Opinion
No. C 02-4868 SI
December 9, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
On November 26, 2002, this Court heard argument on Jose Coronado-Gonzalez's petition for writ of habeas corpus and motion for a temporary restraining order and a preliminary injunction. Having carefully considered the arguments of the parties and the papers submitted, the Court DENIES the motions.
BACKGROUND
On October 8, 2002 Jose Coronado-Gonzales (Coronado) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion for a temporary restraining order and a preliminary injunction. Mr. Coronado seeks relief from the Immigration and Naturalization Service (INS) removal proceedings which have been instituted against him. Mr. Coronado's present case is related to a prior criminal matter over which this Court presided, U.S.A. v. Coronado, 98-0248 SI. In that matter, on December 6, 1999 Coronado pled guilty to possession with intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and for aiding and abetting in violation of 18 U.S.C. § 2. See Exh. E to Petitioner's Memorandum in Support of Habeas Petition, Judgment in a Criminal Case. Petitioner was sentenced to 37 months in prison for that conviction. On August 3, 2000 the INS began proceedings to remove Coronado to Mexico, his native country.
The INS alleged that under INA § 237(a)(2)(A)(iii), defendant was removable based upon his conviction for an aggravated felony and a controlled substance violation. Coronado applied for withholding of removal under the INA and deferral of removal under the Convention Against Torture (CAT).
At the hearing before the Immigration Judge (IJ), Coronado requested a continuance to call two witnesses on his behalf The IJ denied the continuance. In the hearing, Coronado alleged that he would be subject to political persecution if removed to Mexico. The IJ denied the application for withholding and deferral of removal, finding that Coronado was convicted of a particularly serious offense and that Coronado had not demonstrated that it was more likely than not that he would be tortured if removed to Mexico. See Exh. G to Petitioner's Memorandum in Support of Application for Habeas, In the Matter of Jose Guadalupe Coronado-Gonzalez, File No. A 92 191 363, August 21, 2001.
Subsequently, Coronado appealed to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal, holding that the IJ's decision to deny the request for a continuance was a proper exercise of discretion and resulted in no prejudice to Coronado. Further, the BIA adopted the IJ's finding that Coronado did not prove eligibility for withholding or deferral of removal. In the present habeas petition Coronado seeks review of the proceedings below. See Exh. I to Petitioner's Memorandum in Support of Application for Habeas, Decision of Board of Immigration Appeals, February 12, 2002.
LEGAL STANDARDS
1. Petition for writ of habeas corpus
Coronado's petition for habeas corpus relief was filed pursuant to 28 U.S.C. § 2241. To obtain habeas corpus relief under this statute, Coronado must demonstrate that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Coronado is considered to be in "custody" for the purposes of this statute since he is subject to a final order of deportation. Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir. 1995).
2. Due process
The Due Process Clause applies to deportation hearings. See Hartooni v. INS, 21 F.3d 336, 339-40 (9th Cir. 1994) (citing Wong Sang Sung v. McGrath, 339 U.S. 33, 49-50 (1950)). Deportation proceedings violate due process if the alien does not receive a "full and fair" hearing and suffers prejudice as a result of the inadequate proceedings. Id. at 340. This Court has jurisdiction to review habeas petitions which allege wrongful "custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2241(c)(3). Courts, therefore, have jurisdiction to review claims that the manner in which the immigration proceedings were conducted violated due process.
3. Discretionary relief from deportation and jurisdiction
Under the INA, any alien convicted of an aggravated felony or an offense related to controlled substances is subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii) (a)(2)(B)(i). An "aggravated felony" includes within its meaning "illicit trafficking in a controlled substance." See 8 U.S.C. § 1101(a)(43)(B). Although the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub.L. No. 104-238, 110 Stat. 3009-625 (as amended by Act of October 11, 1996, Pub.L. No. 104-302, 110 Stat. 3657) severely limits courts' jurisdiction to review final orders of removal, it does not preclude review of habeas claims in the district courts pursuant to 28 U.S.C. § 2241. The Supreme Court stated in INS v. St. Cyr that "habeas jurisdiction under § 2241 was not repealed by [the Antiterrorism and Effective Death Penalty Act of 1996] and IIRIRA." INS v. St. Cyr, 533 U.S. 289 (2001).
4. Temporary restraining orders and preliminary injunctions
The Court has the authority to grant temporary restraining orders and preliminary injunctions in the exercise of its equitable powers. Fed.R.Civ.P. 65(a) and (b). As the Court is acting in equity, the decision to enter a preliminary injunction is largely left to its discretion. See Big Country Foods, Inc. v. Board of Educ. of Anchorage School Dist., 868 F.2d 1085, 1087 (9th Cir. 1989). Traditionally, this rule has been interpreted to require the trial court to consider the likelihood that plaintiff will prevail on the merits and the possible harm to the parties from granting or denying the injunctive relief. See Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984).
DISCUSSION
1. Coronado's petition
Petitioner's three claims are: (1) his conviction was not for a "particularly serious offense"; (2) the BIA's conclusion that he did not show that it was more likely that not that he would suffer torture if removed was in error; and (3) the IJ's failure to grant a continuance violated due process.
This Court will first consider the extent to which it may review Coronado's claims that he did not commit a particularly serious offense and thus is eligible for withholding of removal. The Court will then consider Coronado's claims that the BIA erred in its decision that Coronado did not demonstrate that it was more likely than not that he would suffer torture if removed. Finally, the Court will consider Coronado's due process claim.
2. Review of the IJ finding that Coronado's conviction was for a "particularly serious" crime
Under the INA any alien convicted of an aggravated felony or an offense related to controlled substances is subject to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(B)(i). An "aggravated felony" includes within its meaning "illiciting trafficking in a controlled substance." See 8 U.S.C. § 1101(a)(43)(B). While aliens in deportation proceedings may bring habeas challenges to their deportation, there are limits to the subjects which may be reviewed on habeas. Federal courts do not have jurisdiction to review discretionary decisions by the INS which do not raise constitutional questions or questions of federal law. This Court may not re-weigh the equities to strike a new balance of discretion in a case in which the equities have already been weighed by the IJ.
Pursuant to 8 U.S.C. § 1231(b)(3)(A), aliens whose lives may be threatened because of "race, religion, nationality, membership in a particular social group or political opinion" may not be removed by the Attorney General; however, 8 U.S.C. § 1231(b)(3)(B) expressly states that this paragraph does not apply "if the Attorney General decides that". . . "the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States." The statute further provides that:
for purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious crime.
The government argues that "[t]he denial of withholding based upon a determination pursuant to 8 U.S.C. § 1231(b)(3) on the grounds that an aggravated felony conviction of less than 5 years is a particularly serious crime, constitutes an exercise of [INS] discretion." Return in Oppo. to Habeas at 6:22-25. Pursuant to § 1231(b)(3)(B)(ii), the Attorney General has discretion to determine whether an aggravated felony conviction resulting in a sentence of less than five years is a serious crime. Coronado's sentence was for 37 months. In general, where neither constitutional nor statutory questions are raised, habeas review is not available to reconsider the exercise of the Attorney General's discretion. See Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001) (the denial of withholding of removal is a discretionary denial not within the court's jurisdiction to review under Section 1252(a)(2)(B)(ii)).
Coronado petitions the Court to reconsider the following factors in determining whether a trafficking offense is a particularly serious crime:
(1) whether the quantity of the controlled substance involved was small; (2) whether a very modest amount of money was paid for the drugs in the offending transaction; (3) whether there was merely peripheral involvement by the alien in the criminal activity, transaction or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles.
Points and Authorities in Support of Habeas Petition at 8:12-20.
Coronado's contention is that the decision by the IJ was without adequate support in the record. Re-evaluating these questions does not involve constitutional or legal questions, but merely a review of the factual determination of the IJ. "Habeas is available to claim that the INS somehow failed to exercise its discretion in accordance with federal law or did so in an unconstitutional maimer. But habeas is not available to claim that the INS simply came to an unwise, yet lawful conclusion when it did exercise its discretion." Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002). The Court finds that the BIA acted within its discretion in deciding that Coronado committed a particularly serious offense and is therefore ineligible for withholding of removal.
3. Coronado's claim for deferral of removal under the Convention Against Torture (CAT)
The IJ's denial of Coronado's application for withholding of removal was based both on his discretionary determination that Coronado had committed a "particularly serious crime," and was thus ineligible for withholding of removal; and, in addition, on his finding that Coronado had not proved that it was more likely than not that he would be tortured if removed to Mexico. As to the first, discretionary decision, this Court has already determined that it may not review the IJ's decision on habeas. As to the second, evidentiary decision, the government argues that the Court does not have jurisdiction to review CAT claims because CAT is a non-self-executing treaty for which Congress has not conferred jurisdiction on federal courts to hear affirmative claims for protection under CAT or to review BIA decisions pursuant to CAT.
Because this Court will not disturb the IJ's discretionary determination that petitioner's conviction was for a "particularly serious crime," petitioner is not in any event eligible for deferral of removal. This Court does, however, have habeas jurisdiction to review the BIA's evidentiary decision that petitioner did not demonstrate satisfactorily that he was more likely than not to suffer torture if removed to Mexico. The BIA's decision must be affirmed unless this Court finds that no reasonable factfinder could agree with the BIA's decision.See Kourteva v. INS, 151 F. Supp.2d 1126, 1130 (N.D.Cal. 2001).
Under 8 C.F.R. § 208.18(a)(1) torture is defined as "any act by which severe pain or suffering . . . is intentionally inflicted on a person" for certain purposes "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." The evidence submitted by Coronado included declarations from his wife and brother. Coronado's wife's declaration suggested that because Coronado is a wealthy business owner he might be a target for kidnapping if removed. Coronado's brother's declaration stated that the Coronado family had a longstanding feud with Martin Carbajal, a wealthy man in Coronado's native town, and that Mr. Carbajal might try to harm the Coronado family. See Exh. D to Petitioner's Memorandum in Support of Habeas. When asked by the IJ whether he was victimized during any of the ten visits he made to Mexico since 1985, Coronado responded that he was not. See Exh. F, Transcript of Immigration Hearing at 47:18-22. Further, Coronado's testimony provided no evidence that any persecution that he might suffer was of a political nature. In response to questioning from the IJ, Coronado answered that he did not have any problems with the current political party in power. Id. at 44:17-21. The evidence submitted does not meet the standard required for reversal of the BIA's decision. This Court "must accept the BIA's finding unless any reasonable adjudicator would be compelled to conclude the contrary." Kourteva, 151 F. Supp.2d at 1129-1130 citing 8 U.S.C. § 1252(b)(4)(B) and Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1988). Plaintiff has not submitted evidence which compels reversal of the BIA decision.
4. Coronado's due process claim
Coronado alleges that the IJ's failure to grant a continuance in his hearing to call two witnesses who allegedly would have testified about the torture and persecution to which he would be subject if returned to Mexico, violated due process. Petitioner's Memorandum at 4:25-27 (stating that the witnesses would have given the "Immigration Judge additional information as to the dangers Coronado faces if returned to Mexico to reside there permanently."). Coronado's due process claim falls within the scope of claims permitted under 28 U.S.C. § 2241, violations of the Constitution or a federal statute; therefore the Court has jurisdiction to hear this aspect of Coronado's petition. AEDPA and IIRIRA do not deny review of the constitutionality of the proceedings before the Immigration Judge. U.S. v. Herrera, 232 F.3d 715 (9th Cir. 2001).
This Court recognizes that due process, in deportation proceedings, includes the right to a full and fair hearing. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). To succeed in his due process challenge, Coronado must demonstrate not only that a due process violation occurred but also that he suffered prejudice as a result of the violation. Hartooni v. INS, 21 F.3d 336, 339 (9th Cir. 1990).
The witness testimony that Coronado was unable to procure, according to Coronado, would have provided the Court with additional facts about the torture to which Coronado would be subject if he returned to Mexico. Coronado was thoroughly questioned by the IJ about this danger and was unable to provide any specific instance of danger which he feared. To the contrary, Coronado testified that he did not anticipate being subject to harm and that he had not been threatened in any of his many previous visits home. See Exh. F to Petitioner's Memorandum in Support of Habeas Application, Transcript of Removal Proceedings before the Executive Office for Immigration Review, Immigration Court, dated August 21, 2001 at 47. The hearing was scheduled months in advance, one continuance had already been granted and Coronado was represented by counsel. Nonetheless, Coronado requested another continuance. Id. at 34. The Board of Immigration Appeals decision noted "Approximately 6 months before the merits hearing, the Immigration Judge advised the respondent that `any witnesses should be . . . ready to give testimony'" at the next hearing (quoting Tr. at 28)." BIA decision dated February 12, 2002.
Although Coronado alleges a due process violation, the evidence he has submitted does not support this allegation. Coronado's attorney explained that the subject matter of the testimony of the witnesses who were not present at the hearing was contained in declarations attached to his asylum application. "Your Honor, the substance of their testimony is re-telling the declarations that they attached to the asylum application, and it's from his brother and wife. They attached to the application [sic], and basically what their testimony, listed is that they fear for his safety if he returns to Mexico." Id. at 35:6-10.
In view of the time that Coronado had to prepare his case, that a previous continuance had already been granted, Coronado's unreasonable failure to present witnesses at his August 12, 2001 hearing, as well as the apparent lack of prejudice to Coronado from the failure to present testimony of these witnesses, this Court finds that the manner in which the IJ conducted the hearing did not violate due process.
5. Temporary restraining order and preliminary injunction
To be eligible for a temporary restraining order and preliminary injunction, in addition to demonstrating a likelihood of immediate and irreparable harm, the petitioner must demonstrate a likelihood that his claim will prevail on the merits. This Court has found that the administrative proceedings below denying Coronado's claims for withholding and deferral of removal were not in error. Further, this Court has found that there was no due process violation. Therefore, Coronado is unable to meet the threshold requirement that he is likely to prevail on the merits of his claim. For the foregoing reasons, Coronado's motion for a temporary restraining order and a preliminary injunction is DENIED.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas and motion for a temporary restraining order and a preliminary injunction are DENIED. [docket #1 (petition for writ of habeas corpus)]; [docket #2 (motion for preliminary injunction and temporary restraining order)].