Ralph Lysaire v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4627
___________
RALPH LYSAIRE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A042-313-309)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 23, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion filed: March 5, 2010)
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OPINION
___________
PER CURIAM
Ralph Lysaire, a citizen of Haiti, became a lawful permanent resident of the United
States in 1990. In 2004, he was convicted in New Jersey of conspiracy to distribute
cocaine. In 2007, the Government charged Lysaire as removable for having committed

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an aggravated felony because of his drug trafficking crime. Conceding removability,
Lysaire sought relief from removal under the Convention Against Torture (“CAT”).
The Immigration Judge (“IJ”) denied Lysaire’s application. Lysaire appealed to
the Board of Immigration Appeals (“BIA”) and also moved the BIA to remand the matter
to the IJ for consideration of new evidence. The BIA dismissed the appeal, concluding
that Lysaire did not establish his CAT claim. However, the BIA granted the motion to
remand for the IJ to consider Lysaire’s additional evidence. On remand, the IJ considered
reports of country conditions, statements of family members, Lysaire’s medical (including
psychiatric) history, his criminal history, and testimony and documentary evidence from
an expert witness, Michelle Karshan. The IJ again denied the CAT claim. The BIA
dismissed Lysaire’s new appeal, holding that he had not shown that it was more likely
than not that he would be tortured in Haiti.
Lysaire presents a petition for review, which the Government moves to dismiss for
lack of jurisdiction. Because the basis for Lysaire’s removal is his conviction for an
aggravated felony, the Court’s jurisdiction is limited by the REAL ID Act; however, the
Court retains jurisdiction over constitutional claims and questions of law. See Pierre v.
Attorney Gen. of the United States, 528 F.3d 180, 184 (3d Cir. 2008) (en banc) (citing 8
U.S.C. § 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Attorney Gen. of the United
States, 473 F.3d 58, 63 (3d Cir. 2007) (citing Kamara v. Attorney Gen. of the United
States, 420 F.3d 202, 210-11 (3d Cir. 2005), for the proposition that the “jurisdictional

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Furthermore, we cannot consider the new evidence that Lysaire seeks to submit. See1
8 U.S.C. § 1252(b)(4); see also Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004).
Accordingly, we grant the Government’s motion to strike the extra-record evidence.
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grant regarding appeals by aggravated felons extends not just to legal determinations but
also to application of law to facts”). As the Government contends, we cannot revisit the
factual findings in the record. However, through the two main arguments Lysaire1
details, he presents the legal question whether the BIA erred in concluding that he did not
meet his burden to show his eligibility for CAT relief. Accordingly, we have jurisdiction
over his petition. See, e.g., Pierre, 528 F.3d at 184.
Deferral of removal under CAT is mandatory if an alien can show that it is more
likely than not that he or she will be tortured. See Pierre, 528 F.3d at 186 (citing 8 C.F.R.
§ 208.17(a)). An act is torture if it is inflicted, by or at the instigation or with the consent
or acquiescence of a public official or other person acting in an official capacity, for
obtaining information or a confession, for punishment, for intimidation or coercion, or for
any reason based on discrimination of any kind. See id. at 189. The imprisonment of
criminal deportees in Haiti in objectively deplorable brutal and harsh conditions generally
does not constitute torture. See id. However, if authorities place an individual in such
conditions in order to cause severe pain and suffering, such an act may rise to the level of
torture if the other CAT requirements are met. See id. at 190.
Lysaire was not entitled to CAT relief merely because he is subject to detention as
a criminal deportee on his return to Haiti, even though the conditions of detention in

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Haitian prisons are terrible. See Pierre, 528 F.3d at 189. However, Lysaire also claimed,
as he notes on appeal, that he would face torture in prison because of his mental illness.
As the IJ noted, Lysaire presented evidence of intermittent psychiatric episodes and
psychological problems. (In the record are diagnoses of paranoid schizophrenia and
polydrug dependence. See, e.g., R. 546. Although he had been treated with medicine in
the past, Lysaire was not taking medicine when he appeared before the IJ. R. 439.)
Nonetheless, Lysaire did not meet the standard for CAT relief under prevailing law.
In addition to describing the conditions in Haiti and Haitian prisons generally,
Lysaire’s expert, Karshan, explained that mentally ill criminal deportees are held without
food, water, medical care, or necessary medicines. R. 73, 87. There is no suicide watch
system or empathy for those with mental illnesses. R. 73, 87-88. If a mentally ill prisoner
brings medicine with him, he is left to self-medicate and is vulnerable to theft of his
medicine. R. at 88. These conditions, while objectionable, are like those faced by all
detainees; they are not targeted to Lysaire, as a person with a mental illness, in particular.
Cf. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir. 2008) (holding that the conditions
of the Mexican mental health system, which were created by “officials’ historical gross
negligence and misunderstanding of the nature of psychiatric illness,” do not amount to
torture).
Karshan also testified that Lysaire will be tortured by prison officials – for
example, they will withhold his medication when they realize he needs it, “so they can

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elicit money from his family in exchange for his eventual release.” R. 220. Karshan
stated that prison officials would think Lysaire and his family have money because they
are from the United States. R. 219. (Most of Lysaire’s family came to the United States;
his mother remains in Haiti, but Lysaire says that he is not in touch with her.) However,
as the BIA concluded, based on Karshan’s testimony, any mistreatment would not be to
discriminate, punish, or intimidate. It would be extortion for pecuniary gain.
Karshan also noted that mental illness is not accepted in Haitian culture and is
sometimes attributed to voodoo. R. 90. She stated that other prisoners and prison staff
discriminate against the mentally ill because they believe the afflicted are under a curse or
a spell. R. 90. Lysaire continues to press that his mental illness and resulting behaviors
will make him a target for abuse in detention. However, as the BIA noted, the 2007
Country Report on Human Rights Practice in the record (beginning on page 234), does
not mention discrimination against the mentally ill (although it mentions the lack of food,
water, sanitation, etc., in the overcrowded prisons). Given the Country Report and
Karshan’s lack of testimony about how Lysaire specifically would singled out for torture,
the BIA did not err in concluding that Lysaire did not meet the requirements for CAT
relief.
For these reasons, we deny the motion to dismiss and grant the motion to strike the
extra-record evidence, and we will deny the petition for review.
5.

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