United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge.
Compere, a Haitian national, is subject to an outstanding
removal order. Although he has challenged the order by filing
a motion to reopen his case with the Board of Immigration
Appeals (“BIA”), the government plans to return
him to Haiti without acting on his motion. Compere argues in
a habeas corpus petition that the conditions he will face in
Haiti if he is removed will make it impossible for him to
litigate his motion. He therefore seeks a stay of the removal
order to permit him to obtain a ruling on the motion from the
BIA and, if necessary, to seek judicial review of any adverse
ruling in the court of appeals.
government has responded by arguing that I lack the power to
interfere with its plan to execute the removal order because
Congress has stripped district courts of their habeas corpus
jurisdiction to consider challenges to removal orders. I
reject this argument because the jurisdiction-stripping
provisions on which the government relies cannot be used to
deny Compere his right to habeas corpus relief without
violating the Constitution's Suspension Clause. I also
grant Compere the relief he seeks because removing him to
Haiti before he can litigate his motion to reopen would
violate his rights under federal law.
has lived in the United States since he was two. His
grandmother, mother, and siblings are United States citizens.
So are his two children, ages four and nine. Compere,
however, is not. Born in Haiti in October, 1987, he left the
country and entered the United States on humanitarian parole
in August, 1989. He has not been back to Haiti
has had trouble with the law. He has drug convictions for
possession to distribute a Class A substance (Heroin) in
2011, possession of a Class B substance (Suboxone) in 2015,
and possession of a Class B substance (Adderall-Amphetamine)
in 2016. Doc. No. 7-3 at 2.
has been in detention since his arrest by Immigration and
Customs (“ICE”) officials on October 2, 2017.
circumstances that led to his arrest are disquieting. See
Transcript of Immigration Court Proceedings, Doc. No. 13-2 at
49-50. After serving his most recent criminal sentence,
Compere asked his probation officer how to obtain a work
authorization. The officer recommended that he contact ICE.
Compere followed that advice and met with ICE Officer Hamel
who told Compere to submit certain documents to ICE, such as
his mother's naturalization certificate. Compere provided
the documents Hamel was seeking but he did not hear from ICE
again for two months. On October 2, 2017, Compere called
Hamel and was informed that he would be required to attend a
hearing before an immigration judge. Compere went to the
Immigration Court in Boston and called Hamel again, who
informed him that the hearing would not occur that day.
Instead, he was arrested and taken into ICE custody, where he
began removal proceedings against Compere by filing a Notice
to Appear (“NTA”) in the Boston Immigration Court
on October 24, 2017. Compere did not challenge the
government's contention that he was removable. Instead,
he claimed that he was entitled to a deferral of removal
under the Convention Against Torture (“CAT”). He
based his CAT claim on his contention that he will be
imprisoned and tortured by the Haitian government if he is
removed to Haiti.
immigration judge held two hearings in March of 2017 and
ultimately concluded both that Compere was removable for the
reasons cited in the NTA and that he was not entitled to a
deferral of removal under the CAT. See Doc. No. 7-3 at 2, 15.
Compere submitted that it is more likely than not that he
will be incarcerated and tortured if returned to Haiti
because he is a criminal deportee and his uncle is a
prominent opposition political figure who ran for president
of Haiti in 2015. See Doc. No. 7-3 at 13. The Immigration
Court recognized that “grim prospects await Haitian
criminal deportees.” Doc. No. 7-3 at 13. It also noted
that Compere does not have any close family relatives in
Haiti and Marie Gabrielle Renois, Compere's aunt and the
wife of a Haitian anti-corruption journalist and politician
Clarens Renois, currently resides in Mali because she does
not feel safe in Haiti. Doc. No. 7-3 at 14.
the Court rejected Compere's CAT claim. It concluded that
“prior Board of Immigration Appeals precedent has
established that the conditions within Haitian prisons are
generally insufficient to satisfy a respondent's burden
for relief under the Convention Against Torture.” Doc.
No. 7-3 at 14 (citing Matter of J-E-, 23 I&N Dec. 291
(BIA 2002)). The J-E- decision demonstrated, said the Court,
that “there is no evidence that [Haitian authorities]
are intentionally and deliberately creating and maintaining
such prison conditions in order to inflict torture.”
Doc. No. 7-3 at 14 (citing J-E- at 301). The Immigration
Judge also rejected Compere's argument that he would face
a heightened risk due to his relationship to Clarens Renois,
because Compere is a fairly distant relative and there is
“considerable evidence that Mr. Renois's family has
not been tortured.” Doc. No. 7-3 at 15. Accordingly,
the Immigration Court found that “it is not more likely
than not that the respondent would be tortured by the
government or with its acquiescence were he to be returned to
Haiti.” Doc. No. 7-3 at 15.
appealed to the Board of Immigration Appeals
(“BIA”) and the BIA affirmed the Immigration
Judge's denial of his application for deferral of
removal. See Doc. No. 9-4. He then appealed to the First
Circuit Court of Appeals on October 25, 2018, and moved for a
stay of removal in that court the next day.
argued in his motion for a stay that the BIA relied on the
wrong precedent in rejecting his CAT claim. The Circuit
ultimately denied Compere's motion on November 7, 2018,
[p]etitioner fails to adequately argue and show that he has a
colorable legal or constitutional issue that surmounts the
jurisdictional bar. See 8 U.S.C. § 1252(a)(2)(C) &
(D). Moreover, insofar as his arguments might be construed as
raising a colorable legal issue, he does not make a strong
showing of likely success on the merits. See Nken v.
Holder, 556 U.S. 418, 434 (2009).
Compere v. Sessions, No. 18-2058 (1st Cir. Nov. 7,
2018). Compere filed a motion to reconsider that
order the next day. The Circuit denied Compere's motion
on November 19, 2018. See Doc No. 9-6. Compere moved to
dismiss his appeal on January 10, and the Circuit dismissed
his petition on January 11, 2019. See Compere, No. 18-2058
(1st Cir. Jan. 11, 2019).
filed a motion to reopen his case with the BIA November 8,
2018, the day after the Circuit denied his motion for a stay
of removal. His motion asserts that he plans “to
introduce newly obtained evidence, material to his claim of
deferral of removal under the Convention against Torture,
that was unavailable at the time of his hearing before the
Boston Immigration Court.” See Doc. No. 9-8 at 2. The
next day, he moved the BIA to stay his removal on an
emergency basis pending resolution of his motion to reopen.
Doc. No. 9-9 at 2. The BIA denied that motion on December 27,
2018. See Doc. No. 18-2 at 2.
supports his motion to reopen with a new expert declaration
by Dr. Chelsey L. Kivland, an Assistant Professor in the
Department of Anthropology at Dartmouth
College. See Doc. No. 9-14. Kivland asserts that
Compere will likely face prolonged detention upon arrival in
Haiti because he speaks very little French or Haitian Creole
and because “Mr. Compere reports that he has no family
in Haiti with whom he is in contact.” Doc. No. 9-14 at
2. She submits that because Compere is a deportee with drug
convictions, “he will likely be detained and
interrogated about his drug crimes and drug-trafficking
activities, ” which is “likely to lead to
prolonged detention as he will be subject to additional
processing and scrutiny.” Doc. No. 9-14 at 2-3. Kivland
also claims that, due to Compere's relationship with
Renois, he “is likely to be detained . . . as a
political threat.” Doc. No. 9-14 at 3. Even if he is
not detained upon arrival, Kivland declares, he faces a
heightened risk of imprisonment because police in Haiti
unfairly target criminal deportees with drug convictions.
Doc. No. 9-14 at 3.
avers that Haiti uses inhumane prison conditions as part of
an intentional effort to punish and deter criminal behavior.
Doc. No. 9-4 at 3. She contends that the “squalid
conditions and cruel treatment [in Haitian prisons] do not
simply reflect the weak infrastructure of a government that
is under-resourced, but rather intentional decisions on the
part of the Haitian government to under-fund this
sector.” Doc. No. 9-14 at 4 (citing Erin Mobekk, UN
Peace Operations: Lessons from Haiti, 1994-2016 (2017)). The
poor conditions “are part of an intentional effort to
instill in the public fear of prison, ” according to
Kivland. Doc. No. 9-14 at 4. She quotes a police officer for
the first circumscription of Port-au-Prince, whom she
interviewed in March, 2018, saying that prison should produce
a “kind of misery which makes the misery of poverty
look like paradise.” Doc. No. 9-14 at 4. “Such
comments do not merely reflect the opinion of individuals,
” Kivland contends, but rather “the dominant
beliefs about punishment and deterrence that inform a system
in which prison is a space of pain, suffering, and possible
death.” Doc. No. 9-14 at 4.
also submits that Compere risks “lynching by the
Haitian public.” Doc. No. 9-14 at 5. This is because,
she explains, Compere is a criminal deportee and because he
is identifiable as an American due to ...