Opinion
CV 04-188-PA.
September 13, 2004
PHILIP JAMES SMITH, Hecht Smith, LLP, KARIN J. IMMERGUT, United States Attorney, KENNETH C. BAUMAN, Assistant United States Attorney, Portland, OR, Attorneys for Petitioner.
OPINION AND ORDER
Abdul R. Almaghzar brings this petition for habeas relief under 28 U.S.C. § 2241, seeking relief under the Convention Against Torture. I deny the petition and order that removal be stayed for thirty days.
The Convention's full citation is "[t]he Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984); 23 I.L.M. 1027 (1984)."Wang v. Ashcroft, 320 F.3d 130, 133 n. 1 (9th Cir. 2003).
BACKGROUND
Petitioner is a native and citizen of Yemen, born in 1962. Petitioner's father was the chief of police in a small town who later became a judge. Admin. Record (R.) 135, 498.
At the age of six, petitioner was sexually abused by a family friend. Petitioner stated that as a teenage he trained as a police officer "to avenge the sexual abuse." R. 135. In a recent affidavit, petitioner states that he also wanted to be a police officer because of a 1972 gas attack on his house that killed his mother and a young sister.
Petitioner offered the testimony of Jon Mandaville, a professor of history at Portland State University. Professor Mandaville lived in Yemen for three years and last visited there in 1990. Professor Mandaville has read some of petitioner's file but did not talk to him.
Professor Mandaville stated that from 1962 to 1970, the Yemen Arab Republic, referred to as North Yemen, was torn by a civil war between Royalists and Republicans. More than 100,000 Yemenis died during the civil war.
South Yemen, formerly a British colony, drove out the British and in 1970 established a communist government. North Yemen and South Yemen then fought sporadic border wars, with both sides using intelligence operatives to spy on each other and their own citizens.
Petitioner states that after attending military school in North Yemen, he was trained in surveillance and ordered to identify persons who sympathized with South Yemen. Petitioner states that when his aunt discovered his listening devices, his aunt's brother betrayed him to agents of South Yemen. Petitioner alleges that he was kidnapped by these agents.
Petitioner testified in a 1998 immigration hearing that the South Yemeni agents took him to a prison in the south, where he was held for about nine months. Petitioner testified that he was tortured every Friday during interrogations. Petitioner stated that the torture included electric shock; forcing his feet into hot tar or water; and putting out a cigarette on his forehead. Petitioner testified that the interrogators tried to "mastermind" him into hating his family, which was well-connected in the North Yemeni government, and forcing him to accept the communist ideology of South Yemen.
After nine months, petitioner was transferred to another prison, Al Mansoura, where he remained for more than two years. Petitioner did not claim that he was tortured there, but he did state that he was not fed properly and lost about twenty-five pounds (from 136 to 111 pounds).
Petitioner testified that before a Red Cross inspection, he was transferred to an island with three other prisoners. There were no Yemeni guards. Petitioner testified that he and his fellow prisoners relied on a Soviet vessel stationed there for food and protection from wild animals.
After eleven months on the island, petitioner was transferred back to the Al Mansoura prison. Petitioner was not tortured, but described conditions as "very low treatment, lacks any kind of humanity." R. 529. After a year and four months in the Al Mansoura prison, petitioner was released and returned to North Yemen in 1982. According to Professor Mandaville, by 1982 North and South Yemen were exchanging political prisoners.
At the hearing in 1998, petitioner testified that when he returned to North Yemen, he found that some of the agents who had captured him were now working for the government of North Yemen. He testified that this "was a very big surprise for me." R. 532.
Petitioner states in his recent affidavit that when he returned to North Yemen after his imprisonment by South Yemen, he was given a small settlement and "awarded two more stars for being a martyr." Pet'r Affid. at 3. At the 1998 hearing, petitioner testified that he was detained for three days in North Yemen. He was released on orders from "higher authorities," but he turned down an offer to work for the government.
Petitioner states that in 1983 or 1984 he worked to organize the "Truth Party," a political party with ties to the government. Petitioner states that he kept personnel files on party members, issued memberships, and recruiting new members. He states that his surveillance of other party members caused animosity towards him.
Petitioner stated that he then went to Saudi Arabia, where his father was living. He testified that he trained insurgents to fight against the communist South Yemeni government. Professor Mandaville states that Saudi Arabia did run such training camps to undermine South Yemen. However, the immigration judge at the 1998 hearing found that plaintiff's testimony about his activities after 1982 conflicted with a previous affidavit that he had submitted in support of his asylum application.
When North and South Yemen unified in 1990, former South Yemeni officials received positions in the unified government. Petitioner testified that he thought there were officials in the unified government who would view him as a threat because of his political activities and his work with the Interior Ministry.
In his recent affidavit, petitioner claims that the Truth Party refused to cooperate with the Yemeni government's secret preparations to back Iraq in the 1991 Gulf War. Petitioner states that other factions in Yemen assassinated Truth Party members. He states that he went into hiding in Yemen when his police identification card was found near the site of an explosion that destroyed the house of a political leader. In November 1992, he fled to the United States.
Professor Mandaville stated that if petitioner was known to have worked with the Saudi government to undermine South Yemen, Southern Yemenis would remember this. According to Professor Mandaville, "if the government itself does not act against [petitioner], it will not be able or likely willing to protect him from individuals acting on their own." Mandaville Affid., at 3.
Petitioner came to the United States in November 1992. In December 1992, he applied for asylum. The asylum application was initially denied in 1994. With the assistance of a new attorney, petitioner had the agency reopen his asylum case.
In 1998, the Immigration and Naturalization Service (INS) started removal proceedings against petitioner in Portland. The asylum application was transferred to the immigration court in Portland.
On November 13, 1998, Michael Bennett, immigration judge, presided over a removal hearing for petitioner. Petitioner was represented by an attorney.
Judge Bennett denied petitioner's application for asylum and withholding of removal, and ordered that petitioner be removed to Yemen. Judge Bennett found that petitioner's testimony was "knowingly false." Judge Bennett concluded that petitioner was barred from receiving asylum or withholding of removal because he had knowingly filed a frivolous asylum application. (At the time, relief was not available under the Convention Against Torture.) Petitioner appealed the immigration judge's decision to the Board of Immigration Appeals (BIA).
In October 2000, while petitioner's appeal to the BIA was pending, petitioner pleaded guilty in this court to distribution of methamphetamine and fraudulent use of a food benefit authorization card. Petitioner, who had been managing a small grocery store in Salem, Oregon, sold methamphetamine for cash and fraudulently debited food stamps. Petitioner received a sentence of 37 months' imprisonment. United States v. Almaghzar, CR No. 00-107-KI, docket no. 28 (D. Or. Oct. 6, 2000).
In January 2003, after petitioner completed his criminal sentence, the Bureau of Immigration and Customs Enforcement (BICE) took him into custody. Because of petitioner's criminal convictions, the BIA remanded petitioner's case to the immigration judge. On March 17, 2003, the immigration judge found that petitioner was removable because the drug trafficking conviction was an aggravated felony.
On June 30, 2003, petitioner presented evidence to Judge Bennett in an attempt to explain inconsistencies in his prior testimony, and to support his new application for relief under the Convention Against Torture. Petitioner submitted an evaluation by M. John Givi, a psychologist, who found that petitioner was suffering from post-traumatic stress disorder and recurrent, moderate depression. Dr. Givi noted that petitioner's "ability to provide a linear, logical and organized history is impaired due to several factors including his low level of education, lack of English language skills, and his cultural background." R. 143.
On August 28, 2003, Judge Bennett found that petitioner was ineligible for asylum and withholding of removal because petitioner had been convicted of a particularly serious crime and had no claim under the Convention Against Torture. The immigration judge held that petitioner had filed a frivolous asylum application. In rejecting petitioner's Convention Against Torture claim, the immigration judge stated:
I also find that there's no basis to consider a claim under the Convention Against Torture because frankly, with the variety of stories that the [petitioner] himself has told, the misleading nature of his presentation about himself to the psychologist [Dr. Givi] taken together with the fraud conviction that he has as well as the distribution of methamphetamine which was part and parcel to those fraud operations, that the Court does not place any credibility on any of the claims whatsoever. So there would be no basis to find a Convention Against Torture claim.
On December 12, 2003, the Board of Immigration Appeals (BIA) affirmed the immigration judge's decision. The BIA ruled that the immigration judge did not err in finding that petitioner's testimony was not credible. The BIA cited discrepancies in petitioner's testimony about his actions after his 1982 release from prison in South Yemen:
The Immigration Judge identified substantial and material discrepancies between the written statement the [petitioner] submitted with his asylum application and the [petitioner's] testimony at the proceedings below, and the discrepancies bear a legitimate nexus to the credibility determination. For example, in his written statement, the [petitioner] stated that after he was released from imprisonment by South Yemen in 1982, he returned to North Yemen, and worked for the Yemeni Central Intelligence Agency "to organize a government party called the `Truth Party.'" The [petitioner] then alleged in his statement that he was "asked to monitor the conduct and speech" of some other Truth Party members, which "led to frictions" with other members and the [petitioner's] departure to Saudi Arabia "sometime in 1984." "From 1984 to 1986" the [petitioner] alleged in his statement that he "worked with Saudi intelligence authorities" as a "recruiter and teacher at a military training camp in Jizan, Saudi Arabia," "training insurgents to fight against the . . . communist regime in South Yemen." The [petitioner] then, according to this account returned to Yemen in 1989, "resumed" his position with the Yemeni intelligence community "gather[ing] information" about communist sympathizers, and this "intensified" in 1990 with Yemen's unification.
In contrast, the [petitioner] testified in 1998 that 9 days after his release from imprisonment in South Yemen he was arrested by local officials in North Yemen, held for three days, released upon the intervention of North Yemeni officials, and was then offered a job with the Yemeni intelligence community "as a way to get rid of [him]." The [petitioner] testified that 3 months after he was released by South Yemen he "moved to Saudi Arabia and went to visit [his] father." When the [petitioner] was confronted with his written statement's assertion that he worked for the Truth Party until 1984 and then went to Saudi Arabia, the [petitioner] testified that after his release from his 3 day detention in North Yemen he met with his boss "on and off" for 15 days and then went to Saudi Arabia to visit his father for 1 week, before returning to North Yemen and beginning his work organizing the Truth Party through his travels within North Yemen and Saudi Arabia.
Next, the [petitioner] testified he continued his work for the Truth Party, begun in 1982, until 1990. When asked if he did "anything else" during this time, the [petitioner] twice failed to mention his alleged work in Saudi Arabia training "insurgents." Once confronted with this discrepancy, the [petitioner] testified that his role as a teach and trainer occurred while he was organizing the Truth Party — explaining his earlier testimony by stating "I did not yet get there. . . . I didn't want to explain more than what the question was suggesting." The [petitioner] then testified that prior to Yemen's unification he "went back to [his] position in the Ministry of Interior. . . . to organize the peasants, the farmers, to go back to their jobs and to open food businesses." When confronted with his written statement, describing in some detail his job at the Interior as an intelligence position working against communists, the [petitioner] stated that he was "just mention[ing] general things" and then blamed the discrepancies on the translator of his written statement.
R. 5-6 (citations omitted).
The BIA ruled that the immigration judge's rejection of Dr. Givi's testimony was justified, in part because Dr. Givi "was not completely informed of [petitioner's] situation." R. at 6. The BIA also found that petitioner's due process rights were not violated during the 1998 or the 2003 hearings before the immigration judge. The BIA ruled that petitioner had not shown translation errors, did not establish ineffective assistance of counsel, and had received an adequate opportunity at both hearings to present his claims.
During the proceedings here, petitioner has submitted additional documents, including two affidavits by petitioner and an evaluation by Frank P. Colistro, Ed. D., a psychologist. Dr. Colistro found that petitioner suffered from chronic posttraumatic stress disorder and moderate depression. Dr. Colistro stated that petitioner had "memory problems" caused by
dissociation occurring around the time of the trauma. This is a form of detachment from real life events which enables a victim to cope with them more effectively. Since he was not fully in touch with reality when the events were occurring, he has no clear recollection of them. He is not being intentionally deceptive.
Colistro Assessment at 12.
DISCUSSION
I. Standards for Claims under the Convention Against Torture
This court has subject matter jurisdiction over petitioner's claim under the Convention Against Torture. Singh v. Ashcroft, 351 F.3d 435, 440-42 (9th Cir. 2003). The United States Department of Justice has promulgated regulations to implement the government's obligations under the Convention Against Torture. Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir. 2003) (citing 8 C.F.R. §§ 208.16-18).
To be entitled to relief under the Convention Against Torture, petitioner must prove that it was "more likely than not that he . . . would be tortured if removed" to Yemen. 8 C.F.R. § 208.16(c)(2); Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). "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.
8 C.F.R. § 208.18(a)(1). A "petitioner carries this burden whenever he or she presents evidence establishing `substantial grounds for believing that he [or she] would be in danger of being subjected to torture' in the country of removal."Kamalthas, 251 F.3d at 1284 (citations omitted). The court should set aside an agency ruling denying relief under the Convention Against Torture if the ruling is not supported by substantial evidence. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). "The court will reverse only if the evidence is so compelling that no reasonable fact finder could have failed to find the requisite likelihood of torture." Singh, 351 F.3d at 442.
II. The Agency's Ruling Is Supported By Substantial Evidence
I conclude that the immigration judge's credibility finding is supported by substantial evidence. The BIA's decision affirming the immigration judge cites specific discrepancies between petitioner's 1994 statement and his subsequent testimony before the immigration judge.
"Where the BIA provides a specific, cogent reason for questioning a petitioner's credibility, the petitioner must show that the evidence compelled a contrary conclusion in order to overcome the special deference accorded to the BIA's credibility determinations." Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003). Here, petitioner has failed to show that the evidence compelled a contrary conclusion. Petitioner's descriptions of his actions after 1982 have been inconsistent.
This court may take judicial notice of evidence not available when the BIA issued its decision. See Gafoor v. INS, 231 F.3d 645, 655-56 (9th Cir. 2000). I disregard, however, petitioner's recently submitted affidavits to the extent that the affidavits attempt to explain discrepancies pointed out by the immigration judge regarding events to which petitioner has already testified. The BIA may discredit an alien's testimony based on internal inconsistencies, and this court must accept the BIA's credibility findings if they are supported by substantial evidence.
I conclude that the immigration judge's ruling on petitioner's Convention Against Torture claim is supported by substantial evidence. Petitioner's evidence is not so compelling that "no reasonable fact finder could have failed to find the requisite likelihood of torture." Singh, 351 F.3d at 442.
III. Petitioner's Due Process Rights Were Not Violated
Petitioner contends that the immigration judge violated his due process rights by refusing to permit him to present new evidence in support of the Convention Against Torture claim, summarily dismissing his expert witness, Dr. Givi, and applying the frivolous asylum application bar.
"The Due Process Clause requires that aliens threatened with deportation are provided with the right to a full and fair hearing. A neutral judge is one of the most basic due process protections. As part of a right to a full and fair hearing, an alien is entitled to a reasonable opportunity to present evidence on his behalf." Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003) (citations and quotation marks omitted). An immigration judge violates an alien's right to due process if the judge "`behaved not as a neutral fact-finder interested in hearing the petitioner's evidence, but as a partisan adjudicator seeking to intimidate [the applicant] and his counsel.'" Taha v. Ashcroft, 362 F.3d 623, 628 (9th Cir. 2004) (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (brackets in Taha)).
In Taha, the Ninth Circuit found no due process violation even though the judge "may have had some preconceived notions about Taha and his claim even before he testified substantively, and then directed several inappropriate comments to Taha and his counsel during the hearing. While unfortunate, this behavior did not violate due process." 362 F.3d at 628-29. The Ninth Circuit distinguished expressions of annoyance, dissatisfaction, or anger from conduct indicating such favoritism or antagonism "`as to make fair judgment impossible.'" Id. at 629 (citation omitted).
Here, the immigration judge found that petitioner was not truthful because of several inconsistencies. The judge may seemed impatient during the hearings because of these discrepancies. He did, however, allow petitioner to present evidence, and did not show actual antagonism.
I conclude that the immigration judge's conduct at the hearings in 1998 and in 2003 did not violate petitioner's due process rights. I also conclude that petitioner's application for asylum and withholding of removal were properly denied.
CONCLUSION
The Petition for Writ of Habeas Corpus (#1) is denied. The stay of removal is continued for thirty days.IT IS SO ORDERED.