Silva-Rengifo v. Atty. Gen. of U.S.
| Decision Date | 09 January 2007 |
| Docket Number | No. 05-3423.,No. 04-4302.,04-4302.,05-3423. |
| Citation | 473 F.3d 58 |
| Parties | Carlos SILVA-RENGIFO, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES; United States Department Of Homeland Security, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Alexander E. Eisemann, Esq., (Argued), South Salem, NY, Attorney for Petitioner.
Jonathan Potter, Esq., (Argued), Douglas E. Ginsburg, Esq., Mark S. Des Noyer, Esq., William C. Peachey, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Attorneys for Respondent.
Before McKEE and AMBRO, Circuit Judges, and RESTANI,* Judge.
Carlos Silva-Rengifo petitions for review of an en banc decision of the Board of Immigration Appeals denying his motion to reopen. The government did not initially oppose that motion. However, after the Board granted permission to reopen, the government petitioned for en banc review by the entire Board. The BIA's en banc decision reversed the decision to allow Silva-Rengifo to reopen his motion. The en banc Board held that Silva-Rengifo had not established a prima facie case for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention" or the "CAT") because he had not shown governmental acquiescence in the torturous conduct. For the reasons that follow, we will reverse the BIA's en banc decision and remand to the BIA for further proceedings consistent with this opinion.
Silva-Rengifo, a 47-year-old husband and father of three, entered the United States as a lawful permanent resident in 1968 when he was only 11 years old, and he has lived here continuously for the past 38 years. In 1990, he was convicted of possession of cocaine with intent to distribute in state court in New Jersey, for which he was sentenced to a period of incarceration of three and one-half years.
As a result of that conviction, removal proceedings began against him in June 1991. In 1993, after a full hearing, an Immigration Judge found him removable and denied his application for section 212(c) hardship relief.1 The IJ considered the equities that Silva-Rengifo presented, but concluded that the equities and the evidence of family hardship that would be caused by removal did not justify relief under section 212(c). Silva-Rengifo appealed the IJ's decision to the BIA. The BIA rejected his appeal in December 1993. Although the BIA held that Silva-Rengifo was removable in 1993, the INS took no steps to remove him for several years. Seven years later, on November 29, 2000, the INS issued a Form I-166, or "bag-and-baggage" letter (requiring aliens with final removal orders to report for deportation by a specified date) implementing the BIA's 1993 decision.
On July 26, 2001, Silva-Rengifo was arrested on a warrant that issued after he failed to appear in response to the Bag and Baggage letter.2 Almost immediately thereafter, on July 31, 2001, he filed a motion with the BIA asking it to reopen or reconsider the 1993 decision so that he could produce evidence that would establish his eligibility for relief under the CAT. He argued that, due to changed country conditions since the IJ's 1993 decision, he would face an unacceptable risk of death or serious injury if removed to Colombia. The record before the Board included documentary evidence of the changed country conditions, including evidence of human rights abuses and extrajudicial killings carried out by the government, kidnapings by paramilitary and guerilla forces, and cooperation or collusion between such groups and the government.3
The BIA granted the motion to reopen in part, and denied it in part. The Board relied on St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) to deny reopening Silva-Rengifo's section 212(c) application to present additional evidence of his rehabilitation during the seven years since the initial BIA decision. However, the Board granted the request for consideration of relief under the CAT. The Board explained:
He also wishes the hearing to be reopened so that he can apply for asylum and withholding of deportation to Colombia. . . . [He] is barred . . . from filing an asylum or CAT application unless he can show changed circumstances in his country of nationality or extraordinary circumstances relating to the delay.
* * *
The respondent has demonstrated changed circumstances in his country of nationality. The background information demonstrates a significant deterioration in society since his hearing. His claim that he belongs to a persecuted social group of foreign nationals or those perceived to be foreign nationals is supported by the reports submitted with this motion. Therefore, we find he has made a prima facie case of a well-founded fear of persecution to qualify for asylum. However, there is little evidence that the government acquiesces in torture; this issue should be developed at the hearing regarding whether he has not demonstrated a (sic) eligibility for relief under the Convention Against Torture. See Matter of S-V-, Interim Decision 3430 (BIA 2000).
App. at 50. The Board thereafter entered an order granting Silva-Rengifo's motion to reopen, and remanded the appeal to the IJ for further proceedings consistent with its opinion.
The government responded to the BIA's partial grant of relief by petitioning for en banc reconsideration of the BIA's order. As summarized in the BIA's en banc decision, the Department of Homeland Security ("DHS") argued that Silva-Rengifo's application for relief was untimely, and that he had not "set forth a prima facie case for eligibility under the CAT since he did not show that he was more likely than not to face torture by those acting with the consent or acquiescence of public officials." (citing 8 C.F.R. §§ 1208.18(a)(1),(7)).
The en banc Board rejected DHS's claim that Silva-Rengifo's motion to reopen was untimely, stating: "We stand by our previous finding that the respondent can demonstrate changed country conditions as a basis for justifying the late filing of his application for relief." App. at 38. (BIA en banc Decision 2004). However, the en banc Board nevertheless held that allowing Silva-Rengifo to reopen was error because he had not established that the Colombian government acquiesces to torture. The Board explained:
The respondent, however, did not provide evidence of his prima facie eligibility for relief under the Convention Against Torture because he failed to show that any harm that might befall him in Colombia would be meted out by the government or by those acting with the consent or actual acquiescence of the government. 8 C.F.R. §§ 1208.18(a)(1), (7). Protection under the Convention Against Torture does not extend to those who are harmed by groups that the government is unable to control. See Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000).
App. at 38 (BIA en banc Decision 2004) (emphasis added). The Board concluded that "because the record contain[ed] little evidence that the [Colombian] government acquiesces in torture of those perceived to be foreign, the respondent has failed to demonstrate prima facie eligibility for relief under the Convention Against Torture, and, therefore, the motion to reopen should have been denied." Id. at 38-39 (internal quotation marks omitted).
Silva-Rengifo then filed the instant petition for review of the en banc decision. He also filed for habeas corpus relief in the United States District Court for the District of New Jersey. He raised the following five claims for relief in his petition for review: (1) the government had waived any challenge to his prima facie case by failing to initially oppose his motion to reopen; (2) the BIA erred in concluding that he had not established a prima facie case; (3) he was wrongly precluded from introducing additional evidence of his rehabilitation and seeking reconsideration of the BIA's 1993 decision; (4) the INS was precluded from enforcing the initial order of removal because of laches and/or equitable estoppel; and (5) his underlying conviction should not be considered an "aggravated felony" for immigration purposes.
Pursuant to a motion by the government, Silva-Rengifo's habeas petition was transferred from the district court to this court under the REAL ID Act of 2005, Pub.L. No. 109-13, div. B, 119 Stat. 231 (2005) (the "REAL ID Act"). His original petition for review is consolidated with the habeas petition which we must treat as a petition for review, and both are now before us. Kamara v. Att'y Gen., 420 F.3d 202, 210 (3d Cir.2005).
Under the REAL ID Act, a petition for review is now the exclusive means of judicial review of all orders of removal except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5) (2005). Moreover, all habeas corpus petitions filed by aliens seeking relief from removal that were pending in the district courts on the date the REAL ID Act became effective (May 11, 2005) were converted to petitions for review and transferred to the appropriate court of appeals. See 8 U.S.C. § 1252(a)(5); see also Hernandez v. Gonzales, 437 F.3d 341, 344 (3d Cir.2006).4
Accordingly, we now have before us two petitions for review. The first is the petition for review that Silva-Rengifo filed in this court seeking review of the BIA's en banc denial of his motion to reopen. As noted, there, the en banc Board denied the motion based upon its conclusion that he had not demonstrated prima facie eligibility for relief under the CAT. The second is the converted habeas petition that Silva-Rengifo originally filed in the district court, challenging the constitutionality of the removal proceedings.
Although Silva-Rengifo's habeas corpus petition has now been converted to a petition for review, our standard...
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