                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

Ford v. BICE
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3652




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Recommended Citation
"Ford v. BICE" (2005). 2005 Decisions. Paper 419.
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                                                  NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ____________

                        No. 04-3652
                       ____________

                  DEVON ORVILLE FORD,

                              Appellant

                               v.

 BUREAU OF IMMIGRATION & CUSTOMS ENFORCEMENT,
         Interim Field Office Director for Detention
          and Removal for the Philadelphia District
                  ____________________

      INITIALLY DOCKETED AS AN APPEAL FROM
         THE UNITED STATES DISTRICT COURT
     FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
       District Court Judge: Honorable Sylvia H. Rambo
            (D.C. Nos. 03-cv-01571 & 04-cv-01339)
                    (BIA No. A78-492-556)
                    ___________________

                    Argued: May 26, 2005


Before: SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges

               (Opinion Filed October 13, 2005)




                           IAN BRATLIE (ARGUED)
                           Pennsylvania Immigration Resource Center
                           50 Mount Zion Road
                           York, Pa. 17402
                                        Counsel for Petitioner
                                          LEE GELERNT (ARGUED)
                                          American Civil Liberties Union
                                          Immigrants’ Rights Project
                                          125 Broad Street
                                          17th Floor
                                          New York, N.Y. 10004-2400
                                                       Counsel for Amicus Curiae

                                          THOMAS A. MARINO
                                          DARYL F. BLOOM (ARGUED)
                                          Office of the United States Attorney
                                          Middle District of Pennsylvania
                                          228 Walnut Street, Suite 220
                                          Federal Building and Courthouse
                                          Harrisburg, Pa. 17108
                                                        Counsel for Respondent




                               OPINION OF THE COURT




PER CURIAM:

       Devon Ford appeals a District Court order denying his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Ford claims that the Board of Immigration Appeals

(“BIA”) deprived him of due process of law by using an unconstitutional standard to

determine whether his conviction for possession with intent to deliver cocaine was a

“particularly serious crime.” He also asserts that the final order of removal entered

against him was unlawful under Article 3 of the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S.

85, G.A. Res. 39/46, 39th Sess., U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51

(1984) (“Torture Convention”). We deny Ford’s petition. Because we write for the

                                            -2-
benefit of the parties, the background and lengthy procedural history of this matter are not

set out.

                                             I.

       The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, changed the

immigration laws in several ways relevant to our jurisdiction over Ford’s case. First, the

Act returned to the courts of appeals direct review jurisdiction over constitutional and

statutory questions in immigration cases. See Papageorgiou v. Gonzales, 413 F.3d 356,

357-58 (3d Cir. 2005). Because questions of constitutional and statutory law include the

BIA’s application of law to undisputed facts, see Ogbudimkpa v. Ashcroft, 342 F.3d 207,

222 (3d Cir. 2003), our jurisdiction now includes direct review of the BIA’s application

of law to facts. Second, the REAL ID Act made a petition for review the sole and

exclusive means of judicial review for all orders of removal except those issued pursuant

to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5) (1999 & Supp. 2005). Third, the Act

provided that all habeas petitions brought by aliens challenging removal (and all Torture

Convention claims in such petitions) that were pending before the district courts be

converted to petitions for review and transferred to the appropriate courts of appeals. See

REAL ID Act, Pub. L. 109-13, Div. B, Title I, § 106(c). We held recently that the

conversion requirement applies to habeas appeals pending before this Court. Bonhometre

v. Gonzales, - - - F.3d - - -, No. 04-2037, 2005 WL 1653641, at *2 (3d Cir. July 15,

2005). Thus, in accord with the REAL ID Act, we will treat this proceeding as a petition

for review.

                                             II.

                                             -3-
        Ford claims that the BIA deprived him of due process of law by using the Attorney

General’s decision in In re Y-L, A-G, R-S-R, 23 I. & N. Dec. 270 (A.G. 2002), to

determine whether his conviction was a “particularly serious crime.” Specifically, he

contends that In re Y-L ran afoul of Third Circuit precedent and exceeded the Attorney

General’s authority by allegedly establishing a per se rule under which all aliens who

have committed drug trafficking crimes are denied withholding of removal. We hold,

however, that there was no violation of our precedents under the particular facts of this

case.

         In Chong v. Dist. Dir., INS, 264 F.3d 378 (3d Cir. 2001), we held that due

process forbids the BIA from “blindly following a categorical rule” that “all drug

convictions qualify as ‘particularly serious crimes.’” 264 F.3d at 387 (citation omitted).

Rather, we concluded, when deciding whether an alien has committed a “particularly

serious crime,” the BIA must make an “individualized determination” by looking at the

specific facts of each alien’s case. Id.

        In re Y-L does not adopt a per se or “categorical” rule, but a rebuttable

presumption. In fact, In re Y-L concluded its discussion of “particularly serious crime[s]

with an unambiguous disavowal of the position that Ford ascribes to it. The Attorney

General expressly declined to establish a rule that all drug trafficking crimes are always

particularly serious crimes:

        Based on the preceding discussion, I might be well within my discretion to
        conclude that all drug trafficking offenses are per se “particularly serious crimes”
        under the INA. I do not consider it necessary, however, to exclude entirely the
        possibility of the very rare case where an alien may be able to demonstrate
        extraordinary and compelling circumstances that justify treating a particular drug

                                              -4-
        trafficking crime as falling short of that standard.

In re Y-L at 276 (footnote omitted). As the In re Y-L standard is a rebuttable

presumption, not a per se rule, it allows immigration judges and the BIA to comply with

Chong’s requirement of an individualized determination in each case. The holding in In

re Y-L was also within the Attorney General’s authority under 8 U.S.C. § 1231(b)(3)(B).

See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). While the invocation of In re Y-L is not necessarily enough to comply with

Chong, we are satisfied that there was a sufficiently individualized determination in this

case.

                                              III.

        The District Court concluded that in order to sustain the BIA’s rejection of Ford’s

Torture Convention claim, there had to be “at least some evidence” in the record

supporting the BIA’s application of law to facts. Id. Using this standard, the District

Court found that evidence existed to support the BIA’s decision. As noted above, Ford’s

appeal has been converted to a petition for review, but even under the “substantial

evidence” standard applicable in review proceedings, the BIA’s determination must be

sustained.

        Ford’s claim that it is more likely than not that he would be tortured in Jamaica

mostly draws support from two sources: his assumed notoriety in that country more than

13 years after his departure, and his interpretation of certain Amnesty International

Reports. However, Ford’s continuing notoriety after all this time is not obvious and

indisputable and neither is his interpretation of the Amnesty International Reports. Thus

                                              -5-
the BIA is correct that the reports submitted by Ford are of limited value in showing what

is likely to happen to him if he is removed. Given our deferential standard of review, we

must uphold the BIA’s application of the law to the facts found by the IJ.

       We have considered all of Ford’s arguments and find no ground for disturbing the

BIA’s decision. Ford has advanced a sympathetic case, but it is not our role to usurp the

authority of the BIA.

                                            IV.

       For the reasons set forth above, we deny Ford’s petition for review.




                                            -6-
