Purveegiin v. Gonzales, 04-3797.
| Decision Date | 01 June 2006 |
| Docket Number | No. 04-3797.,No. 04-4712.,04-3797.,04-4712. |
| Citation | 448 F.3d 684 |
| Parties | Batsaihan PURVEEGIIN, Petitioner v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States; Michael Chertoff,<SMALL><SUP>*</SUP></SMALL> Secretary of the Department of Homeland Security; Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph C. Hohenstein, Orlow & Orlow, Philadelphia, PA, for Petitioner.
Ethan B. Kanter, William C. Minick, Janice K. Redfern, U.S. Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondents.
Before SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
The Board of Immigration Appeals, in a series of decisions over the course of several years, denied numerous requests by Batsaihan Purveegiin for withholding of removal under the Convention Against Torture (CAT).1 Purveegiin claimed that if deported to his native country of Mongolia, he would be imprisoned for outstanding student loan debts and his criticisms of the Communist Party, and that he would be denied essential medical treatment while detained. An immigration judge granted Purveegiin relief from removal, but the Board, acting through a single member, reversed.
Purveegiin now petitions for review. He asserts that the Board erred factually in discounting his allegations, legally in concluding that his imprisonment would not constitute torture, and procedurally in refusing to refer the case to a three-member panel for resolution. We agree with the last point, and will remand to the Board for further proceedings.
Purveegiin was working as an artist in communist Mongolia during the late 1980s when he came to the attention of the prime minister. The official admired his work, and became Purveegiin's patron. He helped Purveegiin to obtain a student visa and arranged for him to receive approximately $20,000 in government funds to attend art school in New York City. Purveegiin entered the United States in 1991 and commenced his studies later that year.
Things did not go as planned. He quit school in 1992, for reasons that are not clear from the record. He was diagnosed with diabetes in 1995, and placed on insulin treatment. He was convicted by New York authorities of petty larceny, criminal impersonation, and sexual abuse in 1995 and 1996. The prime minister who had been his patron was arrested and detained, and other Mongolian officials, now in power, informed Purveegiin that the $20,000 was a loan, not a grant, and must be repaid.
He sought support from the Mongolian consulate, but the results were decidedly negative. The chief consular official not only denied his request for additional funds but also threatened that, if Purveegiin did not pay back the money, he would be imprisoned. Purveegiin responded, perhaps unwisely, by criticizing the Communist Party, further angering the consular official.
He fared no better with United States authorities. The Immigration and Naturalization Service charged Purveegiin in 1997 as an alien subject to deportation for failure to maintain the conditions of admission, 8 U.S.C. § 1227(a)(1)(C)(i), and for convictions of crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), (ii). Purveegiin conceded removability, but sought withholding of removal under the CAT.2
A hearing on the application for withholding of removal was held in October 1999. Purveegiin recounted his entry into the United States, his failed art studies, and his conflicts with Mongolian officials. He testified that he feared imprisonment if returned to Mongolia and argued, relying on country reports from the United States Department of State and Amnesty International, that he would be denied medical care if detained. He stressed that he required daily insulin injections and that, without treatment, he would die in a very short time.
The immigration judge granted withholding of removal. The judge found, based on Purveegiin's testimony and the country reports, that Purveegiin more likely than not would be imprisoned upon his return to Mongolia, on account of his defaulted loan obligations and anti-communist comments, and would be deprived of necessary medical treatment while in detention. Moreover, the judge concluded that, because "government officials . . . know . . . of the abysmal conditions in the prison cells . . . and would [not] be ignorant of the severe pain to [Purveegiin] or any other prisoners," the pain and suffering caused to Purveegiin would be "specifically intended" by those officials.3
The Board, acting through a single member, reversed. It disagreed with the immigration judge's findings that Purveegiin would be jailed upon his return to Mongolia and would be denied medical care. It stated, without elaboration, that "there is no convincing evidence that [Purveegiin] will be imprisoned or even briefly detained" if deported to Mongolia. The Board further concluded that "it is not established that [Purveegiin] would not be provided with medication in Mongolian prison facilities." It did not address the immigration judge's finding that any pain and suffering caused to Purveegiin in prison would be "specifically intended" by government officials.
Purveegiin filed a petition for review in this Court in July 2003. Soon thereafter, the government filed an unopposed motion to remand the case to the Board in light of Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir. 2003). We stated in Zubeda that an alien may be entitled to withholding of removal based on evidence showing that, if deported to her native country, she would be detained indefinitely and would likely be raped in prison. The panel recognized that detaining officials might not have the "specific intent" to inflict pain and suffering upon her, but determined that their knowledge of the conditions of detention could suffice to show that they "specifically intended" the harm that would likely occur. Id. at 473-74.4 In a summary order, we granted the motion to remand in light of Zubeda.
The Board, again acting through a single member, reaffirmed its reversal of the decision of the immigration judge. It admitted into the record new country reports from 2003, authored by the United States Department of State and Amnesty International. These documents contained "somewhat contradictory" accounts of prison conditions: both reported continued problems with excessive force and torture against prisoners and detainees but both also acknowledged that conditions were improving. The State Department report noted that Mongolian officials were reforming the prison system to monitor abuses and provide better medical care to inmates, and that hundreds of inmates with tuberculosis had received treatment.
The Board concluded that Purveegiin had not demonstrated, based on current country conditions, that he would be subject to torture if deported to Mongolia. It stated that Purveegiin's testimony, uncorroborated by evidence of "outstanding warrants for his arrest," was insufficient to establish that he would be imprisoned in Mongolia. It also found, based on the reports of improving prison conditions, that Purveegiin would likely receive adequate medical care even if he were detained. Again, the Board did not address the "specific intent" element of the torture claim.
In September 2004, Purveegiin filed a timely petition for review with this Court and a motion for reconsideration with the Board. He criticized the Board for "fail[ing] to adequately consider the impact of Zubeda." He also asserted that reversal of the immigration judge's decision by a single member of the Board, as opposed to a three-member panel, was improper under agency regulations.
A single member of the Board denied the motion for reconsideration. The summary order discounted Purveegiin's arguments relating to Zubeda, concluding that the Board had conducted the review required by Zubeda but had determined, as a factual matter, that Purveegiin would not be subject to "severe pain and suffering" in Mongolia. It simply rejected, without explanation, Purveegiin's demand for three-member review.
Another timely petition for review followed. We consolidated this petition with the one filed from the order of the Board in September 2004.5
The Department of Justice has in recent years promulgated a series of regulations aimed at decreasing the backlog of pending immigration cases. Perhaps the most well known of these efforts are the streamlining regulations that went into effect in 1999. They allowed, for the first time, a single member of the Board to affirm a decision of an immigration judge without written opinion, if the decision was "squarely controlled" by existing precedent. See Dia v. Ashcroft, 353 F.3d 228, 235 (3d Cir.2003) (en banc). These provisions, now codified at 8 C.F.R. § 1003.1(e)(4), have been subject to criticism by courts and commentators, see, e.g., Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.2004); Evelyn H. Cruz, Double the Injustice, Twice the Harm: The Impact of the Board of Immigration Appeals's Summary Affirmance Procedures, 16 Stan. L. & Pol'y Rev. 481, 505-08 (2005),6 but have been lauded by the agency as an effective and adequate means to resolve simple cases in an expeditious manner, see Procedural Reforms To Improve Case Management, 67 Fed.Reg. 54,878, 54,885 (Aug. 26, 2002) ().
Other regulations, promulgated in 2002, further expanded the authority of a single member of the Board to resolve appeals. Id. Codified at 8 C.F.R. § 1003.1(e)(5), they provide that all cases will be reviewed in the first instance by a single Board member:
If the Board member to whom an appeal is assigned determines, upon consideration of the merits, that the decision is not...
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