Gelaneh v. Atty Gen USA , 153 F. App'x 881 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-14-2005
Gelaneh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3071
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-3071
TEFERI GELANEH,
Appellant
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF UNITED STATES AMERICA;
TOM RIDGE, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
MICHAEL D. GARCIA, Assistant Secretary of the Bureau of
Immigration and Customs Enforcement (BICE); MATT JACK, Interim District
Director of the Bureau of Immigration and Customs Enforcement (BICE)
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-CV-2231)
District Judge: The Honorable Dennis M. Cavanaugh
______________
Submitted Under Third Circuit LAR 34.1(a)
May 10, 2005
Before: SLOVITER and FISHER, Circuit Judges.
and POLLAK,* District Judge.
(FILED: November 14, 2005)
*
Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
1
OPINION OF THE COURT
_______________
POLLAK, District Judge.
Teferi Gelaneh is challenging a ruling of an Immigration Judge (“IJ”), affirmed by
the Board of Immigration Appeals (“BIA”), which directs Gelaneh’s removal. Gelaneh is
now before us on appeal from a judgment of the United States District Court for the
District of New Jersey, which dismissed, for lack of jurisdiction, his habeas corpus
petition. For the reasons which follow, we convert the instant appeal from the District
Court's denial of Gelaneh’s habeas petition into a petition for review, but conclude his
petition for review must be denied.
I
Gelaneh is a native of Ethiopia and a lawful permanent resident who is currently
separated from his American citizen wife, and who has two citizen children. On May 27,
1998, Gelaneh was convicted in a Pennsylvania court (the Court of Common Pleas of
Lehigh County) of possessing a controlled substance – namely, cocaine – with intent to
deliver, in violation of Pa. Stat. Ann. § 780.113(a)(30), and was sentenced to five years’
probation. Five days later, on June 1, 1998, the Immigration and Nationalization Service
(“INS”) arrested Gelaneh and instituted removal proceedings.1 He was charged with
1
The INS has since been dissolved and its functions absorbed into the new
Department of Homeland Security in 2003.
2
being subject to removal pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii) (conviction of an aggravated felony), and INA § 237(a)(2)(B)(I), 8
U.S.C. § 1227(a)(2)(A)(iii) (conviction of a controlled substances offense). After nine
days of detention, Gelaneh, on June 10, 1998, was released on bail on posting a bond of
$7,000.2
On April 8, 1999, the IJ ruled that Gelaneh’s offense did not constitute a
“particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii), and that Gelaneh was thus
eligible to apply for withholding of removal pursuant to § 1231(b)(3)(A). Section
1231(b)(3)(A) bars the Attorney General from “remov[ing] 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.” Section 1231(b)(3)(B), however, contains an exception
authorizing removal if the alien is found by the Attorney General to have “been convicted
by a final judgment of a particularly serious crime,”and who is thus “a danger to the
community of the United States.” Gelaneh also applied for relief under Article 3 of the
Convention Against Torture (“CAT”),3 eligibility for which does not depend on the
2
Gelaneh contends, and the government does not dispute, that he has complied
completely with his bail conditions.
3
Article 3, section 1 of CAT states: “No State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.”
This provision has been incorporated into United States law under the Foreign
Affairs Reform and Restructuring Act of 1998: “It shall be the policy of the United States
3
gravity of the alien’s conviction. After hearing testimony, the IJ found that Gelaneh had
not met his burden of proving that he would face persecution (the necessary predicate for
§ 1231(b)(A) relief) or torture (the necessary predicate for CAT relief) upon his return to
Ethiopia. The IJ thus denied both claims for relief, and ordered that Gelaneh be removed
to Ethiopia.
Gelaneh filed a timely appeal with the BIA, which affirmed the IJ’s result on April
18, 2003. In affirming the IJ’s ultimate determination, the BIA, however, rejected the IJ’s
conclusion that Gelaneh’s drug conviction is not a “particularly serious crime.” Instead,
the BIA found that, under Matter of Y-L-, 23 I & N Dec. 270 (A.G. 2002), Gelaneh’s drug
conviction presumptively constituted a “particularly serious crime,” and thus rendered
him ineligible for withholding of removal under § 1231(b)(3)(A). Regarding the CAT
claim, the BIA agreed with the IJ that Gelaneh had not met his burden of establishing that
it was more likely than not that he would be tortured were he returned to Ethiopia, see 8
C.F.R. § 1208.17. The BIA thus dismissed Gelaneh’s appeal, thereby rendering final his
deportation order.
On May 15, 2003, Gelaneh filed a petition for habeas corpus, pursuant to 28
U.S.C. § 2241, seeking review of the BIA’s decision, and on June 18, 2004, the District
not to expel, extradite, or otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing the person would be in
danger of being subjected to torture, regardless of whether the person is physically
present in the United States.” Pub. L. No. 105-227, Div. G., Title XXII, § 2242, 112 Stat.
2681, 2681-822, codified as note to 8 U.S.C. § 1231.
4
Court dismissed Gelaneh’s petition. The District Court found that Gelaneh, having been
released from INS detention on bail at the time he filed his § 2241 habeas petition, could
not satisfy the jurisdictional requirement of § 2241 that a petitioner be “in custody.” 4 The
District Court also found an alternate bar, which it characterized as jurisdictional, to
4
28 U.S.C. § 2241(c) provides:
The writ of habeas corpus shall not extend to a prisoner unless –
(1) He is in custody under or by color of the authority of the
United States or is committed for trial before some court
thereof; or
(2) He is in custody for an act done or omitted in pursuance of
an Act of Congress, or an order, process, judgment or decree
of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or
treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein
is in custody for an act done or omitted under any alleged
right, title, authority, privilege, protection, or exemption
claimed under the commission, order or sanction of any
foreign state, or under color thereof, the validity and effect of
which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
Other courts have found that the institution of removal proceedings, with its
attendant constraints, is equatable with “custody,” whether or not the respondent is
incarcerated at the time of filing the § 2241 petition. See, e.g., Simmonds v. INS,
326 F.3d 351, 354 (2d Cir. 2003); Mustata v. United States, 179 F.3d 1017, 1022
n. 4 (6th Cir. 1999); Nakaranurack v. United States, 68 F.3d 290 (9th Cir. 1995);
Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994), cert. denied, 513
U.S. 1086 (1995).
5
Gelaneh’s petition, concluding that the petition raised challenges solely to the BIA’s
factual or discretionary determinations, and that such challenges were not cognizable
under § 2241.
This timely appeal followed.
II
The REAL ID Act, which became law on May 11, 2005, amended 8 U.S.C. § 1252so that petitions for review filed with the court of appeals are the “sole and exclusive
means for judicial review of” most orders of removal, including the order of removal at
issue here. See 8 U.S.C. § 1252(a)(5) (1999 & Supp. 2005); Bonhometre v. Gonzales,
414 F.3d 442, 445 (3d Cir. 2005). “In so doing, the Act expressly eliminated district
courts’ habeas jurisdiction over removal orders.” Jordan v. Attorney General of the
United States, 2005 WL 2334686, at *4 (3d Cir. Sept. 26, 2005); see also Bonhometre,
414 F.3d at 445; Kamara v. Attorney General of the United States, 420 F.3d 202 (3d Cir.
2005).
Further, “[w]e have also acknowledged that Congress left no doubt that the REAL
ID Act's changes to § 1252(a)(2)(D) would be retroactive.” Jordan, 2005 WL 2334686,
at *4. Consequently, “those habeas petitions that were pending before this Court on the
effective date of the REAL ID Act are properly converted to petitions for review and
retained by this Court.” See REAL ID Act § 106(c); Bonhometre, 414 F.3d at 446. In
6
converting petitioner’s habeas petition into a petition for review, we vacate the District
Court’s decision denying habeas relief, and address the merits of Gelaneh's claims as if
they had been raised in a petition for review before us in the first instance. See Jordan,
2005 WL 2334686, at *4; Bonhometre, 414 F.3d at 446-47; Kamara, 420 F.3d at 210.
Necessarily, “[t]his approach . . . obviates the question of whether [the petitioner] was ‘in
custody’ for purposes of § 2241” and is therefore “a jurisdictional inquiry no longer
relevant to our analysis here.” Jordan, 2005 WL 2334686, at *5.
Despite the conversion of this appeal from a habeas petition into a petition for
review, our scope of review remains the same. See Bonhometre, 414 F.3d at 446;
Kamara, 420 F.3d at 210. Thus, examining Gelaneh’s claims, “we are limited to pure
questions of law, and to issues of application of law to fact, where the facts are
undisputed and not the subject of challenge.” Kamara, 420 F.3d at 210 (internal citations
and quotation marks omitted). While we review the BIA’s legal determinations de novo,
we afford Chevron deference to the BIA’s reasonable interpretations of immigration
regulations. Id.III
Before the IJ and BIA, Gelaneh had sought two forms of relief – deferral of
removal pursuant to the CAT, and withholding of removal pursuant to 8 U.S.C. §
1231(b)(3)(A). We conclude that the BIA properly applied the law to the facts of this
7
case when it denied Gelaneh’s CAT claim. We also review Gelaneh’s § 1231(b)(3)(A)
claim of withholding of removal, but believe this claim too fails because Gelaneh was not
prejudiced by certain deficiencies in the BIA’s opinion.
A
In determining that Gelaneh was not eligible for relief under the CAT, the BIA
stated the correct legal standard, which required Gelaneh to prove that it was more likely
than not that he would be tortured were he returned to Ethiopia, see 8 C.F.R.
§1208.16(c)(4) (“If the immigration judge determines that the alien is more likely than not
to be tortured in the country of removal, the alien is entitled to protection under the
Convention Against Torture”). Moreover, we agree with the BIA’s application of this
standard to the IJ’s finding that Gelaneh gave “incredible” testimony and failed to provide
any supporting documents establishing his identity. When – as here – the lack of
credibility goes to the heart of the alien’s claim that he will be more likely than not be
tortured if returned to his home country, denial of eligibility for relief under the CAT is
appropriate. Accordingly, the BIA’s determination that Gelaneh is ineligible for relief
under the CAT is sustained.
B
Withholding of removal is not available to the alien who has been convicted of a
“particularly serious crime,” § 1231(b)(3)(B)(ii), a category that includes all aggravated
felonies for which the alien was sentenced to imprisonment for five or more years, §
8
1231(b)(3)(B)(iv), as well as those crimes that the Attorney General deems to be
particularly serious “notwithstanding the length of sentence imposed,” id. The decision
as to whether a crime is “particularly serious” is thus committed to the discretion of the
Attorney General. See generally § 1231(b)(3)(B).
In Matter of Y-L-, 23 I & N Dec. 270 (AG 2002), the Attorney General exercised
the discretion afforded him under § 1231(b)(3)(B) and ruled that “[a]ggravated felonies
involving unlawful trafficking in controlled substances presumptively constitute
‘particularly serious crimes’ within the meaning of . . . 8 U.S.C. § 1231(b)(3)(B) (2000).”
Id. at 270. The presumption would be rebutted “only under the most extenuating
circumstances that are both extraordinary and compelling.” Id. The Attorney General
went on to enumerate six such circumstances: “(I) 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 of any organized crime or
terrorist organization involvement, direct or indirect, in relation to the offending activity;
and (6) the absence of any adverse or harmful effect of the activity or transaction on
juveniles.” In re Y-L-, 23 I. & N. Dec. 276-77. The Attorney General then stated that only
if all of these circumstances were present “would it be appropriate to consider whether
other, more unusual circumstances (e.g., the prospective distribution was solely for social
9
purposes, rather than for profit) might justify departure from the default interpretation that
drug trafficking felonies are ‘particularly serious crimes.’” Id. at 277.
In the case at bar, the BIA in three sentences summarily reversed the IJ’s
determination that Gelaneh’s offense was not a particularly serious crime:
It is undisputed that [Gelaneh] has been convicted of a drug trafficking
crime. Subsequent to the Immigration Judge’s decision, the Attorney
General has issued a decision finding that such crimes presumptively
constitute “particularly serious crimes” within the meaning of section
241(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1231(b)(3)(B). Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002) overruling
Matter of S-S-, 22 I&N Dec. 458 (BIA 1999). [Gelaneh] is therefore
subject to a mandatory bar to a grant of withholding of removal because he
has been convicted of a particularly serious crime. Section 241(b)(3)(B) of
the Act; 8 C.F.R. § 1208.16(d)(2).
J.A. at 21. Thus, even though Y-L- created a presumption, and not a per se rule, that drug
trafficking offenses constitute “particularly serious crimes,” the BIA automatically
concluded that Gelaneh’s offense fell within the presumption. However, to comply with
due process when deciding whether a criminal alien has committed a “particularly
serious” crime, the Board must make an individualized determination, “rather than blindly
following a categorical rule, i.e., that all drug convictions qualify as ‘particularly serious
crimes.’” Chong v. Quarantillo, 264 F.3d 378, 387 (3d Cir. 2001) (quoting Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)).5 Therefore, where, as here, the petitioner
5
Indeed, the Attorney General explained his decision to characterize drug offenses
as presumptively, rather than per se, “particularly serious crimes” by citing to Chong for
the proposition that “that the application of ‘per se’ determinations is legally
10
challenges not the result of a discretionary determination but the process by which that
determination is made, we are not barred from reviewing his claim.
To provide Gelaneh with an individualized determination, the BIA was required to
determine whether the six potentially extenuating circumstances enumerated in Matter of
Y-L- existed in his case. There is no evidence that the BIA did so here. As described
above, the BIA simply noted the presumption of seriousness, and then summarily applied
the presumption to Gelaneh’s offense. To be sure, “[t]he Board is not required to write an
exegesis on every contention, but only to show that it has reviewed the record and grasped
the movant's claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002). Here,
however, the Board did not demonstrate that it was even aware of exceptions to the
presumption of seriousness announced in Y-L, let alone that it had determined that
Gelaneh’s offense did not constitute such an exception. When the Board treats a
rebuttable presumption as an irrebuttable per se rule, it fails to provide the individualized
determination that due process requires.
But there can be “no due process violation in the absence of prejudice.” Wilson v.
Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). Thus, to prevail on this petition for review,
Gelaneh must show that the BIA likely would have reached a different result had the BIA
attempted to address the presumption in proper fashion. Gelaneh has, however, proffered
nothing to suggest that ampler BIA inquiry would have led the BIA to conclude that the
questionable.” Y-L-, 23 I & N Dec. at 274 n.12.
11
circumstances of Gelaneh’s crime would have satisfied the six Y-L- factors. Gelaneh
avers that he was found with 21 grams of cocaine when he was arrested; the police report
stated that it was 41 grams. Either amount would appear to be too substantial to qualify
as “a very small quantity” as is required under the first Y-L- factor. See, e.g., U.S.S.G. §
2D1.1(c) (specifying 10-16 months imprisonment for a defendant convicted of trafficking
25 grams or less of cocaine if that defendant, like Gelaneh, has no prior criminal history).6
Further, Gelaneh was apprehended in the course of buying drugs with marked bills given
to him by a confidential informant. He later told the police that he had been involved in
three prior drug sales. Thus, it would have been unlikely that the BIA would have
concluded that Gelaneh’s involvement in the drug transactions was “merely peripheral” as
is required under the third Y-L- factor. In short, with respect to at least two of the six
factors, it is highly improbable that more careful BIA scrutiny would have led the BIA to
find Gelaneh’s position meritorious – and Gelaneh would have needed to prevail on all
six factors in order merely to cross the threshold of eligibility for withholding of removal.
Finally, even if the BIA had ultimately concluded that Gelaneh’s crime was not
“particularly serious,” it could have found Gelaneh eligible for withholding of relief only
if it had disagreed with the IJ’s ruling that Gelaneh did not establish a “clear probability”
of persecution in Ethiopia, INS v. Stevic, 467 U.S. 407, 413 (1984). Gelaneh presented
6
Gelaneh’s pre-sentence report stated that, “given the amount of the drug that was
confiscated in the arrest,” the Pennsylvania sentencing guidelines “clearly stipulate a
period of incarceration.”
12
the same evidence to support his § 1231(b)(3)(A) and CAT claims, and the IJ determined
that this evidence was insufficient to meet Gelaneh’s burden of proof for either claim.
Thus, the IJ concluded that Gelaneh’s “incredible testimony and the absence of any
supporting documents establishing his identity (when he had ample opportunity to obtain
them) leaves this court no choice but to deny his applications for withholding of removal
and relief under the Torture Convention.” J.A. at 35.
In addressing the IJ’s denial of Gelaneh’s CAT claim, the BIA was required to
review, and did review, the very same evidence that the IJ relied upon to deny Gelaneh’s
§ 1231(b)(3)(A) claim, and the BIA found that evidence wanting. See J.A. at 21 (“The
testimony of the respondent and his witnesses, when assessed against the background and
other documentary evidence in the record, is inadequate to meet the stringent burden of
proving that it is more likely than not that he will face torture if returned to Ethiopia.”).
The burden of establishing a risk of future torture is more stringent than is the burden of
establishing a risk of future persecution. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.
2003). Since Gelaneh presented the same evidence in support of both claims for relief, it
is hardly likely that the BIA would have found that Gelaneh had failed to establish a clear
probability of persecution but had succeeded in establishing a clear probability of torture.
In short, the record in this case forecloses the possibility that the BIA, on ampler
review of Gelaneh’s claims, would have granted Gelaneh relief under § 1231(b)(3)(A).
Accordingly, while the BIA ought to have been more thorough in addressing the question
13
whether Gelaneh’s offense of possessing cocaine with intent to distribute was a
“particularly serious” crime, we cannot say that Gelaneh was prejudiced as a result of the
deficiencies in the BIA’s opinion.
Conclusion
Our review of the record establishes that, although the BIA’s treatment of one
aspect of Gelaneh’s appeal gave rather short shrift to due process, Gelaneh has failed to
demonstrate resultant prejudice. Accordingly, Gelaneh’s petition for review is denied.
14