The opinion of the court was delivered by: William W. Caldwell, United States District Judge
Petitioner, Jorge Yamel Builes, a citizen of Columbia, has filed a
counseled petition for writ of habeas corpus under 28 U.S.C. § 2241,
contesting a final order of removal issued by the Immigration and
Naturalization Service (INS) deporting him to Columbia. The petition is
also styled as a civil rights complaint under 28 U.S.C. § 1983 for
injunctive relief. The INS initiated removal proceedings against Builes
after his conviction for conspiracy to distribute heroin.
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 ...