Tunis v. Gonzales

• Citation: 447 F.3d 547
• Decision Date: 15 May 2006
• Docket Number: No. 05-3465.,05-3465.
• Parties: Badiatu TUNIS, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

447 F.3d 547

Badiatu TUNIS, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-3465.

United States Court of Appeals, Seventh Circuit.

Argued March 28, 2006.

Decided May 15, 2006.

Michael S. Ferrell, Jones Day, Chicago, IL, Victoria Dorfman (argued), Jones Day, Washington, DC, for Petitioner.

Karen Lundgren Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Alison R. Drucker (argued), Jennifer A. Levings, Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for Respondent.

Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

Badiatu Tunis, a native of Sierra Leone who became a permanent resident of the United States, was ordered removed (deported) on the basis of her conviction in a Wisconsin state court of two counts of selling a small amount of cocaine (less than a gram). These were felonies for which the court sentenced her to two years in prison plus two years of "extended supervision" but suspended all but seven months of the prison term. Were it not for the classification by the immigration judge, seconded by the Board of Immigration Appeals, of her offense as a "particularly serious crime," she would be eligible for asylum and alternatively for withholding of removal. She challenges the classification, together with the denial of relief under the Convention Against Torture.

A drug offense, state or federal, that would be a felony under federal law as Tunis's would be, is an "aggravated felony" for purposes of immigration law and bars the relief sought (other than under the Convention). Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir.2006). But if the prison sentence is shorter than five years, the Attorney General has discretion to rule that the alien's "aggravated felony" is not a "particularly serious crime" and hence does not bar that relief. 8 U.S.C. § 1231(b)(3)(B)(ii). The statute provides no guidance to his exercise of that discretion, but in In re Y-L, 23 I. & N. Dec. 270, 276-77 (BIA 2002), he stated that the "unusual circumstances"

would need to include, at a minimum: (1) a very small quantity of controlled substance; (2) a very modest amount of money paid for the drugs in the offending transaction; (3) merely peripheral involvement by the alien in the criminal activity, transaction, or conspiracy; (4) the absence of any violence or threat of violence, implicit or otherwise, associated with the offense; (5) the absence of any organized crime or terrorist organization involvement, direct or indirect, in relation to the offending activity; and (6) the absence of any adverse or harmful effect of the activity or transaction on juveniles. Only if all of these criteria were demonstrated by an alien would it be appropriate to consider whether other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit) might justify departure from the default interpretation that drug trafficking felonies are "particularly serious crimes." I emphasize here that such commonplace circumstances as cooperation with law enforcement authorities, limited criminal histories, downward departures at sentencing, and post-arrest (let alone post-conviction) claims of contrition or innocence do not justify such a deviation.

The courts have (with an immaterial exception) no jurisdiction to review discretionary determinations by the Attorney General concerning immigration, 8 U.S.C. § 1252(a)(2)(B)(ii), including determinations under 8 U.S.C. § 1231(b)(3)(B)(ii), Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006); Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005), except to consider "constitutional claims or questions of law." 8 U.S.C. § 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 2006 WL 1133148, at *1-3 (7th Cir. May 1, 2006). Neither the constitutionality of the informal regulation promulgated in In re Y-L nor the authority of the Attorney General to formulate criteria for the exercise of the discretion granted to him by section 1231(b)(3)(B)(ii) is questioned. And if Tunis met the six listed criteria but failed to persuade the Board that "other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit) might justify departure from the default interpretation that drug trafficking felonies are `particularly serious crimes,'" we would have no jurisdiction to review the Attorney General's ruling unless in making it he managed somehow to violate the Constitution, as by basing denial on a forbidden ground such as race or sex.

Still, the immigration judge committed a mistake of law when he ruled that Tunis could not satisfy criterion (4) — "the absence of any violence or threat of violence, implicit or otherwise, associated with the offense" — on the ground that all drug transactions involve an "inherent risk of violence." If "all" drug transactions flunk criterion (4), there can be no drug offense that is not "a particularly serious crime," which is contrary to In re Y-L. But this mistake cannot save the day for Tunis. An alien must satisfy all six criteria to reach the threshold for consideration and number (3) is that his or her involvement "in the criminal activity, transaction, or conspiracy" have been "merely peripheral" (emphasis added). Tunis was the seller in the two drug transactions. The seller cannot be a peripheral figure in a transaction — the person who drove the seller to the place of sale, or supplied the seller with a Ziploc bag in which to place the drugs, perhaps; but not the seller or the buyer. Compare United States v. Valles, 41 F.3d 355, 358-59 (7th Cir.1994); Bellavia v. Fogg, 613 F.2d 369, 378 (2d Cir.1979).

That leaves for consideration Tunis's claim for relief under the Convention Against Torture. She must prove that it is more likely than not that if returned to Sierra Leone she will be tortured. 8 C.F.R. § 208.16(c)(2); Mabasa v. Gonzales, 440 F.3d 902, 907-08 (7th Cir.2006). Her claim is based on the procedure (really procedures — and that will become important in our analysis but can be ignored for the moment) that used to be called "female circumcision" or "clitoridectomy and infibulation" but is now more commonly referred to, in places where it is not an acceptable practice, as "female genital mutilation" (FGM). It is well-nigh universal in Sierra Leone, where it is not illegal, and is performed not by doctors but by members of women's secret societies. Tunis underwent it when she was 10 years old, but later, when she first had sexual intercourse, her sexual partner complained that she was only a "half-woman," which was taken to mean that the procedure had been somehow incomplete. Tunis fears that if she is returned to Sierra Leone she will be forced to undergo the procedure again. She claims without contradiction that she does not want this to happen, and we have held that forcibly subjecting a girl or woman to the procedure is torture. Oforji v. Ashcroft, 354 F.3d 609, 615 n. 2 (7th Cir.2003); Nwaokolo v. INS, 314 F.3d 303, 308-09 (7th Cir.2002) (per curiam); see also Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir.2005).

The government argues that Tunis's fears are chimerical. It points out that most females in Sierra Leone are subjected only to clitoridectomy — more precisely, to "excision," which is "the removal `of the clitoris together with part or all of the labia minora,'" Abay v. Ashcroft, 368 F.3d 634, 638 n. 1 (6th Cir.2004) (quoting a Department of State study) — and not to infibulation as well,...