The Ninth Circuit Court of Appeal has given Anthony Alexandre another chance to avoid deportation to Haiti, where he claims he would be tortured by voodoo priests because of his “anti-voodoo views.”

In a 2-1 decision reported in a Memorandum Opinion, the appellate court reviewed Alexandre’s petition for review of an order from the Board of Immigration Appeals (the Board). Justices Marsha A. Berzon and Eric D. Miller denied asylum to the petitioner but granted his petition for review of his claims under the United Nations Convention Against Torture (CAT). Justice William A. Fletcher dissented, and said he would “deny the petition in his entirely.”

Petitioner Alexandre sought protection under the CTA, an international human rights treaty that was adopted by the United Nations General Assembly in 1984 and signed by the United States in 1994. Under the U.S. Constitution, treaties signed by the U.S. are considered “the law of the land.” The UN Convention requires the 140 countries who signed it to investigate, protect and provide remedies to those who have been tortured.

While protected by the CTA, Alexandre had other problems that could permit his deportation. His application for asylum was denied by both an immigration judge and the Board because, while in the U.S. he had been “convicted of a per se particularly serious crime.” Alexandre violated a section of the California Penal Code that disallows “willfully inflicting corporal injury resulting in a traumatic condition” on someone with whom he had a romantic relationship.

Alexandre spent six years in prison for his crime. He was given an initial three-year sentence, plus an additional three-year “sentence enhancement” under another section of the California Penal Code. This section allows additional time if the infliction of “great bodily injury” occurs during the commission of an “aggravated felony,” which falls under 8 U.S. Code Section 1101 (a) (43) because it was committed by a noncitizen.

Conviction of an aggravated felony “is “the most damaging type of conviction for a noncitizen” according to the Immigrant Legal Resource Center. Alexandre’s sentence of more than five years also made his crime “particularly serious.” The Ninth Circuit’s review of Alexandre’s appeal concluded that the Immigration Board’s sentence enhancement had been “appropriately considered.”

The opinion next reviewed Alexandre’s claim for CAT relief, which both the immigration judge and the Board denied because it was “not credible.” Alexandre argued that there was no substantial evidence to support their finding of non-credibility. The government offered “no response” to petitioner’s claim, saying only that it had not been relied on when the Board made its decision. As a result, the Ninth Circuit concluded that “The government has thus forfeited any argument that might have allowed us to uphold the agency’s adverse credibility finding.” Without this finding, the Ninth Circuit said, the “denial of CAT relief cannot be sustained.”

The Ninth Circuit reviewed Alexandre’s testimony that claimed he had “received numerous threats in response to his non-voodoo activism in Haiti.” But the immigration judge ruled that the lack of “objective evidence” was the reason it could not endorse his claims.

“Without the adverse credibility finding, the agency’s denial of CAT relief cannot be sustained,” the Ninth Circuit’s Memorandum Opinion reported. The Justices faulted the immigration judge for failure to “press Alexandre for documentation.” The judge also failed to state that such evidence was required nor did he “evaluate (Alexandre’s) explanation” that could have explained why such evidence was unavailable.

In addition, the Ninth Circuit wrote that the immigration judge could have investigated whether the Haitian government would “acquiesce in any torture” by the voodoo priests. “Whatever the merits of Alexandre’s theory of government acquiescence, the likelihood of acquiescence is a factual finding that must be made by the immigration judge,” the Ninth Circuit’s Memorandum of Opinion noted.

Because this finding was not made, the case was remanded for “further proceedings on the CAT claim.” It will no doubt be difficult to obtain credible evidence that would prove the likelihood of voodoo torture or government acquiescence, but now Alexandre will have another chance to try.