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Oxygene v. Lynch

United States Court of Appeals for the Fourth Circuit

December 8, 2015, Argued; February 22, 2016, Decided

No. 14-2380, No. 15-1099


 [*543]  DIANA GRIBBON MOTZ, Circuit Judge:

Wilerms Oxygene petitions for review of orders denying his application for deferral of removal under the Convention Against Torture ("CAT") and subsequent motion to reopen his removal proceedings. For the reasons that follow, the petition for review is denied in part and dismissed in part.

In 1994, Oxygene, accompanied by his mother and siblings, fled political violence in his native country of Haiti. This violence included occasions when death squads fired on the family [**2]  home while Oxygene and others were inside the house. Oxygene entered the United States as a refugee; in 1996 the United States granted him lawful permanent resident status.

Five years later, a Virginia court convicted Oxygene of several state crimes, including burglary, grand larceny, robbery, and use of a firearm to commit a felony. In 2011, the Department of Homeland Security ("DHS" or "the Government") commenced removal proceedings against him. Oxygene conceded that he was removable under various subsections of 8 U.S.C. § 1227(a)(2) (2012) due to his convictions for aggravated felonies and firearm offenses, but applied for deferral of removal under the CAT.

At his removal hearing before an Immigration Judge ("IJ"), Oxygene testified to his family's past persecution in Haiti and his fear that, if removed, he would face indefinite detention in Haitian prisons. Oxygene also expressed fear that, if detained in Haiti, he would not receive the medical care necessary to prevent his latent tuberculosis from becoming active. Oxygene and his sister testified that they had no remaining family members in Haiti who could provide support in the form of food, medicine, or payment for release from detention.

Oxygene [**3]  submitted documentary evidence to substantiate his allegations of poor prison conditions in Haiti. The administrative record contains several State Department country reports for Haiti, a report from various non-governmental organizations submitted to the United Nations ("the 2011 NGO report"), and news articles and press releases concerning human rights abuses in the country. Together, these sources paint a bleak picture of what criminal deportees like Oxygene can expect upon removal to Haiti.

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813 F.3d 541 *; 2016 U.S. App. LEXIS 3043 **

WILERMS OXYGENE, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.

Prior History:  [**1] On Petitions for Review of Orders of the Board of Immigration Appeals.



torture, specific intent, suffering, deportees, detention, inflict, removal, severe, severe pain, regulations, detaining, treaty, prison conditions, intentionally, pain, petition for review, general intent, deference, reopen, infer, removal proceedings, constitutes, conditions, claimant, felony

Immigration Law, Grounds for Deportation & Removal, Criminal Activity, Aggravated Felonies, Asylum, Refugees & Related Relief, Convention Against Torture, Constitutional Foundations, Deportation & Removal, Judicial Review, Judicial Proceedings, Judicial Review, Scope of Review, Evidence, Weight & Sufficiency, Standards of Review, Substantial Evidence, Administrative Law, Reviewability, Jurisdiction & Venue, Jurisdiction, International Law, Individuals & Sovereign States, Human Rights, Torture, Criminal Law & Procedure, Acts & Mental States, Mens Rea, Specific Intent, Administrative Appeals, US Board of Immigration Appeals, General Intent, De Novo Standard of Review, Questions of Law, Rule Interpretation, Knowledge, Inferences & Presumptions, Inferences, Trials, Jury Instructions, Particular Instructions, Criminal Offenses, Obstruction of Administration of Justice, Elements, Standards of Review