Hugues Michard Martine, also known as Martine Hughes Petitioner
Loretta E. Lynch, Attorney General of United States Respondent
Submitted: September 20, 2016
for Review of an Order of the Board of Immigration Appeals
WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
Martine was ordered deported in November 2014 following a
criminal conviction. The Immigration Judge (IJ) found, and
the Board of Immigration Appeals (BIA) affirmed, that Martine
was not eligible for relief under the Convention Against
Torture (CAT). Martine filed the instant petition for review,
arguing that the BIA erred by affirming the IJ, who applied
an incorrect legal standard to his request for relief under
the CAT. We dismiss Martine's petition for review.
1993, when he was six or seven years old, Martine and his
family fled Haiti and were admitted into the United States as
refugees. Martine and his family were granted refugee status
as a result of Haitian officials' persecution of
Martine's father, who worked as a judge under President
Aristide's regime. The Aristide regime, which supported
the Fanmi Lavalas party, was overthrown in 1991, putting
Martine's family and others affiliated with the Fanmi
Lavalas party in danger. Men broke into the Martine
family's home, attacking Martine's mother and
demanding the whereabouts of Martine's father. After that
incident, Martine's family moved frequently to avoid
danger, eventually arriving in the United States. Martine
adjusted his status to Lawful Permanent Resident in 1994.
2010, Martine fled from officers in his vehicle, eventually
colliding with another vehicle and injuring its occupants.
Police found 54 individual baggies containing what was later
determined to be 8.68 grams of cocaine base in Martine's
car. A jury convicted Martine of, among other things, second
degree drug trafficking. He was sentenced to a ten-year term
of imprisonment on that offense. Immigration officials
initiated removal proceedings upon Martine's release from
custody. Martine applied for relief under the CAT in December
2014, and is therefore subject to the REAL ID Act of 2005.
"jurisdiction to review any final order of removal
against an alien who is removable by reason of having
committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii)" of Title 8 of the United States
Code. 8 U.S.C. § 1252(a)(2)(C) (codifying the
Immigration and Nationality Act (INA)). Under 8 U.S.C. §
1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an
aggravated felony at any time after admission is
deportable." Here, Martine was convicted of second
degree drug trafficking, an aggravated felony for purposes of
the INA. 8 U.S.C. § 1101(a)(43)(B) ("The term
'aggravated felony' means . . . illicit trafficking
in a controlled substance . . . ."); Moncrieffe v.
Holder, 133 S.Ct. 1678, 1683 (2013) (defining "drug
trafficking crime" and noting that state offenses may
we are not precluded from hearing "constitutional claims
or questions of law" timely raised in a petition for
review. 8 U.S.C. § 1252(a)(2)(D). Martine asserts that
the BIA erred in affirming the IJ because the IJ applied the
wrong legal standard when it failed to grant Martine a
presumption that he had a well-founded fear of future
persecution based on past persecution. Martine claims that
because he was originally admitted as a refugee-which
necessarily required a showing of past persecution-he was
entitled to the presumption of a well-founded fear of
persecution upon his return to Haiti.
conflates two distinct statutory provisions and their
associated tests: establishing asylum eligibility, 8 C.F.R.
§ 1208.13(b)(1), and qualifying for CAT relief, 8 C.F.R.
§ 1208.16(c). An applicant for asylum "who has been
found to have established . . . past persecution shall also
be presumed to have a well-founded fear of persecution on the
basis of the original claim." 8 C.F.R. §
1208.13(b)(1). However, Martine is not seeking asylum; his
sole claim is for protection under the CAT, which requires an
applicant to "establish that it is more likely than not
that he or she would be tortured if removed to the proposed
country of removal." 8 C.F.R. § 1208.16(c)(2).
"Torture" is separately defined and is not
synonymous with "persecution." Compare 8
C.F.R. § 1208.18(a)(1) (defining torture in part as
"any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining . . . a confession . . .
.") with 8 U.S.C. § 1101(a)(42)
(explaining that to qualify for asylum an applicant must
establish past or future persecution on account of membership
in a protected group). A showing of past persecution does not
establish a presumption under the law regarding the
likelihood of future torture upon removal. Neither the BIA
nor the IJ applied the wrong legal standard in Martine's
also argues that the IJ and BIA "erroneously conclud[ed]
that [his] case mirrored those facts presented in
Cherichel v. Holder, 591 F.3d 1002 (8th Cir. 2010),
" and Matter of J-E-, 23 I. & N. Dec. 291
(B.I.A. 2002). To the extent this argument is a
"challenge to the agency's factual determinations,
" we lack jurisdiction. Lovan v. Holder, 574
F.3d 990, 998 (8th Cir. 2009) (citation omitted)
("[Petitioner] asserts that 'undisputed facts'
compel a contrary finding 'as a matter of law.' This
is nothing more than a challenge to the agency's factual
determinations, which are beyond our jurisdiction to review
under 8 U.S.C. § 1252(a)(2)(D)."); see
Gallimore v. Holder, 715 F.3d 687, 690 (8th Cir. 2013)
(citing Brikova v. Holder, 699 F.3d 1005, 1008 (8th
Cir. 2012)) (finding arguments regarding factual disputes and
weighing evidence outside the court's jurisdiction).
extent Martine argues that the IJ and the BIA improperly
relied on these cases when considering his request for relief
under the CAT, we disagree. To obtain CAT relief, Martine had
to "establish that it is more likely than not that he [
] would be tortured if removed to [Haiti]." 8 C.F.R.
§ 1208.16(c)(2). As noted above, and notwithstanding
Martine's assertion to the contrary, the fact of
Martine's past persecution does not equate to a
presumption of a likelihood of future torture. Similarly, it
does not eliminate Cherichel's mandate that
"a petitioner may not obtain relief under the CAT unless
he can show that his prospective torturer has the goal or
intent of inflicting severe physical or mental suffering or
pain upon him" for an enumerated purpose. 591 F.3d at
1013. When considering Martine's CAT claim, the