Lafortune v. Garland

110 F.4th 426

Fesnel LAFORTUNE, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 23-1617

United States Court of Appeals, First Circuit

August 5, 2024

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau PC were on brief, for petitioner.

Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Sabatino F. Leo, Assistant Director, Office of Immigration Litigation, United States Department of Justice, were on brief, for respondent.

Before Barron, Chief Judge, Lipez and Kayatta, Circuit Judges.

BARRON, Chief Judge.

Fesnel Lafortune, a native and citizen of Haiti, petitions for review of the decision by the Board of Immigration Appeals ("BIA") that denied his claims for withholding of removal and protection under the Convention Against Torture ("CAT"). We deny the petition.

I.

On June 22, 2008, at the age of twelve, Lafortune entered the United States on a B-2 visitor visa that he eventually overstayed. A little more than a decade later, on November 4, 2019, Lafortune pleaded guilty in the United States District Court for the District of Massachusetts to conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).

Pursuant to the plea agreement, the District Court sentenced Lafortune to a prison term of seven months for the conspiracy-to-commit-bank-fraud offense and twenty-four months for the aggravated-identity-theft offense, with the second sentence to be served consecutive to the first. Lafortune was also ordered to pay restitution to the victims.

Following Lafortune's convictions, the U.S. Department of Homeland Security ("DHS") served Lafortune with a Notice to Appear ("NTA"). The NTA charged him with removability under 8 U.S.C. § 1227(a)(1)(B) due to lack of lawful immigration status and under 8 U.S.C. § 1227(a)(2)(A)(iii) due to his conviction for an aggravated felony in the form of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." Id. § 1101(a)(43)(M)(i).

On October 18, 2021, Lafortune appeared pro se before an Immigration Judge ("IJ") and asked for additional time to find counsel.¹ The IJ continued proceedings to provide Lafortune the opportunity to do so.

Lafortune next appeared pro se before the IJ on November 30, 2021. He again sought a continuance to find counsel, but the IJ denied the request, and the removal proceedings went forward. Lafortune admitted to the allegations in the NTA, and the IJ ruled that Lafortune was removable on both charges lodged in the NTA.

Because Lafortune expressed a fear of returning to Haiti, however, the IJ continued the case until December 14, 2021, to give Lafortune time to file an application for asylum. On December 7, 2021, Lafortune submitted an application for asylum and claims for withholding of removal and protection under the CAT (though only Lafortune's claims for withholding of removal and protection under the CAT are before us).

On March 14, 2022, a hearing was held before the IJ in which Lafortune again appeared pro se and asked for a continuance to retain counsel. The IJ denied this request and, after taking Lafortune's testimony, found Lafortune ineligible for asylum, withholding of removal, and protection under the CAT.

Still proceeding pro se, Lafortune appealed the IJ's decision to the BIA. Lafortune argued, among other things, that the IJ erred in denying his motion to continue. Lafortune contended that by "h[olding the merits] hearing ahead of" schedule, the IJ did not have the chance to review a letter submitted by the Boston Immigrant Justice Accompaniment Network ("BIJAN") dated March 14, 2022. The letter asked for a continuance of at least four to six weeks because BIJAN was in the process of securing counsel for Lafortune and needed that time to complete its efforts.

Lafortune also submitted additional evidence to the BIA in support of his CAT and withholding-of-removal claims. That evidence included a picture of a burnt-down business building that purportedly belonged to Lafortune's family in Haiti, multiple newspaper articles, and new statements from his sister and aunt.

On November 8, 2022, the BIA sustained Lafortune's appeal in part, remanding to the IJ for consideration of Lafortune's motion for a continuance. The BIA reasoned that because BIJAN's letter had not been associated with the record of proceedings at the time that the IJ ruled on his request for a continuance, Lafortune was entitled to have the opportunity to appear with counsel. The BIA did not express an opinion regarding Lafortune's application and claims or on the ultimate outcome of his proceedings.

On November 16, 2022, the IJ ordered Lafortune to appear for a hearing on November 29, 2022. Lafortune appeared pro se on that date and stated that he needed more time to find counsel.

The IJ then set another hearing for December 22, 2022. On December 16, 2022, however, BIJAN sent a letter to the IJ asking for an extension of three months to find counsel for Lafortune. DHS opposed the request for a continuance.

On December 20, 2022, the IJ denied the request for a continuance for lack of good cause. The IJ explained that Lafortune had been in proceedings since September 28, 2021, and had been given "more than ample opportunity to secure counsel."

At the December 22, 2022 hearing, Lafortune appeared pro se and asked the IJ to reconsider its denial of his motion for a continuance. The IJ refused to do so. The IJ also refused to reopen the evidentiary record on remand, adopting its prior decision in full and again ordering Lafortune's removal to Haiti.

On January 10, 2023, Lafortune, still acting pro se, filed his second appeal with the BIA. But on March 10, 2023, Jeffrey B. Rubin entered an appearance as counsel for Lafortune.

On appeal to the BIA, counsel for Lafortune challenged the IJ's reasons for denying Lafortune's withholding-of-removal and CAT claims. The BIA dismissed the appeal on June 22, 2023, finding no error in the IJ's analyses. Lafortune's counsel then filed this timely petition for review.

II.

"Where, as here, the BIA 'adopts and affirms the IJ's ruling' but nevertheless 'examines some of the IJ's conclusions,' we review both the BIA and IJ opinions as a unit," Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir. 2020) (quoting Perlera-Sola v. Holder, 699 F.3d 572, 576 (1st Cir. 2012)), referring to the IJ and BIA together as the "agency." In conducting our review, we defer to the agency's factual determinations "as long as those determinations are supported by substantial evidence," but we review questions of law de novo. Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).

III.

We start with Lafortune's challenges to the denial of his withholding-of-removal claim. Withholding of removal is unavailable to an applicant convicted of a "particularly serious crime." See 8 U.S.C. § 1231(b)(3)(B)(ii). An aggravated felony is a particularly serious crime if it resulted in a "term of imprisonment of at least 5 years." Id. § 1231(b)(3)(B)(iv). For other offenses, the agency applies a case-by-case inquiry as set forth in Matter of Frentescu, 18 I. & N. Dec. 244 (BIA 1982), and Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA 2007), to determine whether the offense qualifies as a particularly serious crime. See Valerio-Ramirez v. Sessions, 882 F.3d 289, 295 (1st Cir. 2018) (upholding the Frentescu analysis with respect to withholding of removal).

The agency denied Lafortune's claim for withholding of removal on the ground that he had been convicted of a particularly serious crime. In his petition for review, Lafortune challenges that ruling on a number of grounds. None persuades us.²

A.

We first address Lafortune's contention that the BIA erred by finding that the IJ had sufficiently specified the prior criminal conviction that qualified as a particularly serious crime when the IJ had not. Lafortune argued to the BIA that the IJ had not done so because the IJ had failed to specify which of his two convictions — conspiracy to commit bank fraud, 18 U.S.C. § 1349, or aggravated identity theft, 18 U.S.C. § 1028A(a)(1) — was the crime that the IJ determined was the particularly serious crime. On that basis, Lafortune argued that a remand to the IJ for clarification was required, because, to deem a noncitizen ineligible for withholding of removal for having been convicted of a particularly serious crime, the agency must identify the crime of conviction that qualifies as a crime of that serious sort. Otherwise, according to Lafortune, the agency would not have rendered a decision that allows for meaningful appellate review. See Halo v. Gonzales, 419 F.3d 15, 18-19 (1st Cir. 2005) ("[A] reviewing court ... must judge the propriety of [administrative] action solely by the grounds invoked by the agency, and that basis must be set forth with such clarity as to be understandable." (second alteration in original) (internal quotation marks and citation omitted)); SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ("It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.").

The BIA rejected this argument on the ground that the IJ specifically found that Lafortune's conviction for bank-fraud conspiracy was the particularly serious crime. Despite Lafortune's contrary contention, we see no error in that ruling.

Consistent with the BIA's assessment, the NTA only identified and charged one conviction as a removable offense — namely, Lafortune's conviction for conspiracy to commit bank fraud. Moreover, in denying Lafortune's request for withholding of...