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


11-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3071




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                                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 04-3071


                                 TEFERI GELANEH,
                                     Appellant

                                            v.

   JOHN ASHCROFT, ATTORNEY GENERAL OF UNITED STATES AMERICA;
   TOM RIDGE, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
            MICHAEL D. GARCIA, Assistant Secretary of the Bureau of
     Immigration and Customs Enforcement (BICE); MATT JACK, Interim District
       Director of the Bureau of Immigration and Customs Enforcement (BICE)




                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 03-CV-2231)
                  District Judge: The Honorable Dennis M. Cavanaugh
                                     ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2005


                    Before: SLOVITER and FISHER, Circuit Judges.
                             and POLLAK,* District Judge.

                             (FILED: November 14, 2005)




      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.

                                            1
                               OPINION OF THE COURT

_______________
POLLAK, District Judge.

       Teferi Gelaneh is challenging a ruling of an Immigration Judge (“IJ”), affirmed by

the Board of Immigration Appeals (“BIA”), which directs Gelaneh’s removal. Gelaneh is

now before us on appeal from a judgment of the United States District Court for the

District of New Jersey, which dismissed, for lack of jurisdiction, his habeas corpus

petition. For the reasons which follow, we convert the instant appeal from the District

Court's denial of Gelaneh’s habeas petition into a petition for review, but conclude his

petition for review must be denied.




                                             I

       Gelaneh is a native of Ethiopia and a lawful permanent resident who is currently

separated from his American citizen wife, and who has two citizen children. On May 27,

1998, Gelaneh was convicted in a Pennsylvania court (the Court of Common Pleas of

Lehigh County) of possessing a controlled substance – namely, cocaine – with intent to

deliver, in violation of Pa. Stat. Ann. § 780.113(a)(30), and was sentenced to five years’

probation. Five days later, on June 1, 1998, the Immigration and Nationalization Service

(“INS”) arrested Gelaneh and instituted removal proceedings.1 He was charged with



       1
      The INS has since been dissolved and its functions absorbed into the new
Department of Homeland Security in 2003.

                                             2
being subject to removal pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. §

1227(a)(2)(A)(iii) (conviction of an aggravated felony), and INA § 237(a)(2)(B)(I), 8

U.S.C. § 1227(a)(2)(A)(iii) (conviction of a controlled substances offense). After nine

days of detention, Gelaneh, on June 10, 1998, was released on bail on posting a bond of

$7,000.2

       On April 8, 1999, the IJ ruled that Gelaneh’s offense did not constitute a

“particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii), and that Gelaneh was thus

eligible to apply for withholding of removal pursuant to § 1231(b)(3)(A). Section

1231(b)(3)(A) bars the Attorney General from “remov[ing] an alien to a country if the

Attorney General decides that the alien's life or freedom would be threatened in that

country because of the alien's race, religion, nationality, membership in a particular social

group, or political opinion.” Section 1231(b)(3)(B), however, contains an exception

authorizing removal if the alien is found by the Attorney General to have “been convicted

by a final judgment of a particularly serious crime,”and who is thus “a danger to the

community of the United States.” Gelaneh also applied for relief under Article 3 of the

Convention Against Torture (“CAT”),3 eligibility for which does not depend on the


       2
      Gelaneh contends, and the government does not dispute, that he has complied
completely with his bail conditions.
       3
        Article 3, section 1 of CAT states: “No State Party shall expel, return (‘refouler’)
or extradite a person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.”
       This provision has been incorporated into United States law under the Foreign
Affairs Reform and Restructuring Act of 1998: “It shall be the policy of the United States

                                              3
gravity of the alien’s conviction. After hearing testimony, the IJ found that Gelaneh had

not met his burden of proving that he would face persecution (the necessary predicate for

§ 1231(b)(A) relief) or torture (the necessary predicate for CAT relief) upon his return to

Ethiopia. The IJ thus denied both claims for relief, and ordered that Gelaneh be removed

to Ethiopia.

       Gelaneh filed a timely appeal with the BIA, which affirmed the IJ’s result on April

18, 2003. In affirming the IJ’s ultimate determination, the BIA, however, rejected the IJ’s

conclusion that Gelaneh’s drug conviction is not a “particularly serious crime.” Instead,

the BIA found that, under Matter of Y-L-, 23 I & N Dec. 270 (A.G. 2002), Gelaneh’s drug

conviction presumptively constituted a “particularly serious crime,” and thus rendered

him ineligible for withholding of removal under § 1231(b)(3)(A). Regarding the CAT

claim, the BIA agreed with the IJ that Gelaneh had not met his burden of establishing that

it was more likely than not that he would be tortured were he returned to Ethiopia, see 8

C.F.R. § 1208.17. The BIA thus dismissed Gelaneh’s appeal, thereby rendering final his

deportation order.

       On May 15, 2003, Gelaneh filed a petition for habeas corpus, pursuant to 28

U.S.C. § 2241, seeking review of the BIA’s decision, and on June 18, 2004, the District



not to expel, extradite, or otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for believing the person would be in
danger of being subjected to torture, regardless of whether the person is physically
present in the United States.” Pub. L. No. 105-227, Div. G., Title XXII, § 2242, 112 Stat.
2681, 2681-822, codified as note to 8 U.S.C. § 1231.

                                             4
Court dismissed Gelaneh’s petition. The District Court found that Gelaneh, having been

released from INS detention on bail at the time he filed his § 2241 habeas petition, could

not satisfy the jurisdictional requirement of § 2241 that a petitioner be “in custody.” 4 The

District Court also found an alternate bar, which it characterized as jurisdictional, to



       4
           28 U.S.C. § 2241(c) provides:

                The writ of habeas corpus shall not extend to a prisoner unless –

                       (1) He is in custody under or by color of the authority of the
                       United States or is committed for trial before some court
                       thereof; or

                       (2) He is in custody for an act done or omitted in pursuance of
                       an Act of Congress, or an order, process, judgment or decree
                       of a court or judge of the United States; or

                       (3) He is in custody in violation of the Constitution or laws or
                       treaties of the United States; or

                       (4) He, being a citizen of a foreign state and domiciled therein
                       is in custody for an act done or omitted under any alleged
                       right, title, authority, privilege, protection, or exemption
                       claimed under the commission, order or sanction of any
                       foreign state, or under color thereof, the validity and effect of
                       which depend upon the law of nations; or

                       (5) It is necessary to bring him into court to testify or for trial.

Other courts have found that the institution of removal proceedings, with its
attendant constraints, is equatable with “custody,” whether or not the respondent is
incarcerated at the time of filing the § 2241 petition. See, e.g., Simmonds v. INS,
326 F.3d 351, 354 (2d Cir. 2003); Mustata v. United States, 179 F.3d 1017, 1022
n. 4 (6th Cir. 1999); Nakaranurack v. United States, 68 F.3d 290 (9th Cir. 1995);
Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994), cert. denied, 513
U.S. 1086 (1995).

                                                 5
Gelaneh’s petition, concluding that the petition raised challenges solely to the BIA’s

factual or discretionary determinations, and that such challenges were not cognizable

under § 2241.

         This timely appeal followed.




                                             II

         The REAL ID Act, which became law on May 11, 2005, amended 8 U.S.C. § 1252

so that petitions for review filed with the court of appeals are the “sole and exclusive

means for judicial review of” most orders of removal, including the order of removal at

issue here. See 8 U.S.C. § 1252(a)(5) (1999 & Supp. 2005); Bonhometre v. Gonzales,

414 F.3d 442, 445 (3d Cir. 2005). “In so doing, the Act expressly eliminated district

courts’ habeas jurisdiction over removal orders.” Jordan v. Attorney General of the

United States, 2005 WL 2334686, at *4 (3d Cir. Sept. 26, 2005); see also Bonhometre,

414 F.3d at 445; Kamara v. Attorney General of the United States, 420 F.3d 202 (3d Cir.

2005).

         Further, “[w]e have also acknowledged that Congress left no doubt that the REAL

ID Act's changes to § 1252(a)(2)(D) would be retroactive.” Jordan, 2005 WL 2334686,

at *4. Consequently, “those habeas petitions that were pending before this Court on the

effective date of the REAL ID Act are properly converted to petitions for review and

retained by this Court.” See REAL ID Act § 106(c); Bonhometre, 414 F.3d at 446. In


                                              6
converting petitioner’s habeas petition into a petition for review, we vacate the District

Court’s decision denying habeas relief, and address the merits of Gelaneh's claims as if

they had been raised in a petition for review before us in the first instance. See Jordan,

2005 WL 2334686, at *4; Bonhometre, 414 F.3d at 446-47; Kamara, 420 F.3d at 210.

Necessarily, “[t]his approach . . . obviates the question of whether [the petitioner] was ‘in

custody’ for purposes of § 2241” and is therefore “a jurisdictional inquiry no longer

relevant to our analysis here.” Jordan, 2005 WL 2334686, at *5.

       Despite the conversion of this appeal from a habeas petition into a petition for

review, our scope of review remains the same. See Bonhometre, 414 F.3d at 446;

Kamara, 420 F.3d at 210. Thus, examining Gelaneh’s claims, “we 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.” Kamara, 420 F.3d at 210 (internal citations

and quotation marks omitted). While we review the BIA’s legal determinations de novo,

we afford Chevron deference to the BIA’s reasonable interpretations of immigration

regulations. Id.




                                             III

       Before the IJ and BIA, Gelaneh had sought two forms of relief – deferral of

removal pursuant to the CAT, and withholding of removal pursuant to 8 U.S.C. §

1231(b)(3)(A). We conclude that the BIA properly applied the law to the facts of this

                                              7
case when it denied Gelaneh’s CAT claim. We also review Gelaneh’s § 1231(b)(3)(A)

claim of withholding of removal, but believe this claim too fails because Gelaneh was not

prejudiced by certain deficiencies in the BIA’s opinion.

                                              A

       In determining that Gelaneh was not eligible for relief under the CAT, the BIA

stated the correct legal standard, which required Gelaneh to prove that it was more likely

than not that he would be tortured were he returned to Ethiopia, see 8 C.F.R.

§1208.16(c)(4) (“If the immigration judge determines that the alien is more likely than not

to be tortured in the country of removal, the alien is entitled to protection under the

Convention Against Torture”). Moreover, we agree with the BIA’s application of this

standard to the IJ’s finding that Gelaneh gave “incredible” testimony and failed to provide

any supporting documents establishing his identity. When – as here – the lack of

credibility goes to the heart of the alien’s claim that he will be more likely than not be

tortured if returned to his home country, denial of eligibility for relief under the CAT is

appropriate. Accordingly, the BIA’s determination that Gelaneh is ineligible for relief

under the CAT is sustained.

                                              B

       Withholding of removal is not available to the alien who has been convicted of a

“particularly serious crime,” § 1231(b)(3)(B)(ii), a category that includes all aggravated

felonies for which the alien was sentenced to imprisonment for five or more years, §

                                              8
1231(b)(3)(B)(iv), as well as those crimes that the Attorney General deems to be

particularly serious “notwithstanding the length of sentence imposed,” id. The decision

as to whether a crime is “particularly serious” is thus committed to the discretion of the

Attorney General. See generally § 1231(b)(3)(B).

       In Matter of Y-L-, 23 I & N Dec. 270 (AG 2002), the Attorney General exercised

the discretion afforded him under § 1231(b)(3)(B) and ruled that “[a]ggravated felonies

involving unlawful trafficking in controlled substances presumptively constitute

‘particularly serious crimes’ within the meaning of . . . 8 U.S.C. § 1231(b)(3)(B) (2000).”

Id. at 270. The presumption would be rebutted “only under the most extenuating

circumstances that are both extraordinary and compelling.” Id. The Attorney General

went on to enumerate six such circumstances: “(I) a very small quantity of controlled

substance; (2) a very modest amount of money paid for the drugs in the offending

transaction; (3) merely peripheral involvement by the alien in the criminal activity,

transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit

or otherwise, associated with the offense; (5) the absence of any organized crime or

terrorist organization involvement, direct or indirect, in relation to the offending activity;

and (6) the absence of any adverse or harmful effect of the activity or transaction on

juveniles.” In re Y-L-, 23 I. & N. Dec. 276-77. The Attorney General then stated that only

if all of these circumstances were present “would it be appropriate to consider whether

other, more unusual circumstances (e.g., the prospective distribution was solely for social


                                               9
purposes, rather than for profit) might justify departure from the default interpretation that

drug trafficking felonies are ‘particularly serious crimes.’” Id. at 277.

       In the case at bar, the BIA in three sentences summarily reversed the IJ’s

determination that Gelaneh’s offense was not a particularly serious crime:

       It is undisputed that [Gelaneh] has been convicted of a drug trafficking
       crime. Subsequent to the Immigration Judge’s decision, the Attorney
       General has issued a decision finding that such crimes presumptively
       constitute “particularly serious crimes” within the meaning of section
       241(b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. §
       1231(b)(3)(B). Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002) overruling
       Matter of S-S-, 22 I&N Dec. 458 (BIA 1999). [Gelaneh] is therefore
       subject to a mandatory bar to a grant of withholding of removal because he
       has been convicted of a particularly serious crime. Section 241(b)(3)(B) of
       the Act; 8 C.F.R. § 1208.16(d)(2).

J.A. at 21. Thus, even though Y-L- created a presumption, and not a per se rule, that drug

trafficking offenses constitute “particularly serious crimes,” the BIA automatically

concluded that Gelaneh’s offense fell within the presumption. However, to comply with

due process when deciding whether a criminal alien has committed a “particularly

serious” crime, the Board must make an individualized determination, “rather than blindly

following a categorical rule, i.e., that all drug convictions qualify as ‘particularly serious

crimes.’” Chong v. Quarantillo, 264 F.3d 378, 387 (3d Cir. 2001) (quoting Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)).5 Therefore, where, as here, the petitioner



       5
        Indeed, the Attorney General explained his decision to characterize drug offenses
as presumptively, rather than per se, “particularly serious crimes” by citing to Chong for
the proposition that “that the application of ‘per se’ determinations is legally

                                              10
challenges not the result of a discretionary determination but the process by which that

determination is made, we are not barred from reviewing his claim.

       To provide Gelaneh with an individualized determination, the BIA was required to

determine whether the six potentially extenuating circumstances enumerated in Matter of

Y-L- existed in his case. There is no evidence that the BIA did so here. As described

above, the BIA simply noted the presumption of seriousness, and then summarily applied

the presumption to Gelaneh’s offense. To be sure, “[t]he Board is not required to write an

exegesis on every contention, but only to show that it has reviewed the record and grasped

the movant's claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002). Here,

however, the Board did not demonstrate that it was even aware of exceptions to the

presumption of seriousness announced in Y-L, let alone that it had determined that

Gelaneh’s offense did not constitute such an exception. When the Board treats a

rebuttable presumption as an irrebuttable per se rule, it fails to provide the individualized

determination that due process requires.

       But there can be “no due process violation in the absence of prejudice.” Wilson v.

Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). Thus, to prevail on this petition for review,

Gelaneh must show that the BIA likely would have reached a different result had the BIA

attempted to address the presumption in proper fashion. Gelaneh has, however, proffered

nothing to suggest that ampler BIA inquiry would have led the BIA to conclude that the


questionable.” Y-L-, 23 I & N Dec. at 274 n.12.

                                             11
circumstances of Gelaneh’s crime would have satisfied the six Y-L- factors. Gelaneh

avers that he was found with 21 grams of cocaine when he was arrested; the police report

stated that it was 41 grams. Either amount would appear to be too substantial to qualify

as “a very small quantity” as is required under the first Y-L- factor. See, e.g., U.S.S.G. §

2D1.1(c) (specifying 10-16 months imprisonment for a defendant convicted of trafficking

25 grams or less of cocaine if that defendant, like Gelaneh, has no prior criminal history).6

Further, Gelaneh was apprehended in the course of buying drugs with marked bills given

to him by a confidential informant. He later told the police that he had been involved in

three prior drug sales. Thus, it would have been unlikely that the BIA would have

concluded that Gelaneh’s involvement in the drug transactions was “merely peripheral” as

is required under the third Y-L- factor. In short, with respect to at least two of the six

factors, it is highly improbable that more careful BIA scrutiny would have led the BIA to

find Gelaneh’s position meritorious – and Gelaneh would have needed to prevail on all

six factors in order merely to cross the threshold of eligibility for withholding of removal.

       Finally, even if the BIA had ultimately concluded that Gelaneh’s crime was not

“particularly serious,” it could have found Gelaneh eligible for withholding of relief only

if it had disagreed with the IJ’s ruling that Gelaneh did not establish a “clear probability”

of persecution in Ethiopia, INS v. Stevic, 467 U.S. 407, 413 (1984). Gelaneh presented


       6
        Gelaneh’s pre-sentence report stated that, “given the amount of the drug that was
confiscated in the arrest,” the Pennsylvania sentencing guidelines “clearly stipulate a
period of incarceration.”

                                              12
the same evidence to support his § 1231(b)(3)(A) and CAT claims, and the IJ determined

that this evidence was insufficient to meet Gelaneh’s burden of proof for either claim.

Thus, the IJ concluded that Gelaneh’s “incredible testimony and the absence of any

supporting documents establishing his identity (when he had ample opportunity to obtain

them) leaves this court no choice but to deny his applications for withholding of removal

and relief under the Torture Convention.” J.A. at 35.

       In addressing the IJ’s denial of Gelaneh’s CAT claim, the BIA was required to

review, and did review, the very same evidence that the IJ relied upon to deny Gelaneh’s

§ 1231(b)(3)(A) claim, and the BIA found that evidence wanting. See J.A. at 21 (“The

testimony of the respondent and his witnesses, when assessed against the background and

other documentary evidence in the record, is inadequate to meet the stringent burden of

proving that it is more likely than not that he will face torture if returned to Ethiopia.”).

The burden of establishing a risk of future torture is more stringent than is the burden of

establishing a risk of future persecution. Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.

2003). Since Gelaneh presented the same evidence in support of both claims for relief, it

is hardly likely that the BIA would have found that Gelaneh had failed to establish a clear

probability of persecution but had succeeded in establishing a clear probability of torture.

       In short, the record in this case forecloses the possibility that the BIA, on ampler

review of Gelaneh’s claims, would have granted Gelaneh relief under § 1231(b)(3)(A).

Accordingly, while the BIA ought to have been more thorough in addressing the question


                                              13
whether Gelaneh’s offense of possessing cocaine with intent to distribute was a

“particularly serious” crime, we cannot say that Gelaneh was prejudiced as a result of the

deficiencies in the BIA’s opinion.




                                        Conclusion

       Our review of the record establishes that, although the BIA’s treatment of one

aspect of Gelaneh’s appeal gave rather short shrift to due process, Gelaneh has failed to

demonstrate resultant prejudice. Accordingly, Gelaneh’s petition for review is denied.




                                            14
