Court Slams U.S. for Ignoring Torture Fears

(CN) - The 9th Circuit on Wednesday slammed the government for rejecting a Haitian immigrant's claims that he would be tortured and likely killed if deported to his home country's hellish prison system.

The federal appeals court in San Francisco unanimously granted review of Jean Baptiste Ridore's petition to stay in the country. The court found that the Board of Immigration Appeals had deferred to "its own version of reality" in reversing a 2005 ruling that gave Ridore protection from removal under the Convention Against Torture (CAT).

The son of a U.S. citizen, Ridore immigrated from Haiti in 1973, when he was 12. He lived with his mother and grandmother until the early 1990s, when he came home one day and discovered their murdered bodies.

Ridore says that in the ensuing years he developed a drinking problem, on which he blames his numerous but relatively minor brushes with the law. From 1991 to 2004 he got three DUIs, and was convicted for petit larceny, theft, criminal trespass, possession of drug paraphernalia, second-degree commercial burglary, failure to maintain liability insurance, failure to use a safety restraint, fictitious registration display, obscene conduct, reckless driving, failure to provide proof of insurance, speeding and operating without liability insurance. The government began removal proceedings against him in 2003.

An immigration judge (IJ) denied Ridore's initial motion for cancellation of removal. Ridore contended that he had derivative citizenship from his father, but the judge said he couldn't prove it, and that he was eligible for removal because of an aggravated felony conviction. The BIA reversed the latter ruling, and on remand in 2005 Ridore added to his petition an application for asylum and protection under the Convention Against Torture. After considering evidence and testimony about the hellscape that is Haiti's prison system, and the likelihood that a "criminal deportee" would be tortured and abused until dead in an ill-equipped and disease-ridden jail, the judge granted CAT protection and discretionary cancellation of removal. The Department of Homeland Security appealed the ruling, and in 2007 the BIA reversed.

The board rejected the judge's findings about the deplorable conditions in Haiti's prisons based on a 2002 ruling in a similar action. In that case, the BIA found that such conditions did not amount to torture because there was no evidence of government sanction. A three-judge appeals panel roundly rejected the board's conclusion.

"The BIA cannot, under a clear error standard of review, override or disregard evidence in the record and substitute its own version of reality," wrote Judge Raymond Fisher for the panel.

"The IJ found that the evidence Ridore produced, both as to worsened prison conditions and the Haitian government's complicity in creating those conditions, was sufficient to distinguish his case from [the

2002 case] and the BIA was obligated to explain why the IJ clearly erred in so finding," he added. "Instead, it appears to have relied simply on its own interpretation of the facts, which is not clear error review."

The panel agreed with the BIA's rejection of Ridore's petition for cancellation or removal, but vacated it anyway for "reconsideration in light of our remand on Ridore's CAT claim."

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