                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2007

Chung v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2200




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"Chung v. Atty Gen USA" (2007). 2007 Decisions. Paper 948.
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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                    Case No: 06-2200

                                    EDWARD CHUNG,
                                          Petitioner

                                              v.

                    ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent



       On Petition for Review of Final Decision of the Board of Immigration Appeals
                                  BIA No. A36-360-060
                          Immigration Judge: Hon. Walt Durling


                       Submitted under Third Circuit LAR 34.1(a)
                                     June 7, 2007

                BEFORE: SMITH and GREENBERG, Circuit Judges, and
                            POLLAK,* District Judge

                                  (Filed: June 13, 2007)


                                        OPINION




SMITH, Circuit Judge.




   *
   Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
       Edward Chung is a native and citizen of Guyana. He entered the United States on

November 12, 1977. Chung had four children in the United States and became a legal

permanent resident. Chung testified that he returned to Guyana in 1978 to get married,

but has otherwise had no contact with Guyana since his arrival in the United States.

       On November 1, 2004, Chung was indicted in the United States District Court for

the District of New Hampshire on five counts of distributing cocaine base. Chung pled

guilty to all five counts. The District Court sentenced him to thirty-seven months’

confinement, three years of supervised release, and a $500 assessment.

       The Department of Homeland Security charged Chung with removability due to

his conviction for an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii), and for illicit

trafficking in a controlled substance. Id. at § 1227(a)(2)(B)(i). Chung conceded

removability and sought protection under the Convention Against Torture (“CAT”),

claiming that criminal deportees to Guyana were routinely held indefinitely or targeted by

death squads.

       On November 7, 2005, an immigration judge (“IJ”) denied Chung’s claim for

relief under the CAT and ordered him removed to Guyana. The Board of Immigration

Appeals (“BIA”) adopted and affirmed the IJ’s decision.

       Chung testified that many criminal deportees are tortured or murdered upon their

return to Guyana. Chung stated that returning criminal deportees are monitored and their

pictures are placed in newspapers. Chung claimed that it was “possible” that he would be

targeted by death squads if he was removed to Guyana, although he did not know of

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anyone who had been killed after deportation. Chung testified that before deportees are

released, someone must sign for them. As Chung has no family in Guyana, he claimed

that he could be detained indefinitely and tortured, particularly if his captors felt that they

could extract money from him.

       We generally have jurisdiction over petitions to review final orders of removal. 8

U.S.C. § 1252. However, Chung has committed an aggravated felony within the meaning

of 8 U.S.C. § 1227(a)(2)(A)(iii). Therefore, we may only “review constitutional claims

and questions of law [which] includes review of the BIA’s application of law to

undisputed fact.” Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006) (internal citation

omitted); see Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005) (“[W]e are

limited to pure questions of law and to issues of application of law to fact, where the facts

are undisputed and not the subject of challenge.” (internal citations and quotations marks

omitted)).

       We held in Kamara v. Attorney General that we could reach the merits of an

aggravated felon’s CAT claim when “[t]he BIA’s erroneous application of the regulations

is evident in its opinion.” 420 F.3d at 214. In Kamara, the IJ granted CAT relief but was

then overturned by the BIA. Id. at 213-14. The IJ’s findings of fact were undisputed. Id.

However, we vacated the BIA’s decision as they had improperly applied to the stipulated

facts the requirement that the petitioner show that “it is more likely than not that he faces

torture by a public official” to establish a claim for relief under the CAT. Id. at 213. We

also reached the merits of a CAT claim made by a criminal deportee to Haiti because

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“[t]he question [there] involve[d] not disputed facts but whether the facts, even when

accepted as true, sufficiently demonstrate[d] that it [was] more likely than not that she

will be subject to persecution or torture upon removal to Haiti.” Toussaint v. Attorney

General, 455 F.3d 409, 412 (3d Cir. 2006).

       It is apparent from Chung’s brief, which did not address the jurisdictional issue,

that he is challenging the IJ’s factual determinations. Chung alleged that he would be

held indefinitely upon his return to Guyana because he has no family there to sign for him

and effect his release. The IJ found, however, that Chung had failed to meet his burden to

establish this fact, as “it is not quantifiable from the evidence that he is likely to be

detained for any length of time other than for airport processing upon his arrival.” The IJ

made a similar finding with respect to Chung’s argument that he would be targeted by

death squads. Chung also contended that returning criminal deportees were targeted and

detained indefinitely because they had committed crimes in other countries. The IJ found

the record did not support this contention. The IJ allowed that both indefinite detention

and targeted murder may occur, but were linked to criminal activity by deportees after

their return.

       These disputed issues of fact lie beyond our jurisdiction, unlike the questions of

law, and of law applied to undisputed fact, in Toussaint and Kamara.

       Chung also alleges that the BIA violated his rights to due process by erroneously

attributing conclusions of fact to the IJ and by citing “inapplicable law.” The BIA did

neither. The BIA’s statements that the death squads were acting outside the scope of

                                               4
government authority and that targeting was linked to ongoing criminal activity are both

supported by the IJ’s findings. The Board’s citations to their own and to our precedents

were appropriate and relevant. Chung understandably disagrees with the BIA’s

conclusion, but “the question for due process purposes is not whether the BIA reached the

correct decision; rather, it is simply whether the Board made an individualized

determination of [Chung’s] interests.” Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.

2001). The BIA did not violate Chung’s due process rights because it relied only on facts

found by the IJ, gave him the opportunity to present arguments on his behalf, and

examined his individual claim. See id. at 549.

      We will deny the petition for review.




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