Antonio Marmorato v. Eric Holder, Jr.

Filing 511091820

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 26, 2010 N o . 09-60257 Lyle W. Cayce Clerk

A N T O N IO MARMORATO, P e tit io n e r , v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R esp on d en t.

P e t it io n for Review of an Order of the Board of Immigration Appeals B I A No. A011-072-742

B e fo r e DEMOSS, ELROD, and HAYNES, Circuit Judges. P E R CURIAM:* P e t it io n e r Antonio Marmorato appeals pro se the decision of the Board of Im m ig r a tio n Appeals, which affirmed an Immigration Judge's denial of his ap plicatio n for deferral of removal under the United Nations Convention Against T o r t u r e (CAT). Marmorato contends 1 that both the Board of Immigration

A p p e a ls (BIA) and the Immigration Judge (IJ) applied the incorrect standard in

Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Fifth Circuit Rule 47.5.4. We conclude that this appeal was timely filed. Marmorato was in federal detention when he filed the notice, such that the "mailbox rule" applies. Because this court received the petition in the mail one day after the deadline for its filing, it must have been timely mailed.
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No. 09-60257 d e te r m in in g whether the Italian Government would acquiesce in his torture, t h a t he received ineffective assistance of counsel, and that the Immigration and N a t u r a liz a t io n Service is estopped from bringing removal proceedings against h im where it acted with malice in denying his request for citizenship. We G R A N T the petition in part, and DENY it in part.

I . FACTS AND PROCEDURAL HISTORY

M a rm o r a to , a native and citizen of Italy, became a lawful permanent r e s id e n t of the United States in 1957. In July of 2003, he was convicted of the o f fe n s e s of conspiracy to import and possess with intent to distribute cocaine, im p o r t a tio n of cocaine, and possession with intent to distribute cocaine. He was s e n t e n c e d to fourteen years confinement. While Marmorato was incarcerated in Brooklyn, New York, he provided substantial assistance to the Office of the I n s p e c t o r General (OIG) regarding the illegal importation of contraband to in m a te members of Italian families through visitors to the facility and by federal e m p lo y e e s such as correctional officers and case managers. Throughout 1996 a n d 1997, Marmorato served as a confidential informant to an OIG special a g e n t. During the period Marmorato assisted the OIG, the Inspector General s e c u r e d fourteen arrests related to illegal contraband importation, the most s ig n ific a n t of which involved a case manager for the Bureau of Prisons. The in v e s t ig a t io n revealed that prison guards were bringing contraband to members o f Italian families, particularly a "mafia family captain" who was housed at M a r m o r a t o 's institution. Marmorato was never called to testify in a trial or p r o c e e d in g , but his sister testified regarding the dates upon which payment tr a n s fe r s were made. In April 2008, the Department of Homeland Security charged Marmorato w it h removal under 8 U.S.C. § 1227(a)(2)(A)(iii) for his conviction of an a g g ra v a te d felony. With the assistance of counsel, Marmorato conceded that he

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No. 09-60257 w a s removable as charged, and the IJ ordered him removed to Italy. The IJ fo u n d that he was statutorily ineligible for withholding of removal due to his c o n v i c t i o n for a "particularly serious crime." See 8 U.S.C. § 1231(b)(3)(B)(ii). M a r m o r a t o sought a deferral of removal pursuant to Article III of the United N a t io n s Convention Against Torture (CAT) on the ground that his assistance to t h e OIG would lead to his torture in Italy. He claimed to be particularly fearful b e c a u s e his information helped the secure the conviction of an inmate for c o n tr a b a n d violations, and both the inmate and the inmate's brother had strong c o n n e c t io n s to Italian families who had government ties. Following a hearing, t h e IJ denied relief, finding that Marmorato could not demonstrate a nexus b e t w e e n the torture he feared and the national Italian government. The IJ also fo u n d that any local government official who aided families of criminals in lo c a tin g Marmorato would be acting as a private actor, and those actions could n o t be attributable to the government. Based on these findings, the IJ denied a ll forms of relief and ordered Marmorato removed to Italy. M a rm o r a to appealed to the Board of Immigration Appeals (BIA) arguing t h a t it was sufficient for him to be able to show a nexus between the families of t h e criminals and local government agents, and additionally, that the IJ erred in failing to find a nexus between the feared torture and an Italian government o ffic ia l. He also asserted that his counsel was ineffective for failing to present s u c h evidence, and he disputed that he had been convicted of a "particularly s e r io u s crime" on the grounds that he was in a state of diminished capacity. He a ls o faulted his former counsel for failing to raise and thereby preserve his a r g u m e n t that the government acted with malice in wrongfully denying of his c la im for citizenship, and for failing to argue that the "state created danger" d o c tr in e prevented the government from deporting him where he was now in d a n g e r from his aid to the government. The BIA found "no error" in the IJ's d e c is io n and concluded that Marmorato had failed to submit evidence showing h e would be tortured, and concluding that he had failed to show that the Italian g o v e r n m e n t worked in collusion with the people who might torture Marmorato. 3

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No. 09-60257 The BIA likewise found that Marmorato had not established that his counsel w a s ineffective, so he was not entitled to a grant of a motion to reopen. M a r m o r a to has since filed a timely petition for review.

II. JURISDICTION AND STANDARD OF REVIEW

T h e Immigration and Nationality Act provides that an alien who "is c o n v i c t e d of an aggravated felony at any time after admission is deportable." 8 U .S .C . § 1227(a)(2)(A)(iii). Marmorato does not dispute that he was convicted o f an aggravated felony. Although 8 U.S.C. § 1252(a)(2)(C) generally prohibits ju d i c ia l review of removal orders issued on the basis of an alien's commission of a n aggravated felony, the REAL ID Act provides that none of its ju r is d ic tio n -s tr ip p in g provisions "`shall be construed as precluding review of c o n s t it u t io n a l claims or questions of law raised upon a petition for review filed w it h an appropriate court of appeals.'" Alvarado de Rodriguez v. Holder, 585 F .3 d 227, 234 (5th Cir. 2009) (quoting 8 U.S.C. § 1252(a)(2)(D)); see also Ahmed v . Mukasey, 300 F. App'x 324, 327 (5th Cir. 2008) (unpublished). Constitutional is s u e s and questions of law regarding the interpretation of CAT are no e x c e p tio n . See Ahmed, 300 F. App'x at 327; Reyes-Gomez v. Gonzales, 163 F. A p p 'x 293, 296 (5th Cir. 2006) (unpublished); see also Saintha v. Mukasey, 516 F .3 d 243, 248 (4th Cir. 2008); Toussaint v. Att'y General, 455 F.3d 409, 412 n.3 (3 d Cir. 2006) (finding that a court may review a CAT claim submitted in a p r o p e r petition for review, but its "jurisdiction extends only to constitutional c la im s and questions of law." ) (internal citations omitted)). Thus, we may review M a r m o r a t o 's claims only to the extent that they raise a colorable question of law o r a constitutional claim. We review the BIA's conclusions of law de novo, with su b stan tial deference to interpretations of statutes and regulations administered

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No. 09-60257 b y the agency. See Romero-Rodriguez v. Gonzales, 488 F.3d 672, 675 (5th Cir. 2 0 0 7 ).

III. DISCUSSION

A . Convention Against Torture Claim M a r m o r a t o urges the court to review the BIA's affirmation of the IJ's c o n c lu s io n that Marmorato failed to show that he was entitled to relief under A r tic le III of the Convention Against Torture. The BIA's order dismissing his a p p e a l expressly adopted and affirmed, with exceptions deemed harmless, the I J 's "ultimate conclusion" that Marmorato had not established eligibility for r e lie f under CAT. See 8 C.F.R. §§ 1208.16(c)(2); 1208.18(a)(1). Our review

o r d in a rily is limited to the BIA's decision, but where, as here, the BIA adopts the d e c is io n of the IJ, albeit with modifications, this court must review the IJ's d e c is io n . See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997); see also Zhu v. G o n z a le s , 493 F.3d 588, 593 (5th Cir. 2007) (noting that the court reviews the I J 's decision when the IJ's ruling affects the BIA's decision). Marmorato argues t h a t both the IJ and the BIA employed the incorrect legal standard for d e t e r m in in g whether torture would be "inflicted by or at the instigation of or w it h the consent or acquiescence of a public official or other person acting in an o ffic ia l capacity." 8 C.F.R. § 1208.18(a)(1) (emphasis added). He also contends t h a t the BIA did not apply the proper standard of review to the IJ's findings of fa c t in determining that Marmorato had failed to show that he had not shown t h a t it was "more likely than not that he . . . would be tortured if removed" to I t a ly . § 1208.16(c)(2). Both of these claims concern questions of law, so we may r e v ie w them.

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No. 09-60257 1 . The Legal Standards Implemented by the IJ and the BIA F o r a petitioner to be entitled to a deferral of removal under CAT, he must s h o w that he is "more likely than not" that "he [will] be tortured if removed to t h e proposed country of removal." § 1208.16(c)(2). An act is not considered " t o r t u r e " under the act unless it is "inflicted by or at the instigation of or with t h e consent or acquiescence of a public official or other person acting in an o ffic ia l capacity." § 1208.18(a)(1). In his oral decision, the IJ explained the a c q u ie s c e n c e inquiry as follows: In order for acquiescence to occur, the officers who know that t o r t u r e will occur have to be acting in an official capacity and e s s e n t ia lly ignore their duty. In this particular case, the R e s p o n d e n t is indicating that it is corrupt officers who might b e c o m e aware of his presence, inform the mafia of his presence, and t h e n turn their back on their duties in regards to any torture that m ig h t be inflicted . . . . The Court finds that this is not in the official c a p a c it y of an officer of the Italian government. T h e torture convention was basically passed by Congress with t h e provision of protecting people from the activities of rogue g o v e r n m e n t s who have no regard for human rights or civil rights. C a te g o r ic a lly , the Respondent has not shown the Italian g o v e r n m e n t is likely to do this, and as a result, the Court cannot fin d that private acts by individuals, even under the cloak of being a government official when they are acting on behalf of not the g o v e r n m e n t of Italy but on behalf of this mafia organization, are not a tt r ib u ta b le to the Italian government and not covered under the t o r t u r e convention." Marmorato argues that the IJ misinterpreted the proper acquiescence s ta n d a r d by determining that a "corrupt government official" could not be a " g o v e r n m e n t official" for the purposes of the legal standard enunciated in

§ 1208.18(a)(1), and by determining that the "sole purpose of the CAT is to p r o t e c t an alien from a rogue government with no respect for civil rights." The G o v e r n m e n t argues that there is no merit to the claim that the IJ employed an in c o r r e c t standard because it "cited to the correct regulation, 8 C.F.R.

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No. 09-60257 § 1208.18(a)(1)." This argument is inapposite. "Common sense as well as the w e igh t of authority requires that we determine whether the [IJ] applied the c o r r e c t legal standard, not simply whether it stated the correct legal standard." A lv a r a d o de Rodriguez, 585 F.3d at 235 (citation and internal quotation marks o m i t t e d ) .2 W e agree with Marmorato that the IJ announced an erroneous legal s t a n d a r d when it determined that acts conducted "under the cloak of being a g o v e r n m e n t official" do not satisfy the standard of § 1208.18(a)(1), as that section e x p lic i t l y covers acts done by public officials acting in their "official capacity." A lt h o u g h the regulation does not define "official capacity," the Attorney General h a s interpreted that phrase to mean "under color of law." See In re Y-L-, 23 I. & N. Dec. 270, 285 (AG 2002) (citing Ali v. Reno, 237 F.3d 591, 597 (6th Cir. 2 0 0 1 )). Our circuit has not addressed the agency's interpretation of "in an o ff ic ia l capacity" in a published opinion, but we adopted the Attorney General's in te r p r e ta tio n of "official capacity" in a recent unpublished case, Ahmed v. M u k a s e y . 300 F. App'x 324 (5th Cir. 2008) (unpublished). There, we stated that "[t]o prove entitlement to protection under CAT, the applicant must demonstrate th a t, if removed to his country of origin, it is more likely than not that he would b e tortured by, or with the acquiescence of, government officials acting under c o lo r of law." Id. at 327-28 (citing 8 C.F.R. § 1208.16(c)(2)) (emphasis added). T h e Eighth Circuit, in Ramirez-Peyro v. Holder (Ramirez-Peyro II), explicitly fo llo w e d Ahmed in "adopt[ing]" as reasonable "the agency's interpretation of `in

The Government argues that Marmorato waived these arguments by failing to brief them and by failing to brief his challenge to the appropriate standard in his brief to the BIA. We reject this argument, as Marmorato did brief these issues before the BIA. Although Marmorato's thorough briefing makes it unnecessary for us to broadly construe his arguments in order to find them to be preserved, we note that his status as a pro se petitioner entitles him to greater leeway than he would be afforded if he had counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).

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No. 09-60257 a n official capacity' as the equivalent of `under color of law' as used in the civilr ig h ts context." 574 F.3d 893, 900 (8th Cir. 2009). When we consider whether the IJ interpreted "under color of law" as we w o u ld in a civil rights case, its legal error is immediately apparent. Our circuit h a s long recognized that "an act is under color of law when it constitutes a `[m ]is u s e of power, possessed by virtue of state law and made possible only b e c a u s e the wrongdoer is clothed with the authority of state law.'" United States v . Causey, 185 F.3d 407, 442 (5th Cir. 1999) (quoting Monroe v. Pape, 365 U.S. 1 6 7 , 184 (1961)). We have recognized on numerous occasions that acts

m o t iv a t e d by an officer's personal objectives are "under color of law" when the o ffic e r uses his official capacity to further those objectives.3 See, e.g., Townsend v . Moya, 291 F.3d 859, 861-62 (5th Cir. 2002); Harris v. Rhodes, 94 F.3d 196, 1 9 7 (5th Cir. 1996). Conflating an officer's breach of authority with the

a b a n d o n m e n t of that authority would also render meaningless 8 C.F.R. § 1 2 0 8 .1 8 (a )(7 ), which states that "[a]cquiescence of a public official requires that t h e public official, prior to the activity constituting torture, have awareness of s u c h activity and thereafter breach his or her legal responsibility to intervene t o prevent such activity." (emphasis added). A public official who uses his office fo r personal motivations can nonetheless be acting in his official capacity.

Compare Bennett v. Pippin, 74 F.3d 578, 589 (5th Cir. 1996) (finding that an officer's action was "under color of state law" where a sheriff raped a woman and used his position to ascertain when her husband would be home and threatened to have her thrown in jail if she refused) with Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (per curiam) (finding no action under color of law where a police chief assaulted his sister-in-law over personal arguments about family matters, but did not threaten her with his power to arrest). Other circuits would find the IJ's interpretation to be in error as well, as the Eighth Circuit rejected a near-identical formulation as erroneous. See Ramirez-Peyro II, 574 F.3d at 904 (rejecting, as a misinterpretation of the "official capacity" inquiry, the BIA's statement that "even assuming law enforcement would consent or acquiesce to torture at the hands of the Cartel, they again `would not be acting under the pretense of law [but] following a purely personal pursuit' by acquiescing to the Cartel's actions.")

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No. 09-60257 T h e IJ also misinterpreted the "official capacity" inquiry and the very p u r p o se of the CAT by stating that the § 1208.18(a)(1) inquiry could never be s a t is fie d in a country like Italy, but only in nations with "rogue governments" w i t h "no regard for human rights or civil rights." We reject any notion that a p e tit io n e r 's entitlement to relief depends upon whether his country of removal c o u ld be included on some hypothetical list of "rogue" nations. Rather, the

" c o lo r of law" inquiry turns upon the nexus between the petitioner, the improper c o n d u c t of those officials in question, and the officers' performance of their o ffic ia l duties 4 -- n o t upon sweeping characterizations of the nation in question. T o the contrary, proving action in an officer's official capacity "does not require t h a t the public official be executing official state policy or that the public official b e the nation's president or some other official at the upper echelons of power. R a t h e r . . . the use of official authority by low-level officials, such a[s] police o ffi c e r s , can work to place actions under the color of law even where they are w it h o u t state sanction." Ramirez-Peyro II, 574 F.3d at 901 (citing Screws v. U n ite d States, 325 U.S. 91, 111 (1945)) see also Silva-Rengifo v. Atty. Gen., 473 F .3 d 58, 68, n.7 (3d Cir. 2007) (noting that an "alien can establish sufficient co llu sio n between groups in the country, or factions within the government itself, w h o s e actions are tolerated, if not condoned by those in government." (emphasis a d d e d )); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002) (c o n s id e r in g evidence of acquiescence by low-level officials (such as local police) a n d high-level officials (such as the President of Honduras)). Here, the IJ erred in limiting its official capacity inquiry to only those agents at the highest levels o f national government, to the exclusion of those agents lower in the chain of c o m m a n d whom Marmorato claims would acquiesce in the anticipated torture.

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Townsend v. Moya, 291 F.3d 859, 865 (5th Cir. 2002).

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No. 09-60257 W h e r e the BIA adopted the IJ's decision with amendments, we must also r e v ie w the BIA's decision to determine whether the legal error that infected the I J decision also permeates the BIA opinion. We find that it does. The BIA's

m is ta k e essentially tracks the same path as that of the IJ. The error here is not a s clear as it was in the IJ opinion, as the BIA did not restate the IJ's sweeping g e n e r a liz a t io n that no action by a public official in Italy could be considered a cq u ie s c e n c e where Italy was not a rogue government. But in determining w h e t h e r Marmorato could show that torture would be inflicted with the "a c q u ie s c e n c e of a public official or other person acting in an official capacity," 8 C.F.R. § 1208.18(a)(1), it faulted Marmorato for failing to show that the n a tio n a l government would be willfully blind or otherwise acquiesce in torture. A s stated above, "the use of official authority by low-level officials, such a[s] p o l ic e officers, can work to place actions under the color of law even when they a r e without state sanction," Ramirez-Peyro II, 574 F.3d at 901, and such action " u n d e r color of law" is sufficient to satisfy the requirements of § 1208.18(a)(1); se e In re Y-L-, 23 I. & N. Dec. 270, 285 (AG 2002). Public officials' acquiescence t o torture is not restricted to the upper tiers of government--it may be d e m o n s t r a t e d by the corruption of the lower levels of government as well. B e c a u s e the BIA incorporated the IJ's misunderstanding of the "official capacity" r e q u ir e m e n t into its acquiescence inquiry, this question must be remanded to t h e BIA to be decided under the proper standard. Marmorato also challenges t h e BIA's analysis of the findings of fact underlying the torture inquiry.5 We c o n c lu d e that the BIA should have the opportunity to address these questions

By law, the BIA may review the IJ's findings of fact only for clear error, 8 C.F.R. § 1003.1(d)(3)(i), and it "may not may not re-weigh the evidence and substitute its own judgment for that of the IJ absent clear error." See Alvarado de Rodriguez v. Holder, 585 F.3d 227, 235 (5th Cir. 2009); see also 8 C.F.R. § 1003.1(d)(3)(iv) ("Except for taking administrative notice of commonly known facts . . . the Board will not engage in factfinding in the course of deciding appeals.").

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No. 09-60257 in the first instance under the proper legal standard as discussed herein. A c c o r d in g l y , we do not address the factual findings challenges at this point. B . Claim for Estoppel Based on Alleged Wrongful Denial of Citizenship M a r m o r a t o also argues that the removal proceedings against him must be te r m in a te d because the United States is equitably estopped from denying his c it iz e n s h ip when the "INS acted purposefully and deliberately [to] deny [him] c it iz e n s h ip outside the bounds of law." To the extent that he raises his estoppel c la im separately from his argument that his counsel was ineffective in failing to r a is e this argument before the IJ, Marmorato has not provided any argument s u p p o r tin g this court's ability to grant him relief through equitable estoppel. See A n d r a d e v. Gonzales, 459 F.3d 538, 545 n.2 (5th Cir. 2006) ("It is unclear w h e t h e r equitable estoppel can ever apply to the Government, but in any event, e q u it a b le estoppel will not lie against the Government as against private litig a n ts ." (citation and internal quotation marks omitted)); see also Moosa v. I N S , 171 F.3d 994, 1003 (5th Cir. 1999). Moreover, although he alleges that INS e n g a g e d in misconduct when it denied his petition for citizenship more than th ir ty years ago, the record reveals that he was again denied citizenship on April 1 4 , 2008 because he did not meet the statutory requirement of establishing that h is parents naturalized before his eighteenth birthday. Marmorato has not a r g u e d that any act of misconduct prevented him from making such a showing, o r that this determination was inaccurate. Therefore, we DENY his petition for r e v ie w on this ground. CONCLUSION A c c o r d in g ly , Marmorato's petition for review is GRANTED IN PART and D E N I E D IN PART. We VACATE the BIA's affirmance of the IJ's denial of M a r m o r a t o 's motion for deferral of removal. On REMAND, the BIA must

c o n s id e r whether Marmorato will, more likely than not, be tortured, and w h e t h e r that torture will inflicted by or at the instigation of or with the consent 11

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No. 09-60257 o r acquiescence of a public official at any level of government or other person a c ti n g under color of law. See §§ 1208.16(c)(2); 1208.18(a)(1). In making this d e t e r m in a t io n , the BIA must review the fact-findings of the IJ for clear error o n ly . The BIA is also instructed to remand to the IJ for any additional factfin d in g s that are necessary for the BIA to make its determination. As remand is necessary, we do not reach the Marmorato's claim that he was denied due p r o c e s s by ineffective assistance of counsel. We DENY the petition insofar as it c o n c e r n s his request for estoppel.

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