Wang v. Ashcroft, Docket No. 02-2045.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation320 F.3d 130
Docket NumberDocket No. 02-2045.
PartiesMu-Xing WANG, Petitioner-Appellant, v. John ASHCROFT, United States Attorney General, United States Immigration and Naturalization Service, Steven J. Farquharson, District Director of the INS, and Gary Cote, Officer in Charge of the INS, Respondents-Appellees.
Decision Date06 February 2003

Anne Rapkin (Michael J. Boyle, on the brief), Law Office of Michael J. Boyle, New Haven, CT, for Petitioner-Appellant.

Deborah R. Douglas, Assistant United States Attorney (Jeffrey A. Meyer, Assistant United States Attorney, on the brief), for John A. Danaher, III, United States Attorney for the District of Connecticut, United States Attorney's Office, New Haven, CT, for Respondents-Appellees.

Before: FEINBERG, CABRANES, and MAGILL,* Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner-Appellant Mu-Xing Wang is a Chinese immigrant who has been ordered removed from the United States to China as a result of his unlawful entry into the United States and his subsequent robbery conviction. Wang sought relief from removal during his deportation proceedings on the ground that his removal would violate the United States' obligations under Article 3 of the United Nations Convention Against Torture ("CAT").1 The Immigration Judge denied Wang's CAT claim on September 1, 1999, and the Board of Immigration Appeals ("BIA") affirmed the denial on April 25, 2000. Wang subsequently filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, arguing that (1) he is entitled to relief from deportation under CAT and (2) the Government has violated his due process rights by continuing to detain him during the course of the deportation proceedings without providing him with a bond hearing. The United States District Court for the District of Connecticut (Gerard L. Goettel, Judge, of the United States District Court for the Southern District of New York, sitting by designation) held that (1) it had jurisdiction to entertain Wang's CAT claim, (2) Wang was not entitled to relief under CAT because he failed to establish that he is "more likely than not" to be tortured if returned to China, and (3) Wang's continued detention without a bond hearing does not violate his procedural due process rights.

A. Relevant Law

The United Nations Convention Against Torture has been in effect in the United States since November 20, 1994.2 Article 3 of the Convention provides in relevant part that "[n]o State Party shall expel, return ... or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." In order to implement this provision, Congress passed the Foreign Affairs Reform and Restructuring Act of 1988 ("FARRA"), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231), which states that

[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.

FARRA § 2242(a).

FARRA § 2242(b) provides that "the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture[.]" In accordance with § 2242(b), the Justice Department, after the requisite rule-making proceedings, promulgated a series of regulations implementing FARRA. See 8 C.F.R. §§ 208.16-18 (2002). These regulations require the Immigration and Naturalization Service ("INS") to grant protection under CAT whenever it determines that an "alien is more likely than not to be tortured in the country of removal," 8 C.F.R. § 208.16(c)(4), but the burden of proof is on the applicant to prove that he or she is more likely than not to be tortured if removed, 8 C.F.R. § 208.16(c)(2). Torture is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed,... or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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.

8 C.F.R. § 208.18(a)(1). The regulations further provide that "[t]orture is an extreme form of cruel and inhuman treatment," 8 C.F.R. § 208.18(a)(2), and "[i]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering," 8 C.F.R. § 208.18(a)(5).

Additionally, the regulations expressly state that "[t]orture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." 8 C.F.R. § 208.18(a)(3). Lawful sanctions include "judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty," but they "do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture." Id.

Accordingly, an alien is not entitled to CAT relief unless he can prove that, upon being returned to his country of origin, he is more likely than not to suffer intentionally-inflicted 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.

B. Procedural History

Wang, a thirty-one-year old native and citizen of China, entered the United States in June 1993 without being lawfully admitted or paroled. On July 10, 1995, he was convicted in the Superior Court in New Haven, Connecticut of two felonies: Robbery in the First Degree and Unlawful Restraint in the First Degree, in violation of Connecticut General Statute §§ 53a-134(a)(4) and 53a-95, respectively. He was sentenced to a term of imprisonment of ten years (five years to be served, five years to be suspended) on the robbery conviction and one year on the unlawful restraint conviction.

Wang was serving his criminal sentence when, on April 25, 1997, the INS instituted removal proceedings against him pursuant to §§ 212(a)(6)(A)(i)3, 237(a)(2)(A)(i)(I),4 and 237(a)(2)(A)(iii),5 of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i)(I), (iii) (1994), based on his status as an alien present in the United States without having been admitted or paroled and upon his status as an alien ineligible for parole by the INS as a result of his conviction for a crime of moral turpitude and an aggravated felony. Following a hearing before an Immigration Judge on January 12, 1998 (at which Wang appeared pro se), Wang was ordered removed to China pursuant to § 237(a)(2)(A)(iii) because he had been convicted of an aggrated felony, pursuant to § 237(a)(2)(A)(i)(I), because he had been convicted of a crime of moral turpitude,6 and pursuant to § 212(a)(6)(A)(i), because he was present in the United States without being admitted or paroled.

Wang appealed this decision to the BIA, asking for political asylum7 and withholding of deportation under CAT on the ground that, if returned to China, he would be executed as a traitor for deserting the Chinese Army and his family would be severely persecuted for aiding in his desertion. The BIA remanded the case on September 17, 1998 because the Immigration Judge had failed to inform the parties of the legal basis for his decision on the CAT and asylum claims in his January 12, 1998 order.

On remand, the Immigration Judge held another hearing, and, on October 29, 1998, he issued a decision concluding that, because Robbery in the First Degree is an aggravated felony under § 101(a)(43)(G) of the INA, 8 U.S.C. § 1101(a)(43)(G),8 Wang is ineligible for a waiver of inadmissibility pursuant to INA § 212(c), 8 U.S.C. § 1182(c). The Immigration Judge held further that Wang was not eligible for any other form of relief from deportation (presumably including CAT relief) and ordered him deported to China.

Wang again appealed his removal order to the BIA. On April 7, 1999, the BIA issued a decision upholding the Immigration Judge's determination that Wang was ineligible for a waiver of inadmissibility under INA § 212(c) on the ground that, prior to the initiation of removal proceedings against Wang, § 212(c) had been repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, ("IIRIRA"), § 304(b), Pub.L. No. 104-208, sec. 803, 110 Stat. at 3009-3597 (1996) (codified at Note to 8 U.S.C. § 1101). The BIA also held that Wang was ineligible for asylum and withholding of removal under INA § 208, 8 U.S.C. § 1158,9 and INA § 241, 8 U.S.C. § 1231 (formerly § 1251),10 because he had been convicted of an aggravated felony for which he was sentenced to more than five years of imprisonment. Additionally, the BIA found that, at the time of his decision on October 29, 1998, the Immigration Judge correctly determined that he did not have authority to entertain Wang's claim for CAT relief because there was no legislation implementing Article 3 of CAT. But, because Congress had subsequently enacted FARRA, which instructs the Attorney General to adopt regulations implementing the United States' obligations under Article 3 of CAT, and because the Attorney General had published interim rules pursuant to FARRA, the BIA remanded the case to the Immigration Judge for consideration of Wang's CAT claim.

On August 18, 1999, the Immigration Judge...

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