Antipas Konou v. Eric Holder, Jr.
2014 U.S. App. LEXIS 8758
| 9th Cir. | 2014Background
- Konou, a native of the Marshall Islands, fled as a teenager after being sexually assaulted and abused as a homeless, homosexual child; he later lived in California without documentation.
- In 1999 he was convicted in California of assault with a deadly weapon (other than a firearm) and battery with serious bodily injury following a fight with his then-boyfriend.
- The Immigration Judge (IJ) found the convictions to be particularly serious (making him ineligible for withholding of removal) but granted deferral of removal under the Convention Against Torture (CAT), concluding Konou more likely than not would be tortured if returned because of his homosexuality.
- The Board of Immigration Appeals (BIA) reversed the IJ’s CAT grant, relying on the 2007 U.S. Department of State Country Report indicating no enforced laws or societal violence against homosexuals in the Marshall Islands, and affirmed the particularly-serious-crime finding.
- Konou agreed to voluntary removal, returned to the Marshall Islands, and petitioned for review of the BIA’s decision; the Ninth Circuit denied review.
Issues
| Issue | Konou's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether substantial evidence supports BIA’s reversal of IJ’s CAT grant | Konou argued his credible testimony of past torture and risk as a homosexual show he is more likely than not to be tortured on return | Government argued the State Dept. report showing no enforced anti-homosexuality laws and societal acceptance outweighs Konou’s testimony | BIA decision upheld: substantial evidence (State Dept. report) supports reversal of CAT relief; Konou failed to meet his burden |
| Whether past torture creates a presumption of future torture under CAT | Konou argued past torture should support a presumption of future torture | Government argued past torture does not compel a regulatory presumption and can be weighed against country conditions | Held: No automatic presumption; BIA permissibly weighed past torture against country-report evidence and found no likelihood of future torture |
| Whether the Marshall Islands’ criminal prohibition on homosexuality (if unenforced) supports CAT relief | Konou contended existence of criminal statute and his past abuse show risk despite nonenforcement language | Government relied on report’s finding that laws are not enforced and no societal violence exists | Held: BIA reasonably interpreted the report as showing nonenforcement, which undermined an objective likelihood of torture |
| Whether Konou’s convictions are "particularly serious crimes" making him ineligible for withholding | Konou argued the IJ impermissibly relied on a sentencing enhancement and misapplied authorities limiting use of enhancements | Government defended consideration of the enhanced sentence and underlying facts (kicking victim, bodily injury) | Held: BIA did not abuse discretion; IJ properly applied Frentescu factors and could consider the enhanced sentence in the individualized particularly-serious-crime analysis |
Key Cases Cited
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (standards for review of BIA CAT findings and treating credible testimony as true)
- Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (past torture evidence must be considered but does not create an automatic presumption of future torture)
- Sowe v. Mukasey, 538 F.3d 1281 (9th Cir. 2008) (deference to BIA interpretation of State Department country reports)
- Nuru v. Gonzalez, 404 F.3d 1207 (9th Cir. 2005) (country conditions can decisively affect CAT determinations)
- Molina-Estrada v. I.N.S., 293 F.3d 1089 (9th Cir. 2002) (distinguishing asylum/persecution precedent from CAT/torture context)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (Frentescu factors and definition of particularly serious crime)
- Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) (standard and review for particularly-serious-crime determination)
- Corona-Sanchez v. Gonzales, 291 F.3d 1201 (9th Cir. 2002) (limitations on considering sentencing enhancements when assessing aggravated-felony status)