Filed: Jun. 02, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-2-2006 Leon-Oviedo v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3638 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Leon-Oviedo v. Atty Gen USA" (2006). 2006 Decisions. Paper 967. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/967 This decision is brought to you for free and open access by the Op
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-2-2006 Leon-Oviedo v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3638 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Leon-Oviedo v. Atty Gen USA" (2006). 2006 Decisions. Paper 967. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/967 This decision is brought to you for free and open access by the Opi..
More
Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-2-2006
Leon-Oviedo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3638
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Leon-Oviedo v. Atty Gen USA" (2006). 2006 Decisions. Paper 967.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/967
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 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3638
________________
IGNACIO LEON-OVEIDO,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A22-775-073)
Immigration Judge: Honorable William K. Strasser
__________________________
Submitted Under Third Circuit LAR 34.1(a)
May 10, 2006
Before: SCIRICA, CHIEF JUDGE, BARRY AND COWEN, CIRCUIT JUDGES
(Filed: June 2, 2006)
_________________
OPINION
_________________
PER CURIAM
Petitioner Ignacio Leon-Oveido, a native and citizen of Cuba, received permission
from the government of Cuba to migrate to the United States, and he arrived as part of the
Mariel boatlift in May 1980. He was paroled into the United States indefinitely, see
Immigration & Nationality Act (“INA”) § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A). Leon
was a member of the Cuban National baseball team from 1979 to 1980, and he aspired to
play professionally in the United States. Word of his professional aspirations got back to
the communist government through team members of the Young Communist Party. After
that, Leon was removed from the team and not allowed to play baseball in Cuba. It was
then that he decided to leave Cuba.
The administrative record does not reveal whether Leon pursued his dream of
playing professional baseball. However, he has raised a family, worked continuously in
recent years, brought his mother out of Cuba and supports her, and, in 2000, he applied to
adjust his status to that of lawful permanent resident. In 2002, Leon decided to travel to
Cuba to investigate the possibility of bringing his aging and ill father to the United States.
He applied for permission, and was given a refugee travel document, A.R. 263, and
advance parole. A form, “Authorization For Parole of an Alien into the United States,”
indicated that he had been paroled indefinitely into the United States, and that he could
resume his application for adjustment of status upon his return. A.R. 408.
Upon his return to the United States on December 7, 2002, however, Leon was
detained by immigration authorities on the basis of three drug convictions. He was
convicted in September 1987 of possession of an amphetamine in violation of former
N.J.S.A. § 24:21-20a(1), and possession of a handgun without a permit in violation of
N.J.S.A. § 2C:39-5(b), resulting in a sentence of 30 days in the county jail. He was
convicted in April 1990 of manufacturing, distributing or dispensing cocaine, or
2
possessing with intent to manufacture, distribute or dispense cocaine in violation of
N.J.S.A. § 2C:35-5(a)(1), (b)(2). In March 2000, he was convicted of possession of over
20 grams of marijuana in violation of the Florida criminal code. The April 1990 New
Jersey conviction for manufacturing, distributing or dispensing cocaine, or possession
with intent to do so, was the most serious, resulting in a term of imprisonment in the
county jail of 364 days. A.R. 76-77.
Leon was served with a Notice To Appear on the basis of those convictions,
charging him as inadmissible under INA § 212(a)(2)(A)(i)(II), 8 U.S.C. §
1182(a)(2)(A)(i)(II), as an alien who had been convicted of a controlled substance
violation, and § 212(a)(2)(C), 8 U.S.C. § 1182(a)(2)(A)(i)(II), as an alien the immigration
officer knows or has reason to believe has been a controlled substance trafficker.1 At his
removal hearing, Leon flatly denied that he was a drug trafficker, A.R. 75-78, but he did
admit to the convictions, rendering him plainly inadmissible under INA §
212(a)(2)(A)(i)(II).
Believing one of his convictions to be an aggravated felony, the Immigration
Judge found Leon ineligible for any form of relief except deferral of removal under the
Convention Against Torture (“CAT”).2 In support of his application under the CAT,
1
There was a third charge, which the government eventually withdrew.
2
The IJ concluded that Leon was ineligible to adjust his status under either the Cuban
Adjustment Act or any of the regular adjustment of status provisions, apparently on the
basis of his April 1990 New Jersey conviction for violating N.J.S.A. § 2C:35-5(a)(1),
(b)(2). Leon did not contest this conclusion and we do not address it.
3
Leon asserted that he will be remembered and regarded as a political dissident, and that
the communist government of Cuba was taking reprisals against dissidents. In addition,
his brother was arrested in Cuba in 2001 and questioned in connection with his work on
the Varela Project.3 Leon also wrote a letter to the IJ, contending that the United States
government had specifically given him permission to travel and re-enter the United
States. A.R. 202-03.
The IJ denied relief under the CAT. In his oral decision, the IJ found that Leon
had not been harmed or threatened during his 2002 visit to his father, and that he was
allowed to leave Cuba without incident. The IJ noted that Cuba is a totalitarian state,
according to the State Department Country Reports, and that some people are persecuted
for political dissent. However, Leon had failed to establish that he would be singled out
for mistreatment upon his return, even in view of the possibility that his drug convictions
might be viewed negatively by the Cuban government.
Leon appealed to the Board of Immigration Appeals, contending that the
government should be estopped from removing him because he was given permission by
advance parole to visit his ailing father. In addition, he contended that his evidence was
sufficient to establish that he would be singled out as a dissident because he previously
had been censured. Also, as someone who has lived in the United States for 23 years, he
3
The Varela Project is a petition for referendum, seeking political and economic
reform. Its leader, Oswaldo Payá, has gained recognition in the international community
for his activities on behalf of political reform in Cuba. A.R. 324.
4
would be an “obvious” target for reprisal. Moreover, his criminal record would make him
a target. A.R. 8-9.
On March 24, 2004, the Board of Immigration Appeals dismissed the appeal. The
BIA acknowledged that Cuba’s human rights record is among the worst in the world.
However, Leon’s evidence did not establish that Cuba tortures individuals who leave the
country illegally or defect, and, even if Leon is imprisoned upon his return, the admittedly
unacceptable conditions in Cuban prisons do not rise to the level of “torture” within the
meaning of the CAT, 8 C.F.R. § 1208.18(a)(1). If conditions do rise to the level of
torture, there is no evidence that the Cuban government maintains such conditions with
the specific intent to inflict torture on inmates, In re: J-E-, 23 I. & N. Dec. 291, 300-01
(BIA 2002). The BIA rejected without discussion the other arguments raised on appeal.
On December 30, 2004, Leon filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2241 in United States District Court for the District of New Jersey, claiming
that his detention was unlawful and in violation of due process, because immigration
authorities arbitrarily revoked his previously granted right to travel. In an amendment to
the habeas petition, he argued under the Due Process Clause that he should be eligible for
cancellation of removal under INA § 240A, 8 U.S.C. 1229b, because his convictions
predate the Antiterrorism and Effective Death Penalty (“AEDPA”) and Illegal
Immigration Reform and Immigrant Responsibility (“IIRIRA”) Acts. Finally, he argued
that the denial of deferral of removal under the CAT lacked a rational basis.
After passage of the Real ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat.
5
231 (May 11, 2005), the Attorney General answered an order to show cause, contending
that any challenge to Leon’s detention was moot because Immigration and Customs
Enforcement was unable to remove him, and thus had released him on an Order of
Supervision, effective August 24, 2004.4 In all other respects, the petition was subject to
transfer to this Court. The District Court exercised jurisdiction over the unlawful
detention claim and dismissed it as moot. Insofar as the habeas petition challenged a final
order of removal, the court held that it lacked jurisdiction under the Real ID Act, and
transferred the action to this Court.
As a threshold matter, we find that transfer was appropriate. See Bonhometre v.
Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005), cert. denied,
126 S. Ct. 1362 (U.S. 2006).
However, the Attorney General has argued on appeal, and we agree, that our jurisdiction
is limited to constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D),
because, under 8 U.S.C. § 1252(a)(2)(C), orders against criminal aliens are not subject to
judicial review except as provided in subparagraph (D). Leon qualifies as a criminal alien
because he is inadmissible under INA § 212(a)(2)(A)(i)(II), at a minimum, as an alien
who has been convicted of a controlled substance violation. See 8 U.S.C. § 1252(a)(2)(C)
(“except as provided in subparagraph (D), no court shall have jurisdiction to review any
final order of removal against an alien who is removable by reason of having committed a
4
We note that, as there is no repatriation agreement with Cuba, Leon could not be
held in custody indefinitely. Clark v. Martinez, 543 U.S. 371, 386 (2005) (government
“concedes that it is no longer even involved in repatriation negotiations with Cuba”).
6
criminal offense covered in section 1182(a)(2)...”). See also Kamara v. U.S. Attorney
General, 420 F.3d 202, 209-211 (3d Cir. 2005).5
In his informal brief, Leon has argued only that the Board of Immigration Appeals
and the Immigration Judge erred in denying him deferral of removal under the CAT, and
this is the only issue we address. The other habeas claims that the government arbitrarily
revoked his previously granted right to travel, and that he is eligible for cancellation of
removal because his qualifying convictions predate AEDPA and IIRIRA, have not been
briefed and would have to be considered waived, see, e.g., Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir.1993), to the extent that we had jurisdiction to consider them in a
petition for review. If, as a challenge to an unlawful detention they sound in habeas, as
the District Court concluded, we could exercise jurisdiction under 28 U.S.C. § 1291 to
review the District Court’s determination of mootness, but only if Leon had separately
appealed this part of the District Court’s order.6
We will deny the petition for review. Because of 8 U.S.C. § 1252(a)(2)(C), we are
5
We thus find it unnecessary to reach the issue whether it was established that Leon
also was inadmissible under INA § 212(a)(2)(C), as an alien the immigration officer
knows or has reason to believe has been a controlled substance trafficker.
6
In any event, with respect to Leon’s estoppel argument, we note for his benefit that
he could only succeed if he could prove (1) a misrepresentation by the government, (2)
which he reasonably relied upon; (3) to his detriment and (4) affirmative misconduct by
the government. Dipeppe v. Quarantillo, 337 F.3d 326, 335 (3d Cir. 2003) (citing United
States v. Asmar,
827 F.2d 907, 912 (3d Cir.1987)). Were we to address this issue, we
would be unlikely to conclude that the second and fourth factors are met if he failed to
disclose his drug convictions on his application to adjust his status and again when he
applied for permission to travel.
7
limited, with respect to the denial of relief under the CAT, to reviewing only “pure
questions of law” and “issues of application of law to fact, where the facts are undisputed
and not the subject of challenge.” Kamara, 420 F.3d at 211 (citations omitted). In order
to establish a claim for deferral of removal, the petitioner has the burden of establishing
that it is more likely than not that he would be subject to torture if returned to his home
country.
Id. at 212-13 (citing 8 C.F.R. § 208.16(c)(2)). The torture need not be on the
basis of political opinion, as is the case with asylum and withholding of removal. See
Tarrawally v. Ashcroft,
338 F.3d 180, 188 (3d Cir. 2003).
We conclude that the BIA stated the proper legal standard in its opinion
concerning Leon’s application for relief. See 8 C.F.R. § 1208.18(a); Auguste v. Ridge,
395 F.3d 123, 151 (3d Cir. 2005). Properly applying the regulations to the facts of this
case, we further agree that Leon did not establish that the probability of torture by the
Cuban government exceeds 50% in his case.
Kamara, 420 F.3d at 214. There is no claim
of past torture. Leon’s CAT claim is premised on the possibility that he will be singled
out as a political dissident because of his athletic censure over 20 years ago, his long
residence in the United States, his application for asylum, and because he is an individual
with a record of drug convictions. We consider all of these factors together as they might
impact on his being singled out.
Kamara, 420 F.3d at 214.
However, the only evidence Leon presented that was personal to him is the athletic
censure and the 2001 arrest and interrogation of his politically active brother. Like the IJ
and the BIA, we are unpersuaded that Leon has met his burden of proof, 8 C.F.R. §
8
208.16(c)(2) (“The burden of proof is on the applicant....”). Simply put, he produced no
evidence to show that the Cuban government has any continuing interest in him. Unlike
his brother, he has not been active in the Varela Project, and the athletic censure, even if it
was recent, is not persuasive evidence that he would be tortured.
In addition, Leon failed utterly to offer evidence that his exile status or record of
drug convictions would cause him to be singled out. The BIA concluded that Leon did
not establish that the Cuban government tortures individuals who leave the country
illegally or defect, and we agree that he did not meet his burden of proof in this respect.
We also point out that Leon’s migration to the United States in 1980 was, by his own
admission, legal. A.R. 57. Furthermore, a claim that the Cuban government would
subject him to preventive detention on the basis of his criminal record, see Auguste, 395
F.3d at 129, was not raised or argued at his hearing and was mentioned only in passing in
his brief on appeal to the BIA. Here too there is a complete failure of proof.
Because Leon did not meet his burden of proof to show that he would be singled
out, we specifically do not reach the difficult questions concerning whether the
unacceptable conditions in Cuban prisons rise to the level of “torture” within the meaning
of the CAT, or, if conditions do rise to the level of torture, there is evidence that the
Cuban government maintains such conditions with the specific intent to inflict torture on
inmates. We note that, according to the 2002 State Department Country Reports on
Human Rights Practice, members of the security forces sometimes beat and otherwise
abuse human rights advocates, detainees, and prisoners. A.R. 297. These reports alone,
9
however, are insufficient to demonstrate that it is more likely than not that a particular
individual will be tortured by the government if returned to Cuba, Tarrawally, 338 F.3d at
188, and Leon has not provided evidence that he is similarly situated to any individuals
discussed in these reports.
We will deny the petition for review.
10
