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January 2, 2003


The opinion of the court was delivered by: William W. Caldwell, United States District Judge


I. Introduction.

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.

The petition makes the following three claims. First, Petitioner's removal to Columbia would violate his right to substantive due process because he will be killed by drug traffickers upon his return as a result of his cooperation with American 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 regulations.

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.

II. Background.

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 time. (Id.).

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.

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 ...

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