INS, No. 3:02-cv-99, Order (M.D. Pa. April 8, 2002).
On April 24, 2002, the INS sought reconsideration of
Petitioner's case before the BIA, contending that a recent
decision of the Attorney General*fn3 warranted withdrawal of
the previously granted deferral. See Mot., Ex. A, Chinchilla,
A73 130 532, Decision at 1 (BIA June 28, 2002) ("Second BIA
Dec."). On June 28, 2002, the BIA vacated its prior decision and
withdrew Petitioner's deferral of removal. Id. at 2. In its
decision, the panel considered a State Department report
regarding human rights abuses in Honduras, but found that this
report was insufficient to meet Petitioner's burden of proof.
Id. Further, the BIA found insufficient evidence to establish
that Petitioner would face retribution for his 1980s political
activities. The Board noted that no threats or actions were
taken against Petitioner when he visited Honduras in 1991. Id.
Accordingly, the BIA determined that Petitioner had "failed to
meet his burden of establishing that it is more likely than not
that he will be tortured by, or with the consent or acquiescence
of, government officials" if returned to Honduras. Id.
On August 30, 2002, Petitioner filed a Motion Requesting Stay
of Deportation, pending resolution of the instant petition.
II. Legal Standard and Jurisdiction
This Court has jurisdiction to decide habeas corpus
petitions filed by aliens subject to deportation. See
28 U.S.C. § 2241; Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct.
2491, 150 L.Ed.2d 653 (2001) (concluding "§ 2241 habeas corpus
proceedings remain available as a forum for statutory and
constitutional challenges to post-removal-period detention");
INS v. St. Cyr., 533 U.S. 289, 314, 121 S.Ct. 2271, 150
L.Ed.2d 347 (2001) (holding "habeas jurisdiction under § 2241
was not repealed" by Antiterrorism and Effective Death Penalty
Act of 1996 or Illegal Immigration Reform and Immigrant
Responsibility Act of 1996); Chmakov v. Blackman,
266 F.3d 210, 216 (3d Cir. 2001).
However, this Court's review of administrative immigration
decisions is limited to purely legal determinations, and does
not encompass the BIA's factual findings. See Sulaiman v. AG,
212 F. Supp.2d 413, 416 (E.D.Pa. 2002) (DuBois, J.) (stating
standard of review in criminal-alien habeas cases is "limited
to questions of law"); Bradshaw v. INS, 2002 WL 1160832, at
*1, No. 01-cv-5221, 2002 U.S. Dist. LEXIS 9722, at *4 (E.D. Pa.
June 3, 2002) (same). The Third Circuit has yet to rule on the
proper standard of review in such cases, but the majority of
circuits have permitted review of purely legal questions only.
See Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (holding
habeas statute provides for review of only "statutory or
constitutional errors"); Bowrin v. INS, 194 F.3d 483, 490 (4th
Cir. 1999) (holding only "questions of pure law will be
considered on § 2241 habeas review [and] review of factual or
discretionary issues is prohibited").
Petitioner has not identified any specific violation of
federal law as a result of his detention or impending
As this Court's review is limited to conclusions of law, the
question presented is whether the June 28, 2002, BIA decision,
denying Petitioner relief under the CAT, violated federal law or
the United States Constitution.
The Immigration and Nationality Act, 8 U.S.C. § 1101, et
seq., renders certain classes of aliens deportable. See
8 U.S.C. § 1227. With respect to drug offenders, the Act provides:
Any alien who at any time after admission has been
convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a
State, the United States, or a foreign country
relating to a controlled substance (as defined in
section 102 of the Controlled Substances Act
(21 U.S.C. § 802)), other than a single offense involving
possession for one's own use of 30 grams or less of
marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). See also Amoroso
v. District Dir., INS, No. 00-cv-1449, 2000 U.S. Dist. LEXIS
7554, at *9-10 (E.D.Pa. May 30, 2000). Petitioner was convicted
of conspiracy to import cocaine. See 21 U.S.C. § 960. Thus, he
Nevertheless, a deportable alien may apply for relief under the
CAT. See 8 C.F.R. § 208.16-.18. Torture is defined in the
immigration regulations*fn5 as any act "by which severe pain
or suffering, whether physical or mental, is intentionally
inflicted on a person . . . 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). The applicant has the burden of proving
eligibility for CAT relief, by showing "that it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal." 8 C.F.R. § 208.16(c)(2). If the
applicant meets this burden, he is entitled to either
withholding or deferral of removal. See
8 C.F.R. § 208.16(c)(4).
Withholding of removal must be denied where the alien has been
convicted of a "particularly serious crime," which is defined as
an aggravated felony*fn6 for which the alien has been
"sentenced to an aggregate term of imprisonment of at least 5
years."*fn7 8 U.S.C. § 1231(b)(3)(B). Conspiracy to import
cocaine, see 21 U.S.C. § 960, constitutes an "aggravated
felony." See, e.g., United States v. de la Luz Angel-Martinez,
988 F. Supp. 475, 477, 480 n. 5 (N.J. 1997) (noting defendant who
pled guilty to importation of heroin, in violation of
21 U.S.C. § 952(a) and 960, is deportable based on conviction for
In its June 28, 2002 decision, the BIA determined that
Petitioner had committed a "particularly serious crime," and
was, therefore, ineligible for withholding of removal. Second
BIA Dec. at 2. The Board
noted that Petitioner's offense involved approximately 400
kilograms of cocaine. See id. at 1. For his crime, Petitioner
was sentenced to twenty-seven months imprisonment, plus five
years probation. See First BIA Dec. at 2. Accordingly, the
BIA's finding that Petitioner was ineligible for withholding of
removal was correct as a matter of law. See In re Y-L-, 2002
WL 358818, 23 I. & N. Dec. 270 (A.G. March 5, 2002) (stating
aggravated felonies involving unlawful trafficking in controlled
substances "presumptively" constitute "particularly serious
An alien who has been found eligible for CAT relief, but
ineligible for withholding of removal, "shall be granted
deferral of removal;" such deferral would bar the INS from
removing the alien to that country where he or she is likely to
be tortured. 8 C.F.R. § 208.17(a). In determining Petitioner's
eligibility for CAT relief, the BIA was required to consider all
relevant evidence presented by Petitioner.
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
(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
(iv) Other relevant information regarding conditions
in the country of removal.
8 C.F.R. § 208.16(c)(3). The BIA considered Petitioner's
testimony and other evidence submitted, and justified its
decision on several grounds.
First, the Board considered a State Department report
concerning government-condoned human rights abuses in Honduras.
The BIA found that this official report was insufficient to meet
Petitioner's burden of proof, in that it did not establish
actual government acquiescence in torture. Rather, the report
showed only that certain officials may undertake corrupt
activity in an "unofficial capacity." Second BIA Dec. at 2. This
was an appropriate basis on which to rule that the report did
not fulfill Petitioner's burden. See Julmiste v. Ashcroft,
212 F. Supp.2d 341, 348 (N.J. 2002) (finding, in Haitian immigrant's
habeas challenge to deportation, that State Department report
describing Haiti as a "poor, unstable, war torn country" did not
"suggest that the Petitioner, himself, will personally suffer
torture upon return to Haiti"); In re Y-L-, 23 I. & N. Dec. at
270 ("Violence committed by individuals over whom the government
has no reasonable control does not implicate the [CAT]"). See
also Sevoian v. Ashcroft, 290 F.3d 166, 175-76 (3d Cir. 2002)
(holding, in non-habeas petition by Georgian citizen for
review of BIA's refusal to reopen removal proceedings, that
State Department report on human rights conditions in Georgia
did not establish prima facie case for CAT relief).
Next, the BIA found that Petitioner had failed to establish
that he would — more likely than not — face retribution for his
political activities in Honduras in the 1980s. The Board based
this determination on the lack of evidence presented, as well as
the fact that no threats or actions were taken against
Petitioner when he visited Honduras in 1991. See Second BIA
Dec. at 2. As no error of law is suggested relative to this
finding, it cannot be disturbed.
Finally, Petitioner argued before the BIA, as he does in this
Court, that he has a justifiable "fear" of persecution, as a
result of having testified against "high level drug dealers."
Pot. at 7-1. Despite Petitioner's fear of reprisal by drug
lords, the BIA concluded that he had not presented evidence
sufficient to show that it is more likely than not that he will
be tortured. Id. That determination is a finding of fact,
which is beyond the present scope of review. As the BIA's
decision contains no apparent error of law, it must be affirmed.
Petitioner has not shown that his detainment and eventual
removal are in violation of federal law or the United States
Constitution. Accordingly, the Petition for Writ of Habeas
Corpus will be denied and dismissed. Likewise, Petitioner's
Motion Requesting Stay of Deportation will be denied. An
appropriate Order follows.
AND NOW, this ___ day of October, 2002, it is ORDERED that:
1. Petitioner's Petition for Writ of Habeas Corpus is DENIED
AND DISMISSED; and
2. Petitioner's Motion Requesting Stay of Deportation is