Kamara v. Atty Gen USA

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-29-2005
Kamara v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-2647
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2647
MOHAMED KAMARA
v.
ATTORNEY GENERAL OF THE UNITED STATES,*
Appellant
On Petition for Review from the
Board of Immigration Appeals
(A 75 805 924)
Initially docketed as an Appeal from the
United States District Court for the Middle District
of Pennsylvania prior to enactment of the REAL ID Act
(D.C. No. 02-cv-00738)
District Judge: Honorable Malcolm Muir
Argued May 9, 2005
Before: SLOVITER and FISHER, Circuit Judges,
and POLLAK,** District Judge
(Filed: August 29, 2005 )
*
Because we have converted the present case into a petition for
direct review, we are required to substitute the Attorney
General for the current respondent (Department of Homeland
Security). 8 U.S.C. § 1252(b)(3)(A).
**
Hon. Louis H. Pollak, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Peter D. Keisler
Assistant Attorney General
Donald E. Keener
Deputy Director
Alison R. Drucker (Argued)
Senior Litigation Counsel
United States Department of Justice
Office of Immigration Litigation
Washington, D.C. 20044
Attorneys for Appellant
James V. Wade
Federal Public Defender
Ronald A. Krauss (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
Harrisburg, PA l7101
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The Department of Homeland Security (“DHS”) appeals
the Order of the District Court granting Mohamed Kamara’s
petition for writ of habeas corpus and permanently enjoining the
government from deporting Kamara to Sierra Leone.
I.
Facts and Proceedings
The parties stipulated in a joint motion, filed on April 13,
2
2004, to the following facts:1 Kamara, a native of Sierra Leone,
was studying medicine in Cuba in the early 1980s on a grant
from the government of Sierra Leone. In the course of his
studies in Cuba, the Sierra Leone government failed to provide
the financial support it had promised. In response, Kamara and
other Sierra Leone students stormed the Sierra Leone embassy in
Cuba, physically accosted the Sierra Leonian Ambassador, and
publicly accused the Sierra Leone government of corruption.
Shortly thereafter, in 1982, Kamara was “deported” (expelled)
from Cuba at the direction of officials of the Sierra Leone
government, and required to return to Sierra Leone. While in
transit through Miami, Florida on a non-immigrant transit visa,
Kamara left the airport. He has remained in the United States
ever since.
On April 23, 1999, Kamara was convicted in a New York
State Court of attempted sale of a controlled substance (cocaine)
in the third degree, and sentenced to six months incarceration.
The conviction arose after undercover police officers approached
Kamara and offered him $10 to help them buy cocaine. Kamara,
who lived in a drug infested area, complied with the request and
was thereafter arrested. On June 18, 1999, the Immigration and
Naturalization Service (“INS”) (which has since been replaced
by the Department of Homeland Security, Bureau of
Immigration and Customs Enforcement) commenced removal
proceedings against Kamara on the grounds that he was an alien
convicted of an aggravated felony as defined in 8 U.S.C. §
1101(a)(43)(U), an alien convicted of violating a controlled
substance law, and an alien who remained in the United States
for a time longer than permitted. See 8 U.S.C. §
1227(a)(2)(A)(iii), (a)(2)(B)(i), (a)(1)(B).
Kamara applied for asylum, withholding of removal
under § 241(b)(3) of the Immigration and Naturalization Act
(“INA”), 8 U.S.C. § 1231(b)(3), and for protection under the
1
The stipulation provided that the facts relating to
Kamara’s habeas petition are not in dispute, and that the issue
before the District Court was purely legal.
3
CAT.2 On February 25, 2000, the Immigration Judge (“IJ”)
issued an oral opinion granting Kamara’s application for
withholding of removal, reasoning that “in this case the
widespread atrocities against people opposing the authority of
the former government and present military rebel forces [the
Revolutionary United Front (“RUF”)] indicates a greater chance,
rather than a lesser chance that the respondent will be persecuted
for who he is upon his return.” Supp. App. at 21. In the same
oral decision, the IJ preterminated Kamara’s application for
asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i) (providing
that an alien convicted of aggravated felony is not eligible for
asylum), and held that given its decision to grant Kamara’s
petition for withholding of removal, it was unnecessary to reach
the CAT claim.
On October 31, 2000, the Bureau of Immigration Appeals
(“BIA” or “Board”) reversed the decision of the IJ, stating that
there is “insufficient evidence in the record to suggest that
anyone in Sierra Leone would want to persecute [Kamara] for
any complaints he made while a student in Cuba over 20 years
ago.” J.A. at 19. The case was remanded to the IJ for
consideration of whether Kamara was entitled to relief under the
CAT.
At an evidentiary hearing held on January 19, 2001, the IJ
heard additional testimony from Kamara, received testimony
from Kamara’s niece, and accepted into evidence information
about country conditions in Sierra Leone. The IJ found both
Kamara and his niece credible, and thereafter, in a written
opinion dated July 12, 2001, accepted their testimony as the facts
of the case.
2
The CAT refers to the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the
United States by the Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified
at 8 U.S.C. § 1231).
4
The testimonial and other evidence regarding country
conditions revealed that as of January 2001, Sierra Leone was in
the midst of a civil war. The RUF controlled two thirds of the
country, and the government controlled the remaining one third.
Each entity had an established record of grievous human rights
violations.
The several country reports and various media
publications (New York Times, Time Magazine, USA Today )
received by the IJ made plain that “[t]here is hardly a ruling body
in the world . . . that matches the RUF and its allied forces for its
utter inhumanity to people under its control.” J.A. at 26. The IJ,
continuing reference to the country reports, stated that the rebel
group, which was the military branch of the Sierra Leone
government before the revolution, has killed thousands of
unarmed civilians, including women and children (many during
mass executions), and maimed countless others through its
“‘particularly vicious practice of cutting off ears, noses, hands,
arms, and legs of noncombatants as a deliberate terror tactic ...’”
J.A. at 26-27 (quoting 1999 Country Report). Women were
systematically raped by members of the rebel group, and men
who refused to rape their own family members had limbs
amputated. The IJ found that “the RUF carried out a pattern of
abducting those from the outside who demonstrated any special
capabilities: ‘Rebel forces abducted civilians, missionaries, aid
workers from nongovernmental agencies, U.N. personnel, and
journalists.’” J.A. at 27 (quoting 1999 Country Report).
Likewise, they deliberately targeted and murdered “‘government
officials, human rights activists, religious leaders, and lawyers as
they entered Freetown.’” J.A. at 27 (quoting 1999 Country
Report).
The Sierra Leone government, though clearly not as
brutal as the RUF, also had “serious problems” reflected in its
human rights record. J.A. at 29. The 1999 Country Report
recounts incidents of extrajudicial killings, summary executions
of suspected rebels and suspected rebel collaborators, beatings of
noncombatants, as well as arbitrary arrest and detention of
persons. Furthermore, “discrimination based on ethnic origin
[was] widely practiced. . . .” J.A. at 29.
5
As an initial matter, the IJ determined that akin to the
Taliban in Afghanistan and the Israeli Defense Forces in
Palestinian Lands, the RUF should be considered a “political
official” (or “government”) for purposes of the CAT, and
therefore that Kamara’s claim for protection against torture by
the RUF should be heard on the merits. See 8 C.F.R. §
208.18(a)(1) (stating that to receive protection under CAT,
applicant must show that torture will 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 IJ
then concluded that based on the testimony of Kamara and his
niece, and the “ample evidence of gross, flagrant, or mass
violations of human rights in Sierra Leone. . . it is more likely
than not that respondent will be tortured if returned to Sierra
Leone today.” J.A. at 30 (internal citation and quotations
omitted).
The IJ reasoned that “[i]f the respondent should fall into
the RUF’s hands, torture is all but certain.” J.A. at 28.
Kamara’s family had already suffered a great deal at the hands of
the RUF. The family home was burned down, Kamara’s cousin
had his hands chopped off, his aunt was shot, the same aunt’s
husband died while trapped in a house that was set on fire by the
RUF, and Kamara’s brother-in-law, who has since died, had
many properties destroyed, including the Muslim school that he
founded. Kamara’s mother, sister, and aunt joined the “more
than 1 million citizens” who fled the country or were internally
displaced. J.A. at 27.
The IJ, reiterating his findings following the first hearing,
also found that the relevant facts made “reasonable and
altogether plausible [Kamara’s] concern that he will be singled
out by the government for abusive treatment in violation of his
personal security if he is deported there” because of his prior
protests in Cuba twenty years before. J.A. at 29. The IJ noted
additionally that Kamara will be highly noticeable “because of
his long absence from the country coupled with his being among
the small minority of elites in the country [which is only 20%
literate] (by reason of education, family background, wealth, and
experience abroad).” J.A. at 30.
6
Balancing the very “real” probability that Kamara may
fall into RUF hands (and the “certain” torture that would result)
with the “nearly certain” probability that Kamara will fall into
the government’s hands, (and the “reasonable” chance of
“abusive treatment in violation of his personal security” that
would result), the IJ found that Kamara’s application for relief
under the CAT should be granted. J.A. at 28-29. Given the
additional fact finding, the IJ also clarified the facts surrounding
Kamara’s petition for withholding of removal, in the event that
the BIA decided to revisit the issue on appeal. See 8 U.S.C. §
1231(b)(3). The IJ noted, however, that the BIA’s law of the
case precluded him from granting withholding of removal at that
stage in the proceedings.
The INS once again appealed the decision of the IJ, and
on April 5, 2002, in a six paragraph decision, the BIA sustained
the appeal. The Board first reasoned that, given the IJ’s findings
that “it cannot be found to be more likely than not that [the
respondent] would find himself in the RUF’s hands,” there was
no reason to discuss the likelihood of torture by the RUF or
whether the RUF constitutes a government for purposes of the
CAT. J.A. at 37. The BIA then concluded that Kamara failed to
meet his burden of proof that he would face “torture” at the
hands of the Sierra Leone government. J.A. at 37-38 (stating
that “‘abusive treatment’ violative of one’s ‘personal security’
does not constitute torture, as defined by the regulations”) (citing
8 C.F.R. § 208.18(a)).
On April 23, 2002, Kamara filed a petition for a writ of
habeas corpus in the Middle District of Pennsylvania,
challenging the decision of the BIA.3 The District Court granted
3
Kamara also filed a motion for emergency stay of
removal, which the District Court elected to treat as a petition for
writ of habeas corpus, and by order dated May 30, 2002,
consolidated the actions. On July 25, 2002, the District Court
issued an Order stating that it lacked jurisdiction to consider the
habeas petition. On appeal, this court issued a judgment vacating
the District Court’s July 25, 2002 Order and remanding the case, in
7
the writ, holding that “[t]he cursory and erroneous review of this
case by the [BIA] violated Kamara’s right to due process of
law,” and that “[w]hen the [CAT] regulations are properly
construed, the undisputed evidence was sufficient to meet the
requirements for relief.” J.A. at 70-71. The Court also held that
deporting Kamara to Sierra Leone would violate Kamara’s
substantive due process rights under the “state-created danger”
exception. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d
Cir. 1996). Finally, the Court issued a permanent injunction
against removal. DHS filed a timely notice of appeal on June 9,
2004.
II.
Jurisdiction / Standard of Review
A. Jurisdiction
Until May 11 of this year, an alien convicted of an
aggravated felony and removable on such grounds was
statutorily barred from filing a petition for review in the court of
appeals challenging the BIA’s finding that s/he was ineligible for
relief under the CAT. See 8 U.S.C. § 1252(a)(2)(C); see also
Bakhtriger v. Elwood, 360 F.3d 414, 420 (3d Cir. 2004); Patel v.
Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002). We held in
Ogbudimkpa, however, that a district court retains jurisdiction to
consider claims alleging violations of the CAT raised in a habeas
corpus petition. 342 F.3d at 222; see also 28 U.S.C. § 2241.
This jurisdictional framework was radically overhauled
on May 11, 2005, with the passage of the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231. The provision relevant to this
appeal, Section 106(a) of the Act, amends 8 U.S.C. § 1252(a)(2)
light of our decision in Ogbudimpka v. Ashcroft, 342 F.3d 207,
222 (3d Cir. 2003) (holding that district courts have jurisdiction
under 28 U.S.C. § 2241 to review CAT claims for “errors of law,
including the erroneous application or interpretation of statutes”)
(internal citations and quotations omitted).
8
to eliminate the district courts’ habeas corpus jurisdiction (28
U.S.C. §§ 2241, 1361, and 1651) over final orders of removal in
nearly all cases. 4 Section 106(a)(1)(B) provides that:
Notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241
of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, a petition
for review filed with an appropriate court of
appeals in accordance with this section shall be the
sole and exclusive means for judicial review of any
cause or claim under the United Nations
Convention Against Torture and Other Forms of
Cruel, Inhuman, or Degrading Treatment or
Punishment, except as provided in subsection (e)
of this section.
REAL ID Act § 106(a)(1)(B); 8 U.S.C. § 1252(a)(4). Section
106(a)(1)(A)(iii) of the Act, however, amends 8 U.S.C. § 1252by adding a new provision, § 1252(a)(2)(D), which states that:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section)
which limits or eliminates judicial review, shall be
construed as precluding review of constitutional
claims or questions of law raised upon a petition
for review filed with an appropriate court of
appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D). With this amendment,
Congress evidenced its intent to restore judicial
review of constitutional claims and questions of
law presented in petitions for review of final
removal orders. This now permits all aliens,
including criminal aliens, to obtain review of
4
8 U.S.C. § 1252(e) allows for very limited habeas review
in expedited removal cases brought under 8 U.S.C. § 1225(b).
9
constitutional claims and questions of law upon
filing of a petition for review with an appropriate
court of appeals.
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005); see
also Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. 2005).
Congress explicitly made the above amendments
retroactive. REAL ID Act § 106(b) provides that §
1252(a)(2)(D), “shall take effect upon the date of the enactment
of this division and shall apply to cases in which the final
administrative order of removal . . . was issued before, on, or
after the date of the enactment of this division.” See also
Papageorgiou, 413 F.3d at 358.
Furthermore, habeas petitions filed under 28 U.S.C. §
2241, which as of May 11, 2005, were pending in the district
courts, shall be transferred to
the court of appeals for the circuit in which a
petition for review could have been properly filed
under section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. § 1252), as amended by
this section. . . . The court of appeals shall treat
the transferred case as if it had been filed pursuant
to a petition for review under such section 242,
except that subsection (b)(1) of such section
[relating to the 30-day filing deadline] shall not
apply.
REAL ID Act § 106(c).
The REAL ID Act is silent as to the exact procedural
posture which faces us here, i.e., an appeal from a district court’s
habeas decision that is now pending before the court of appeals.
Nonetheless, as explained in Bonhometre v. Gonzales, F.3d
, No. 04-2037, 2005 WL 1653641 (3d Cir. July 15, 2005),
Despite this silence, it is readily apparent, given
Congress’ clear intent to have all challenges to
10
removal orders heard in a single forum (the court
of appeals), [H.R. Conf. Rep. No. 109-72] at 174
[(2005)], that 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.
Id. at *2. To dismiss the present case would be arbitrary (by
treating habeas petitions which are pending resolution in the
district courts differently than habeas petitions where a decision
has already been rendered, in many cases in favor of the alien)
and is inconsistent with Congress’ express intent to provide
aliens with one chance for judicial review in the court of
appeals. See H.R. Conf. Rep. No. 109-72, at 174-76 (2005); cf.
Sorrells v. United States, 287 U.S. 435, 450 (1932) (“To
construe statutes so as to avoid absurd or glaringly unjust results,
foreign to the legislative purpose, is, as we have seen, a
traditional and appropriate function of the courts.”).
Thus, in light of the peculiar procedural posture of the
present case, and the intervening passage of the REAL ID Act,
we are obliged to vacate and disregard the District Court’s
opinion and address the claims raised in Kamara’s habeas
petition as if they were presented before us in the first instance
as a petition for review. Bonhometre, 2005 WL 1653641, at *2.
B. Scope of Review
Although DHS’s appeal of the District Court’s decision
granting Kamara’s habeas corpus petition has now been
converted into a petition for review, our standard of review
remains the same. Bonhometre, 2005 WL 1653641, at *2. A
review for “constitutional claims or questions of law,” as
described in § 106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. §
1252(a)(2)(D), mirrors our previously enunciated standard of
review over an alien’s habeas petition. See Bakhtriger, 360 F.3d
at 425 (“In the wake of [INS v. St. Cyr, 533 U.S. 289 (2001)],
we are not aware of any cases that have upheld habeas review of
factual findings or discretionary determinations in criminal alien
removal cases. Rather, all circuits to decide the issue have
11
limited criminal alien habeas petitions to constitutional
challenges or errors of law.”).5
Thus, examining each of Kamara’s present claims, we are
limited to “pure questions of law,” St. Cyr, 533 U.S. at 305, and
to “issues of application of law to fact, where the facts are
undisputed and not the subject of challenge.” Bakhtriger, 360
F.3d at 420 (citing Ogbudimkpa, 342 F.3d at 222). We review
the BIA’s legal decisions de novo, Wang v. Ashcroft, 368 F.3d
347, 349 (3d Cir. 2004), but will afford Chevron deference to the
BIA’s reasonable interpretations of statutes which it is charged
with administering. INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984).
III.
Discussion
A. The BIA’s Review of the IJ’s Decision
Kamara argues that the BIA violated his due process right
to meaningful review by engaging in a cursory evaluation of the
IJ’s evidentiary findings and legal conclusions, and by issuing an
inadequate opinion. Specifically, he contends that the BIA’s
opinion consisted of only six paragraphs, with no adequate
analysis or discussion, and that it relied on an irrelevant section
of the IJ’s written decision having nothing to do with the CAT
claim.
Aliens facing removal are entitled to due process. See
Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). In the
administrative context, an alien: “(1) is entitled to factfinding
based on a record produced before the decisionmaker and
disclosed to him or her, (2) must be allowed to make arguments
5
Indeed, if the REAL ID Act imposed a narrower standard
of review than that previously offered under a petition for habeas
corpus, a significant Suspension Clause issue would arise.
12
on his or her own behalf . . .; and (3) has the right to an
individualized determination of his [or her] interests.” Abdulai
v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal
quotations and citations omitted). Kamara does not contend that
the decision to remove him was based on evidence kept secret
from him or that he was prevented from making his case to the
BIA or IJ. Thus, the only due process right potentially
implicated in this case is the right to an individualized
determination.
As stated in Abdulai, “the question for due process
purposes is not whether the BIA reached the correct decision;
rather it is simply whether the Board made an individualized
determination of [the alien’s] interest. . . .” 239 F.3d at 550(emphasis in original). The Board’s decision need only provide
“sufficient indicia” that such a determination was made. Id.(“[o]ne can deduce that the BIA was aware that Abdulai was a
Nigerian seeking asylum on the basis of political persecution,
that there had been issues involving a change in the Nigerian
government and his failure to document his membership in a
political party, and that the IJ’s decision evinced dissatisfaction
with his meeting the requisite burden of proof. This is
sufficient.”). Agency action is entitled to a presumption of
regularity, and it is the petitioner’s burden to show that the BIA
did not review the record when it considered the appeal. Id. at
550-51.
The BIA’s decision in the present case contains more than
“sufficient indicia” that it undertook an individualized
determination. It describes in detail the CAT petition submitted
by Kamara, the procedural posture of the case, the basis for the
IJ’s decision, and the relevant statutes and regulations.
We find no support for Kamara’s contention that the BIA
erroneously relied on the IJ’s statement, made in a section of the
IJ’s decision discussing Kamara’s withholding of removal claim,
that “it cannot be found to be more likely than not that [Kamara]
would find himself in the RUF’s hands. . . .” J.A. at 34. Despite
the fact that a claim for relief under the CAT and a petition for
withholding of removal require different elements of proof, the
13
chance of falling into the RUF’s hands is the same regardless of
which claim the BIA is evaluating.6
We also find that the BIA’s decision satisfies the
requirements of the Administrative Procedure Act. As stated in
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), an agency
need only set forth the basis of its administrative action “with
such clarity as to be understandable”; it need not provide a
detailed statement of its reasoning and conclusions. See also
Aguirre-Aguirre, 526 U.S. at 431-32; S. Trenton Residents
Against 20 v. Fed. Highway Admin., 176 F.3d 658, 666 (3d Cir.
1999) (stating that court may uphold agency’s “‘decision of less
than ideal clarity if the agency’s path may reasonably be
discerned’”) (quoting Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Thus, whereas the
BIA’s decision in the present case may not be a model of
exposition, it sufficiently sets forth the BIA’s reasoning in a
manner that permits a reviewing court to discern the “basis of its
decision.” Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.
2003).
We therefore conclude that because the requirements of
both Abdulai and Chenery are satisfied, Kamara’s due process
claim must fail.7
6
Indeed, in a section of the IJ’s opinion devoted solely to
a discussion of Kamara’s CAT petition, the IJ stated that “it is
impossible to speculate with any accuracy the likelihood of RUF’s
gaining control of enough of Sierra Leone to make [Kamara] fall
into its hands. . . .” J.A. at 28.
7
Kamara’s reliance on Zubeda v. Ashcroft, 333 F.3d 463(3d Cir. 2003), is misplaced. In Zubeda, we vacated and remanded
the BIA’s decision denying petitioner relief under the CAT, noting
that the BIA’s “rather terse” decision provided only a “minimal
analysis” of petitioner’s claim. Id. at 475-79. Zubeda, however
involved a direct petition for review, where we examined the BIA’s
decision under the substantial evidence standard. Id. at 471. By
contrast, our review is much narrower in the present case. See
REAL I.D. Act § 106(a)(1)(A)(iii). Furthermore, although noting
14
B. The BIA’s Application of the CAT Standard
“An applicant for relief on the merits under [Article 3] of
the [CAT] bears the burden of establishing ‘that it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d
166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
The standard for relief under the CAT “has no subjective
component, but instead requires the alien to establish, by
objective evidence, that he is entitled to relief.” Id. at 175(internal citations and quotations omitted); see also Cadet v.
Bulger, 377 F.3d 1173, 1180 (11th Cir. 2004); Elien v. Ashcroft,
364 F.3d 392, 398 (1st Cir. 2004).
We have stated that:
For an act to constitute torture under the [CAT]
and the implementing regulations, it must be: (1)
an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for an
illicit or proscribed purpose; (4) by or at the
instigation of or with the consent or acquiescence
of a public official who has custody or physical
control of the victim; and (5) not arising from
lawful sanctions.
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005); see also
Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002) (citing 8
C.F.R. § 208.18(a)); Cadet, 377 F.3d at 1192 (outlining same
requirements); Elien, 364 F.3d at 398 (same). An “alien’s
testimony, if credible, may be sufficient to sustain the burden of
proof without corroboration.” Zubeda, 333 F.3d at 471 (citing
Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000)). “If an alien
the terseness of the BIA’s opinion, we were primarily concerned
that the BIA had allowed “the taint of the [IJ’s] earlier adverse
credibility determination” regarding Zubeda’s asylum claim to
“bleed through to the BIA’s consideration of her [CAT] claim.” Id.
at 476. No such concern is implicated here.
15
meets his/her burden of proof, withholding of removal under the
[CAT] is mandatory just as it is for withholding of deportation
under § 243(h).” Id. at 472 (citing INA § 241(b)(3) and 8 C.F.R.
§§ 208.16-208.18).8
The BIA stated the proper legal standard in its opinion.
J.A. at 37 (“[T]o demonstrate eligibility for relief pursuant to the
[CAT], an alien must prove that he or she more likely than not
faces torture.”). We take issue, however with its application of
the above standard to the undisputed facts of the case.
Under the BIA’s application of the CAT regulations, to
qualify for relief, Kamara was required to establish either: (1)
that there was a greater than 50% probability that he would face
torture at the hands of the RUF; or (2) that there was a greater
than 50% probability that he would face torture at the hands of
the Sierra Leone government. The BIA separately considered
the likelihood of torture by each entity. Under its analysis,
Kamara would be entitled to relief only if he was able to
demonstrate by a preponderance of the evidence that at least one
of the entities, taken alone, would torture him if he were returned
to Sierra Leone.
8
8 C.F.R. § 208.16(c)(3) provides that:
In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country
of removal, all evidence relevant to the possibility of
future torture shall be considered, including, but not
limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a
part of the country of removal where he or she is not
likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of
human rights within the country of removal, where
applicable; and
(iv) Other relevant information regarding conditions
in the country of removal.
16
A proper application of the regulations, however, merely
requires Kamara to establish that it is more likely than not that
he faces torture by “a public official (government)” in Sierra
Leone; i.e., by the RUF or the Sierra Leone government, when
the two entities are considered together.9 In other words,
Kamara is entitled to CAT protection if he is able to demonstrate
that the cumulative probability of torture by the two entities
exceeds 50%.
Thus, for illustrative purposes only, let us assume that the
probability of Kamara being returned to RUF controlled territory
is 30%, and that the probability of Kamara suffering torture at
the hands of the RUF, if returned to RUF controlled territory, is
90%. Assume further that the probability of Kamara being
returned to territory controlled by the Sierra Leone government
is 70% and the probability of torture if returned to such territory
is 40%. The probability that Kamara will be subjected to torture,
if returned to Sierra Leone, is the sum of the weighted
probability of torture in each of the two territories; in this case
55% (30% multiplied by 90% + 70% multiplied by 40% = 55%).
See Roger A. Carlson, Statistics 12 (Holden-Day, Inc. 1973) (“If
A and B are mutually exclusive [events], then the probability of
A union B [i.e., the event which occurs whenever A or B occurs]
must be the sum of the probabilities of A and B.”). Thus, despite
the fact that Kamara cannot demonstrate that it is more likely
than not that he will be tortured by the RUF (30% multiplied by
90% = 27%), or by the Sierra Leone government (70%
multiplied by 40% = 28%) when each entity is considered
independently, under the circumstances assumed above, Kamara
9
8 C.F.R. 1208.16(c)(3)(ii) provides in pertinent part that:
In assessing whether it is more likely than not that an
applicant would be tortured in the proposed country
of removal, all evidence relevant to the possibility of
torture shall be considered, including, but not limited
to: . . .(ii) Evidence that the applicant could relocate
to a part of the country of removal where he or she is
not likely to be tortured.”
17
may be able to demonstrate that it is more likely than not that he
will be tortured if returned to Sierra Leone when the two entities
are considered together.10
The BIA’s erroneous application of the regulations is
evident in its opinion. The BIA first concluded that because “‘it
cannot be found . . . more likely than not that [Kamara] would
find himself in the RUF’s hands,’” J.A. at 37 (quoting IJ
opinion), Kamara failed to demonstrate by a preponderance of
the evidence that he will be tortured by rebel forces. The Board
10
The above analysis, of course, assumes that Kamara
falling into the hands of the RUF, and Kamara falling into the
hands of the Sierra Leone government are mutually exclusive
events. They may not be. There does exist a probability greater
than zero (however slight) that Kamara could find himself in
territory controlled by one entity and then, at a later time, find
himself in a territory controlled by the other.
Assume that Kamara has a 20% probability of falling into
RUF hands alone and a 90% probability of torture if such an event
occurs. Assume furthermore that Kamara has a 70% chance of
falling into the hands of the Sierra Leone Government alone, and
a 40% chance of torture if such an event occurs. Finally assume
that there is a 10% probability that Kamara will fall into the hands
of both the RUF and the Sierra Leone Government. The chance of
torture by either, or both, entities if such an event occurs is (100% -
(the probability that he will not be tortured by either entity)), or
(100% - (10% * 60%)) = 94%.
Thus the overall probability of torture if Kamara is returned
to Sierra Leone is equal to (the weighted probability of Kamara
being tortured by the RUF, if he finds himself only in RUF
territories) + (the weighted probability of Kamara being tortured by
the Sierra Leone Government, if he finds himself only in
Government controlled territories) + (the weighted probability of
Kamara being tortured by either, or both, the RUF and the Sierra
Leone Government if Kamara finds himself in both RUF and
Government territories). Applying our hypothetical to this
equation, yields an overall probability of torture of (20% * 90%)
+ (70% * 40%) + (10% *94%) = 55.4%.
18
proceeded as if this aspect of the case was no longer pertinent,
stating that “[t]herefore, we decline to address whether the RUF
constitutes a government for purposes of the [CAT].” J.A. at 37;
see also Appellant’s Br. at 15 (“No more needed to be said on
that front.”). The Board then reasoned that Kamara failed to
demonstrate by a preponderance of the evidence that he will be
tortured by the Sierra Leone government. Because the
likelihood of torture by the RUF is less than 50% and the
likelihood of torture by the Sierra Leone government is less than
50%, the BIA concluded that the IJ’s decision must be reversed.
Properly applying the CAT regulations to the stipulated
facts of this case, Kamara may indeed be entitled to relief under
the CAT. The IJ concluded that although “it is impossible to
speculate with any accuracy the likelihood” of Kamara falling
into RUF hands, if such an event should happen, “torture is all
but certain.” JA. at 28. He further concluded that the chances of
Kamara falling into the government hands “is much greater”
than his chances of falling into RUF hands, and while “[c]learly
not as brutal as the rebels, the government of Sierra Leone
nonetheless poses a significant risk of torture for its citizens,
depending on who they may be.” J.A. at 29. Thus, although any
application of the regulations must necessarily be more
qualitative than quantitative, see, e.g., Matter of Acosta, 19 I &
N Dec. 211, 229 (BIA 1985), we conclude that the BIA
improperly applied the CAT standards to Kamara’s petition for
relief. As stated by the IJ, “the very difficulty of proof is further
reflection of the instability of the country, which raises, rather
than reduces, the likelihood of torture.” J.A. at 30.
Our above analysis, however, rests on the assumption that
the IJ was correct in concluding that the RUF was a “public
official” for purposes of 8 C.F.R. § 208.18(a). Neither the CAT
regulations, 8 C.F.R. § 208.18, nor the Convention Against
Torture, Art I (which § 208.18 incorporates), defines the term
“public official.” As stated in the IJ’s July 12, 2001 written
decision, the United Nations Committee Against Torture, which
hears and adjudicates certain individual claims arising under
Article 3 of the CAT, has held that the rebel group Sendero
Luminoso [Shining Path] of Peru was not a “public official”
19
because it was neither the government, nor did it act with the
government’s acquiescence. J.A. at 25 (citing Matter of S-V-,
Int. Dec. # 3430 (BIA 2000), slip op. at 8-9). Similarly the BIA
has held, as of May 2000, that guerillas in Colombia were not
shown to act as, or with the acquiescence of, “public officials” in
that country. Id.
As noted above, because of its erroneous application of
the CAT regulations, the BIA declined to address whether the
RUF constitutes a “public official” for purposes of 8 C.F.R. §
208.18. On remand, the BIA is instructed to determine that issue
first. If it determines that the RUF should be deemed a “public
official,” the BIA should then apply the proper CAT analysis
explained above to the undisputed facts of the case.11 See INS v.
11
The intervening passage of the REAL ID Act relieves us
of resolving the unsettled issue of whether remand is appropriate
when granting an alien’s habeas corpus petition.
In contrast to the pre-IIRIRA statutory regime (allowing for
direct review of a final order of deportation against an alien who is
removable by reason of committing a criminal offense), which
bestowed upon the courts “the broad authority to grant declaratory
and injunctive relief,” INS v. St. Cyr, 533 U.S. 289, 309 (2001),
under the post-IIRIRA (but pre-REAL ID) scheme for criminal
aliens, “the limited role played by the [habeas] courts” is “far
narrower than the judicial review authorized by [the old statutory
structure].” Id. at 312.
The writ of habeas corpus “performs a precise and specific
function: it forces the government to justify a decision to hold an
individual in custody.” Zalawadia v. Ashcroft, 371 F.3d 292, 299
(5th Cir. 2004); see also Zadvydas v. Davis, 533 U.S. 678, 699
(2001) (stating that “the historic purpose of the writ [is] to relieve
detention by executive authorities without judicial trial . . .”)
(internal citation and quotations omitted); Helfin v. United States,
358 U.S. 415, 421 (1959) (Stewart, J., concurring) (“The very
office of the Great Writ, its only function, is to inquire into the
legality of the detention of one in custody.”). This singular focus
20
Ventura, 537 U.S. 12 (2002) (per curiam).12
C. The State-Created Danger Exception
Kamara argues that in addition to misapplying the proper
legal standard to his CAT petition the BIA, in issuing its final
order of removal, violated his right to substantive due process
under the state-created danger exception.
The Due Process Clause of the Fourteenth Amendment
applies to all “‘persons’ within the United States, including
on the legality of detention not only constrains the scope of a
habeas court’s review, but also the nature of relief that a habeas
court may provide.
As stated in Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980),
a case not involving an alien habeas petition, the “unique purpose
of habeas corpus” is “to release the applicant for the writ from
unlawful confinement.” Thus, a habeas court may lack the
authority to remand a case to the BIA for further proceedings. Cf.
Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief
granted in federal habeas corpus is a conditional order of release
unless the State elects to retry the successful habeas petitioner. . .
.”). At least one court of appeals that has examined the issue has
found that remand is not appropriate. See Zalawadia, 371 F.3d at
298.
Were we still faced with the DHS’ appeal of the District
Court’s opinion granting Kamara’s habeas petition, we may have
simply vacated the order of removal without remand. Given our
conversion of the present habeas case into a petition for direct
review, however, remand is now appropriate.
12
We emphasize, once again, that our above
characterization of the likelihood of torture using numerical
hypotheticals is for illustrative purposes only. On remand, the BIA
should apply the overarching principles (which we have chosen to
demonstrate quantitatively), in a qualitative manner.
21
aliens, whether their presence here is lawful, unlawful,
temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678,
693 (2001); see also Plyler v. Doe, 457 U.S. 202, 210 (1982);
Mathews v. Diaz, 426 U.S. 67, 77 (1976). In most
circumstances, the Due Process Clause imposes no obligation on
a state to protect an individual from harm inflicted by private
parties. Nonetheless, 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. Cases predicating
constitutional liability on a state-created danger theory have four
common elements:
(1) the harm ultimately caused was foreseeable and
fairly direct; (2) the state actor acted in willful
disregard for the safety of the plaintiff; (3) there
existed some relationship between the state and the
plaintiff; (4) the state actors used their authority to
create an opportunity that otherwise would not
have existed for the third party’s crime to occur.
Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996) (internal
citation and quotations omitted). Furthermore, “the cases where
the state-created danger theory was applied were based on
discrete, grossly reckless acts committed by the state or state
actors using their peculiar positions as state actors, leaving a
discrete plaintiff vulnerable to foreseeable injury.” Id. (internal
citations and quotations omitted).
We, as well as other appellate courts, have held that the
state-created danger theory is a viable mechanism for
establishing a constitutional violation under 42 U.S.C. § 1983.
See Kneipp, 95 F.3d at 1208; see also Uhlrig v. Harder, 64 F.3d
567, 572 (10th Cir. 1995); Reed v. Gardner, 986 F.2d 1122,
1125 (7th Cir. 1993); Dwares v. City of New York, 985 F.2d 94,
99 (2d Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th
Cir.1990). We are aware of no court of appeals which has
recognized the constitutional validity of the state-created danger
theory in the context of an immigration case. But see Builes v.
22
Nye, 239 F. Supp. 2d 518 (M.D. Pa. 2003) (holding that despite
petitioner’s inability to establish habeas relief under CAT –
because evidence did not support finding that Colombian
government would acquiesce to torture by drug cartel –
petitioner was entitled to relief under state-created danger
exception). We decline to do so here, and hold that the state-
created danger exception has no place in our immigration
jurisprudence.
The Supreme Court has repeatedly made clear that “‘over
no conceivable subject is the legislative power of Congress more
complete than it is over’ the admission of aliens.” Fiallo v. Bell,
430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation
Co. v. Stranahan, 214 U.S. 320, 339 (1909)); accord Kleindienst
v. Mandel, 408 U.S. 753, 766 (1972). “Our cases ‘have long
recognized the power to expel or exclude aliens as a fundamental
sovereign attribute exercised by the Government's political
departments largely immune from judicial control.’” Fiallo, 430
U.S. at 792 (quoting Shaughnessy v. United States ex rel. Meze,
345 U.S. 206, 210 (1953)). The Court stated in Galvan v. Press,
347 U.S. 522 (1954), that:
Policies pertaining to the entry of aliens and their
right to remain here are peculiarly concerned with
the political conduct of government. In the
enforcement of these policies, the Executive
Branch of the Government must respect the
procedural safeguards of due process. . . . But that
the formulation of these policies is entrusted
exclusively to Congress has become about as
firmly imbedded in the legislative and judicial
tissues of our body politic as any aspect of our
government. . . . We are not prepared to deem
ourselves wiser or more sensitive to human rights
than our predecessors, especially those who have
been most zealous in protecting civil liberties
under the Constitution, and must therefore under
our constitutional system recognize congressional
power in dealing with aliens. . . .
23
Id. at 531-32.
To that end, the Court has applied a very lenient “facially
legitimate and bona fide reason standard” to constitutional
challenges of immigration statutes. See, e.g., Fiallo, 430 U.S. at
795 (holding that immigration statute that distinguished between
“legitimate” and “illegitimate” children of United States citizens
in giving preference for immigration status to aliens met equal
protection standards because distinctions in statute were based
on “facially legitimate and bona fide reason”); Kleindienst, 408
U.S. at 769 (holding that regulation denying applicant visa for
communist beliefs passes First Amendment “facially legitimate
and bona fide reason” scrutiny).
Extending the state-created danger exception to final
orders of removal would impermissibly tread upon the Congress’
virtually exclusive domain over immigration, and would unduly
expand the contours of our immigration statutes and regulations,
including the regulations implementing the CAT. Despite the
fact that Congress could reasonably choose to amend the
immigration statutes to incorporate novel developments in our
case law, “these are policy questions entrusted exclusively to the
political branches of our Government, and we have no judicial
authority to substitute our political judgment for that of the
Congress.” Fiallo, 430 U.S. at 798.
D. Remaining Issues
1. New Country Conditions
According to the 2004 State Department Country Reports
on Human Rights Practices, the civil war between the Sierra
Leone government and the RUF officially ended in 2002. At
present, the government, which has full control of the country,
“generally respect[s] the human rights of its citizens. . . .”
Country Report, at 1, available at
www.state.gov/g/drl/rls/hrrpt/2004/41625.htm. The most recent
Country Report further notes that the Sierra Leone Constitution
prohibits torture and other cruel, inhuman, or degrading
treatment or punishment, and states that over the past year there
24
have been relatively few reports of such incidents. Id. at 2. The
issue thus becomes whether we can take notice of these new
country conditions and factor them into our analysis of whether
to grant Kamara’s petition for review, or rather, whether we
must rest our decision on country reports included in the
administrative record which, by now, are nearly six years old.
In Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004), we
directly addressed this issue, and held that while the use of stale
country reports is particularly problematic and may lead
sometimes to absurd or unjust results, “courts reviewing the
determination of an administrative agency must approve or reject
the agency’s action purely on the basis of the reasons offered by,
and the record compiled before, the agency itself.” Id. at 330
(citing SEC v. Chenery Corp., 318 U.S. 80 (1943)); see also
Gambashidze v. Ashcroft, 381 F.3d 187, 193-94 (3d Cir. 2004).
We further noted that while other circuits do take judicial notice
of new country developments not reflected in the administrative
record, see, e.g., Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41
(7th Cir. 2004) (taking judicial notice that country conditions for
ethnic Albanians in Serbia and Montenegro in 2004 are much
improved over conditions in the early 1990s), such an approach
“not only carries with it the potential for wholesale relitigation of
many immigration-law claims, but the Courts of Appeals are ill-
equipped to receive supplementary evidence.” Berishaj, 378
F.3d at 330.
Responding to our concern expressed in Berishaj, the
Attorney General implemented a new policy, whereby the Office
of Immigration Litigation (“OIL”) screens and remands petitions
for direct review “where records are out of date and not
appropriate for judicial review.” Ambartsoumian v. Ashcroft,
388 F.3d 85, 88 (3d Cir. 2004). The factors the OIL uses in
assessing the need for remand include: “(1) whether there have
been pertinent, intervening events in the country of removal; and
(2) whether the issues on review are ‘time sensitive’ in that
changes in conditions over time may affect the resolution of the
issues.” Id.DHS states that “[t]his case has been screened pursuant to
25
this policy,” and it has deemed remand inappropriate.
Appellant’s Reply Br. at 9. The government, after obtaining a
favorable holding from the BIA, had little incentive to pursue
remand of the present case to the BIA, even if remand would
have introduced evidence more favorable to its case. Kamara,
meanwhile, had no incentive to file a motion to reopen, see 8
U.S.C. § 1229a(c)(7), 8 C.F.R. § 1003.2, because the updated
country reports, if accepted, would all but eviscerate any asylum,
withholding, or CAT claim that he asserted. Thus, despite the
new policy implemented by the Attorney General, we again are
faced with an administrative record which appears woefully out-
dated. We take this opportunity to remind the Attorney General
that the internal remand procedure outlined in Ambartsoumian is
appropriate not only for cases where country conditions have
deteriorated in the area of the world where petitioner seeks
review, but also where conditions have so improved that
withholding of removal or relief under the CAT cannot be
justified. The Court of Appeals should be guarded from
adjudicating cases where the underlying issues have largely been
mooted by changes in country conditions.
2. The Scope of the District Court’s Injunction
In light of the unique procedural posture of this case,
where the District Court’s opinion below has been vacated, we
are not obliged to address the Court’s issuance of a permanent
injunction against removal. Nonetheless, we note that such
injunctive orders are overbroad as a matter of law. The
regulations governing CAT relief make plain that protection
under the CAT may be terminated upon changes in country
conditions. See 8 C.F.R. § 208.17(d).13 Thus, even if CAT
13
8 C.F.R. § 208.17(a) provides that:
An alien who: has been ordered removed; has been
found under § 208.16(c)(3) to be entitled to
protection under the Convention Against Torture;
and is subject to the provisions for mandatory denial
of withholding of removal under § 208.16(d)(2) or
26
relief is granted, the government is authorized to file a motion to
reopen, based on changed country conditions, to terminate an
alien’s deferral of removal.
IV.
In sum, for the reasons given above, we hold that the BIA
improperly applied the CAT regulations. We vacate the District
Court’s opinion, and remand to the BIA for further proceedings
consistent with our opinion UNITED STATES COURT OF
APPEALS
(d)(3), shall be granted deferral of removal to the
country where he or she is more likely than not to be
tortured.
§ 208.17(d)(1) provides however that:
At any time while deferral of removal is in effect, the
INS District Counsel for the District with
jurisdiction over an alien whose removal has been
deferred under paragraph (a) of this section may file
a motion with the Immigration Court having
administrative control pursuant to § 3.11 of this
chapter to schedule a hearing to consider whether
deferral of removal should be terminated.
After new evidence is presented, 8 C.F.R. § 208.17(d)(4)
establishes that:
If the immigration judge determines that the alien is
more likely than not to be tortured in the country to
which removal has been deferred, the order of
deferral shall remain in place. If the immigration
judge determines that the alien has not established
that he or she is more likely than not to be tortured in
the country to which removal has been deferred, the
deferral of removal shall be terminated and the alien
may be removed to that country.
27