Jasmin v. Attorney General of the United States
698 F. App'x 44
| 3rd Cir. | 2017Background
- Jasmin, a native of Haiti, entered the U.S. as a child, became an LPR in 1990, and has multiple felony convictions (weapons, and drug trafficking) with sentences including five years.
- DHS charged him removable based on firearm and aggravated-felony drug convictions; the IJ sustained removability.
- Jasmin applied for withholding of removal and CAT protection based on persecution/torture in Haiti for being gay; he conceded before the IJ that withholding was unavailable and sought only CAT deferral.
- The IJ found him ineligible for withholding as convicted of a particularly serious crime and denied CAT relief, concluding he had not shown it was more likely than not he would be tortured in Haiti (noting evidence of police protection, gay community organizations, and that Jasmin might be "well-off").
- The BIA affirmed the IJ on CAT, declined to revisit the withholding eligibility (not challenged on appeal), and stated its decision did not depend on the IJ’s “well-off” finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review withholding-of-removal denial where petitioner conceded withholding below and did not raise it to the BIA | Jasmin challenged the AG’s interpretation that certain drug offenses with 5+ year sentences are per se particularly serious, making withholding unavailable | Government contended Jasmin failed to exhaust the withholding claim before the BIA, so court lacks jurisdiction | Dismissed for lack of jurisdiction: Jasmin failed to exhaust the withholding claim before the BIA |
| Whether BIA erred by not conducting de novo legal analysis of whether harm met CAT’s torture definition (Kaplun two-prong) | Jasmin argued BIA violated due process by addressing only factual likelihood-of-harm and not the legal torture definition | Government argued addressing only likelihood is dispositive; no need to reach legal prong if factual prong fails | Denied: Court held no error—agency may dispose of CAT claim on likelihood prong alone |
| Whether BIA committed impermissible factfinding by rejecting IJ’s “well-off” finding yet affirming | Jasmin claimed BIA impermissibly made or ignored factual findings in affirming CAT denial | Government said BIA merely stated that even if IJ’s "well-off" finding were wrong, other evidence supports denial | Denied: BIA did not err; its comment was not adverse factfinding and any error was harmless |
| Whether agency failed to consider petitioner’s personal circumstances for CAT likelihood-of-harm | Jasmin contended the agency ignored personal circumstances (e.g., absence from Haiti since age 3) | Government pointed to IJ’s thorough factual findings addressing personal circumstances and BIA’s review | Denied: Court lacks jurisdiction over factual findings; IJ and BIA sufficiently considered personal factors |
Key Cases Cited
- Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017) (limits appellate review when alien removable for aggravated felony; factual determinations generally not reviewable)
- Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010) (establishes two-part CAT inquiry: likelihood of harm and whether harm equals legal torture)
- Green v. Att’y Gen., 694 F.3d 503 (3d Cir. 2012) (agency may resolve CAT claims by disposing of either Kaplun prong; failure to meet one is dispositive)
- Lin v. Att’y Gen., 543 F.3d 114 (3d Cir. 2008) (exhaustion of issues before BIA is jurisdictional)
- Li Hua Yuan v. Att’y Gen., 642 F.3d 420 (3d Cir. 2011) (harmless-error review where BIA errs in reviewing IJ’s factual findings)
- Duvall v. Elwood, 336 F.3d 228 (3d Cir. 2003) (no futility exception to BIA-exhaustion requirement)