Opinion
No. C 03-3704 MJJ
October 15, 2003
ORDER DENYING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Jose Alexander Granados filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 on August 7, 2003. In his petition, Mr. Granados alleges: (1) the Immigration Judge and the Board of Immigration Appeals erred by finding that he had been convicted of an aggravated felony; (2) the Bureau of Immigration and Customs Enforcement violated his right to due process under the Fifth Amendment by adding a charge of removability after his case was remanded to the Immigration Court by the Board of Immigration Appeals; (3) the Immigration Judge and the Board of Immigration Appeals violated his right to due process by failing to consider all relevant factors when determining whether he had been convicted of a particularly serious crime and was therefore ineligible for withholding of deportation under 8 U.S.C. § 1231(b)(3); and (4) the Immigration Judge j and the Board of Immigration Appeals erred by denying his request for relief under the United Nations Convention Against Torture. The Motion for Habeas is DENIED.
FACTUAL BACKGROUND
Mr. Granados is a native and citizen of El Salvador who entered the United States without inspection on February 8, 1980 at the age of three. (Olsen Decl. Ex. 1; Petition for Writ of Habeas Corpus 3:3). He became a lawful permanent resident on July 14, 1989. (Olsen Decl. Ex. 1 2). On June 19, 1996, Mr. Granados was convicted in California Municipal Court, Northern Judicial District, County of San Mateo, of burglary in violation of California Penal Code § 460(B). (Olsen Decl. Ex. 3). On August 15, 1996, he was convicted in California Municipal Court, Northern Judicial District, County of San Mateo, of petty theft in violation of California Penal Code § 484. (Olsen Decl. Ex. 4). On May 6, 1997, he was convicted in California Superior Court for the County of San Mateo of illegal discharge of a firearm in violation of California Penal Code § 246 and sentenced to three years in prison. (Olsen Decl. Ex. 5).On July 18, 1997, the Bureau of Immigration and Customs Enforcement ("BICE") served Mr. Granados with a Notice to Appear, charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving moral turpitude, and 8 U.S.C. § 1227(a)(2)(C) for being convicted of a firearms offense. (Olsen Decl. Ex. 1).
In his removal proceeding, Mr. Granados admitted that he had been convicted of the crimes charged in the Notice to Appear, (Olsen Decl. Ex.6, pp. 30-31), and the Immigration Judge ("IJ") issued an order that Mr. Granados be removed from the United States to El Salvador. (Olsen Decl. Ex. 7). The IJ found that Mr. Granados was not eligible for cancellation of removal under 8 U.S.C. § 1229b(b) because he had not acquired seven years of continuous residence after having been admitted to the United States in any status. (Olsen Decl. Ex. 6, pp. 31-32 and Ex. 7).
The Board of Immigration Appeals ("BIA") affirmed the IJ's finding of removability in a decision dated December 22, 2000, but remanded to afford the parties an opportunity to further address the issue of whether Mr. Granados had demonstrated seven years of continuous residence in the United States, such that he would be eligible for cancellation of removal under 8 U.S.C. § 1229b(a). (Olsen Decl. Ex. 8).
Following the BIA's remand order, the BICE filed an additional charge of removability on March 21, 2001, to allege that Mr. Granados was also removable from the United States as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of a crime of violence, the illegal discharge of a firearm under California Penal Code § 246, for which he had received a sentence of greater than one year. (Olsen Dec. Ex. 9).
In his remanded removal proceeding, Mr. Granados submitted an application for withholding of removal under 8 U.S.C. § 1231(b)(3), alleging that his life or freedom would be threatened if returned to El Salvador because of his former membership in a gang in the United States and because of his family's past political affiliation with the Frente Faribundo Marti Liberacion Nacional ("FMLN"). (Olsen Decl. Ex. 10). He also asked the LI to dismiss the additional charge of removability filed by the BICE on March 21, 2001, on the ground that the BIA had remanded the matter to the IJ for the sole purpose of determining whether he had acquired the requisite seven years of continuous residence after admission in any status in the United States. (Olsen Decl. Ex. 11).
The LI first determined that the BICE was not prohibited from adding the additional charge of removability after the BIA's remand order, stating that "the Government can bring the additional charges at any time that proceedings are pending as long as proper service is effected." (Olsen Decl. Ex. 12). The IJ next found that Mr. Granados' firearms conviction qualified as an aggravated felony because it was a crime of violence for which a sentence of greater than one year had been imposed. Id. The LI then determined that, as an aggravated felon, Mr. Granados was not eligible for cancellation of removal pursuant to 8 U.S.C. § 1231(b)(3) because Mr. Granados had been convicted of a particularly serious crime: the illegal discharge of a firearm into a dwelling. See 8 U.S.C. § 1231(b)(3)(B)(ii).
Finally, the Lf denied Mr. Granados' application for relief under the United Nations Convention Against Torture, stating as follows:
The Court notes that there is extensive documentation in the record as to conditions in El Salvador today. It is clear that El Salvador is a small very poor country which is rife with violence due primarily to the level of poverty in the country. And the fact that after the recent conflict which lasted many years, many individuals in society still own weapons and use them in order to try to survive. It is also clear from evidence in the record that people in the United States who are members of gangs who are sent back to El Salvador often encounter problems either by other gang members or even at times by death squads.
The Court accepts the testimony of three witnesses as credible; however, the Court cannot find that the respondent has met his burden of proof by showing that it is more likely than not that he would be tortured by members of the government or officials or individuals acting with the acquiescence of the government. First of all, there is no "more likely than not" showing. There is a possibility that the respondent might encounter violence just as anyone traveling to El Salvador might encounter violence. If the standard was "possibility," then the Court would be inclined to grant this case. Secondly, there is no showing that any such harm that might come to the respondent would be through the hands of government officials. It appears that such harm would most likely come, if it came at all, from rival gang members or from the possibility at the hands of death squads whose origins are unknown and indefinable and murky at best. The Court cannot find that the respondent had demonstrated that it is more likel y than not that any such harm would come due to government action. Nor is it at all demonstrated that such harm, if it did come, would be in order to obtain information from the respondent as is required. At 8 C.F.R. 208, rather it would most likely come, if at all, as a means of retribution or gang-against-gang violence.
For all these reasons, the Court must deny the respondent's application for deferral of removal under the Convention Against Torture.
(Olsen Decl. Ex. 12, pp. 8-10).
The BIA affirmed the decision of the IJ, without opinion, on March 4, 2003. (Olsen Decl. Ex. 13). Mr. Granados' petition for review was dismissed by the United States Court of Appeals for the Ninth Circuit for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C) (stating that the Court of Appeals lacks jurisdiction to review removal orders if the alien has been convicted of certain criminal offenses). See Granados v. Ashcroft, Appeal No. 03-71438 (9th Cir. June 16, 2003).
Mr. Granados then filed a petition for writ of habeas corpus in this Court on August 7, 2003. Pursuant to a stipulation entered into by the parties and approved by this Court, the matter was heard on September 21, 2003. Currently, Mr. Granados is subject to a final order of removal and may be removed at any time. This Court has issued an order staying deportation of Mr. Granados until the issuance of this Order addressing his habeas claims.
LEGAL STANDARD
The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), significantly restricts the availability of judicial review of immigration decisions regarding the deportation of aliens. However, it did not modify or amend the general federal habeas statute, which still allows for review of both statutory and constitutional questions. Flores-Miramontes v. INS, 212 F.3d 1133, 1143 (9th Cir. 2000). Habeas review remains available for claims that the INS, now the BICE, somehow failed to exercise its discretion in accordance with federal law, or did so in an unconstitutional manner. However, it is not available for claims that the BICE simply came to an unwise, yet lawful, conclusion when it did exercise its discretion. Gutierrez-Chaves v. INS, 298 F.3d 824, 828 (9th Cir. 2002).
ANALYSIS
I. Mr. Granados Was Convicted of an Aggravated Felony-A Deportable Offense
First, Petitioner asserts that the Immigration Judge and the Board of Immigration Appeals erred by finding that he had been convicted of an aggravated felony. Relying on Lopez-Amaro v. INS, 25 F.3d 986 (11th Cir. 1994), he argues that "[w]here the use of a firearm is an essential element of the substantive offense, the offense is in fact a firearms violation for immigration purposes and not an aggravated felony." (Habeas Petition at ¶ 11).
"`Aggravated Felony' is a term of art created by Congress to describe a class of offenses that subject aliens convicted of those offenses to certain disabilities." U.S. v. Rabies-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002) (citing H.R. Rep. No. 101-681(1), at 147 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6553). "`Aggravated felonies' are not necessarily a subset of felonies; for instance, an offense classified by state law as a misdemeanor can be an `aggravated felony' triggering a sentencing enhancement under [Sentencing Guidelines for the U.S. Courts 18 U.S.C.S. Appx] § 2L1.2 if the offense] otherwise conforms to the federal definition of `aggravated felony' found in 8 U.S.C. § 1101(a)(43)." Id.
In Lopez-Amaro, the ENS charged the petitioner with deportation under 8 U.S.C. § 1251(a)(2)(C) as an alien who had been convicted of using a firearm. The issue was whether the petitioner's conviction for first degree murder constituted a firearms violation for purposes of deportation proceedings. Petitioner argued that her conviction for first degree murder was not a firearms offense but rather that her sentence was enhanced because of her use of a firearm. The Eleventh Circuit disagreed, concluding that "this is not a statute that relates only to sentencing but one that affects the very nature of the offense from the beginning of the trial through sentencing." Lopez-Amaro, 25 F.3d at 990. The decision in Lopez-Amaro says nothing about whether a crime involving the use of a firearm may constitute an aggravated felony.
In the context of a deportable offense, courts have held that a categorical approach is appropriate to determine whether an offense qualifies as an aggravated felony. See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002) (citation omitted). "When determining whether state convictions are aggravated felonies, courts have favored substance over form, looking beyond the labels attached to the offenses by state law and considering whether the offenses substantively meet the statutory definition of `aggravated felony.'" U.S. v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002). See also Ye v. INS, 214 F.3d 1128, 1131-33 (9th Cir. 2000) (state burglary offense did not meet federal definition of aggravated felony); U.S. v. Sandoval-Barajas, 206 F.3d 853, 856-57 (9th Cir. 2000) (state firearm offense not aggravated felony because definition of state offense broader than federal definition contained in § 1101(a)(43)).
A crime is an aggravated felony if it is a "crime of violence (as defined in section 16 of Title 18 of the U.S. Code, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). "The term `crime of violence' means —
(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16.
California Penal Code § 246, under which Mr. Granados was convicted, states:
"[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling or house, [or] occupied building . . . is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding a year."
Here, Mr. Granados' conviction for discharging a firearm into a dwelling in violation of California Penal Code § 246 is a felony that, "by its nature, involves a substantial risk that physical force against the person or property of another may be used." 18 U.S.C. § 16. It is therefore a "crime of violence". Mr. Granados received a three year sentence for the crime. Accordingly, the nature of his crime and the sentence imposed qualify it as an aggravated felony and pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) he is deportable. His habeas petition is therefore DENIED on this ground.
II. Due Process Claims
A. Additional Charge of Removability
Second, Mr. Granados argues his right to due process was violated when the BICE filed an additional charge of removability after the BIA remanded the case to the IJ for further findings on the issue of whether Mr. Granados had acquired the requisite seven years of continuous residence in the United States in any status.
The Fifth Amendment guarantees due process in removal proceedings. See Sanchez-Cruz v. INS, 255 F.3d ?75, 779 (9th Cir. 2001). "[A]n alien who faces deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf." Colemar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). A denial of due process occurs when the proceeding is "so fundamentally unfair that the alien was prevented from reasonably presenting his case." Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986). An alien must show prejudice, "which means that the outcome of the proceeding may have been affected by the alleged violation." Colmenar, 210 F.3d at 971.
Mr. Granados argues that it is fundamentally unfair for the government to be afforded an opportunity to relitigate an issue where an alien is barred from the same action. He cites 8 C.F.R. § 1003.23(bX3) and 8 C.F.R. § 1003.2(c)(1) which prevent an alien from reopening a motion before an IJ or the BIA without a showing that there is material evidence to be presented that was previously unavailable. This argument lacks merit. Here, the government is not reopening or relitigating a previous motion since the removal proceedings were ongoing on remand. The government is acting pursuant to 8 C.F.R. § 1003.30, which states "[a]t any time during deportation or removal proceedings, additional or substituted charges of deportability and/or factual allegations may be lodged by the Service in writing." (emphasis added).
Because the Government acted pursuant to 8 C.F.R. § 1003.30 which allows additional charges of deportability and/or factual allegations to be lodged by the Service at any time during deportation or removal proceedings, the issue of prejudice need not be reached. The habeas petition is DENIED with regard to addition of charges.
B. Withholding of Removal
Next, Mr. Granados argues he was "denied an individualized assessment of whether his conviction was a `particularly serious crime' in violation of due process." (Habeas Petition at ¶ 16).
Under 8 U.S.C. § 1231(b)(3)(A), "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political group." This restriction does not apply, however, if "the Attorney General decides that . . . the alien, having been convicted of a particularly serious crime, is a danger to the community of the United States," 8 U.S.C. § 1231(b)(3)(B)(ii) (emphasis added).
The term "particularly serious crime" is not defined in the Immigration and Nationality Act. However, under 8 U.S.C. § 1231(b)(3)(B)(ii), an alien who has been convicted of an aggravated felony for which the alien has been sentenced to at least five years shall be considered to have committed a particularly serious crime. "With respect to aggravated felony convictions for which a lesser sentence has been imposed, however, Congress has explicitly empowered the Attorney General to make the relevant determination." Matter of Y-L-, 23I. N. Dec. 270, 2002 BIA LEXIS *4, *8 (BIA 2002).
The Ninth Circuit has held that the determination of whether a crime qualifies as particularly serious requires an examination of 1) the nature of the conviction; 2) the type of sentence imposed; and 3) the circumstances and facts underlying the conviction. Ursu v. INS, No. 99-70678, 2001 U.S. App. LEXIS 29383, at *7 (9th Cir. Sept. 14, 2001) (citation omitted). See also Hamama v. INS, 78 F.3d 233 (6th Cir. 1996). These factors derive from the 1986 BIA decision in Matter of Frentescu, 18 I. N. Dec. 244 (B.I.A. 1982), which listed the three factors cited in Ursu as well as a fourth: "most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community." Id. In Hamama, the Sixth Circuit held that the BIA may declare a crime particularly serious without examining each and every Frentescu factor because some crimes are facially "particularly serious." Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996). For instance, the BIA has held that armed robbery and attempted armed robbery are per se particularly serious, id., as is burglary that involves a dangerous weapon or results in physical injury. Id.
Under Ninth Circuit law, courts are required to consider the Ursu factors. Here, the IJ did not explicitly consider the Ursu factors when assessing Mr. Granados. However, the few facts in the record indicate that Granados was convicted of a crime, the nature of which was violent, and sentenced to three years in prison after firing shots into the dwelling of a person he "did not get along with." (Olsen Decl. Ex. 5, Decl. 11, Ex. 65). The facts and circumstances taken from the nature of the crime indicate that Granados' crime involved a substantial risk that physical force would be used in the course of committing his offense. See 18 U.S.C. § 16. Granados does not offer any mitigating factors, such as the facts and circumstances surrounding the incident, to explain his behavior at any point in the proceedings. Nor does he assert that he was prevented from doing so. To make out a violation of due process as a result of the IJ's failure to conduct an individualized assessment of whether his conviction was a `particularly serious crime,' Granados must demonstrate that the IJs analysis of the Ursu/Frentescu factors would have made a difference in the outcome. See Guttierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002). The record before the IJ contained the nature of Granados' conviction, the type of sentence imposed and, though spare, the facts underlying the conviction. Here, because Granados' crime involved a substantial risk of harm to persons or property and the use of a firearm, it is difficult to imagine facts and circumstances that would ameliorate the particularly serious nature of his offense. Further inquiry by the IJ would not have made a difference in the outcome. Accordingly, this Court cannot hold that his case has been prejudiced by the failure of the BIA to address all of the Ursu/Frentescu factors.
While Mr. Granados did not receive an individualized assessment of his crime based on the requirements of Ursu/Frentescu, a more fact-specific analysis under the factors would not have resulted in a different outcome. Accordingly, the IJ's failure to address the Ursu/Frentescu factors was harmless error. Mr. Granados' due process claim with regard to his withholding of removal application is therefore DENIED.
III. United Nations Convention Against Torture
Mr. Granados' final claim is that the Immigration Judge and the Board of Immigration Appeals erred by denying his application for relief under The Convention Against Torture ("CAT"). Article 3 of CAT provides that "[n]o State Party shall expel, return (`refouler') 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." To implement Article 3, Congress passed the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"). FARRA § 2242(a) provides 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." Pursuant to FARRA § 2242(b), the Department of Justice promulgated regulations establishing the procedures for deciding CAT claims.
Under these regulations, an alien must demonstrate that it is "more likely than not" that he or she would be tortured if removed to a particular country. 8 C.F.R. § 208.16(c)(4); see also Wang v. Ashcrofi 320 F.3d 130, 144 n. 20 (2d Cir. 2002). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person or a third person for the purpose of (1) obtaining information or a confession; (2) punishing him for an act committed or suspected of having been committed by him or a third person; (3) intimidating or coercing him or a third person; or (4) for any reason based on discrimination of any kind. 8 C.F.R. § 208.18(1). The pain or suffering must be inflicted by or at the instigation or with the consent or acquiescence of a public official or person acting in an official capacity and while the person is in the offender's custody or physical control. 8 C.F.R. § 208.18(a)(1) and (6). Torture does not include pain or suffering which arises only from or inherent in or incidental to lawful sanctions. 8 C.F.R. § 208.18(a)(3).
A. Habeas Jurisdiction
The Government argues that Mr. Granados' CAT claim is not cognizable in a habeas proceeding under 28 U.S.C. § 2241 because Mr. Granados seeks review of a discretionary decision. In Gutierrez-Chavez v. INS, 298 F.3d 824, 827 (9th Cir. 2002), the Ninth Circuit held that Section 2241 does not allow challenges to purely discretionary, yet arguably unwise, decisions made by the executive branch that do not involve violations of the Constitution or federal law. The court explained that district courts could review the denial of discretionary relief under 212(c) [waiver of deportation]. But, only to the extent that the denial of discretionary relief involved a violation of federal law or the constitution. Id. at 829. The government argues that Mr. Granados does not point to a constitutional or statutory error in the IJ or BIA's analysis-he simply disagrees with the conclusion reached by the IJ and BIA, after reviewing the evidence, that he failed to establish that it was more likely than not he would be tortured if returned to El Salvador.
This Court has jurisdiction to review Mr. Granados' claim. First, the case that the government relies on to argue against this court's habeas jurisdiction is distinguishable to the facts presented here. Guttierrez-Chavez involved the ENS' discretion under a Section 212(c) waiver of deportation, not under CAT and FARRA. See Gutierrez-Chavez, 298 F.3d at 826-27. Second, Mr. Granados does not challenge the standard used by the BIA, but argues that the BIA misapplied the facts of his case to FARRA and the regulations adopted pursuant to FARRA. In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court recognized that the Suspension Clause requires habeas review of claims based upon the erroneous application of statutes. The Court explained that "at the absolute minimum, the Suspension Clause protects the writ as it existed in 1789," St. Cyr, 533 U.S. at 302, and at that time the use of the writ "encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes." Id. at 302. The Supreme Court also suggested that "the Suspension Clause might be violated if habeas review were to be foreclosed in the immigration context." Ogbudimkpa v. Ashcroft, 2003 U.S. App. LEXIS 17549, *17 n. 17 (3rd Cir. 2003) It noted that because of the Suspension Clause, "some judicial intervention in deportation cases is unquestionably `required by the Constitution.'" St. Cyr, 533 U.S. at 300. The court explained that "[at] its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest." Id. at 301.
Prior to the Supreme Court's decision in St. Cyr, the Ninth Circuit concluded that habeas review was available for CAT claims. Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1015-16 (9th Cir. 2000). There, the petitioner sought review of a decision by the Secretary of State to extradite him to Mexico where the magistrate judge had determined he would likely be tortured. The court determined that the petitioner was entitled to a review of the Secretary's decision by the district court stating that "since there is no statutory review provision applicable to FARRA claims, and since potential extraditees meet the other requirements for habeas standing under 28 U.S.C. § 2241 (2000), a habeas petition is the most appropriate form of action for fugitives seeking review of the Secretary's extradition decisions." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1015-1016 (9th Cir. 2000).
Because the decision in the Ninth Circuit addressed actions by the Secretary of State and not. the Attorney General, this Court looks to other circuits for additional guidance in this area. Several other circuits, including the Third, Second and First, have followed the Supreme Court in finding the merits of CAT claims reviewable when the use of the writ of habeas "encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes." Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (citing INS v. St. Cyr, 533 U.S. 289, 301 (2001)). In Wang, the BIA denied the petitioner's CAT claim because "there is no evidence in the record that China tortures deserters from the military." Id. at 143. The Second Circuit found that "[the BIA's] determination is not simply a factual finding-it is based upon an application of facts to the legal standard set forth in 8 C.F.R. § 208.16." Id. The court concluded that petitioner's challenge to the BIA's application of the particular facts in his case to the relevant law fell within the permissible scope of habeas review because the BIA misapplied the implementing regulations of FARRA to the facts of the petitioner's case. See id. at 143.
The Third Circuit made a similar ruling in Ogbudimkpa v. Ashcroft, 2003 U.S. App. LEXIS 17549 (3rd Cir. 2003). There, the IJ concluded that the petitioner had testified credibly, but had not demonstrated it was more likely than not he would be tortured if returned to Nigeria. The Third Circuit held that the district court had jurisdiction to review petitioner's CAT claim under a writ of habeas because petitioner did not dispute the factual findings of the IJ. Rather, he argued that the IJ, in concluding that the facts in his case did not satisfy the standard for relief under CAT, wrongly applied the standard for relief set forth in FARRA and its implementing regulations. Id. at *35. (emphasis added). See also Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir. 2003) (noting the Second Circuit's conclusion in Wang while declining to reach the issue because the petitioner's claim was constitutional in nature). The court noted that the same constitutional concerns that guided the Supreme Court in St. Cyr were present: "As in St. Cyr, the Government asks us to interpret a statute in a way that would foreclose an individual's ability to invoke the writ of habeas corpus." Ogbudimkpa v. Ashcroft, 2003 U.S. App. LEXIS 17549, *23 (3rd Cir. 2003).
Here, like in Wang and Ogbudimkpa, Mr. Granados meets the legal standard for habeas review under the IIRIRA because he does not contest the immigration court's factual determinations. Instead, Mr. Granados challenges its application of the facts to the legal standard articulated in FARRA. And, if habeas review was unavailable for Mr. Granados, the danger of a Suspension Clause would be as acute as in St. Cyr because this case involves the "historical core of the writ of habeas corpus: providing a means for reviewing the legality of Executive detention, including the detention of aliens." Ogbudimkpa v. Ashcroft, 2003 U.S. App. LEXIS 17549, *23 (3rd Cir. 2003). Accordingly, this Court has jurisdiction to review the merits of Mr. Granados' CAT claim.
B. The Merits
During the Immigration hearing, the IJ considered evidence put forward by Petitioner in the form of newspaper articles and testimony by Mr. Granados' family members. This testimony is undisputed, but the BIA nevertheless held that Petitioner failed to meet his burden that he would "more likely than not" be tortured if returned to El Salvador. The testimony evaluated by the BIA included testimony by Mr. Granados' father that one of Mr. Granados' cousins was killed by the government because she was a suspected FMLN guerilla. His father testified that he believes Mr. Granados would be taken by authorities and tortured because of his cousin's past political affiliation with the guerilla group. His father also believes that his son would be sent to the notorious Meriona Prison in San Salvador where deportees are allegedly tortured (Oral Decision of the Immigration Judge at 5-6, November 27, 2001). The BIA concluded that "it is a possibility that the respondent might encounter violence just as anyone traveling to El Salvador might encounter violence" and that "[i]f the standard was `possibility', then the Court would be inclined to grant this case." Id. at 9.
It is clear from undisputed testimony that Mr. Granados is more likely than just "anyone" to encounter violence in El Salvador-both because he was a gang member in the United States and because of his family's past political associations. Furthermore, The IJ erred by concluding that the torture must be in order to obtain information from the respondent. (Olsen Decl. Ex. 12, p. 9). Infliction of severe pain and suffering may also be torture when inflicted "for any reason based on discrimination of any kind." 8 C.F.R. § 208.18(1).
However, although this Court determines that it has jurisdiction over Petitioner's CAT claim, Petitioner still has not met his burden of proving he would "more likely than not" be tortured if returned to El Salvador. Additionally, Mr. Granados fails to present sufficient evidence that, even if he were tortured, that the torture would be inflicted by the government. See 8 C.F.R. § 208.18(a)(1) (stating that an alien must establish that his torture will be 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). Mr. Granados provides numerous articles that document killings of gang members by unknown assailants rumored to be government vigilante squads; however, these articles do not go farther than speculation and rumor. Without more substantive evidence that Mr. Granados would be "more likely than not" tortured by government officials if returned to El Salvador, his CAT claim is not recognizable and his habeas petition is therefore DENIED on this ground.
Deportation is stayed for seven days from the filing of this order to allow Petitioner discretion to timely file an appeal of this Order.
CONCLUSION
For the foregoing reasons the Court DENIES Mr. Granados' Habeas Petition.
IT IS SO ORDERED.