Konou v. Holder

• Decision Date: 09 May 2014
• Docket Number: No. 09–71454.,09–71454.
• Citation: 750 F.3d 1120
• Parties: Antipas Johnlang KONOU, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

750 F.3d 1120

Antipas Johnlang KONOU, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09–71454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 2013.

Filed May 9, 2014.

Alison Dixon, San Francisco, CA, for Petitioner.

Tony West, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Assistant Director, D. Nicholas Harling (argued), Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088–450–936.

Before: SIDNEY R. THOMAS, RONALD LEE GILMAN,^* and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

GILMAN, Circuit Judge:

Petitioner Antipas J. Konou seeks review of an order by the Board of Immigration Appeals (BIA) reversing the Immigration Judge's (IJ's) finding that Konou was eligible for relief under the Convention Against Torture (CAT). This case arises from the fact that Konou fled the Marshall Islands in 1980 as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. He came to California under a student visa and remained without documentation.

In 1999, Konou was convicted in a California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The IJ found that this crime was particularly serious, rendering Konou ineligible for withholding of removal. But the IJ further found that Konou was more likely than not to be tortured for his homosexuality if forced to return to the Marshall Islands. The IJ therefore granted Konou CAT relief.

On review, the BIA reversed the IJ's CAT determination because it concluded that the Marshall Islands has no enforced prohibition on homosexuality. But the BIA affirmed the IJ's particularly-serious-crime determination, thus subjecting Konou to immediate deportation. Konou has appealed. For the reasons set forth below, we DENY REVIEW of the BIA's decision.

I. BACKGROUND

The BIA summarized the facts underlying its decision as follows:

The respondent is a native and citizen of the Marshall Islands who alleges that he has been harmed and will more likely than not be tortured on account of his homosexuality. The Immigration Judge found that the respondent credibly testified that he was abused by the public on numerous occasions when he was a homeless minor....

... [T]he 2007 Department of State report provides that “there were no accounts of societal violence based on sexual orientation” and that in general “homosexuals were accepted in society” (Exh. 3). The Immigration Judge found that Marshall Islands law criminalizes homosexuality with a maximum penalty of 10 years and that the potential enforcement of such law established that the respondent will more likely than not be tortured (I.J. at 11). However, the 2007 Department of State report also provides that there are “no enforced laws criminalizing homosexuality” (Exh. 3) (emphasis added). In other words, the evidence indicates that even if a law criminalizing homosexuality exists, it is not enforced. Hence, there is no objective evidence establishing that the respondent will “more likely than not” be subjected to the law criminalizing homosexuality. Moreover, substandard prison conditions and isolated instances of mistreatment of prisoners are insufficient to establish torture as defined in the Convention Against Torture. Matter of J–E–, 23 I. & N. Dec. 291 (BIA 2002), overruled on other grounds, Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir.2004). Based on the foregoing, we find that the respondent failed to establish that he will more likely than not be tortured. 8 C.F.R. § 1208.17(c). Matter of V–K–, 24 I. & N. Dec. 500 (BIA 2008). Accordingly, we will sustain the appeal and reverse the Immigration Judge's grant of deferral of removal.

Finally, we will address the Immigration Judge's particularly serious crime finding (I.J. at 7). The respondent was convicted for the offense of assault with a deadly weapon other than a firearm with great bodily injury and battery with serious bodily injury due to a fight he had with his then boyfriend in 1999 (I.J. at 5–7; Exh. 1). We are in agreement with the Immigration Judge's conclusion that the assault and battery convictions constitute a particularly serious crime and find no reason to disturb that analysis. See generally, Matter of N–A–M–, 24 I. & N. Dec. 336 (BIA 2007) (discussing the broad range of information that may be considered in making an individualized determination that a conviction is for a particularly serious crime); Matter of S–V–, 22 I. & N. Dec. 1306, 1309 (BIA 2000) (particularly serious crimes encompass statutory provisions requiring an intent to deprive a person of property through the use of force, violence, assault, or putting in fear), overruled on other grounds Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.2003).

Following the BIA's decision, Konou agreed to voluntary removal and currently resides in the Marshall Islands. On appeal, he claims that “[t]he BIA erred in reversing the grant of deferral of removal under the Convention Against Torture by the Immigration Court.” Konou also challenges the BIA's determination that his California offenses were particularly serious crimes, rendering him ineligible for withholding of removal. The government maintains that the denial of relief under the CAT was proper, as was the determination that Konou's convictions constituted particularly serious crimes.

II. ANALYSISA. Standard of review for relief under the Convention Against Torture

In CAT cases, [w]e review issues of law regarding CAT claims de novo. Where the BIA conducts its own review of the evidence and the law, this panel only reviews the BIA's decision, except to the extent it expressly adopts the IJ's decision. The BIA's findings underlying its determination that an applicant is not eligible for relief under the CAT are reviewed for substantial evidence. Under the substantial evidence standard, the court upholds the BIA's determination unless the evidence in the record compels a contrary conclusion.

Because neither the BIA nor the IJ made an adverse credibility finding, we must assume that [Konou's] factual contentions are true. As a result, the facts to which [he] testified are deemed true, and the question remaining to be answered becomes whether these facts, and their reasonable inferences, satisfy the elements of the claim for relief.

Cole v. Holder, 659 F.3d 762, 769–70 (9th Cir.2011) (third alteration in original) (internal citations and quotation marks omitted).

B. Relief under the Convention Against Torture

As set forth in Garcia–Milian v. Holder, No. 09–71461, slip op. at 5, –––F.3d ––––, ––––, 2014 WL 555138 (9th Cir. Feb. 13, 2014) (as amended on the denial of rehearing en banc):

Torture is an extreme form of cruel and inhuman treatment that either (1) is not lawfully sanctioned by that country or (2) is lawfully sanctioned by that country, but defeats the object and purpose of CAT. In addition, the torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Thus relief under the Convention Against Torture requires a two part analysis—first, is it more likely than not that the alien will be tortured upon return to his homeland; and second, is there sufficient state action involved in that torture.

(internal citations and quotation marks omitted). “The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).

Konou and the government principally dispute whether the BIA was entitled to credit the 2007 Department of State's Country Report on Human Rights Practices on the Marshall Islands (which finds that the Marshall Islands have no enforced proscriptions on homosexuality) over Konou's testimony that, because he had been tortured as a homeless, homosexual child, he is likely to be tortured again. We note that Konou does not claim that the BIA applied an improper standard of review to the IJ's decision nor does he argue that the BIA engaged in improper fact finding.

The record regarding current public attitudes towards homosexuality in the Marshall Islands is less than clear. But the record contains substantial evidence supporting the BIA's conclusion that Konou would not likely be subjected to torture if removed to the Marshall Islands. See Cole, 659 F.3d at 783 (“When presented with a record containing conflicting evidence, we are restrained to determine only whether the agency's decision is supported by substantial evidence.”).

Regulations implementing the CAT instruct that “[t]he burden of proof is on the applicant ... to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Among the factors that the IJ and the BIA must consider are:

(i) Evidence of past torture inflicted upon the applicant; (ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and

(iv) Other relevant information regarding conditions in the country of removal.

Id. § 1208.16(c)(3).

The Report on which the BIA relied states that “[t]here were no accounts of societal violence based on sexual orientation” and that “homosexuals were accepted in society.” Konou responds by contending, first, that the Report does not prove that he will avoid torture if returned and, second, that his past torture indicates that he will likely be tortured again. His concerns are not totally baseless, but his assertions are insufficient to prove that the...