Bankhole v. I.N.S.
| Decision Date | 05 December 2003 |
| Docket Number | No. 3:02-CV-702 (EBB).,3:02-CV-702 (EBB). |
| Citation | 306 F.Supp.2d 185 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Precious BANKHOLE, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE et al., Respondents |
James K. Filan, Jr., U.S. Attorney's Office, Bridgeport, CT, for Respondent.
RULING ON REMAND OF PETITION FOR HABEAS CORPUS
Petitioner Precious Bankhole, ("Petitioner" or "Bankhole"),is a native and citizen of Nigeria. She was admitted to the United States in 1972 as the spouse of a non-immigrant student and her status was adjusted to that of lawful permanent resident in 1984. On June 6, 1997, Petitioner was convicted in the United States District Court for the Eastern District of Virginia of: (1) conspiracy to commit money laundering in violation of 18 § 1956(c); (2) perjury, in violation of 18 U.S.C. § 1623; and (3) obstruction of justice, in violation of 18 U.S.C. § 1503. She was sentenced to 63 months in prison. Her conviction was affirmed by the Court of Appeals for the Fourth Circuit.
As a result of these convictions, Respondent instituted removal proceedings against Petitioner. She conceded her removability and sought asylum, cancellation of removal under the Immigration and Nationality Act ("INA"), § 240(A), family hardship relief pursuant to INA § 212(h), withholding of removal under INA § 241(B)(3), and withholding of removal under the Convention Against Torture ("CAT"), 1465U.N.T.S. 85, G.A. Res. 39/46, 39th Sess.,U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984),23 I.L.M. 1027 (1984). Because Bankhole had been convicted of an aggravated felony and sentenced to more than five years' imprisonment, the immigration judge ("IJ"), ruled that she was ineligible ruled for any of these forms of relief except witholding under CAT. After review, he denied her claim for asylum under that Convention. The BIA summarily affirmed.
Petitioner, pro se, filed a Section 2241 habeas petition with this Court, which denied the petition, holding, inter alios, that it had no jurisdiction to review a claim under CAT in that the torture convention was not "self-executing" and that, as an individual convicted of an aggravated felony, Petitioner was ineligible for family hardship relief pursuant to the Immigration and Nationality Act ("INA"), Section 212(h), 8 U.S.C. Section 1182(h). The Court assumes familiarity with that opinion.
Still pro se, Bankhole appealed this Court's decision on two grounds: that the Court had erred in not considering, and vindicating, her claim under CAT; and that, under the recent decision in Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y.2002), she is entitled to a hearing, pursuant to INA Section 212(h), as to whether the order of deportation against her should be waived due to the "substantial hardship" her deportation would cause to her disabled citizen son, for whom still has been the sole caregiver for his entire life, until she was imprisoned, at which time her son was placed in foster care ..
Shortly after the entry of judgment by this Court, the Court of Appeals for the Second Circuit decided Wang v. Ashcroft, 320 F.3d 130 (2d Cir.2003), in which that Court held that the Foreign Affairs and Restructuring Act of 1988, which implements the relevant article of CAT, does not deprive the federal courts of habeas jurisdiction to review the BIA's denial of claims for witholding of removal pursuant to CAT. Resultingly, the Appellate Court remanded for consideration of the CAT arguments, based on intervening law.
As to Petitioner's claim of family hardship, the Appellate Court suggested that this Court consider: (1) whether Petitioner's failure to make an argument similar to that in Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y.2002), during her administrative proceedings, amounts to a waiver of such an argument now; (2) whether Petitioner is entitled to a family hardship hearing, INA Section 212(h), under Beharry; (3) whether Beharry's"international law" gloss on Section 212(h) is correct; and (4) any other arguments the parties deem relevant to Petitioner's request for a Section 212(h) hearing. This Court ordered briefing from the parties on these four issues. Having received the memoranda of law from both parties, the petition is now ready for decision.1
The issue before this Court, pursuant to an analysis of CAT, is whether Petitioner has met her burden of establishing that she is eligible for deferral of removal under the Convention by proving that it is more likely than not that she will be imprisoned and tortured upon her removal to Nigeria. See 8 C.F.R. §§ 208.16(c)(4), 208.18(a)(2002); Matter of S-V-, 22 I & N Dec. 1306 (BIA 2000). In making this determination, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to, evidence of past torture, evidence that Petitioner could relocate to a part of the country where she is not likely to be tortured, evidence of gross, flagrant, or mass violations of human rights within the country of removal, and any other relevant information regarding conditions in the country of removal. See 8 C.F.R. § 208.16(c)(3). Torture is defined, in pertinent part, as See 8 C.R.F. §§ 208.18(a)(1); 208.18(a)(2); 208(a)(5).
Bankhole has stated that, if she is returned to Nigeria, she will be tortured and imprisoned, pursuant to the 1990 Decree No. 33 of the Nigerian Drug Enforcement Agency. This Decree provides that a Nigerian citizen who is convicted of a narcotic drug offense in a foreign country, or is detected carrying a narcotic drug into a foreign country after a journey originating from Nigeria "shall be liable to imprisonment for a term of five years without an option of fine and [her] assets and properties shall be liable to forfeiture as provided by this Decree." See generally McDaniel v. United States INS, 142 F.Supp.2d 219, 223 (D.Conn.2001).
Initially, this Court must respectfully disagree with the finding of the IJ that "[t]here is no evidence that, while conditions in the Nigerian prison system are very poor for anyone who is detained in that system, there would be intentional infliction of harm by the authorities." Oral Decision of Immigration Judge, November 28, 2001 at 11-12. The Nigerian Report on Human Rights Practices, issued by the U.S. Department of State on February 23, 2001, provides, in pertinent part:
Prison and detention conditions remained harsh and life threatening... Lack of potable water, inadequate sewage facilities, and severe overcrowding resulted in unhealthy and dangerous sanitary conditions. Disease was pervasive ... inmates had to provide their own food [and] only those with money or whose relatives brought food regularly had sufficient food ... [m]any inmates were forc[ed] to sleep on concrete floors, often without a blanket... prison officials, police, and security forces often denied inmates food and medical treatment as a form of punishment or to extort money from them. Harsh conditions and denial of proper medical treatment contributed to the deaths in detention of numerous prisoners. A reputable human rights organization estimated... that at least one inmate died per day in the Kiri Kiri prison in Lagos alone. According to the same nongovernmental organization, dead inmates promptly are buried in mass graves on the prison compounds, usually without their families having been notified. Although the Constitution of Nigeria prohibits torture and mistreatment of prisoners, police and security forces regularly beat detainees and convicted prisoners.
As noted above, torture is an extreme form of cruel and unusual and inhumane treatment. Further, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. Surely, when officials involved with a prison system intentionally withhold required medical treatment for punishment or extortion, this is an act "specifically intended to inflict severe physical and or mental pain and suffering." When at least one inmate dies per day in a prison, in part due to the witholding of proper medical treatment, it must be inferred that an extreme form of cruel and unusual and inhumane treatment is occurring therein. This Court does not accept the rationale that simply because "Nigeria is a very poor country... it may not have the resources to maintain an adequate prison system." Oral Decision of Immigration Judge, November 28, 2001 at 11. "Adequate" is the complete antithesis of the extreme form of cruel, unusual or inhumane treatment described above.
The difficulty with Petitioner's claim that she would be subjected to this type of horrific treatment is that she was not convicted of a drug offense within the meaning of Decree No. 33. Rather, she was...
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