Matter of G-K-, Respondent
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
January 30, 2013
26 I&N Dec. 88 (BIA 2013)
Interim Decision #3776
(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).
(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claim that the statute barring relief for particularly serious crimes is void for vagueness.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Kansas City, Missouri
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated October 4, 2011, an Immigration Judge found the respondent removable under sections
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Ghana whose status was adjusted to that of a lawful permanent resident on January 15, 2000. On May 11, 2010, he was convicted of conspiracy to distribute and possess with intent to distribute at least a kilogram of heroin in violation of
The respondent was subsequently placed in removal proceedings. He requested relief from removal based on his claim that he faces harm upon his return to Ghana because he cooperated with United States authorities by agreeing to testify against his coconspirators, one of whom was reportedly a member of the Ghanaian Parliament at the time of his 2006 arrest. Both coconspirators were convicted and sentenced for their involvement in a heroin trafficking scheme. One has since returned to Ghana, while the other is still serving his 10-year prison sentence in the United States.
The respondent claimed that his role in the Parliament member‘s prosecution in the United States is known to the Ghanaian community in the United States and in Ghana. According to the respondent, he received two threatening phone calls and numerous “hang-up calls” in 2005 and heard from a neighbor and two friends that individuals described as “Ghanaians” or “Africans” were inquiring about him in 2005 and 2006. The respondent further testified that his family members in Ghana were approached by strangers asking about his whereabouts. He also stated that in 2009 his nephew in Ghana was severely beaten by a group of men. Further, the respondent‘s United States citizen wife testified to receiving phone calls that caused her concern. After the respondent was placed in the custody of the Department of Homeland Security (“DHS“), she received phone calls from individuals who were looking for the respondent, twice in 2010 and once in 2011. Another call in 2010 was from a woman who offered to assist the respondent with his immigration problems.
The Immigration Judge denied the respondent‘s requests for relief from removal and ordered him removed to Ghana. Specifically, she found that she had no authority to craft or adjudicate an independent remedy under the UNTOC; that the respondent was statutorily barred from asylum and withholding of removal under the Act; and that the respondent, while credible,
II. ANALYSIS
A. United Nations Convention Against Transnational Organized Crime and the Protocols
The respondent claims that he is entitled to remain in the United States pursuant to the UNTOC because he cooperated and agreed to testify against his coconspirators regarding their heroin trafficking scheme, in which he also took part. In making this argument, he relies on the decision of the United States Court of Appeals for the Third Circuit in Rranci v. U.S. Attorney General, 540 F.3d 165 (3d Cir. 2008). However, the Third Circuit did not hold that the UNTOC independently provided aliens relief that can be pursued in removal proceedings. Rather, the court remanded the case to the Board to determine how United States law complies with the relevant provisions of the UNTOC. Id. at 178.
The UNTOC and two supplementary protocols were signed by the United States on December 13, 2000, and were ratified on November 3, 2005. Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 507 (entered into force Jan. 28, 2004) (“Smuggling Protocol“); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 U.N.T.S. 319 (entered into force Dec. 25, 2003) (“Trafficking Protocol“).1 The stated purpose of the treaty “is to promote cooperation to prevent and combat transnational organized crime effectively.” UNTOC art. 1. The UNTOC and the Protocols obligate each signatory to “take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by [the UNTOC].” UNTOC art. 24(1). Individuals covered by the UNTOC and the Protocols include smuggled migrants, trafficking victims, and witnesses in criminal proceedings who give testimony concerning criminal offenses covered by the UNTOC.
As noted by the Third Circuit in Rranci, 540 F.3d at 178, a 2004 letter of transmittal from President George W. Bush to the Senate stated that current United States law already complies with the UNTOC, obviating the need for
In the context of immigration law, the objectives of the UNTOC concerning the protection of witnesses and trafficking victims are advanced through existing statutes. See, e.g., William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044; Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558; Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875; Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (“VTVPA“); see also Hearing on Law Enforcement Treaties Before the S. Comm. on Foreign Relations, 108th Cong. 9-12 (2004) (statement of Samuel M. Witten, Deputy Legal Adviser, U.S. Dep‘t of State). More specifically, the immigration laws and regulations offer certain aliens who are victims of and cooperators, informants, or witnesses against human trafficking or a criminal organization eligibility for S, T, or U nonimmigrant status, if they satisfy other eligibility requirements and obtain the approval of the DHS. Sections
The S nonimmigrant classification for aliens who cooperate in criminal investigations was created by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796, 2024. This classification, which is the most applicable to the respondent‘s case, may be available to an alien who is in possession of critical reliable information
An application for an S nonimmigrant visa is initiated with a request from an interested Federal or State law enforcement authority and is subject to the approval of the DHS, although the DHS‘s decision to deny an S visa is referred to the Deputy Attorney General for a final resolution in certain circumstances. See
The Act was also amended in 2000 to create the T nonimmigrant classification for victims of severe forms of trafficking who would “suffer extreme hardship involving unusual and severe harm upon removal” and who, inter alia, have complied with any reasonable request for assistance in the investigation or prosecution of acts of such trafficking in persons. Section
In 2000, Congress also created the U classification, which is available to an alien who suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity and who possesses information concerning such activity. Section
The United States may also comply with the provisions of the UNTOC through the regulations relating to withholding or deferral of removal under the Convention Against Torture, a form of protection over which Immigration Judges have jurisdiction, and which they have authority to grant. Relief from removal under the Convention Against Torture is mandatory and is available to an alien who has established that it is more likely than not that he or she would be tortured if removed to the country of removal by or at the instigation of, or with the consent and acquiescence of, a public official acting in an official capacity.
Contrary to the respondent‘s assertion on appeal, neither the Third Circuit‘s decision in Rranci nor the UNTOC provide for the Board or the Immigration Judge to adjudicate and grant relief to aliens such as the respondent in order to fulfill the United States’ obligations under the treaty. Nothing in the UNTOC, either explicitly or implicitly, gives us authority to grant the respondent permission to remain in the United States or prevent his removal to Ghana because he was a cooperating witness in a criminal case in this country. Nor does the treaty, which has broad, aspirational language, provide any parameters as to what specific type of relief or protection would be afforded. It is well established that the Board has no authority to create relief beyond what has been provided by the Act or the regulations, because the jurisdiction of the Board and the Immigration Judge is limited by statute and regulation to that which has been delegated by the Attorney General. See Matter of H-M-V-, 22 I&N Dec. 256, 258 (BIA 1998); Matter of Medina, 19 I&N Dec. 734, 742, 746-47 (BIA 1988). See generally, e.g., Hui Zheng v. Holder, 562 F.3d 647, 655-56 (4th Cir. 2009) (stating that treaty obligations are effectuated through a statutory scheme that Congress has established and that the Attorney General has implemented through regulations); Bradvica v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997) (deferring to the holding in Matter of Medina that the Board‘s jurisdiction is limited only to what has been specifically delegated by the Attorney General).
Even assuming that the respondent has adequately demonstrated that his actions and cooperation with Federal prosecutors are necessarily covered by the UNTOC, the relevant provisions in the treaty do not create an independent basis for relief from removal that can be advanced in immigration proceedings.
A treaty may, in specific circumstances, be deemed to be “self-executing” and have automatic domestic effect as Federal law, but only when the treaty itself conveys such an intention and is ratified on those terms. Medellin v. Texas, 552 U.S. at 505-06 & n.2. Moreover, even if a treaty is self-executing, “there is a strong presumption against inferring individual rights from international treaties.” Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir. 2008) (quoting United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001) (internal quotation marks omitted); see also Medellin v. Texas, 552 U.S. at 506 n.3 (“Even when treaties are self-executing in the sense that they create federal law, the background presumption is that ‘[i]nternational agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.‘” (quoting 2 Restatement (Third) of Foreign Relations Law of the United States § 907, cmt. a at 395 (1986))); Gross v. German Foundation Indus. Initiative, 549 F.3d 605, 615 (3d Cir. 2008).
Nothing in the provisions of the UNTOC and the Protocols establishes that the treaty was intended to be self-executing. Broad, aspirational language was used in the specific provisions that relate to the protection, support, or repatriation of witnesses and/or victims of transnational organized crime. Furthermore, the treaty states that signatories should take appropriate measures, including enacting legislation if necessary. For example, Articles 24 and 25 of the UNTOC state that each signatory “shall take appropriate measures within its means” to provide effective protection for witnesses and victims of transnational organized crime. Likewise, Article 16 of the Smuggling Protocol states that signatories “shall take . . . appropriate measures, including legislation if necessary” to protect the rights of victims of migrant smuggling. Article 7 of the Trafficking Protocol also states that signatories “shall consider adopting legislative or other appropriate measures
Moreover, the UNTOC and the Protocols did not explicitly prohibit its signatories from returning individuals who are covered by the treaty to the country of their nationality or to one where they have the right of permanent residence. For instance, Article 8 of the Trafficking Protocol provides for the safe “[r]epatriation of victims of trafficking in persons.” Article 8 of the Smuggling Protocol also contemplates the safe “[r]eturn of smuggled migrants.” The Protocols provide that the conditions for such an individual‘s safe repatriation would be determined by the sending and receiving signatory parties. The relevant provisions in the UNTOC for individuals, such as the respondent, who cooperate in a transnational organized crime prosecution do not mandate that such witnesses be granted the right to remain in the signatory country as a form of protection against potential retaliation for their cooperation with the prosecution. See UNTOC art. 24 (suggesting measures for protecting witnesses). Nor do they preclude the removal of such persons to their country of nationality or legal residence.
We find that the provisions of the UNTOC do not create an independent basis for relief from removal that can be advanced by the respondent in his removal proceedings. The Immigration Judge therefore did not err in finding that she lacked jurisdiction to consider the respondent‘s request for relief under the UNTOC and the Protocols. The respondent has not otherwise sought to pursue nonimmigrant status under section
We now turn to the respondent‘s application for withholding of removal under section
As the Immigration Judge properly found, the respondent‘s aggravated felony involving unlawful trafficking in a controlled substance presumptively constitutes a “particularly serious crime” within the meaning of section
In holding that drug trafficking offenses are presumptively particularly serious crimes, the Attorney General concomitantly recognized that such crimes pose a danger to the community, noting that “[t]he devastating effects of drug trafficking offenses on the health and general welfare, not to mention national security, of this country are well documented.” Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. at 274-76 (citing Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir. 1986) (recognizing that drug trafficking “offenders [are] a danger to the community“)). In his decision, the Attorney General set forth minimum requirements to overcome the presumption that a crime is particularly serious, one of which is that it involved “a very small quantity of controlled substance.” Id. at 276. The Immigration Judge found that the respondent did not meet this requirement because his offense involved at least a kilogram of heroin. Therefore the Immigration Judge‘s decision was consistent with Matter of Y-L-, A-G- & R-S-R- and was not in error.
To the extent that the respondent challenges the propriety of Matter of Y-L-, A-G- & R-S-R-, it is clear that the Immigration Judge and the Board are bound by the Attorney General‘s decision.
C. Deferral of Removal Under the Convention Against Torture
The Immigration Judge also properly denied the respondent‘s application for deferral of removal under the Convention Against Torture. As the Immigration Judge found, the threatening telephone calls the respondent received were made years before in 2005, shortly after his coconspirators were arrested and before the coconspirator who was a member of Parliament was convicted, and they are therefore dated. Also, the telephone calls received more recently by the respondent‘s wife did not contain specific serious threats. In fact, one caller even offered the respondent assistance with his immigration problems. These telephone calls are not sufficient to show that the respondent would more likely than not be individually targeted for torture upon his return to Ghana. Cf. Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006) (noting that the lesser well-founded fear asylum standard does not extend “for threats that, while sinister and credible in nature, were not highly imminent or concrete or failed to result in any physical violence or harm to the alien“). Furthermore, reports from the respondent‘s family that unidentified individuals were looking for him in Ghana for an unspecified purpose, along with generalized comments that others in the community knew that he agreed to testify against his coconspirators, did not objectively establish his claim.
Also, although the respondent‘s nephew was assaulted by unknown assailants in Ghana in 2009, there is nothing to indicate that the incident was anything more than a random and unrelated act of violence against his nephew. Cf. Arriaga-Barrientos v. U.S. INS, 937 F.2d 411, 414 (9th Cir. 1991) (noting that the abduction of the respondent‘s two brothers by unknown gunmen for unknown reasons does not establish the lesser well-founded fear standard for asylum protection). The Immigration Judge did not err in finding that there was no link between the nephew‘s assault and the respondent‘s fear of persecution. See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (stating that the motive of a persecutor is a finding of fact to be determined by the Immigration Judge and reviewed for clear error).
The respondent argues that he has established “that he is likely to face torture at the hands of the Ghanaian parliament.” In this regard, we find no merit to his assertions that the Immigration Judge did not give sufficient
The Immigration Judge‘s detailed and thorough decision reflects that she considered the totality of the material evidence, even if it did not reference each piece of evidence individually. See Yan Lan Wu v. Ashcroft, 393 F.3d 418, 425 n.10 (3d Cir. 2005). Even while finding the respondent credible as to past events, the Immigration Judge was not obligated to agree with his claimed fear regarding what would happen if he were returned to Ghana. As the Immigration Judge concluded, the respondent failed to satisfy his high burden of establishing that it is more likely than not that he will be tortured by or at the instigation of, or with the consent or acquiescence of, a Ghanaian public official or other person acting in an official capacity. See Roye v. Att‘y Gen. of U.S., 693 F.3d 333 (3d Cir. 2012); see also
III. CONCLUSION
In sum, we conclude that the UNTOC and the Protocols did not independently provide the respondent with a new form of relief from removal that he can advance in removal proceedings. The respondent‘s offense was a “particularly serious crime,” which statutorily bars him from withholding of removal under the Act and the Convention Against Torture. The respondent did not satisfy his burden of establishing his claim for deferral of removal under the Convention Against Torture. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.