claim for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and, alternatively, granted Toussaint withholding of removal under the CAT. In ordering the withholding of removal, the IJ relied on State Department country reports, Toussaint's "credible testimony" that "[s]he was threatened by men who were aware of her father," J.A. at 50, and prior decisions in which the BIA recognized the "likelihood of torture of criminal detainees [in] Haiti." J.A. at 55. The IJ further explained:

[I]t's highly dubious that the government of Haiti would alter its de facto policy of ill-treatment by treating this particular respondent [Toussaint] more humanely than other citizens under similar circumstances. I would also note, and this is very important I believe, that [Toussaint] has no family members in Haiti. There is evidence that if a criminal detainee is removed to Haiti and is able to rely on friends, or particularly, family, to bribe the guards . . . it usually leads to the release of that person, primarily through the payment of bribes. [Toussaint] has no one in Haiti to do that for her.

J.A. at 56.

The INS appealed from the decision and order of the IJ to the BIA, which reversed the decision and order of the IJ and ordered Toussaint's removal to Haiti. In reaching its conclusion, the BIA first determined that Toussaint was not entitled to withholding of removal under section 241(b)(3)(A) of the INA because the BIA "was unable to find that it is more likely than not that [Toussaint] will be persecuted on account of an enumerated ground." J.A. at 7. The BIA explained: "The reason for her father's arrest and mistreatment is unclear. We further note that he was released from prison, and apparently lived for approximately 2 more years there without incident." Id. When reaching its conclusion the BIA was aware of Toussaint's testimony that "she was approached in Miami, Florida, by unknown individuals who . . . warned her that she would be in danger if she returns to Haiti." Id. Nevertheless, it explained that it could not "identify any background or compelling testimonial evidence that convinces us that it [is] more likely than not that [Toussaint] will be persecuted in her country." Id. In the final paragraph of its decision, the BIA denied ...


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