prosecutors. Second, his removal would
violate the Eighth Amendment for the same reason. Third, the removal
order violates the Convention Against Torture (CAT) and its implementing
In part, Builes seeks an injunction against his removal to Columbia.
The petition/complaint also seeks a declaratory judgment that the
Attorney General's opinion in In re Y-L-, 23 I&N Dec. 270, 2002 WL 358818
(2002), violates the CAT and its implementing regulations.
Builes is a native and citizen of Columbia. He never became a permanent
resident alien. After he entered the United States in 1984, he obtained
temporary residency status. (Doc. 20, Exhibits to Respondents' response,
exhibit A, immigration judge's oral decision, p. 1). Builes worked at
various jobs, including running a trucking company that went bankrupt.
After the failure of the trucking company, Petitioner turned to drug
dealing. (Id., p. 3). However, he had voluntarily stopped this activity
about six months before his arrest, as evidenced by the absence of
criminal activity while he was under surveillance during this period of
In 1998, Petitioner was indicted in the United States District Court
for the Eastern District of Wisconsin for conspiracy to distribute heroin
in violation of 18 U.S.C. § 846 and 841(a)(1). (Doc. 22, exhibit D,
sentencing hearing at pp. 2-3). He agreed to cooperate in a Miami federal
prosecution of two major drug dealers, members of the same
drug-trafficking organization Petitioner had worked for. While he was
imprisoned in Miami awaiting their trial, one of them threatened
Petitioner and his family if he did testify. At the time, Builes had six
sisters and five brothers, most living in Columbia (along with his
parents). (Doc. 20, exhibit A, immigration judge's oral decision, pp.
3-4). Builes testified and his testimony was crucial to the convictions
of the drug traffickers. (Id., pp. 2-3).
In April 1999, Petitioner was sentenced in the Eastern District of
Wisconsin. At the sentencing hearing, the prosecutor stated that Builes
had cooperated fully in the Miami prosecution, providing extensive detail
on the Columbian trafficking organization, and that he believed the
threats against Petitioner and his family were credible. (Doc. 22,
Exhibit D, sentencing hearing at pp. 14, 15). He recommended a downward
departure on the bases of Builes' cooperation and the threats to him and
his family. (Id., p. 15). Granting a downward departure, the court
imposed a sentence of thirty-three months when the guidelines range
called for eight to ten years. (Doc. 20, exhibit A, immigration judge's
oral decision, p. 2).
Petitioner was placed in expedited removal proceedings and on October
27, 1999, ordered removed from the United States. On November 1, 2000,
Builes filed an application under 8 U.S.C. § 1231(b)(3), INA §
241(b)(3), for withholding of removal.*fn1 He also sought withholding of
removal under the CAT.
A hearing was held before an immigration judge. The immigration judge
denied withholding under the CAT but granted it under section
1231(b)(3). In regard to the CAT claim, the immigration judge concluded
that the danger to Petitioner's life is real. He found that the Columbian
drug traffickers did make the threats. As he stated, "The threats have
They have been taken seriously at all levels of our government
. . ." (Doc. 20, exhibit A, immigration judge's oral decision, p. 9).
Additionally, he found that the traffickers have the power to carry out
the threat because of the political conditions in Columbia. Relying on
the State Department's 1999 country report on human rights, he noted that
the government was unable to control the activities of paramilitary and
rebel groups nor could it control the drug traffickers. As a result, many
extrajudicial killings happen, often with government security forces
collaborating in them. The judiciary is either bribed or threatened into
ineffectiveness. (Id., pp. 9-11).*fn2
Nonetheless, the immigration judge concluded that Builes had no CAT
claim because the CAT requires government involvement in the torture and
Petitioner had not shown that the government would be involved, only that
it would not be able to prevent Builes' death, albeit a few corrupt
government officials would facilitate the death. (Id., pp. 17-19).
In regard to withholding under section 1231(b)(3), the immigration
judge decided that Builes' drug conviction was not "a particularly
serious crime" making him "a danger to the community" that would have
barred relief under the section.*fn3 The immigration judge reasoned that
the crime was not particularly serious by taking into account
Petitioner's full cooperation after his arrest, his reduced sentence
compared to the sentence he could have received, and the extent of his
cooperation indicating he was a changed man who was not a danger to the
community. (Id., pp. 21-23). The immigration judge therefore granted
withholding under section 1231(b)(3). The INS appealed to the Board of
Immigration Appeals (BIA).
In the meantime, one of Petitioner's sisters and one of his brothers
were murdered in Columbia. As evidenced by autopsy certificates
Petitioner submitted as part of a motion to supplement the record on
appeal (doc. 22, exhibit B), Sofia Builes Giraldo and Jose Abelardo Builes
died by homicide within about a week of each other. According to
Petitioner's affidavit submitted as part of the motion, his remaining
family in Columbia told him that they both died the same way, shot twice
in the head. Sofia was shot on her doorstep on October 24, 2001, and Jose
as he walked home on October 31, 2001.
On February 25, 2002, the BIA reversed the immigration judge's decision
and ordered removal, reasoning that Builes' cooperation after the offense
did not affect the serious nature of the crime, distribution of a
dangerous drug in large quantities. It therefore concluded that section
1231(b)(3)(B)(ii) precluded Petitioner from withholding of removal.
(Doc. 20, exhibit B, p. 3). The BIA also decided that Builes was not
entitled to relief under the CAT. It granted his motion to supplement the
record, treated as a motion to reopen, but ruled that the evidence did
not make his CAT claim meritorious because Petitioner did not show that
the Columbian government would consent to, or acquiesce in, his torture,
concluding that the government's inability to control the drug
traffickers was not sufficient and that there was no evidence that the
government willfully accepted the torture and death of those who testify
against drug traffickers. (Id., p.
3-4). The BIA reached this conclusion
while also finding that: (1) "the drug cartels bribe government
officials"; (2) the cartels "exert influence over . . . social,
political, and economic society;" and (3) "government officials are
powerless to stop the violence in society." (Id., p. 4).
One BIA member filed a concurring opinion in which he stated:
This is a troubling case. The respondent is a
convicted drug trafficker who cooperated with the
United States government. He has established that it
is more likely than not that he faces a gruesome,
tortuous death at the hands of drug interests in
Columbia. His brother and sister apparently were
murdered in Columbia. There is no serious contention
that the Columbian government will be able to protect
him from this fate. Yet, I must reluctantly agree with
the majority that the respondent is ineligible for
asylum and withholding of removal and does not qualify
for protection under the Convention Against Torture
("CAT") as we construed it in Matter of S-V-, Interim
Decision 3430 (BIA 2000).
Therefore, we appear to have no choice but to order
the respondent returned to his likely death in
(Id., concurring opinion, p. 1, 2).
On March 15, 2002, Petitioner filed this petition for a writ of habeas
corpus. Respondents were granted several extensions of time to file their
opposition because the parties were trying to resolve the case. However,
they could not do so and eventually Respondents filed their opposition on
September 30, 2002.
III. Standard of Review.
An alien subject to an INS order of removal can invoke section 2241 for
judicial review of the order. See INS v. St. Cyr, 533 U.S. 289, 121
S.Ct. 2271, 150 L.Ed.2d 347 (2001); Steele v. Blackman, 236 F.3d 130 (3d
Cir. 2001). However, section 2241 only "encompasses claims that one `is
in custody in violation of the Constitution or laws or treaties of the
United States'". 28 U.S.C. § 2241(c)(3). Hence, section 2241 is
limited to claims that the INS has violated the Constitution, see Xu
Cheng Liang v. INS, 206 F.3d 308 (3d Cir. 2000), cert. denied sub nom.,
Rodriguez v. INS, 533 U.S. 949, 121 S.Ct. 2590, 150 L.Ed.2d 749 (2001);
Sandoval v. Reno, 166 F.3d 225, 238 (3d Cir. 1999); Chmakov v. Blackman,
266 F.3d 210 (3d Cir. 2001), or that it has violated the statutory law
governing immigration, St. Cyr, supra, or its own regulations. See Lee
Moi Chong v. District Director, 264 F.3d 378 (3d Cir. 2001) (reviewing
the petitioner's constitutional, statutory, and regulatory claims
presented on habeas to the district court). In the latter two
circumstances, the claim must be one of statutory or regulatory error in
the sense that the INS based its decision on a misinterpretation of the
statute or regulation at issue. In other words, section 2241 is limited
to legal errors or pure questions of law; it cannot be used to assert a
claim that merely reargues the alien's position on the merits before the
INS. See generally, Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002)
("Federal courts . . . retain jurisdiction over habeas petitions brought
by aliens facing removal to the extent that those petitions are based on
colorable claims of legal error, that is, colorable claims that an
alien's statutory or constitutional rights have been violated.").
A. The Eighth Amendment Claim.
Petitioner asserts his removal would violate the Eighth Amendment. We
reject this claim. We acknowledge
Petitioner's contention that these are
extraordinary circumstances, but we believe the Eighth Amendment does not
apply here because removal proceedings are not criminal in nature. See
Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999).
B. The CAT Claim.
Petitioner contends the BIA erred in not withholding his removal under
the CAT, asserting that it imposed upon him a higher standard of proof
than required by the regulations implementing the CAT and the language of
the CAT itself. In his view, the BIA improperly required him to provide
proof of acquiescence by the Columbian government in a specific act of
torture that has not yet occurred, his future murder. He contends no
alien could ever provide this degree of specificity and, in fact, the CAT
and implementing regulations do not.
The pertinent regulations are as follows. Under
8 C.F.R. § 208.16(c)(2), Builes has the burden of proving that it "is
more likely than not" that he will be tortured (killed in Builes' case)
if removed to Columbia. Under 8 C.F.R. § 208.18(a)(1), the torture
must be accomplished "with the consent or acquiescence of a public
official or other person acting in an official capacity." Under
8 C.F.R. § 208.18(a)(7), "[a]cquiescence . . . requires that the
public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity."
Petitioner cites two treaty obligations. Under Art. 3, § 1, of the
CAT, no signatory country "shall expel, return . . . or extradite a
person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture." Under Art. 3,
§ 2, of the CAT, the BIA must "take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations
of human rights."*fn4
Petitioner argues that the treaty language does not require specific
proof of future torture, only "substantial grounds for believing" so,
based on "all relevant considerations including . . . a consistent
pattern" of human-rights violations. Hence, the BIA erroneously imposed on
him the duty of showing such direct evidence.
He also argues that the evidence of country conditions establish that
Columbia had acquiesced in his murder. He argues that acquiescence is
established when, as found by the BIA: (1) "the drug cartels `bribe
government officials' and `exert influence over the government'"; (2)
"the drug cartels perform acts of torture," and (3) "the `government
officials are powerless to stop the violence in society.'" (Petitioner's
memorandum of law in support of temporary restraining order, p. 9)
(citing BIA decision at p. 4). In accord with the treaty language, he
maintains that this generalized evidence is enough without having to show
"specific evidence of government complicity in acts that have yet to
occur." (Petitioner's reply brief at p. 18-19).
Moreover, he contends that a government that has been corrupted by
bribes and by fear cannot be considered as a single entity. Thus, even if
some members of the Columbian government are trying to enforce the law,
it has in effect been infiltrated and taken over by the drug cartels to
such an extent that the
actions of the drug traffickers become the
actions of the government, and it is thus the government that accepts the
cartel-inflicted torture. (Id. at p. 20).
In opposition, Respondents argue that we lack jurisdiction to entertain
Builes' CAT claim because the Foreign Affairs Reform and Restructuring
Act of 1998 (FARRA), Pub.L. No. 105-277, 112 Stat. 2681-822, the CAT's
implementing statute, in section 2242(d) preludes review of a CAT claim
except through a petition for review under 8 U.S.C. § 1252. In part,
they cite Diakite v. INS, 179 F.3d 553, 554 (7th Cir. 1999); Qian Ou Xian
v. INS, No. 4:CV-02-717 (M.D.Pa. July 8, 2002) (Muir, J.); and Muhammed
v. Ashcroft, No. 1:CV-02-1063 (M.D.Pa. Aug. 21, 2002) (Rambo, J.).
We disagree with Respondents' jurisdictional argument. As noted above,
we have jurisdiction under section 2241 for claims that the INS has
misinterpreted a statute or a regulation. Here, Builes argues that the
INS misinterpreted the CAT and the implementing regulations when, if they
are properly construed, the evidence the BIA accepted was sufficient to
meet their requirements.*fn5 This legal claim is cognizable under
section 2241, see Sulaiman v. Attorney General, 212 F. Supp.2d 413
(E.D.Pa. 2002) (reviewing legal claims of regulatory error under the
CAT); Julmiste v. Ashcroft, 212 F. Supp.2d 341 (D.N.J. 2002) (same);
Chinchilla-Jimenez v. INS, 226 F. Supp.2d 680, 683, (E.D.Pa. 2002), even
though a claim contesting the factual merits of a CAT claim would not, as
both Qian Ou Xian, supra, and Muhammed, supra, appear to be.
However, on the merits of the claim, we must agree with Respondents. We
do not believe that evidence of widespread bribery, corruption and
intimidation of government officials, or of the government's
powerlessness to prevent torture, satisfies Petitioner's burden of showing
acquiescence by the government in torture. As the Attorney General noted
in In re Y-L-, 23 I&N Dec. 270, 2002 WL 358818 (2002), acquiescence must
be more than the awareness by government officials of torture and their
inability to prevent it; they must willfully accept it, id. at 283, or at
least turn a blind eye. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 254
(5th Cir. 2002). Even if a substantial number of government officials are
corrupt, we cannot conclude that others in the government are failing to
resist such conduct.
Petitioner's problem is not that the INS has imposed a higher standard
than required by the CAT and its implementing regulations. The INS has
not required specific proof that Builes will be tortured. Instead, it has
noted that Builes had failed to show that the government would acquiesce
in his torture. In this light, Builes' problem is with the treaty
language, not the INS's interpretation of it.
We therefore reject the CAT claim.*fn6
C. The Substantive Due Process Claim.
Petitioner also claims that his removal to Columbia would violate his
right to substantive due process. For whatever reason, Respondents did
not oppose this
claim. Based on Petitioner's analysis, we conclude the claim has merit.
Builes relies on the state-created danger exception to the general rule
that the Due Process Clause imposes no obligation on the state to protect
an individual from harm inflicted by private parties. As stated by the
Third Circuit in Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996), the
exception has four elements. First, "the harm" must be "foreseeable and
fairly direct." Second, the state actors are acting "in willful disregard
for the safety of the plaintiff." Third, "there existed some relationship
between the state and the plaintiff." Finally, "the state actors used
their authority to create an opportunity that otherwise would not have
existed for the third party's crime to occur."
As Petitioner notes, the first element is clearly satisfied. Builes has
received threats on his life and the lives of his family from the
drug-trafficking organization. In fact, his brother and sister were
killed execution-style, probably as a result of his cooperation with
United States prosecutors.
Therefore, if Petitioner is removed to Columbia, his murder is
foreseeable and fairly direct.
The second element is also met. This element requires us to apply a
"shocks the conscience" test to the INS's actions. See Nicini v. Morra,
212 F.3d 798, 809-10 (3d Cir. 2000) (en banc); Brozusky v. Hanover
Township, 222 F. Supp.2d 606, 613-14 (M.D. Pa. 2002). In turn, because
the INS has had time to reflect on its decision to remove Petitioner
despite the sure danger to his life, we will examine its conduct under
the standard of deliberate indifference. Nicini, supra, 212 F.3d at
810-11. In part, an official is deliberately indifferent if he knows of
and disregards an excessive risk to the health or safety of an individual
under his control. Id. at 811. Here, the INS knows of the threat to
Builes' life. Hence, it is showing deliberate indifference in its
longstanding attempt to remove him.
The third element is satisfied as well because of the relationship
between the INS and the Petitioner. The INS is holding Builes in its
custody and control under its authority to detain aliens no longer
lawfully in the country; further, it intends to use that custody and
control to remove him to Columbia, where likely death awaits him.
The final element is also satisfied. Returning Petitioner to Columbia
creates an opportunity for the Columbian drug traffickers to kill
Petitioner that otherwise would not have existed.
We will therefore grant relief that prohibits the government from
removing Petitioner from the United States. Our decision is supported by
at least one other district court that granted relief under similar
circumstances. See Rosciano v. Sonchik, No. CIV 01-472-PHX-FJM (D.Ariz.
Sept. 10, 2002).
AND NOW, this 2nd day of January, 2003, it is ordered that:
1. The petition for a writ of habeas corpus is
2. Respondents shall release Petitioner, Jorge Yamel
Builes, from confinement.
3. Respondents and their agents are hereby permanently
enjoined from removing or deporting Petitioner to
Columbia or any other country.
4. The Clerk of Court shall close this file.