Tourchin v. Atty Gen USA , 277 F. App'x 248 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-7-2008
Tourchin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3821
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
Nos. 02-3821
VALERIY TOURCHIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(INS-1: A75-995-304 )
Immigration Judge: Hon. Alberto J. Riefkohl
05-4686
VALERIY TOURCHIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the Board of Immigration Appeals
(INS-1:A75-995-304)
Initially Docketed as an Appeal from the DCNJ No. 02-cv-01689
Prior to the Enactment of the Real ID Act of 2005
Argued April 8, 2008
BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges
(Filed May 7, 2008)
Andrea Farinacci, Esq. (Argued)
Melissa Kimmel, Esq.
Staci Schweizer, Esq. (Argued)
Howrey
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-0000
Counsel for Petitioner
Ada E. Bosque, Esq. (Argued)
Douglas E. Ginsberg, Esq.
John M. McAdams, Jr., Esq.
John D. Williams, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Peter G. O’Malley, Esq.
Office of the United States Attorney
970 Broad Street, Rm. 700
Newark, NJ 07102-0000
Counsel for Respondent
OPINION
2
COWEN, Circuit Judge.
Valeriy Tourchin is a citizen of Belarus who entered the United States on a tourist
visa in 1996. After overstaying his visa, Tourchin filed an application for asylum and
withholding of removal. He asserted that he was persecuted and feared future persecution
if he returned to Belarus on account of his homosexuality and political opinion.
Tourchin appeared pro se before the immigration judge (“IJ”). At a January 1999
hearing, the IJ explained to Tourchin that he was going to ask him a series of questions
and then allow the government to ask him a series of questions about his asylum
application. The IJ explained to Tourchin that he would be free to add any additional
information regarding his case at the end of the hearing.
Tourchin was a successful businessman in Belarus. On several occasions,
members of the KGB tried to extort money from him. Most relevant to this petition for
review, in July 1996, KGB agents came to Tourchin’s office and told him and his driver
to come with them. The KGB agents drove Tourchin and his driver to a secluded wooded
area. Upon arriving at this location, the KGB agents killed another individual in front of
Tourchin and his driver. The KGB agents then threatened Tourchin. Specifically, the
agents threatened Tourchin that they would kill his loved ones. Additionally, the
government agents threatened Tourchin with arrest. They told Tourchin that after he was
arrested, he would be thrown in prison, and the agents would have prison inmates rape
Tourchin. Tourchin explained that it was his impression that the KGB agents were doing
3
this as a way to extort money from him in light of his successful business enterprises.
Additionally, Tourchin stated that the government had recently found out that he was a
homosexual, and that his sexual orientation also might have played a factor.
The IJ allowed Tourchin to present additional testimony at a February 1999
hearing. At that hearing, Tourchin’s boyfriend testified about his relationship with
Tourchin while he has been in the United States. At the end of that hearing, the IJ gave
Tourchin the opportunity to present additional evidence. Aside from a minor issue
regarding his passport, Tourchin declined to present additional evidence or testimony.
On February 20, 2000, the IJ denied Tourchin’s asylum and withholding of
removal application. The IJ did not make an explicit adverse credibility finding, but he
found some of Tourchin’s evidence incredible. The IJ stated that he believed that
Tourchin was a homosexual. Nonetheless, the IJ determined that Tourchin failed to
establish that he was persecuted in Belarus because of his homosexuality. Additionally,
the IJ rejected Tourchin’s claim that he was persecuted on account of his political
opinion. The IJ explained that Tourchin’s problems arose because of his success as a
businessman, as opposed to a protected ground.
Tourchin was represented by counsel on appeal to the Board of Immigration
Appeals (“BIA”). He asserted that he was entitled to a new hearing because he was not
adequately aware of his rights and the applicable laws when he appeared before the IJ.
Additionally, he reasserted his eligibility for asylum and withholding of removal. On
4
March 18, 2002, the BIA determined that the IJ adhered to the applicable regulations and
that Tourchin had a full and fair hearing. Furthermore, the BIA found that the IJ had
correctly concluded that Tourchin failed to demonstrate that he suffered past persecution
or had a well-founded fear of future persecution on account of a protected ground.
On April 15, 2002, Tourchin filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 in the District of New Jersey. The District Court stayed the order of
removal pending the outcome of the proceedings. While the habeas petition was pending
in the District Court, Congress passed the REAL ID Act. Subsequently, the District Court
transferred the habeas petition to this Court, C.A. No. 05-4686.
Tourchin also filed a pro se motion to reopen and reconsider with the BIA. In the
motion, Tourchin asserted that his appellate counsel was ineffective. Specifically, he
stated that his appellate counsel failed to make a claim pursuant to the Convention
Against Torture (“CAT”). Additionally, he asserted that appellate counsel failed to argue
that his due process rights were violated at the hearings before the IJ.
On September 13, 2002, the BIA denied the motion. With respect to the motion to
reopen to pursue a CAT claim, the BIA stated:
based on the nature of respondent’s claim, appellate counsel
did not commit patent error in omitting arguments about the
Convention Against Torture. The respondent alleges a fear of
corrupt individuals and the conditions of confinement,
including the treatment he could potentially receive from
fellow inmates. In the absence of prima facie evidence that
he faces “torture,” as defined by regulation, at the hand of
government officials or with government acquiescence, we
5
find no prejudice flowing from appellate counsel’s conduct. . .
. Similarly, in the absence of prima facie eligibility, a full
hearing on relief pursuant to the Convention Against Torture
is not warranted.
(App. 56.) The BIA also determined that even if Tourchin’s counsel was ineffective on
his other claims, Tourchin failed to show prejudice. On October 11, 2002, Tourchin filed
a pro se petition for review of that decision, C.A. No. 02-3821. This Court appointed pro
bono counsel for Tourchin.
I.
We have appellate jurisdiction to review the BIA’s final order of removal.1 See 8
U.S.C. § 1252(a). “‘[W]e review the [BIA’s] denial of a motion to reopen for abuse of
discretion.’” See Fadiga v. Att’y Gen. of United States, 488 F.3d 142, 153 (3d Cir. 2007)
(quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)). Under this standard, the
BIA’s decision “‘must be reversed if it is arbitrary, irrational, or contrary to law.’” Id.
(quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)). The BIA’s findings of
fact are reviewed for substantial evidence. See Sevorian, 290 F.3d at 174. “[W]e review
1
In November 2002, Respondent filed a motion to dismiss Tourchin’s 2002 petition
for review for lack of jurisdiction due to untimeliness. The motion is denied. Respondent
admits in its brief that the petitions for review are timely. Indeed, Tourchin filed the
petition for review within thirty days of the BIA’s denial of his motion to reopen. See
Jahjaga v. Att’y Gen. of United States, 512 F.3d 80, 84 n.3 (3d Cir. 2008) (“Review of a
denial of a timely motion to reopen must be filed within thirty days of the denial, which
constitutes the final order of removal.”) (citing 8 U.S.C. § 1251(b)(1)). Additionally,
Tourchin’s April 15, 2002 request for habeas relief from the BIA’s March 18, 2002 order
has since been transferred to this Court.
6
de novo the Board’s determination of an underlying due process claim.” Fadiga, 488 F.3d
at 153 (citing Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005); De Leon-
Reynoso v. Ashcroft, 293 F.3d 633, 635 (3d Cir. 2002)).
II.
Tourchin raises two issues on appeal: (1) whether the BIA erred in denying his
motion to reopen so that he could pursue a CAT claim; and (2) whether he was denied a
full and fair asylum hearing before the IJ. We consider each of these issues in turn.
A. CAT
In 1998, Congress passed the Foreign Affairs Reform and Restructuring Act of
(“FARRA”), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-761 (Oct.
21, 1998) (codified as note to 8 U.S.C. § 1231), which authorized implementing Article 3
of the CAT. Article 3 of the CAT states: “No State Party shall expel, return . . . 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.” In 1999, “the Attorney General
promulgated implementing regulations requiring that withholding of removal be granted
to any alien who establishes that it is more likely than not that he or she would be subject
to torture if returned to his or her country of removal.” Zhong v. United States Dep’t of
Justice, 480 F.3d 104, 111 (2d Cir. 2007). The regulations provide that “[a]n alien who is
in exclusion, deportation, or removal proceedings on or after March 22, 1999 may apply
for withholding of removal” under the CAT. 8 C.F.R. § 208.18(b)(1).
7
Pursuant to 8 C.F.R. § 208.18(a):
(1) Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or her or
a third person information or a confession, punishing him or
her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing
him or her or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.
(2) Torture is an extreme form of cruel and inhuman treatment
and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to
torture.
(3) Torture does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions. . . .
(4) In order to constitute torture, mental pain or suffering must be
prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe
physical pain or suffering. . . .
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to
death, severe physical pain or suffering. . . .
In raising a CAT claim:
[t]he burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal. The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof
without corroboration.
8 C.F.R. § 208.16(c)(2). “The standard for relief has no subjective component, but
instead requires the alien to establish, by objective evidence that he is entitled to relief.”
8
Sevoian, 290 F.3d at 175 (internal quotation marks and citation omitted). The evidence
considered in evaluating a CAT claim includes:
(1) [e]vidence of past torture inflicted upon the applicant; (2)
[e]vidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be
tortured; (3) [e]vidence of gross, flagrant or mass violations
of human rights within the country of removal; and (4) [o]ther
relevant information regarding conditions in the country of
removal.
8 C.F.R. § 208.16(c)(3). For an act to constitute torture it must be:
(1) an act causing severe physical or mental pain or suffering;
(2) intentionally inflicted; (3) for an illicit or proscribed
purpose; (4) by or at the instigation of or with the consent or
acquiescence of a public official who has custody or physical
control of the victim; and (5) not arising from lawful
sanctions.
Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir. 2005).
The Supreme Court has identified three grounds whereby the BIA may deny a
motion to reopen: (1) if the movant failed to establish a prima facie case for the relief
sought; (2) if the movant failed to introduce previously unavailable, material evidence,
and (3) if the BIA determines that even if these requirements are satisfied, the alien would
not be entitled to the discretionary grant of relief sought. See I.N.S. v. Doherty, 502 U.S.
314, 323 (1992). Under the prima facie case standard for a motion to reopen, the
applicant is required to show to a reasonable likelihood that he can establish the merits of
his CAT claim. See Sevoian, 290 F.3d at 175. “A ‘reasonable likelihood’ means merely
showing a realistic chance that the petitioner can at a later time establish that [CAT relief]
9
should be granted.” Guo, 386 F.3d at 564. Stated differently, “[w]hile a ‘reasonable
likelihood’ of a different outcome requires more than a showing of a plausible ground for
relief from deportation, it does not require that a different outcome was more likely than
not.” Fadiga, 488 F.3d at 160-61 (internal quotation marks and citation omitted).
In this case, the BIA’s rationale for denying Tourchin’s motion to reopen to pursue
his CAT claim was that Tourchin was not prejudiced by appellate counsel’s failure to
include a CAT claim. The BIA determined that Tourchin was not prejudiced because he
failed to establish his prima facie case for CAT relief. Our inquiry is limited to the
rationale as stated by the BIA. See Konan v. Att’y Gen. of United States, 432 F.3d 497,
501 (3d Cir. 2005) (“It is a bedrock principle of administrative law that judicial review of
an agency’s decision is limited to the rationale that the agency provides.”).
In this case, Tourchin is deemed credible. See Kayembe v. Ashcroft, 334 F.3d
231, 234-35 (3d Cir. 2003) (noting that where the credibility of a petitioner has not been
determined, we proceed as if the petitioner was credible). “To determine whether the
administrative action was arbitrary, the courts must be appraised why evidence, relevant
and persuasive on its face, was discredited.” Sotto v. I.N.S., 748 F.2d 832, 837 (3d Cir.
1984). Upon examining the record, the BIA abused its discretion in denying the motion to
reopen.
As previously stated, the BIA determined that Tourchin’s CAT claim was limited
to a fear of corrupt individuals and the conditions of confinement. Nevertheless,
10
Tourchin alleged more than a mere fear of corrupt individuals and the conditions of
confinement with respect to his CAT claim. Tourchin’s allegations include an incident of
past torture, specifically the incident involving Tourchin and the KGB agents at the
secluded wooded area. This incident occurred immediately prior to Tourchin’s arrival in
the United States. The incident also involved death threats to Tourchin’s loved ones at
the hands of government agents, along with the ability of the government to make good
on these threats as illustrated by their murdering another individual in front of Tourchin.
The KGB agents also threatened Tourchin with their acquiescence and complicity with
other individuals raping him. The failure of the BIA to adequately address this prima
facie evidence leads us to conclude that it abused its discretion in denying the motion to
reopen.
In its supplemental brief, the Respondent makes two principal arguments. First, it
argues that Tourchin’s CAT claim was based on the same facts as his request for asylum
and withholding of removal. Nevertheless, the standard for receiving CAT relief is
different than that under an application for asylum of withholding of removal.
See Ambartsoumain v. Ashcroft, 388 F.3d 85, 89 (3d Cir. 2004). CAT relief does not
require any showing that the torture is on account of a protected ground. See id. Second,
the Respondent asserts that Tourchin failed to show any likelihood that he would be
tortured at the hands of government officials or with government acquiescence if he
returned to Belarus. However, the record as described above is to the contrary.
11
Therefore, these arguments are unpersuasive.
B. Full and Fair Hearing
Tourchin also asserts that he was denied a full and fair hearing before the IJ. He
argues that the failures by the IJ in conducting the hearing unfairly influenced his asylum
application. More specifically, he argues that the IJ’s actions prevented him from making
his case for asylum. For the following reasons, we disagree.
“Where an alien claims a denial of due process because he was prevented from
making his case to the BIA or the IJ, he must show (1) that he was prevented from
reasonably presenting his case and (2) that substantial prejudice resulted.” Fadiga, 488
F.3d at 155 (internal quotation marks, footnote and citation omitted). In removal
proceedings, “[a]n alien: (1) is entitled to factfinding based on a record produced before
the decisionmaker and disclosed to him or her; (2) must be allowed to make arguments on
his or her own behalf; and (3) has the right to an individualized determination of his [or
her] interests.” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal quotation
marks and citations omitted).
Tourchin principally relies on Jacinto v. I.N.S., 208 F.3d 725 (9th Cir. 2000), as
persuasive authority to support his full and fair hearing claim. In Jacinto, the IJ gave the
alien the impression that she could either testify on her own behalf or proceed with an
attorney. Additionally, at no point in that case did the IJ ask Jacinto if she wished to offer
narrative testimony or otherwise afford her the opportunity to present direct testimony.
12
See id. at 728-29. Ultimately, the Ninth Circuit determined that the combined failures of
the IJ resulted in a denial of a full and fair hearing. See id. at 734.
Jacinto is distinguishable in several respects. First, nothing in this record suggests
that the IJ gave Tourchin the option of either representing himself and testifying, or
proceeding with counsel and not testifying. Second, the IJ explained to Tourchin at the
beginning of the hearing that he would have the opportunity to add any additional
information to his case at the end of the hearing. Subsequently, at the end of the February
1999 hearing, the IJ asked Tourchin if he had anything else to present. Therefore, the IJ
never prevented Tourchin from presenting his case.
Furthermore, even if we were to construe the IJ’s actions as preventing Tourchin
from reasonably presenting his case, Tourchin did not illustrate substantial prejudice.
See Kuciemba v. I.N.S., 92 F.3d 496, 501 (7th Cir. 1996) (noting that in order to show
substantial prejudice, a petitioner must come forward with concrete evidence to show that
the due process violation had the potential to affect the outcome of the case). Tourchin’s
reliance on our decision in Cham v. Attorney General of United States, 445 F.3d 683 (3d
Cir. 2006), is misplaced under these circumstances. In Cham, we noted that the petitioner
was brow beaten by the IJ and that the IJ failed to consider corroboration by the
petitioner’s relatives. The IJ also made an adverse credibility determination in that case.
Ultimately, we concluded that the petitioner had to be given a second real chance to
create a record at his deportation hearing. See id. at 694. Unlike Cham, there was no
13
adverse credibility determination against Tourchin, nor was there a failure by the IJ to
consider proper evidence.2 Tourchin was not substantially prejudiced even if he had
shown that he was prevented from presenting his case.3
III.
For the reasons stated above, we deny the Respondent’s motion to dismiss.
Tourchin’s petition for review with respect to his full and fair hearing claims is also
denied. We grant the petition for review as to Tourchin’s motion to reopen for relief
under the CAT. The matter is remanded for proceedings consistent with this opinion.
2
In fact, the record before the IJ included Tourchin’s very detailed affidavit in support
of his asylum application, which the IJ plainly considered.
3
Tourchin also argues that the IJ erred by never asking him to designate a country of
removal. However, this is the first time that Tourchin has raised the issue, so it is deemed
waived. See Drozd v. I.N.S., 155 F.3d 81, 91 (2d Cir. 1998) (stating that an argument is
waived if not raised before the IJ or the BIA).
14