Cite as 23 I&N Dec. 270 (A.G. 2002) Interim Decision #3464 

In re Y-LIn re A-GIn re R-S-RDecided March 5, 2002 

U.S. Department of Justice

Office of the Attorney General 

(1) Aggravated felonies involving unlawful trafficking in controlled substances presumptively 

constitute “particularly serious crimes” within the meaning of section 241(b)(3)(B) of the 

Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2000), and only under the 

most extenuating circumstances that are both extraordinary and compelling would departure 

from this interpretation be warranted or permissible. Matter of S-S-, Interim Decision 3374 

(BIA 1999), overruled. 

(2) The respondents are not eligible for deferral of removal under Article 3 of the United

Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment where each failed to establish that the torture feared would be inflicted by or 

with the acquiescence of a public official or other person acting in an official capacity. 

Matter of S-V-, Interim Decision 3430 (BIA 2000), followed. 

IN REMOVAL PROCEEDINGS 

By previous Order, I directed the Board of Immigration Appeals (“BIA”) 

to refer the above-captioned cases to me for review pursuant to 8 C.F.R. 

§ 3.1(h)(1)(i) (2001). In three separate opinions, the BIA ordered that the 

respondents’ removal from the United States be withheld under the provisions 

of section 241 of the Immigration and Nationality Act (“INA”). For the 

reasons set forth below, I now reverse the decisions of the BIA and hold that 

the respondents, having each been convicted of a “particularly serious crime” 

within the meaning of the INA, pose a danger to the community of the United 

States and are thus ineligible for withholding of removal.1 See INA 

§ 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii) (2000). I further conclude 

that the purported threats of torture claimed by the respondents if removed to 

1

 My review of these BIA decisions is de novo. See Deportation Proceedings of Joseph 

Patrick Thomas Doherty, 12 Op. O.L.C. 1, 4 (1988) (“[W]hen the Attorney General reviews 

a case pursuant to 8 C.F.R. § 3.1(h), he retains full authority to receive additional evidence and 

to make de novo factual determinations.”). 

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their countries of origin do not satisfy the criteria for granting them deferral 

of removal.2 See 8 C.F.R. § 208.17. 

I. 

The three respondents in this consolidated matter are foreign nationals who 

bear final judgments of conviction for felony drug trafficking offenses in the 

United States. Specifically, Y-L- was convicted in the Martin County, 

Florida Circuit Court of trafficking in cocaine and resisting an officer with 

violence, in violation of Fla. Stat. Ann. §§ 893.135, 843.01 (West 2000 & 

Supp. 2002). Although he was sentenced to just 25 months of incarceration, 

his drug offense was a first-degree felony under Florida law, punishable by 

up to 30 years’ imprisonment. A-G- was convicted in the United States 

District Court for the District of Delaware on three felony counts involving 

large quantities of cocaine: two counts of distribution of cocaine, and one 

count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841, 

846. He received concurrent sentences of one year and a day on each count. 

R-S-R- pled guilty in federal court in the District of Puerto Rico to one felony 

count of conspiracy to possess with intent to distribute cocaine, in violation 

of 21 U.S.C. § 846. The court sentenced him to 24 months of incarceration. 

As a result of the respondents’ aggravated felony convictions,3

 the 

Immigration and Naturalization Service (“INS”) commenced removal 

proceedings against them. See INA § 237(a)(2)(A)(iii), 8 U.S.C. 

§ 1227(a)(2)(A)(iii) (any alien convicted of an aggravated felony is 

deportable); INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (any alien 

convicted of a controlled substance offense, other than minimal possession 

of marijuana for personal use, is deportable). The respondents, claiming that 

their lives and/or freedom would be severely imperiled upon deportation to 

their countries of origin, petitioned for withholding of removal under both INA 

§ 241(b)(3), 8 U.S.C. § 1231(b)(3), and Article 3 of the Convention Against 

Torture And Other Cruel, Inhuman, or Degrading Treatment or Punishment 

(“Convention Against Torture”),4

 8 C.F.R. § 208.16 et seq. The INS opposed 

2 This published decision is binding on the BIA and is intended to overrule any BIA decisions

with which it is inconsistent. See Iran Air v. Kugelman, 996 F.2d 1253, 1260 (D.C. Cir.

1993) (administrative judges “are entirely subject to the agency on matters of law”). See also

8 C.F.R. § 3.1(g).

3 The drug trafficking crimes for which respondents were convicted all fall within the INA’s

definition of “aggravated felony.” See INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)

(2000).

4

 The Convention Against Torture, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 23

(continued...) 

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these requests, arguing that the respondents were statutorily ineligible for 

such withholding by virtue of their convictions for “particularly serious 

crimes.” See INA § 241(b)(3)(B)(ii); 8 C.F.R. § 208.16(d)(2). 

Although two of the three respondents were denied all relief by immigration 

judges,5

 the BIA on appeal held that all three were entitled to withholding of 

removal under section 241 of the INA. Invoking its decision in In re S-S-, 

Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999), the BIA in each 

case held that the aggravated drug trafficking felonies committed by 

respondents did not constitute “particularly serious crimes” for purposes of 

INA § 241(b)(3)(B)(ii). In reaching this conclusion, the BIA emphasized such 

factors as the respondents’ cooperation with federal authorities in collateral 

investigations, their limited criminal history records, and the fact that they 

were sentenced at the low-end of the applicable sentencing guideline ranges. 

The BIA also determined that the respondents had each demonstrated a 

probability of persecution or torture if returned to their countries of origin. 

II. 

Section 241(b)(3)(A) of the INA dictates that “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 opinion.” This restriction does not apply, however, if “the Attorney 

General decides that . . . the alien, having been convicted by a final judgment 

of a particularly serious crime, is a danger to the community of the United 

States.” INA § 241(b)(3)(B)(ii) (emphasis added).6 The resolution of these 

cases turns on whether each of the respondents was convicted of a 

“particularly serious crime” within the meaning of section 241(b)(3)(B)(ii). 

(...continued) 

I.L.M. 1027 (1984), was approved by the United States Senate on Oct. 28, 1990. See 136

Cong. Rec. 36625 (1990). Regulations implementing the Convention were adopted pursuant

to a congressional directive in the Foreign Affairs Reform and Restructuring Act of 1998, Pub.

L. No. 105-277, § 2242, 112 Stat. 2681-761, 2681-822. See 64 Fed. Reg. 8478, 8488 (Feb.

19, 1999).

5 In the cases of Y-L- and R-S-R-, the presiding immigration judges denied all requested relief

from removal. A-G-, however, was granted withholding of removal in immigration court.

6 The regulations implementing the Convention Against Torture contain an identical exception.

See 8 C.F.R. § 208.16(d)(2) (2001) (“[A]n application for withholding of removal under . . .

the Convention Against Torture shall be denied if the applicant falls within section

241(b)(3)(B) of the [INA].”).

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A. 

Although the INA itself does not define the term “particularly serious 

crime,” pertinent textual guidance is found in the final clause of section 

241(b)(3), which provides, in relevant part: 

For purposes of [section 241(b)(3)(B)(ii)], an alien who has been convicted of an 

aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term 

of imprisonment of at least 5 years shall be considered to have committed a particularly 

serious crime. The previous sentence shall not preclude the Attorney General from 

determining that, notwithstanding the length of sentence imposed, an alien has been 

convicted of a particularly serious crime. 

This provision establishes that aliens convicted of aggravated felonies and 

sentenced to at least five years of imprisonment are automatically deemed to 

have committed a “particularly serious crime.” With respect to aggravated 

felony convictions for which a lesser sentence has been imposed, however, 

Congress explicitly empowered the Attorney General to make the relevant 

determination. Prior to today, the Attorney General has had no occasion to 

consider which aggravated felonies might amount to “particularly serious 

crimes” where the prison sentence imposed upon conviction is less than five 

years. Operating in this void, the BIA has seen fit to employ a case-by-case 

approach, applying an individualized, and often haphazard, assessment as to 

the “seriousness” of an alien defendant’s crime. See In re S-S-, supra. Not 

surprisingly, this methodology has led to results that are both inconsistent and, 

as plainly evident here, illogical. 

According to the BIA, the 1996 INA amendments in the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 

1214, and the Illegal Immigration Reform and Immigrant Responsibility Act 

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 – which eliminated a 

provision declaring that all aggravated felonies are “particularly serious 

crimes”7

 – reflected Congress’ desire to replace classifications based on the 

“category or type of crime that resulted in the conviction” with classifications 

“based on the length of sentence imposed.” See In re S-S-, supra. I do not 

concur. The BIA’s interpretation of these amendments places far too much 

weight on the first sentence of section 241(b)(3)’s final clause (the mandatory 

designation) and far too little weight on the final clause’s second sentence (the 

grant of discretionary authority to the Attorney General). The fact that 

Congress designated as per se “particularly serious” every aggravated felony 

7 Prior to 1996, the INA mandated that “an alien who has been convicted of an aggravated 

felony shall be considered to have committed a particularly serious crime.” INA § 243(h)(2), 

8 U.S.C. § 1253(h)(2) (1994). 

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resulting in a term of incarceration of at least five years hardly reflects an 

intent to subordinate the nefarious or harmful character of a crime to mere 

secondary consideration, let alone remove it from the equation. While the 

imposition of certain harsh sentences may obviate the need to probe the 

underlying circumstances of a particular crime, the discretionary authority 

reserved to the Attorney General with respect to offenses from which less 

severe sentences flow is clearly intended to enable him to emphasize factors 

other than length of sentence.8 

Exercising that authority under the INA, it is my considered judgment that 

aggravated felonies involving unlawful trafficking in controlled substances 

presumptively constitute “particularly serious crimes” within the meaning of 

section 241(b)(3)(B)(ii). Only under the most extenuating circumstances that 

are both extraordinary and compelling would departure from this 

interpretation be warranted or permissible.9 

Both the courts and the BIA have long recognized that drug trafficking 

felonies equate to “particularly serious crimes” in this context. In Mahini v. 

INS, 779 F.2d 1419 (9th Cir. 1986), for example, the Ninth Circuit upheld the 

BIA’s determination that an alien’s conviction for possession of heroin with 

intent to distribute, and aiding and abetting the distribution of heroin, 

8

 This understanding is confirmed by the IIRIRA’s legislative history. In the Conference 

Report explaining the current provisions of INA § 241(b)(3), Congress emphasized that “the 

Attorney General retains the authority to determine other circumstances in which an alien has 

been convicted of a particularly serious crime, regardless of the length of sentence.” H.R. 

Conf. Rep. No. 104-828, at 216 (1996) (emphasis added). 

9 Some legal commentators and the BIA itself have intimated that Article 33 of the United 

Nations Convention Relating to the Status of Refugees (“Convention”), July 28, 1951, 19 

U.S.T. 6259, 6276, 189 U.N.T.S. 150, 176, to which the United States is bound by its 1968 

accession to the United Nations Protocol Relating to the Status of Refugees (“Protocol”), 

Jan. 31, 1967, 19 U.S.T. 6223, 6225, 606 U.N.T.S. 267, 268, limits my authority to 

determine that certain categories of crimes are “particularly serious” under INA 

§ 241(b)(3)(B)(ii). See In re S-S-, supra. Because both the Convention and the Protocol are 

silent as to the meaning of a “particularly serious crime,” proponents of this view have relied 

upon various restrictive statements in the Handbook on Procedures and Criteria for 

Determining Refugee Status, a document issued by the Office of the United Nations High 

Commissioner for Refugees (“UNHCR”). The Supreme Court has made clear, however, that 

the comments contained in the Handbook are in no way binding upon me in my determinations 

under INA § 241. See INS v. Aguirre-Aguirre, 526 U.S. 415, 427-28 (1999) (holding that the 

precatory comments contained in the Handbook are not binding on the Attorney General, the 

BIA, or United States courts); INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) 

(same). 

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constituted a “particularly serious crime” within the meaning of the INA. The 

court reached that conclusion notwithstanding the fact that the alien had been 

sentenced to only thirteen months’ imprisonment for the crime in question. 

In so holding, the court noted that from the time the BIA first confronted the 

contours of “particularly serious crimes” in 1982, “the Board has continually 

found convictions for drug possession and trafficking to be particularly 

serious, and the offenders a danger to the community.” Id. at 1421 

(emphasis added) (citations omitted). Similarly, in Matter of U-M-, 20 I&N 

Dec. 327 (BIA 1991), the BIA observed: 

We find that the crime of trafficking in drugs is inherently a particularly serious crime. 

The harmful effect to society from drug offenses has consistently been recognized by 

Congress in the clear distinctions and disparate statutory treatment it has drawn between 

drug offenses and other crimes. [citation omitted] Illicit narcotic drugs sold in the United 

States ruin or destroy the lives of many American citizens each year. Apart from the 

considerable number of people in this country who die of overdoses of narcotics or who 

become the victims of homicides related to the unlawful traffic of drugs, many others 

become disabled by addiction to heroin, cocaine, and other drugs. There are also many in 

this country who suffer crimes against their persons and property at the hands of drug 

addicts and criminals who use the proceeds of their crimes to support their drug needs. 

Additionally, a considerable amount of money is drained from the economy of the United 

States annually because of the unlawful trafficking in drugs. This unfortunate situation has 

reached epidemic proportions and it tears the very fabric of American society. As we find 

trafficking in drugs to inherently be a particularly serious crime, no further inquiry is 

required into the nature and circumstances of the respondent’s convictions for sale or 

transportation of marihuana and sale of LSD. 

Id. at 330-31 (emphasis added); accord Matter of Gonzalez, 19 I&N Dec. 

682, 684 (BIA 1988). 

The propriety of the “particularly serious crime” presumption adopted in 

this opinion is further supported by the long-standing congressional 

recognition that drug trafficking felonies justify the harshest of legal 

consequences. See, e.g., 8 U.S.C. § 1227(a)(2)(B) (deportation for 

controlled-substance violations); 8 U.S.C. § 1252(a)(2)(C) (no judicial review 

where alien’s removal is predicated on a drug trafficking felony); 8 U.S.C. 

§ 1228 (expedited removal for aggravated felonies, including drug trafficking 

felonies); 18 U.S.C. § 3592(c)(12) (conviction for serious federal drug 

offenses constitutes aggravating factor for purposes of weighing imposition 

of federal death penalty); 21 U.S.C. § 862 (convicted drug traffickers subject 

to order of ineligibility for federal benefits). The fact that Congress, as part 

of the IIRIRA legislation in 1996, chose to jettison a prior INA rule treating 

all aggravated felonies – of which drug trafficking felonies are a subset – as 

per se “particularly serious crimes,” should not be confused with an 

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indication that Congress no longer considered drug trafficking crimes in 

particular, to be as serious and pernicious as it had previously viewed them. 

The severity of this legislative treatment has a solid foundation. The 

devastating effects of drug trafficking offenses on the health and general 

welfare, not to mention national security, of this country are well 

documented.10 Because the illegal drug market in the United States is one of 

the most profitable in the world, it attracts the most ruthless, sophisticated, 

and aggressive traffickers. Substantial violence is present at all levels of the 

distribution chain. Indeed, international terrorists increasingly employ drug 

trafficking as one of their primary sources of funding.11 

Based on the preceding discussion, I might be well within my discretion to 

conclude that all drug trafficking offenses are per se “particularly serious 

crimes” under the INA.12 I do not consider it necessary, however, to exclude 

entirely the possibility of the very rare case where an alien may be able to 

demonstrate extraordinary and compelling circumstances that justify treating 

a particular drug trafficking crime as falling short of that standard. While this 

opinion does not afford the occasion to define the precise boundaries of what 

those unusual circumstances would be, they would need to include, at a 

minimum: (1) a very small quantity of controlled substance; (2) a very 

modest amount of money paid for the drugs in the offending transaction; (3) 

merely peripheral involvement by the alien in the criminal activity, 

transaction, or conspiracy; (4) the absence of any violence or threat of 

violence, implicit or otherwise, associated with the offense; (5) the absence 

10 See, e.g., Office of National Drug Control Policy, Executive Office of the President, DrugRelated Crime (Fact Sheets, March 2000); Bureau of Justice Statistics, U.S. Dep’t of Justice, 

A National Report: Drugs, Crime, and the Justice System (Dec. 1992). 11 See, e.g., Drug Enforcement Administration, U.S. Dep’t of Justice, Target America: 

Traffickers, Terrorists & Your Kids – A National Symposium on Narco-Terrorism (Dec. 4, 

2001), available at http://www.usdoj.gov:80/dea/deamuseum/transcript.doc; Drug Trade and 

the Terror Network: Hearing Before the Subcommittee on Criminal Justice, Drug Policy, 

and Human Resources of the House Committee on Government Reform, 107th Cong. (Oct. 3, 

2001) (statement of Asa Hutchinson, Administrator of Drug Enforcement Administration), 

available at http://www.usdoj.gov:80/dea/pubs/cngrtest/ct100301.html. 12 Some federal courts have held that certain crimes may properly be treated as per se 

“particularly serious,” regardless of the circumstances of the individual case. See, e.g., Gjonaj 

v. INS, 47 F.3d 824, 825-26 (6th Cir. 1995) (assault with a firearm with intent to murder); 

Hamama v. INS, 78 F.3d 233, 240 (6th Cir. 1996) (felonious assault, possession of a firearm 

during a felony, and carrying a weapon in a vehicle); Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 

1995) (first degree manslaughter). Other courts have indicated that the application of “per se” 

determinations is legally questionable. See, e.g., Chong v. INS, 264 F.3d 378, 387-89 (3d Cir. 

2001). 

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of any organized crime or terrorist organization involvement, direct or 

indirect, in relation to the offending activity; and (6) the absence of any 

adverse or harmful effect of the activity or transaction on juveniles. Only if 

all of these criteria were demonstrated by an alien would it be appropriate to 

consider whether other, more unusual circumstances (e.g., the prospective 

distribution was solely for social purposes, rather than for profit) might justify 

departure from the default interpretation that drug trafficking felonies are 

“particularly serious crimes.” I emphasize here that such commonplace 

circumstances as cooperation with law enforcement authorities, limited 

criminal histories, downward departures at sentencing, and post-arrest (let 

alone post-conviction) claims of contrition or innocence do not justify such 

a deviation.13 

B. 

On review of the records in the cases now before me, it is apparent that 

none presents the kind of extraordinary and compelling circumstances that 

might warrant treating the respondents’ aggravated drug trafficking felonies 

as anything other than “particularly serious crimes.” Not only have all three 

respondents failed to demonstrate that the volume or value of controlled 

substances involved in their offenses was de minimis or inconsequential, but 

each was a direct actor or perpetrator – not merely a peripheral figure – in 

their respective criminal activities. 

Y-L- was convicted of a first-degree drug trafficking felony involving 

84 grams of cocaine and, in connection with that offense, was further 

convicted of resisting a police officer with violence when apprehended. Y-LBIA Decision at 2; Hr’g Tr. at 30. The BIA declared that these crimes were 

not “particularly serious” because Y-L- had no criminal history, could have 

received a much stiffer sentence, and did not use a weapon or inflict personal 

injuries during the commission of the offenses. Id. at 5. The Board’s 

decision has no merit. As noted above, the fact that an alien has no prior 

convictions is irrelevant to the “particularly serious crime” calculus. The 

same is true of a trial judge’s decision to mete out a sentence at the low-end 

13 Although an alien’s decision to provide critical information to law enforcement officials has 

no bearing on whether his offense is characterized as a “particularly serious crime,” he may 

be granted legal status in the United States notwithstanding his criminal acts through the 

issuance of an “S visa.” See INA § 101(a)(15)(S), 8 U.S.C. § 1101(a)(15)(S). Indeed, A-Ghas sought such a visa, and his application is currently pending before the INS. In the event 

that the application is ultimately granted, any order of removal against him will be vitiated. 

However, the discussion in this opinion of the relief erroneously granted him by the 

immigration judge and BIA will remain unaffected. 

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of the guidelines. Furthermore, even assuming the BIA had some basis for 

believing that no weapons or physical injuries were involved in Y-L-’s 

crimes – a dubious assumption considering both that the record is entirely 

silent on this matter, and one of the counts of conviction had physical 

violence as a core element – the absence of such aggravating factors would 

not minimize the inherent dangers associated with Y-L-’s direct role in the 

drug trafficking offense. 

A-G- was convicted of three federal drug felony counts, and stipulated that 

the amount of cocaine attributable to him for sentencing purposes was 

1,330 grams. A-G- Hr’g Exh. 13, at 3. That is enough cocaine to supply 

over 100,000 doses of the drug. See United States v. Denmark, 124 F.3d 

200 (6th Cir. 1997) (Table), 1997 WL 468302. Yet the BIA ruled that the 

offenses did not rise to the level of “particularly serious crimes” inasmuch as 

A-G- “placed himself at great risk to obtain information on behalf of the FBI” 

and “received a substantially lower sentence because of his efforts.” A-GBIA Decision at 2-3. One does not follow from the other. While A-G-’s 

post-charge cooperation understandably secured a more lenient sentence, it 

did not retroactively alter the nature of the underlying offenses. The insidious 

quality of the crime remained the same. 

Finally, R-S-R- pled guilty to participation in a conspiracy to produce 

cocaine in Puerto Rico and transport it in multi-kilogram quantities for 

subsequent distribution in New York. R-S-R- IJ Oral Decision at 7; Hr’g Tr. 

at 88-89. Nevertheless, the BIA adjudged his conviction not to be 

“particularly serious” under INA § 241(b)(3)(B)(ii) because “[h]e provided 

considerable information to the government,” “spoke out at great physical risk 

to himself and his family,” did not “directly or indirectly cause[] physical 

harm to any individual,” and qualified for a “minor participant” sentencing 

adjustment based on his role as a courier in the conspiracy. R-S-R- BIA 

Decision at 6; United States’ Motion Requesting Downward Departure 

Pursuant to [U.S.S.G. §] 5K1.1, at 2, United States v. R-S-R-, (D.P.R.), Crim. 

No. 97-290. The Board’s reasoning does not survive scrutiny. Not only is 

R-S-R-’s cooperation with federal authorities irrelevant in the “particularly 

serious crime” evaluation, but any scheme designed to transport cocaine in 

such large quantities necessarily exposed numerous individuals to physical 

harm. As for the sentencing adjustment, I find that a drug “courier” plays 

more than a sufficiently active part in a distribution conspiracy to render his 

conviction a “particularly serious crime.” 

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III. 

Although the respondents are statutorily ineligible for withholding of 

removal by virtue of their convictions for “particularly serious crimes,” the 

regulations implementing the Convention Against Torture allow them to 

obtain a deferral of removal notwithstanding the prior criminal offenses if 

they can establish that they are “entitled to protection” under the Convention. 

See 8 C.F.R. § 208.17(a). To secure such relief, the respondents must 

demonstrate that, if removed to their country of origin, it is more likely than 

not they would be tortured by, or with the acquiescence of, government 

officials acting under color of law. Id. §§ 208.16(c)(2), 208.17(a), 

208.18(a)(1). None of the respondents has come close to making such a 

showing. 

A. Y-LY-L-, who was paroled into the United States in 1979, maintains that he 

will be killed if sent back to his native Haiti.14 He testified at his removal 

hearing that two months prior to his arrival in America, members of the Ton 

Ton Macoutes – a private army of Haitian death squads organized by former 

president François Duvalier and nurtured by his successor, Jean Claude 

Duvalier – murdered his father and aunt, and broke his cousin’s leg as 

retribution for his father’s unspecified criticism of the Duvalier government. 

Y-L- IJ Oral Decision at 3. Y-L- further insisted that the same group of 

people responsible for the death of his father killed his cousin in 1998, 

approximately twenty years after Y-L- initially left the country. Id. at 3-4, 8; 

Y-L- Hr’g Tr. at 11-15. 

Y-L-’s claim for relief under the Convention Against Torture fails on at 

least two different levels. First, as the immigration judge correctly found, 

Y-L- produced no reliable evidence that he would likely be subjected to 

torture if returned to Haiti. Y-L- IJ Oral Decision at 8. While voluntarily 

visiting Haiti on two prior occasions, he was never personally harmed or 

threatened. Id. at 2-3. Although he suggested that his cousin was murdered 

by the same faction that purportedly killed his father nearly twenty years 

earlier, the immigration judge found this testimony speculative and 

14 The BIA did not address Y-L-’s claim for relief under the Convention Against Torture, 

deeming the issue moot in light of its decision to grant him withholding of removal pursuant 

to section 241(b)(3) of the INA. See Y-L- BIA Decision at 6. Having vacated the Board’s 

ruling on Y-L-’s entitlement to withholding of removal, I must take up the deferral question. 

In so doing, I ultimately affirm the immigration judge’s conclusion that Y-L- has no right to 

any relief under the Convention. 

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unconvincing.15 Id. at 8. Meanwhile, the Department of State’s authoritative 

asylum profile on Haiti, which was introduced at the removal hearing, reveals 

that the political climate has improved substantially in recent years, and that 

charges of politically-motivated persecution against individuals who fled 

during the Duvalier reign have proven to be frequently untrue or grossly 

exaggerated. See Office of Asylum Affairs, Dep’t of State, Profile of Asylum 

Claims and Country Conditions – Haiti 18, 21-22 (Mar. 31, 1998) (“Asylum 

Profile”); see also Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999) 

(noting that State Department reports are the best resource for gleaning 

information on the political situations in foreign nations). 

Second, even assuming Y-L-’s various allegations have some basis in fact, 

and even if his own alleged fears of torture are genuine, he is not entitled to 

deferral of removal under the Convention Against Torture because he has not 

established that current government officials acting in an official capacity 

would be responsible for such abuse. The regulations implementing the 

Convention allow for relief only if torture would 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.” 8 C.F.R. § 208.18(a)(1) (emphasis 

added). Violence committed by individuals over whom the government has 

no reasonable control does not implicate the treaty. See In re S-V-, Interim 

Decision 3430, at 9, 2000 WL 562836 (BIA 2000) (“To demonstrate 

‘acquiescence’ by [foreign] Government officials, the respondent must do 

more than show that the officials are aware of the activity constituting torture 

but are powerless to stop it. He must demonstrate that [the foreign] officials 

are willfully accepting of the . . . tortuous activities.”). The State 

Department’s asylum profile on Haiti underscores that the Ton Ton Macoutes 

have effectively disbanded and neither play a role in, nor enjoy the tacit 

support of, the current Haitian government. Asylum Profile at 23. Both Y-LY-L-’s claims are strikingly similar to those made by another Haitian national whose 

application for protection under the Convention Against Torture was also denied. See 

Merisier v. INS, No. 00-CIV-0393, 2000 WL 1281243 (S.D.N.Y. Sept. 12, 2000). The alien 

in that case, Orentz Merisier, alleged that his father (who had worked for the prior Haitian 

government) had been persecuted, and that his uncle had been assassinated. Because, he 

contended, “some of the opposition forces are still in hiding in Haiti . . ., [he] ha[d] a genuine 

fear for his life upon his return.” Id. at *3. Like Y-L-, Merisier did not contend that he 

personally had been subjected to any past persecution or torture in Haiti. The BIA denied 

relief, as did a federal district court in a subsequent habeas proceeding. The court stressed that 

Merisier had “failed to suggest a coherent theory of who might want to torture him or why,” 

and that “Haiti’s violent past, and even Merisier’s relatives’ alleged participation in it, is not, 

without more, substantial grounds for believing that removing Mersier to Haiti would likely 

result in his being tortured.” Id. at *12. Accord Miguel v. Reno, Civ. No. 00-3291, 2000 WL 

1209375 (E.D. Pa. Aug. 25, 2000). 

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and his counsel conceded this point. Y-L- Hr’g Tr. at 15, 33. If, by some 

chance – which has certainly not been proven to be more likely than not – 

former Ton Ton Macoute elements seek revenge on Y-L- because of his 

relationship to his father, there is no competent evidence in the record 

indicating that the current Haitian administration would either participate in, 

or turn a blind eye to, such violence. In short, Y-L- has failed to sustain his 

burden of establishing entitlement to deferral of removal. 

B. A-GThe evidence advanced by A-G- similarly falls far short of what is 

required to obtain relief under the Convention Against Torture. At some 

point following his entry into the United States, A-G- decided to supplement 

his income as a maintenance worker by trafficking in illegal narcotics. His 

supplier was his long-time friend and roommate, K-C-, who had a drugdealing base in Jamaica. A-G- Hr’g Tr. at 77-88. As so often happens to 

those in the drug trade, A-G- was ultimately arrested by the FBI, charged with 

unlawful distribution of cocaine, and convicted on multiple counts of cocaine 

trafficking. To minimize his exposure to prison, he agreed to assist federal 

law enforcement officials by participating in a number of controlled drug 

purchases designed to implicate K-C-. 

During a period in which both K-C- and A-G- were temporarily 

incarcerated at the same facility, K-C- allegedly delivered a message to A-Gthat he would be killed if he returned to Jamaica. In addition, according to 

A-G-’s brothers and sisters, two or three men came to the family residence in 

Jamaica in either 1998, 1999, or 2000 – the dates and other key particulars 

diverged sharply among these witnesses – and inquired as to A-G-’s 

whereabouts. At least one sibling claimed that these men were armed and 

made threats that A-G- would be murdered by K-C- or others if he returned 

to Jamaica. Id. at 154, 251. 

Citing these apparent threats to his life, A-G- seeks to avoid removal 

pursuant to the Convention Against Torture. The main problem with his 

claim is that the record is devoid of credible evidence suggesting that the 

Jamaican government would bear any responsibility – either direct or through 

passive acquiescence – for physical harm visited upon A-G-. In fact, several 

of the witnesses candidly acknowledged at the hearing that no one in the 

family even reported the alleged threats to Jamaican authorities. Id. at 154, 

174, 195, 245. 

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In finding some government role in the alleged torture, the presiding 

immigration judge speculated that the Jamaican “government cannot or will 

not control those who wish to persecute the respondent.” A-G- IJ Oral 

Decision at 15. The judge’s reasoning proceeded as follows: (i) there are 

major problems with corruption in Jamaica, (ii) local police routinely beat 

detainees, (iii) major drug traffickers operate in Jamaica with impunity and 

are cozy with corrupt law enforcement officials, and (iv) as a result of (i)-(iii), 

drug trade associates of K-C- may well either attack A-G- themselves or 

arrange for A-G- to be arrested on bogus charges and then encourage the 

corrupt local police to beat him. Id. at 10-17, 21-23.16 Incredibly, the BIA 

found this reasoning both “thorough” and correct. I do not agree. To the 

contrary, the immigration judge’s factual findings are clearly erroneous. 

Although there are indications that corruption and brutality affect some 

elements of Jamaican law enforcement, the national government has 

undertaken substantial efforts at reform. See Office of Asylum Affairs, 

Dep’t of State, Country Reports on Human Rights Practices – Jamaica 1 

(Feb. 2001) (“Country Report”). For example, the Jamaican Parliament 

passed a major anti-corruption bill in December 2000, and recently ratified 

the Inter-American Convention Against Corruption. See Bureau for 

International Narcotics and Law Enforcement Affairs, Dep’t of State, Fact 

Sheet, Country Program: Jamaica at 1 (Apr. 16, 2001). It also bolstered the 

national anti-money laundering laws. Id. Notwithstanding the allegations of 

A-G- and his family to the contrary, the U.S. State Department has found that 

the policy of the Jamaican government is to investigate all credible reports of 

police corruption. Bureau for International Narcotics and Law Enforcement 

Affairs, Dep’t of State, International Narcotics Control Strategy Report 

(March 2000). The State Department has further reported that the Jamaican 

government does not encourage or facilitate the illicit production or 

distribution of narcotics. Id. at 4. While acknowledging that abuses by some 

members of the security forces occasionally occur, the State Department’s 

2000 Country Report for Jamaica makes clear that “[c]ivilian authorities 

generally maintain effective control of the security forces,” and “[t]he 

Government generally respect[s] the human rights of its citizens.” Country 

Report at 1. To be sure, there is room for improvement. But the record does 

16 The immigration judge explained his determination by stating: “[I]t seems that we have a 

situation where the drug lords may act on their own and simply pay the police to look the other 

way or the drug lords may actually get the police involved . . . so that they do the dirty work 

for them on the basis of a trumped up case. . . . We do not know which it is but one of the

two is more likely than not.” A-G- IJ Oral Decision at 23. 

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not support the extreme, uncorroborated claims made on behalf of A-G- with 

respect to knowing government acquiescence in prospective acts of torture. 

Ultimately, of course, it is impossible to say with certainty whether A-Gwill be exposed to torture by particular individuals upon his return to 

Jamaica. Those who engage in the illegal drug trade quite commonly expose 

themselves to the risk of violence; it is an occupational hazard. The relevant 

inquiry under the Convention Against Torture, however, is whether 

governmental authorities would approve or “willfully accept” atrocities 

committed against persons in the respondent’s position. See In re S-V-, 

supra. To suggest that this standard can be met by evidence of isolated 

rogue agents engaging in extrajudicial acts of brutality, which are not only in 

contravention of the jurisdiction’s laws and policies, but are committed 

despite authorities’ best efforts to root out such misconduct, is to empty the 

Convention’s volitional requirement of all rational meaning. As the courts 

have clearly recognized, relief is available only if the torture would “occur[] 

in the context of governmental authority,” not “as a wholly private act.” Ali 

v. Reno, 237 F.3d 591, 597 (6th Cir. 2001). There being no such credible 

evidence in the case at bar, A-G-’s request for deferral must be denied. 

C. R-S-RTurning to R-S-R-, a foreign national from the Dominican Republic who has 

resided in Puerto Rico continuously since his arrival there in 1985, it is clear 

that his application for relief under the Convention Against Torture suffers 

from largely the same maladies as those of the other two respondents. 

Beginning no later than March 1997, R-S-R- entered into an elaborate 

“conspiracy to produce multi-kilogram quantities of cocaine in Puerto Rico 

which would then be transported to New York, where the cocaine would be 

sold.” Plea and Cooperation Agreement at 13, United States v. R-S-R-, 

(D.P.R.), Crim. No. 97-290. “[M]ultikilo quantities of cocaine” were also 

sold in Puerto Rico, thereby ensuring substantial profits from the conspiracy. 

Id.; R-S-R- Hr’g Tr. at 88-89. Subsequently, R-S-R- was arrested on federal 

drug charges. In an effort to reduce his prison sentence, he pled guilty and 

cooperated with federal authorities by testifying against several of his 

confederates in this “major cocaine trafficking organization.” United States’ 

Motion Requesting Downward Departure Pursuant to [U.S.S.G. §] 5K1.1 at 

1-2, United States v. R-S-R-, (D.P.R.), Crim. No. 97-290. 

Invoking the Convention Against Torture, R-S-R- now seeks deferral of 

removal on the grounds that he will be subjected to physical cruelties by 

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individuals in the Dominican Republic – including two of his co-defendants 

who he maintains are corrupt law enforcement agents – angered by his 

decision to cooperate with authorities. He claimed at his removal hearing that 

these individuals were key members of the conspiracy and were the initial 

source for the drugs that ultimately flowed into Puerto Rico. He further 

testified that these individuals called his common-law wife in Puerto Rico and 

told her they were “waiting for [him].” R-S-R- Hr’g Tr. at 105. He alleged 

that they also arranged to have a note delivered to him in prison, which was 

unsigned, stating that they would “be waiting for [him] in Santo Domingo,” 

and that he was “going to pay with [his] life.” Id. at 108. 

The record indicates that R-S-R-’s testimony is highly suspect. To begin 

with, as the immigration judge correctly observed in questioning R-S-R-’s 

credibility, R-S-R- produced no documentation to corroborate his claim that 

the drug conspiracy originated in the Dominican Republic. R-S-R- IJ Oral 

Decision at 7-8. Nor do any of the documents suggest even implicitly that 

Dominican citizens were involved in the operation. Id. at 8. To the contrary, 

the materials introduced at the hearing, including those offered by the 

respondent himself, reflect that the conspiracy operated exclusively in Puerto 

Rico and New York. Although the immigration judge, at various pre-trial 

hearings, pointedly invited R-S-R- to subpoena (or secure affidavits from) the 

federal agents and prosecutors to whom he directed his cooperation so as to 

substantiate his claims, the respondent declined the invitation. Id. at 6-7; 

R-S-R- BIA Decision at 4 n.5. 

Corroborative evidence, of course, is not a threshold prerequisite to relief 

under the Convention Against Torture. INS regulations provide that an 

applicant’s testimony, “if credible, may be sufficient to sustain the burden of 

proof without corroboration.” 8 C.F.R. § 208.16(c)(2) (emphasis added). 

But where, as here, “the trier of fact either does not believe the applicant or 

does not know what to believe, the applicant’s failure to corroborate his 

testimony can be fatal” to his claim. 17 Sidhu v. INS, 220 F.3d 1085, 1090 

(9th Cir. 2000). And “the weaker [the] alien’s testimony, the greater the need 

17 In the case at bar, the immigration judge stated that he was “unable to really separate what 

is true from what is an exaggeration. The Court cannot really say what is true and what is not 

true.” R-S-R- IJ Oral Decision at 15. The BIA, evaluating only the cold record, apparently 

disagreed and found that R-S-R-’s “testimony was credible in that it was internally consistent, 

consistent with his written applications, . . . and sufficiently detailed.” R-S-R- BIA Decision 

at 5. Taking into account the immigration judge’s ability to observe the testimony first-hand, 

and the detailed nature of his observations in this regard, I concur in the substantial 

reservations he memorialized in his opinion. 

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for corroborative evidence.” In re Y-B-, 21 I&N Dec. 1136, 1139 (BIA 

1998). 

In any event, even assuming that the tentacles of this drug conspiracy 

reached into the Dominican Republic, R-S-R-’s allegation that he will be 

exposed to torture there is wholly unpersuasive. Despite testifying that it is 

easy to travel between Puerto Rico and the Dominican Republic, he stated 

emphatically that he felt safe from his former drug-dealing collaborators in 

Puerto Rico. R-S-R- Hr’g Tr. at 64-68. When the immigration judge asked 

him why, if travel between the two countries was so simple, the Dominican 

individuals he fears could not simply smuggle agents into Puerto Rico to seek 

their retribution against him, he was non-responsive. See R-S-R- IJ Oral 

Decision at 9-10, 16. 

Furthermore, even if all of R-S-R-’s testimony was credited as true, he still 

would not be eligible for deferral of removal because he has not established 

the requisite governmental involvement in the prospective torture he 

portrayed. The scope of the Convention is confined to torture that is inflicted 

under color of law. It extends to neither wholly private acts nor acts inflicted 

or approved in other than “an official capacity.” Ali, 237 F.3d at 597; 

8 C.F.R. § 208.18(a)(1). While R-S-R- offered colorful testimony describing 

forms of torture that he “think[s] would happen to cooperating witnesses when 

they are deported,” his testimony and evidence failed to provide a plausible 

basis for concluding that such practices would be inflicted upon him with the 

consent or approval of authoritative government officials acting in an official 

capacity. R-S-R- Hr’g Tr. at 108-09. If anything, his testimony indicates 

merely that two corrupt, low-level agents may seek to exact personal 

vengeance on him for personal reasons. Such private conduct falls far short 

of what is required to demonstrate the probability of government-sanctioned 

atrocities under the Convention Against Torture. Accordingly, R-S-R- is not 

entitled to relief. 

IV. 

For all the foregoing reasons, the decisions of the BIA in each of these 

cases are reversed. The cases are remanded to the BIA for proceedings not 

inconsistent with this opinion. 

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