Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000)

Interim Decision #3430

In re S-V-, Respondent

Decided May 9, 2000

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An applicant for protection under Article 3 of the United Nations Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must 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; therefore, protection does not extend to persons who fear

entities that a government is unable to control.

Eduardo Soto, Esquire, Miami, Florida, for respondent

Before: Board En Banc: DUNNE, Vice Chairman; SCIALABBA, Vice Chairman;

VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON,

JONES, GRANT, and MILLER, Board Members. Concurring Opinion: VIL-

LAGELIU, Board Member. Concurring and Dissenting Opinion: SCHMIDT,

Chairman; joined by GUENDELSBERGER and MOSCATO, Board Members.

Dissenting Opinion: ROSENBERG, Board Member.

HEILMAN, Board Member:

This case was last before us on May 26, 1999, when we dismissed the

respondent’s appeal from a decision of an Immigration Judge finding him

removable as charged. The respondent has filed a motion to reopen the pro-

ceedings in order to apply for withholding of removal under section

241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)

(Supp. II 1996), and to request protection under Article 3 of the United

Nations 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 and Naturalization Service has not submitted a response. The

motion will be denied.

1306

Interim Decision #3430

I. PROCEDURAL HISTORY

The record reflects that the respondent is a native and citizen of

Colombia. He was admitted to the United States on or about February 7,

1981, as a lawful permanent resident. On February 4, 1998, the respondent

was convicted in the Circuit Court of Broward County, Florida, of the offens-

es of grand theft, resisting arrest without violence, and driving while his

license was suspended. He received a sentence of 4 years’ imprisonment.

The respondent was also convicted at that time of robbery and was sentenced

to 4 years’ imprisonment, to run concurrently with the other sentence.

II. MOTION TO REOPEN

In his motion, the respondent argues that he would be in danger from

nongovernmental guerrilla, narcotrafficking, and paramilitary groups in

Colombia. The respondent contends, both in his motion and in his attached

application for withholding of removal, that the guerrillas finance their

operations through kidnaping. According to the respondent, ever since the

Government of Colombia gave the guerrillas land as an element of peace

negotiations, authorities are no longer able to control the kidnaping that

occurs nationwide. The respondent contends that individuals who are kid-

naped suffer subhuman conditions at the hands of their captors, and he

asserts that he would be a target for kidnapers because he has family in the

United States and is unable to speak Spanish correctly.

In support of his motion, the respondent has submitted newspaper arti-

cles detailing the violence, including kidnaping, accompanying the ongoing

civil war in Colombia; a Department of State travel warning stating that

United States citizens have been the victims of threats, kidnaping, hijack-

ing, and murder; and a 1998 report on human rights practices in Colombia

prepared by the Department of State. See Bureau of Democracy, Human

Rights and Labor, U.S. Dep’t of State, Colombia Country Report on Human

Rights Practices for 1998 (Feb. 26, 1999), reprinted in Committees on

Foreign Relations and International Relations, 106th Cong., 1st Sess.,

Country Reports on Human Rights Practices for 1998 545 (Joint Comm.

Print 1999) [hereinafter Country Reports].

Motions to reopen in removal proceedings will not be granted unless

the respondent can show that the evidence sought to be offered is material

and was not available at his former hearing. 8 C.F.R. § 3.2(c)(1) (2000). A

motion to reopen must state the new facts to be proved and must be sup-

ported by affidavits or other evidentiary material. Id. In addition, a motion

to reopen will not be granted unless the respondent establishes a prima facie

case of eligibility for the underlying relief sought. See INS v. Abudu, 485

U.S. 94 (1988).

1307

Interim Decision #3430

We have found that a respondent demonstrates prima facie eligibility

for relief where the evidence reveals a reasonable likelihood that the statu-

tory requirements for relief have been satisfied. Matter of L-O-G-, 21 I&N

Dec. 413, 419 (BIA 1996). We have not required a conclusive showing that

eligibility for relief has been established. Id. at 418-19. Rather, we have

reopened proceedings “‘where the new facts alleged, when coupled with the

facts already of record, satisfy us that it would be worthwhile to develop the

issues further at a plenary hearing on reopening.’” Id. (quoting Matter of

Sipus, 14 I&N Dec. 229 (BIA 1972)). The standard for granting reopening

of proceedings is the same for both asylum and withholding. INS v. Abudu,

supra (regarding deportation proceedings).

III. WITHHOLDING OF REMOVAL

A. Particularly Serious Crime

Section 241(b)(3)(A) of the Act specifies that there shall be a restriction

on removal to a country where an alien’s life or freedom would be threat-

ened on account of race, religion, nationality, membership in a particular

social group, or political opinion. Section 241(b)(3)(B)(ii) of the Act states

that an alien is ineligible for withholding of removal if “the alien, having

been convicted by a final judgment of a particularly serious crime, is a dan-

ger to the community of the United States.” The final paragraph of section

241(b)(3)(B) states, in pertinent part, as follows:

For purposes of clause (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 imprison-

ment 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 determin-

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

of a particularly serious crime.

We have recently held that determining whether an alien convicted of

an aggravated felony and sentenced to less than 5 years’ imprisonment has

been convicted of a particularly serious crime requires an individual exam-

ination of the nature of the conviction, the sentence imposed, and the cir-

cumstances and underlying facts of the conviction. Matter of S-S-, 22 I&N

Dec. 458 (BIA 1999); see also Matter of Frentescu, 18 I&N Dec. 244 (BIA

1982), modified, Matter of C-, 20 I&N Dec. 529 (BIA 1992), Matter of

Gonzalez, 19 I&N Dec. 682 (BIA 1988). We have stated that crimes against

persons are more likely to be categorized as particularly serious, but that

there may be instances where a crime (or crimes) against property will be

considered to be particularly serious. Matter of S-S-, supra; Matter of

Frentescu, supra, at 247. Moreover, we have found convictions for armed

1308

Interim Decision #3430

robbery to be convictions for particularly serious crimes. Matter of S-S-,

supra; Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997); Matter of D-,20

I&N Dec. 827 (BIA 1994).

The statutory provisions under which the respondent was convicted

require an intent to deprive a person of property through the use of force,

violence, assault, or putting in fear. Fla. Stat. Ann. §§ 812.13(1),

812.13(2)(c) (West 1998). In the instant case, the record of conviction per-

taining to the respondent’s robbery reflects that he pulled a 24-karat gold

chain from the victim’s neck and the victim fell to the ground. Thus, the

respondent took the victim’s property by force. Moreover, the record of

conviction pertaining to the respondent’s grand theft details the theft of a

computer, two videocassette recorders, and a printer from a school.

We find that the respondent’s robbery conviction, which involves a

violent crime against a person, is a conviction for a particularly serious

crime. Moreover, we consider 4 years to be a significant term of impris-

onment. See, e.g., Matter of S-S-, supra, (finding the length of the respon-

dent’s sentence, 55 months, to be a significant factor supporting the con-

clusion that his robbery conviction was for a particularly serious crime).

Because we have determined that the respondent has been convicted of a

particularly serious crime, we find that he cannot demonstrate prima facie

eligibility for withholding of removal. See section 241(b)(3)(B) of the

Act; Matter of S-S, supra.

B. On Account of

In addition, we observe that the respondent has not demonstrated that

his fear of harm in Colombia is on account of his race, religion, nationali-

ty, membership in a particular social group, or political opinion. See INS v.

Elias-Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S.

421 (1987); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). We have

held that an applicant for asylum need not show conclusively why persecu-

tion occurred in the past or is likely to occur in the future, but must produce

evidence from which it is reasonable to conclude that the harm was moti-

vated, at least in part, by an actual or imputed protected ground. Matter of

S-P-, 21 I&N Dec. 486, 489-90 (BIA 1996). Furthermore, the respondent

is not expected to provide direct proof of a persecutor’s motives, but must

provide some evidence, either direct or circumstantial, of those motives.

INS v. Elias-Zacarias, supra, at 483.

The Department of State Country Report contained in the record indi-

cates that, in 1998, guerrilla groups were active in 700 of Colombia’s 1,073

municipalities and supplanted the state authority in some sparsely populat-

ed areas. Country Reports, supra, at 545. During the first 9 months of that

year, the civil war resulted in 2,000-3,000 deaths and generated 300,000

internally displaced persons. Id. at 547. According to the Department of

1309

Interim Decision #3430

State, 2,216 people were kidnaped during 1998 and more than 700 victims

remained captives of the guerrillas at the end of the year. Id. at 553. A news-

paper article submitted by the respondent indicates that even poor and mid-

dle class persons are at risk of being kidnaped. Tim Johnson, Insecurity

Stalks Colombians in the Countryside, Miami Herald, Apr. 18, 1999.

Furthermore, in a travel warning dated June 10, 1999, the Department of

State reported that more than a dozen United States citizens were kidnaped

in the first 5 months of 1999 alone.

The respondent has not presented evidence that reveals why he fears

being kidnaped by the guerrillas, and he implies only that he fears kid-

naping because of his perceived wealth. We have held that, in the absence

of evidence to suggest other motivations, evidence that the perpetrators

were motivated by a victim’s wealth will not support a finding of perse-

cution within the meaning of the Act. Matter of V-T-S-, 21 I&N Dec. 792

(BIA 1997); Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997). The

respondent has neither alleged that any political opinion would be imput-

ed to him nor provided evidence to support such a claim. The respondent

also has not shown that he would be persecuted on account of his mem-

bership in a particular social group. Although we recognize that Colombia

currently is in the grip of an ongoing civil war, it is well established that

an asylum applicant’s fear of harm resulting from general conditions of

violence and civil unrest affecting the populace as a whole in his home

country does not constitute a “well-founded fear of persecution” within

the meaning of the Act. E.g., Matter of Sanchez and Escobar, 19 I&N

Dec. 276 (BIA 1985), aff’d sub nom. Sanchez-Trujillo v. INS, 801 F.2d

1571 (9th Cir. 1986).

We find that the respondent has failed to demonstrate that his fear of

persecution from guerrillas in Colombia is on account of one of the grounds

specified in the Act. We therefore conclude that reopening of these pro-

ceedings is not warranted because the respondent has failed to articulate a

basis for relief under section 241(b)(3)(A) of the Act.

C. Clear Probability

An alien seeking relief from removal under section 241(b)(3) of the

Act must establish that he faces a clear probability of persecution if

returned to the country to which he would be removed. See INS v. Stevic,

467 U.S. 407 (1984). Thus, an application for withholding must be sup-

ported by evidence establishing that it is more likely than not that the

alien would be subject to persecution. Id. at 429-30. The respondent has

not put forward sufficient evidence to establish that it is more likely than

not that he will face persecution if returned to Colombia. His claim is

based entirely on general conditions arising from the civil war in his

homeland.

1310

Interim Decision #3430

D. Conclusion

We conclude that the respondent has failed to present sufficient evi-

dence in his motion to reopen to demonstrate eligibility for withholding of

removal. Most significantly, we find that he is barred from eligibility for

such relief as an alien convicted of a particularly serious crime. Moreover,

the evidence the respondent has provided of general conditions of violence

and civil unrest in Colombia fails to establish that his life or freedom would

be threatened in that country on account of a protected ground. Finally, his

generalized assertions that a person in his situation faces a clear probabili-

ty of persecution are insufficient to establish eligibility for withholding.

Reopening of proceedings to allow the respondent to apply for relief under

section 241(b)(3) of the Act is consequently not warranted.

IV. CONVENTION AGAINST TORTURE

The respondent has also requested reopening of the proceedings to

apply for relief under Article 3 of the Convention Against Torture. Current

regulations, which became effective on March 22, 1999, establish specific

procedures for raising a claim for protection under Article 3 of the

Convention Against Torture and accord jurisdiction to Immigration Judges

and the Board to consider such claims. 8 C.F.R. §§ 208.16-208.18 (2000).

The regulations provide that an applicant must establish that it is more like-

ly than not that he or she would be tortured if returned to the proposed coun-

try of removal. 8 C.F.R. § 208.16(c)(2). However, an applicant is not

required to demonstrate that he or she would be tortured on account of a

particular belief or immutable characteristic. See Report of the Committee

on Foreign Relations, S. Exec. Rep. No. 101-30, at 16 (1990) (“Senate

Report”). The regulations do require that the harm 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).

The respondent in the instant case does not allege that he fears torture

inflicted by a government official. He therefore must provide evidence that

the torture he fears at the hands of the guerrillas would be “at the instiga-

tion of or with the consent or acquiescence of” Colombian officials or per-

sons acting in an official capacity. 8 C.F.R. § 208.18(a)(1).

A. “Acquiescence”

A public official’s acquiescence to torture “requires that the public offi-

cial, prior to the activity constituting torture, have awareness of such activ-

ity and thereafter breach his or her legal responsibility to intervene to pre-

vent such activity.” 8 C.F.R. § 208.18(a)(7). In its resolution of advice and

1311

Interim Decision #3430

consent to the Convention Against Torture, the United States Senate includ-

ed an understanding replacing the word “knowledge” in this definition of

acquiescence with the word “awareness,” indicating that actual knowledge

of activity constituting torture is not required. See 136 Cong. Rec. S17,486,

17,491-2 (daily ed. Oct. 27, 1990). This revision is also reflected in the reg-

ulations. See 8 C.F.R. § 208.18(a)(7). The Senate Committee on Foreign

Relations clarified the point by stating that “[t]he purpose of this condition

is to make it clear that both actual knowledge and ‘willful blindness’ fall

within the definition of the term ‘acquiescence.’” Senate Report, supra,at

9. Consequently, the definition of “torture” “includes only acts that occur in

the context of governmental authority.” Regulations Concerning the

Convention Against Torture, 64 Fed. Reg. 8478, 8483 (1999) (citing S.

Treaty Doc. No. 100-20, at 19).

The Senate’s inclusion of this definition of acquiescence in its under-

standings to the Convention Against Torture indicates that it meant to

exclude or to modify the legal effect of this particular provision of the treaty

as applied within the United States. See Vienna Convention on the Law of

Treaties, art. 2, § 1(d), U.N. Doc. A/Conf.39/27, at 289 (1969); Restatement

(Third) of the Foreign Relations Law of the United States § 314 (1986). We

therefore interpret the regulation at 8 C.F.R. § 208.18(a) to be limiting. To

demonstrate “acquiescence” by Colombian Government officials, the

respondent must do more than show that the officials are aware of the activ-

ity constituting torture but are powerless to stop it. He must demonstrate

that Colombian officials are willfully accepting of the guerrillas’ torturous

activities. To interpret the term otherwise would be to misconstrue the

meaning of “acquiescence,” the dictionary definition of which is “silent or

passive assent.” The Oxford Universal Dictionary 17 (3d ed. 1955).

Accordingly, we consider that a government’s inability to control a group

ought not lead to the conclusion that the government acquiesced to the

group’s activities.

We note that we have granted asylum to applicants who feared perse-

cution at the hands of nongovernmental entities where the applicant demon-

strated that government authorities were unable to provide protection from

the would-be persecutors. See, e.g., Matter of Kasinga, 21 I&N Dec. 357

(BIA 1996) (holding that an applicant who feared female genital mutilation

by members of her family, and who proved that neither the police nor the

government would protect her, merited asylum); Matter of Villalta, 20 I&N

Dec. 142, 147 (BIA 1990) (holding that an applicant who feared persecu-

tion by a paramilitary “Death Squad” deserved asylum where the

Salvadoran Government “appear[ed], at a minimum, to have been unable to

control” the death squads). However, Article 3 of the Convention Against

Torture does not extend protection to persons fearing entities that a govern-

ment is unable to control. In fact, the United Nations Committee Against

Torture has stated that Article 3 does not provide protection in cases where

1312

Interim Decision #3430

pain or suffering is inflicted by a nongovernmental entity that is not acting

by or at the instigation, consent, or acquiescence of a public official.

See

G.R.B. v. Sweden, Comm. No. 83/1997, CAT/C/20/D/83/1997 (1997) (hold-

ing that the applicant, who asserted a fear of torture by both the Sendero

Luminoso and government authorities in Peru, failed to establish a breach

of Article 3, because a state party is not prohibited under the Convention

from expelling a person “who might risk pain or suffering inflicted by a

non-governmental entity”).

B. “Activity Constituting Torture”

In addition, we consider that the term “activity” that appears in the def-

inition of “acquiescence” does not simply refer to general violence; rather,

the referenced “activity” must be the very torture that the applicant claims

to fear. The Committee Against Torture has observed that the existence of a

consistent pattern of gross, flagrant, or mass violations of human rights in a

particular country does not, as such, constitute a sufficient ground for deter-

mining that a particular person would be in danger of being subjected to tor-

ture upon his or her return to that country. See G.R.B. v. Sweden, supra.

Specific grounds must exist that indicate the individual would be personal-

ly at risk. Id.; see also K.N. v. Switzerland, Comm. No. 94/1997,

CAT/C/20/D/94/1997 (1997) (holding, in a case involving a Tamil and

Christian Sri Lankan national who was forced to work for the Tamil Tigers

and who was sought by the Sri Lankan Army, that the existence of mass

human rights violations in a country does not suffice to prove that a partic-

ular alien will personally be subject to torture).

C. Conclusion

The respondent has neither alleged nor demonstrated that the

Colombian Government’s failure to protect its citizens is the result of delib-

erate acceptance of the guerrillas’ activities. In fact, the record in the pres-

ent case reflects that the Government actively, although to date unsuccess-

fully, combats the guerrillas. Consequently, we find that the respondent has

not proven that Colombian officials acquiesce to the types of activities that

the respondent fears he would suffer at the hands of the guerrillas.

1313

The United Nations Committee Against Torture is a monitoring body for the imple-

mentation and observance of the Convention Against Torture. Convention Against Torture,

supra, arts. 17-22. The United States recognizes the Committee but does not recognize its

competence to consider cases brought by one state party against another or cases brought by

an individual against a state party. See 136 Cong. Rec. at S17,492. We therefore consider the

Committee’s opinions to be advisory only.

Interim Decision #3430

Moreover, the evidence of general conditions of violence presented by the

respondent does not establish that an individual in his circumstances would

be subjected to torture if he returned to Colombia. We therefore find that the

respondent has failed to demonstrate prima facie eligibility for relief under

Article 3 of the Convention Against Torture.

V. CONCLUSION

In light of the foregoing, we conclude that the respondent has failed to

demonstrate eligibility for withholding of removal under section

241(b)(3)(B) of the Act or for protection under Article 3 of the Convention

Against Torture. Accordingly, his motion to reopen will be denied.

ORDER: The respondent’s motion to reopen is denied.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member

I respectfully concur.

I respectfully concur in the result of this case, agreeing with the denial

of the motion. However, I also agree with many of the points expressed by

Chairman Schmidt in his concurring and dissenting opinion and therefore

write separately to discuss my concerns.

Like Chairman Schmidt, I am troubled by the majority’s reliance on

Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997), without noting that the

case was recently reversed by Borja v. INS, 175 F.3d 732 (9th Cir. 1999).

As the quasi-judicial body entrusted with the United States Attorney

General’s discretion and authority over immigration cases pursuant to 8

C.F.R. § 3.1 (2000), we have a duty to disclose the true status of our prece-

dents that have been rejected by the reviewing courts. See The Harvard Law

Review Association, The Bluebook: A Uniform System of Citation, Rules

10.7-10.7.1, at 66-67 (16th ed. 1996).

I also agree with Chairman Schmidt’s criticism of the narrow interpre-

tation prescribed by the majority for determining who may be considered a

“public official or other person acting in an official capacity” for purposes

of 8 C.F.R. § 208.18(a)(1) (2000). The only thing I would add is that we

have already stated that, for immigration purposes, the term “government”

is not limited to political units we recognize as valid. Rather, it includes “a

political organization that exercises power on behalf of the people subject-

ed to its jurisdiction.” Matter of Linnas, 19 I&N Dec. 302, 307 (BIA 1985).

1314

In view of our finding that the respondent has failed to establish eligibility for relief, we

need not address at this time the question whether kidnaping per se constitutes torture.

Interim Decision #3430

According to the documents submitted by this respondent, the Colombian

rebels control approximately 40 percent of that country’s territory, and

those rebels may well be considered part of a government participating or

acquiescing in the torture of an individual within its territory for purposes

of 8 C.F.R. §§ 208.18(a)(1) and (7).

However, none of the evidence submitted in this case suggests any like-

lihood that the Colombian guerrillas would be inclined to torture this par-

ticular respondent. He has been in the United States since he was a young

child and has had little contact with his native country. The respondent’s

motion lacks any individualized reason why his case is different from that

of anyone else facing deportation to Colombia. Consequently, despite my

disagreement with the narrow reading of the regulation espoused by the

majority, I nonetheless concur in its denial of the motion to reopen.

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt,

Chairman; in which John Guendelsberger and Anthony C. Moscato, Board

Members, joined

I respectfully concur in part and dissent in part.

I. WITHHOLDING OF REMOVAL

I agree with the majority that the respondent’s robbery conviction is a

particularly serious crime under Matter of S-S-, 22 I&N Dec. 458 (BIA

1999). I find it unnecessary to reach the “on account of” question. Also, I

would not rely on Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997), which

was reversed by Borja v. INS, 175 F.3d 732 (9th Cir. 1999).

II. REMAND TO APPLY UNDER ARTICLE 3 OF THE

CONVENTION AGAINST TORTURE

I disagree with the majority’s denial of the respondent’s motion to

reopen to apply for deferral of removal under Article 3 of the United

Nations 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 respon-

dent was unable to make such an application at the time of his hearing

because the regulations granting the Executive Office for Immigration

Review jurisdiction over applications under the Convention Against Torture

were not then in effect.

1315

Interim Decision #3430

This motion to reopen is the respondent’s first, and only, opportunity to

apply under the Convention Against Torture. I would grant the motion and

allow the respondent to request protection under Article 3 of the Convention

Against Torture and the implementing regulations before the Immigration

Judge. See 8 C.F.R. §§ 208.16-208.18 (2000).

The motion to reopen may be granted if the respondent establishes a

prima facie case of eligibility for relief under the Convention Against Torture.

A prima facie case is one where the respondent has demonstrated a reason-

able likelihood of success on the merits, so as to make it worthwhile to devel-

op the issues at a hearing. Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996).

The respondent claims that, if returned to Colombia, he would be sub-

ject to torture by guerrilla groups that effectively control portions of the

country and operate with impunity throughout the country. He supports his

claim with documentation indicating that the United States Department of

State has characterized Colombia as probably the most dangerous country

in the world. It is, according to the Department of State’s travel warning, a

country where “narcotraffickers, guerrillas, paramilitary groups and other

criminal elements” engage in rampant, aggravated violence.

The respondent’s documentation, read in its entirety, does not suggest

that such violence is limited to United States citizens or other foreign

nationals. Rather, the supporting evidence indicates that large segments of

the Colombian populace may be at substantial risk. The respondent’s argu-

ment that, as an individual associated with the United States who has fam-

ily in the United States, he may face a heightened risk of mistreatment is

plausible in light of the evidence presented.

The regulations also require an applicant for protection under the

Convention Against Torture to show that it is more likely than not that he

will suffer torture “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). The meaning of this language is not

transparent.

For example, in a recent ruling, the United Nations Committee Against

Torture, the international body whose rulings are cited approvingly by the

majority, found that the warring factions in Somalia fall within the phrase

“public official[s] or . . . other person[s] acting in an official capacity” as

used in the Convention Against Torture. See Sadiq Shek Elmi v. Australia,

Comm. No. 120/1998, CAT/C/22/D/120/ 1998 (1998). In doing so, the

Committee flatly rejected Australia’s arguments to the contrary.

At this point, it is unclear whether the situation of the various factions

committing violent acts in Colombia is analogous to that of the warring fac-

tions in Somalia. There are both potential similarities and differences. There

is also an open question as to when, if ever, the loss of internal control by

an existing government can amount to “acquiescence” that invokes the pro-

tections of the Convention Against Torture. I do not find that question to be

1316

Interim Decision #3430

definitively answered by the sources cited by the majority.

The issue whether the respondent’s situation fits within Article 3 of the

Convention Against Torture requires factual determinations about condi-

tions in Colombia and the respondent’s own situation considered in the con-

text of international legal principles. We have little United States jurispru-

dence to guide us in this area. Before deciding such important and poten-

tially far-reaching issues, we should have a fully developed record and the

benefit of the Immigration Judge’s informed ruling on the positions of the

parties.

The respondent has established a reasonable likelihood of success on

the merits so as to make it worthwhile to develop the issues at a hearing

under Matter of L-O-G-, supra. His motion to reopen and remand should

therefore be granted. Consequently, I respectfully dissent from the decision

to deny the motion.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member

I respectfully dissent.

I disagree with the reasoning and the result reached by the majority. I

agree fully, however, with the statement in the separate opinion of concur-

ring Board Member Villageliu, criticizing the majority for refusing to prop-

erly cite Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997), as having been

squarely overruled by the United States Court of Appeals for the Ninth

Circuit in Borja v. INS, 175 F.3d 732 (9th Cir. 1999).

I also agree with the analysis provided by Chairman Schmidt regarding

the need for an evidentiary hearing to determine the respondent’s potential

eligibility for protection under the United Nations 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”).

I write separately to emphasize my disagreement with the majority’s

resolution of the substantive merits of the respondent’s motion to reopen. In

rushing to deny the respondent both withholding of removal and deferral of

removal in the context of a motion to reopen, the majority usurps the role

of the finder of fact and applies untested interpretations of the governing

law under the Convention Against Torture.

The respondent is a 19-year-old young man who has lived in the United

States as a lawful permanent resident for over 18 years, since he was 5 or 6

months old. Although my colleagues might not deem these facts to have any

bearing on the decision we issue today, I believe that they are significant.

We are obliged to follow the statute, to be sure. The statute provides that an

alien who has been convicted and sentenced to imprisonment for at least 1

1317

Interim Decision #3430

year for the crime of robbery, where force is an element of the crime or the

crime is a felony involving a substantial risk that force will be used in the

commission of the crime, is deportable and subject to removal. See sections

101(a)(43)(F), 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8

U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii) (Supp. II 1996). Nevertheless,

while the respondent might be subject to removal, I would not so easily

dismiss his motion for withholding and deferral of removal.

While there may be a propensity to deny a claim for withholding or

deferral of removal because it is made by a criminal alien who is ineligible

for other forms of relief for removal, I caution against such a response. I

also note that heightening the standard for reopening and denying a hearing

under the Convention Against Torture is not the proper mechanism to reg-

ister one’s disagreement with the availability of protection to such aliens.

As implemented by the United States, the Convention Against Torture

imposes stringent requirements on the conduct of various actors.

Specifically, regulations implementing Article 3 of the Convention refer to

pain and suffering that is “inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an offi-

cial capacity.” 8 C.F.R. § 208.18(a) (2000); see also Deborah E. Anker, Law

of Asylum in the United States 465, 481-85 (3d ed. 1999). This interpreta-

tion arguably is a more broad and liberal one than that provided in the

Convention Against Torture itself. Id. It encompasses both actual knowl-

edge and “willful blindness” by public officials, as bases for a finding that

torture is more likely than not based on acquiescence. See Report of the

Committee on Foreign Relations, S. Exec. Rep. No. 101-30, at 9 (1990).

The interpretation does not expressly exempt actions by entities outside a

government’s control. Evidence of either form of acquiescence by a public

official will support a finding that torture is more likely than not to occur.

Before rejecting a request for protection under the Convention Against

Torture, I believe it prudent to allow such a claim to be fully explored in an

evidentiary hearing. Accordingly, I agree fully with the separate opinion of

Chairman Schmidt, with regard to the majority’s error in denying the

respondent’s motion to reopen to allow him to apply for protection under

Article 3 of the Convention Against Torture.

In addition, I believe that it is important to consider the respondent’s

claim for withholding of removal according to our precedents. These prece-

dents require that, in the course of exercising the discretion extended to the

Attorney General under the statute, we engage in a case-by-case adjudica-

tion. See Matter of S-S-, 22 I&N Dec. 458 (BIA 1999). I find it improper to

invoke our precedents in withholding cases categorically, as I believe the

majority has done here. Cf. id.

I do not disagree that the respondent has been convicted of an offense

that is an aggravated felony. However, I do believe that the statute and our

interpretation of it require that we determine whether the respondent has

1318

Interim Decision #3430

been convicted of a crime that is a particularly serious crime. See id. That

is a question that should be determined in the context of an evidentiary

hearing. Even though we have determined that certain robbery convictions

amount to “particularly serious crimes,” this does not mean that all robbery

convictions are such crimes.

I disagree with the majority’s approach to our appellate adjudication,

and I question the reasons for it, expeditious though it may appear to be. We

are charged with issuing precedent opinions that provide some guidance to

Immigration Judges, the Immigration and Naturalization Service, and the

public. In my view, this opinion provides no such guidance. At best, it pro-

vides a questionable recipe to deny relief to some criminal aliens. I do not

believe that denying relief is our charge, and I dissent.

1319