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Interim Decision #3464

In re Y-LIn re A-GIn re R-S-RDecided March 5, 2002

U.S. Department of Justice

Office of the Attorney General

(1) Aggravated felonies involving unlawful trafficking in controlled substances presumptively

constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2000), and only under the

most extenuating circumstances that are both extraordinary and compelling would departure

from this interpretation be warranted or permissible. Matter of S-S-, Interim Decision 3374

(BIA 1999), overruled.

(2) The respondents are not eligible for deferral of removal under Article 3 of the United

Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment where each failed to establish that the torture feared would be inflicted by or

with the acquiescence of a public official or other person acting in an official capacity.

Matter of S-V-, Interim Decision 3430 (BIA 2000), followed.

IN REMOVAL PROCEEDINGS

By previous Order, I directed the Board of Immigration Appeals (“BIA”)

to refer the above-captioned cases to me for review pursuant to 8 C.F.R.

§ 3.1(h)(1)(i) (2001). In three separate opinions, the BIA ordered that the

respondents’ removal from the United States be withheld under the provisions

of section 241 of the Immigration and Nationality Act (“INA”). For the

reasons set forth below, I now reverse the decisions of the BIA and hold that

the respondents, having each been convicted of a “particularly serious crime”

within the meaning of the INA, pose a danger to the community of the United

States and are thus ineligible for withholding of removal. 1 See INA

§ 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii) (2000). I further conclude

that the purported threats of torture claimed by the respondents if removed to

1

My review of these BIA decisions is de novo. See Deportation Proceedings of Joseph

Patrick Thomas Doherty, 12 Op. O.L.C. 1, 4 (1988) (“[W]hen the Attorney General reviews

a case pursuant to 8 C.F.R. § 3.1(h), he retains full authority to receive additional evidence and

to make de novo factual determinations.”).

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their countries of origin do not satisfy the criteria for granting them deferral

of removal. 2 See 8 C.F.R. § 208.17.

I.

The three respondents in this consolidated matter are foreign nationals who

bear final judgments of conviction for felony drug trafficking offenses in the

United States. Specifically, Y-L- was convicted in the Martin County,

Florida Circuit Court of trafficking in cocaine and resisting an officer with

violence, in violation of Fla. Stat. Ann. §§ 893.135, 843.01 (West 2000 &

Supp. 2002). Although he was sentenced to just 25 months of incarceration,

his drug offense was a first-degree felony under Florida law, punishable by

up to 30 years’ imprisonment. A-G- was convicted in the United States

District Court for the District of Delaware on three felony counts involving

large quantities of cocaine: two counts of distribution of cocaine, and one

count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841,

846. He received concurrent sentences of one year and a day on each count.

R-S-R- pled guilty in federal court in the District of Puerto Rico to one felony

count of conspiracy to possess with intent to distribute cocaine, in violation

of 21 U.S.C. § 846. The court sentenced him to 24 months of incarceration.

As a result of the respondents’ aggravated felony convictions,3 the

Immigration and Naturalization Service (“INS”) commenced removal

proceedings against them. See INA § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii) (any alien convicted of an aggravated felony is

deportable); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (any alien

convicted of a controlled substance offense, other than minimal possession

of marijuana for personal use, is deportable). The respondents, claiming that

their lives and/or freedom would be severely imperiled upon deportation to

their countries of origin, petitioned for withholding of removal under both INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and Article 3 of the Convention Against

Torture And Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“Convention Against Torture”),4 8 C.F.R. § 208.16 et seq. The INS opposed

2

This published decision is binding on the BIA and is intended to overrule any BIA decisions

with which it is inconsistent. See Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C. Cir.

1993) (administrative judges “are entirely subject to the agency on matters of law”). See also

8 C.F.R. § 3.1(g).

3

The drug trafficking crimes for which respondents were convicted all fall within the INA’s

definition of “aggravated felony.” See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)

(2000).

4

The Convention Against Torture, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 23

(continued...)

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these requests, arguing that the respondents were statutorily ineligible for

such withholding by virtue of their convictions for “particularly serious

crimes.” See INA § 241(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2).

Although two of the three respondents were denied all relief by immigration

judges,5 the BIA on appeal held that all three were entitled to withholding of

removal under section 241 of the INA. Invoking its decision in In re S-S-,

Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999), the BIA in each

case held that the aggravated drug trafficking felonies committed by

respondents did not constitute “particularly serious crimes” for purposes of

INA § 241(b)(3)(B)(ii). In reaching this conclusion, the BIA emphasized such

factors as the respondents’ cooperation with federal authorities in collateral

investigations, their limited criminal history records, and the fact that they

were sentenced at the low-end of the applicable sentencing guideline ranges.

The BIA also determined that the respondents had each demonstrated a

probability of persecution or torture if returned to their countries of origin.

II.

Section 241(b)(3)(A) of the INA dictates that “the Attorney General may

not remove an alien to a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that country because of the

alien’s race, religion, nationality, membership in a particular social group, or

political opinion.” This restriction does not apply, however, 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.” INA § 241(b)(3)(B)(ii) (emphasis added). 6 The resolution of these

cases turns on whether each of the respondents was convicted of a

“particularly serious crime” within the meaning of section 241(b)(3)(B)(ii).

(...continued)

I.L.M. 1027 (1984), was approved by the United States Senate on Oct. 28, 1990. See 136

Cong. Rec. 36625 (1990). Regulations implementing the Convention were adopted pursuant

to a congressional directive in the Foreign Affairs Reform and Restructuring Act of 1998, Pub.

L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-822. See 64 Fed. Reg. 8478, 8488 (Feb.

19, 1999).

5

In the cases of Y-L- and R-S-R-, the presiding immigration judges denied all requested relief

from removal. A-G-, however, was granted withholding of removal in immigration court.

6

The regulations implementing the Convention Against Torture contain an identical exception.

See 8 C.F.R. § 208.16(d)(2) (2001) (“[A]n application for withholding of removal under . . .

the Convention Against Torture shall be denied if the applicant falls within section

241(b)(3)(B) of the [INA].”).

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A.

Although the INA itself does not define the term “particularly serious

crime,” pertinent textual guidance is found in the final clause of section

241(b)(3), which provides, in relevant part:

For purposes of [section 241(b)(3)(B)(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 sentence imposed, an alien has been

convicted of a particularly serious crime.

This provision establishes that aliens convicted of aggravated felonies and

sentenced to at least five years of imprisonment are automatically deemed to

have committed a “particularly serious crime.” With respect to aggravated

felony convictions for which a lesser sentence has been imposed, however,

Congress explicitly empowered the Attorney General to make the relevant

determination. Prior to today, the Attorney General has had no occasion to

consider which aggravated felonies might amount to “particularly serious

crimes” where the prison sentence imposed upon conviction is less than five

years. Operating in this void, the BIA has seen fit to employ a case-by-case

approach, applying an individualized, and often haphazard, assessment as to

the “seriousness” of an alien defendant’s crime. See In re S-S-, supra. Not

surprisingly, this methodology has led to results that are both inconsistent and,

as plainly evident here, illogical.

According to the BIA, the 1996 INA amendments in the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat.

1214, and the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 – which eliminated a

provision declaring that all aggravated felonies are “particularly serious

crimes”7 – reflected Congress’ desire to replace classifications based on the

“category or type of crime that resulted in the conviction” with classifications

“based on the length of sentence imposed.” See In re S-S-, supra. I do not

concur. The BIA’s interpretation of these amendments places far too much

weight on the first sentence of section 241(b)(3)’s final clause (the mandatory

designation) and far too little weight on the final clause’s second sentence (the

grant of discretionary authority to the Attorney General). The fact that

Congress designated as per se “particularly serious” every aggravated felony

7

Prior to 1996, the INA mandated that “an alien who has been convicted of an aggravated

felony shall be considered to have committed a particularly serious crime.” INA § 243(h)(2),

8 U.S.C. § 1253(h)(2) (1994).

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resulting in a term of incarceration of at least five years hardly reflects an

intent to subordinate the nefarious or harmful character of a crime to mere

secondary consideration, let alone remove it from the equation. While the

imposition of certain harsh sentences may obviate the need to probe the

underlying circumstances of a particular crime, the discretionary authority

reserved to the Attorney General with respect to offenses from which less

severe sentences flow is clearly intended to enable him to emphasize factors

other than length of sentence.8

Exercising that authority under the INA, it is my considered judgment that

aggravated felonies involving unlawful trafficking in controlled substances

presumptively constitute “particularly serious crimes” within the meaning of

section 241(b)(3)(B)(ii). Only under the most extenuating circumstances that

are both extraordinary and compelling would departure from this

interpretation be warranted or permissible.9

Both the courts and the BIA have long recognized that drug trafficking

felonies equate to “particularly serious crimes” in this context. In Mahini v.

INS, 779 F.2d 1419 (9th Cir. 1986), for example, the Ninth Circuit upheld the

BIA’s determination that an alien’s conviction for possession of heroin with

intent to distribute, and aiding and abetting the distribution of heroin,

8

This understanding is confirmed by the IIRIRA’s legislative history. In the Conference

Report explaining the current provisions of INA § 241(b)(3), Congress emphasized that “the

Attorney General retains the authority to determine other circumstances in which an alien has

been convicted of a particularly serious crime, regardless of the length of sentence.” H.R.

Conf. Rep. No. 104-828, at 216 (1996) (emphasis added).

9

Some legal commentators and the BIA itself have intimated that Article 33 of the United

Nations Convention Relating to the Status of Refugees (“Convention”), July 28, 1951, 19

U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176, to which the United States is bound by its 1968

accession to the United Nations Protocol Relating to the Status of Refugees (“Protocol”),

Jan. 31, 1967, 19 U.S.T. 6223, 6225, 606 U.N.T.S. 267, 268, limits my authority to

determine that certain categories of crimes are “particularly serious” under INA

§ 241(b)(3)(B)(ii). See In re S-S-, supra. Because both the Convention and the Protocol are

silent as to the meaning of a “particularly serious crime,” proponents of this view have relied

upon various restrictive statements in the Handbook on Procedures and Criteria for

Determining Refugee Status, a document issued by the Office of the United Nations High

Commissioner for Refugees (“UNHCR”). The Supreme Court has made clear, however, that

the comments contained in the Handbook are in no way binding upon me in my determinations

under INA § 241. See INS v. Aguirre-Aguirre, 526 U.S. 415, 427-28 (1999) (holding that the

precatory comments contained in the Handbook are not binding on the Attorney General, the

BIA, or United States courts); INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987)

(same).

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constituted a “particularly serious crime” within the meaning of the INA. The

court reached that conclusion notwithstanding the fact that the alien had been

sentenced to only thirteen months’ imprisonment for the crime in question.

In so holding, the court noted that from the time the BIA first confronted the

contours of “particularly serious crimes” in 1982, “the Board has continually

found convictions for drug possession and trafficking to be particularly

serious, and the offenders a danger to the community.” Id. at 1421

(emphasis added) (citations omitted). Similarly, in Matter of U-M-, 20 I&N

Dec. 327 (BIA 1991), the BIA observed:

We find that the crime of trafficking in drugs is inherently a particularly serious crime.

The harmful effect to society from drug offenses has consistently been recognized by

Congress in the clear distinctions and disparate statutory treatment it has drawn between

drug offenses and other crimes. [citation omitted] Illicit narcotic drugs sold in the United

States ruin or destroy the lives of many American citizens each year. Apart from the

considerable number of people in this country who die of overdoses of narcotics or who

become the victims of homicides related to the unlawful traffic of drugs, many others

become disabled by addiction to heroin, cocaine, and other drugs. There are also many in

this country who suffer crimes against their persons and property at the hands of drug

addicts and criminals who use the proceeds of their crimes to support their drug needs.

Additionally, a considerable amount of money is drained from the economy of the United

States annually because of the unlawful trafficking in drugs. This unfortunate situation has

reached epidemic proportions and it tears the very fabric of American society. As we find

trafficking in drugs to inherently be a particularly serious crime, no further inquiry is

required into the nature and circumstances of the respondent’s convictions for sale or

transportation of marihuana and sale of LSD.

Id. at 330-31 (emphasis added); accord Matter of Gonzalez, 19 I&N Dec.

682, 684 (BIA 1988).

The propriety of the “particularly serious crime” presumption adopted in

this opinion is further supported by the long-standing congressional

recognition that drug trafficking felonies justify the harshest of legal

consequences. See, e.g., 8 U.S.C. § 1227(a)(2)(B) (deportation for

controlled-substance violations); 8 U.S.C. § 1252(a)(2)(C) (no judicial review

where alien’s removal is predicated on a drug trafficking felony); 8 U.S.C.

§ 1228 (expedited removal for aggravated felonies, including drug trafficking

felonies); 18 U.S.C. § 3592(c)(12) (conviction for serious federal drug

offenses constitutes aggravating factor for purposes of weighing imposition

of federal death penalty); 21 U.S.C. § 862 (convicted drug traffickers subject

to order of ineligibility for federal benefits). The fact that Congress, as part

of the IIRIRA legislation in 1996, chose to jettison a prior INA rule treating

all aggravated felonies – of which drug trafficking felonies are a subset – as

per se “particularly serious crimes,” should not be confused with an

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indication that Congress no longer considered drug trafficking crimes in

particular, to be as serious and pernicious as it had previously viewed them.

The severity of this legislative treatment has a solid foundation. The

devastating effects of drug trafficking offenses on the health and general

welfare, not to mention national security, of this country are well

documented.10 Because the illegal drug market in the United States is one of

the most profitable in the world, it attracts the most ruthless, sophisticated,

and aggressive traffickers. Substantial violence is present at all levels of the

distribution chain. Indeed, international terrorists increasingly employ drug

trafficking as one of their primary sources of funding. 11

Based on the preceding discussion, I might be well within my discretion to

conclude that all drug trafficking offenses are per se “particularly serious

crimes” under the INA.12 I do not consider it necessary, however, to exclude

entirely the possibility of the very rare case where an alien may be able to

demonstrate extraordinary and compelling circumstances that justify treating

a particular drug trafficking crime as falling short of that standard. While this

opinion does not afford the occasion to define the precise boundaries of what

those unusual circumstances would be, they would need to include, at a

minimum: (1) a very small quantity of controlled substance; (2) a very

modest amount of money paid for the drugs in the offending transaction; (3)

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

10

See, e.g., Office of National Drug Control Policy, Executive Office of the President, DrugRelated Crime (Fact Sheets, March 2000); Bureau of Justice Statistics, U.S. Dep’t of Justice,

A National Report: Drugs, Crime, and the Justice System (Dec. 1992).

11

See, e.g., Drug Enforcement Administration, U.S. Dep’t of Justice, Target America:

Traffickers, Terrorists & Your Kids – A National Symposium on Narco-Terrorism (Dec. 4,

2001), available at http://www.usdoj.gov:80/dea/deamuseum/transcript.doc; Drug Trade and

the Terror Network: Hearing Before the Subcommittee on Criminal Justice, Drug Policy,

and Human Resources of the House Committee on Government Reform, 107th Cong. (Oct. 3,

2001) (statement of Asa Hutchinson, Administrator of Drug Enforcement Administration),

available at http://www.usdoj.gov:80/dea/pubs/cngrtest/ct100301.html.

12

Some federal courts have held that certain crimes may properly be treated as per se

“particularly serious,” regardless of the circumstances of the individual case. See, e.g., Gjonaj

v. INS, 47 F.3d 824, 825-26 (6th Cir. 1995) (assault with a firearm with intent to murder);

Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996) (felonious assault, possession of a firearm

during a felony, and carrying a weapon in a vehicle); Ahmetovic v. INS, 62 F.3d 48 (2d Cir.

1995) (first degree manslaughter). Other courts have indicated that the application of “per se”

determinations is legally questionable. See, e.g., Chong v. INS, 264 F.3d 378, 387-89 (3d Cir.

2001).

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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. Only if

all of these criteria were demonstrated by an alien would it be appropriate to

consider whether other, more unusual circumstances (e.g., the prospective

distribution was solely for social purposes, rather than for profit) might justify

departure from the default interpretation that drug trafficking felonies are

“particularly serious crimes.” I emphasize here that such commonplace

circumstances as cooperation with law enforcement authorities, limited

criminal histories, downward departures at sentencing, and post-arrest (let

alone post-conviction) claims of contrition or innocence do not justify such

a deviation. 13

B.

On review of the records in the cases now before me, it is apparent that

none presents the kind of extraordinary and compelling circumstances that

might warrant treating the respondents’ aggravated drug trafficking felonies

as anything other than “particularly serious crimes.” Not only have all three

respondents failed to demonstrate that the volume or value of controlled

substances involved in their offenses was de minimis or inconsequential, but

each was a direct actor or perpetrator – not merely a peripheral figure – in

their respective criminal activities.

Y-L- was convicted of a first-degree drug trafficking felony involving

84 grams of cocaine and, in connection with that offense, was further

convicted of resisting a police officer with violence when apprehended. Y-LBIA Decision at 2; Hr’g Tr. at 30. The BIA declared that these crimes were

not “particularly serious” because Y-L- had no criminal history, could have

received a much stiffer sentence, and did not use a weapon or inflict personal

injuries during the commission of the offenses. Id. at 5. The Board’s

decision has no merit. As noted above, the fact that an alien has no prior

convictions is irrelevant to the “particularly serious crime” calculus. The

same is true of a trial judge’s decision to mete out a sentence at the low-end

13

Although an alien’s decision to provide critical information to law enforcement officials has

no bearing on whether his offense is characterized as a “particularly serious crime,” he may

be granted legal status in the United States notwithstanding his criminal acts through the

issuance of an “S visa.” See INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S). Indeed, A-Ghas sought such a visa, and his application is currently pending before the INS. In the event

that the application is ultimately granted, any order of removal against him will be vitiated.

However, the discussion in this opinion of the relief erroneously granted him by the

immigration judge and BIA will remain unaffected.

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of the guidelines. Furthermore, even assuming the BIA had some basis for

believing that no weapons or physical injuries were involved in Y-L-’s

crimes – a dubious assumption considering both that the record is entirely

silent on this matter, and one of the counts of conviction had physical

violence as a core element – the absence of such aggravating factors would

not minimize the inherent dangers associated with Y-L-’s direct role in the

drug trafficking offense.

A-G- was convicted of three federal drug felony counts, and stipulated that

the amount of cocaine attributable to him for sentencing purposes was

1,330 grams. A-G- Hr’g Exh. 13, at 3. That is enough cocaine to supply

over 100,000 doses of the drug. See United States v. Denmark, 124 F.3d

200 (6th Cir. 1997) (Table), 1997 WL 468302. Yet the BIA ruled that the

offenses did not rise to the level of “particularly serious crimes” inasmuch as

A-G- “placed himself at great risk to obtain information on behalf of the FBI”

and “received a substantially lower sentence because of his efforts.” A-GBIA Decision at 2-3. One does not follow from the other. While A-G-’s

post-charge cooperation understandably secured a more lenient sentence, it

did not retroactively alter the nature of the underlying offenses. The insidious

quality of the crime remained the same.

Finally, R-S-R- pled guilty to participation in a conspiracy to produce

cocaine in Puerto Rico and transport it in multi-kilogram quantities for

subsequent distribution in New York. R-S-R- IJ Oral Decision at 7; Hr’g Tr.

at 88-89. Nevertheless, the BIA adjudged his conviction not to be

“particularly serious” under INA § 241(b)(3)(B)(ii) because “[h]e provided

considerable information to the government,” “spoke out at great physical risk

to himself and his family,” did not “directly or indirectly cause[] physical

harm to any individual,” and qualified for a “minor participant” sentencing

adjustment based on his role as a courier in the conspiracy. R-S-R- BIA

Decision at 6; United States’ Motion Requesting Downward Departure

Pursuant to [U.S.S.G. §] 5K1.1, at 2, United States v. R-S-R-, (D.P.R.), Crim.

No. 97-290. The Board’s reasoning does not survive scrutiny. Not only is

R-S-R-’s cooperation with federal authorities irrelevant in the “particularly

serious crime” evaluation, but any scheme designed to transport cocaine in

such large quantities necessarily exposed numerous individuals to physical

harm. As for the sentencing adjustment, I find that a drug “courier” plays

more than a sufficiently active part in a distribution conspiracy to render his

conviction a “particularly serious crime.”

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III.

Although the respondents are statutorily ineligible for withholding of

removal by virtue of their convictions for “particularly serious crimes,” the

regulations implementing the Convention Against Torture allow them to

obtain a deferral of removal notwithstanding the prior criminal offenses if

they can establish that they are “entitled to protection” under the Convention.

See 8 C.F.R. § 208.17(a). To secure such relief, the respondents must

demonstrate that, if removed to their country of origin, it is more likely than

not they would be tortured by, or with the acquiescence of, government

officials acting under color of law. Id. §§ 208.16(c)(2), 208.17(a),

208.18(a)(1). None of the respondents has come close to making such a

showing.

A. Y-LY-L-, who was paroled into the United States in 1979, maintains that he

will be killed if sent back to his native Haiti. 14 He testified at his removal

hearing that two months prior to his arrival in America, members of the Ton

Ton Macoutes – a private army of Haitian death squads organized by former

president François Duvalier and nurtured by his successor, Jean Claude

Duvalier – murdered his father and aunt, and broke his cousin’s leg as

retribution for his father’s unspecified criticism of the Duvalier government.

Y-L- IJ Oral Decision at 3. Y-L- further insisted that the same group of

people responsible for the death of his father killed his cousin in 1998,

approximately twenty years after Y-L- initially left the country. Id. at 3-4, 8;

Y-L- Hr’g Tr. at 11-15.

Y-L-’s claim for relief under the Convention Against Torture fails on at

least two different levels. First, as the immigration judge correctly found,

Y-L- produced no reliable evidence that he would likely be subjected to

torture if returned to Haiti. Y-L- IJ Oral Decision at 8. While voluntarily

visiting Haiti on two prior occasions, he was never personally harmed or

threatened. Id. at 2-3. Although he suggested that his cousin was murdered

by the same faction that purportedly killed his father nearly twenty years

earlier, the immigration judge found this testimony speculative and

14

The BIA did not address Y-L-’s claim for relief under the Convention Against Torture,

deeming the issue moot in light of its decision to grant him withholding of removal pursuant

to section 241(b)(3) of the INA. See Y-L- BIA Decision at 6. Having vacated the Board’s

ruling on Y-L-’s entitlement to withholding of removal, I must take up the deferral question.

In so doing, I ultimately affirm the immigration judge’s conclusion that Y-L- has no right to

any relief under the Convention.

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unconvincing.15 Id. at 8. Meanwhile, the Department of State’s authoritative

asylum profile on Haiti, which was introduced at the removal hearing, reveals

that the political climate has improved substantially in recent years, and that

charges of politically-motivated persecution against individuals who fled

during the Duvalier reign have proven to be frequently untrue or grossly

exaggerated. See Office of Asylum Affairs, Dep’t of State, Profile of Asylum

Claims and Country Conditions – Haiti 18, 21-22 (Mar. 31, 1998) (“Asylum

Profile”); see also Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999)

(noting that State Department reports are the best resource for gleaning

information on the political situations in foreign nations).

Second, even assuming Y-L-’s various allegations have some basis in fact,

and even if his own alleged fears of torture are genuine, he is not entitled to

deferral of removal under the Convention Against Torture because he has not

established that current government officials acting in an official capacity

would be responsible for such abuse. The regulations implementing the

Convention allow for relief only if torture would 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.” 8 C.F.R. § 208.18(a)(1) (emphasis

added). Violence committed by individuals over whom the government has

no reasonable control does not implicate the treaty. See In re S-V-, Interim

Decision 3430, at 9, 2000 WL 562836 (BIA 2000) (“To demonstrate

‘acquiescence’ by [foreign] Government officials, the respondent must do

more than show that the officials are aware of the activity constituting torture

but are powerless to stop it. He must demonstrate that [the foreign] officials

are willfully accepting of the . . . tortuous activities.”). The State

Department’s asylum profile on Haiti underscores that the Ton Ton Macoutes

have effectively disbanded and neither play a role in, nor enjoy the tacit

support of, the current Haitian government. Asylum Profile at 23. Both Y-L15

Y-L-’s claims are strikingly similar to those made by another Haitian national whose

application for protection under the Convention Against Torture was also denied. See

Merisier v. INS, No. 00-CIV-0393, 2000 WL 1281243 (S.D.N.Y. Sept. 12, 2000). The alien

in that case, Orentz Merisier, alleged that his father (who had worked for the prior Haitian

government) had been persecuted, and that his uncle had been assassinated. Because, he

contended, “some of the opposition forces are still in hiding in Haiti . . ., [he] ha[d] a genuine

fear for his life upon his return.” Id. at *3. Like Y-L-, Merisier did not contend that he

personally had been subjected to any past persecution or torture in Haiti. The BIA denied

relief, as did a federal district court in a subsequent habeas proceeding. The court stressed that

Merisier had “failed to suggest a coherent theory of who might want to torture him or why,”

and that “Haiti’s violent past, and even Merisier’s relatives’ alleged participation in it, is not,

without more, substantial grounds for believing that removing Mersier to Haiti would likely

result in his being tortured.” Id. at *12. Accord Miguel v. Reno, Civ. No. 00-3291, 2000 WL

1209375 (E.D. Pa. Aug. 25, 2000).

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and his counsel conceded this point. Y-L- Hr’g Tr. at 15, 33. If, by some

chance – which has certainly not been proven to be more likely than not –

former Ton Ton Macoute elements seek revenge on Y-L- because of his

relationship to his father, there is no competent evidence in the record

indicating that the current Haitian administration would either participate in,

or turn a blind eye to, such violence. In short, Y-L- has failed to sustain his

burden of establishing entitlement to deferral of removal.

B. A-GThe evidence advanced by A-G- similarly falls far short of what is

required to obtain relief under the Convention Against Torture. At some

point following his entry into the United States, A-G- decided to supplement

his income as a maintenance worker by trafficking in illegal narcotics. His

supplier was his long-time friend and roommate, K-C-, who had a drugdealing base in Jamaica. A-G- Hr’g Tr. at 77-88. As so often happens to

those in the drug trade, A-G- was ultimately arrested by the FBI, charged with

unlawful distribution of cocaine, and convicted on multiple counts of cocaine

trafficking. To minimize his exposure to prison, he agreed to assist federal

law enforcement officials by participating in a number of controlled drug

purchases designed to implicate K-C-.

During a period in which both K-C- and A-G- were temporarily

incarcerated at the same facility, K-C- allegedly delivered a message to A-Gthat he would be killed if he returned to Jamaica. In addition, according to

A-G-’s brothers and sisters, two or three men came to the family residence in

Jamaica in either 1998, 1999, or 2000 – the dates and other key particulars

diverged sharply among these witnesses – and inquired as to A-G-’s

whereabouts. At least one sibling claimed that these men were armed and

made threats that A-G- would be murdered by K-C- or others if he returned

to Jamaica. Id. at 154, 251.

Citing these apparent threats to his life, A-G- seeks to avoid removal

pursuant to the Convention Against Torture. The main problem with his

claim is that the record is devoid of credible evidence suggesting that the

Jamaican government would bear any responsibility – either direct or through

passive acquiescence – for physical harm visited upon A-G-. In fact, several

of the witnesses candidly acknowledged at the hearing that no one in the

family even reported the alleged threats to Jamaican authorities. Id. at 154,

174, 195, 245.

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In finding some government role in the alleged torture, the presiding

immigration judge speculated that the Jamaican “government cannot or will

not control those who wish to persecute the respondent.” A-G- IJ Oral

Decision at 15. The judge’s reasoning proceeded as follows: (i) there are

major problems with corruption in Jamaica, (ii) local police routinely beat

detainees, (iii) major drug traffickers operate in Jamaica with impunity and

are cozy with corrupt law enforcement officials, and (iv) as a result of (i)-(iii),

drug trade associates of K-C- may well either attack A-G- themselves or

arrange for A-G- to be arrested on bogus charges and then encourage the

corrupt local police to beat him. Id. at 10-17, 21-23.16 Incredibly, the BIA

found this reasoning both “thorough” and correct. I do not agree. To the

contrary, the immigration judge’s factual findings are clearly erroneous.

Although there are indications that corruption and brutality affect some

elements of Jamaican law enforcement, the national government has

undertaken substantial efforts at reform. See Office of Asylum Affairs,

Dep’t of State, Country Reports on Human Rights Practices – Jamaica 1

(Feb. 2001) (“Country Report”). For example, the Jamaican Parliament

passed a major anti-corruption bill in December 2000, and recently ratified

the Inter-American Convention Against Corruption. See Bureau for

International Narcotics and Law Enforcement Affairs, Dep’t of State, Fact

Sheet, Country Program: Jamaica at 1 (Apr. 16, 2001). It also bolstered the

national anti-money laundering laws. Id. Notwithstanding the allegations of

A-G- and his family to the contrary, the U.S. State Department has found that

the policy of the Jamaican government is to investigate all credible reports of

police corruption. Bureau for International Narcotics and Law Enforcement

Affairs, Dep’t of State, International Narcotics Control Strategy Report

(March 2000). The State Department has further reported that the Jamaican

government does not encourage or facilitate the illicit production or

distribution of narcotics. Id. at 4. While acknowledging that abuses by some

members of the security forces occasionally occur, the State Department’s

2000 Country Report for Jamaica makes clear that “[c]ivilian authorities

generally maintain effective control of the security forces,” and “[t]he

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

Report at 1. To be sure, there is room for improvement. But the record does

16

The immigration judge explained his determination by stating: “[I]t seems that we have a

situation where the drug lords may act on their own and simply pay the police to look the other

way or the drug lords may actually get the police involved . . . so that they do the dirty work

for them on the basis of a trumped up case. . . . We do not know which it is but one of the

two is more likely than not.” A-G- IJ Oral Decision at 23.

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not support the extreme, uncorroborated claims made on behalf of A-G- with

respect to knowing government acquiescence in prospective acts of torture.

Ultimately, of course, it is impossible to say with certainty whether A-Gwill be exposed to torture by particular individuals upon his return to

Jamaica. Those who engage in the illegal drug trade quite commonly expose

themselves to the risk of violence; it is an occupational hazard. The relevant

inquiry under the Convention Against Torture, however, is whether

governmental authorities would approve or “willfully accept” atrocities

committed against persons in the respondent’s position. See In re S-V-,

supra. To suggest that this standard can be met by evidence of isolated

rogue agents engaging in extrajudicial acts of brutality, which are not only in

contravention of the jurisdiction’s laws and policies, but are committed

despite authorities’ best efforts to root out such misconduct, is to empty the

Convention’s volitional requirement of all rational meaning. As the courts

have clearly recognized, relief is available only if the torture would “occur[]

in the context of governmental authority,” not “as a wholly private act.” Ali

v. Reno, 237 F.3d 591, 597 (6th Cir. 2001). There being no such credible

evidence in the case at bar, A-G-’s request for deferral must be denied.

C. R-S-RTurning to R-S-R-, a foreign national from the Dominican Republic who has

resided in Puerto Rico continuously since his arrival there in 1985, it is clear

that his application for relief under the Convention Against Torture suffers

from largely the same maladies as those of the other two respondents.

Beginning no later than March 1997, R-S-R- entered into an elaborate

“conspiracy to produce multi-kilogram quantities of cocaine in Puerto Rico

which would then be transported to New York, where the cocaine would be

sold.” Plea and Cooperation Agreement at 13, United States v. R-S-R-,

(D.P.R.), Crim. No. 97-290. “[M]ultikilo quantities of cocaine” were also

sold in Puerto Rico, thereby ensuring substantial profits from the conspiracy.

Id.; R-S-R- Hr’g Tr. at 88-89. Subsequently, R-S-R- was arrested on federal

drug charges. In an effort to reduce his prison sentence, he pled guilty and

cooperated with federal authorities by testifying against several of his

confederates in this “major cocaine trafficking organization.” United States’

Motion Requesting Downward Departure Pursuant to [U.S.S.G. §] 5K1.1 at

1-2, United States v. R-S-R-, (D.P.R.), Crim. No. 97-290.

Invoking the Convention Against Torture, R-S-R- now seeks deferral of

removal on the grounds that he will be subjected to physical cruelties by

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individuals in the Dominican Republic – including two of his co-defendants

who he maintains are corrupt law enforcement agents – angered by his

decision to cooperate with authorities. He claimed at his removal hearing that

these individuals were key members of the conspiracy and were the initial

source for the drugs that ultimately flowed into Puerto Rico. He further

testified that these individuals called his common-law wife in Puerto Rico and

told her they were “waiting for [him].” R-S-R- Hr’g Tr. at 105. He alleged

that they also arranged to have a note delivered to him in prison, which was

unsigned, stating that they would “be waiting for [him] in Santo Domingo,”

and that he was “going to pay with [his] life.” Id. at 108.

The record indicates that R-S-R-’s testimony is highly suspect. To begin

with, as the immigration judge correctly observed in questioning R-S-R-’s

credibility, R-S-R- produced no documentation to corroborate his claim that

the drug conspiracy originated in the Dominican Republic. R-S-R- IJ Oral

Decision at 7-8. Nor do any of the documents suggest even implicitly that

Dominican citizens were involved in the operation. Id. at 8. To the contrary,

the materials introduced at the hearing, including those offered by the

respondent himself, reflect that the conspiracy operated exclusively in Puerto

Rico and New York. Although the immigration judge, at various pre-trial

hearings, pointedly invited R-S-R- to subpoena (or secure affidavits from) the

federal agents and prosecutors to whom he directed his cooperation so as to

substantiate his claims, the respondent declined the invitation. Id. at 6-7;

R-S-R- BIA Decision at 4 n.5.

Corroborative evidence, of course, is not a threshold prerequisite to relief

under the Convention Against Torture. INS regulations provide that an

applicant’s testimony, “if credible, may be sufficient to sustain the burden of

proof without corroboration.” 8 C.F.R. § 208.16(c)(2) (emphasis added).

But where, as here, “the trier of fact either does not believe the applicant or

does not know what to believe, the applicant’s failure to corroborate his

testimony can be fatal” to his claim. 17 Sidhu v. INS, 220 F.3d 1085, 1090

(9th Cir. 2000). And “the weaker [the] alien’s testimony, the greater the need

17

In the case at bar, the immigration judge stated that he was “unable to really separate what

is true from what is an exaggeration. The Court cannot really say what is true and what is not

true.” R-S-R- IJ Oral Decision at 15. The BIA, evaluating only the cold record, apparently

disagreed and found that R-S-R-’s “testimony was credible in that it was internally consistent,

consistent with his written applications, . . . and sufficiently detailed.” R-S-R- BIA Decision

at 5. Taking into account the immigration judge’s ability to observe the testimony first-hand,

and the detailed nature of his observations in this regard, I concur in the substantial

reservations he memorialized in his opinion.

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for corroborative evidence.” In re Y-B-, 21 I&N Dec. 1136, 1139 (BIA

1998).

In any event, even assuming that the tentacles of this drug conspiracy

reached into the Dominican Republic, R-S-R-’s allegation that he will be

exposed to torture there is wholly unpersuasive. Despite testifying that it is

easy to travel between Puerto Rico and the Dominican Republic, he stated

emphatically that he felt safe from his former drug-dealing collaborators in

Puerto Rico. R-S-R- Hr’g Tr. at 64-68. When the immigration judge asked

him why, if travel between the two countries was so simple, the Dominican

individuals he fears could not simply smuggle agents into Puerto Rico to seek

their retribution against him, he was non-responsive. See R-S-R- IJ Oral

Decision at 9-10, 16.

Furthermore, even if all of R-S-R-’s testimony was credited as true, he still

would not be eligible for deferral of removal because he has not established

the requisite governmental involvement in the prospective torture he

portrayed. The scope of the Convention is confined to torture that is inflicted

under color of law. It extends to neither wholly private acts nor acts inflicted

or approved in other than “an official capacity.” Ali, 237 F.3d at 597;

8 C.F.R. § 208.18(a)(1). While R-S-R- offered colorful testimony describing

forms of torture that he “think[s] would happen to cooperating witnesses when

they are deported,” his testimony and evidence failed to provide a plausible

basis for concluding that such practices would be inflicted upon him with the

consent or approval of authoritative government officials acting in an official

capacity. R-S-R- Hr’g Tr. at 108-09. If anything, his testimony indicates

merely that two corrupt, low-level agents may seek to exact personal

vengeance on him for personal reasons. Such private conduct falls far short

of what is required to demonstrate the probability of government-sanctioned

atrocities under the Convention Against Torture. Accordingly, R-S-R- is not

entitled to relief.

IV.

For all the foregoing reasons, the decisions of the BIA in each of these

cases are reversed. The cases are remanded to the BIA for proceedings not

inconsistent with this opinion.

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