Music v. Attorney General of the United States

IMG3-003 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4823
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SEMIR MUJO MUSIC,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A079-829-315)
Immigration Judge: Walter A. Durling
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 3, 2014
Before: FUENTES, KRAUSE and COWEN, Circuit Judges
(Filed: November 3, 2014)
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OPINION*
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PER CURIAM
* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Semir Mujo Music (“Music”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
Music was born in Vlasenica in the former Yugoslavia in 1989; he is ethnically
and religiously a Bosnian Muslim. He entered the United States in 2001 with his family
as a refugee. His parents and siblings are now all lawful permanent residents, but Music
was not able to similarly adjust his status because, on December 4, 2012, he was
convicted of possession with intent to deliver cocaine, in violation of 35 Pa. Cons. Stat.
Ann. § 780-113(a)(30). Music subsequently was sentenced to a term of imprisonment of
9-23 months, to be followed by three years of probation. He does not dispute that he is
removable under Immigration & Nationality Act § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), for having been convicted of the aggravated felony of drug trafficking.
Music applied for deferral of removal under the Convention Against Torture, 8
C.F.R. § 1208.17(a), and testified in support of his application at a May 2, 2013 hearing
before the Immigration Judge. Although he admitted that he does not know what he will
face if he is removed to Bosnia and Herzegovina, he fears that he will be detained as an
“internally displaced person,” and interrogated and tortured by Serb officials because
Vlasenica is under the control of the Serbs. In support of his claim, he submitted a report
from the Council of Europe on its visit to Bosnia and Herzegovina in April, 2011, A.R.
224-301, and other evidence of country conditions. The IJ also considered the U.S. State
Department’s 2012 Human Rights Report on Bosnia and Herzegovina, A.R. 348-83.
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The IJ granted CAT relief and deferred Music’s removal to Bosnia and
Herzegovina. As a threshold matter, the IJ determined that Music’s cocaine conviction
was a “particularly serious crime” under Matter of Y-L-, 23 I. & N. Dec. 270 (A.G.
2002), and that he was thus ineligible for statutory withholding of removal, see 8 U.S.C.
§ 1231(b)(3)(A).1 The IJ reasoned that knowingly delivering 14.7 grams of cocaine and
receiving a small amount of money and drugs for those efforts could not be considered
“peripheral” under the Y-L- standard. With respect to deferral under the CAT, the IJ
concluded that Music had met his burden of proof to show the likelihood of torture at the
hands of government authorities in Bosnia and Herzegovina. The IJ reasoned that,
because the country conditions evidence showed that prisoners are often subjected to
physical mistreatment, including torture, it was reasonable to assume that Music, as a
criminal deportee, would be detained upon his arrival and tortured, notwithstanding the
“dearth of evidence” relating to how the government treats criminal deportees, A.R. 68.
The Department of Homeland Security appealed and Music cross-appealed. On
December 2, 2013, the Board dismissed Music’s appeal from the IJ’s “particularly
serious crime” determination, and reversed the IJ’s grant of deferral of removal under the
CAT. First, the Board agreed with the IJ that Music was not eligible for statutory
withholding of removal. The Board applied the Y-L- standard and determined that
Music’s case did not demonstrate extraordinary and compelling circumstances to justify a
1
Section 1231(b)(3)(A) provides that “the Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). For
refugees like Music, who suffered persecution in the past, there is a rebuttable presumption that their life or freedom
would be threatened in the future, 8 C.F.R. § 1208.16(b)(1).
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deviation from the presumption that his cocaine conviction was a “particularly serious
crime.” The Board reasoned that, as the deliveryman for a drug dealer, Music was not
merely peripherally involved in the criminal activity, despite the fact that he was
delivering small amounts of cocaine to the dealer’s customers in exchange for small
amounts of cocaine for his personal consumption.
Second, the Board held that the IJ committed clear error in granting Music deferral
of removal under the CAT. The Board noted that, under Matter of J-F-F-, 23 I. & N.
Dec. 912 (A.G. 2006), a grant of deferral of removal must rely upon a finding that each
event in a hypothetical chain of events would be more likely than not to occur. The IJ’s
findings were clearly erroneous because the evidence of record did not address the
treatment of criminal deportees at all, and thus did not establish that it was more likely
than not that Music would be detained and tortured as a criminal deportee. The Board
also held that the IJ clearly erred in his finding that it was more likely than not that the
government of Bosnia and Herzogovina would torture Music because it had tortured
others in the past. The Board noted that the record evidence indicated that the
government does not torture its citizens and has made progress in curbing human rights
abuses since the civil war in the 1990s, and that the law prohibits arbitrary arrest and
detention. The Board noted that returnees are provided support, including limited
reconstruction assistance and facilitation of the return to their original homes, and that the
evidence does not reflect that they are arrested, detained, or tortured.
4
Music timely petitions for review. In his brief on appeal, he argues first that the
agency erred in finding him ineligible for statutory withholding of removal because his
possession with intent to distribute conviction is not a “particularly serious crime” under
8 U.S.C. § 1231(b)(3)(B)(ii). Specifically, he argues that the Board incorrectly applied
Matter of Y-L- to the facts of his case. Music next argues that the Board erred in its
application of the clearly erroneous standard of review to the IJ’s grant of deferral of
removal under the CAT. Specifically, Music argues that the Board’s review was actually
less deferential than it should have been under the clearly erroneous standard.
Our jurisdiction to review the final order of removal in this case is limited to
constitutional claims and questions of law because Music conceded before the agency,
and does not dispute in his opening brief, that he is removable for having committed the
aggravated felony of drug trafficking, see 8 U.S.C. § 1252(a)(2)(C)-(D). The Department
of Homeland Security (“DHS”) has argued that Music raises no legal or constitutional
challenges to his removal order, and that, under Kaplun v. Att’y Gen. of U.S., 602 F.3d
260 (3d Cir. 2010), we lack jurisdiction altogether to review the Attorney General’s
discretionary determination that an alien’s conviction constitutes a particularly serious
crime. Respondent’s Brief, at 15. We disagree. In Alaka v. Att’y Gen. of U.S., 456 F.3d
88 (3d Cir. 2006), we held that, because the Attorney General’s discretion is not specified
in § 1231(b)(3)(B)(ii), section 1252(a)(2)(B)(ii), which limits judicial review of the
Attorney General’s discretionary decisions, is “insufficient to pull the ‘particularly
serious crime’ determination out from the broad class of reviewable decisions that require
5
the application of law to fact into the narrower class of decisions where judicial review is
precluded.” Id. at 101-02.
Moreover, Music’s arguments that he satisfies the “peripheral involvement”
requirement under Matter of Y-L-, and that the Board erred in its application of the
clearly erroneous standard to the IJ’s CAT grant, are both reviewable legal arguments,
see 8 U.S.C. § 1252(a)(2)(D), in this circuit. In Denis v. Att’y Gen. of U.S., 633 F.3d
201, 213 (3d Cir. 2011), for example, we addressed similar legal arguments regarding the
Board’s affirmance of the IJ’s determination that the alien had committed a particularly
serious crime, including: “that the elements of [the alien’s] crime of conviction -- as well
as the actual underlying conduct -- did not entail a crime against a person, … that in
ruling on this issue, the IJ improperly considered evidence of alleged offenses of which
[the alien] was acquitted [and] …that the IJ improperly placed the burden [on the alien]
to disprove that his offense was particularly serious,” id. at 213. Kaplun, 602 F.3d 260,
does not hold otherwise. Although we stated in Kaplun that we “do not have jurisdiction
over discretionary decisions, and without any assertion of legal error, Kaplun is not
entitled to relief” on his claim that his crime did not qualify as particularly serious, id. at
267, we then went on to review his “three legal arguments why he has not been convicted
of a particularly serious crime [including that]: (1) the Government has waived the issue,
having not brought it before the IJ; (2) the entire analysis rests upon the legally erroneous
conclusion that his guilty plea admitted all the allegations in the information; and (3) the
BIA decision ran contrary to actual Board precedent,” id. (internal quotation marks and
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brackets removed). Kaplun does not hold that the “particularly serious crime
determination” falls under 8 U.S.C. § 1252(a)(2)(B)(ii) (discretionary determinations
unreviewable); rather, in determining that we had jurisdiction to review the alien’s three
legal arguments, see 8 U.S.C. § 1252(a)(2)(D), we simply noted the general principle that
factual and discretionary determinations continue to fall outside our jurisdiction after
passage of the Real ID Act of 2005. See Sukwanputra v. Gonzales, 434 F.3d 627, 634
(3d Cir. 2006). Accordingly, subject matter jurisdiction is not lacking here.
We will deny the petition for review. The agency’s determination that Music’s
cocaine conviction constituted a “particularly serious crime” was not the result of legal
error.2 Aliens who have been convicted of a “particularly serious crime” are ineligible
for withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). The statute provides that
“an alien who has been convicted of an aggravated felony … for which [he] has been
sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to
have committed a particularly serious crime.” Id. at § 1231(b)(3)(B)(iv). However, even
where the term of imprisonment is less than 5 years, as it was in Music’s case, the
Attorney General is still authorized by the statute to decide that an alien has been
convicted of a particularly serious crime, see id. See also Denis, 633 F.3d at 214. Where
the Attorney General’s interpretation of the phrase “particularly serious” is reasonable,
2
In Lavira v. Att’y Gen. of U.S., 478 F.3d 158, 164 (3d Cir. 2007), overruled on other grounds by Pierre v. Att’y
Gen. of U.S., 528 F.3d 180, 189 (3d Cir. 2008) (en banc), we held that whether an alien has been convicted of a
particularly serious crime is a question of law that is reviewed de novo, “albeit with deference to the agency where
appropriate.” This is the same de novo standard that we applied in Denis, 633 F.3d at 205-06 (“Denis contends that
his crime of conviction … should not constitute a particularly serious crime… . [This] assertion implicates
‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(a)(2)(D), and we review the BIA’s legal determinations
de novo, subject to Chevron principles of deference.”).
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we will defer to the agency’s expertise. See id. The interpretation of the term
“particularly serious crime” was established for drug trafficking offenses by the Attorney
General in 2002 in Matter of Y-L-, 23 I. & N. Dec. 270. Cf. Miguel-Miguel v. Gonzales,
500 F.3d 941, 947 (9th Cir. 2007) (explaining that the Attorney General may overrule the
Board by issuing a published opinion). Pursuant to Matter of Y-L-, the agency will
presume that a drug trafficking crime is a “particularly serious crime,” but the
presumption may be overcome where in “the very rare case” an alien demonstrates
extraordinary and compelling circumstances that justify treating a particular drug
trafficking crime as not particularly serious. 23 I. & N. Dec. at 276. The Attorney
General suggested, while not setting out the “precise boundaries,” that the following
factors, if all of them have been established, could overcome the presumption that a drug
trafficking crime is “particularly serious,” and thereby demonstrate extraordinary and
compelling circumstances: (1) when only a small quantity of drugs is involved, (2) when
only a modest amount of money has been paid for the drugs, (3) when the alien has
merely peripheral involvement in the criminal activity or conspiracy, (4) when no
violence is involved, (5) when no terrorist activities or organized crime are involved, and
(6) when juveniles are not harmed. Id. at 276-77.
In applying the Y-L- standard, the Attorney General ruled that an alien who
qualified for a “minor participant” sentencing adjustment based on his role as a courier
could not overcome the presumption because a drug courier “plays more than a
sufficiently active part in a distribution conspiracy….” Id. at 278. Notwithstanding this
8
determination, Music argues that he meets the requirement for peripheral involvement in
that he was a mere deliveryman who did not receive anything for his actions except drugs
for his personal use. He argues that he was “bit player,” and that “90% of the actual
criminal enterprise rests below the surface of [his] penultimate act to be the person
handling the delivery under the orders of his superior,” Petitioner’s Brief, at 12-13. He
argues further that no court has held that the conduct at issue here amounts to more than
peripheral involvement.3 We are not persuaded. In Matter of Y-L-, the Attorney General
specifically found that a “drug courier” plays more than a sufficiently active part in a
distribution conspiracy. 23 I. & N. Dec. at 278. It is true that the specific drug courier at
issue was involved in a scheme designed to transport large quantities of cocaine, but the
Attorney General also noted that each of the three aliens under consideration, including
this drug courier, “was a direct actor or perpetrator – not merely a peripheral figure – in
their respective criminal activities.” Id. at 277. Thus, what matters is that Music was a
direct actor who obtained cocaine from his dealer and delivered it to his dealer’s
customers. Under the Y-L- standard, he was not merely peripherally involved in the
criminal activity, and, accordingly, we uphold the agency’s determination that he is
ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(A).
Turning to Music’s second legal argument, we conclude that the Board properly
applied the clearly erroneous standard in reversing the IJ and determining that Music did
3
In Lavira, 478 F.3d 158, we remanded, holding that the agency misapplied the Y-L- standard where the alien’s
conviction was the result of his having accepted $10 from an undercover officer in order to buy crack cocaine for
that officer, but there the agency failed to refer to the facts of the crime and made only a conclusory determination.
See id. at 166. We remanded so that the agency could supply its reasoning. In Music’s case, the agency’s reasoning
is clear enough.
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not meet his burden of proof to show that it is more likely than not that he will face
torture by or with the consent of the government of Bosnia and Herzegovina. The burden
of proof is on the applicant to establish that it is more likely than not that he would be
tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2).
“Torture is defined as any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person … when such pain or suffering is 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.” Id. at § 1208.18(a)(1). In Matter of J-F-F-, 23 I. &
N. Dec. at 918, the agency had presumed that the alien would not receive medication
while in the Dominican Republic based on the alien’s “admittedly uninformed guess that
he could not procure his medication in the Dominican Republic, and a single sentence
about the general shortage there of mental health resources from the State Department’s
Country Report.” Id. at 918. The Attorney General reversed the agency and denied the
alien’s application for deferral of removal, determining that “[b]oth [the alien’s]
uninformed speculation and the Immigration Judge’s reference to a vague statement in
the Country Report fall far short of proving that he is more likely than not to go without
medication.” Id. at 919. The Attorney General concluded that a grant of deferral of
removal must rely upon a finding that each event in a hypothetical chain of events would
be more likely than not to occur. See id. at 917. See also Denis, 633 F.3d at 218
(denying CAT protection where claim is based on chain of assumptions and fear of what
might happen rather than evidence that meets alien’s burden of demonstrating that it is
10
more likely than not that he will be subjected to torture by or with the acquiescence of a
public official); In re: M-B-A-, 23 I. & N. Dec. 474, 479-80 (BIA 2002) (en banc)
(same).
An Immigration Judge’s determination concerning what is likely to happen to the
alien if removed from the United States is factual and reviewed by the Board for clear
error. Kaplun, 602 F.3d at 271; 8 C.F.R. § 1003.1(d)(3)(i). Facts determined by an
Immigration Judge “shall be reviewed only to determine whether the findings … are
clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). Here, the Board properly found that the
IJ committed clear error. The IJ’s grant of deferral rested on an assumption that criminal
deportees to Bosnia and Herzegovina will be arrested, detained and tortured, but the
evidence of record did not address the treatment of criminal deportees, thereby breaking
the chain of assumptions necessary to reach this conclusion. The IJ even acknowledged
that the record evidence did not address the treatment of criminal deportees, so the IJ was
not able to conclude that Music was nevertheless likely to be detained and tortured upon
his arrival in Bosnia and Herzegovina. See Matter of J-F-F-, 23 I. & N. Dec. at 917;
Denis, 633 F.3d at 218; In re: M-B-A-, 23 I. & N. Dec. at 479-80.
Music argues that the IJ properly applied the law to the facts in granting deferral,
and that the record provided sufficient evidence to find that it is more likely than not that
he will be detained and tortured as a homeless, Bosnian Muslim. In his brief, he has
recounted how he and his family were forced to flee invading Serb forces during the civil
war, and he has emphasized the historical tension between the Serbs and Bosnian
11
Muslims, Petitioner’s Brief, at 14-15. He argues that his country conditions evidence,
including the Council of Europe Report for the Protection of Torture, Petitioner’s Brief,
at 16 & n.5, was sufficient proof that he will be detained and tortured. His country
conditions evidence all make clear, he argues, that homeless displaced persons are
detained, and criminal suspects are interrogated and tortured, see id. at 16-17. He argues
that the IJ correctly assessed that torture of criminal suspects by the police is common,
that his hometown of Vlasenica lies on the Serbian side of the border, that he will end up
on that side, and that he will be detained as a homeless displaced person, see id. at 17.
He argues that the IJ’s “assumption” that the border patrol would use the same tactics of
torture and physical mistreatment on homeless displaced persons that is used by police on
criminal suspects cannot be overturned under the clearly erroneous standard, id.
We do not agree and find no legal error in the Board’s application of the clearly
erroneous standard in Music’s case. The evidence of record does not address the
treatment of criminal deportees, and does not reflect that they are arrested, detained, or
tortured. We agree with Music that the record evidence indicates that displaced persons
are vulnerable, but what they face upon repatriation is not arrest, detention, and torture,
but rather “legal, social, economic and administrative obstacles” associated with
resettlement. A.R. 197.4 The accounts of police misconduct and human rights violations
in the record are directed against criminal suspects, not newly-arrived deportees who are
4
Counsel for Music has advised us that Music has returned to Bosnia and Herzegovina. He was “interrogated upon
his return and authorities indicated they would continue to follow him,” Petitioner’s Brief, at 4 n.3, but apparently he
was not detained and tortured.
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not suspects in any criminal activity. We thus conclude that the Board was not less
deferential than it should have been in reversing the IJ because the grant of deferral of
removal must rely upon a finding that each event in a hypothetical chain of events would
be more likely than not to occur, Matter of Y-L-, 23 I. & N. Dec. at 917. The Board
committed no legal error in determining that the IJ’s finding concerning what is likely to
happen to Music if he is removed from the United States was clearly erroneous, Kaplun,
602 F.3d at 271; 8 C.F.R. § 1003.1(d)(3)(i). Because that finding was clearly erroneous,
CAT relief properly was denied.
For the foregoing reasons, we will deny the petition for review.
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