Guerra v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 14, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 04-60650
____________________
CARLOS ARTURO GUERRA,
Petitioner,
v.
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
__________________
On Petition For Review from an Order of
the Board of Immigration Appeals
_______________________
Before KING, Chief Judge, and DAVIS, Circuit Judge, and
FITZWATER*, District Judge.
W. EUGENE DAVIS, Circuit Judge:**
Carlos Arturo Guerra (Guerra) challenges an order of the
Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) order of removal due to Appellant’s drug trafficking
conviction. For the reasons stated below, we affirm the BIA’s
order.
*
U.S. District Judge, Northern District of Texas, Sitting by
Designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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I.
Guerra, a native and citizen of Colombia, entered the United
States illegally in the 1980s. In 1991, his status was adjusted
to that of a lawful permanent resident. Guerra married a U.S.
citizen with whom he had three children.
For about ten years, Guerra was involved in drug trafficking
with a cartel from Colombia. In 1999, he entered a guilty plea
and was convicted in Florida of conspiracy to possess with intent
to distribute cocaine.
Guerra agreed to assist the government in its case against
other participants in the cartel. Consistent with this
agreement, he testified against other individuals involved with
the drug cartel. In exchange for his testimony, he received
consideration toward his sentence and immunity from further
prosecution. Guerra was sentenced to 70 months in prison.
On September 10, 2003, the Department of Homeland Security
(DHS) served Guerra with a Notice to Appear, charging that he was
removable as an alien convicted of a controlled substance
offense. Guerra conceded removability and filed an application
for protection under the United Nations Convention Against
Torture3 (CAT).
3
The U.S. ratified CAT in 1994 and the INS adopted
implementing regulations that became effective on March 22, 1999.
Under the CAT regulations, a new form of withholding of removal
was created for aliens who fear being subjected to torture in
their home countries. See DAVID WEISSBRODT & LAURA DANIELSON,
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In his CAT application and his testimony at a hearing before
the IJ, Guerra stated that his wife received a phone call
threatening his life and the life of his family. He also stated
that one of the individuals against whom he testified threatened
him in open court during his testimony at that person’s trial.
Another person against whom he testified, Norman Betancur, is now
a fugitive in Colombia. Guerra argued that an “interactive”
relationship exists between guerrilla organizations involved in
drug trafficking and the Colombian government. Guerra stated that
the investigators and prosecutors with whom he worked warned him
that his cooperation would put him in danger and that they were
aware of threats made against him and another cooperating
witness. In short, Guerra contends that if he returns to
Columbia, members of the cartel still in that country or their
friends and supporters will hunt him and his family down and kill
them.
The IJ ordered Guerra deported based on his drug trafficking
conviction and denied the CAT application because he found that
Guerra failed to demonstrate that it is more likely than not that
he would be tortured either with or without the support or
acquiescence of the Colombian government. The BIA summarily
denied Guerra’s appeal and affirmed the order of the IJ.
II.
Based on these facts, Guerra argues that the DHS’
IMMIGRATION LAW AND PROCEDURE §10.22, at 328-29 (5th ed. 2005)
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deportation of him is in violation of CAT and substantive due
process guaranteed by the U.S. Constitution based on a “state
created danger” theory.
This court has no jurisdiction to review removal orders
issued by the BIA for aliens who have been convicted of a
controlled substance offense. See 8 U.S.C. § 1227(a)(2)(B);
Calcano-Martinez v. INS, 533 U.S. 348, 350 (2001); Balogun v.
Ashcroft, 270 F.3d 274, 277-78 (5th Cir. 2001).
Petitioner argues however that his removal would violate his
substantive due process rights guaranteed by the U.S.
Constitution. We have jurisdiction to review a Constitutional
challenge to an alien’s removal. See Assaad v. Ashcroft, 378 F.3d
471, 475 (5th Cir. 2004). Therefore, while we are barred from
reviewing the IJ and BIA’s decision on Guerra’s CAT claim, we do
have jurisdiction over his claimed due process violation.
Guerra argues that, in taking and using his testimony
against the drug cartel and then deporting him to Colombia, where
the government cannot or will not protect him, the DHS is
creating a significant danger to Guerra’s life.
The Supreme Court has applied the state created danger
theory in limited circumstances in the § 1983 context. See
DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189(1989). The Court has not applied this theory in an immigration
case. This court has also applied the theory in a § 1983 case in
the limited circumstance where the plaintiff was involuntarily
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confined by a state. See Walton v. Alexander, 44 F.3d 1297, 1299
(5th Cir. 1995). See also McKinney v. Irving Independent Sch.
District, 309 F.3d 308, 313 (5th Cir. 2002); McClendon v. City of
Columbia, 305 F.3d 314 (5th Cir. 2002). This court has also not
applied the state created danger rule in the immigration context.
After reviewing the record made before the immigration judge
in this case, we are satisfied that even if the state created
danger theory is applicable in an immigration case, the facts of
this case do not support its application here.
We have no reason to believe that the Supreme Court would,
under any circumstances, apply the state created danger theory in
an immigration case unless the petitioner established that the
state actors created or increased the danger to the plaintiff.
That is the underlying premise upon which the doctrine is based.
See DeShaney.
In this case, the IJ found that Guerra failed to establish
that his life will be in danger if he is deported to Colombia.
The only definitive evidence of danger that was presented to the
IJ was evidence of a single phone threat to his wife and a threat
in open court by a defendant against whom Guerra was testifying.
Both of these threats apparently occurred around the time Guerra
was incarcerated in 1999 or 2000. Guerra produced no additional
evidence of any continuing threats or other manifestations of
danger that may await him if he returns to Colombia.
For the above reasons, we conclude that even if the state
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created danger theory is a viable one in the immigration context,
based on the record evidence in this case, it has no application
here. We therefore reject Guerra’s substantive due process
claim.4 Having considered Guerra’s constitutional challenges to
the removal order, we find no error in the BIA’s conclusion and
affirm its order.
AFFIRMED.
4
Guerra also argues that he was denied a fundamentally fair
trial because his counsel provided ineffective assistance. This
claim was not raised below, but, in any event, it is meritless.
Guerra had no Sixth Amendment rights to counsel at his hearing.
Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001),
citing Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n.6
(5th Cir. 1999); Paul v. INS, 521 F.2d 194, 198 (5th Cir. 1975).
Also, the BIA took administrative notice of the State Department
report on country conditions in Colombia which presented similar
information as the U.N. Committee Against Torture report, one of
the two documents Guerra contends his counsel was ineffective in
failing to produce. Additionally, the BIA stated that even if it
were to consider the U.N. Committee report, it would not alter
the result of the case. The other document Guerra complains his
counsel did not produce is a letter allegedly written from a U.S.
Attorney to the Department of Homeland Security asking the DHS to
give relief to Guerra. Although Guerra referred to this letter
at the hearing, he did not establish that it ever existed.
Guerra failed to demonstrate that his hearing was fundamentally
unfair.
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