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Fourth Circuit Court of Appeals Denies Haitian Immigrant’s Petition for Deferral of Removal Under the Convention Against Torture

rulingThe Fourth Circuit Court of Appeals recently denied the petitions for deferral of removal under the Convention Against Torture (“CAT”) by Wilerms Oxygene, a Haitian immigrant who, together with his family, entered the United States in 1994 after fleeing from political violence in his country. His family had experienced being the target of death squads, who fired on their family house while they were inside. In 1996, the United States granted him lawful permanent resident status.

However, In 2001, Oxygene was convicted by a Virginia court for a series of state crimes, which included grand larceny, burglary, robbery, and use of a firearm for a felony charge. As such, the Department of Homeland Security (DHS) initiated removal proceedings against him. While Oxygene conceded that his previous criminal offenses qualified him for removal, he applied for deferral of removal under the provisions of the CAT.

Appearing in court before an Immigration Judge (IJ), Oxygene related his family’s experiences in Haiti and expressed fears over facing indefinite detention in a Haitian prison, where he said he would not receive the proper medical care needed to prevent his latent tuberculosis from activating itself. Both he and his sister testified that they had no family in Haiti who could support them by providing food, medicine, or payment to release him from detention. Records from the State Department, which Oxygene presented to substantiate his contentions, show the deplorable conditions in Haiti’s prisons. The IJ also recognized that the “record evidence even indicates that there have been some incidents of mistreatment of Haitian prisoners so severe as to constitute torture.”

Despite these findings, the IJ still denied Oxygene’s petition for deferral of removal under the provisions o the CAT. The IJ found that Oxygene had failed to prove the strong likelihood of him facing torture upon his return to Haiti. The IJ thus ruled that application of BIA precedent, In re J-E-, 23 I. & N. Dec. 291 (BIA 2002) (en banc), ultimately ruled out Oxygene’s argument that Haiti’s policy of detaining deportees and the reported condition of is prisons fall within the definition of torture under the CAT.

Oxygene would take his case to the Board of Immigration of Appeals (BIA), requesting a review of the removal order and a remand of the case in light of his recent diagnoses of PTSD and depression. The BIA, however, would affirm the order, denying the remand notion for lack of evidence pertaining to the diagnoses of mental problems.

After taking his case to the Fourth Circuit Court of Appeals, the found enough reason to reject Oxygene’s arguments that the IJ and BIA made a legal error by following the precedent set in In re J-E- and denying his petition for deferral of removal under the CAT.

Oxygene’s predicament is a classic example of how a seemingly solid argument against deportation is no assurance for its prevention. If you or a loved one is facing this same legal matter get in touch with Lyttle Law Firm today to learn about your rights. Visit our website or call us at 512-215-5225.

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