Vasquez v. Attorney General , 208 F. App'x 184 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-19-2006
Vasquez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3510
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3510
JOSE VASQUEZ,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A38-886-784
(Honorable Grace A. Sease, Immigration Judge)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 12, 2006
Before: FUENTES and VAN ANTWERPEN, Circuit Judges, and PADOVA,*
District Judge.
(Filed December 19, 2006)
OPINION OF THE COURT
____________
*The Honorable John R. Padova, District Judge of the Eastern District of Pennsylvania,
sitting by designation.
VAN ANTWERPEN, Circuit Judge.
Petitioner Jose Vasquez, a native and citizen of the Dominican Republic, seeks
review of the March 7, 2005, Order of the Board of Immigration Appeals (“BIA”) that
affirmed without opinion the Immigration Judge's (“IJ”) denial of his application for
relief. We have jurisdiction to review the petition pursuant to 8 U.S.C. § 1252(a), and for
the reasons set forth below, we will deny the petition.
I.
Because we write solely for the benefit of the parties, we will set forth only those
facts necessary to our analysis.
Vasquez was admitted to the United States as an immigrant in 1984. In 1998, he
was arrested after taking possession of five kilograms of sham cocaine from an
undercover officer. Shortly after being released on bail, Vasquez fled to the Dominican
Republic, where he stayed for approximately two years. In May 2000, just before his
$200,000 bond was to be forfeited, he returned to the U.S. and turned himself in to
authorities. In January 2001, he pled guilty in federal court to conspiracy to possess with
intent to distribute cocaine and was sentenced to 57 months in prison. In April 2004, the
Immigration and Naturalization Service issued a Notice to Appear charging Vasquez with
being subject to removal from the United States based upon his conviction of an
aggravated felony, as defined under the Immigration and Nationality Act, and his
conviction of a violation of a controlled substance law. In July 2004, the Bureau of
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Immigration and Customs Enforcement took Vasquez into custody.
Vasquez filed applications for asylum, withholding of removal, and relief under
the Convention Against Torture. In October 2004, at a hearing on the merits of his
applications, Vasquez testified that he feared being tortured if he were to be sent back to
the Dominican Republic. He explained that he had been an informant for the Federal
Bureau of Investigation (“FBI”) after being arrested in 1998, and that he had agreed to
testify against Miguel Angelo Silva and Paco Silva, the brothers for whom Vasquez was
to unknowingly transport the five kilograms of cocaine. He further testified that he fled
to his brother’s house in the Dominican Republic in 1998 because of threats made against
his life in connection with his agreement to cooperate with authorities. Vasquez also
stated that, in 1999 or 2000, his cousin saw Paco Silva and five police officers search for
Vasquez at Vasquez’s home in the Dominican Republic. Because of this incident and
Paco Silva’s wealth and connections with the police, Vasquez fears being killed or
tortured should he be returned to the Dominican Republic.
The IJ who presided over the hearing found Vasquez removable as charged. She
denied his applications for asylum and withholding of removal after finding that
Vasquez’s drug conviction was a “particularly serious crime” under 8 U.S.C. §
1158(b)(2)(A)(ii) (stating that the Attorney General may deny withholding of removal to
a petitioner who has “been convicted by a final judgment of a particularly serious
crime”). She also denied Vasquez’s petition for withholding pursuant to the Convention
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Against Torture. Overall, she did not find that Vasquez’s story had sufficient indicia of
credibility. He presented no evidence supporting his claims that he had cooperated with
the FBI, was working for the Silva brothers at the time of his arrest, or had been
threatened by the Silva brothers. He also produced no evidence supporting his claims
that Paco Silva and five police officers had visited his home in the Dominican Republic.
Finally, the IJ found that Vasquez’s credibility was harmed by his fleeing the country and
remaining a fugitive of the law for nearly two years.
The BIA affirmed the IJ’s decision without opinion in March 2005. Vasquez,
through counsel, filed a petition for a writ of habeas corpus in the United States District
Court for the Eastern District of Pennsylvania challenging the IJ’s and BIA’s decisions.
The District Court stayed Vasquez’s removal, and transferred the petition to this Court to
be treated as a petition for review under the Real ID Act of 2005, Pub.L. 109-13.
II.
In his petition for review, Vasquez challenges the removal decision on three
grounds. First, he claims the IJ committed legal error in applying and interpreting the
U.S. Attorney General’s decision in Matter of Y-L-, A-G-, R-S-R, 23 I. & N. Dec. 270,
2002 WL 358818 (A.G. 2002) and analyzing his torture claim. Second, he claims he is
not subject to removal because he is a national of the United States. Finally, he asserts
his removal is barred by the “state-created danger exception.”
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A. The Torture Claim
Vasquez asserts the IJ erred in interpreting Matter of Y-L-, A-G-, R-S-R as an
absolute bar to any and all torture claims from Dominican nationals. Because of this
flawed interpretation, he claims the IJ did not appropriately consider evidence that shows
it is more likely than not that Vasquez will be tortured upon his return.
“When the BIA affirms an IJ without opinion, we review the IJ’s opinion...” Butt
v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005) (internal quotation marks and citation
omitted). We review the opinion under the substantial evidence standard. See Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003). Under this standard, the decision must be
affirmed if it is “supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.
1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 117 L. Ed. 2d 38
(1992)). Furthermore, the IJ’s findings must be upheld “unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484
(3d Cir. 2001).
To establish a claim for protection under the Convention Against Torture, the
applicant must meet a two-part test. First, it must be “more likely than not” that he will
be tortured if removed to the proposed country. 8 C.F.R. § 208.16(c)(2). And second,
the feared torture must 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.” 8 C.F.R.
5
§ 208.18(a)(1). In assessing the probability of the applicant being tortured, the following
factors are relevant: (1) “evidence of past torture inflicted upon the applicant;” (2)
“evidence that the applicant could relocate to a part of the country of removal where he
or she is not likely to be tortured;” and (3) “evidence of gross, flagrant or mass violations
of human rights within the country of removal, where applicable.” 8 C.F.R. §
208.16(c)(3)(i)-(iii). “The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R. § 208.16(c)(2).
Vasquez asserts the IJ read the Attorney General’s decision in Matter of Y-L-, A-
G-, R-S-R as suggesting that “no one from the Dominican Republic can ever establish a
claim for protection under the UN Convention Against Torture.” Vasquez’s Brief at 30.
Matter of Y-L-, A-G-, R-S-R analyzes, among other things, whether drug crimes constitute
“particularly serious crimes” for the purpose of the Immigration and Nationality Act.
Coincidentally, Matter of Y-L-, A-G-, R-S-R involved a petitioner very similar to
Vasquez: a Dominican national who had pled guilty to a federal drug charge, served as an
informant to federal agents, and petitioned for asylum, withholding of removal, and
Convention Against Torture protection. In her discussion of Vasquez’s petitions, the IJ
cited Matter of Y-L-, A-G-, R-S-R a total of three times and always in connection with
Vasquez’s petition for asylum and withholding of removal under the Immigration and
Nationality Act. She relied on the case to support her conclusion that Vasquez’s drug
trafficking offense constituted a “particularly serious crime” and that his applications for
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asylum and withholding of removal should be denied. In her analysis of Vasquez’s
Convention Against Torture application, the IJ neither cited nor relied upon Matter of Y-
L-, A-G-, R-S-R. Accordingly, we find Vasquez’s assertion that the IJ interpreted Matter
of Y-L-, A-G-, R-S-R as an absolute bar to his Convention Against Torture petition
without merit.
Vasquez also asserts the IJ did not appropriately consider his Convention Against
Torture petition. Specifically, he claims the IJ based her adverse credibility finding
exclusively on her perception that Vasquez did not note his fear of torture until the day of
the hearing. In addition, Vasquez claims the IJ did not consider his personal
circumstances or the Department of State’s Country Report on the Dominican Republic
in determining the likelihood of his being tortured.
Even though the IJ may have erred in finding that Vasquez first noted his fear of
torture minutes before his hearing, we find the evidence in the record sufficient to support
the IJ’s ultimate determination. In supporting her finding that Vasquez lacked credibility,
the IJ noted the following: (1) a lack of any mention in Vasquez’s pre-sentence
investigation report of the Silva brothers (despite the inclusion in the report of the names
of other co-conspirators); (2) Vasquez’s history as a fugitive; (3) Vasquez’s failure to
produce any evidence supporting his claim that he had been an informant for the FBI;
and (4) Vasquez’s failure to produce any evidence corroborating his testimony that he
had been threatened or that Paco Silva had visited Vasquez’s Dominican home. Overall,
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we find that substantial evidence supports the IJ’s credibility finding.
Furthermore, we agree with the IJ that Vasquez did not support his claim that it is
“more likely than not” that he will be tortured with the acquiescence of a public official if
he returns to the Dominican Republic. First, there is no evidence of past torture. Vasquez
lived in the Dominican Republic for two years following his cooperating with federal
agents and was not harmed.1 Second, Vasquez presented no evidence that he will likely
be tortured if he returns. He claims he will be tortured in a Dominican prison because he
is a deportee from the United States. He points to no specific evidence, however, that
shows Dominican deportees from the U.S. are often imprisoned and tortured because of
their status as deportees. Finally, he offers little evidence that the government would
acquiesce to his torture. The only support he provides for this assertion is an unverified
account from his cousin that police accompanied Paco Silva to Vasquez’s house and his
own belief that the Silva brothers can bribe police officials. Overall, Vasquez did not
meet his burden of proving that he is “more likely than not” to be tortured with the
acquiescence of a public official if he is returned to his native land.
B. Vasquez as a “National”
Vasquez claims he is not subject to removal because he is a “national” of the
United States. As a result, he asserts the Executive Office for Immigration Review has
1
We find it curious that, when Vasquez’s life was threatened in 1998 by the
Silvas, he thought it safer to live in the Dominican Republic with his brother than remain
in the U.S.
8
no jurisdiction under the Immigration and Nationality Act to order his removal.
Because this Court considered and rejected Vasquez’s claim that he is a national in
an earlier appeal, we need not reconsider it. See Vasquez v. Immigration and Customs
Enforcement, 160 Fed. Appx. 199, 2005 WL 3481523 (3d Cir. 2005) (finding
“Vasquez...is not a national.”).
C. The “State-Created Danger Exception”
Finally, Vasquez argues the U.S. government has an affirmative duty to protect
him because the risk of his being tortured arises from the assistance he provided to
federal agents.
Generally, the state has no obligation to protect individuals from harm inflicted by
third parties. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,
195, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). However, as this Court explained in
Kamara v. Attorney General, “we have recognized a ‘state-created danger exception,’
such that the government has a constitutional duty to protect a person against injuries
inflicted by a third-party when it affirmatively places the person in a position of danger
the person would not otherwise have faced.” 420 F.3d 202, 216 (3d Cir. 2005).
Despite Vasquez’s contentions, Kamara explicitly declined to recognize the state-
created danger exception in the immigration context. This Court determined that
extending the exception in this way, “would impermissibly tread upon the Congress’
virtually exclusive domain over immigration, and would unduly expand the contours of
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our immigration statutes and regulations, including the regulations implementing the
[Convention Against Torture].” Id. at 217-18. Based on this precedent, we reject
Vasquez’s claim for relief under the state-created danger exception.
III.
We have considered all other arguments made by the parties on appeal, and
conclude that no further discussion is necessary. For the foregoing reasons, we conclude
that substantial evidence supports the IJ's denial of Vasquez’s petition and will deny the
petition for review.
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