G-K
26 I. & N. Dec. 88
| BIA | 2013Background
- Respondent: Ghanaian LPR convicted (May 11, 2010) of conspiracy to distribute ≥1 kg heroin (aggravated felony). Placed in removal proceedings and ordered removed to Ghana.
- Respondent cooperated with U.S. prosecutors and testified against coconspirators, one alleged to have been a Ghanaian parliament member; respondent received old threats and family members experienced contact/harassment.
- Respondent sought relief under the UNTOC, withholding of removal under §241(b)(3)(A) of the INA, and protection under the Convention Against Torture (CAT).
- IJ found: no authority to grant relief under UNTOC; respondent statutorily barred from withholding because his drug offense is a "particularly serious crime"; respondent failed to show torture more likely than not.
- Board affirmed: UNTOC does not create independent relief in removal proceedings; existing U.S. law (S/T/U visas, CAT, trafficking statutes) implements treaty objectives; respondent ineligible for withholding or deferral.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UNTOC creates independent immigration relief | UNTOC entitles cooperating witnesses like respondent to remain in U.S. | UNTOC is not self-executing and provides no independent domestic relief; existing statutes implement treaty goals | UNTOC does not create independent relief; IJ/Board lacked authority to grant relief under treaty |
| Whether respondent is eligible for S/T/U nonimmigrant status | Respondent should be protected as a cooperating witness (S) | No application by law enforcement or DHS approval; jurisdiction for S/T/U rests with DHS | No S/T/U relief available in these proceedings; respondent did not pursue DHS process |
| Whether aggravated-felony drug conviction bars withholding/deferral under INA/CAT | Respondent argued error in treating offense as "particularly serious" or statute as void for vagueness | Drug trafficking is presumptively a particularly serious crime; Board bound by AG precedent; constitutional challenges outside Board's jurisdiction | Respondent statutorily barred from withholding/deferral because offense is particularly serious; vagueness challenge not adjudicable by Board |
| Whether respondent met CAT standard (more likely than not tortured) | Evidence of threats, family harassment, nephew assault, and alleged government corruption show risk of torture | Evidence was dated, generalized, or not linked to government acquiescence; no individualized likelihood of torture | CAT deferral/withholding denied; respondent failed to prove torture more likely than not |
Key Cases Cited
- Medellin v. Texas, 552 U.S. 491 (treaties are not domestic law absent implementing legislation or clear self-executing intent)
- Yuen Jin v. Mukasey, 538 F.3d 143 (presumption against inferring private rights from treaties)
- Gross v. German Foundation Indus. Initiative, 549 F.3d 605 (reluctance to read private rights into treaties)
- Mahini v. INS, 779 F.2d 1419 (drug trafficking offenders are a danger to the community)
- Chavarria v. Gonzalez, 446 F.3d 508 (asylum standard does not cover non-imminent, non-specific threats)
- Arriaga-Barrientos v. U.S. INS, 937 F.2d 411 (random attacks on relatives do not establish individualized fear)
- Roye v. Att’y Gen. of U.S., 693 F.3d 333 (CAT standards for withholding/deferral)
- Hui Zheng v. Holder, 562 F.3d 647 (treaty obligations effectuated through statutory/regulatory schemes)
- Bradvica v. INS, 128 F.3d 1009 (Board jurisdiction limited to authority delegated by Attorney General)
- Yan Lan Wu v. Ashcroft, 393 F.3d 418 (IJ not required to individually discuss every piece of evidence)