In re S-V-
| Decision Date | 09 May 2000 |
| Docket Number | Interim Decision No. 3430. |
| Citation | 22 I&N Dec. 1306 |
| Parties | In re S-V-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, GRANT, and MILLER, Board Members. Concurring Opinion: VILLAGELIU, Board Member. Concurring and Dissenting Opinion: SCHMIDT, Chairman; joined by GUENDELSBERGER and MOSCATO, Board Members. Dissenting Opinion: ROSENBERG, Board Member.
HEILMAN, Board Member.
This case was last before us on May 26, 1999, when we dismissed the respondent's appeal from a decision of an Immigration Judge finding him removable as charged. The respondent has filed a motion to reopen the proceedings in order to apply for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3) (Supp. II 1996), and to request protection under Article 3 of the United Nations 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 and Naturalization Service has not submitted a response. The motion will be denied.
The record reflects that the respondent is a native and citizen of Colombia. He was admitted to the United States on or about February 7, 1981, as a lawful permanent resident. On February 4, 1998, the respondent was convicted in the Circuit Court of Broward County, Florida, of the offenses of grand theft, resisting arrest without violence, and driving while his license was suspended. He received a sentence of 4 years' imprisonment. The respondent was also convicted at that time of robbery and was sentenced to 4 years' imprisonment, to run concurrently with the other sentence.
In his motion, the respondent argues that he would be in danger from nongovernmental guerrilla, narcotrafficking, and paramilitary groups in Colombia. The respondent contends, both in his motion and in his attached application for withholding of removal, that the guerrillas finance their operations through kidnaping. According to the respondent, ever since the Government of Colombia gave the guerrillas land as an element of peace negotiations, authorities are no longer able to control the kidnaping that occurs nationwide. The respondent contends that individuals who are kidnaped suffer subhuman conditions at the hands of their captors, and he asserts that he would be a target for kidnapers because he has family in the United States and is unable to speak Spanish correctly.
In support of his motion, the respondent has submitted newspaper articles detailing the violence, including kidnaping, accompanying the ongoing civil war in Colombia; a Department of State travel warning stating that United States citizens have been the victims of threats, kidnaping, hijacking, and murder; and a 1998 report on human rights practices in Colombia prepared by the Department of State. See Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State, Colombia Country Report on Human Rights Practices for 1998 (Feb. 26, 1999), reprinted in Committees on Foreign Relations and International Relations, 106th Cong., 1st Sess., Country Reports on Human Rights Practices for 1998 545 (Joint Comm. Print 1999) [hereinafter Country Reports].
Motions to reopen in removal proceedings will not be granted unless the respondent can show that the evidence sought to be offered is material and was not available at his former hearing. 8 C.F.R. § 3.2(c)(1) (2000). A motion to reopen must state the new facts to be proved and must be supported by affidavits or other evidentiary material. Id. In addition, a motion to reopen will not be granted unless the respondent establishes a prima facie case of eligibility for the underlying relief sought. See INS v. Abudu, 485 U.S. 94 (1988).
We have found that a respondent demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied. Matter of L-O-G-, 21 I&N Dec. 413, 419 (BIA 1996). We have not required a conclusive showing that eligibility for relief has been established. Id. at 418-19. Rather, we have reopened proceedings "`where the new facts alleged, when coupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening.'" Id. (quoting Matter of Sipus, 14 I&N Dec. 229 (BIA 1972)). The standard for granting reopening of proceedings is the same for both asylum and withholding. INS v. Abudu, supra (regarding deportation proceedings).
Section 241(b)(3)(A) of the Act specifies that there shall be a restriction on removal to a country where an alien's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 241(b)(3)(B)(ii) of the Act states that an alien is ineligible for withholding of removal if "the alien, having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the United States." The final paragraph of section 241(b)(3)(B) states, in pertinent part, as follows:
For purposes of clause (ii), an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.
We have recently held that determining whether an alien convicted of an aggravated felony and sentenced to less than 5 years' imprisonment has been convicted of a particularly serious crime requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of S-S-, 22 I&N Dec. 458 (BIA 1999); see also Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), modified, Matter of C-, 20 I&N Dec. 529 (BIA 1992), Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988). We have stated that crimes against persons are more likely to be categorized as particularly serious, but that there may be instances where a crime (or crimes) against property will be considered to be particularly serious. Matter of S-S-, supra; Matter of Frentescu, supra, at 247. Moreover, we have found convictions for armed robbery to be convictions for particularly serious crimes. Matter of S-S-, supra; Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997); Matter of D-, 20 I&N Dec. 827 (BIA 1994).
The statutory provisions under which the respondent was convicted require an intent to deprive a person of property through the use of force, violence, assault, or putting in fear. Fla. Stat. Ann. §§ 812.13(1), 812.13(2)(c) (West 1998). In the instant case, the record of conviction pertaining to the respondent's robbery reflects that he pulled a 24-karat gold chain from the victim's neck and the victim fell to the ground. Thus, the respondent took the victim's property by force. Moreover, the record of conviction pertaining to the respondent's grand theft details the theft of a computer, two videocassette recorders, and a printer from a school.
We find that the respondent's robbery conviction, which involves a violent crime against a person, is a conviction for a particularly serious crime. Moreover, we consider 4 years to be a significant term of imprisonment. See, e.g., Matter of S-S-, supra, ( the length of the respondent's sentence, 55 months, to be a significant factor supporting the conclusion that his robbery conviction was for a particularly serious crime). Because we have determined that the respondent has been convicted of a particularly serious crime, we find that he cannot demonstrate prima facie eligibility for withholding of removal. See section 241(b)(3)(B) of the Act; Matter of S-S, supra.
In addition, we observe that the respondent has not demonstrated that his fear of harm in Colombia is on account of his race, religion, nationality, membership in a particular social group, or political opinion. See INS v. Elias-Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). We have held that an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, but must produce evidence from which it is reasonable to conclude that the harm was motivated, at least in part, by an actual or imputed protected ground. Matter of S-P-, 21 I&N Dec. 486, 489-90 (BIA 1996). Furthermore, the respondent is not expected to provide direct proof of a persecutor's motives, but must provide some evidence, either direct or circumstantial, of those motives. INS v. Elias-Zacarias, supra, at 483.
The Department of State Country Report contained in the record indicates that, in 1998, guerrilla groups were active in 700 of Colombia's 1,073 municipalities and supplanted the state authority in some sparsely populated areas. Country...
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