Opinion
02 Civ. 848 (MBM)
September 24, 2003
JAMES B. COMEY, United States Attorney for the, Southern District of New York
MEGAN L. BRACKNEY, Assistant United States Attorney, Attorneys for Respondent, New York, New York
OPINION AND ORDER
Patrick Francis petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (2000), challenging an order of removal issued by an Immigration Judge (IJ) and upheld by the Board of Immigration Appeals (BIA). Francis argues that he is entitled to a deferral of removal because he is likely to be tortured upon his return to his native country, Guyana. For the reasons set forth below, the writ is denied and the petition is dismissed.
I.
Francis, a native of Guyana, entered the United States on June 17, 1995, as a lawful permanent resident. (Certified Administrative Record ("R.") at 34) On October 5, 1999, Francis was convicted in state court of two counts of attempted murder in the second degree and two counts of assault in the first degree, and he was sentenced to at least one year. (Id. at 34-35) On January 4, 2000, Francis was found removable to Guyana based on these criminal convictions. (Id. at 35) Because of the nature of his crimes, Francis' only possible relief from deportation was deferral of removal pursuant to Article 3 of the United Nations Convention Against Torture ("CAT"), as implemented by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822 ("FARRA"). (Id.) To qualify for CAT relief, Francis had to prove that it was more likely than not that he would be tortured if removed to Guyana. 8 C.F.R. § 208.16(c) (2003).
In proceedings before the IJ on September 28, 2000, Francis gave the following testimony in support of his CAT claim. Before he left Guyana for the United States, Francis was a member of the People's National Congress (PNC), a political party. (R. at 35) He worked as a "strong-arm" against the opposition party, the People's Progressive Party (PPP), during which time he became known as an enemy of the PPP. (Id.) He subsequently became a bodyguard for Lyndon Forbes Burnham, the president of Guyana. (Id.) After Burnham died in the 1980's, the new president of Guyana, Desmond Hoyte, ordered Francis to turn in his weapons and stripped him of his duties. (Id. at 35-36) In 1987, Francis went into hiding because members of the PPP wanted to torture him for his past deeds. (Id. at 36)
The PPP took over the government of Guyana in 1993, when Hoyte lost the presidential election. (Id.) Francis was attacked three times by the PPP, and on April 12, 1994, he was captured by PPP members, who tortured him for two days. (Id.) After escaping through a window, Francis hid for 14 months. In June 1995, he flew to the United States using a passport he had obtained while the PNC was still in power. (Id.) If Francis were returned to Guyana, his picture would appear in the newspapers because he is a deportee. (Id.) Francis said that because the PPP is still in power in Guyana, his picture would be recognized by PPP members who would attack or kill him. (Id. at 36, 81) Francis told the IJ that he would rather do life in prison than return to Guyana. (Id. at 36)
The IJ found Francis' testimony to be credible and consistent. (Id. at 37, 89) However, the IJ told Francis to obtain documentation to prove (1) that he was a "strong-arm" for the PNC, and (2) that the PPP would be likely to torture him if he returned to Guyana. (Id.) In response to the IJ's requests for additional evidence, Francis produced two documents on January 9, 2001. The first was a country review prepared by Commercial Data International, which described the political climate in Guyana under Burnham's leadership, (Id. at 96) the period when Francis allegedly served as Burnham's bodyguard. According to the review, human rights and civil liberties were suppressed during this period. (Id.) The document also mentioned the political assassination of Dr. Walter Rodney in 1980; Francis claimed that he knew about this assassination during its planning stages. (Id. at 95-96) The second document was a 1997 article from the Guyana Chronicle that provided pictures of three men who had been deported to Guyana from the United States after criminal convictions. (Id. at 97, 101)
At the January 9 hearing, the IJ delivered an oral decision denying Francis a deferral of removal. (Id. at 34-39) The IJ found that the nature of Francis' credible testimony indicated that there should be corroborating evidence to support Francis' claim, "such as evidence of his being a member of the PNC or evidence of his having been a bodyguard for the president of that party." (Id. at 37) The IJ noted that Francis had failed to provide documentation of those matters or documentation to show that deportees from the United States would be punished or tortured in Guyana. (Id.) Absent such documentation, the IJ found that Francis' claim was "nebulous, as he has not shown why the events that occurred in the past would have an effect on the future." (Id. at 38) Accordingly, the IJ found that Francis had not satisfied the burden of proof for a deferral of removal. (Id. at 39)
Francis appealed this decision to the BIA, arguing that the IJ improperly required him to corroborate his own credible testimony. (Id. at 13-14) On June 21, 2001, the BIA denied Francis' appeal on the ground that he had failed to establish that it was more likely than not that he would be tortured if removed to Guyana. (Id. at 2-4) The BIA noted that Francis' credible testimony did not have to be corroborated, but it found that Francis had not met his burden because he did not present objective evidence of current circumstances that show he is likely to be tortured in Guyana. (Id. at 3-4) Board Member Paul Wickham Schmidt filed a dissenting opinion, arguing that Francis had established a clear probability of torture and stating, "I do not see what more this particular respondent could reasonably be expected to produce in support of his claim." (Id. at 7) (emphasis in original)
On January 14, 2002, Francis submitted the present habeas corpus petition. In the accompanying memorandum of law, Francis raised the following objections to the decisions of the IJ and the BIA. First, Francis argued that he is entitled to a deferral of removal because he presented sufficient evidence to prove that he is more likely than not to be tortured upon his return to Guyana. Second, Francis claimed that the BIA improperly applied its corroboration standard by (1) failing to rule explicitly on the credibility of his testimony, and (2) requiring him to corroborate his credible testimony without explaining why such a requirement was reasonable or assessing his explanation for the absence of corroboration.
The Government argued that this court lacks jurisdiction to review Francis' habeas petition. The Government also argued in the alternative that the BIA decision should be affirmed because its factual findings were supported by substantial evidence in the record.
II.
As noted, the Government has argued that this court lacks jurisdiction to entertain Francis' § 2241 petition. Indeed, FARRA states that
[n]otwithstanding any other provision of law, . . . nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention [Against Torture] or this section . . . except as part of the review of a final order of removal pursuant to section 242 for the Immigration and Nationality Act ( 8 U.S.C. § 1252).
FARRA § 2242(d), 112 Stat. 2681-822. Under 8 U.S.C. § 1252(a)(2)(C), no court has jurisdiction to review any final order of removal against an alien who is removable because of a conviction for certain criminal offenses, including any aggravated felony. 8 U.S.C. § 1252(a)(2)(C);Calcano-Martinez v. INS, 533 U.S. 348, 350-51 (2001). The Government argues that these two jurisdiction-stripping provisions, in combination, prevent this court from reviewing Francis' CAT claims. However, in Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003), the Second Circuit explicitly held that federal courts have jurisdiction under § 2241 to consider claims arising under CAT, as implemented by FARRA. Id. at 142. Accordingly, this court has jurisdiction to review CAT claims that are within the scope of § 2241 habeas review.
The next question is whether Francis' particular claims fall within the permissible scope of habeas review. A § 2241 petition may be used to challenge an order of deportation on the ground that it violates federal law. Sol v. INS. 274 F.3d 648, 651 (2d Cir. 2001). This review extends to claims based on the erroneous application of facts to FARRA and regulations adopted pursuant to FARRA. Wang, 320 F.3d at 142-43. However, federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA. Sol, 274 F.3d at 651; Reyes-Sanchez v. Ashcroft, 261 F. Supp.2d 276, 284-85 (S.D.N.Y. 2003). Accordingly, it is necessary to evaluate the nature of Francis' claims to determine whether his petition is cognizable under § 2241.
In Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003), the Second Circuit conducted de novo review of the BIA's rejection of an alien's CAT claim. Id. at 143. As a result, some courts have interpreted this decision to mean that a federal court may review de novo a BIA finding about whether it is more likely than not that an alien will be subject to torture upon removal. See Ogbudimkpa v. Ashcroft, No. 02-1181, 2003 WL 21995303, at *9 (3d Cir. Aug. 22, 2003); Labrada-Cruz v. Strange, No. 3:02 CV 2222, 2003 WL 21459546, *2 (D. Conn. June 19, 2003). However, when the Second Circuit conducted de novo review in Wang, it did so only after making clear that such review was undertaken to illustrate that Wang's claim would fail even under that standard. That is to say, theWang Court was showing why there was no need in that case to address whether de novo review was required because it made no difference to the outcome. Thus, Wang did not hold that such review is required. See 320 F.3d at 143 ("[I]n this case we need not decide the precise standard to adopt for reviewing a BIA's application of law to fact pursuant to a § 2241 petition: Even if our standard of review pursuant to § 2241 affords no more deference to the BIA than on direct review — in other words, even if our review here is de novo — we find no error in the BIA's analysis."). Accordingly, I do not read Wang as expanding the scope of § 2241 review to include reconsideration of the merits of Francis' petition, as that would involve a "fact-intensive review [that] is vastly different from what the habeas statute plainly provides: review for statutory or constitutional errors." Sol v. INS. 274 F.3d 648, 651 (2d Cir. 2001).
Francis' first claim is that the BIA erroneously concluded that he has failed to prove that he would more likely than not be tortured in Guyana. However, this factual decision — whether an alien is more likely than not to be tortured if he returns to his native country — is the product of an exercise of discretion and is not reviewable by a habeas court. See Reyes-Sanchez, 261 F. Supp.2d at 292 ("The BIA's factual determination that Reyes-Sanchez failed to demonstrate that it is more likely than not that he will be tortured if returned to the Dominican Republic is a discretionary decision, and is therefore not reviewable by this Court"); Amadi v. Ashcroft, 21Q F. Supp.2d 336, 339 (E.D.N.Y. 2003) ("The BIA's denial of Amadi's request for CAT relief involved a `specific factual determination' that he failed to demonstrate that it is more likely than not that he will be tortured if returned to Nigeria. These types of challenges are not cognizable on habeas corpus review."). Therefore, this court may not review the BIA's determination on the merits of Francis' CAT claim. See Sol. 274 F.3d at 651;Reyes-Sanchez, 261 F. Supp.2d at 292.
Francis has also claimed that the BIA misapplied its corroboration standard by requiring him to bolster his credible testimony without providing the necessary explanations for its decision. Because this claim involves a review of the BIA's application of federal law in this case, it is cognizable on habeas review. See Wang, 320 F.3d at 142-43.
III.
To qualify for deferral of removal under CAT, Francis must demonstrate that it is more likely than not that he would be tortured if he were removed to Guyana. 8 C.F.R. § 208.16(c)(2), (4); Wang, 320 F.3d at 144. Because the IJ found Francis' testimony credible, that testimony "may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.16 (c)(2). However, the use of the permissive term "may" suggests that credible testimony, without more, will not always satisfy the burden of proof. Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000).
In this case, the BIA adopted the IJ's finding that Francis' testimony was credible. (R. at 3, 4) Because the BIA found Francis' testimony to be credible, it then had to determine whether additional corroboration was necessary to meet the burden of proof. Diallo, 232 F.3d at 290. If the BIA insisted on further corroboration, it was required to explain specifically (1) why it was reasonable under BIA standards to expect such corroboration, and (2) why Francis' explanations for the lack of such corroboration were insufficient. Id.
Francis claims that the BIA failed to "rule explicitly on the credibility of petitioner's testimony," (Francis Memo, at 4), but this argument has no basis because the BIA decision plainly adopts the IJ's finding that Francis was credible. (R. at 3, 4)
Francis argues that the BIA required him to corroborate his credible testimony without providing the specific explanations required byDiallo. However, the BIA decision actually accepted Francis' credible testimony about past events without requiring additional corroboration. The BIA stated explicitly that "inasmuch as the respondent was found credible in these proceedings, we will not find that he has failed to satisfy his burden of proof based upon his failure to provide corroborative evidence of his political affillations." (R. at 4) The BIA also credited Francis' testimony about the occasion when he was tortured in 1994. (Id. at 3)
Although the BIA expected Francis to "buttress his subjective fear of torture with evidence to show a likelihood that such treatment awaits him," this request for additional evidence did not require Francis to corroborate his credible testimony. (Id. at 4) Francis testified that he believes he will be tortured if he returns to Guyana, and accordingly the BIA found that Francis had a "subjective fear of torture" without requiring him to provide corroborating evidence of the existence of that fear. (Id.) However, the BIA recognized that Francis' fear of torture, even if genuine, does not, without more, establish that such torture is likely to occur. In other words, the BIA did not question the credibility of Francis' testimony about past events but rather the objective basis for his belief about the likely course of future events. Because Francis failed to justify his fear by showing current conditions in Guyana that suggest his past torture is likely to be repeated, the BIA concluded that Francis did not meet his burden of proof. (Id. at 3-4)
Diallo's corroboration standard is irrelevant here because the BIA did not require Francis to corroborate his testimony and did not reject his CAT claim for failure to provide such corroboration. Therefore, Francis' habeas corpus petition is denied.
For the reasons stated above, the writ is denied and the petition is dismissed. Because some courts have interpreted Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003), to mean that this court may review de novo a BIA finding about whether it is more likely than not that an alien would be tortured upon deportation, a certificate of appealability will issue.
SO ORDERED.