Comollari, Irgen v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3773
IRGEN COMOLLARI,
Petitioner,
v.
JOHN D. ASHCROFT,
Respondent.
____________
On Petition to Review an Order of
the Board of Immigration Appeals.
No. A 77 658 062.
____________
ARGUED JULY 6, 2004—DECIDED AUGUST 10, 2004
____________
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Comollari, an Albanian, challenges
an order issued by an immigration judge and affirmed with-
out opinion by the Board of Immigration Appeals removing
(deporting) him to Albania. He claims that the order vio-
lates Article 3 of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,
1465 U.N.T.S. 85 (1984), which the United States has signed.
Article 3 of the Convention, incorporated into federal law by
section 2242(a) of the Foreign Affairs Reform and Restruc-
turing Act of 1988, 8 U.S.C. § 1231, forbids expelling a
person to “a country in which there are substantial grounds
2 No. 03-3773
for believing the person would be in danger of being sub-
jected to torture.” An implementing regulation defines “sub-
stantial grounds for believing the person would be in dan-
ger of being subjected to torture” to mean that he “is more
likely than not to be tortured in the country of removal.”
8 C.F.R. § 208.16(c)(4); see Khouzam v. Ashcroft, 361 F.3d 161,
168 (2d Cir. 2004); Deborah E. Anker, Law of Asylum in the
United States 510-11 (3d ed. 1999). The regulation defines
torture as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person,” by
or with the acquiescence of an official, for various purposes,
including punishment, § 208.18(a)(1); see, e.g., Pelinkovic v.
Ashcroft, 366 F.3d 532, 541 (7th Cir. 2004), provided that the
person is “in the offender’s custody or physical control.”
§ 208.l8(a)(6); Azanor v. Ashcroft, 364 F.3d 1013, 1019 (9th Cir.
2004).
Between 1997 and 1999 Comollari worked in Albania as
a bodyguard for leaders of the Albanian Socialist Party, the
party in power in Albania. The bodyguards doubled as
guards on trucks smuggling cigarettes and coffee for the
enrichment of the party’s bosses. The guards complained
that the smuggling had become too dangerous. In 2000, after
three of them were killed—one after threatening to reveal
the party’s involvement in smuggling—and Comollari
himself was repeatedly threatened with death, he fled to the
United States. The leader of Albania’s Democratic Party had
publicly promised that if his party were returned to power
he would see to it that the Socialist leaders were prosecuted
for corruption. Comollari figured that those leaders wanted
to kill the guards in order to prevent them from testifying in
a corruption inquiry.
The immigration judge found Comollari’s testimony at his
asylum hearing wholly credible: “the respondent’s tes-
timony, as well as his written statement, will be fully cre-
No. 03-3773 3
dited on all material facts as they relate to this claim.” But
he concluded that the danger facing Comollari should he be
returned to Albania came from members of the Socialist
Party rather than from the government of Albania and there-
fore the requisite acquiescence of an official was missing. The
judge was influenced in (probably driven to) this conclusion
by his belief that the Democratic Party had wrested the
governing power from the Socialist Party in 1999 and that
Comollari, in addition to fearing reprisals by Socialists,
feared prosecution by the government for his participation
in smuggling. The immigration judge said that in 1999 “the
political party then in power changed to the Democratic
Party” and that Comollari “had information which was being
sought by the Democratic Party to prosecute individuals
within the Socialist Party for corruption.” Comollari “acted
with impunity until 1999, when the Democratic Party came
to power.”
The immigration judge was wrong. The Democratic Party
did not come to power in 1999. It has been out of power
since 1997. As noted in previous cases, Bace v. Ashcroft, 352
F.3d 1133, 1135 (7th Cir. 2003); Hasalla v. Ashcroft, 367 F.3d
799, 801-02 (8th Cir. 2004), the Socialists still rule the roost.
U.S. Department of State, “Background Note: Albania” (July
2004), http://www.state.gov/r/pa/ei/bgn/3235.htm; “World
in Brief,” Wash. Post, Dec. 15, 2003, p. A27. Comollari so
testified without contradiction. Not being the governing
party, the Democratic Party could not cause the leaders of
the Socialist Party to be prosecuted, or, to be more precise,
could not remove whatever impediments to prosecution the
Socialists as the ruling party had been able to create for their
protection. The Justice Department contends that, even so,
the threat to kill Comollari comes from Socialists acting in
a private rather than in an official capacity. Of course, this
would be a judgment for the immigration judge to make,
not us. As we tirelessly remind the lawyers from the Justice
4 No. 03-3773
Department’s Office of Immigration Litigation, see, e.g.,
Mengistu v. Ashcroft, 355 F.3d 1044, 1046-47 (7th Cir. 2004);
Albathani v. INS, 318 F.3d 365, 378 (1st Cir. 2003), the Chenery
rule bars a reviewing court from upholding an agency’s
decision on a ground different from the agency’s. Bowman
Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419
U.S. 281, 285-86 (1974).
The immigration judge thought that since the Socialists
were not in power there could not be official acquiescence
in their efforts to wipe out the very witnesses that the gov-
ernment wanted for its inquiry into Socialist corruption.
“He is being sought by members of the Socialist Party, not
by the government of Albania. It is clear that the respondent
has failed to establish it is more likely than not that the gov-
ernment of Albania would treat him in cruel or an inhu-
mane manner should he be returned to that country.” The
judge’s reasoning collapses with the premise that the
Socialists had been displaced by the Democrats. We doubt
that an immigration judge would suppose that when a gov-
ernment official caused someone to be killed in order to
conceal the corrupt activities of his, the ruling, party, the
official was acting in a purely private capacity. Cf. Khouzam
v. Ashcroft, supra, 361 F.3d at 171. But, however that may be,
it was not the immigration judge’s rationale.
The government’s lawyer argued for the first time on
appeal that assassination is not torture. She pointed out that
one element of the definition of torture, quoted at the outset
of this opinion, is the infliction of “severe pain or suffering,
whether physical or mental” and that there is such a thing
as a painless death. The relevance of the argument to this
case is difficult to grasp. There is no indication that Alba-
nian assassins are committed to a “clean kill” philosophy.
Even if death itself is painless, moreover, the anticipation of
it can be a source of acute mental anguish; if the threat of
No. 03-3773 5
imminent albeit painless death were deliberately employed
to cause such anguish, it would be a form of torture. See 8
C.F.R. § 208.18(a)(4)(iii); Anker, supra, at 493-97.
Nor is it obvious that “suffering” must always be con-
scious; consider the old practice of mutilating a criminal’s
body after his death. Pieter Spierenburg, “The Body and the
State: Early Modern Europe,” in The Oxford History of the
Prison 49, 54 (Norval Morris & David J. Rothman eds. 1995).
It is true that tort law confines the category of “pain and
suffering” to conscious pain and suffering, but that is
because damages are awarded separately for tortiously
inflicted death, even when painless. We needn’t pursue the
issue, which the immigration judge did not reach and the
literature on the Convention Against Torture does not, so far
as we have been able to discover, address. We note, however,
that the Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 (Mar. 12, 1992), codified at 28 U.S.C.
§ 1350 (note), establishes a civil damages action for torture
victims including victims of extrajudicial killings (i.e., not
pursuant to lawful death sentence). See Flores v. Southern
Peru Copper Corp., 343 F.3d 140, 152-53 (2d Cir. 2003); Ford ex
rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1286 (11th Cir.
2002); Hilao v. Estate of Marcos, 103 F.3d 767, 778-79 (9th Cir.
1996).
Nor need we pursue another issue—whether the victim of
an Albanian assassin is likely to be “in the offender’s
custody or physical control,” which is also part of the defi-
nition of torture. Probably more often that not the victim of
a murderer is within the murderer’s physical control for at
least a short time before the actual killing, but that would
not be true if for example the murderer were a sniper or a
car bomber. This is another issue to be sorted out on remand.
There are still other issues that the immigration judge did
not address and that must be resolved before Comollari can
6 No. 03-3773
prevail under the torture convention. One, which the gov-
ernment does argue in its brief—but which seems frivo-
lous—is whether Comollari can be removed to a part of
Albania in which he will be safe; if so, he is not entitled to
relief. 8 C.F.R. § 208.16(c)(3)(ii); see Singh v. Ashcroft, 351
F.3d 435, 443 (9th Cir. 2003). The evidence the government
points to—that Comollari was able to hide out at his aunt’s
home for a few weeks before leaving Albania—is feeble. The
Socialist Party controls the Albanian government; there is no
part of Albania to which its writ does not run, and living as
a fugitive is not what safe relocation implies.
Slightly weightier is the government’s argument that
Comollari’s smuggling activities in Albania amounted to
serious nonpolitical crime, another defense to a claim under
the Convention Against Torture. INA § 241(b)(3)(B)(iii), 8
U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 208.16(d)(2); Nadia
Yakoob, “Political Offender or Serious Criminal? Challeng-
ing the Interpretation of ‘Serious, Nonpolitical Crimes’ in
INS v. Aguirre-Aguirre,” 14 Geo. Immigr. L.J. 545 (2000). The
determination of what is a serious nonpolitical crime is
made by the Attorney General and is given Chevron defer-
ence. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);
Chay-Velazquez v. Ashcroft, 367 F.3d 751, 755 (8th Cir. 2004).
In a normal country, smuggling might well be regarded as
a serious crime, but in disordered states like Albania it may
be little more than malum prohibitum.
There is a deeper objection to the government’s “serious
nonpolitical crime” defense. Comollari is not “wanted” by
the Albanian government for smuggling or any other crime.
The Socialist Party, which controls the government, was
Comollari’s principal in the smuggling operation. It “wants”
him so that it can silence a whistleblower—a motive remote
from the purpose of the exception to the torture convention
for nonpolitical crime. There is also a question whether
No. 03-3773 7
smuggling on behalf of a political party is a nonpolitical
crime. See generally Anurima Bhargava, “Defining Political
Crimes: A Case Study of the South African Truth and
Reconciliation Commission,” 102 Colum. L. Rev. 1304 (2002).
All these are matters for exploration on remand.
The petition for review is granted and the order of
removal set aside.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-10-04