20 F.4th 80
1st Cir.2021Background
- Bonnet, a Haitian native and U.S. lawful permanent resident since 1999, pleaded guilty in Massachusetts (Dec. 2017) to possession with intent to distribute controlled substances and was ordered removed based on an aggravated-felony drug conviction. He applied for asylum, withholding, and CAT protection; this petition challenges only the CAT denial.
- After one conviction was vacated and the removal charge amended, Bonnet submitted new evidence including a declaration and live expert testimony from Dr. Chelsey Kivland (anthropologist) about treatment of criminal deportees and conditions in Haitian jails/prisons.
- Kivland testified deportees are processed on arrival (airport or nearby jail), usually released same day but some are detained for "prolonged detention" (average 3–5 days; longest she’d heard, ~a month); some risk factors (prior drug conviction, lack of family ties, perceived opposition) make detention "more likely."
- The IJ found Bonnet failed to show it was more likely than not he would be detained in Haiti and therefore could not rely on prison-abuse testimony to meet the CAT burden; the IJ also rejected a vigilante-based CAT claim. The BIA adopted and affirmed the IJ’s decision with additional reasoning.
- Bonnet appealed the CAT denial to the First Circuit, challenging (inter alia) the IJ/BIA’s credibility and burden-of-proof applications and arguing his evidence was comparable to circuit precedent that had granted relief.
Issues
| Issue | Plaintiff's Argument (Bonnet) | Defendant's Argument (Government/DHS) | Held |
|---|---|---|---|
| Whether Bonnet showed it is more likely than not he would be detained in Haiti (so prison-abuse evidence applies) | Kivland’s testimony and declaration establish that Bonnet’s risk factors make detention "more likely than not." | Expert testimony showed only that detention is discretionary and sometimes occurs; record lacks proof Bonnet would more likely than not be detained. | Court upheld IJ/BIA: Bonnet failed to show detention was more likely than not. |
| Whether Kivland’s testimony should be read as stating an absolute (>50%) likelihood of detention | Kivland’s answers that risk factors make detention "more likely" should be read as meaning "more likely than not." | Her testimony was comparative (more likely relative to others) and did not assert an absolute >50% chance of detention. | Court agreed with IJ/BIA that the testimony was comparative, not an absolute >50% showing. |
| Whether aggregate risks (prison conditions + other risks) suffice for CAT where individual links are speculative | Aggregate evidence of risks (detention likelihood + prison torture) establishes more-likely-than-not torture. | CAT requires each step in a conjectural chain be shown more likely than not; petitioner did not prove detention or other steps to the required standard. | Court rejected Bonnet’s undeveloped aggregate argument as waived and held he did not meet the CAT standard. |
| Whether vigilante violence with government acquiescence established CAT protection (and whether Costa was misapplied) | Record shows systemic governmental failure to control vigilantes; Costa is distinguishable and BIA should apply evolving precedent on official acquiescence. | Even apart from Costa, Bonnet failed to prove it was more likely than not vigilantes would torture him with state consent/acquiescence. | Court found Bonnet did not challenge the BIA’s factual finding on likelihood and affirmed denial of vigilante-based CAT claim. |
Key Cases Cited
- Mazariegos v. Lynch, 790 F.3d 280 (1st Cir. 2015) (CAT: burden is "more likely than not" standard)
- Romilus v. Ashcroft, 385 F.3d 1 (1st Cir. 2004) (elements of CAT claim articulated)
- Elien v. Ashcroft, 364 F.3d 392 (1st Cir. 2004) (CAT standards and state-actor requirement)
- Costa v. Holder, 733 F.3d 13 (1st Cir. 2013) (on vigilante violence and government acquiescence)
- Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012) (granting CAT relief where deportee likely to be interned in Haitian prison)
- Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315 (11th Cir. 2007) (assumed criminal deportees in Haiti faced indefinite detention)
- Chanthou Hem v. Mukasey, 514 F.3d 67 (1st Cir. 2008) (review of BIA opinions that adopt IJ bases)
- Marroquín-Rivera v. Sessions, 861 F.3d 7 (1st Cir. 2017) (substantial-evidence review of agency factual findings)