Opinion
02-CV-0760Sr.
August 10, 2004.
DECISION AND ORDER
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #13.
The petitioners filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking review of the Board of Immigration Appeal's ("BIA's"), summary affirmance of the Immigration Judge's ("IJ's) decision to deny the petitioners' application for asylum and withholding of removal. Dkt. #1. Specifically, the petitioners claim that the BIA's summary affirmance violates the procedural and substantive due process guarantees afforded by the United States Constitution and constitutes an abuse of discretion by the BIA. Dkt. #1, ¶¶ 32, 42. The petitioners also claim that they have established past persecution on account of political opinion, thereby creating a presumption of future persecution, which the INS failed to rebut. Dkt. #1, ¶ 45.
The respondents moved to dismiss the petition for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to set forth a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. #6. For the following reasons, the respondents' motion is granted.
BACKGROUND
The petitioners are husband and wife. Dkt. #1, ¶ 21. They are citizens of the Ukraine and entered the United States on December 4, 1994 with valid passports and visas authorizing them to remain as visitors for six months. Dkt. #1, ¶ 21. In January of 1995, the petitioners filed applications for asylum, which were denied by the IJ by oral decision rendered November 17, 1997. Dkt. #1, ¶¶ 22-26. The transcript of that decision reveals that the IJ considered Nestor Kritsun's application for asylum; the testimony of both petitioners and Nestor Kritsun's brother; and the "current profile of asylum claims and country conditions for the country of the Ukraine, provided by the Department of State's Office of Asylum Affairs, Bureau of Democracy, Human Rights and Labor, as well as a country report on human rights practices, for the country of the Ukraine, also provided by the Department of State." Dkt. #2, Exh. G, p. 3. The IJ summarized Nestor Kritsun's claim as alleging
a fear of persecution on account of political opinion. He asserts that his membership in activities on behalf of the pro-Ukranian Crimean political organization places him at great harm and a target for retribution and punishment by pro-communist, pro-Russian opposition party members, unidentified criminal elements, and the government in general. He testifies that he has experienced harassment and discrimination at his place of employment, and that he and his family have been the victims of violence and threats by unknown individuals, all of which he attributes to his affiliation with the identified organization, and ascribes political motivation to his related experiences. He maintains that his personal safety continues to be threatened under current conditions and urges that he be granted asylum, and not be returned to the country of the Ukraine.
For example, Nestor Kritsun testified that his supervisor forbid his attendance at political meetings, humiliated him in front of co-workers and threatened him with comments such as "when the soviet power came back, [there] would be lots of jobs for us in Siberia." Dkt. #6, Exh. A, p. 106. He left that position for another job in 1993. Dkt. #6, Exh. A, p. 106.
Tatyana Kritsun testified that one evening at the end of November of 1993, she and a neighbor were walking home when "there were some unknown subjects who started threatening us that if my husband was going to do his political activities, then there would be some worse measures taken. . . ." Dkt. #6, Exh. A, pp. 171-72.
While on his way home at approximately 11:00 p.m. on June 5, 1994, Nestor Krtisun was beaten unconscious by three men who "said it was the end of my political . . . activity, that the Crimean peninsula will never be Ukranian, and they will drop all the members of the Aruk parties to the sea, down to the sea." Dkt. #6, Exh. A, p. 109.
The evening after he reported his assault to the police, Nestor Kritsun received a telephone call indicating "that I received not enough punishment for I reported to the police. And, I understood that they had their own people in the militia and there is no use of my reporting to them, and I find out that they didn't find anyone guilty." Dkt. #6, Exh. A, p. 110.
Dkt. #2, Exh. G, pp. 3-4. After setting forth the legal standards applicable to applications for asylum and withholding of removal, the IJ determined that Nestor Kritsun "failed to demonstrate either past persecution or a well-founded fear of furture persecution on account of any one of the five protected categories." Dkt. #2, Exh. G, p. 6. With respect to the petitioner's claims of discrimination in employment, the IJ determined that
the employment background of the respondent does not support a claim of deprivation amounting to persecution. The evidence here reflects the continuing employment of [Nestor Kritsun] up to the point of his departure to the United States, and the termination of employment as his voluntary decision.
Dkt. #2, Exh. G, p. 7. The IJ further determined that
With regard to [Nestor Kritsun's] fear of violence or mistreatment, the Court cannot find, on this record, that [he] has demonstrated an invidious motive on the part of those threatening harm, such that the incidents could be shown to amount to acts of persecution on account of one of the five enumerated grounds in the statute.
What is evident from the [Department of State Country] profile, is that the break up of the Soviet Union and the emergence of a non-communist republic in the Ukraine, has been accompanied by economic instability, personal insecurity, competition for scarce resources and mistreatment at the hands of criminal elements, none of which necessarily has anything to do with one of the five protected grounds in the [asylum] statute. The incidents of harm or threatened harm described by [Nestor Kritsun] appear to be unsanctioned random acts of violence and lawlessness, incidental to the decline of physical security, affecting much of the Ukranian republic and not acts of persecution for a protected ground. Under such circumstances, the alleged lack of aggressiveness by the authorities in confronting and investigating such criminal activity does not appear to be motivated or determined by the particular category of individual or victim.
The Court finds, therefore, that [Nestor Kritsun] has failed to sufficiently establish a reasonable nexus or relationship between the harm or threatened harm and his political affiliation, described in the asylum legislation.
Dkt. #2, Exh. G, p. 8.
The BIA issued a summary affirmance of the IJ's decision on June 19, 2002. Dkt. #1, ¶ 28. The petitioners have been released on their own recognizance with work authorization during the duration of these proceedings. Dkt. #1, ¶¶ 10.
DISCUSSION
Motion to DismissThe court is required to read the complaint broadly and with great latitude on a motion to dismiss. Yoder v. Orthomolecular Nutr. Inst., 751 F.2d 555, 558 (2d Cir. 1985). When considering such a motion, the court accepts the material facts alleged in the petition as true and draws all reasonable inferences in favor of the petitioners and against the respondents. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). The petition will be dismissed only if "it appears beyond doubt" that the petitioners can prove no set of facts which would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Stated another way, I must determine whether petitioners have stated any valid ground for relief in their complaint. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994).
In assessing the validity of a petition on a motion to dismiss, the Court "may consider documents that are referenced in the Complaint, documents that the [petitioners] relied on in bringing suit and that are either in the [petitioners'] possession or the [petitioners] knew of when bringing suit, or matters of which judicial notice may be taken." Karan v. McElroy, 2003 WL 21209769, at *2, n. 2 (S.D.N.Y. 2003). Thus, where, as here, petitioners rely upon information contained in the administrative record in support of their petition for a writ of habeas corpus, the Court may consider such information in assessing a motion to dismiss. Id.; see St. George v. Blintz, 2003 WL 1562240, at *2, n. 7 (N.D.N.Y. 2003) (collecting cases).
Subject Matter Jurisdiction
Although the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009 (1996), limit the scope of jurisdiction that district courts have in matters of immigration, the Supreme Court of the United States has held that district courts retain jurisdiction over petitions for habeas corpus relief pursuant to 28 U.S.C. § 2241. Calcano-Martinez v. Immigration and Naturalization Service, 533 U.S. 348 (2001); Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, (2001). The United States Supreme Court has specifically confirmed that § 2241 is "available as a forum for statutory and constitutional challenges" to immigration-related detention. Zadvydas v. Davis, 533 U.S. 678 (2001).
In addition, the Court of Appeals for the Second Circuit has confirmed that § 2241 also extends "to claims of erroneous application or interpretation of statutes." Wang v. Ashcroft, 320 F.3d 130, 143 (2d Cir. 2003) ("because the Constitution requires habeas review to extend to claims of erroneous application or interpretation of statutes, St. Cyr, 533 U.S. at 302 . . . neither AEDPA nor IIRIRA could have excluded such claims from the scope of habeas review."). Thus, a challenge to "the BIA's application of the particular facts . . . to the relevant law falls within the permissible scope of habeas review." Wang, 320 F.3d at 143. However, "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Sol v. Immigration Naturalization Service, 274 F.3d 648, 651 (2d Cir. 2001), cert. denied, 536 U.S. 941 (2002) (District Court lacked subject matter jurisdiction to review claim "that the decisions of the IJ and the BIA lacked adequate support in the record"); see also Liu v. Immigration Naturalization Serv., 293 F.3d 36, 41 (2d Cir. 2002) ( 8 U.S.C. § 1252(g) "plainly prohibits" review of any discretionary decision made by the Attorney General).
The IJ's conclusion that the petitioners had not been subjected to past persecution on account of their political opinions is such a discretionary determination. In order to find that the petitioners established past persecution, this Court would have to reconsider the sufficiency of the evidence presented and reassess the credibility of the witnesses who testified before the IJ. Such a review is beyond the scope of this Court's subject matter jurisdiction pursuant to 28 U.S.C. § 2241. In addition, because the IJ did not conclude that petitioners had been subjected to past persecution, the presumption of a well-founded fear of persecution did not arise and there was no such presumption for the INS to rebut. See Melgar de Torres v. Reno, 191 F.3d 307, 311 (2d Cir. 1999). Accordingly, the respondents' motion to dismiss this portion of the petition for writ of habeas corpus is granted.
Failure to State A Cause of Action
The respondents move to dismiss the remaining causes of action asserted in the petition for failure to state a claim upon which relief can be granted. Dkt. #7. Specifically, the respondents assert that the streamlining regulations are constitutional and that the BIA's decision to issue a summary affirmance pursuant to the streamlining regulations is not reviewable. Dkt. #7, pp. 7-17.
Until 1999, the BIA practice was to review all appeals from IJ decisions in three-member panels. In response to statistics showing that appeals and motions to the BIA had increased more than nine-fold between 1984 and 1999, to some 28,000 per year, the BIA promulgated streamlined review. Under these regulations, appeals to the BIA can be resolved by a single Board member who may summarily affirm an IJ's decision if he determines that the result reached by the IJ is correct and further concludes that: (1) any errors in the IJ's reasoning are either harmless or nonmaterial, and (2) the issue on appeal is either squarely governed by controlling precedent or too insubstantial to warrant full review by a three-member panel. When the BIA summarily affirms an IJ's decision, the regulations provide for its order to state simply: "The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 CFR 3.1(a)(7)."Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 157 (2d Cir. 2004) (internal citations omitted).
The Court of Appeals has determined that these streamlining regulations comport with the traditional three-part due process test articulated by the United States Supreme Court in Matthews v. Eldridge since the applicant for asylum or removal "remains entitled to a full hearing on his asylum claims, a reasoned opinion from the IJ, the opportunity for BIA review, and the right to seek relief from the courts. Id. at 159, citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976). The Court of Appeals concluded that "because nothing in the immigration laws requires that administrative appeals from IJ decisions be resolved by three-member panels of the BIA through formal opinions that `address the record,' the BIA was free to adopt regulations permitting summary affirmance by a single Board member without depriving an alien of due process." Id. at 157.
In a separate decision, the Court of Appeals determined that the streamlining procedure by which a single member of the BIA summarily affirms the IJ's decision does not constitute an abuse of discretion so long as the IJ's decision contains sufficient reasoning and evidence to enable the Court to determine that the requisite factors were considered. Shi v. Board of Immigration Appeals, ___ F.3d ___, 2004 WL 1472681, at *2 (July 1, 2004); Arango-Aradondo v. Immigration Naturalization Service, 13 F.3d 610, 613 (2d Cir. 1994).
To prevail on an asylum application, the applicant "must establish that he is a `refugee,' a term that includes one who, among other requirements, has suffered past persecution, or has a well-founded fear of future persecution, on account of political opinion or other protected grounds." Shi, 2004 WL 14726881, at *1, citing 8 U.S.C. § 1101(1)(42). "When an asylum applicant has demonstrated that [he] has been subjected to past persecution, there is a presumption that a well-founded fear of persecution exists." Melgar de Torres, 191 F.3d at 311, citing 8 C.F.R. § 208.13(b)(1)(i). "Once demonstrated, the burden shifts to the government to show, by a preponderance of the evidence, that country conditions have changed to such an extent that the petitioner no longer has a well-founded fear that [he] would be persecuted if [he] were to return to [his] native country." Id.
"An applicant for withholding of deportation must establish that it is more likely than not that, were he deported, his life or freedom would be threatened on account of political opinion or other protected grounds." Shi, 2004 WL 14726881, at *1, citing 8 U.S.C. § 1231(b)(3)(A). "An applicant who fails to establish eligibility for asylum has also failed to establish eligibility for withholding of deportation." Id.
In the instant case, the IJ set forth the appropriate legal standards for a claim of asylum and withholding of deportation and explained why the petitioners had not met the standard required for asylum. Specifically, the IJ determined "that [Nestor Kritsun] has failed to sufficiently establish a reasonable nexus or relationship between the harm or threatened harm and his political affiliation." Dkt. #2, Exh. G, p. 8. Instead, the IJ concluded that the "incidents of harm or threatened harm described by [Nestor Kritsun] appear to be unsanctioned random acts of violence and lawlessness, incidental to the decline of physical security, affecting much of the Ukranian republic and not acts of persecution for a protected ground." Dkt. #2, Exh. G, p. 8.
As noted above, it is beyond the scope of this Court's subject matter jurisdiction on habeas review to review the IJ's factual conclusions. The Court is satisfied, however, that the IJ's decision contains sufficient reasoning and evidence to enable the Court to determine that the requisite factors for asylum and withholding of removal were considered. Accordingly, the IJ's determination did not constitute an abuse of discretion.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
(a) Respondents' motion to dismiss (Dkt. #6) is GRANTED and the petition (Dkt. #1) is DISMISSED;
(b) JUDGMENT in accordance with this Decision and Order be entered and the case CLOSED; and
(c) Certification pursuant to 28 U.S.C. § 1915(a)(3) be entered stating that any appeal from this Judgment would not be taken in good faith and therefore leave to appeal as a poor person should be denied. Coppedge v. United States, 369 U.S. 438 (1962).