Filed: Feb. 20, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 2-20-2007 Gweh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5424 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Gweh v. Atty Gen USA" (2007). 2007 Decisions. Paper 1594. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1594 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 2-20-2007 Gweh v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-5424 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Gweh v. Atty Gen USA" (2007). 2007 Decisions. Paper 1594. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1594 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-20-2007
Gweh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5424
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Gweh v. Atty Gen USA" (2007). 2007 Decisions. Paper 1594.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1594
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-5424
____________
NEMEMTORBOR GWEH,
Petitioner
v.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS;
ATTORNEY GENERAL OF THE UNITED STATES;
ROBERT DEVINE, DIRECTOR OF U.S. CITIZENSHIP
AND IMMIGRATION SERVICES,
Respondents
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A28 207 629)
Immigration Judge: Walter A. Durling
____________
Submitted Under Third Circuit LAR 34.1(a)
February 13, 2007
Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.
(Filed: February 20, 2007)
OPINION OF THE COURT
*
The Honorable Gustave Diamond, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
____________
FISHER, Circuit Judge.
Nementorbor1 Gweh petitions for review of a final order of the Board of
Immigration Appeals (“BIA”), affirming the denial by the Immigration Judge (“IJ”) of
Gweh’s application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). For the reasons that follow, we will deny Gweh’s petition for
review.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our analysis.
Gweh is a native and citizen of Liberia, and was admitted to the United States in
September 1993 as a refugee. Gweh applied to adjust his status to legal permanent
resident as required under § 209 of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1159. His application was granted in February 1995. In June 2003, Gweh was
convicted of robbery, criminal conspiracy, and possessing instruments of a crime under
18 Pa. Cons. Stat. §§ 3701(a)(1)(I), 903, 907, and he was sentenced to three and a half to
seven years in prison. Gweh concedes that the robbery conviction constituted an
aggravated felony.
1
There are two different spellings of Gweh’s first name in the record. It appears
that this is the correct spelling, as it is the spelling used on his application for refugee
status.
2
In December 2003, Gweh was served a Notice to Appear, which charged him with
removability under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), as an
alien convicted of an aggravated felony. He was placed in removal proceedings, and
admitted to removability as charged. Gweh sought to file a waiver under § 209(c) of the
INA as a refugee in removal proceedings, and sought asylum, withholding of removal and
protection under the CAT. The IJ refused to accept Gweh’s application as a refugee, and
a removal hearing was held on June 28, 2005.2 The IJ found that Gweh’s aggravated
felony conviction was a particularly serious crime, and pretermitted Gweh’s asylum and
withholding of removal applications. Additionally, the IJ determined that Gweh did not
qualify for protection under the CAT because he failed to meet his burden of proof. He
determined that although there was historical evidence of torture, there was no current
evidence. The State Department Country Report for 2004 indicated that, although there
were reports of torture when Charles Taylor was in power, there have been no such
reports since the National Transitional Government of Liberia (“NTGL”) has taken
power. The IJ ordered Gweh removed to Liberia.
Gweh appealed the IJ’s decision to the BIA. The BIA dismissed the appeal. It
held that when a refugee gains lawful permanent resident status, he or she may be placed
in removal proceedings based on conduct which constitutes grounds for removal under
2
The hearing was conducted via teleconference from the State Correctional
Institute Chester, where Gweh was held. Gweh raised a due process claim before the BIA
because there was a bad connection. However, he has not raised this issue in his petition
to this Court.
3
§ 237(a) of the INA. The BIA also affirmed the IJ’s determinations that Gweh was
convicted of a particularly serious crime and was therefore barred from receiving
withholding of removal, and that Gweh failed to meet his burden for protection under the
CAT. Gweh filed a petition for review of the BIA’s decision.
II.
We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a). See
Romanishyn v. Attorney General, 455 F.3d 175, 180 (3d Cir. 2006).3 Because the BIA
adopted the findings of the IJ and discussed some of the bases for the IJ’s decision, we
review the decisions of the IJ and the BIA. Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir.
2004). Our review of the decisions is for substantial evidence, considering whether the
decision is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS,
143 F.3d 157, 167 (3d Cir. 1998).
Factual findings by the BIA or the IJ will be overturned only if a reasonable fact-finder
would be compelled to conclude otherwise. Abdille v. Ashcroft,
242 F.3d 477, 483 (3d
Cir. 2001).
Gweh’s first claim is that because his refugee status was not terminated, even
though he became a legal permanent resident, he may not be placed in removal
3
We have jurisdiction to review whether the law was properly applied in a
particularly serious crime determination. Alaka v. Attorney General, 456 F.3d 88, 103-04
(3d Cir. 2006). Additionally, we have jurisdiction to review the CAT claim regarding
issues of application of law to fact. Singh v. Gonzales,
432 F.3d 533, 537-38 (3d Cir.
2006).
4
proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii). We addressed this question in
Romanishyn v. Attorney General. 455 F.3d at 185. In Romanishyn, we held that an alien
who enters the United States as a refugee, adjusts his status to become a legal permanent
resident, and then commits an aggravated felony may be placed into removal proceedings
under 8 U.S.C. § 1227(a)(2)(A)(iii), even though his refugee status was never formally
terminated.
Id. Gweh’s case is indistinguishable from Romanishyn, and therefore we will
deny this part of the petition for review.
Gweh next argues that the IJ’s determination, affirmed by the BIA, that his
conviction for robbery was a particularly serious crime, which bars him from seeking
withholding of removal, was improper.4 A particularly serious crime, in the withholding
of removal context, is an aggravated felony for which the alien was sentenced to five
years imprisonment or an aggravated felony that the Attorney General deems a
particularly serious crime. 8 U.S.C. § 1231(b)(3)(B); Alaka v. Attorney General, 456
F.3d 88, 105 (3d Cir. 2006). Because Gweh’s sentence was for three and a half to seven
years, the IJ considered whether the aggravated felony (robbery) should be deemed a
particularly serious crime. Gweh claims that the IJ did not consider important factors in
making its determination. We have approved of the BIA’s requirement that an
4
Gweh is also barred from asylum because the robbery was a particularly serious
crime as defined in 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(I). Gweh does not dispute that his
conviction is within the definition of particularly serious crime for asylum purposes, as all
that is required is conviction of an aggravated felony regardless of the sentence imposed.
Id.
5
individualized assessment of the facts and circumstances must be made for a particularly
serious crime determination. Chong v. INS,
264 F.3d 378, 388 (3d Cir. 2001). The BIA
explained that “conviction records and sentencing information” are to be considered.
Id.
(citation and internal quotation marks omitted). Two other factors are the circumstances
surrounding the conviction and whether the crime and circumstances suggest that the
alien would be a danger to the community. Yousefi v. INS,
260 F.3d 318, 329-30 (4th Cir.
2001).
Here, the IJ considered the underlying facts of the crime. First, the IJ noted that
Gweh was convicted of robbery.5 As the IJ explained, he held a person up with a gun,
although Gweh claimed it was a toy gun. The IJ considered the intent to frighten the
victim, and the use of violence. This review of relevant factors is all that is required.
Chong, 264 F.3d at 388. Therefore, Gweh was not eligible for withholding of removal
under 8 U.S.C. § 1231 because he committed a particularly serious crime.
Gweh’s final claim is that the IJ’s determination that Gweh did not prove that he
was entitled to protection under the CAT was not supported by the record. In a CAT
claim, the burden is on the alien to prove that it is “more likely than not that he or she
would be tortured if removed.” 8 C.F.R. § 1208.16(c)(2); Gabuniya v. Attorney General,
463 F.3d 316, 320-21 (3d Cir. 2006). Gweh relies on historical evidence of torture, which
may be considered. However, the record clearly demonstrates that there have been no
5
Although the IJ did not specifically state Gweh’s sentence in the decision, the
term of the sentence was included in the record.
6
reports of torture since the NTGL took power. The reports of torture ceased when the
regime of Charles Taylor was overthrown. Gweh has not rebutted this evidence nor
provided additional evidence to meet his burden. Therefore, there is substantial evidence
to support the IJ’s and BIA’s decisions.
III.
Therefore, we will deny Gweh’s petition for review.
7
