Case Information
ag Holder In the
United States Court of Appeals
For the Second Circuit
________
J OHN D OE ,
Petitioner ,
v. E RIC H. H OLDER , Jr., United General, Respondent.
________ Petition review Board Immigration Appeals. ________
A RGUED : M AY D ECIDED : A UGUST ________
Before: P ARKER L IVINGSTON D RONEY Circuit Judges . ________ petition review Board Immigration Appeals
(“BIA”) decision, consider witnesses Nations Against Transnational Organized Crime (“CATOC”) executing. We hold those executing. Accordingly, petition for DENIED .
________
W HITNEY W. E LLIOTT Newark, New Jersey, for John Doe.
J ESSICA A. D AWGERT Trial Attorney (Stuart F. Delery, Acting Assistant Attorney General, Leslie McKay, Assistant Director, Margot L. Carter, Trial Attorney, brief ), Office Immigration Litigation, Civil Division, United States Department Justice, Washington, D.C., for Eric H. Holder, Jr., United General .
________
B ARRINGTON D. P ARKER Circuit Judge : petition review Board Immigration Appeals
(“BIA”) decision, consider witnesses United Nations Against Transnational Organized Crime, opened signature Dec. T.I.A.S. 13127, U.N.T.S. (“CATOC”) executing. We hold that executing. Accordingly, petition for DENIED .
I. BACKGROUND
Petitioner, John Doe, a native citizen of Ghana, was a lawful permanent resident of the United States when he was arrested after admitting he expected to receive a package addressed to him contained a quantity of heroin. Following his arrest, Doe admitted to participating in an international drug smuggling ring. Doe cooperated federal agents to arrange a controlled delivery of the heroin to another individual in this country. The controlled delivery led to arrest one of the individuals who had hired Doe to receive heroin. That individual was ultimately convicted imprisoned.
Doe pled guilty to an information including a count related his heroin smuggling activities. The Department Homeland Security issued a Notice to Appear, alleging was removable United States based on his conviction for an aggravated felony controlled substance offense. Doe’s attorney inquired about an S visa, available to certain citizens who assist with criminal investigations, but the Assistant United Attorney assigned Doe’s case elected to request such a visa on Doe’s behalf exchange for his cooperation. immigration court, Doe admitted the factual allegations the Notice Appear and conceded removability, but sought protection removal under the Nations Against Torture (“CAT”) and the CATOC.
At the conclusion the removal proceedings, the Immigration Judge denied Doe’s request for protection under the CAT and noted that request under the CATOC was outside immigration court’s jurisdiction. Doe appealed to BIA, raising his CAT CATOC claims, as well as two new arguments based “state created danger” doctrine and equitable estoppel. The BIA rejected all four claims dismissed appeal. BIA concluded lacked jurisdiction consider claims relief under CATOC General had delegated authority over requests immigration judges BIA.
Doe now seeks decision BIA affirming decision Immigration Judge. Because does challenge agency’s denial CAT relief, equitable estoppel, relief under state created danger doctrine, arguments not before us address only his assertion he entitled relief criminal informant under CATOC. Yueqing Zhang Gonzales n.1 2005). On appeal, Doe primarily contends he individual an S visa lawful permanent resident. U.S.C. § 1255(j). 12 3779 can enforce through a private right of action Court, independent any delegation authority BIA.
II. DISCUSSION
A. Jurisdiction Standard Review Although most circumstances, we lack jurisdiction adjudicate petitions review aliens as who have been convicted a controlled substance offense, see 8 U.S.C. § 1252(a)(2)(C), because his petition raises a legal issue, we have jurisdiction hear his claim pursuant 8 U.S.C. § 1252(a)(2)(D). deciding a petition review a BIA order, we ordinarily review BIA’s decision alone. Where, as here, BIA has adopted supplemented Immigration Judge’s decision, however, we review decision supplemented BIA. See Santoso v. Holder , F.3d 110, (2d Cir. 2009) (per curiam).
Where petitioner raises question law, we agency determinations de novo . Padmore v. Holder , F.3d 62, (2d Cir. 2010) (per curiam). Although we accord significant deference BIA interpretations statute it administers, Bah v. Mukasey F.3d 99, (2d Cir. 2008), we will not defer BIA’s interpretation of CATOC it been charged administration of provisions, Michel v. I.N.S. F.3d (2d Cir. 2000) (holding deference BIA interpretations afforded where BIA interpreting laws administers). We therefore review BIA’s decision Doe’s claim de novo . Swarna Al Awadi 2010) (explaining review 12 ‐ 3779 ‐ treaty interpretation by lower court de novo ). However, even though our review of the BIA’s decision is de novo , we do ignore the government’s views entirely. The Supreme Court has explained “the meaning attributed treaty provisions Government agencies charged with their negotiation enforcement is entitled great weight,” though is “not conclusive.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184 85 (1982); see also Pierre v. Gonzales , F.3d 109, 116 (2d Cir. 2007) (“In construing language, respect ordinarily due reasonable views Executive Branch.” (internal quotation marks alterations omitted)). Thus, while BIA’s interpretation CATOC entitled deference, views Executive Branch agencies, Department State, were are “charged the[] negotiation enforcement” are “entitled great weight.” Sumitomo , 85.
B. The Witness Protection Provisions CATOC Are Not Self
Executing
This Court determined witness protection and, therefore, enforceable agency removal proceedings courts. See Rranci General , 165, Cir. 2008) (remanding issue BIA guidance); also Musau v. Carlson F. App’x (10th 2012). BIA has determined not. re G K I. & N. Dec. (BIA 2013). As noted above, conclusion de novo without deference BIA’s interpretation
As Supreme Court explained, courts have “long recognized distinction between treaties automatically have effect as domestic law, and that—while they constitute international law commitments—do by themselves function as binding federal law.” Medellín v. Texas , U.S. 491, (2008). “[A] treaty is equivalent an act legislature, and hence self ‐ executing, when it operates itself without aid any legislative provision.” Id. at (internal quotation marks omitted). “[W]hile treaties may comprise international commitments[,] they not domestic law unless Congress either enacted implementing statutes or treaty itself conveys an intention it be ‘self ‐ executing’ and is ratified these terms.” Id. (internal quotation marks alterations omitted); also v. Bahel F.3d (2d Cir. 2011) (“[I]n order a treaty be self executing, thus require independent action Congress, treaty’s terms must reflect an intention both President, who negotiated it, Senate, which provided its advice consent.”).
To determine a is self executing, begin with text. Mora New York 2008). Aspirational language is hallmark a executing treaty describes only “commitment . . . take future action through [the member states’] political branches comply with [the treaty].” Medellín (internal quotation marks and emphasis omitted). Such case when provides that parties “undertake[] comply,” opposed “shall” “must” comply, terms. However, even mandatory language may be conclusive evidence provision if *8 8 ‐ context and objectives indicate otherwise. Mora (explaining interpretation requires consideration only text treaty, but also “the context in which written words used”). CATOC’s stated purpose to “promote cooperation to
prevent and combat transnational organized crime more effectively.” CATOC, art. 1. Article titled “Protection of witnesses,” provides:
Each State Party shall take appropriate measures within its means provide effective protection potential retaliation intimidation witnesses criminal proceedings who give testimony concerning offences covered [the] . . . . art. 24. argues Article 24’s mandate, United “ shall take appropriate measures” protect witnesses,
indicates non discretionary obligation. But believe this provision, when taken context, reflects only non executing undertaking. Under CATOC, signatories commit provide “effective” witness protection, art. encourage “cooperation prevent and combat transnational organized crime,” art. 1. “Effective” protection specifically defined. Rather, Article explains later “may” consist of, “ inter alia ,” physical protection, relocation, disclosure witness’s identity location, use video link testimony. It is therefore left signatory’s discretion determine what measures “appropriate” “within means,” what No. ‐ 3779 ‐ protection sufficiently “effective,” suggesting that provision no immediate legal effect. See In re G K I. & N. Dec. at ‐ 95.
Other provisions CATOC support this view. Article 34, titled “Implementation Convention,” states that “[e]ach State Party shall take necessary measures, including legislative and administrative measures . . . ensure implementation its obligations under Convention.” CATOC, art. (emphasis added). Thus, CATOC specifically envisions that will be implemented by additional domestic legislative actions. Moreover, signatory must “take necessary measures” only “in accordance with fundamental principles its domestic law.” Id. A State Party’s commitments under are, therefore, secondary the “fundamental principles its domestic law.” Because a signatory must first instance determine what measures comply both obligations its domestic law, the CATOC’s text indicates that Article executing. See Medellín 508.
The Executive Legislative Branches have reached the same conclusion. When submitting President, the Secretary State explained witness measures under Article are undertaken “in [a State Party’s] discretion,” and recommended Senate include declaration only exceptions “general understanding [CATOC] executing” detailed of Articles 18. S. Treaty Doc. 16. Secretary of State added Article could be implemented United under current statutes regulations. his letter No. 12 ‐ 3779 ‐ transmitting the to the Senate ratification, the President explained that would not require implementing legislation. argues that Executive Branch’s interpretation is not
entitled to deference because Congress rejected it. However, independent of Congress’s interpretation, “the meaning attributed Government agencies charged with their negotiation enforcement entitled great weight.” Sumitomo , 457 U.S. at 184 ‐ 85 (deferring Department of State’s interpretation). Moreover, contrary Doe’s assertion, Congress did not disagree Executive’s interpretation. Although the Senate did include declaration concerning witness were self ‐ when ratifying the CATOC, it noted summary Articles 18 are executing, thereby implying other articles not. See S. Exec. Rep. No. 4, at ‐ (2005); also Guo Dep’t Justice 2005) (discussing statutory construction principle expression one thing exclusion another). The Senate was apparently also view implementing legislation was necessary because “existing body federal state laws [] suffice,” but few exceptions adopted Executive Branch’s submission. S. Exec. Rep. at 5. These statements demonstrate us both Executive and Legislative Branches deemed Article executing, a conclusion which obligated give great weight. See Sumitomo 85. Accordingly, does “operate[] itself without aid any legislative provision,” but rather is implemented by domestic legislation, it is “self executing.” Medellín
As provision, Article could not be enforced absent implementing legislation. And Congress not passed new implementing legislation because, as declared, that legislation already existed. Indeed, in immigration context, there numerous protections for witnesses: assisting in investigation or prosecution organized crime, human trafficking, other criminal activity may be granted nonimmigrant status, see U.S.C. § 1101(a)(15)(S), (T), (U), CAT prohibits removal if torture country removal is likely, C.F.R. §§ 1208.16 (CAT withholding removal), 1208.17 (CAT deferral removal). exhausted applicable avenues relief. Although he argues envisaged greater protection, relief he seeks cannot be enforced Board, district court, this court is executing.
CONCLUSION petition is DENIED. As have completed
our review, any stay removal Court previously granted in this petition VACATED, any pending motion stay of removal petition DISMISSED moot.
[1] signed ratified States.
[2] An “S visa” refers to nonimmigrant classification for aliens who cooperate in criminal or terrorism investigations. U.S.C. § 1101(a)(15)(S). As relevant to appeal, S visas available to an alien who “is in possession critical reliable information concerning a criminal organization or enterprise,” “is willing supply or supplied such information” law enforcement authorities or courts, whose presence essential success investigation or prosecution determined General. A law enforcement agency must apply an S visa behalf cooperating witness. C.F.R. § 214.2(t). S visa application requires law enforcement agency seeking visa specify alien will be placed danger in and/or abroad due his her cooperation. See F o r m I ‐ 8 5 4 ( a v a i l a b le at www.uscis.gov/sites/default/files/files/form/i 854.pdf). An S visa temporary visa allows an alien remain country three years. U.S.C. § 1184(k)(2). During period, however, sponsoring law enforcement agency may request Department Homeland Security adjust status an