In re Y-L- In re A-G- In re R-S-R-
U.S. Department of Justice Office of the Attorney General
Decided March 5, 2002
23 I&N Dec. 270 (A.G. 2002); Interim Decision #3464
(2) The respondents are not eligible for deferral of removal under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment where each failed to establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, Interim Decision 3430 (BIA 2000), followed.
IN REMOVAL PROCEEDINGS
By previous Order, I directed the Board of Immigration Appeals (“BIA“) to refer the above-captioned cases to me for review pursuant to
I.
The three respondents in this consolidated matter are foreign nationals who bear final judgments of conviction for felony drug trafficking offenses in the United States. Specifically, Y-L- was convicted in the Martin County, Florida Circuit Court of trafficking in cocaine and resisting an officer with violence, in violation of
As a result of the respondents’ aggravated felony convictions,3 the Immigration and Naturalization Service (“INS“) commenced removal proceedings against them. See
Although two of the three respondents were denied all relief by immigration judges,5 the BIA on appeal held that all three were entitled to withholding of removal under section 241 of the INA. Invoking its decision in In re S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999), the BIA in each case held that the aggravated drug trafficking felonies committed by respondents did not constitute “particularly serious crimes” for purposes of Section 241(b)(3)(A) of the INA dictates that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.” This restriction does not apply, however, if “the Attorney General decides that . . . the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States.” Although the INA itself does not define the term “particularly serious crime,” pertinent textual guidance is found in the final clause of section 241(b)(3), which provides, in relevant part: For purposes of [section 241(b)(3)(B)(ii)], an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime. This provision establishes that aliens convicted of aggravated felonies and sentenced to at least five years of imprisonment are automatically deemed to have committed a “particularly serious crime.” With respect to aggravated felony convictions for which a lesser sentence has been imposed, however, Congress explicitly empowered the Attorney General to make the relevant determination. Prior to today, the Attorney General has had no occasion to consider which aggravated felonies might amount to “particularly serious crimes” where the prison sentence imposed upon conviction is less than five years. Operating in this void, the BIA has seen fit to employ a case-by-case approach, applying an individualized, and often haphazard, assessment as to the “seriousness” of an alien defendant‘s crime. See In re S-S-, supra. Not surprisingly, this methodology has led to results that are both inconsistent and, as plainly evident here, illogical. According to the BIA, the 1996 INA amendments in the Antiterrorism and Effective Death Penalty Act (“AEDPA“), Pub. L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“), Pub. L. No. 104-208, 110 Stat. 3009-546 - which eliminated a provision declaring that all aggravated felonies are “particularly serious crimes”7 - reflected Congress’ desire to replace classifications based on the “category or type of crime that resulted in the conviction” with classifications “based on the length of sentence imposed.” See In re S-S-, supra. I do not concur. The BIA‘s interpretation of these amendments places far too much weight on the first sentence of section 241(b)(3)‘s final clause (the mandatory designation) and far too little weight on the final clause‘s second sentence (the grant of discretionary authority to the Attorney General). The fact that Congress designated as per se “particularly serious” every aggravated felony Exercising that authority under the INA, it is my considered judgment that aggravated felonies involving unlawful trafficking in controlled substances presumptively constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B)(ii). Only under the most extenuating circumstances that are both extraordinary and compelling would departure from this interpretation be warranted or permissible.9 Both the courts and the BIA have long recognized that drug trafficking felonies equate to “particularly serious crimes” in this context. In Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986), for example, the Ninth Circuit upheld the BIA‘s determination that an alien‘s conviction for possession of heroin with intent to distribute, and aiding and abetting the distribution of heroin, We find that the crime of trafficking in drugs is inherently a particularly serious crime. The harmful effect to society from drug offenses has consistently been recognized by Congress in the clear distinctions and disparate statutory treatment it has drawn between drug offenses and other crimes. [citation omitted] Illicit narcotic drugs sold in the United States ruin or destroy the lives of many American citizens each year. Apart from the considerable number of people in this country who die of overdoses of narcotics or who become the victims of homicides related to the unlawful traffic of drugs, many others become disabled by addiction to heroin, cocaine, and other drugs. There are also many in this country who suffer crimes against their persons and property at the hands of drug addicts and criminals who use the proceeds of their crimes to support their drug needs. Additionally, a considerable amount of money is drained from the economy of the United States annually because of the unlawful trafficking in drugs. This unfortunate situation has reached epidemic proportions and it tears the very fabric of American society. As we find trafficking in drugs to inherently be a particularly serious crime, no further inquiry is required into the nature and circumstances of the respondent‘s convictions for sale or transportation of marihuana and sale of LSD. Id. at 330-31 (emphasis added); accord Matter of Gonzalez, 19 I&N Dec. 682, 684 (BIA 1988). The propriety of the “particularly serious crime” presumption adopted in this opinion is further supported by the long-standing congressional recognition that drug trafficking felonies justify the harshest of legal consequences. See, e.g., The severity of this legislative treatment has a solid foundation. The devastating effects of drug trafficking offenses on the health and general welfare, not to mention national security, of this country are well documented.10 Because the illegal drug market in the United States is one of the most profitable in the world, it attracts the most ruthless, sophisticated, and aggressive traffickers. Substantial violence is present at all levels of the distribution chain. Indeed, international terrorists increasingly employ drug trafficking as one of their primary sources of funding.11 Based on the preceding discussion, I might be well within my discretion to conclude that all drug trafficking offenses are per se “particularly serious crimes” under the INA.12 I do not consider it necessary, however, to exclude entirely the possibility of the very rare case where an alien may be able to demonstrate extraordinary and compelling circumstances that justify treating a particular drug trafficking crime as falling short of that standard. While this opinion does not afford the occasion to define the precise boundaries of what those unusual circumstances would be, they would need to include, at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence On review of the records in the cases now before me, it is apparent that none presents the kind of extraordinary and compelling circumstances that might warrant treating the respondents’ aggravated drug trafficking felonies as anything other than “particularly serious crimes.” Not only have all three respondents failed to demonstrate that the volume or value of controlled substances involved in their offenses was de minimis or inconsequential, but each was a direct actor or perpetrator - not merely a peripheral figure - in their respective criminal activities. Y-L- was convicted of a first-degree drug trafficking felony involving 84 grams of cocaine and, in connection with that offense, was further convicted of resisting a police officer with violence when apprehended. Y-L- BIA Decision at 2; Hr‘g Tr. at 30. The BIA declared that these crimes were not “particularly serious” because Y-L- had no criminal history, could have received a much stiffer sentence, and did not use a weapon or inflict personal injuries during the commission of the offenses. Id. at 5. The Board‘s decision has no merit. As noted above, the fact that an alien has no prior convictions is irrelevant to the “particularly serious crime” calculus. The same is true of a trial judge‘s decision to mete out a sentence at the low-end A-G- was convicted of three federal drug felony counts, and stipulated that the amount of cocaine attributable to him for sentencing purposes was 1,330 grams. A-G- Hr‘g Exh. 13, at 3. That is enough cocaine to supply over 100,000 doses of the drug. See United States v. Denmark, 124 F.3d 200 (6th Cir. 1997) (Table), 1997 WL 468302. Yet the BIA ruled that the offenses did not rise to the level of “particularly serious crimes” inasmuch as A-G- “placed himself at great risk to obtain information on behalf of the FBI” and “received a substantially lower sentence because of his efforts.” A-G- BIA Decision at 2-3. One does not follow from the other. While A-G-‘s post-charge cooperation understandably secured a more lenient sentence, it did not retroactively alter the nature of the underlying offenses. The insidious quality of the crime remained the same. Finally, R-S-R- pled guilty to participation in a conspiracy to produce cocaine in Puerto Rico and transport it in multi-kilogram quantities for subsequent distribution in New York. R-S-R- IJ Oral Decision at 7; Hr‘g Tr. at 88-89. Nevertheless, the BIA adjudged his conviction not to be “particularly serious” under Although the respondents are statutorily ineligible for withholding of removal by virtue of their convictions for “particularly serious crimes,” the regulations implementing the Convention Against Torture allow them to obtain a deferral of removal notwithstanding the prior criminal offenses if they can establish that they are “entitled to protection” under the Convention. See Y-L-, who was paroled into the United States in 1979, maintains that he will be killed if sent back to his native Haiti.14 He testified at his removal hearing that two months prior to his arrival in America, members of the Ton Ton Macoutes - a private army of Haitian death squads organized by former president Francois Duvalier and nurtured by his successor, Jean Claude Duvalier - murdered his father and aunt, and broke his cousin‘s leg as retribution for his father‘s unspecified criticism of the Duvalier government. Y-L- IJ Oral Decision at 3. Y-L- further insisted that the same group of people responsible for the death of his father killed his cousin in 1998, approximately twenty years after Y-L- initially left the country. Id. at 3-4, 8; Y-L- Hr‘g Tr. at 11-15. Y-L-‘s claim for relief under the Convention Against Torture fails on at least two different levels. First, as the immigration judge correctly found, Y-L- produced no reliable evidence that he would likely be subjected to torture if returned to Haiti. Y-L- IJ Oral Decision at 8. While voluntarily visiting Haiti on two prior occasions, he was never personally harmed or threatened. Id. at 2-3. Although he suggested that his cousin was murdered by the same faction that purportedly killed his father nearly twenty years earlier, the immigration judge found this testimony speculative and Second, even assuming Y-L-‘s various allegations have some basis in fact, and even if his own alleged fears of torture are genuine, he is not entitled to deferral of removal under the Convention Against Torture because he has not established that current government officials acting in an official capacity would be responsible for such abuse. The regulations implementing the Convention allow for relief only if torture would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The evidence advanced by A-G- similarly falls far short of what is required to obtain relief under the Convention Against Torture. At some point following his entry into the United States, A-G- decided to supplement his income as a maintenance worker by trafficking in illegal narcotics. His supplier was his long-time friend and roommate, K-C-, who had a drug-dealing base in Jamaica. A-G- Hr‘g Tr. at 77-88. As so often happens to those in the drug trade, A-G- was ultimately arrested by the FBI, charged with unlawful distribution of cocaine, and convicted on multiple counts of cocaine trafficking. To minimize his exposure to prison, he agreed to assist federal law enforcement officials by participating in a number of controlled drug purchases designed to implicate K-C-. During a period in which both K-C- and A-G- were temporarily incarcerated at the same facility, K-C- allegedly delivered a message to A-G- that he would be killed if he returned to Jamaica. In addition, according to A-G-‘s brothers and sisters, two or three men came to the family residence in Jamaica in either 1998, 1999, or 2000 - the dates and other key particulars diverged sharply among these witnesses - and inquired as to A-G-‘s whereabouts. At least one sibling claimed that these men were armed and made threats that A-G- would be murdered by K-C- or others if he returned to Jamaica. Id. at 154, 251. Citing these apparent threats to his life, A-G- seeks to avoid removal pursuant to the Convention Against Torture. The main problem with his claim is that the record is devoid of credible evidence suggesting that the Jamaican government would bear any responsibility - either direct or through passive acquiescence - for physical harm visited upon A-G-. In fact, several of the witnesses candidly acknowledged at the hearing that no one in the family even reported the alleged threats to Jamaican authorities. Id. at 154, 174, 195, 245. Although there are indications that corruption and brutality affect some elements of Jamaican law enforcement, the national government has undertaken substantial efforts at reform. See Office of Asylum Affairs, Dep‘t of State, Country Reports on Human Rights Practices - Jamaica 1 (Feb. 2001) (“Country Report“). For example, the Jamaican Parliament passed a major anti-corruption bill in December 2000, and recently ratified the Inter-American Convention Against Corruption. See Bureau for International Narcotics and Law Enforcement Affairs, Dep‘t of State, Fact Sheet, Country Program: Jamaica at 1 (Apr. 16, 2001). It also bolstered the national anti-money laundering laws. Id. Notwithstanding the allegations of A-G- and his family to the contrary, the U.S. State Department has found that the policy of the Jamaican government is to investigate all credible reports of police corruption. Bureau for International Narcotics and Law Enforcement Affairs, Dep‘t of State, International Narcotics Control Strategy Report (March 2000). The State Department has further reported that the Jamaican government does not encourage or facilitate the illicit production or distribution of narcotics. Id. at 4. While acknowledging that abuses by some members of the security forces occasionally occur, the State Department‘s 2000 Country Report for Jamaica makes clear that “[c]ivilian authorities generally maintain effective control of the security forces,” and “[t]he Government generally respect[s] the human rights of its citizens.” Country Report at 1. To be sure, there is room for improvement. But the record does Ultimately, of course, it is impossible to say with certainty whether A-G- will be exposed to torture by particular individuals upon his return to Jamaica. Those who engage in the illegal drug trade quite commonly expose themselves to the risk of violence; it is an occupational hazard. The relevant inquiry under the Convention Against Torture, however, is whether governmental authorities would approve or “willfully accept” atrocities committed against persons in the respondent‘s position. See In re S-V-, supra. To suggest that this standard can be met by evidence of isolated rogue agents engaging in extrajudicial acts of brutality, which are not only in contravention of the jurisdiction‘s laws and policies, but are committed despite authorities’ best efforts to root out such misconduct, is to empty the Convention‘s volitional requirement of all rational meaning. As the courts have clearly recognized, relief is available only if the torture would “occur[] in the context of governmental authority,” not “as a wholly private act.” Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2001). There being no such credible evidence in the case at bar, A-G-‘s request for deferral must be denied. Turning to R-S-R-, a foreign national from the Dominican Republic who has resided in Puerto Rico continuously since his arrival there in 1985, it is clear that his application for relief under the Convention Against Torture suffers from largely the same maladies as those of the other two respondents. Beginning no later than March 1997, R-S-R- entered into an elaborate “conspiracy to produce multi-kilogram quantities of cocaine in Puerto Rico which would then be transported to New York, where the cocaine would be sold.” Plea and Cooperation Agreement at 13, United States v. R-S-R-, (D.P.R.), Crim. No. 97-290. “[M]ultikilo quantities of cocaine” were also sold in Puerto Rico, thereby ensuring substantial profits from the conspiracy. Id.; R-S-R- Hr‘g Tr. at 88-89. Subsequently, R-S-R- was arrested on federal drug charges. In an effort to reduce his prison sentence, he pled guilty and cooperated with federal authorities by testifying against several of his confederates in this “major cocaine trafficking organization.” United States’ Motion Requesting Downward Departure Pursuant to [U.S.S.G. §] 5K1.1 at 1-2, United States v. R-S-R-, (D.P.R.), Crim. No. 97-290. Invoking the Convention Against Torture, R-S-R- now seeks deferral of removal on the grounds that he will be subjected to physical cruelties by The record indicates that R-S-R-‘s testimony is highly suspect. To begin with, as the immigration judge correctly observed in questioning R-S-R-‘s credibility, R-S-R- produced no documentation to corroborate his claim that the drug conspiracy originated in the Dominican Republic. R-S-R- IJ Oral Decision at 7-8. Nor do any of the documents suggest even implicitly that Dominican citizens were involved in the operation. Id. at 8. To the contrary, the materials introduced at the hearing, including those offered by the respondent himself, reflect that the conspiracy operated exclusively in Puerto Rico and New York. Although the immigration judge, at various pre-trial hearings, pointedly invited R-S-R- to subpoena (or secure affidavits from) the federal agents and prosecutors to whom he directed his cooperation so as to substantiate his claims, the respondent declined the invitation. Id. at 6-7; R-S-R- BIA Decision at 4 n.5. Corroborative evidence, of course, is not a threshold prerequisite to relief under the Convention Against Torture. INS regulations provide that an applicant‘s testimony, “if credible, may be sufficient to sustain the burden of proof without corroboration.” In any event, even assuming that the tentacles of this drug conspiracy reached into the Dominican Republic, R-S-R-‘s allegation that he will be exposed to torture there is wholly unpersuasive. Despite testifying that it is easy to travel between Puerto Rico and the Dominican Republic, he stated emphatically that he felt safe from his former drug-dealing collaborators in Puerto Rico. R-S-R- Hr‘g Tr. at 64-68. When the immigration judge asked him why, if travel between the two countries was so simple, the Dominican individuals he fears could not simply smuggle agents into Puerto Rico to seek their retribution against him, he was non-responsive. See R-S-R- IJ Oral Decision at 9-10, 16. Furthermore, even if all of R-S-R-‘s testimony was credited as true, he still would not be eligible for deferral of removal because he has not established the requisite governmental involvement in the prospective torture he portrayed. The scope of the Convention is confined to torture that is inflicted under color of law. It extends to neither wholly private acts nor acts inflicted or approved in other than “an official capacity.” Ali, 237 F.3d at 597; For all the foregoing reasons, the decisions of the BIA in each of these cases are reversed. The cases are remanded to the BIA for proceedings not inconsistent with this opinion.II.
B.
A. Y-L-
B. A-G-
C. R-S-R-
IV.