19-369 Fremont v. Barr BIA Connelly, IJ A078 370 967

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of August, two thousand twenty.

PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. _____________________________________

GARY FREMONT, Petitioner,

v. 19-369 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Julia B. Beskin, Owen F. Roberts, Avi Panth, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Stephen J. Flynn, Assistant Director; Robert Michael Stalzer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Gary Fremont, a native and citizen of Haiti,

seeks review of a January 15, 2019 decision of the BIA

affirming a September 11, 2018 decision of an Immigration

Judge (“IJ”) ordering Fremont’s removal to Haiti for a crime

involving moral turpitude (“CIMT”), finding Fremont competent

to proceed, and denying Fremont’s application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Gary Fremont, No. A 078 370

967 (B.I.A. Jan. 15, 2019), aff’g No. A 078 370 967 (Immig.

Ct. Batavia Sept. 11, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we review both the

IJ’s and BIA’s decisions “for the sake of completeness.” 2 Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006). We review factual findings for substantial

evidence and questions of law and the application of law to

undisputed facts de novo. See

(b)(4)(B);

Yanqin Weng v. Holder,

(2d Cir. 2009); see

also Diop v. Lynch,

(4th Cir. 2015)

(“Competency has long been considered an issue of fact.”).

Removability

We identify no error in the agency’s conclusion that

Fremont is removable for having committed a CIMT within five

years of the date of his admission. The Government must

prove removability by clear and convincing evidence. Singh

v. Dep’t of Homeland Sec.,

(2d Cir. 2008).

When the applicable evidentiary standard is clear and

convincing evidence, we review findings of fact “under a more

demanding variation of the substantial evidence standard . .

. .” Centurion v. Holder,

(2d Cir. 2014)

(internal quotation marks and citation omitted). Under this

standard, the petition for review may be granted if we

determine that “any rational trier of fact would be compelled

to conclude that the proof did not rise to the level of clear

3 and convincing evidence.”

(internal quotation marks

omitted).

An alien is removable if he is “convicted of a crime

involving moral turpitude committed within five years . . .

after the date of admission, . . . for which a sentence of

one year or longer may be imposed.”

(a)(2)(A)(i). Fremont conceded that his conviction for

attempted robbery conviction is a CIMT, but disputes that the

Government met its burden of proving that the date of

commission fell within five years of his admission. In

determining the date of commission of the offense, the agency

relied on a document entitled “Complaint/Arrest Affidavit,”

which reflects that the attempted robbery occurred on January

5, 2007.

Contrary to Fremont’s argument, the agency was not

limited to the record of conviction to establish the date on

which he committed the offense. The term “record of

conviction” generally means “a charging document (such as an

indictment), a signed plea agreement, a verdict or judgment

of conviction, a record of the sentence; a plea colloquy

transcript, and jury instructions.” Akinsade v. Holder, 678

, 144 (2d Cir. 2012) (internal quotation marks

omitted). This is the record that the agency is limited to

when determining whether a conviction is a CIMT. See Wala

v. Mukasey,

(2d Cir. 2007). We have not

held, however, that the agency is limited to the record of

conviction in establishing the date of the commission of an

offense under

(a)(2)(A)(i). Meanwhile, the

BIA has held that the agency is not limited to a record of

conviction in determining the non-element facts of a charge

of removability, e.g., In re Babaisakov,

,

317–21 (BIA 2007) (permitting any admissible evidence bearing

on victim’s loss in aggravated felony case), a holding that

comports with subsequent Supreme Court precedent.

See Nijhawan v. Holder,

, 41–43 (2009) (rejecting

argument that agency is limited in what documents it may

review in determining amount of loss for fraud offense).

That

(a)(2)(A)(i) requires the relevant CIMT

conviction to have been “committed within five years”

supports the agency’s reading in this case: although a

determination of whether a conviction qualifies as a CIMT

should be based on the “record of conviction,” a determination

5 of when the relevant offense was committed may take into

account any reliable evidence.

Fremont also argues that, even if the Complaint/Arrest

Affidavit is admissible, it does not amount to clear and

convincing evidence of the date that the offense was

committed. We disagree, and conclude that it does. The

document was sworn before the deputy clerk or a notary, is

date-stamped contemporaneously with its creation, and was

obtained from the relevant state court rather than the police

department. Cf. Francis v. Gonzales,

(2d Cir. 2006) (holding that foreign police report was

admissible, but not “clear and convincing evidence,” and

noting preference for documents from courts rather than law

enforcement). Accordingly, this document constitutes clear

and convincing evidence that Fremont committed the relevant

offense on January 5, 2007, a date within five years of his

January 27, 2002 admission.

Competency

“[T]he test for determining whether an alien is competent

to participate in immigration proceedings is whether he or

she has a rational and factual understanding of the nature

6 and object of the proceedings, can consult with the attorney

or representative if there is one, and has a reasonable

opportunity to examine and present evidence and cross-examine

witnesses.” Matter of M-A-M-,

(BIA 2011). “When there are indicia of incompetency, an

Immigration Judge must take measures to determine whether a

respondent is competent to participate in proceedings.”

. For example, an IJ may ask questions regarding “the

nature of the proceedings, [] the respondent’s state of

mind[,] [and] . . . whether he or she currently takes or has

taken medication to treat a mental illness;” the IJ may also

continue proceedings to permit an evaluation.

.

Applying the test for competency, an IJ “must weigh the

results from the measures taken and determine . . . whether

the respondent is sufficiently competent to proceed with the

hearing without safeguards.”

.

While, contrary to the IJ’s written statement, the record

presented some indicia of incompetency, including evidence

that Fremont had been diagnosed with a mental illness and

prescribed medication for that condition, we find no basis

for remand. The IJ asked questions relevant to a determination

7 of competency and Fremont benefited from the safeguard of

being represented by counsel. Although the IJ did not

conduct a separate competency hearing, at the beginning of

Fremont’s merits hearing, the IJ asked him questions to

determine his competency. Fremont’s responses established

that he understood the purpose of the proceeding was to remove

him from the United States based on his criminal conviction.

See

(listing competency concerns as including

understanding of the “nature of the proceedings”).

Furthermore, the record before the IJ reflected that

Fremont had been able to provide his attorney with detailed

information for his asylum application, including, for

example, the names, dates, and places of birth of his seven

children. While his application and testimony included only

a limited level of detail about the past harm that his family

suffered in Haiti, this is not necessarily an indication of

a lack of competency. Fremont simply may not have known the

information: he testified that he never knew the political

party to which his mother belonged, for example, while, in

contrast, he provided detailed information about his mental

health history.

8 Finally, as the IJ concluded, where the record raises a

competency issue, the customary response in the immigration

context is for the IJ to put safeguards such as legal

representation in place. Fremont already had that safeguard.

at 481–82 (“Immigration Judges have discretion to

determine which safeguards are appropriate, given the

particular circumstances in a case before them.”); see also

8 U.S.C. § 1229a(b)(3) (“If it is impracticable by reason of

an alien’s mental incompetency for the alien to be present at

the proceeding, the Attorney General shall prescribe

safeguards to protect the rights and privileges of the

alien.”); Matter of M-J-K-,

(BIA 2016) (“The participation of counsel increases the

likelihood of finding a means to proceed fairly, . . .”).

Here, although the record contained only limited evidence of

what happened to Fremont’s family in Haiti, with the

assistance of his attorney Fremont was able to present his

mother’s death certificate and evidence of country conditions

in Haiti, including evidence regarding mental health care

there. Accordingly, we conclude that on this record it

cannot be said that any reasonable factfinder would be

9 compelled to find Fremont not competent: he understood he was

in removal proceedings because of his criminal conviction and

he was able to work with his counsel to prepare applications

for relief. See

(b)(4)(B).

Asylum

To establish asylum eligibility, an applicant must show

that he has suffered past persecution or has a well-founded

fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or

political opinion. See

(a)(42). If the

applicant is found to have suffered past persecution, he is

presumed to have a well-founded fear of future persecution on

the basis of the original claim.

(b)(1).

Fremont did not corroborate his claim or establish past

persecution on the basis of political opinion. While “[t]he

testimony of the applicant may be sufficient to sustain the

applicant’s burden without corroboration,” the applicant must

present testimony that “is credible, is persuasive, and

refers to specific facts sufficient to demonstrate that the

applicant is a refugee.”

(b)(1)(B)(ii).

“[T]he trier of fact may weigh the credible testimony along

10 with other evidence of record” and may require corroboration

of even credible testimony through available or “reasonably

obtain[able]” evidence.

The agency did not err in

determining that Fremont failed to corroborate his political

opinion claim.

The agency properly identified the missing evidence,

noting that Fremont failed to provide any information from

family members to confirm that his mother and uncle were

killed and his father detained by supporters of the Lavalas

party. Fremont did not show that relevant evidence was not

reasonably available as he testified that his siblings were

in the United States, that he was in contact with his cousin

and father in the United States, and at least one cousin

provided some information to his attorney. See also

(b)(4) (determinations regarding availability of

corroborating evidence shall not be reversed unless a court

determines that “a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable”).

An asylum applicant generally should be given an

opportunity to explain why specific corroboration is missing,

but here, Fremont was not asked specifically why he did not

11 supply affidavits from his family members. Explanation is

not always necessary, however, depending on the kind of

corroboration that the IJ seeks. Liu v. Holder,

, 198–99 (2d Cir. 2009). Fremont ultimately bore, and

failed to carry, the burden of explaining why he did not

provide affidavits from any family members, and particularly

from his father, who had experienced the alleged past harm.

.

Furthermore, Fremont did not allege past harm that was

directed at him, as required to state an asylum claim.

Fremont points to his testimony that people came looking for

his father and that “when they c[a]me to [his] mom, they get

everybody in the house paid the consequences.” But Fremont

left Haiti years before his mother’s alleged murder in 2018,

and he did not identify what harm, if any, he suffered before

he came to the United States. Moreover, “an asylum applicant

cannot claim past persecution based solely on harm that was

inflicted on a family member on account of that family

member’s political opinion or other protected

12 characteristic.” Jiang v. Gonzales,

(2d Cir. 2007).

Absent a showing of past persecution, Fremont had the

burden to show a well-founded fear of future persecution.

(b)(2); Ramsameachire v. Ashcroft,

(2d Cir. 2004). Apart from his challenge to the

corroboration finding, Fremont does not address the agency’s

conclusion that he did not establish a well-founded fear on

account of his family’s political opinions or on account of

any proposed social groups. Any challenge to that finding

has been waived as a result. Zhang v. Gonzales,

, 545 n.7 (2d Cir. 2005) (issues and claims “not

sufficiently argued” in briefs are waived on appeal).

Because Fremont failed to carry his burden of proof for

asylum, he necessarily failed to meet the higher burden for

withholding of removal. See Lecaj v. Holder,

(2d Cir. 2010). On petition for review, Fremont does not

challenge the agency’s denial of CAT protection.

13 For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

14