Kamara v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

8-29-2005

Kamara v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-2647

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2647

MOHAMED KAMARA

v.

ATTORNEY GENERAL OF THE UNITED STATES,*

Appellant

On Petition for Review from the

Board of Immigration Appeals

(A 75 805 924)

Initially docketed as an Appeal from the

United States District Court for the Middle District

of Pennsylvania prior to enactment of the REAL ID Act

(D.C. No. 02-cv-00738)

District Judge: Honorable Malcolm Muir

Argued May 9, 2005

Before: SLOVITER and FISHER, Circuit Judges,

and POLLAK,** District Judge

(Filed: August 29, 2005 )

*

Because we have converted the present case into a petition for

direct review, we are required to substitute the Attorney

General for the current respondent (Department of Homeland

Security). 8 U.S.C. § 1252(b)(3)(A).

**

Hon. Louis H. Pollak, Senior United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

Peter D. Keisler

Assistant Attorney General

Donald E. Keener

Deputy Director

Alison R. Drucker (Argued)

Senior Litigation Counsel

United States Department of Justice

Office of Immigration Litigation

Washington, D.C. 20044

Attorneys for Appellant

James V. Wade

Federal Public Defender

Ronald A. Krauss (Argued)

Assistant Federal Public Defender

Office of Federal Public Defender

Harrisburg, PA l7101

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The Department of Homeland Security (“DHS”) appeals

the Order of the District Court granting Mohamed Kamara’s

petition for writ of habeas corpus and permanently enjoining the

government from deporting Kamara to Sierra Leone.

I.

Facts and Proceedings

The parties stipulated in a joint motion, filed on April 13,

2

2004, to the following facts:1 Kamara, a native of Sierra Leone,

was studying medicine in Cuba in the early 1980s on a grant

from the government of Sierra Leone. In the course of his

studies in Cuba, the Sierra Leone government failed to provide

the financial support it had promised. In response, Kamara and

other Sierra Leone students stormed the Sierra Leone embassy in

Cuba, physically accosted the Sierra Leonian Ambassador, and

publicly accused the Sierra Leone government of corruption.

Shortly thereafter, in 1982, Kamara was “deported” (expelled)

from Cuba at the direction of officials of the Sierra Leone

government, and required to return to Sierra Leone. While in

transit through Miami, Florida on a non-immigrant transit visa,

Kamara left the airport. He has remained in the United States

ever since.

On April 23, 1999, Kamara was convicted in a New York

State Court of attempted sale of a controlled substance (cocaine)

in the third degree, and sentenced to six months incarceration.

The conviction arose after undercover police officers approached

Kamara and offered him $10 to help them buy cocaine. Kamara,

who lived in a drug infested area, complied with the request and

was thereafter arrested. On June 18, 1999, the Immigration and

Naturalization Service (“INS”) (which has since been replaced

by the Department of Homeland Security, Bureau of

Immigration and Customs Enforcement) commenced removal

proceedings against Kamara on the grounds that he was an alien

convicted of an aggravated felony as defined in 8 U.S.C. §

1101(a)(43)(U), an alien convicted of violating a controlled

substance law, and an alien who remained in the United States

for a time longer than permitted. See 8 U.S.C. §

1227(a)(2)(A)(iii), (a)(2)(B)(i), (a)(1)(B).

Kamara applied for asylum, withholding of removal

under § 241(b)(3) of the Immigration and Naturalization Act

(“INA”), 8 U.S.C. § 1231(b)(3), and for protection under the

1

The stipulation provided that the facts relating to

Kamara’s habeas petition are not in dispute, and that the issue

before the District Court was purely legal.

3

CAT.2 On February 25, 2000, the Immigration Judge (“IJ”)

issued an oral opinion granting Kamara’s application for

withholding of removal, reasoning that “in this case the

widespread atrocities against people opposing the authority of

the former government and present military rebel forces [the

Revolutionary United Front (“RUF”)] indicates a greater chance,

rather than a lesser chance that the respondent will be persecuted

for who he is upon his return.” Supp. App. at 21. In the same

oral decision, the IJ preterminated Kamara’s application for

asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i) (providing

that an alien convicted of aggravated felony is not eligible for

asylum), and held that given its decision to grant Kamara’s

petition for withholding of removal, it was unnecessary to reach

the CAT claim.

On October 31, 2000, the Bureau of Immigration Appeals

(“BIA” or “Board”) reversed the decision of the IJ, stating that

there is “insufficient evidence in the record to suggest that

anyone in Sierra Leone would want to persecute [Kamara] for

any complaints he made while a student in Cuba over 20 years

ago.” J.A. at 19. The case was remanded to the IJ for

consideration of whether Kamara was entitled to relief under the

CAT.

At an evidentiary hearing held on January 19, 2001, the IJ

heard additional testimony from Kamara, received testimony

from Kamara’s niece, and accepted into evidence information

about country conditions in Sierra Leone. The IJ found both

Kamara and his niece credible, and thereafter, in a written

opinion dated July 12, 2001, accepted their testimony as the facts

of the case.

2

The CAT refers to the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in the

United States by the Foreign Affairs Reform and Restructuring Act

of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761 (codified

at 8 U.S.C. § 1231).

4

The testimonial and other evidence regarding country

conditions revealed that as of January 2001, Sierra Leone was in

the midst of a civil war. The RUF controlled two thirds of the

country, and the government controlled the remaining one third.

Each entity had an established record of grievous human rights

violations.

The several country reports and various media

publications (New York Times, Time Magazine, USA Today )

received by the IJ made plain that “[t]here is hardly a ruling body

in the world . . . that matches the RUF and its allied forces for its

utter inhumanity to people under its control.” J.A. at 26. The IJ,

continuing reference to the country reports, stated that the rebel

group, which was the military branch of the Sierra Leone

government before the revolution, has killed thousands of

unarmed civilians, including women and children (many during

mass executions), and maimed countless others through its

“‘particularly vicious practice of cutting off ears, noses, hands,

arms, and legs of noncombatants as a deliberate terror tactic ...’”

J.A. at 26-27 (quoting 1999 Country Report). Women were

systematically raped by members of the rebel group, and men

who refused to rape their own family members had limbs

amputated. The IJ found that “the RUF carried out a pattern of

abducting those from the outside who demonstrated any special

capabilities: ‘Rebel forces abducted civilians, missionaries, aid

workers from nongovernmental agencies, U.N. personnel, and

journalists.’” J.A. at 27 (quoting 1999 Country Report).

Likewise, they deliberately targeted and murdered “‘government

officials, human rights activists, religious leaders, and lawyers as

they entered Freetown.’” J.A. at 27 (quoting 1999 Country

Report).

The Sierra Leone government, though clearly not as

brutal as the RUF, also had “serious problems” reflected in its

human rights record. J.A. at 29. The 1999 Country Report

recounts incidents of extrajudicial killings, summary executions

of suspected rebels and suspected rebel collaborators, beatings of

noncombatants, as well as arbitrary arrest and detention of

persons. Furthermore, “discrimination based on ethnic origin

[was] widely practiced. . . .” J.A. at 29.

5

As an initial matter, the IJ determined that akin to the

Taliban in Afghanistan and the Israeli Defense Forces in

Palestinian Lands, the RUF should be considered a “political

official” (or “government”) for purposes of the CAT, and

therefore that Kamara’s claim for protection against torture by

the RUF should be heard on the merits. See 8 C.F.R. §

208.18(a)(1) (stating that to receive protection under CAT,

applicant must show that torture will be “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 IJ

then concluded that based on the testimony of Kamara and his

niece, and the “ample evidence of gross, flagrant, or mass

violations of human rights in Sierra Leone. . . it is more likely

than not that respondent will be tortured if returned to Sierra

Leone today.” J.A. at 30 (internal citation and quotations

omitted).

The IJ reasoned that “[i]f the respondent should fall into

the RUF’s hands, torture is all but certain.” J.A. at 28.

Kamara’s family had already suffered a great deal at the hands of

the RUF. The family home was burned down, Kamara’s cousin

had his hands chopped off, his aunt was shot, the same aunt’s

husband died while trapped in a house that was set on fire by the

RUF, and Kamara’s brother-in-law, who has since died, had

many properties destroyed, including the Muslim school that he

founded. Kamara’s mother, sister, and aunt joined the “more

than 1 million citizens” who fled the country or were internally

displaced. J.A. at 27.

The IJ, reiterating his findings following the first hearing,

also found that the relevant facts made “reasonable and

altogether plausible [Kamara’s] concern that he will be singled

out by the government for abusive treatment in violation of his

personal security if he is deported there” because of his prior

protests in Cuba twenty years before. J.A. at 29. The IJ noted

additionally that Kamara will be highly noticeable “because of

his long absence from the country coupled with his being among

the small minority of elites in the country [which is only 20%

literate] (by reason of education, family background, wealth, and

experience abroad).” J.A. at 30.

6

Balancing the very “real” probability that Kamara may

fall into RUF hands (and the “certain” torture that would result)

with the “nearly certain” probability that Kamara will fall into

the government’s hands, (and the “reasonable” chance of

“abusive treatment in violation of his personal security” that

would result), the IJ found that Kamara’s application for relief

under the CAT should be granted. J.A. at 28-29. Given the

additional fact finding, the IJ also clarified the facts surrounding

Kamara’s petition for withholding of removal, in the event that

the BIA decided to revisit the issue on appeal. See 8 U.S.C. §

1231(b)(3). The IJ noted, however, that the BIA’s law of the

case precluded him from granting withholding of removal at that

stage in the proceedings.

The INS once again appealed the decision of the IJ, and

on April 5, 2002, in a six paragraph decision, the BIA sustained

the appeal. The Board first reasoned that, given the IJ’s findings

that “it cannot be found to be more likely than not that [the

respondent] would find himself in the RUF’s hands,” there was

no reason to discuss the likelihood of torture by the RUF or

whether the RUF constitutes a government for purposes of the

CAT. J.A. at 37. The BIA then concluded that Kamara failed to

meet his burden of proof that he would face “torture” at the

hands of the Sierra Leone government. J.A. at 37-38 (stating

that “‘abusive treatment’ violative of one’s ‘personal security’

does not constitute torture, as defined by the regulations”) (citing

8 C.F.R. § 208.18(a)).

On April 23, 2002, Kamara filed a petition for a writ of

habeas corpus in the Middle District of Pennsylvania,

challenging the decision of the BIA.3 The District Court granted

3

Kamara also filed a motion for emergency stay of

removal, which the District Court elected to treat as a petition for

writ of habeas corpus, and by order dated May 30, 2002,

consolidated the actions. On July 25, 2002, the District Court

issued an Order stating that it lacked jurisdiction to consider the

habeas petition. On appeal, this court issued a judgment vacating

the District Court’s July 25, 2002 Order and remanding the case, in

7

the writ, holding that “[t]he cursory and erroneous review of this

case by the [BIA] violated Kamara’s right to due process of

law,” and that “[w]hen the [CAT] regulations are properly

construed, the undisputed evidence was sufficient to meet the

requirements for relief.” J.A. at 70-71. The Court also held that

deporting Kamara to Sierra Leone would violate Kamara’s

substantive due process rights under the “state-created danger”

exception. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d

Cir. 1996). Finally, the Court issued a permanent injunction

against removal. DHS filed a timely notice of appeal on June 9,

2004.

II.

Jurisdiction / Standard of Review

A. Jurisdiction

Until May 11 of this year, an alien convicted of an

aggravated felony and removable on such grounds was

statutorily barred from filing a petition for review in the court of

appeals challenging the BIA’s finding that s/he was ineligible for

relief under the CAT. See 8 U.S.C. § 1252(a)(2)(C); see also

Bakhtriger v. Elwood, 360 F.3d 414, 420 (3d Cir. 2004); Patel v.

Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002). We held in

Ogbudimkpa, however, that a district court retains jurisdiction to

consider claims alleging violations of the CAT raised in a habeas

corpus petition. 342 F.3d at 222; see also 28 U.S.C. § 2241.

This jurisdictional framework was radically overhauled

on May 11, 2005, with the passage of the REAL ID Act of 2005,

Pub. L. No. 109-13, 119 Stat. 231. The provision relevant to this

appeal, Section 106(a) of the Act, amends 8 U.S.C. § 1252(a)(2)

light of our decision in Ogbudimpka v. Ashcroft, 342 F.3d 207,

222 (3d Cir. 2003) (holding that district courts have jurisdiction

under 28 U.S.C. § 2241 to review CAT claims for “errors of law,

including the erroneous application or interpretation of statutes”)

(internal citations and quotations omitted).

8

to eliminate the district courts’ habeas corpus jurisdiction (28

U.S.C. §§ 2241, 1361, and 1651) over final orders of removal in

nearly all cases. 4 Section 106(a)(1)(B) provides that:

Notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision,

and sections 1361 and 1651 of such title, a petition

for review filed with an appropriate court of

appeals in accordance with this section shall be the

sole and exclusive means for judicial review of any

cause or claim under the United Nations

Convention Against Torture and Other Forms of

Cruel, Inhuman, or Degrading Treatment or

Punishment, except as provided in subsection (e)

of this section.

REAL ID Act § 106(a)(1)(B); 8 U.S.C. § 1252(a)(4). Section

106(a)(1)(A)(iii) of the Act, however, amends 8 U.S.C. § 1252

by adding a new provision, § 1252(a)(2)(D), which states that:

Nothing in subparagraph (B) or (C), or in any other

provision of this Act (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition

for review filed with an appropriate court of

appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D). With this amendment,

Congress evidenced its intent to restore judicial

review of constitutional claims and questions of

law presented in petitions for review of final

removal orders. This now permits all aliens,

including criminal aliens, to obtain review of

4

8 U.S.C. § 1252(e) allows for very limited habeas review

in expedited removal cases brought under 8 U.S.C. § 1225(b).

9

constitutional claims and questions of law upon

filing of a petition for review with an appropriate

court of appeals.

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005); see

also Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. 2005).

Congress explicitly made the above amendments

retroactive. REAL ID Act § 106(b) provides that §

1252(a)(2)(D), “shall take effect upon the date of the enactment

of this division and shall apply to cases in which the final

administrative order of removal . . . was issued before, on, or

after the date of the enactment of this division.” See also

Papageorgiou, 413 F.3d at 358.

Furthermore, habeas petitions filed under 28 U.S.C. §

2241, which as of May 11, 2005, were pending in the district

courts, shall be transferred to

the court of appeals for the circuit in which a

petition for review could have been properly filed

under section 242(b)(2) of the Immigration and

Nationality Act (8 U.S.C. § 1252), as amended by

this section. . . . The court of appeals shall treat

the transferred case as if it had been filed pursuant

to a petition for review under such section 242,

except that subsection (b)(1) of such section

[relating to the 30-day filing deadline] shall not

apply.

REAL ID Act § 106(c).

The REAL ID Act is silent as to the exact procedural

posture which faces us here, i.e., an appeal from a district court’s

habeas decision that is now pending before the court of appeals.

Nonetheless, as explained in Bonhometre v. Gonzales, F.3d

, No. 04-2037, 2005 WL 1653641 (3d Cir. July 15, 2005),

Despite this silence, it is readily apparent, given

Congress’ clear intent to have all challenges to

10

removal orders heard in a single forum (the court

of appeals), [H.R. Conf. Rep. No. 109-72] at 174

[(2005)], that those habeas petitions that were

pending before this Court on the effective date of

the REAL ID Act are properly converted to

petitions for review and retained by this Court.

Id. at *2. To dismiss the present case would be arbitrary (by

treating habeas petitions which are pending resolution in the

district courts differently than habeas petitions where a decision

has already been rendered, in many cases in favor of the alien)

and is inconsistent with Congress’ express intent to provide

aliens with one chance for judicial review in the court of

appeals. See H.R. Conf. Rep. No. 109-72, at 174-76 (2005); cf.

Sorrells v. United States, 287 U.S. 435, 450 (1932) (“To

construe statutes so as to avoid absurd or glaringly unjust results,

foreign to the legislative purpose, is, as we have seen, a

traditional and appropriate function of the courts.”).

Thus, in light of the peculiar procedural posture of the

present case, and the intervening passage of the REAL ID Act,

we are obliged to vacate and disregard the District Court’s

opinion and address the claims raised in Kamara’s habeas

petition as if they were presented before us in the first instance

as a petition for review. Bonhometre, 2005 WL 1653641, at *2.

B. Scope of Review

Although DHS’s appeal of the District Court’s decision

granting Kamara’s habeas corpus petition has now been

converted into a petition for review, our standard of review

remains the same. Bonhometre, 2005 WL 1653641, at *2. A

review for “constitutional claims or questions of law,” as

described in § 106(a)(1)(A)(iii) of the REAL ID Act, 8 U.S.C. §

1252(a)(2)(D), mirrors our previously enunciated standard of

review over an alien’s habeas petition. See Bakhtriger, 360 F.3d

at 425 (“In the wake of [INS v. St. Cyr, 533 U.S. 289 (2001)],

we are not aware of any cases that have upheld habeas review of

factual findings or discretionary determinations in criminal alien

removal cases. Rather, all circuits to decide the issue have

11

limited criminal alien habeas petitions to constitutional

challenges or errors of law.”).5

Thus, examining each of Kamara’s present claims, we are

limited to “pure questions of law,” St. Cyr, 533 U.S. at 305, and

to “issues of application of law to fact, where the facts are

undisputed and not the subject of challenge.” Bakhtriger, 360

F.3d at 420 (citing Ogbudimkpa, 342 F.3d at 222). We review

the BIA’s legal decisions de novo, Wang v. Ashcroft, 368 F.3d

347, 349 (3d Cir. 2004), but will afford Chevron deference to the

BIA’s reasonable interpretations of statutes which it is charged

with administering. INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842 (1984).

III.

Discussion

A. The BIA’s Review of the IJ’s Decision

Kamara argues that the BIA violated his due process right

to meaningful review by engaging in a cursory evaluation of the

IJ’s evidentiary findings and legal conclusions, and by issuing an

inadequate opinion. Specifically, he contends that the BIA’s

opinion consisted of only six paragraphs, with no adequate

analysis or discussion, and that it relied on an irrelevant section

of the IJ’s written decision having nothing to do with the CAT

claim.

Aliens facing removal are entitled to due process. See

Sewak v. INS, 900 F.2d 667, 671 (3d Cir. 1990). In the

administrative context, an alien: “(1) is entitled to factfinding

based on a record produced before the decisionmaker and

disclosed to him or her, (2) must be allowed to make arguments

5

Indeed, if the REAL ID Act imposed a narrower standard

of review than that previously offered under a petition for habeas

corpus, a significant Suspension Clause issue would arise.

12

on his or her own behalf . . .; and (3) has the right to an

individualized determination of his [or her] interests.” Abdulai

v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal

quotations and citations omitted). Kamara does not contend that

the decision to remove him was based on evidence kept secret

from him or that he was prevented from making his case to the

BIA or IJ. Thus, the only due process right potentially

implicated in this case is the right to an individualized

determination.

As stated in Abdulai, “the question for due process

purposes is not whether the BIA reached the correct decision;

rather it is simply whether the Board made an individualized

determination of [the alien’s] interest. . . .” 239 F.3d at 550

(emphasis in original). The Board’s decision need only provide

“sufficient indicia” that such a determination was made. Id.

(“[o]ne can deduce that the BIA was aware that Abdulai was a

Nigerian seeking asylum on the basis of political persecution,

that there had been issues involving a change in the Nigerian

government and his failure to document his membership in a

political party, and that the IJ’s decision evinced dissatisfaction

with his meeting the requisite burden of proof. This is

sufficient.”). Agency action is entitled to a presumption of

regularity, and it is the petitioner’s burden to show that the BIA

did not review the record when it considered the appeal. Id. at

550-51.

The BIA’s decision in the present case contains more than

“sufficient indicia” that it undertook an individualized

determination. It describes in detail the CAT petition submitted

by Kamara, the procedural posture of the case, the basis for the

IJ’s decision, and the relevant statutes and regulations.

We find no support for Kamara’s contention that the BIA

erroneously relied on the IJ’s statement, made in a section of the

IJ’s decision discussing Kamara’s withholding of removal claim,

that “it cannot be found to be more likely than not that [Kamara]

would find himself in the RUF’s hands. . . .” J.A. at 34. Despite

the fact that a claim for relief under the CAT and a petition for

withholding of removal require different elements of proof, the

13

chance of falling into the RUF’s hands is the same regardless of

which claim the BIA is evaluating.6

We also find that the BIA’s decision satisfies the

requirements of the Administrative Procedure Act. As stated in

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), an agency

need only set forth the basis of its administrative action “with

such clarity as to be understandable”; it need not provide a

detailed statement of its reasoning and conclusions. See also

Aguirre-Aguirre, 526 U.S. at 431-32; S. Trenton Residents

Against 20 v. Fed. Highway Admin., 176 F.3d 658, 666 (3d Cir.

1999) (stating that court may uphold agency’s “‘decision of less

than ideal clarity if the agency’s path may reasonably be

discerned’”) (quoting Bowman Transp., Inc. v. Arkansas-Best

Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Thus, whereas the

BIA’s decision in the present case may not be a model of

exposition, it sufficiently sets forth the BIA’s reasoning in a

manner that permits a reviewing court to discern the “basis of its

decision.” Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir.

2003).

We therefore conclude that because the requirements of

both Abdulai and Chenery are satisfied, Kamara’s due process

claim must fail.7

6

Indeed, in a section of the IJ’s opinion devoted solely to

a discussion of Kamara’s CAT petition, the IJ stated that “it is

impossible to speculate with any accuracy the likelihood of RUF’s

gaining control of enough of Sierra Leone to make [Kamara] fall

into its hands. . . .” J.A. at 28.

7

Kamara’s reliance on Zubeda v. Ashcroft, 333 F.3d 463

(3d Cir. 2003), is misplaced. In Zubeda, we vacated and remanded

the BIA’s decision denying petitioner relief under the CAT, noting

that the BIA’s “rather terse” decision provided only a “minimal

analysis” of petitioner’s claim. Id. at 475-79. Zubeda, however

involved a direct petition for review, where we examined the BIA’s

decision under the substantial evidence standard. Id. at 471. By

contrast, our review is much narrower in the present case. See

REAL I.D. Act § 106(a)(1)(A)(iii). Furthermore, although noting

14

B. The BIA’s Application of the CAT Standard

“An applicant for relief on the merits under [Article 3] of

the [CAT] bears the burden of establishing ‘that it is more likely

than not that he or she would be tortured if removed to the

proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d

166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).

The standard for relief under the CAT “has no subjective

component, but instead requires the alien to establish, by

objective evidence, that he is entitled to relief.” Id. at 175

(internal citations and quotations omitted); see also Cadet v.

Bulger, 377 F.3d 1173, 1180 (11th Cir. 2004); Elien v. Ashcroft,

364 F.3d 392, 398 (1st Cir. 2004).

We have stated that:

For an act to constitute torture under the [CAT]

and the implementing regulations, it must be: (1)

an act causing severe physical or mental pain or

suffering; (2) intentionally inflicted; (3) for an

illicit or proscribed purpose; (4) by or at the

instigation of or with the consent or acquiescence

of a public official who has custody or physical

control of the victim; and (5) not arising from

lawful sanctions.

Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005); see also

Matter of J-E-, 23 I. & N. Dec. 291, 297 (BIA 2002) (citing 8

C.F.R. § 208.18(a)); Cadet, 377 F.3d at 1192 (outlining same

requirements); Elien, 364 F.3d at 398 (same). An “alien’s

testimony, if credible, may be sufficient to sustain the burden of

proof without corroboration.” Zubeda, 333 F.3d at 471 (citing

Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000)). “If an alien

the terseness of the BIA’s opinion, we were primarily concerned

that the BIA had allowed “the taint of the [IJ’s] earlier adverse

credibility determination” regarding Zubeda’s asylum claim to

“bleed through to the BIA’s consideration of her [CAT] claim.” Id.

at 476. No such concern is implicated here.

15

meets his/her burden of proof, withholding of removal under the

[CAT] is mandatory just as it is for withholding of deportation

under § 243(h).” Id. at 472 (citing INA § 241(b)(3) and 8 C.F.R.

§§ 208.16-208.18).8

The BIA stated the proper legal standard in its opinion.

J.A. at 37 (“[T]o demonstrate eligibility for relief pursuant to the

[CAT], an alien must prove that he or she more likely than not

faces torture.”). We take issue, however with its application of

the above standard to the undisputed facts of the case.

Under the BIA’s application of the CAT regulations, to

qualify for relief, Kamara was required to establish either: (1)

that there was a greater than 50% probability that he would face

torture at the hands of the RUF; or (2) that there was a greater

than 50% probability that he would face torture at the hands of

the Sierra Leone government. The BIA separately considered

the likelihood of torture by each entity. Under its analysis,

Kamara would be entitled to relief only if he was able to

demonstrate by a preponderance of the evidence that at least one

of the entities, taken alone, would torture him if he were returned

to Sierra Leone.

8

8 C.F.R. § 208.16(c)(3) provides that:

In assessing whether it is more likely than not that an

applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

future torture shall be considered, including, but not

limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a

part of the country of removal where he or she is not

likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of

human rights within the country of removal, where

applicable; and

(iv) Other relevant information regarding conditions

in the country of removal.

16

A proper application of the regulations, however, merely

requires Kamara to establish that it is more likely than not that

he faces torture by “a public official (government)” in Sierra

Leone; i.e., by the RUF or the Sierra Leone government, when

the two entities are considered together.9 In other words,

Kamara is entitled to CAT protection if he is able to demonstrate

that the cumulative probability of torture by the two entities

exceeds 50%.

Thus, for illustrative purposes only, let us assume that the

probability of Kamara being returned to RUF controlled territory

is 30%, and that the probability of Kamara suffering torture at

the hands of the RUF, if returned to RUF controlled territory, is

90%. Assume further that the probability of Kamara being

returned to territory controlled by the Sierra Leone government

is 70% and the probability of torture if returned to such territory

is 40%. The probability that Kamara will be subjected to torture,

if returned to Sierra Leone, is the sum of the weighted

probability of torture in each of the two territories; in this case

55% (30% multiplied by 90% + 70% multiplied by 40% = 55%).

See Roger A. Carlson, Statistics 12 (Holden-Day, Inc. 1973) (“If

A and B are mutually exclusive [events], then the probability of

A union B [i.e., the event which occurs whenever A or B occurs]

must be the sum of the probabilities of A and B.”). Thus, despite

the fact that Kamara cannot demonstrate that it is more likely

than not that he will be tortured by the RUF (30% multiplied by

90% = 27%), or by the Sierra Leone government (70%

multiplied by 40% = 28%) when each entity is considered

independently, under the circumstances assumed above, Kamara

9

8 C.F.R. 1208.16(c)(3)(ii) provides in pertinent part that:

In assessing whether it is more likely than not that an

applicant would be tortured in the proposed country

of removal, all evidence relevant to the possibility of

torture shall be considered, including, but not limited

to: . . .(ii) Evidence that the applicant could relocate

to a part of the country of removal where he or she is

not likely to be tortured.”

17

may be able to demonstrate that it is more likely than not that he

will be tortured if returned to Sierra Leone when the two entities

are considered together.10

The BIA’s erroneous application of the regulations is

evident in its opinion. The BIA first concluded that because “‘it

cannot be found . . . more likely than not that [Kamara] would

find himself in the RUF’s hands,’” J.A. at 37 (quoting IJ

opinion), Kamara failed to demonstrate by a preponderance of

the evidence that he will be tortured by rebel forces. The Board

10

The above analysis, of course, assumes that Kamara

falling into the hands of the RUF, and Kamara falling into the

hands of the Sierra Leone government are mutually exclusive

events. They may not be. There does exist a probability greater

than zero (however slight) that Kamara could find himself in

territory controlled by one entity and then, at a later time, find

himself in a territory controlled by the other.

Assume that Kamara has a 20% probability of falling into

RUF hands alone and a 90% probability of torture if such an event

occurs. Assume furthermore that Kamara has a 70% chance of

falling into the hands of the Sierra Leone Government alone, and

a 40% chance of torture if such an event occurs. Finally assume

that there is a 10% probability that Kamara will fall into the hands

of both the RUF and the Sierra Leone Government. The chance of

torture by either, or both, entities if such an event occurs is (100% -

(the probability that he will not be tortured by either entity)), or

(100% - (10% * 60%)) = 94%.

Thus the overall probability of torture if Kamara is returned

to Sierra Leone is equal to (the weighted probability of Kamara

being tortured by the RUF, if he finds himself only in RUF

territories) + (the weighted probability of Kamara being tortured by

the Sierra Leone Government, if he finds himself only in

Government controlled territories) + (the weighted probability of

Kamara being tortured by either, or both, the RUF and the Sierra

Leone Government if Kamara finds himself in both RUF and

Government territories). Applying our hypothetical to this

equation, yields an overall probability of torture of (20% * 90%)

+ (70% * 40%) + (10% *94%) = 55.4%.

18

proceeded as if this aspect of the case was no longer pertinent,

stating that “[t]herefore, we decline to address whether the RUF

constitutes a government for purposes of the [CAT].” J.A. at 37;

see also Appellant’s Br. at 15 (“No more needed to be said on

that front.”). The Board then reasoned that Kamara failed to

demonstrate by a preponderance of the evidence that he will be

tortured by the Sierra Leone government. Because the

likelihood of torture by the RUF is less than 50% and the

likelihood of torture by the Sierra Leone government is less than

50%, the BIA concluded that the IJ’s decision must be reversed.

Properly applying the CAT regulations to the stipulated

facts of this case, Kamara may indeed be entitled to relief under

the CAT. The IJ concluded that although “it is impossible to

speculate with any accuracy the likelihood” of Kamara falling

into RUF hands, if such an event should happen, “torture is all

but certain.” JA. at 28. He further concluded that the chances of

Kamara falling into the government hands “is much greater”

than his chances of falling into RUF hands, and while “[c]learly

not as brutal as the rebels, the government of Sierra Leone

nonetheless poses a significant risk of torture for its citizens,

depending on who they may be.” J.A. at 29. Thus, although any

application of the regulations must necessarily be more

qualitative than quantitative, see, e.g., Matter of Acosta, 19 I &

N Dec. 211, 229 (BIA 1985), we conclude that the BIA

improperly applied the CAT standards to Kamara’s petition for

relief. As stated by the IJ, “the very difficulty of proof is further

reflection of the instability of the country, which raises, rather

than reduces, the likelihood of torture.” J.A. at 30.

Our above analysis, however, rests on the assumption that

the IJ was correct in concluding that the RUF was a “public

official” for purposes of 8 C.F.R. § 208.18(a). Neither the CAT

regulations, 8 C.F.R. § 208.18, nor the Convention Against

Torture, Art I (which § 208.18 incorporates), defines the term

“public official.” As stated in the IJ’s July 12, 2001 written

decision, the United Nations Committee Against Torture, which

hears and adjudicates certain individual claims arising under

Article 3 of the CAT, has held that the rebel group Sendero

Luminoso [Shining Path] of Peru was not a “public official”

19

because it was neither the government, nor did it act with the

government’s acquiescence. J.A. at 25 (citing Matter of S-V-,

Int. Dec. # 3430 (BIA 2000), slip op. at 8-9). Similarly the BIA

has held, as of May 2000, that guerillas in Colombia were not

shown to act as, or with the acquiescence of, “public officials” in

that country. Id.

As noted above, because of its erroneous application of

the CAT regulations, the BIA declined to address whether the

RUF constitutes a “public official” for purposes of 8 C.F.R. §

208.18. On remand, the BIA is instructed to determine that issue

first. If it determines that the RUF should be deemed a “public

official,” the BIA should then apply the proper CAT analysis

explained above to the undisputed facts of the case.11 See INS v.

11

The intervening passage of the REAL ID Act relieves us

of resolving the unsettled issue of whether remand is appropriate

when granting an alien’s habeas corpus petition.

In contrast to the pre-IIRIRA statutory regime (allowing for

direct review of a final order of deportation against an alien who is

removable by reason of committing a criminal offense), which

bestowed upon the courts “the broad authority to grant declaratory

and injunctive relief,” INS v. St. Cyr, 533 U.S. 289, 309 (2001),

under the post-IIRIRA (but pre-REAL ID) scheme for criminal

aliens, “the limited role played by the [habeas] courts” is “far

narrower than the judicial review authorized by [the old statutory

structure].” Id. at 312.

The writ of habeas corpus “performs a precise and specific

function: it forces the government to justify a decision to hold an

individual in custody.” Zalawadia v. Ashcroft, 371 F.3d 292, 299

(5th Cir. 2004); see also Zadvydas v. Davis, 533 U.S. 678, 699

(2001) (stating that “the historic purpose of the writ [is] to relieve

detention by executive authorities without judicial trial . . .”)

(internal citation and quotations omitted); Helfin v. United States,

358 U.S. 415, 421 (1959) (Stewart, J., concurring) (“The very

office of the Great Writ, its only function, is to inquire into the

legality of the detention of one in custody.”). This singular focus

20

Ventura, 537 U.S. 12 (2002) (per curiam).12

C. The State-Created Danger Exception

Kamara argues that in addition to misapplying the proper

legal standard to his CAT petition the BIA, in issuing its final

order of removal, violated his right to substantive due process

under the state-created danger exception.

The Due Process Clause of the Fourteenth Amendment

applies to all “‘persons’ within the United States, including

on the legality of detention not only constrains the scope of a

habeas court’s review, but also the nature of relief that a habeas

court may provide.

As stated in Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980),

a case not involving an alien habeas petition, the “unique purpose

of habeas corpus” is “to release the applicant for the writ from

unlawful confinement.” Thus, a habeas court may lack the

authority to remand a case to the BIA for further proceedings. Cf.

Herrera v. Collins, 506 U.S. 390, 403 (1993) (“The typical relief

granted in federal habeas corpus is a conditional order of release

unless the State elects to retry the successful habeas petitioner. . .

.”). At least one court of appeals that has examined the issue has

found that remand is not appropriate. See Zalawadia, 371 F.3d at

298.

Were we still faced with the DHS’ appeal of the District

Court’s opinion granting Kamara’s habeas petition, we may have

simply vacated the order of removal without remand. Given our

conversion of the present habeas case into a petition for direct

review, however, remand is now appropriate.

12

We emphasize, once again, that our above

characterization of the likelihood of torture using numerical

hypotheticals is for illustrative purposes only. On remand, the BIA

should apply the overarching principles (which we have chosen to

demonstrate quantitatively), in a qualitative manner.

21

aliens, whether their presence here is lawful, unlawful,

temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678,

693 (2001); see also Plyler v. Doe, 457 U.S. 202, 210 (1982);

Mathews v. Diaz, 426 U.S. 67, 77 (1976). In most

circumstances, the Due Process Clause imposes no obligation on

a state to protect an individual from harm inflicted by private

parties. Nonetheless, we have recognized a “state-created

danger exception,” such that the government has a constitutional

duty to protect a person against injuries inflicted by a third-party

when it affirmatively places the person in a position of danger

the person would not otherwise have faced. Cases predicating

constitutional liability on a state-created danger theory have four

common elements:

(1) the harm ultimately caused was foreseeable and

fairly direct; (2) the state actor acted in willful

disregard for the safety of the plaintiff; (3) there

existed some relationship between the state and the

plaintiff; (4) the state actors used their authority to

create an opportunity that otherwise would not

have existed for the third party’s crime to occur.

Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996) (internal

citation and quotations omitted). Furthermore, “the cases where

the state-created danger theory was applied were based on

discrete, grossly reckless acts committed by the state or state

actors using their peculiar positions as state actors, leaving a

discrete plaintiff vulnerable to foreseeable injury.” Id. (internal

citations and quotations omitted).

We, as well as other appellate courts, have held that the

state-created danger theory is a viable mechanism for

establishing a constitutional violation under 42 U.S.C. § 1983.

See Kneipp, 95 F.3d at 1208; see also Uhlrig v. Harder, 64 F.3d

567, 572 (10th Cir. 1995); Reed v. Gardner, 986 F.2d 1122,

1125 (7th Cir. 1993); Dwares v. City of New York, 985 F.2d 94,

99 (2d Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th

Cir.1990). We are aware of no court of appeals which has

recognized the constitutional validity of the state-created danger

theory in the context of an immigration case. But see Builes v.

22

Nye, 239 F. Supp. 2d 518 (M.D. Pa. 2003) (holding that despite

petitioner’s inability to establish habeas relief under CAT –

because evidence did not support finding that Colombian

government would acquiesce to torture by drug cartel –

petitioner was entitled to relief under state-created danger

exception). We decline to do so here, and hold that the state-

created danger exception has no place in our immigration

jurisprudence.

The Supreme Court has repeatedly made clear that “‘over

no conceivable subject is the legislative power of Congress more

complete than it is over’ the admission of aliens.” Fiallo v. Bell,

430 U.S. 787, 792 (1977) (quoting Oceanic Steam Navigation

Co. v. Stranahan, 214 U.S. 320, 339 (1909)); accord Kleindienst

v. Mandel, 408 U.S. 753, 766 (1972). “Our cases ‘have long

recognized the power to expel or exclude aliens as a fundamental

sovereign attribute exercised by the Government's political

departments largely immune from judicial control.’” Fiallo, 430

U.S. at 792 (quoting Shaughnessy v. United States ex rel. Meze,

345 U.S. 206, 210 (1953)). The Court stated in Galvan v. Press,

347 U.S. 522 (1954), that:

Policies pertaining to the entry of aliens and their

right to remain here are peculiarly concerned with

the political conduct of government. In the

enforcement of these policies, the Executive

Branch of the Government must respect the

procedural safeguards of due process. . . . But that

the formulation of these policies is entrusted

exclusively to Congress has become about as

firmly imbedded in the legislative and judicial

tissues of our body politic as any aspect of our

government. . . . We are not prepared to deem

ourselves wiser or more sensitive to human rights

than our predecessors, especially those who have

been most zealous in protecting civil liberties

under the Constitution, and must therefore under

our constitutional system recognize congressional

power in dealing with aliens. . . .

23

Id. at 531-32.

To that end, the Court has applied a very lenient “facially

legitimate and bona fide reason standard” to constitutional

challenges of immigration statutes. See, e.g., Fiallo, 430 U.S. at

795 (holding that immigration statute that distinguished between

“legitimate” and “illegitimate” children of United States citizens

in giving preference for immigration status to aliens met equal

protection standards because distinctions in statute were based

on “facially legitimate and bona fide reason”); Kleindienst, 408

U.S. at 769 (holding that regulation denying applicant visa for

communist beliefs passes First Amendment “facially legitimate

and bona fide reason” scrutiny).

Extending the state-created danger exception to final

orders of removal would impermissibly tread upon the Congress’

virtually exclusive domain over immigration, and would unduly

expand the contours of our immigration statutes and regulations,

including the regulations implementing the CAT. Despite the

fact that Congress could reasonably choose to amend the

immigration statutes to incorporate novel developments in our

case law, “these are policy questions entrusted exclusively to the

political branches of our Government, and we have no judicial

authority to substitute our political judgment for that of the

Congress.” Fiallo, 430 U.S. at 798.

D. Remaining Issues

1. New Country Conditions

According to the 2004 State Department Country Reports

on Human Rights Practices, the civil war between the Sierra

Leone government and the RUF officially ended in 2002. At

present, the government, which has full control of the country,

“generally respect[s] the human rights of its citizens. . . .”

Country Report, at 1, available at

www.state.gov/g/drl/rls/hrrpt/2004/41625.htm. The most recent

Country Report further notes that the Sierra Leone Constitution

prohibits torture and other cruel, inhuman, or degrading

treatment or punishment, and states that over the past year there

24

have been relatively few reports of such incidents. Id. at 2. The

issue thus becomes whether we can take notice of these new

country conditions and factor them into our analysis of whether

to grant Kamara’s petition for review, or rather, whether we

must rest our decision on country reports included in the

administrative record which, by now, are nearly six years old.

In Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004), we

directly addressed this issue, and held that while the use of stale

country reports is particularly problematic and may lead

sometimes to absurd or unjust results, “courts reviewing the

determination of an administrative agency must approve or reject

the agency’s action purely on the basis of the reasons offered by,

and the record compiled before, the agency itself.” Id. at 330

(citing SEC v. Chenery Corp., 318 U.S. 80 (1943)); see also

Gambashidze v. Ashcroft, 381 F.3d 187, 193-94 (3d Cir. 2004).

We further noted that while other circuits do take judicial notice

of new country developments not reflected in the administrative

record, see, e.g., Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41

(7th Cir. 2004) (taking judicial notice that country conditions for

ethnic Albanians in Serbia and Montenegro in 2004 are much

improved over conditions in the early 1990s), such an approach

“not only carries with it the potential for wholesale relitigation of

many immigration-law claims, but the Courts of Appeals are ill-

equipped to receive supplementary evidence.” Berishaj, 378

F.3d at 330.

Responding to our concern expressed in Berishaj, the

Attorney General implemented a new policy, whereby the Office

of Immigration Litigation (“OIL”) screens and remands petitions

for direct review “where records are out of date and not

appropriate for judicial review.” Ambartsoumian v. Ashcroft,

388 F.3d 85, 88 (3d Cir. 2004). The factors the OIL uses in

assessing the need for remand include: “(1) whether there have

been pertinent, intervening events in the country of removal; and

(2) whether the issues on review are ‘time sensitive’ in that

changes in conditions over time may affect the resolution of the

issues.” Id.

DHS states that “[t]his case has been screened pursuant to

25

this policy,” and it has deemed remand inappropriate.

Appellant’s Reply Br. at 9. The government, after obtaining a

favorable holding from the BIA, had little incentive to pursue

remand of the present case to the BIA, even if remand would

have introduced evidence more favorable to its case. Kamara,

meanwhile, had no incentive to file a motion to reopen, see 8

U.S.C. § 1229a(c)(7), 8 C.F.R. § 1003.2, because the updated

country reports, if accepted, would all but eviscerate any asylum,

withholding, or CAT claim that he asserted. Thus, despite the

new policy implemented by the Attorney General, we again are

faced with an administrative record which appears woefully out-

dated. We take this opportunity to remind the Attorney General

that the internal remand procedure outlined in Ambartsoumian is

appropriate not only for cases where country conditions have

deteriorated in the area of the world where petitioner seeks

review, but also where conditions have so improved that

withholding of removal or relief under the CAT cannot be

justified. The Court of Appeals should be guarded from

adjudicating cases where the underlying issues have largely been

mooted by changes in country conditions.

2. The Scope of the District Court’s Injunction

In light of the unique procedural posture of this case,

where the District Court’s opinion below has been vacated, we

are not obliged to address the Court’s issuance of a permanent

injunction against removal. Nonetheless, we note that such

injunctive orders are overbroad as a matter of law. The

regulations governing CAT relief make plain that protection

under the CAT may be terminated upon changes in country

conditions. See 8 C.F.R. § 208.17(d).13 Thus, even if CAT

13

8 C.F.R. § 208.17(a) provides that:

An alien who: has been ordered removed; has been

found under § 208.16(c)(3) to be entitled to

protection under the Convention Against Torture;

and is subject to the provisions for mandatory denial

of withholding of removal under § 208.16(d)(2) or

26

relief is granted, the government is authorized to file a motion to

reopen, based on changed country conditions, to terminate an

alien’s deferral of removal.

IV.

In sum, for the reasons given above, we hold that the BIA

improperly applied the CAT regulations. We vacate the District

Court’s opinion, and remand to the BIA for further proceedings

consistent with our opinion UNITED STATES COURT OF

APPEALS

(d)(3), shall be granted deferral of removal to the

country where he or she is more likely than not to be

tortured.

§ 208.17(d)(1) provides however that:

At any time while deferral of removal is in effect, the

INS District Counsel for the District with

jurisdiction over an alien whose removal has been

deferred under paragraph (a) of this section may file

a motion with the Immigration Court having

administrative control pursuant to § 3.11 of this

chapter to schedule a hearing to consider whether

deferral of removal should be terminated.

After new evidence is presented, 8 C.F.R. § 208.17(d)(4)

establishes that:

If the immigration judge determines that the alien is

more likely than not to be tortured in the country to

which removal has been deferred, the order of

deferral shall remain in place. If the immigration

judge determines that the alien has not established

that he or she is more likely than not to be tortured in

the country to which removal has been deferred, the

deferral of removal shall be terminated and the alien

may be removed to that country.

27