Probability of Torture Is a Question of Fact Subject to Clearly Erroneous
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U.S. Department of Justice Washington, D.C. 20530 Vol. 14, No. 4 April 2010 LITIGATION HIGHLIGHTS Probability of Torture Is a Question of Fact Subject to Clearly Erroneous Review by the BIA ASYLUM ►Returning Mexicans from U.S. too In Kaplun v. Attorney General $900,000 as a result of his 1998 broad to be a particular social group of U.S., __ F.3d __, 2010 WL offense. In the pre-sentence investi- (9th Cir.) 11 1409019 (3d Cir. April 9, 2010) gation report (PSR), the total loss for ►Former political candidate in Mex- (Ambro, Smith, Michel), the Third the 1998 offense was described as ico not persecuted on account of po- Circuit reversed Matter of V-K, 24 “at least $700,000 and less than litical opinion (6th Cir.) 7 I&N Dec. 500 (BIA 2008), a prece- $1,000,000.” Petitioner was sen- dent decision where the BIA had tenced to 56 months' imprisonment CRIMES interpreted its standard of review for the 1998 conviction, but a fine ►Use of firearms not required for regulation to allow de novo review of was waived because of his inability drug trafficking crime (9th Cir.) 11 an IJ’s determination of the likeli- to pay. ►California marijuana conviction is hood of torture. categorically an offense related to In 2001 DHS commenced re- controlled substances (9th Cir.) 12 The petitioner, a citizen of moval proceedings against the peti- Ukraine, was admitted to the United tioner based on the 1997 and 1998 JURISDICTION States in 1977 as a seven-year-old convictions. Petitioner denied re- ►Court has jurisdiction to review refugee. He later became a legal movability and later submitted an good moral character determination permanent resident. In 1997 and application for asylum. The govern- under “catch all” provision (2d Cir.) 1998 he was charged and convicted ment produced the judgment of con- 15 in two federal criminal proceedings viction, the PSR, and the information ►REAL ID Act precludes district based on his participation in fraudu- to establish the 1998 conviction and court jurisdiction over constitutional lent stock schemes. Petitioner pled its surrounding facts. challenges to order of removal (6th guilty to an information alleging se- Cir.) 8 curities fraud with losses of nearly (Continued on page 2) ►IJs do not have jurisdiction over requests for U visa interim relief (9th Cir.) 12 When VWP Entrants Are Eligible To Apply For Adjustment ►Under departure bar rule IJ lacks Of Status: Harmonizing INA §§ 245(c)(4) and 217(b)(2) jurisdiction over motion to reopen Congress enacted the Visa Congress established the VWP in (5th Cir.) 7 Waiver Pilot Program (“VWPP”) as an effort “to determine if a visa waiver VISAS-ADJUSTMENT part of the 1986 Immigration Reform provision could facilitate international ►Alien who enter fraudulently under and Control Act, codified at INA § travel and promote the more effective VWP subject to program rules (2d Cir.) 217. Section 201 of the Immigration use of the resources of affected gov- 6 Act of 1990 revised the VWPP and ernment agencies while not posing a extended the program until Septem- threat to the welfare, health, safety, or ber 30, 1994. Subsequent amend- security of the United States.” 53 Inside ments to section 201 of the Immigra- Fed. Reg. 24898 (1988). In further- tion Act of 1990 have extended the ance of this aim, it promulgated im- program and made the program per- plementing regulations. Id. These manent (hereinafter “VWP”). Under regulations were designed to 4. Further review pending this program, alien visitors may enter “facilitate travel, streamline or reduce 5. Summaries of court decisions the United States from designated the work of affected agencies, and 14. Training Calendar countries for a period not to exceed ensure that vital national interests are 90 days without obtaining a nonim- protected.” Id. “‘[T]he linchpin of the 14. Inside OIL migrant visa. (Continued on page 3) 1 April 2010 Immigration Litigation Bulletin held that petitioner’s 1998 convic- Probability of torture is a question of fact tion was shown to be an aggravated felony by clear and convincing evi- (Continued from page 1) Alaka v. Attorney General, 456 F.3d dence. In particular, the court found In his application for asylum, 88, 108 (3d Cir. 2006). The BIA de- that two uncontroverted items of petitioner claimed that, as a Jewish nied the motion to reopen because evidence, namely the criminal infor- refugee, he would be subjected to concluding that Alaka was factually mation and the PSR, established the persecution and torture if he were distinguishable. Petitioner then filed amount clearly and convincingly. removed to the Ukraine. In support a petition for review and this time of his claims, he procured an expert the government asked the case to The court also found that the witness to give testimony on anti- be remanded. In September 2007, BIA had not committed a legal error Semitism in the Ukraine. This expert the court remanded the case and when it determined that petitioner’s gave detailed testimony on the situa- asked the BIA to determine whether aggravated felony was a “particularly tion and voiced disagreement with it had authority to reverse the IJ’s serious crime.” The court held that it various government reports on the determination lacked jurisdiction to review the At- extent of anti-Semitism in that coun- torney General’s dis- try. He also testified that petitioner that “there [was] a cretionary determina- would be unable to gain citizenship, preponderance of Insofar as the BIA tion that a crime was get a job, rent an apartment, or even evidence in the re- particularly serious. buy a train ticket. It was his expert interpreted 8 C.F.R. cord leading to a § 1003.1(d)(3) to hold opinion that petitioner would be living justification for a Finally, the court on the street, destitute, and would be clear probability that “an IJ's assess- agreed with peti- targeted for extortion and torture. finding that this par- ment of the probability tioner’s argument that ticular respondent . of future torture is not the BIA erred in re- In an April 2004 ruling, the IJ is likely to be tar- a finding of fact viewing the probability found petitioner removable based on geted [for mistreat- because the events of future torture de his prior convictions, but granted ment,] at least in have not yet occurred, novo and not under a withholding of removal and CAT pro- part, by both govern- “clearly erroneous” tection crediting the testimony of peti- mental and nongov- we conclude its inter- standard. The court tioner’s expert. Petitioner appealed ernmental entities pretation plainly errs.” explained that prior to the part of the ruling that found him within the Ukraine 2002, the BIA re- removable and the government cross- should he be removed to that viewed all aspects of an IJ's decision appealed the grant of withholding. country . [and that such mis- de novo. However, the regulations treatment will rise to the level of were amended in 2002 to provide In November 2004, the BIA held torture.]” that the BIA “will not engage in de that the IJ erred in his removal find- novo review of findings of fact deter- ings by inadvertently relying on the On remand, the BIA held in a mined by an immigration judge.” wrong record of conviction, and it precedential decision, that it had the See 8 C.F.R § 1003.1(d)(3)(i)-(ii). vacated the IJ decision and re- authority to review the IJ's determi- The court then held that insofar as manded for a determination of nation de novo. Matter of V-K-, 24 the BIA interpreted 8 C.F.R. § whether petitioner was indeed remov- I&N Dec. 500 (BIA 2008). The BIA 1003.1(d)(3) to hold that “an IJ's able as charged under either the explained that while it reviewed the assessment of the probability of fu- 1997 or the 1998 conviction. On IJ’s factual rulings for clear error, “[it] ture torture is not a finding of fact remand, the IJ concluded that the d[id] not consider a prediction of the because the events have not yet sole sustainable removal charge was probability of future torture to be a occurred, we conclude its interpreta- the 1998 fraud conviction. When the ruling of ‘fact.’ Although predictions tion plainly errs.” case returned to the BIA, the BIA con- of future events may in part be de- cluded that petitioner was removable rived from ‘facts,’ they are not the In the case of the likelihood of on the basis of the 1998 conviction, sort of “[f]acts determined by the torture, explained the court, there that it was a “particularly serious Immigration Judge’ that can only be are two distinct parts to the mixed crime” (thereby declining to address reviewed for clear error.” question: (1) what is likely to happen the alternative argument), and that to the petitioner if removed; and (2) the IJ erred in granting CAT protec- Petitioner then filed another does what is likely to happen tion. Accordingly, it ordered peti- petition for review. The Third Circuit, amount to the legal definition of tor- tioner removed to the Ukraine. applying Nijhawan v. Holder, 557 ture? The court said that the two U.S.__, 129 S.Ct. 2294, 174 L.Ed.2d parts should be examined sepa- Petitioner then sought judicial 22 (2009), where the Court deter- rately, because the first question is review and while his petition was mined that the provision in question factual but the second question is a pending he filed a motion with the “calls for a ‘circumstance-specific,’ legal question.