In re G-K-
| Decision Date | 30 January 2013 |
| Docket Number | Interim Decision #3776 |
| Citation | 26 I&N Dec. 88 |
| Parties | Matter of G-K-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 ("UNTOC"), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.
(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).
(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claim that the statute barring relief for particularly serious crimes is void for vagueness.
FOR RESPONDENT: Matthew L. Hoppock, Esquire, Kansas City, Missouri
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated October 4, 2011, an Immigration Judge found the respondent removable under sections 237(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i) (2006), as an alien convicted of an aggravated felony and a controlled substance violation. The Immigration Judge denied the respondent's applications for asylum, withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006), and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). The Immigration Judge alsofound that she lacked jurisdiction to adjudicate the respondent's claim that he should be allowed to remain in the United States pursuant to the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209, http://www.unodc.org/unodc/en/treaties/CTOC/index.html ("UNTOC"). The respondent has appealed from the Immigration Judge's decision. The appeal will be dismissed.
The respondent is a native and citizen of Ghana whose status was adjusted to that of a lawful permanent resident on January 15, 2000. On May 11, 2010, he was convicted of conspiracy to distribute and possess with intent to distribute at least a kilogram of heroin in violation of 21 U.S.C. §§ 841(b)(1)(A)(i) and 846 (2006).
The respondent was subsequently placed in removal proceedings. He requested relief from removal based on his claim that he faces harm upon his return to Ghana because he cooperated with United States authorities by agreeing to testify against his coconspirators, one of whom was reportedly a member of the Ghanaian Parliament at the time of his 2006 arrest. Both coconspirators were convicted and sentenced for their involvement in a heroin trafficking scheme. One has since returned to Ghana, while the other is still serving his 10-year prison sentence in the United States.
The respondent claimed that his role in the Parliament member's prosecution in the United States is known to the Ghanaian community in the United States and in Ghana. According to the respondent, he received two threatening phone calls and numerous "hang-up calls" in 2005 and heard from a neighbor and two friends that individuals described as "Ghanaians" or "Africans" were inquiring about him in 2005 and 2006. The respondent further testified that his family members in Ghana were approached by strangers asking about his whereabouts. He also stated that in 2009 his nephew in Ghana was severely beaten by a group of men. Further, the respondent's United States citizen wife testified to receiving phone calls that caused her concern. After the respondent was placed in the custody of the Department of Homeland Security ("DHS"), she received phone calls from individuals who were looking for the respondent, twice in 2010 and once in 2011. Another call in 2010 was from a woman who offered to assist the respondent with his immigration problems.
The Immigration Judge denied the respondent's requests for relief from removal and ordered him removed to Ghana. Specifically, she found that she had no authority to craft or adjudicate an independent remedy under the UNTOC; that the respondent was statutorily barred from asylum and withholding of removal under the Act; and that the respondent, while credible,did not satisfy his burden of proof for protection under the Convention Against Torture. The respondent argues on appeal that the Immigration Judge erred in denying him relief under the UNTOC, withholding of removal under the Act, and protection under the Convention Against Torture. We disagree.
and the Protocols
The respondent claims that he is entitled to remain in the United States pursuant to the UNTOC because he cooperated and agreed to testify against his coconspirators regarding their heroin trafficking scheme, in which he also took part. In making this argument, he relies on the decision of the United States Court of Appeals for the Third Circuit in Rranci v. U.S. Attorney General, 540 F.3d 165 (3d Cir. 2008). However, the Third Circuit did not hold that the UNTOC independently provided aliens relief that can be pursued in removal proceedings. Rather, the court remanded the case to the Board to determine how United States law complies with the relevant provisions of the UNTOC. Id. at 178.
The UNTOC and two supplementary protocols were signed by the United States on December 13, 2000, and were ratified on November 3, 2005. Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 507 (entered into force Jan. 28, 2004) ("Smuggling Protocol"); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 U.N.T.S. 319 (entered into force Dec. 25, 2003) ("Trafficking Protocol").1 The stated purpose of the treaty "is to promote cooperation to prevent and combat transnational organized crime effectively." UNTOC art. 1. The UNTOC and the Protocols obligate each signatory to "take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by [the UNTOC]." UNTOC art. 24(1). Individuals covered by the UNTOC and the Protocols include smuggled migrants, trafficking victims, and witnesses in criminal proceedings who give testimony concerning criminal offenses covered by the UNTOC.
As noted by the Third Circuit in Rranci, 540 F.3d at 178, a 2004 letter of transmittal from President George W. Bush to the Senate stated that current United States law already complies with the UNTOC, obviating the need forany implementing legislation. In an accompanying letter of submittal to the President, Secretary of State Colin Powell indicated that Article 24 of the UNTOC, which accords protection to witnesses in criminal proceedings, can be implemented through current criminal statutes and regulations governing the protection of witnesses, a process over which neither the Immigration Judge nor the Board has jurisdiction. See S. Treaty Doc. No. 108-16 (2004), http://www.gpo.gov/fdsys/pkg/CDOC-108tdoc16/content-detail.html.2
In the context of immigration law, the objectives of the UNTOC concerning the protection of witnesses and trafficking victims are advanced through existing statutes. See, e.g., William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044; Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558; Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875; Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 ("VTVPA"); see also Hearing on Law Enforcement Treaties Before the S. Comm. on Foreign Relations, 108th Cong. 9-12 (2004) (statement of Samuel M. Witten, Deputy Legal Adviser, U.S. Dep't of State). More specifically, the immigration laws and regulations offer certain aliens who are victims of—and cooperators, informants, or witnesses against—human trafficking or a criminal organization eligibility for S, T, or U nonimmigrant status, if they satisfy other eligibility requirements and obtain the approval of the DHS. Sections 101(a)(15)(S), (T), (U) of the Act, 8 U.S.C. §§ 1101(a)(15)(S), (T), (U) (2006); see also, e.g., 8 C.F.R. §§ 214.2(t), 214.11, 214.14, 1214.2 (2012).
The S nonimmigrant classification for aliens who cooperate in criminal investigations was created by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796, 2024. This classification, which is the most applicable to the respondent's case, may be available to an alien who is in possession of critical reliable informationnecessary to the successful investigation or prosecution of an individual involved in a criminal organization or enterprise and who is willing to supply or has supplied such information. Section 101(a)(15)(S)(i) of the Act.3
An application for an S nonimmigrant visa is initiated with a request from an interested Federal or State law enforcement authority and is subject to the approval of the DHS, although the DHS's...
To continue reading
Request your trial