Lyglenson Lemorin vs U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 8, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10165
Non-Argument Calendar
________________________
Agency No. A043-677-619
LYGLENSON LEMORIN,
a.k.a. Brother Levi,
a.k.a. Brother Luke,
a.k.a. Brother Levi-El,
a.k.a. Brother Levite,
llllllllllllllllll lllPetitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllllRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 8, 2011)
Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

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PER CURIAM:
Lyglenson Lemorin, a Haitian national, petitions for review of a final order by
the Board of Immigration Appeals (“BIA”) denying his appeal challenging (1) the
Immigration Judge’s (“IJ”) denial of his motion to terminate the removal proceedings
against him; (2) the IJ’s denial of relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),
8 C.F.R. § 208.16(c); and (3) the IJ’s alleged deprivations of various due process
rights during the proceedings. On appeal, Lemorin argues that: (1) substantial
evidence does not support the BIA’s and IJ’s conclusion that based on his
involvement with the Moorish Science Temple (“MST”) in Miami, he was removable
under the three grounds provided by the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1182(a)(3)(B)(i), and listed in the Notice to Appear (“NTA”); (2) the BIA
and IJ violated his due process rights; (3) the BIA and IJ violated the Double
Jeopardy Clause under the Fifth Amendment; and (4) substantial evidence does not
support the BIA’s and IJ’s finding that he was not entitled to CAT relief. After
thorough review, we deny the petition.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s
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reasoning, we review the IJ’s decision as well. Id.
We review constitutional challenges de novo. Ali v. U.S. Att’y Gen., 443 F.3d
804, 808 (11th Cir. 2006). We review the BIA’s interpretation of applicable statutes
de novo, but defer to the BIA’s interpretation if it is reasonable. Al Najjar, 257 F.3d
at 1284. We review factual findings under the substantial-evidence test. Forgue
v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under the substantial-
evidence test, we must affirm the IJ’s and BIA’s decisions if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Al Najjar, 257 F.3d at 1284 (citation omitted). “To reverse a factual finding . . . , [we]
must find not only that the evidence supports a contrary conclusion, but that it
compels one.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001).
The fact that evidence in the record may also support a conclusion contrary to the
administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft, 386
F.3d 1022, 1027 (11th Cir. 2004) (en banc).
A party abandons a claim by not raising it or by only making passing references
to the issue on appeal. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005). Also, Federal Rule of Appellate Procedure 28 provides that the argument
section of an appellant’s brief must contain “appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
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appellant relies.” Fed.R.App.P. 28(a)(9)(A); see also Kelliher v. Veneman, 313 F.3d
1270, 1274 n.3 (11th Cir. 2002) (holding that, in an employment-discrimination
appeal, the plaintiff waived any challenge to an issue by only mentioning it in the
summary of the argument section of the initial brief). Finally, we lack jurisdiction to
consider claims not raised and therefore not exhausted before the BIA.
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); see 8
U.S.C. § 1252(d)(1).
First, we are unpersuaded by Lemorin’s argument that substantial evidence
does not support the BIA’s and IJ’s finding that he was removable under the three
grounds provided in the INA. Under the INA, an admitted alien is deportable if he
has engaged in terrorist activities described in 8 U.S.C. § 1182(a)(3). 8 U.S.C. §
1227(a)(4)(B). In relevant part, 8 U.S.C. § 1182(a)(3) targets an alien (1) who has
engaged in a terrorist activity, (2) whom a consular officer, the Attorney General, or
the Secretary of Homeland Security knows, or has reasonable ground to believe, is
engaged in or is likely to engage in any terrorist activity, or (3) who is a member of
a “Tier III” terrorist organization, unless the alien can demonstrate by clear and1
convincing evidence that he did not know, and should not have known, that the
A “Tier III” terrorist organization is a group consisting of two or more individuals who1
have engaged in statutorily defined terrorist activities. 8 U.S.C. § 1182(a)(3)(B)(vi)(III).
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organization was a terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(i)(I), (II), & (VI).
The statute broadly defines the act of engaging in terrorist activity as including, in
relevant part, (1) committing, under circumstances indicating an intention to cause
death or serious bodily injury, a terrorist activity; (2) preparing or planning a terrorist
activity; (3) gathering information on potential targets for terrorist activity; and (4)
committing an act that the actor knows, or reasonably should know, that affords
material support (a) for the commission of a terrorist activity, (b) to any individual
who the actor knows or reasonably should know has committed or plans to commit
a terrorist activity, or (c) to a Tier III terrorist organization, if the alien cannot satisfy
the lack-of-knowledge exception. 8 U.S.C. § 1182(a)(3)(B)(iv); see Khan v. Holder,
584 F.3d 773, 777 (9th Cir. 2009) (persuasive authority noting that the statute defines
the “engag[ing] in terrorist activity” phrase broadly).
On this record, substantial evidence supports the BIA’s and IJ’s conclusion that
Lemorin was removable under all three statutory grounds listed in the NTA. First,
the record shows that Lemorin actually engaged in terrorist activities, in that he had
acted with the intent to cause death or seriously bodily injury, and that he had
provided material support to the MST, and its leader, Narseal Batiste. As the record
shows, in March 2006, Batiste, Lemorin, and five other MST members pledged
allegiance to al Qaeda and discussed plans to blow up the Sears Tower in Chicago,
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Illinois, and various FBI buildings nationwide. Moreover, even assuming that
Lemorin only had committed two discrete acts of terrorism (ie., two oath ceremonies
in March 2006), as he argues, those two acts still show that he had engaged in
terrorist activities within the meaning of the INA, 8 U.S.C. § 1182(a)(3)(B)(i)(I).
Second, for these same reasons, there are reasonable grounds to believe that he
was engaged in terrorist activities. Third, substantial evidence shows that Lemorin
was a “member” of the MST group led by Batiste, because its shows that Lemorin
knew the nature of the group and associated with it in several meaningful ways. And
as for Lemorin’s claim that MST was a bona fide national religious group and not a
terrorist organization, we lack jurisdiction to address that argument because he failed
to exhaust the issue by not raising it before the BIA. See Amaya-Artunduaga, 463
F.3d at 1250.
Next, we find no merit in Lemorin’s claims that the BIA and IJ committed the
following due process violations: (1) the IJ initially sustained only two of the three
removal charges, but subsequently considered the government’s motion to clarify and
amended the order to sustain all three removal charges, after the IJ had instructed the
parties not to file further motions; (2) the BIA denied a joint motion for a second
extension of time and deprived him of a reasonable time to adequately prepare a brief;
(3) the IJ failed to rule on his numerous evidentiary objections to the government’s
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submissions during the hearings, other than noting that hearsay evidence was
admissible; (4) the BIA denied his challenge in this regard by merely repeating the
standard of admissibility; and (5) the IJ relied “exclusively” on evidence from his
previous criminal trial, such as the trial transcript and expert testimony, particularly
due to the fact that he was acquitted.
“[T]he Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). Accordingly, aliens must
receive “notice and opportunity to be heard in their removal proceedings.”
Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). To
prevail on a due process challenge, an alien must show substantial prejudice such that
the outcome would have differed “in the absence of the alleged procedural
deficiencies.” Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003).
“Due process is satisfied only by a full and fair hearing.” Ibrahim v. U.S. INS,
821 F.2d 1547, 1550 (11th Cir. 1987). The INA provides that “the alien shall have
a reasonable opportunity . . . to present evidence on the alien’s own behalf . . . .” 8
U.S.C. § 1229a(b)(4)(B). Under federal regulation, an alien in custody has 21 days
to file a brief to the BIA, but, “upon written motion, [the BIA] may extend the period
for filing a brief or a reply brief for up to 90 days for good cause shown.” 8 C.F.R.
§ 1003.3(c)(1). “In the interests of fairness and the efficient use of administrative
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resources,” extension requests are disfavored. See BIA Practice Manual, § 4.7(c)(i).
Accordingly, the BIA’s policy is to grant a first briefing extension, but only to grant
second requests “in rare circumstances.” Id. § 4.7(c)(i)(A).
It is well settled that in administrative proceedings, the Federal Rules of
Evidence do not apply. Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir.
2010). “Uncontradicted hearsay evidence is admissible in deportation proceedings
if it is probative and its use is not fundamentally unfair so as to deprive petitioner of
due process.” Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978) (quotation
omitted); see also Zahedi v. INS, 222 F.3d 1157, 1164 n.6 (9th Cir. 2000)2
(persuasive authority holding that, in immigration proceedings, documentary
evidence is admissible if it is probative and its admission is fundamentally fair).
Here, the BIA and IJ did not commit any due process violations because (1)
Lemorin had notice and an opportunity to respond to the government’s motion for
clarification, which the IJ considered in amending the removal order to sustain all
three charges in the NTA; (2) the BIA did not err in denying his second request to
extend the briefing deadline because he failed to show good cause; and (3) the IJ
properly addressed all of his evidentiary objections during the proceedings by stating
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we2
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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that hearsay evidence was generally admissible in immigration proceedings. In
addition, Lemorin has failed to exhaust the argument that the IJ improperly relied on
records from his criminal trial because he did not raise the issue in front of the BIA.
We also reject Lemorin’s argument that he was subjected to double jeopardy
when the government initiated removal proceedings against him based on the same
terrorism charges of which he was acquitted in a previous criminal trial. Under our
law, deportation proceedings cannot form the basis of a double-jeopardy claim
because double jeopardy arises in criminal proceedings, and deportation is a civil
matter. De La Teja v. United States, 321 F.3d 1357, 1364-65 (11th Cir. 2003)
(rejecting an alien’s argument that his continuing detention pending the entry of a
final order of removal violates the prohibition against double jeopardy because
deportation proceedings “cannot form the basis for a double jeopardy claim” because
“they are inherently civil in nature”); see Garces, 611 F.3d at 1347 (holding that
immigration proceedings are not criminal trials and involve a considerably less
stringent standard of proof); Cadet v. Bulger, 377 F.3d 1173, 1196 (11th Cir. 2004)
(holding that the Eighth Amendment’s prohibition against cruel and unusual
punishment is criminal in nature, and, thus, does not apply to deportation proceedings
because deportation is neither criminal nor punitive, in that it is “purely civil”). But
in any event, we do not address Lemorin’s double-jeopardy argument because he only
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raises that argument for the first time on appeal and failed to exhaust the issue in front
of the BIA.
Finally, we disagree with Lemorin’s claim that the BIA and IJ erred in denying
his application for withholding of removal based on CAT relief because substantial
evidence shows that he would be tortured by the Haitian government upon
deportation. Relief under CAT is a type of mandatory remedy of withholding of
removal. See 8 C.F.R. § 208.16(c). To qualify for CAT relief, the applicant carries
the burden of proof to establish “‘that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.’” Sanchez Jimenez v.
U.S. Att’y Gen., 492 F.3d 1223, 1239 (11th Cir. 2007) (quoting 8 C.F.R.
§ 208.16(c)(2)). In turn, “torture” is defined as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person . . . 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). Further, federal regulations provide that “[t]orture is an
extreme form of cruel and inhuman treatment and does not include lesser forms of
cruel, inhuman or degrading treatment or punishment that do not amount to torture.”
Id. § 208.18(a)(2). “In order to constitute torture, an act must be specifically intended
to inflict severe physical or mental pain or suffering.” Id. § 208.18(a)(5).
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On the record before us, substantial evidence supports the BIA’s and IJ’s denial
of CAT relief. First, because the knowledge of Lemorin’s expert, Michelle Karshan,
was solely derived from her experience before 2004, because Karshan failed to
submit any evidence corroborating her alleged expertise in anti-terrorism efforts of
the Haitian government, and because Karshan’s testimony that the Haitian
government employed special torture squads to interrogate detainees is contradicted
by the Department of State Report of Haiti in both 2007 and 2008, substantial
evidence supports the BIA’s and IJ’s decision to qualify Karshan as a limited witness
in areas regarding Haitian country conditions and the experiences of criminal
deportees in Haiti, and to give less weight to her testimony in the area of
counter-terrorism efforts by the Haitian government. Moreover, because the
government’s expert, Maurice Geiger, took a total of 44 trips to Haiti from 1995 to
2008, while he interviewed numerous Haitian detainees, deportees, and government
officials, and because Geiger had firsthand experience observing the treatment of
deportees and detainees in Haiti, substantial evidence supports the BIA’s and IJ’s
decision to give weight to Geiger’s testimony, as a limited expert on Haitian prison
conditions. And lastly, because Lemorin failed to satisfy his burden of showing that
he would more likely than not be tortured by the Haitian government upon
deportation, substantial evidence supports the BIA’s and IJ’s denial of Lemorin’s
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application for CAT relief.
PETITION DENIED.
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