Khouzam v. Ashcroft

• Decision Date: 24 February 2004
• Docket Number: Docket No. 02-4109.,Docket No. 02-4159.
• Citation: 361 F.3d 161
• Parties: Sameh Sami S. KHOUZAM, a/k/a Sameh Sami Khouzam, a/k/a Sameh S. Khouzam, a/k/a Sameh Khouzam, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 161

361 F.3d 161

Sameh Sami S. KHOUZAM, a/k/a Sameh Sami Khouzam, a/k/a Sameh S. Khouzam, a/k/a Sameh Khouzam, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

Docket No. 02-4109.

Docket No. 02-4159.

United States Court of Appeals, Second Circuit.

Argued October 2, 2003.

Decided February 24, 2004.

Amended April 12, 2004.

Matthew L. Guadagno, New York, New York (Kerry W. Bretz, Jules E. Coven, Bretz & Coven, LLP, New York, New York, of counsel; Guy Menahem, Law Student, assisted on the brief), for Petitioner.

Michael M. Krauss, Assistant United States Attorney, New York, New York (James B. Comey, United States Attorney, Kathy S. Marks, Meredith E. Kotler, Assistant United States Attorneys for the Southern District of New York, New York, New York, of counsel), for Respondent.

Before: CARDAMONE, MINER, and CALABRESI, Circuit Judges.

CARDAMONE, Circuit Judge.

Petitioner Sameh Sami S. Khouzam, an alien, has petitioned us for review of two final orders — one dated March 7, 2002, the other dated May 7, 2002 — of the Board of Immigration Appeals (BIA or Board), both denying him relief from deportation. The issue we deal with on the second petition concerns the subject of torture.

Torture has been employed as an infamous instrument to extract confessions from or determine the guilt or innocence of an accused from ancient days in Greece and Rome. Its use is an inherently flawed practice, antithetical to basic notions of liberty, and prohibited by the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85(CAT). Its practice is associated with some of the darkest moments in human history, from the medieval inquisitions to the horrors of 20th century totalitarianism. See generally Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 17 B.C. Int'l & Comp. L.Rev. 275, 275-96 (1994). Its critics have ranged from Cicero in ancient Rome to Blackstone and Beccaria in early modern Europe to Solzhenitsyn in the Soviet Union. See id.; 4 William Blackstone, Commentaries *321 (Univ. Chicago Press 1979) (1769).

Article 3 of the CAT flatly prohibits any individual from being deported to a country where there are substantial grounds to believe the individual would be in danger of being tortured. Further, this Court long ago expressed concern about handing individuals over to would-be torturers. See, e.g., Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.1960). The United States became a party to the CAT in 1994, and promulgated its first regulations implementing Article 3 in 1999. See Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478 (1999).

The basic question at issue in the second petition is what constitutes torture. Having first determined that Khouzam is more likely than not to be tortured in Egypt, the Board of Immigration Appeals later in May 2002 changed its mind. Relying in part on a recent opinion of the U.S. Attorney General, the Board held that the abuse Khouzam will likely face from Egyptian police does not amount to torture because the police will not be acting with the consent or approval of authoritative government officials. It also apparently believes that since Khouzam stands accused of a crime in Egypt, any cruel acts perpetrated against him would not constitute torture, but would be a lawful sanction.

International declarations and treaties perhaps cannot reform human nature, but we are firmly persuaded that the provisions of the CAT have been shamefully trampled upon by Egyptian police and, in addition, that U.S. immigration officials have decided this case contrary to the commands of Article 3 of the CAT. Accordingly, we grant Khouzam's second petition for review, and vacate the Board's May 7, 2002 decision.

BACKGROUND

A. Facts

On the night of February 10, 1998 Khouzam boarded a flight from Egypt to the United States. While he was en route, the Egyptian authorities notified the U.S. State Department that Khouzam was wanted in Egypt allegedly for having committed a murder there just hours before his departure. Based on this information U.S. officials thereupon cancelled petitioner's visa and detained him upon arrival. Khouzam, who is a Coptic Christian Egyptian, promptly applied for asylum and withholding of removal under the Immigration and Nationality Act (INA), asserting he feared he would be persecuted on account of his religion were he returned to Egypt. This sequence of events spawned the two petitions for review that are now before us.

B. Prior Administrative Proceedings

1. First Petition

On May 4, 1998 an immigration judge (IJ) considered Khouzam's application for asylum and withholding of removal. Under the INA no person may be granted such relief if there are "serious reasons" to believe that person has committed a "serious nonpolitical crime" prior to arriving in the United States. See 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii) (2000). Having found this to be the case based on evidence of the alleged murder, the immigration judge denied Khouzam's application and ordered his removal from the United States. On January 4, 1999 the Board of Immigration Appeals dismissed Khouzam's appeal. Subsequently, for reasons that we need not go into here, there was a new hearing before an IJ, who again denied Khouzam's asylum and withholding claims. On March 7, 2002 the appeal from this decision was also dismissed. This subsequent dismissal is the subject of Khouzam's first petition.

2. Second Petition

At the time when the administrative proceedings related to the first petition were taking place, Congress instructed the Attorney General to implement Article 3 of the Convention Against Torture, which prohibits the deportation of any person to a state where there are substantial grounds to believe the person would be subjected to torture. See Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-822, 8 U.S.C. § 1231 note (2000). Unlike asylum and withholding of removal under the INA, evidence of a past crime is not a bar to deferral of removal under the CAT. Once the CAT's implementing regulations were adopted, Khouzam applied for this new form of relief. On January 14, 2000, after three days of hearings, an immigration judge found it more likely than not that Khouzam would be tortured in Egypt. The administrative judge therefore granted Khouzam deferral of removal. The INS appealed this decision to the Board of Immigration Appeals. The Board dismissed the INS' appeal on July 24, 2000.

On April 5, 2002 the INS moved the BIA to reconsider its July 24, 2000 decision granting Khouzam deferral of removal under the CAT. Without making any new findings of fact — and relying instead on a purported change in the law — on May 7, 2002 the BIA reconsidered and vacated its earlier decision and ordered that Khouzam be removed from the United States. It is this decision that is the subject of Khouzam's second petition.

DISCUSSION

Each of the two petitions before us raises a distinct set of issues. The first petition requires us to determine whether the BIA erred in concluding that Khouzam is barred from asylum and withholding of removal as a result of evidence that he allegedly committed a murder in Egypt. The second requires us to determine whether the BIA erred in reconsidering and vacating its previous decision, which had ruled Khouzam was entitled to relief under the CAT.

I Standard of Review

For each claim we must decide initially whether the BIA used the correct legal standard and, if it did, whether it applied that standard correctly. The question of the legal standard hinges on a Chevron analysis of the relevant statutes. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question is whether Congress itself specified the standard. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If Congress clearly established the standard, then we review the BIA's interpretation of that standard de novo. See id. at 842-43 & n. 9, 104 S.Ct. 2778. But if the statute is silent or ambiguous with respect to the precise standard, we must defer to the Attorney General's construction of it, so long as that construction is reasonable. See id. at 843-44, 104 S.Ct. 2778. Further, since the Attorney General has delegated adjudicatory authority to the BIA, we accord the same level of deference to the BIA's view of what the proper legal standard is. See Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439.

We note that the Department of Homeland Security has also been given a role in administering the INA and the CAT under the Homeland Security Act of 2002, Pub.L. No. 107-296, § 1102, 116 Stat. 2135, 2273-74 (codified at 8 U.S.C. § 1103 (West Supp.2003)), as amended by Pub.L. No. 108-7, § 105, 117 Stat. 11, 531 (2003). The Attorney General, however, has retained authority over the Executive Office for Immigration Review and thus authority over the BIA, and has the final say (in relation to the Department of Homeland Security) on all questions of law. See id. For the purpose of resolving the questions raised in Khouzam's case, we need only concern ourselves therefore with the Attorney General's and BIA's constructions of the relevant statutes.

Assuming the BIA identified the right legal standard, we must next determine whether it applied that standard correctly. To this end, we ask whether the BIA's findings of fact are supported by substantial evidence, reversing factual findings only when the evidence would compel a reasonable fact-finder to reach a contrary conclusion to that reached by the Board of Immigration Appeals....