Ali v. Mukasey

• Decision Date: 18 June 2008
• Docket Number: No. 06-1469-ag.,06-1469-ag.
• Citation: 529 F.3d 478
• Parties: Peter Conrad ALI, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

529 F.3d 478

Peter Conrad ALI, Petitioner, v. Michael B. MUKASEY,¹ Attorney General of the United States, Respondent.

No. 06-1469-ag.

United States Court of Appeals, Second Circuit.

Argued: February 19, 2008.

Decided: June 18, 2008.

Leon Fresco (Christopher Nugent, of counsel), Holland & Knight LLP, Miami, Fla. (Olivia Cassin, The Legal Aid Society, Civil Practice Area, New York, N.Y., on the brief), for Petitioner.

Thomas H. Dupree, U.S. Department of Justice (Peter D. Keisler, David M. McConnell, Papu Sandhu, on the brief), Washington, D.C., for Respondent.

Before: KEARSE, CALABRESI, and KATZMANN, Circuit Judges.

CALABRESI, Circuit Judge:

Petitioner Peter Conrad Ali, a forty-two-year old Guyanese native and citizen, petitions for review of an order of the BIA affirming IJ Vomacka's decision to terminate his grant of deferral of removal under the CAT. In light of the inappropriate remarks made by IJ Vomacka — which included gratuitous comments on the petitioner's sexuality, as well as unfounded speculations about homosexuals in general — we believe the appropriate course is to grant the petition for review, vacate the BIA's decision, and remand this case for a rehearing before a new IJ.

I. BACKGROUND

A. The 1997 and 1999 Deportations

Ali came to the United States from Guyana in 1980, at age fourteen, and attained lawful permanent resident status five years later. Over the course of the next ten years, he established a long arrest record and was convicted of nine theft-related crimes. In 1995, he was placed in removal proceedings, pursuant to 8 U.S.C. § 1251(a)(2)(A)(ii) (transferred to 8 U.S.C. § 1227(a)(2)(A)(ii)), for having been convicted of two crimes involving moral turpitude. And in September 1997, he was deported to Guyana.

Sometime thereafter, immigration officials discovered that Ali had reentered the U.S. In December 1998, the Immigration and Naturalization Service ("INS") served him with a Notice of Intent/Decision to Reinstate Prior Order, pursuant to 8 U.S.C. § 1231(a)(5), which restored the prior deportation order and charged Ali with illegal reentry. In accordance with that order, Ali was deported for a second time in March 1999.²

But Ali found his way back into the U.S. And in July 2000, immigration authorities placed Ali in removal proceedings once more. As before, they reinstated the August 1997 deportation order and charged Ali with illegal reentry. This time, however, when Ali was in INS custody, he indicated that he wished to apply for relief from removal.

B. Ali's Application for Relief from a Third Deportation

In May 2004, Ali filed for asylum, withholding of removal, and relief under the CAT, claiming that he had experienced past torture and that he feared future torture by the Guyanese government because of his ethnicity (he is of East Indian ancestry) and the fact that he is a criminal deportee. More specifically, Ali gave the following account, which we have culled from his Application for Asylum and/or Withholding of Removal and Declaration in Support of the Petition for Convention Against Torture Protection.

Upon arrival at the airport in Guyana in August 1997, uniformed Guyanese police or immigration officers arrested Ali and forced him into a dark, hot holding room. There, he was interrogated about his criminal history, handcuffed, deprived of food, and detained overnight. The next morning, Guyanese officials transferred him to another precinct where he was detained for several days, again without food, and further interrogated about his criminal record. On the first day of this detention, police officers handcuffed and beat him until he lost consciousness. On the morning of the second day, two police officers entered Ali's cell wearing masks; one raped and sodomized him. The other remarked that they did not want deportees from the U.S. in Guyana. Ali lost consciousness during the assault; he awoke to find himself chained, hanging from the jail cell bars, and bleeding from his rectum.

A day or so after that incident, Guyanese authorities transferred Ali to another precinct, and during processing, he was able to escape. He went first to Berbice, and then, via speedboat, to Brazil, where he met a smuggler named Juan. With Juan's help (and in exchange for $4,000, which Ali's mother wired to Juan from New York), Ali took a boat to Guatemala, and a bus into Mexico; he crossed the U.S.-Mexico border on foot somewhere in Arizona. From there, he hitchhiked his way back to his mother's house in Queens, New York.

In 1999, after he was deported to Guyana for the second time, Ali was again arrested by Guyanese authorities upon arrival. Believing that they would mistreat him, he fled from their custody. Once again, he went to Berbice, where he located Juan. With Juan's son's passport, Ali traveled to Jamaica. And in Jamaica, he obtained a Jamaican passport with a U.S. visa, which he used to board a flight from Jamaica to John F. Kennedy airport in New York City.

C. The Merit's Hearing before IJ Iskra

IJ Wayne Iskra, sitting in Arlington, Virginia, held a hearing on the merits of Ali's case on July 16, 2002. At that hearing, Ali testified about the events described in his application and responded to questions. The Government called attention to Ali's failure in 1999 to tell the INS about the abuse he claimed to have experienced in 1997 and to seeming inconsistencies in Ali's account. For example, it confronted Ali with an INS document dated August 2000 that, according to the Government, indicated that Ali told INS officials that he came to the U.S. in January 2000, not sometime in 1999, and that he arrived by boat, not by plane, as he later claimed.³ Ali denied giving the INS this information. The Government also presented Ali with letters, purportedly written by Ali and addressed to the Guyanese Embassy in Washington, D.C., in which the author indicated that, if returned to Guyana, he would rob banks, sell crack cocaine to the Guyanese people, and blow up Guyana. Ali stated that he did not write these letters.

D. IJ Iskra's July 16, 2002 Decision

On July 16, 2002, IJ Iskra issued a ruling on Ali's requests for relief. See In re Peter Conrad Ali, No. A 30 105 177 (Immig.Ct.Arlington, Va., July 16, 2002). IJ Iskra found that Ali had not met his burden of proving that he was persecuted because of his ethnicity, so he was not eligible for asylum. But IJ Iskra found credible Ali's account of the physical and sexual abuse he experienced in Guyana in 1997. "[A]lthough this respondent ... has committed many offenses and has made inconsistent statements," IJ Iskra stated, "[i]t is the opinion of the Court ... that the respondent's testimony with respect to what happened to him when he was arrested in 1997 by the Guyanese authorities is credible." IJ Iskra emphasized that Ali's account was corroborated by the background information submitted, which documented "inhumane and degrading" prison conditions and recorded "numerous instances" of murder, torture, and ill treatment by the Guyanese police, including instances involving "criminal suspects."

On the basis of this credibility finding, IJ Iskra concluded that Ali had met his burden of proving that he would be subject to torture if returned to Guyana. IJ Iskra denied Ali's request for withholding of removal under the CAT, however, because Ali's criminal history suggested that he would be a danger to the U.S. community. Instead, IJ Iskra granted Ali deferral of removal and left it to "the discretion of the INS as to whether or not [Ali] shall be released from custody." Neither party appealed this decision.

E. The Termination of Deferral of Removal Proceedings before IJ Iskra

In July 2003, the Department of Homeland

Security ("DHS")⁴ filed a motion to terminate Ali's deferral of removal, pursuant to 8 C.F.R. § 1208.17(d)(1).⁵ DHS asked the Immigration Court to reinstate Ali's case to its calendar to consider "new evidence," evidence that would show that country conditions in Guyana no longer supported Ali's CAT claim.⁶

DHS attached to its motion its "new evidence," which included the results of a State Department inquiry, conducted at DHS's request, "into the specific conditions for returning criminal aliens." On the basis of an exchange with the U.S. Embassy in Guyana, the State Department wrote a letter to DHS indicating that it "d[id] not know of any cases of systematic abuse of criminal deportees upon their return to Guyana or instances of singling out of criminal deportees for abuse by police," nor did it know "of any cases of abuse by the immigration police in Guyana." DHS also attached two letters that Ali allegedly sent to the Guyanese Embassy in Washington (the same letters referenced in the July 16, 2002 hearing). These stated, in substance, that Ali had no family left in Guyana and would make trouble there if the Embassy gave U.S. immigration officials travel documents for him.

The DHS motion also argued that Ali remained "a danger to the community if released," and that "DHS will not be allowed to detain him indefinitely" because "[t]he INA contains an implicit limitation" on detention. The detention period allowed is only that which "is reasonably necessary to bring about removal"; "[o]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized under the INA."

IJ Iskra held a preliminary hearing on the motion in November 2003. He convened a hearing on the merits on February 3, 2004, but then granted a continuance until March 25, 2004, to allow counsel for DHS to seek State Department review of some of Ali's submissions and to arrange for State Department witnesses to testify telephonically (IJ Iskra implied that he would otherwise give the State Department letter limited weight).

On March 5, 2004, however, the U.S. Attorney's Office for the Eastern District of New York started criminal proceedings against Ali, charging him with illegal re-entry.⁷ Accordingly, the U.S....