                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4678




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4678
                                     ___________

                             CARLOS JULIO MENDEZ,
                                              Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                               Agency No. A44 701 931
                        Immigration Judge: Frederic G. Leeds
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 6, 2009

          Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: January 14, 2009)

                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Carlos Julio Mendez petitions for review of an order of the Board of Immigration

Appeals (BIA), which affirmed the Immigration Judge’s (IJ’s) decision ordering his
removal and denying his application for deferral of removal under the United Nations

Convention Against Torture (CAT). For the reasons that follow, we will grant the

petition for review and remand for further proceedings.

       Mendez, a native and citizen of the Dominican Republic, entered the United States

illegally in 1988. He adjusted his status to permanent resident alien through his U.S.

citizen wife in 1993 or 1994. Mendez was later placed in removal proceedings because

he was convicted of a drug trafficking crime. At an immigration hearing, Mendez

claimed that the prosecutor and FBI told him he would not be deported if he cooperated.

Mendez conceded he was removable, but applied for relief under the CAT, claiming that

he would be detained and tortured in prison in the Dominican Republic, and that if he

were to be released from prison there, he would be tortured by Dominican citizens

(people “high up” in the military) who were family members of a person he testified

against in the United States.

       The IJ denied relief. The IJ noted that Mendez had not provided any proof that he

would be imprisoned if he were to be returned to the Dominican Republic. A.R. 20. The

IJ found that, in any event, to the extent he claimed he would be tortured due to prison

conditions in the Dominican Republic, that claim was foreclosed by this Court’s decision

in Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), as the conditions in Haiti described in

Auguste were not distinguishable from those reported in the United States Department of

State’s 2005 country report for the Dominican Republic. To the extent he was claiming



                                             2
he would be tortured by citizens in the Dominican Republic, the IJ stated that CAT relief

is not available for those who fear torture by individuals not part of the government, and

Mendez had not provided any proof that any individuals would be looking for him in the

Dominican Republic. A.R. 21.

       As to Mendez’s claim that the FBI had promised that he would not be deported,

the IJ found the only evidence backing Mendez’s claim was a statement in a judgment

entered by the United States District Court for the Southern District of New York, related

to a drug conviction in New York, which states: “In view of his cooperation with the

U.S. Attorney and danger facing him if deported as a result of his cooperation, the Court

recommends to the Immigration and Naturalization Service (INS) that the Defendant not

be deported.” A.R. 112.1 The IJ noted that this was just a recommendation, and that the

Department of Homeland Security had exercised its prosecutorial discretion and had

decided not to follow through on the recommendation. A.R. 24.

       The BIA dismissed Mendez’s appeal, agreeing with the IJ’s conclusion that

Mendez had not established that it was more likely than not that he would be detained and

intentionally tortured in the Dominican Republic as a criminal deportee. A.R. 2. The

BIA noted that the 2005 country report did not suggest that someone in Mendez’s




   1
    It appears that this is not the conviction with which Mendez was charged in the
Notice to Appear, as the Notice refers to a conviction in the United States District Court,
Northern District of Ohio. A.R. 226 (notice to appear); A.R. 116-22 (Judgment in Ohio
case).

                                             3
situation would be targeted by authorities in the Dominican Republic. Id. The BIA found

no merit to Mendez’s argument that the IJ erred by failing to honor his agreement with

the U.S. Attorney’s Office not to deport him. The BIA noted that there was no evidence

of such an agreement in the record, and stated, citing United States v. Igbonwa, 120 F.3d

437, 444 (3d Cir. 1997), that the recommendation by the federal sentencing judge in New

York was not binding on the Immigration Court. Mendez, proceeding pro se, filed a

timely petition for review with this Court.

       In his brief, Mendez argues that the Department of Homeland Security violated the

contract he had with the United States Attorney’s Office not to deport him. He also

argues that the BIA misapplied Auguste, as his situation is distinguishable. The

Government argues that we lack jurisdiction to consider Mendez’s claims because he was

convicted of an aggravated felony and he raises “no serious legal or Constitutional issue

with regard to his immigration proceedings . . . .” Respondent’s Brief at 8.

       Under section 242(a)(2)(C) of the Immigration and Nationality Act (INA) [8

U.S.C. § 1252(a)(2)(C)], we lack jurisdiction to review “any final order of removal

against an alien who is removable by reason of having committed,” inter alia, a controlled

substance violation covered in INA § 212(a)(2). However, the REAL ID Act of 2005

restored direct review of constitutional claims and questions of law presented in petitions

for review of final removal orders. See INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)];

Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Because Mendez has been



                                              4
convicted of a controlled substance violation, in our review we may consider only

constitutional issues, pure questions of law, and issues of application of law to

uncontested facts. See Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005).

“[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for

the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.”

Chen v. Ashcroft, 376 F. 3d 215, 222 (3d Cir. 2004).

       Mendez has presented legal questions for our review. Mendez claims that the BIA

erred in failing to honor a contract between him and the United States Attorney regarding

his removal, and he also argues that the BIA incorrectly applied the law to his CAT claim.

Because Mendez proceeds pro se, we will liberally construe the arguments in his brief.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

       Mendez’s CAT claim has essentially two components: first, that he will be

imprisoned upon his return to the Dominican Republic and that harsh conditions in prison

will constitute torture; and second, that Dominican authorities “will not protect me

against people I testified against when I testified on behalf of the United States to bring

about criminal convictions of Dominicans . . . .” Petitioner’s Br. at 2. As to the first

component, we agree with the IJ and BIA that the deplorable prison conditions in the

Dominican Republic do not amount to torture under the law. In Auguste, we held that

“for an act to constitute torture, there must be a showing that the actor had the intent to

commit the act as well as the intent to achieve the consequences of the act, namely the



                                              5
infliction of the severe pain and suffering.” 395 F.3d at 145-46. We do not agree with

Mendez’s assertion that he has proven that he would be imprisoned and that Dominican

authorities would “intentionally not use governmental resources to provide me with food

and other basic necessities.” See also, Pierre v. Attorney General, 528 F.3d 180, 190 (3d

Cir. 2008) (“[A] petitioner cannot obtain relief under the CAT unless he can show that his

prospective torturer will have the goal or purpose of inflicting severe pain or suffering.”).

       The IJ’s and BIA’s handling of the second component, however, appears to have

been based on an erroneous assumption that the decision by the Department of Homeland

Security to proceed with Mendez’s removal meant that a United States District Court’s

recommendation against removal could not be considered. The IJ, in his oral ruling

against Mendez, correctly stated that, “[t]o qualify for protection under the Convention

against Torture, ‘specific grounds must exist that indicate an individual will be personally

at risk[.]’” I.J. Ruling Tr. at 3, A.R. 17 (quoting Matter of S-V-, 22 I. & N. Dec. 1306,

1313 (B.I.A. 2000)). The IJ went on to say, however, that Mendez “has demonstrated no

such specific grounds.” Id. The IJ said that his decision against Mendez was not based

on any credibility determination, that it was instead based on “lack of proofs as to some of

the statements made by [Mendez.]” Id. Most of the IJ’s oral ruling bears on whether

conditions in a Dominican prison would amount to torture. However, turning to whether

Mendez would face anything amounting to torture outside of prison, the IJ referred to the

District Court’s recommendation against deportation, which undermines his “lack of



                                              6
proofs” comment.

       Perhaps through Mendez’s own fault, the IJ did not receive the District Court’s

sentencing statement until the day of the removal decision. I.J. Ruling Tr. at 9, A.R. 35.

Yet, rather than take the time to gather information regarding the District Court’s

extraordinarily pointed statement of risk, the IJ simply relied on the representation of the

government lawyer at the removal hearing to say, “[a]pparently this case has been in the

Immigration Courts now for almost four years[,]” and the government had tried to “flush

out [sic] this issue and make a determination of what recommendations the U.S. Attorney

had previously [made].” Id. The IJ then dismissed the District Court’s conclusion that

Mendez would be at serious risk if deported, saying, “[u]nfortunately for [Mendez], this

Court is only faced with an indication of a recommendation, and this is subject to

prosecutorial discretion, and not something that this Court would have the authority to

make a decision in relation to . . . .” Id. at 9-10, A.R. 35-36.

       There are at least two troublesome aspects to the IJ’s comments. First, they show a

marked misunderstanding of the seriousness of the District Court’s statement. Indeed, the

IJ seems to have been under the impression that the use of the word “recommends”

betrayed some lack of commitment in what the District Court was saying. See id. at 10,

A.R. 36 (“This Court finds also important to note that it just says recommendation.”).

But, the use of that word should not have carried any such connotation. On the contrary,

given the care with which district court judges typically make statements at a criminal



                                               7
sentencing, any statement that a defendant faced danger because of cooperation should

have been treated by the IJ with the utmost gravity.2 Moreover, the IJ could not

realistically have expected the District Court to frame its concern in any way other than as

a recommendation. Outside of the strict confines of a case and controversy over which it

has jurisdiction and in which all parties, including any government agencies, have been

heard, district courts do not presume to issue orders, so it is no surprise that it did not

enter an order against removal. It did only what it could do in the context of the case then

pending: it put its institutional weight behind a blunt assertion that, because Mendez

chose to cooperate with our government, he will be in real jeopardy if sent back to the

Dominican Republic.

       Second, and even more significantly, the IJ’s comments indicate that he believed

he could not give the District Court’s recommendation any weight at all because the

Department of Homeland Security had decided to proceed with removal. The IJ said,

“[t]he Department of Homeland Security, which has prosecutorial discretion, has chosen,

in light of their [sic] investigation up to this time[,] not to follow through in that manner

[meaning the District Court’s recommendation against removal], and so this Court is left



   2
     The IJ actually seemed inclined to take the District Court’s recommendation down a
notch by calling it “an indication of a recommendation,” as if it were something less than
a plainly worded recommendation against sending Mendez back to his home country. I.J.
Ruling Tr. at 9, A.R. 35. While extemporaneous remarks made during an oral ruling can
sometimes be less precise than a judge would make them in print, the IJ’s choice of words
does highlight what appears to be a lack of appreciation for the significance of the
statement with which he was confronted.

                                               8
only with deciding the Convention against Torture deferral claim.” Id. at 10, A.R. 36. If,

as it appears, the IJ was saying that he had no authority to consider the import of the

District Court’s recommendation because the Homeland Security Department wants

Mendez removed, he is wrong both as a matter of logic and as a matter of law.

       He is wrong as a matter of logic because being “left only with deciding the

Convention against Torture . . . claim” is exactly the charge that requires the IJ to look at

any “specific grounds . . . that indicate an individual will be personally at risk.” Matter of

S-V-, 22 I. & N. Dec. at 1313. The IJ explicitly recognized that at the outset of his

discussion. I.J. Ruling Tr. at 3, A.R. 29. It is hard to understand why the IJ did not

accept the direct statement of the District Court as a specific indication that Mendez is, or

at least was in 2002, personally at risk. To the extent that the IJ was implying some

distinction between torture and a more generalized risk of danger, it is a non-sequitur to

say one cannot look into evidence of danger because one is busy inquiring into risk of

torture. Torture is a subset of personal danger, and an inquiry into the latter may well

answer pertinent legal questions about the former.

       The IJ is also wrong as a matter of law because there is no legal principle that

requires a blind deferral to deportation decisions by the Department of Homeland

Security. On the contrary, “[a] decisionmaker must actually consider the evidence and

argument that a party presents.” Abdulai v Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)

(internal quotation marks and citation omitted). As Chief Judge Becker observed, our



                                              9
Court has suggested that immigration authorities deny an alien due process when they

“act as a mere rubber-stamp.” Id. at 549-50 (quoting Marincas v. Lewis, 92 F.3d 195,

202 n.7 (3d Cir. 1996)). In this case, the IJ was presented with evidence of a federal

court’s considered judgment about the risk Mendez faced if returned to the Dominican

Republic. The court record reflecting that sentencing recommendation, which was made

in the presence of Department of Justice lawyers and expressly invoked the involvement

of Department of Justice lawyers (i.e., “cooperation with the U.S. Attorney”), provides at

least an inference that some agreement was reached between Mendez and the Department

of Justice regarding a recommendation against removal. That is evidence that could have

and should have been considered, not ignored.

       The BIA adopted the erroneous approach of the IJ. In its order dismissing

Mendez’s appeal, it said, “[r]eview of the record reveals no evidence confirming . . . an

agreement” between the Department of Justice and Mendez respecting deportation. That,

of course, is true only if one is prepared to say that the District Court’s statement

constitutes “no evidence.” It may be that, after weighing that evidence, a fact-finder

would still say that Mendez had failed to establish the existence of an agreement, but it

cannot fairly be said that there was “no evidence.”

       In addition, the BIA missed the IJ’s improper refusal to consider the District

Court’s statement. The BIA said that, “[i]n any event, an Immigration Judge is not bound

by either an agreement with a government attorney or a recommendation from a court



                                              10
with respect to an alien’s deportation[,]” which is entirely correct but irrelevant, since the

IJ did not review the recommendation and reject it. Instead, the IJ declared, “this is

subject to prosecutorial discretion, and not something that this Court would have authority

to make a decision in relation to . . . .” I.J. Ruling Tr. at 9-10, A.R. 35-36. It is that

erroneous belief that he had no power to consider the evidence and make an independent

decision that requires us to remand this matter.

       We therefore grant Mendez’s petition for review and remand the case for

consideration of the District Court’s recommendation and its implications as evidence of

risk that may be pertinent to an analysis of Mendez’s CAT claim, evidence that should be

specifically addressed by our government. This pro se petitioner should be given an

additional opportunity to adduce further evidence, if he has any, with respect to the

agreement that he claims existed between him and the United States government. The

government ought also to willingly come forward with the information it has in this

regard,3 so that the IJ can consider it with greater care than was possible when the District

Court’s statement was handed to him at the last minute on the day of the removal hearing.

       For the foregoing reasons, we will grant the petition for review and remand for

further proceedings.




   3
     Of course, the Department of Homeland Security could make a record to overcome
the judicial recommendation. It obviously has a crucial role in assessing risks, and it has
access to expertise and information that a court may well lack in a given case.

                                               11
