holding that a failure to challenge the denial of a form of relief results in waiver of the claim
How later courts described this case
- holding that a failure to challenge the denial of a form of relief results in waiver of the claim
- remanding to consider circumstantial evidence that may establish willful blindness of a government’s acquiescence to likely torture
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 20-2484
__________
STEVENS GUILMEUS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
__________
On Petition for Review from the
Board of Immigration Appeals
No. A059-997-699
Immigration Judge: Honorable Mirlande Tadal
__________
Argued on March 29, 2022
(Opinion Filed: July 19, 2022)
Before: RESTREPO, ROTH and FUENTES, Circuit Judges
Upnit K. Bhatti, Esq. [argued]
Melanie L. Bostwick, Esq.
Orrick Herrington & Sutcliffe
1152 15th Street, N.W.
Columbia Center
Washington, DC 20005
Counsel for Petitioner
William P. Barr, Esq.
Dana M. Camilleri, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Jonathan A. Robbins, Esq. [argued]
United States Department of Justice
1100 L Street, N.W.
Washington, DC 20530
Counsel for Appellee
__________
OPINION*
__________
RESTREPO, Circuit Judge.
Stevens Guilmeus, a native and citizen of Haiti, petitions for review of the decision
by the Board of Immigration Appeals (“BIA”) to dismiss his appeal from the Immigration
Judge’s (“IJ”) denying withholding of removal and protection under the Convention
Against Torture (“CAT”). For the following reasons, the petition will be denied.
I.1
Guilmeus entered the United States in 2009 at the age of eighteen as a lawful
permanent resident. In 2019, the Department of Homeland Security (“DHS”) placed him
in removal proceedings after Petitioner was detained and charged with removability
following criminal convictions in 2018.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
As we write for the benefit of the parties, we set out only the facts necessary for the
discussion that follows.
2
Before the IJ, Guilmeus applied for protection under CAT on the basis that the
Haitian government would likely acquiesce to the torture he would suffer by his relatives,
due to his sexual orientation.2 The IJ found Guilmeus’s testimony credible and observed
that his mother and sister had provided testimony and affidavits corroborating aspects of
his testimony. The IJ determined, however, that CAT relief was not warranted because
Guilmeus had not demonstrated eligibility. The IJ observed that Guilmeus “testified that
he does not believe any government actor would harm him.” Appx. 8. In addition,
Guilmeus never reported any threats to authorities, in Haiti or the United States.3 The IJ
did address the country condition evidence offered by Guilmeus, noting that “some civil
leaders notice[d] a marked improvement in the efforts of the Haitian national police.” Id.
On appeal, the BIA affirmed and adopted the IJ’s decision. The BIA agreed that
Guilmeus failed to demonstrate eligibility. Guilmeus timely filed this petition for review.
2
Guilmeus also applied for asylum and withholding of removal. The IJ found that
Guilmeus was barred from eligibility for asylum and withholding of removal for having
been convicted of a particularly serious crime, and the BIA upheld that decision. Because
Guilmeus’s briefs to this Court do not present any arguments concerning the withholding
of removal based on his previous convictions, the claim is waived, and we will not discuss
it further. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004) (holding that a failure to
challenge the denial of a form of relief results in waiver of the claim).
3
We note that a failure to report does not “preclude[] an applicant from establishing that
the government was willfully blind.” Myrie v. Att’y Gen., 855 F.3d 509, 518 (3d Cir.
2017). However, here the IJ and BIA simply noted that Guilmeus had not reported any
threats to make the point that there was no evidence the police were aware of any problems
Guilmeus faced in Haiti.
3
II.4
To qualify for relief under CAT, Guilmeus must establish that “it is more likely than
not that he [ ] would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2); see Kaplun v. Att’y Gen., 602 F.3d 260, 268 (3d Cir. 2010). Torture is
defined as “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.” 8 C.F.R. § 1208.18(a)(2). Determining whether Guilmeus faces likelihood of
future torture is “a mixed question of law and fact” which requires “the IJ [to] address two
questions: ‘(1) what is likely to happen if the petitioner is removed; and (2) does what is
likely to happen amount to the legal definition of torture?’” Myrie v. Att’y Gen., 855 F.3d
509, 516 (3d Cir. 2017) (quoting Kaplun, 602 F.3d at 271).
Guilmeus argues that the IJ and BIA, “without any explanation,” erred by
“ignor[ing] the extensive record evidence”. Guilmeus Br. 2. Specifically, Guilmeus
argues that both the IJ and BIA willfully ignored country condition evidence demonstrating
“widespread and growing violence towards LGBT identified individuals.” Id. at 20.
While he acknowledges that the IJ and BIA “credited [his] fear of torture” he contends the
BIA (and IJ) “did not provide any reasoning for its decision to ignore such strong
4
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8
U.S.C. § 1252(a). For findings of fact, the BIA is required to apply a clearly erroneous
standard of review to the IJ’s determinations, 8 C.F.R. § 1003.1(d)(3)(i), and a de novo
standard of review to the IJ’s decisions of law, 8 C.F.R. § 1003.1(d)(3)(ii). We review de
novo whether the agency properly analyzed the applicant’s CAT protection claim. See
Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir. 2019).
4
circumstantial evidence showing that public officials in Haiti will acquiesce to Mr.
Guilmeus’s torture.” Id. at 20, 24.
Guilmeus argues that the failure to acknowledge the country condition evidence
constitutes error. Guilmeus points to Myrie and asks this Court to remand the case with
instructions to the BIA to consider the evidence. See 855 F.3d at 518 (remanding to
consider circumstantial evidence that may establish willful blindness of a government’s
acquiescence to likely torture).
We disagree. To the contrary, we find that the BIA (and the IJ) did in fact consider
the evidence Guilmeus offered to support his CAT claim. “In order for us to be able to
give meaningful review to the BIA’s decision, we must have some insight into its
reasoning.” Id. at 517 (citing Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003)). We
may not “re-weigh evidence or . . . substitute [our] own factual determinations for those of
the agency.” Thayalan v. Att’y Gen., 997 F.3d 132, 143 (3d Cir. 2021). To support its
decision to affirm the IJ, the BIA directly addressed the evidence Guilmeus submitted. For
example, the BIA noted that “the Country Report states that there are no laws criminalizing
consensual same-sex conduct between adults in Haiti [ ]. On the contrary, the [IJ’s]
determination . . . noted a marked improvement in the efforts . . . to address the needs of
the LGBTI community . . .”. Appx. 8 (internal citations omitted). The BIA therefore did
not err by failing to properly consider the record evidence in affirming the IJ’s decision.
III.
For the foregoing reasons, we will accordingly deny the petition for review.
5