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88

Matter of G-K-, Respondent

Decided January 30, 2013

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15,

2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of

transnational organized crime from retaliation and intimidation, does not provide an

independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing

immigration laws and regulations, including the S, T, and U nonimmigrant visas and the

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.

GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the

authority to rule on the constitutionality of the statutes they administer and therefore lack

jurisdiction to address a claim that the statute barring relief for particularly serious crimes

is void for vagueness.

FOR RESPONDENT: Matthew L. Hoppock, Esquire, Kansas City, Missouri

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated October 4, 2011, an Immigration Judge found the

respondent removable under sections 237(a)(2)(A)(iii) and (B)(i) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i)

(2006), as an alien convicted of an aggravated felony and a controlled

substance violation. The Immigration Judge denied the respondent’s

applications for asylum, withholding of removal under section 241(b)(3)(A)

of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006), and protection under the

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”). The Immigration Judge also
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89

found that she lacked jurisdiction to adjudicate the respondent’s claim that he

should be allowed to remain in the United States pursuant to the United

Nations Convention Against Transnational Organized Crime, Nov. 15, 2000,

2225 U.N.T.S. 209, http://www.unodc.org/unodc/en/treaties/CTOC/index.html

(“UNTOC”). The respondent has appealed from the Immigration Judge’s

decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Ghana whose status was adjusted

to that of a lawful permanent resident on January 15, 2000. On May 11, 2010,

he was convicted of conspiracy to distribute and possess with intent

to distribute at least a kilogram of heroin in violation of 21 U.S.C.

§§ 841(b)(1)(A)(i) and 846 (2006).

The respondent was subsequently placed in removal proceedings. He

requested relief from removal based on his claim that he faces harm upon his

return to Ghana because he cooperated with United States authorities by

agreeing to testify against his coconspirators, one of whom was reportedly a

member of the Ghanaian Parliament at the time of his 2006 arrest. Both

coconspirators were convicted and sentenced for their involvement in a heroin

trafficking scheme. One has since returned to Ghana, while the other is still

serving his 10-year prison sentence in the United States.

The respondent claimed that his role in the Parliament member’s

prosecution in the United States is known to the Ghanaian community in the

United States and in Ghana. According to the respondent, he received two

threatening phone calls and numerous “hang-up calls” in 2005 and heard from

a neighbor and two friends that individuals described as “Ghanaians” or

“Africans” were inquiring about him in 2005 and 2006. The respondent

further testified that his family members in Ghana were approached by

strangers asking about his whereabouts. He also stated that in 2009 his

nephew in Ghana was severely beaten by a group of men. Further, the

respondent’s United States citizen wife testified to receiving phone calls that

caused her concern. After the respondent was placed in the custody of the

Department of Homeland Security (“DHS”), she received phone calls from

individuals who were looking for the respondent, twice in 2010 and once in

2011. Another call in 2010 was from a woman who offered to assist the

respondent with his immigration problems.

The Immigration Judge denied the respondent’s requests for relief from

removal and ordered him removed to Ghana. Specifically, she found that she

had no authority to craft or adjudicate an independent remedy under the

UNTOC; that the respondent was statutorily barred from asylum and

withholding of removal under the Act; and that the respondent, while credible,
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1 A third Protocol, which was adopted on May 31, 2001, and entered into force on July 3,

2005, relates to the illicit manufacturing of and trafficking in firearms.

90

did not satisfy his burden of proof for protection under the Convention Against

Torture. The respondent argues on appeal that the Immigration Judge erred in

denying him relief under the UNTOC, withholding of removal under the Act,

and protection under the Convention Against Torture. We disagree.

II. ANALYSIS

A. United Nations Convention Against Transnational Organized Crime

and the Protocols

The respondent claims that he is entitled to remain in the United States

pursuant to the UNTOC because he cooperated and agreed to testify against

his coconspirators regarding their heroin trafficking scheme, in which he also

took part. In making this argument, he relies on the decision of the United

States Court of Appeals for the Third Circuit in Rranci v. U.S. Attorney

General, 540 F.3d 165 (3d Cir. 2008). However, the Third Circuit did not

hold that the UNTOC independently provided aliens relief that can be pursued

in removal proceedings. Rather, the court remanded the case to the Board to

determine how United States law complies with the relevant provisions of the

UNTOC. Id. at 178.

The UNTOC and two supplementary protocols were signed by the

United States on December 13, 2000, and were ratified on November 3, 2005.

Protocol Against the Smuggling of Migrants by Land, Sea and Air, 2241

U.N.T.S. 507 (entered into force Jan. 28, 2004) (“Smuggling Protocol”);

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, 2237 U.N.T.S. 319 (entered into force Dec. 25, 2003)

(“Trafficking Protocol”).1 The stated purpose of the treaty “is to promote

cooperation to prevent and combat transnational organized crime effectively.”

UNTOC art. 1. The UNTOC and the Protocols obligate each signatory to

“take appropriate measures within its means to provide effective protection

from potential retaliation or intimidation for witnesses in criminal proceedings

who give testimony concerning offences covered by [the UNTOC].” UNTOC

art. 24(1). Individuals covered by the UNTOC and the Protocols include

smuggled migrants, trafficking victims, and witnesses in criminal proceedings

who give testimony concerning criminal offenses covered by the UNTOC.

As noted by the Third Circuit in Rranci, 540 F.3d at 178, a 2004 letter of

transmittal from President George W. Bush to the Senate stated that current

United States law already complies with the UNTOC, obviating the need for
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2 The President’s transmittal letter included statements of reservations and understandings

regarding ratification, which are detailed in the submittal letter to the President from the

Secretary of State. For example, the submittal letter states that Federal criminal law “serves

as the principal legal regime within the United States for combating organized crime, and

is broadly effective for this purpose,” but it also noted that, based on principles of

federalism, both Federal and State laws must be taken into consideration in complying with

treaty obligations. See S. Treaty Doc. 108-16, at 7. Further, the submittal letter notes that

two articles of the UNTOC, which concern extradition for criminal offenses and mutual

legal assistance between nations in investigations and prosecutions, “would be considered

self-executing in the context of normal bilateral extradition practice.” Id. at 18. However,

these provisions of the UNTOC are not relevant to the issues in this case.

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any implementing legislation. In an accompanying letter of submittal to the

President, Secretary of State Colin Powell indicated that Article 24 of the

UNTOC, which accords protection to witnesses in criminal proceedings, can

be implemented through current criminal statutes and regulations governing

the protection of witnesses, a process over which neither the Immigration

Judge nor the Board has jurisdiction. See S. Treaty Doc. No. 108-16 (2004),

http://www.gpo.gov/fdsys/pkg/CDOC-108tdoc16/content-detail.html.

2

In the context of immigration law, the objectives of the UNTOC

concerning the protection of witnesses and trafficking victims are advanced

through existing statutes. See, e.g., William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044;

Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No.

109-164, 119 Stat. 3558; Trafficking Victims Protection Reauthorization

Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875; Victims of Trafficking

and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464

(“VTVPA”); see also Hearing on Law Enforcement Treaties Before the

S. Comm. on Foreign Relations, 108th Cong. 9-12 (2004) (statement of

Samuel M. Witten, Deputy Legal Adviser, U.S. Dep’t of State). More

specifically, the immigration laws and regulations offer certain aliens who are

victims of—and cooperators, informants, or witnesses against—human

trafficking or a criminal organization eligibility for S, T, or U nonimmigrant

status, if they satisfy other eligibility requirements and obtain the approval

of the DHS. Sections 101(a)(15)(S), (T), (U) of the Act, 8 U.S.C.

§§ 1101(a)(15)(S), (T), (U) (2006);see also, e.g., 8 C.F.R. §§ 214.2(t), 214.11,

214.14, 1214.2 (2012).

The S nonimmigrant classification for aliens who cooperate in criminal

investigations was created bythe Violent Crime Control and Law Enforcement

Act of 1994, Pub. L. No. 103-322, § 130003, 108 Stat. 1796, 2024. This

classification, which is the most applicable to the respondent’s case, may be

available to an alien who is in possession of critical reliable information
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3 The S visa is also available to an alien who is willing or has supplied critical reliable

information concerning a terrorist organization and who will be or has been placed in danger

as a result of providing such information. Section 101(a)(15)(S)(ii) of the Act.

92

necessary to the successful investigation or prosecution of an individual

involved in a criminal organization or enterprise and who is willing to supply

or has supplied such information. Section 101(a)(15)(S)(i) of the Act.3

An application for an S nonimmigrant visa is initiated with a request from

an interested Federal or State law enforcement authority and is subject to the

approval of the DHS, although the DHS’s decision to deny an S visa is referred

to the Deputy Attorney General for a final resolution in certain circumstances.

See 8 C.F.R. §§ 214.2(t)(4), (5). The Board does not have jurisdiction

over S visas. The respondent could potentially be covered by the UNTOC

provisions through his cooperation with the United States in its prosecution of

his coconspirators in a transnational organized drug-trafficking crime. See

UNTOC, arts. 5, 24. However, he does not claim that a visa application has

been filed on his behalf by an interested Federal or State law enforcement

authority. See 8 C.F.R. §§ 214.2(t)(1), (4).

The Act was also amended in 2000 to create the T nonimmigrant

classification for victims of severe forms of trafficking who would “suffer

extreme hardship involving unusual and severe harm upon removal” and who,

inter alia, have complied with any reasonable request for assistance in the

investigation or prosecution of acts of such trafficking in persons. Section

101(a)(15)(T)(i)(IV) of the Act; see also VTVPA § 107(e)(1), 114 Stat. at

1477; 8 C.F.R. §§ 212.16, 214.11, 1212.16, 1214.2 (2012). Determinations

regarding eligibility for T nonimmigrant status are within the sole jurisdiction

and discretion of the DHS. See, e.g., 8 C.F.R. §§ 212.16, 214.11. The

regulations do permit Immigration Judges or the Board to administratively

close or indefinitely continue pending removal proceedings to allow an

alien to pursue an application for T nonimmigrant status with the DHS.

8 C.F.R. § 214.11(d)(8). However, the respondent was not a victim of human

trafficking, and he does not claim that he has applied for this visa.

In 2000, Congress also created the U classification, which is available to

an alien who suffered substantial physical or mental abuse as a result of having

been a victim of certain criminal activity and who possesses information

concerning such activity. Section 101(a)(15)(U) of the Act; see also VTVPA

§ 1513(b), 114 Stat. at 1534. The purpose of the statute was to strengthen the

ability of law enforcement to detect, investigate, and prosecute certain crimes,

while offering protection to the victims of such offenses. Matter of Sanchez

Sosa, 25 I&N Dec. 807, 809 (BIA 2012). Congress intended to encourage

aliens who are victims of significant criminal activity to cooperate with law

enforcement in the investigation and prosecution of the offenders. Id.
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93

Exclusive jurisdiction over U nonimmigrant visa petitions rests with the DHS,

but an alien may seek a continuance in immigration proceedings to await the

visa process. Id. at 811-12. The respondent has not claimed or shown that he

is eligible for U nonimmigrant status, nor has he requested a continuance to

apply for this visa.

The United States may also comply with the provisions of the UNTOC

through the regulations relating to withholding or deferral of removal under

the Convention Against Torture, a form of protection over which Immigration

Judges have jurisdiction, and which they have authority to grant. Relief from

removal under the Convention Against Torture is mandatory and is available

to an alien who has established that it is more likely than not that he or she

would be tortured if removed to the country of removal by or at the instigation

of, or with the consent and acquiescence of, a public official acting in an

official capacity. 8 C.F.R. §§ 1208.16–1208.18 (2012). While protection

under the Convention Against Torture is not coextensive with the provisions

of the UNTOC, there may be instances where the possibility of torture makes

such relief available.

Contraryto the respondent’s assertion on appeal, neither the Third Circuit’s

decision in Rranci nor the UNTOC provide for the Board or the Immigration

Judge to adjudicate and grant relief to aliens such as the respondent in order

to fulfill the United States’ obligations under the treaty. Nothing in the

UNTOC, either explicitly or implicitly, gives us authority to grant the

respondent permission to remain in the United States or prevent his removal

to Ghana because he was a cooperating witness in a criminal case in this

country. Nor does the treaty, which has broad, aspirational language, provide

any parameters as to what specific type of relief or protection would be

afforded. It is well established that the Board has no authority to create relief

beyond what has been provided by the Act or the regulations, because the

jurisdiction of the Board and the Immigration Judge is limited by statute and

regulation to that which has been delegated by the Attorney General. See

Matter of H-M-V-, 22 I&N Dec. 256, 258 (BIA 1998); Matter of Medina,

19 I&N Dec. 734, 742, 746-47 (BIA 1988). See generally, e.g., Hui Zheng

v. Holder, 562 F.3d 647, 655-56 (4th Cir. 2009) (stating that treaty obligations

are effectuated through a statutory scheme that Congress has established and

that the Attorney General has implemented through regulations); Bradvica

v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997) (deferring to the holding in Matter

of Medina that the Board’s jurisdiction is limited only to what has been

specifically delegated by the Attorney General).

Even assuming that the respondent has adequately demonstrated that his

actions and cooperation with Federal prosecutors are necessarily covered by

the UNTOC, the relevant provisions in the treaty do not create an independent

basis for relief from removal that can be advanced in immigration proceedings.
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4 The Immigration Judges and the Board later received jurisdiction over claims under the

Convention Against Torture pursuant to its implementing regulations. See 8 C.F.R.

§ 1208.18.

94

Generally, a treaty does not have the force of law until the United States has

enacted legislation implementing it or, if legislation is not necessary,

promulgated regulations that implement it. See Medellin v. Texas, 552 U.S.

491, 505 (2008) (noting that while treaties may comprise international

commitments, they are not domestic law unless Congress has enacted

implementing statutes); see also Matter of H-M-V-, 22 I&N Dec. at 258-60

(holding that the Board lacked jurisdiction to adjudicate a claim for relief

from deportation pursuant to Article 3 of the Convention Against Torture

because no specific legislation or regulation implemented its provisions and

Article 3 is not a self-executing treaty provision).4

A treaty may, in specific circumstances, be deemed to be “self-executing”

and have automatic domestic effect as Federal law, but only when the

treaty itself conveys such an intention and is ratified on those terms.

Medellin v. Texas, 552 U.S. at 505-06 & n.2. Moreover, even if a treaty is

self-executing, “there is a strong presumption against inferring individual

rights from international treaties.” Yuen Jin v. Mukasey, 538 F.3d 143, 159

(2d Cir. 2008) (quoting United States v. De La Pava, 268 F.3d 157, 164

(2d Cir. 2001) (internal quotation marks omitted); see also Medellin v. Texas,

552 U.S. at 506 n.3 (“Even when treaties are self-executing in the sense that

they create federal law, the background presumption is that ‘[i]nternational

agreements, even those directly benefitting private persons, generally do not

create private rights or provide for a private cause of action in domestic

courts.’” (quoting 2 Restatement (Third) of Foreign Relations Law of the

United States § 907, cmt. a at 395 (1986))); Gross v. German Foundation

Indus. Initiative, 549 F.3d 605, 615 (3d Cir. 2008).

Nothing in the provisions of the UNTOC and the Protocols establishes that

the treaty was intended to be self-executing. Broad, aspirational language was

used in the specific provisions that relate to the protection, support, or

repatriation of witnesses and/or victims of transnational organized crime.

Furthermore, the treaty states that signatories should take appropriate

measures, including enacting legislation if necessary. For example, Articles

24 and 25 of the UNTOC state that each signatory “shall take appropriate

measures within its means” to provide effective protection for witnesses and

victims of transnational organized crime. Likewise, Article 16 of the

Smuggling Protocol states that signatories “shall take . . . appropriate

measures, including legislation if necessary” to protect the rights of victims of

migrant smuggling. Article 7 of the Trafficking Protocol also states that

signatories “shall consider adopting legislative or other appropriate measures
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5 A guide issued by the United Nations even considers that a form of witness protection

that is contrary to a country’s immigration laws may not be required, noting that a

“waiver must be sought from countries whose immigration laws prevent the granting of

sanctuary to persons with criminal records or require the prosecution of such persons by

the authorities.” United Nations Office on Drugs and Crime, Good Practices for the

Protection of Witnesses in Criminal Proceedings Involving Organized Crime 84 (2008),

http://www.unodc.org/documents/organized-crime/Witness-protection-manual-Feb08.pdf.

95

that permit victims of trafficking to remain in its territory, temporarily or

permanently, in appropriate cases.” This general language, which gives

signatories discretion to take unspecified measures, but which also calls for

implementing legislation, indicates that the treaty’s articles relating to

witnesses and victims of transnational organized crimes were not intended to

be self-executing. See Matter of Medina, 19 I&N Dec. at 740.

Moreover, the UNTOC and the Protocols did not explicitly prohibit its

signatories from returning individuals who are covered by the treaty to the

country of their nationality or to one where they have the right of permanent

residence. For instance, Article 8 of the Trafficking Protocol provides for the

safe “[r]epatriation of victims of trafficking in persons.” Article 8 of the

Smuggling Protocol also contemplates the safe “[r]eturn of smuggled

migrants.” The Protocols provide that the conditions for such an individual’s

safe repatriation would be determined by the sending and receiving signatory

parties. The relevant provisions in the UNTOC for individuals, such as the

respondent, who cooperate in a transnational organized crime prosecution

do not mandate that such witnesses be granted the right to remain in the

signatory country as a form of protection against potential retaliation for their

cooperation with the prosecution. See UNTOC art. 24 (suggesting measures

for protecting witnesses).5 Nor do they preclude the removal of such persons

to their country of nationality or legal residence.

We find that the provisions of the UNTOC do not create an independent

basis for relief from removal that can be advanced by the respondent in his

removal proceedings. The Immigration Judge therefore did not err in finding

that she lacked jurisdiction to consider the respondent’s request for relief under

the UNTOC and the Protocols. The respondent has not otherwise sought to

pursue nonimmigrant status under section 101(a)(15)(S), (T), or (U) of the Act,

which provide other avenues under the immigration laws that advance the

objectives of the provisions of the UNTOC and the Protocols.
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96

B. Withholding of Removal

We now turn to the respondent’s application for withholding of removal

under section 241(b)(3)(A) of the Act and the Convention Against Torture. It

is undisputed that on May 11, 2010, the respondent was convicted of

conspiracy with intent to distribute and possess with intent to distribute at

least a kilogram of heroin, which is an aggravated felony under section

101(a)(43)(B) of the Act. We therefore agree with the Immigration Judge that

the respondent is statutorily barred from withholding of removal under the Act

and the Convention Against Torture.

As the Immigration Judge properly found, the respondent’s aggravated

felony involving unlawful trafficking in a controlled substance presumptively

constitutes a “particularly serious crime” within the meaning of section

241(b)(3)(B)(ii) of the Act pursuant to the Attorney General’s decision in

Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 274-75 (A.G. 2002). We

reject the respondent’s argument that the Immigration Judge erred in not

making a separate determination to address whether he is a danger to

the community, because such a separate “dangerousness” analysis is not

necessary to determine that a crime is particularly serious. Matter of R-A-M-,

25 I&N Dec. 657, 662 (BIA 2012); Matter of N-A-M-, 24 I&N Dec. 336,

342-43 (BIA 2007).

In holding that drug trafficking offenses are presumptively particularly

serious crimes, the Attorney General concomitantly recognized that such

crimes pose a danger to the community, noting that “[t]he devastating effects

of drug trafficking offenses on the health and general welfare, not to mention

national security, of this country are well documented.” Matter of Y-L-, A-G-

& R-S-R-, 23 I&N Dec. at 274-76 (citing Mahini v. INS, 779 F.2d 1419, 1421

(9th Cir. 1986) (recognizing that drug trafficking “offenders [are] a danger to

the community”)). In his decision, the Attorney General set forth minimum

requirements to overcome the presumption that a crime is particularly serious,

one of which is that it involved “a very small quantity of controlled substance.”

Id. at 276. The Immigration Judge found that the respondent did not meet this

requirement because his offense involved at least a kilogram of heroin.

Therefore the Immigration Judge’s decision was consistent with Matter of

Y-L-, A-G- & R-S-R- and was not in error.

To the extent that the respondent challenges the propriety of Matter of Y-L-,

A-G- & R-S-R-, it is clear that the Immigration Judge and the Board are bound

by the Attorney General’s decision. 8 C.F.R. § 1003.1(g) (2012). The

respondent’s assertion that the statute barring relief for those convicted of

particularly serious crimes is “void for vagueness” is likewise unavailing.

Neither the Board nor the Immigration Judges have the authority to rule on the

constitutionality of the statutes we administer, so we lack jurisdiction to
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97

address this claim. See Matter of Sanchez-Lopez, 26 I&N Dec. 71, 74 n.3

(BIA 2012); Matter of Valdovinos, 18 I&N Dec. 343, 345-46 (BIA 1982). We

therefore conclude that the Immigration Judge properly found the respondent

statutorily barred from withholding of removal under both the Act and

the Convention Against Torture on account of his conviction for heroin

trafficking, which is a particularly serious crime. See section 241(b)(3)(B)(ii)

of the Act; 8 C.F.R. § 1208.16(d)(2).

C. Deferral of Removal Under the Convention Against Torture

The Immigration Judge also properly denied the respondent’s application

for deferral of removal under the Convention Against Torture. As the

Immigration Judge found, the threatening telephone calls the respondent

received were made years before in 2005, shortly after his coconspirators were

arrested and before the coconspirator who was a member of Parliament was

convicted, and they are therefore dated. Also, the telephone calls received

more recently by the respondent’s wife did not contain specific serious threats.

In fact, one caller even offered the respondent assistance with his immigration

problems. These telephone calls are not sufficient to show that the respondent

would more likely than not be individually targeted for torture upon his

return to Ghana. Cf. Chavarria v. Gonzalez, 446 F.3d 508, 518 (3d Cir. 2006)

(noting that the lesser well-founded fear asylum standard does not extend “for

threats that, while sinister and credible in nature, were not highly imminent or

concrete or failed to result in any physical violence or harm to the alien”).

Furthermore, reports from the respondent’s familythat unidentified individuals

were looking for him in Ghana for an unspecified purpose, along with

generalized comments that others in the community knew that he agreed to

testify against his coconspirators, did not objectively establish his claim.

Also, although the respondent’s nephew was assaulted by unknown

assailants in Ghana in 2009, there is nothing to indicate that the incident was

anything more than a random and unrelated act of violence against his nephew.

Cf. Arriaga-Barrientos v. U.S. INS, 937 F.2d 411, 414 (9th Cir. 1991) (noting

that the abduction of the respondent’s two brothers by unknown gunmen for

unknown reasons does not establish the lesser well-founded fear standard for

asylum protection). The Immigration Judge did not err in finding that there

was no link between the nephew’s assault and the respondent’s fear of

persecution. See Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (stating

that the motive of a persecutor is a finding of fact to be determined by the

Immigration Judge and reviewed for clear error).

The respondent argues that he has established “that he is likely to face

torture at the hands of the Ghanaian parliament.” In this regard, we find no

merit to his assertions that the Immigration Judge did not give sufficient
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98

weight to certain evidence he presented. Specifically, the Immigration Judge

did not clearly err in finding that one of the respondent’s coconspirators is and

always has been a private citizen. Also, as the Immigration Judge found, the

evidence indicates that the other coconspirator is not currently part of the

Ghanaian Government, because recent background country reports described

him as a former Parliament member. Moreover, the Immigration Judge

properly determined that the generalized evidence of government corruption

in the record is insufficient to show that the Ghanaian Government would

acquiesce in or turn a blind eye to torture.

The Immigration Judge’s detailed and thorough decision reflects that she

considered the totality of the material evidence, even if it did not reference

each piece of evidence individually. See Yan Lan Wu v. Ashcroft, 393 F.3d

418, 425 n.10 (3d Cir. 2005). Even while finding the respondent credible as

to past events, the Immigration Judge was not obligated to agree with his

claimed fear regarding what would happen if he were returned to Ghana. As

the Immigration Judge concluded, the respondent failed to satisfy his high

burden of establishing that it is more likely than not that he will be tortured by

or at the instigation of, or with the consent or acquiescence of, a Ghanaian

public official or other person acting in an official capacity. See Roye v. Att’y

Gen. of U.S., 693 F.3d 333 (3d Cir. 2012); see also 8 C.F.R. § 1208.18(a)(1).

III. CONCLUSION

In sum, we conclude that the UNTOC and the Protocols did not

independently provide the respondent with a new form of relief from removal

that he can advance in removal proceedings. The respondent’s offense was

a “particularly serious crime,” which statutorily bars him from withholding of

removal under the Act and the Convention Against Torture. The respondent

did not satisfy his burden of establishing his claim for deferral of removal

under the Convention Against Torture. Accordingly, the respondent’s appeal

will be dismissed.

ORDER: The appeal is dismissed.