Argued and Submitted, November 7, 2013, San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A088-450-936.
Alison Dixon, San Francisco, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Ernesto H. Molina, Jr., Assistant Director, D. Nicholas Harling (argued), Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before: Sidney R. Thomas, Ronald Lee Gilman,[*] and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Gilman.
GILMAN, Circuit Judge
Petitioner Antipas J. Konou seeks review of an order by the Board of Immigration Appeals (BIA) reversing the Immigration Judge's (IJ's) finding that Konou was eligible for relief under the Convention Against Torture (CAT). This case arises from the fact that Konou fled the Marshall Islands in 1980 as a teenager after being sexually assaulted and beaten as a homeless, homosexual child. The authorities there allegedly did nothing to intervene. He came to California under a student visa and remained without documentation.
In 1999, Konou was convicted in a California state court of assault with a deadly weapon other than a firearm and of battery with serious bodily injury following a fight with his then-boyfriend. The IJ found that this crime was particularly serious, rendering Konou ineligible for withholding of removal. But the IJ further found that Konou was more likely than not to be tortured for his homosexuality if forced to return to the Marshall Islands. The IJ therefore granted Konou CAT relief.
On review, the BIA reversed the IJ's CAT determination because it concluded that the Marshall Islands has no enforced prohibition on homosexuality. But the BIA affirmed the IJ's particularly-serious-crime determination, thus subjecting Konou to immediate deportation. Konou has appealed. For the reasons set forth below, we DENY REVIEW of the BIA's decision.
The BIA summarized the facts underlying its decision as follows:
The respondent is a native and citizen of the Marshall Islands who alleges that he has been harmed and will more likely than not be tortured on account of his homosexuality. The Immigration Judge found that the respondent credibly testified that he was abused by the public on numerous occasions when he was a homeless minor. . . .
. . . [T]he 2007 Department of State report provides that " there were no accounts of societal violence based on sexual orientation" and that in general " homosexuals were accepted in society" (Exh. 3). The Immigration Judge found that Marshall Islands law criminalizes homosexuality with a maximum penalty of 10 years and that the potential enforcement of such law established that the respondent will more likely than not be tortured (I.J. at 11). However, the 2007 Department of State report also provides that there are " no enforced laws criminalizing homosexuality" (Exh. 3) (emphasis added). In other words, the evidence indicates that even if a law criminalizing homosexuality exists, it is not enforced. Hence, there is no objective evidence establishing that the respondent will " more likely than not" be subjected to the law criminalizing homosexuality. Moreover, substandard prison conditions and isolated instances of mistreatment of prisoners are insufficient to establish torture as defined in the Convention Against Torture. Matter of J-E-, 23 I& N Dec. 291 (BIA 2002), overruled on other grounds, Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004). Based on the foregoing, we find that the respondent failed to establish that he will more likely than not be tortured. 8 C.F.R. § 1208.17(c). Matter of V-K-, 24 I& N Dec. 500 (BIA 2008). Accordingly, we will sustain the appeal and reverse the Immigration Judge's grant of deferral of removal.
Finally, we will address the Immigration Judge's particularly serious crime finding (I.J. at 7). The respondent was convicted for the offense of assault with a deadly weapon other than a firearm with great bodily injury and battery with serious bodily injury due to a fight he had with his then boyfriend in 1999 (I.J. at 5-7; Exh. 1). We are in agreement with the Immigration Judge's conclusion that the assault and battery convictions constitute a particularly serious crime and find no reason to disturb that analysis. See generally, Matter of N-A-M-, 24 I& N Dec. 336 (BIA 2007) (discussing the broad range of information that may be considered in making an individualized determination that a conviction is for a particularly serious crime); Matter of S-V-, 22 I& N Dec. 1306, 1309 (BIA 2000) (particularly serious crimes encompass statutory provisions requiring an intent to deprive a person of property through the use of force, violence, assault, or putting in fear), overruled on other grounds Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).
Following the BIA's decision, Konou agreed to voluntary removal and currently resides in the Marshall Islands. On appeal, he claims that " [t]he BIA erred in reversing the grant of deferral of removal under the Convention Against Torture by the Immigration Court." Konou also challenges the BIA's determination that his California offenses were particularly serious crimes, rendering him ineligible for withholding of removal. The government maintains that the denial of relief under the CAT was proper, as was the determination that Konou's convictions constituted particularly serious crimes.
A. Standard of review for relief under the Convention Against ...