G-K-, 26 I&N Dec. 88 (BIA 2013)

Cite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
88
Matter of G-K-, Respondent
Decided January 30, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15,
2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of
transnational organized crime from retaliation and intimidation, does not provide an
independent basis for relief from removal in immigration proceedings.
(2) The objectives of the UNTOC are advanced in the United States through existing
immigration laws and regulations, including the S, T, and U nonimmigrant visas and the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,
1987; for the United States Apr. 18, 1988).
(3) The Board of Immigration Appeals and the Immigration Judges do not have the
authority to rule on the constitutionality of the statutes they administer and therefore lack
jurisdiction to address a claim that the statute barring relief for particularly serious crimes
is void for vagueness.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Kansas City, Missouri
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated October 4, 2011, an Immigration Judge found the
respondent removable under sections 237(a)(2)(A)(iii) and (B)(i) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i)
(2006), as an alien convicted of an aggravated felony and a controlled
substance violation. The Immigration Judge denied the respondent’s
applications for asylum, withholding of removal under section 241(b)(3)(A)
of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006), and protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). The Immigration Judge alsoCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
89
found that she lacked jurisdiction to adjudicate the respondent’s claim that he
should be allowed to remain in the United States pursuant to the United
Nations Convention Against Transnational Organized Crime, Nov. 15, 2000,
2225 U.N.T.S. 209, http://www.unodc.org/unodc/en/treaties/CTOC/index.html
(“UNTOC”). The respondent has appealed from the Immigration Judge’s
decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Ghana whose status was adjusted
to that of a lawful permanent resident on January 15, 2000. On May 11, 2010,
he was convicted of conspiracy to distribute and possess with intent
to distribute at least a kilogram of heroin in violation of 21 U.S.C.
§§ 841(b)(1)(A)(i) and 846 (2006).
The respondent was subsequently placed in removal proceedings. He
requested relief from removal based on his claim that he faces harm upon his
return to Ghana because he cooperated with United States authorities by
agreeing to testify against his coconspirators, one of whom was reportedly a
member of the Ghanaian Parliament at the time of his 2006 arrest. Both
coconspirators were convicted and sentenced for their involvement in a heroin
trafficking scheme. One has since returned to Ghana, while the other is still
serving his 10-year prison sentence in the United States.
The respondent claimed that his role in the Parliament member’s
prosecution in the United States is known to the Ghanaian community in the
United States and in Ghana. According to the respondent, he received two
threatening phone calls and numerous “hang-up calls” in 2005 and heard from
a neighbor and two friends that individuals described as “Ghanaians” or
“Africans” were inquiring about him in 2005 and 2006. The respondent
further testified that his family members in Ghana were approached by
strangers asking about his whereabouts. He also stated that in 2009 his
nephew in Ghana was severely beaten by a group of men. Further, the
respondent’s United States citizen wife testified to receiving phone calls that
caused her concern. After the respondent was placed in the custody of the
Department of Homeland Security (“DHS”), she received phone calls from
individuals who were looking for the respondent, twice in 2010 and once in
2011. Another call in 2010 was from a woman who offered to assist the
respondent with his immigration problems.
The Immigration Judge denied the respondent’s requests for relief from
removal and ordered him removed to Ghana. Specifically, she found that she
had no authority to craft or adjudicate an independent remedy under the
UNTOC; that the respondent was statutorily barred from asylum and
withholding of removal under the Act; and that the respondent, while credible,Cite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
1 A third Protocol, which was adopted on May 31, 2001, and entered into force on July 3,
2005, relates to the illicit manufacturing of and trafficking in firearms.
90
did not satisfy his burden of proof for protection under the Convention Against
Torture. The respondent argues on appeal that the Immigration Judge erred in
denying him relief under the UNTOC, withholding of removal under the Act,
and protection under the Convention Against Torture. We disagree.
II. ANALYSIS
A. United Nations Convention Against Transnational Organized Crime
and the Protocols
The respondent claims that he is entitled to remain in the United States
pursuant to the UNTOC because he cooperated and agreed to testify against
his coconspirators regarding their heroin trafficking scheme, in which he also
took part. In making this argument, he relies on the decision of the United
States Court of Appeals for the Third Circuit in Rranci v. U.S. Attorney
General, 540 F.3d 165 (3d Cir. 2008). However, the Third Circuit did not
hold that the UNTOC independently provided aliens relief that can be pursued
in removal proceedings. Rather, the court remanded the case to the Board to
determine how United States law complies with the relevant provisions of the
UNTOC. Id. at 178.
The UNTOC and two supplementary protocols were signed by the
United States on December 13, 2000, and were ratified on November 3, 2005.
Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2241
U.N.T.S. 507 (entered into force Jan. 28, 2004) (“Smuggling Protocol”);
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, 2237 U.N.T.S. 319 (entered into force Dec. 25, 2003)
(“Trafficking Protocol”).1 The stated purpose of the treaty “is to promote
cooperation to prevent and combat transnational organized crime effectively.”
UNTOC art. 1. The UNTOC and the Protocols obligate each signatory to
“take appropriate measures within its means to provide effective protection
from potential retaliation or intimidation for witnesses in criminal proceedings
who give testimony concerning offences covered by [the UNTOC].” UNTOC
art. 24(1). Individuals covered by the UNTOC and the Protocols include
smuggled migrants, trafficking victims, and witnesses in criminal proceedings
who give testimony concerning criminal offenses covered by the UNTOC.
As noted by the Third Circuit in Rranci, 540 F.3d at 178, a 2004 letter of
transmittal from President George W. Bush to the Senate stated that current
United States law already complies with the UNTOC, obviating the need forCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
2 The President’s transmittal letter included statements of reservations and understandings
regarding ratification, which are detailed in the submittal letter to the President from the
Secretary of State. For example, the submittal letter states that Federal criminal law “serves
as the principal legal regime within the United States for combating organized crime, and
is broadly effective for this purpose,” but it also noted that, based on principles of
federalism, both Federal and State laws must be taken into consideration in complying with
treaty obligations. See S. Treaty Doc. 108-16, at 7. Further, the submittal letter notes that
two articles of the UNTOC, which concern extradition for criminal offenses and mutual
legal assistance between nations in investigations and prosecutions, “would be considered
self-executing in the context of normal bilateral extradition practice.” Id. at 18. However,
these provisions of the UNTOC are not relevant to the issues in this case.
91
any implementing legislation. In an accompanying letter of submittal to the
President, Secretary of State Colin Powell indicated that Article 24 of the
UNTOC, which accords protection to witnesses in criminal proceedings, can
be implemented through current criminal statutes and regulations governing
the protection of witnesses, a process over which neither the Immigration
Judge nor the Board has jurisdiction. See S. Treaty Doc. No. 108-16 (2004),
http://www.gpo.gov/fdsys/pkg/CDOC-108tdoc16/content-detail.html.
2
In the context of immigration law, the objectives of the UNTOC
concerning the protection of witnesses and trafficking victims are advanced
through existing statutes. See, e.g., William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044;
Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No.
109-164, 119 Stat. 3558; Trafficking Victims Protection Reauthorization
Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875; Victims of Trafficking
and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464
(“VTVPA”); see also Hearing on Law Enforcement Treaties Before the
S. Comm. on Foreign Relations, 108th Cong. 9-12 (2004) (statement of
Samuel M. Witten, Deputy Legal Adviser, U.S. Dep’t of State). More
specifically, the immigration laws and regulations offer certain aliens who are
victims of—and cooperators, informants, or witnesses against—human
trafficking or a criminal organization eligibility for S, T, or U nonimmigrant
status, if they satisfy other eligibility requirements and obtain the approval
of the DHS. Sections 101(a)(15)(S), (T), (U) of the Act, 8 U.S.C.
§§ 1101(a)(15)(S), (T), (U) (2006);see also, e.g., 8 C.F.R. §§ 214.2(t), 214.11,
214.14, 1214.2 (2012).
The S nonimmigrant classification for aliens who cooperate in criminal
investigations was created bythe Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796, 2024. This
classification, which is the most applicable to the respondent’s case, may be
available to an alien who is in possession of critical reliable informationCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
3 The S visa is also available to an alien who is willing or has supplied critical reliable
information concerning a terrorist organization and who will be or has been placed in danger
as a result of providing such information. Section 101(a)(15)(S)(ii) of the Act.
92
necessary to the successful investigation or prosecution of an individual
involved in a criminal organization or enterprise and who is willing to supply
or has supplied such information. Section 101(a)(15)(S)(i) of the Act.3
An application for an S nonimmigrant visa is initiated with a request from
an interested Federal or State law enforcement authority and is subject to the
approval of the DHS, although the DHS’s decision to deny an S visa is referred
to the Deputy Attorney General for a final resolution in certain circumstances.
See 8 C.F.R. §§ 214.2(t)(4), (5). The Board does not have jurisdiction
over S visas. The respondent could potentially be covered by the UNTOC
provisions through his cooperation with the United States in its prosecution of
his coconspirators in a transnational organized drug-trafficking crime. See
UNTOC, arts. 5, 24. However, he does not claim that a visa application has
been filed on his behalf by an interested Federal or State law enforcement
authority. See 8 C.F.R. §§ 214.2(t)(1), (4).
The Act was also amended in 2000 to create the T nonimmigrant
classification for victims of severe forms of trafficking who would “suffer
extreme hardship involving unusual and severe harm upon removal” and who,
inter alia, have complied with any reasonable request for assistance in the
investigation or prosecution of acts of such trafficking in persons. Section
101(a)(15)(T)(i)(IV) of the Act; see also VTVPA § 107(e)(1), 114 Stat. at
1477; 8 C.F.R. §§ 212.16, 214.11, 1212.16, 1214.2 (2012). Determinations
regarding eligibility for T nonimmigrant status are within the sole jurisdiction
and discretion of the DHS. See, e.g., 8 C.F.R. §§ 212.16, 214.11. The
regulations do permit Immigration Judges or the Board to administratively
close or indefinitely continue pending removal proceedings to allow an
alien to pursue an application for T nonimmigrant status with the DHS.
8 C.F.R. § 214.11(d)(8). However, the respondent was not a victim of human
trafficking, and he does not claim that he has applied for this visa.
In 2000, Congress also created the U classification, which is available to
an alien who suffered substantial physical or mental abuse as a result of having
been a victim of certain criminal activity and who possesses information
concerning such activity. Section 101(a)(15)(U) of the Act; see also VTVPA
§ 1513(b), 114 Stat. at 1534. The purpose of the statute was to strengthen the
ability of law enforcement to detect, investigate, and prosecute certain crimes,
while offering protection to the victims of such offenses. Matter of Sanchez
Sosa, 25 I&N Dec. 807, 809 (BIA 2012). Congress intended to encourage
aliens who are victims of significant criminal activity to cooperate with law
enforcement in the investigation and prosecution of the offenders. Id.Cite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
93
Exclusive jurisdiction over U nonimmigrant visa petitions rests with the DHS,
but an alien may seek a continuance in immigration proceedings to await the
visa process. Id. at 811-12. The respondent has not claimed or shown that he
is eligible for U nonimmigrant status, nor has he requested a continuance to
apply for this visa.
The United States may also comply with the provisions of the UNTOC
through the regulations relating to withholding or deferral of removal under
the Convention Against Torture, a form of protection over which Immigration
Judges have jurisdiction, and which they have authority to grant. Relief from
removal under the Convention Against Torture is mandatory and is available
to an alien who has established that it is more likely than not that he or she
would be tortured if removed to the country of removal by or at the instigation
of, or with the consent and acquiescence of, a public official acting in an
official capacity. 8 C.F.R. §§ 1208.16–1208.18 (2012). While protection
under the Convention Against Torture is not coextensive with the provisions
of the UNTOC, there may be instances where the possibility of torture makes
such relief available.
Contraryto the respondent’s assertion on appeal, neither the Third Circuit’s
decision in Rranci nor the UNTOC provide for the Board or the Immigration
Judge to adjudicate and grant relief to aliens such as the respondent in order
to fulfill the United States’ obligations under the treaty. Nothing in the
UNTOC, either explicitly or implicitly, gives us authority to grant the
respondent permission to remain in the United States or prevent his removal
to Ghana because he was a cooperating witness in a criminal case in this
country. Nor does the treaty, which has broad, aspirational language, provide
any parameters as to what specific type of relief or protection would be
afforded. It is well established that the Board has no authority to create relief
beyond what has been provided by the Act or the regulations, because the
jurisdiction of the Board and the Immigration Judge is limited by statute and
regulation to that which has been delegated by the Attorney General. See
Matter of H-M-V-, 22 I&N Dec. 256, 258 (BIA 1998); Matter of Medina,
19 I&N Dec. 734, 742, 746-47 (BIA 1988). See generally, e.g., Hui Zheng
v. Holder, 562 F.3d 647, 655-56 (4th Cir. 2009) (stating that treaty obligations
are effectuated through a statutory scheme that Congress has established and
that the Attorney General has implemented through regulations); Bradvica
v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997) (deferring to the holding in Matter
of Medina that the Board’s jurisdiction is limited only to what has been
specifically delegated by the Attorney General).
Even assuming that the respondent has adequately demonstrated that his
actions and cooperation with Federal prosecutors are necessarily covered by
the UNTOC, the relevant provisions in the treaty do not create an independent
basis for relief from removal that can be advanced in immigration proceedings.Cite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
4 The Immigration Judges and the Board later received jurisdiction over claims under the
Convention Against Torture pursuant to its implementing regulations. See 8 C.F.R.
§ 1208.18.
94
Generally, a treaty does not have the force of law until the United States has
enacted legislation implementing it or, if legislation is not necessary,
promulgated regulations that implement it. See Medellin v. Texas, 552 U.S.
491, 505 (2008) (noting that while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted
implementing statutes); see also Matter of H-M-V-, 22 I&N Dec. at 258-60
(holding that the Board lacked jurisdiction to adjudicate a claim for relief
from deportation pursuant to Article 3 of the Convention Against Torture
because no specific legislation or regulation implemented its provisions and
Article 3 is not a self-executing treaty provision).4
A treaty may, in specific circumstances, be deemed to be “self-executing”
and have automatic domestic effect as Federal law, but only when the
treaty itself conveys such an intention and is ratified on those terms.
Medellin v. Texas, 552 U.S. at 505-06 & n.2. Moreover, even if a treaty is
self-executing, “there is a strong presumption against inferring individual
rights from international treaties.” Yuen Jin v. Mukasey, 538 F.3d 143, 159
(2d Cir. 2008) (quoting United States v. De La Pava, 268 F.3d 157, 164
(2d Cir. 2001) (internal quotation marks omitted); see also Medellin v. Texas,
552 U.S. at 506 n.3 (“Even when treaties are self-executing in the sense that
they create federal law, the background presumption is that ‘[i]nternational
agreements, even those directly benefitting private persons, generally do not
create private rights or provide for a private cause of action in domestic
courts.’” (quoting 2 Restatement (Third) of Foreign Relations Law of the
United States § 907, cmt. a at 395 (1986))); Gross v. German Foundation
Indus. Initiative, 549 F.3d 605, 615 (3d Cir. 2008).
Nothing in the provisions of the UNTOC and the Protocols establishes that
the treaty was intended to be self-executing. Broad, aspirational language was
used in the specific provisions that relate to the protection, support, or
repatriation of witnesses and/or victims of transnational organized crime.
Furthermore, the treaty states that signatories should take appropriate
measures, including enacting legislation if necessary. For example, Articles
24 and 25 of the UNTOC state that each signatory “shall take appropriate
measures within its means” to provide effective protection for witnesses and
victims of transnational organized crime. Likewise, Article 16 of the
Smuggling Protocol states that signatories “shall take . . . appropriate
measures, including legislation if necessary” to protect the rights of victims of
migrant smuggling. Article 7 of the Trafficking Protocol also states that
signatories “shall consider adopting legislative or other appropriate measuresCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
5 A guide issued by the United Nations even considers that a form of witness protection
that is contrary to a country’s immigration laws may not be required, noting that a
“waiver must be sought from countries whose immigration laws prevent the granting of
sanctuary to persons with criminal records or require the prosecution of such persons by
the authorities.” United Nations Office on Drugs and Crime, Good Practices for the
Protection of Witnesses in Criminal Proceedings Involving Organized Crime 84 (2008),
http://www.unodc.org/documents/organized-crime/Witness-protection-manual-Feb08.pdf.
95
that permit victims of trafficking to remain in its territory, temporarily or
permanently, in appropriate cases.” This general language, which gives
signatories discretion to take unspecified measures, but which also calls for
implementing legislation, indicates that the treaty’s articles relating to
witnesses and victims of transnational organized crimes were not intended to
be self-executing. See Matter of Medina, 19 I&N Dec. at 740.
Moreover, the UNTOC and the Protocols did not explicitly prohibit its
signatories from returning individuals who are covered by the treaty to the
country of their nationality or to one where they have the right of permanent
residence. For instance, Article 8 of the Trafficking Protocol provides for the
safe “[r]epatriation of victims of trafficking in persons.” Article 8 of the
Smuggling Protocol also contemplates the safe “[r]eturn of smuggled
migrants.” The Protocols provide that the conditions for such an individual’s
safe repatriation would be determined by the sending and receiving signatory
parties. The relevant provisions in the UNTOC for individuals, such as the
respondent, who cooperate in a transnational organized crime prosecution
do not mandate that such witnesses be granted the right to remain in the
signatory country as a form of protection against potential retaliation for their
cooperation with the prosecution. See UNTOC art. 24 (suggesting measures
for protecting witnesses).5 Nor do they preclude the removal of such persons
to their country of nationality or legal residence.
We find that the provisions of the UNTOC do not create an independent
basis for relief from removal that can be advanced by the respondent in his
removal proceedings. The Immigration Judge therefore did not err in finding
that she lacked jurisdiction to consider the respondent’s request for relief under
the UNTOC and the Protocols. The respondent has not otherwise sought to
pursue nonimmigrant status under section 101(a)(15)(S), (T), or (U) of the Act,
which provide other avenues under the immigration laws that advance the
objectives of the provisions of the UNTOC and the Protocols.Cite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
96
B. Withholding of Removal
We now turn to the respondent’s application for withholding of removal
under section 241(b)(3)(A) of the Act and the Convention Against Torture. It
is undisputed that on May 11, 2010, the respondent was convicted of
conspiracy with intent to distribute and possess with intent to distribute at
least a kilogram of heroin, which is an aggravated felony under section
101(a)(43)(B) of the Act. We therefore agree with the Immigration Judge that
the respondent is statutorily barred from withholding of removal under the Act
and the Convention Against Torture.
As the Immigration Judge properly found, the respondent’s aggravated
felony involving unlawful trafficking in a controlled substance presumptively
constitutes a “particularly serious crime” within the meaning of section
241(b)(3)(B)(ii) of the Act pursuant to the Attorney General’s decision in
Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 274-75 (A.G. 2002). We
reject the respondent’s argument that the Immigration Judge erred in not
making a separate determination to address whether he is a danger to
the community, because such a separate “dangerousness” analysis is not
necessary to determine that a crime is particularly serious. Matter of R-A-M-,
25 I&N Dec. 657, 662 (BIA 2012); Matter of N-A-M-, 24 I&N Dec. 336,
342-43 (BIA 2007).
In holding that drug trafficking offenses are presumptively particularly
serious crimes, the Attorney General concomitantly recognized that such
crimes pose a danger to the community, noting that “[t]he devastating effects
of drug trafficking offenses on the health and general welfare, not to mention
national security, of this country are well documented.” Matter of Y-L-, A-G-
& R-S-R-, 23 I&N Dec. at 274-76 (citing Mahini v. INS, 779 F.2d 1419, 1421
(9th Cir. 1986) (recognizing that drug trafficking “offenders [are] a danger to
the community”)). In his decision, the Attorney General set forth minimum
requirements to overcome the presumption that a crime is particularly serious,
one of which is that it involved “a very small quantity of controlled substance.”
Id. at 276. The Immigration Judge found that the respondent did not meet this
requirement because his offense involved at least a kilogram of heroin.
Therefore the Immigration Judge’s decision was consistent with Matter of
Y-L-, A-G- & R-S-R- and was not in error.
To the extent that the respondent challenges the propriety of Matter of Y-L-,
A-G- & R-S-R-, it is clear that the Immigration Judge and the Board are bound
by the Attorney General’s decision. 8 C.F.R. § 1003.1(g) (2012). The
respondent’s assertion that the statute barring relief for those convicted of
particularly serious crimes is “void for vagueness” is likewise unavailing.
Neither the Board nor the Immigration Judges have the authority to rule on the
constitutionality of the statutes we administer, so we lack jurisdiction toCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
97
address this claim. See Matter of Sanchez-Lopez, 26 I&N Dec. 71, 74 n.3
(BIA 2012); Matter of Valdovinos, 18 I&N Dec. 343, 345-46 (BIA 1982). We
therefore conclude that the Immigration Judge properly found the respondent
statutorily barred from withholding of removal under both the Act and
the Convention Against Torture on account of his conviction for heroin
trafficking, which is a particularly serious crime. See section 241(b)(3)(B)(ii)
of the Act; 8 C.F.R. § 1208.16(d)(2).
C. Deferral of Removal Under the Convention Against Torture
The Immigration Judge also properly denied the respondent’s application
for deferral of removal under the Convention Against Torture. As the
Immigration Judge found, the threatening telephone calls the respondent
received were made years before in 2005, shortly after his coconspirators were
arrested and before the coconspirator who was a member of Parliament was
convicted, and they are therefore dated. Also, the telephone calls received
more recently by the respondent’s wife did not contain specific serious threats.
In fact, one caller even offered the respondent assistance with his immigration
problems. These telephone calls are not sufficient to show that the respondent
would more likely than not be individually targeted for torture upon his
return to Ghana. Cf. Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)
(noting that the lesser well-founded fear asylum standard does not extend “for
threats that, while sinister and credible in nature, were not highly imminent or
concrete or failed to result in any physical violence or harm to the alien”).
Furthermore, reports from the respondent’s familythat unidentified individuals
were looking for him in Ghana for an unspecified purpose, along with
generalized comments that others in the community knew that he agreed to
testify against his coconspirators, did not objectively establish his claim.
Also, although the respondent’s nephew was assaulted by unknown
assailants in Ghana in 2009, there is nothing to indicate that the incident was
anything more than a random and unrelated act of violence against his nephew.
Cf. Arriaga-Barrientos v. U.S. INS, 937 F.2d 411, 414 (9th Cir. 1991) (noting
that the abduction of the respondent’s two brothers by unknown gunmen for
unknown reasons does not establish the lesser well-founded fear standard for
asylum protection). The Immigration Judge did not err in finding that there
was no link between the nephew’s assault and the respondent’s fear of
persecution. See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (stating
that the motive of a persecutor is a finding of fact to be determined by the
Immigration Judge and reviewed for clear error).
The respondent argues that he has established “that he is likely to face
torture at the hands of the Ghanaian parliament.” In this regard, we find no
merit to his assertions that the Immigration Judge did not give sufficientCite as 26 I&N Dec. 88 (BIA 2013) Interim Decision #3776
98
weight to certain evidence he presented. Specifically, the Immigration Judge
did not clearly err in finding that one of the respondent’s coconspirators is and
always has been a private citizen. Also, as the Immigration Judge found, the
evidence indicates that the other coconspirator is not currently part of the
Ghanaian Government, because recent background country reports described
him as a former Parliament member. Moreover, the Immigration Judge
properly determined that the generalized evidence of government corruption
in the record is insufficient to show that the Ghanaian Government would
acquiesce in or turn a blind eye to torture.
The Immigration Judge’s detailed and thorough decision reflects that she
considered the totality of the material evidence, even if it did not reference
each piece of evidence individually. See Yan Lan Wu v. Ashcroft, 393 F.3d
418, 425 n.10 (3d Cir. 2005). Even while finding the respondent credible as
to past events, the Immigration Judge was not obligated to agree with his
claimed fear regarding what would happen if he were returned to Ghana. As
the Immigration Judge concluded, the respondent failed to satisfy his high
burden of establishing that it is more likely than not that he will be tortured by
or at the instigation of, or with the consent or acquiescence of, a Ghanaian
public official or other person acting in an official capacity. See Roye v. Att’y
Gen. of U.S., 693 F.3d 333 (3d Cir. 2012); see also 8 C.F.R. § 1208.18(a)(1).
III. CONCLUSION
In sum, we conclude that the UNTOC and the Protocols did not
independently provide the respondent with a new form of relief from removal
that he can advance in removal proceedings. The respondent’s offense was
a “particularly serious crime,” which statutorily bars him from withholding of
removal under the Act and the Convention Against Torture. The respondent
did not satisfy his burden of establishing his claim for deferral of removal
under the Convention Against Torture. Accordingly, the respondent’s appeal
will be dismissed.
ORDER: The appeal is dismissed.