Azmi Hakim v. Eric Holder, Jr.

Filing

PUBLISHED OPINION FILED. [09-60549 Affirmed in Part; Vacated in Part & Remanded] Judge: EGJ , Judge: PEH , Judge: JES Mandate pull date is 02/03/2011 [09-60549]

Azmi Hakim v. Eric Holder,: Jr. Case 09-60549

Document: 00511319981 Page: 1 Date Filed: 12/13/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 13, 2010 N o . 09-60549 Lyle W. Cayce Clerk

A Z M I HAKIM, also known as Azzi Hakim, also known as Azmi R. Hakim, Petitioner v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e t it io n for Review of an Order of the Board of Immigration Appeals

B e fo r e JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges. E . GRADY JOLLY, Circuit Judge: A z m i Hakim seeks review of a Board of Immigration Appeals ("BIA") order fin d in g that his money laundering conviction was for more than $10,000, and c o n s t i t u t e d a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii). He fu r t h e r contends that the BIA applied an incorrect legal standard to find that he w a s not eligible for relief under the Convention Against Torture ("CAT"). We a ffir m the BIA holding that Hakim laundered more than $10,000, and that this c o n s t it u t e d a particularly serious crime. We find, however, that the BIA applied a n incorrect legal standard in its CAT consideration, and therefore remand this c a s e to be decided under an "actual knowledge" or "willful blindness" standard.

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I. A z m i Hakim is a native and citizen of Israel who entered the United S t a te s as an immigrant in 1988. In 2000, Hakim and several other men were in d ic t e d for drug trafficking, tax fraud, and money laundering. In 2003, Hakim w a s convicted of tax fraud and money laundering and sentenced to 37 months o f imprisonment. Only the money laundering is relevant to the instant petition fo r review. In July 2006, the Department of Homeland Security ("DHS") issued a N o tic e to Appear charging that Hakim was removable for being convicted of the a g g r a v a t e d felony of money laundering involving more than $10,000. Hakim a d m it t e d the fact of conviction but contested whether the amount of a c t u a lly -la u n d e r e d money exceeded $10,000, as was required to meet the d e fin it io n of aggravated felony found at 8 U.S.C. § 1101(a)(43)(D). At a hearing in May 2007, the immigration judge ("IJ") found clear and convincing evidence t h a t Hakim laundered more than $10,000, and that he was therefore removable fo r having committed an aggravated felony. Hakim then sought withholding of r e m o v a l and protection under the CAT. A t a hearing in October 2007, Hakim, a Greek Orthodox Christian, alleged t h a t Muslims persecuted him and members of his family in Israel. The IJ c o n c lu d e d that withholding was not available to Hakim under § 1231(b)(3)(B)(ii) b e c a u s e his money laundering offense was a "particularly serious crime." The I J rejected the CAT claim on grounds that Hakim did not show that the g o v e r n m e n t of Israel had acquiesced to any torture of Hakim by Muslims in I s r a e l. It ordered that Hakim be removed to Israel. H a k im appealed to the BIA. The BIA affirmed the IJ's removal decision, h o ld in g that Hakim was removable for having committed an aggravated felony b e c a u s e his money-laundering crime involved more than $10,000. The BIA also

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d e t e r m in e d that the money laundering was a particularly serious crime that p r e s e n t e d a danger to the community because it was related to drug trafficking. The BIA affirmed the denial of CAT relief, finding no showing of either the lik e lih o o d of torture by Muslims or acquiescence in such torture by the g o v e r n m e n t of Israel. H a k im timely appealed the BIA decision. DHS filed an unopposed motion fo r remand so that it could further consider the amount of money laundered by H a k im , which this court granted. The BIA in turn remanded the case to the IJ. On remand to the IJ, the DHS submitted evidence to show that Hakim's m o n e y -la u n d e r in g crime involved more than $10,000. The evidence presented in c lu d e d Hakim's plea agreement, Hakim's presentence report addendum, and a letter from the U.S. Probation Office stating that the "case involves a p p r o x im a t e ly $113,000." Hakim argued that only the amount of illegallyo b ta in e d money that was actually laundered, exclusive of any lawfully gained a n d commingled funds, could be counted toward the $10,000. He also argued t h a t only funds relevant to the charged count, and not from any additional u n c h a r g e d or relevant conduct under the Sentencing Guidelines, could be in c lu d e d in the calculation. T h e IJ concluded that the DHS's additional evidence confirmed that H a k im laundered more than $10,000. Hakim appealed to the BIA, which

a ffir m e d the IJ decision. Hakim filed a timely petition for review by this court. II. T h is court reviews the BIA's order but also considers the IJ's reasoning to t h e extent it has an impact on the BIA's determination. See Mikhael v. INS, 115 F .3 d 299, 302 (5th Cir. 1997). Generally, this court reviews rulings of law de n o v o and findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d 5 8 8 , 594 (5th Cir. 2007). However, this court accords deference to the BIA's

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in t e r p r e t a t io n of immigration statutes and will affirm the BIA's interpretation u n le s s there is a "dispositive error of law." Faddoul v. INS, 37 F.3d 185, 188 (5 t h Cir. 1994). III. I n support of his petition for review, Hakim raises three issues: (1) he r e n e w s his challenge to the finding that he committed an aggravated felony by la u n d e r in g more than $10,000, (2) he contends that the BIA failed to use the c o r r e c t legal standard in deciding that he had committed a particularly serious c r im e ; and (3) he contends that the denial of CAT relief was based on an in c o r r e c t legal standard and unsupported by substantial evidence. We consider e a c h of these issues in turn. A. " A n y alien who is convicted of an aggravated felony at any time after a d m is s io n is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). "Aggravated felony" is d e fin e d to include a money-laundering crime under 18 U.S.C. § 1956 "if the a m o u n t of the funds exceeded $10,000." 8 U.S.C. § 1101(a)(43)(D). Where an a lie n is charged with being removable for committing an aggravated felony, the G o v e r n m e n t has the burden of establishing removability by clear and convincing e v id e n c e . Arguelles-Olivares v. Mukasey, 526 F.3d 171, 178 (5th Cir. 2008). A d e t e r m in a t io n of removability is valid only if "it is based upon reasonable, s u b s t a n t ia l, and probative evidence." Id. (internal quotation marks and citation o m it t e d ). These standards apply on appellate review of whether the BIA erred in determining the amount of loss needed to establish an aggravated felony. Id. H a k im does not dispute that he laundered money, but he does argue that t h e DHS was required to prove specifically that at least $10,000 of the money i n v o lv e d in his money-laundering crime was derived from unlawful activity. This circuit has previously held that money involved in a money laundering

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c r im e can and does include commingled, legitimate funds because they facilitate a n d advance the money laundering. See United States v. Tencer, 107 F.3d 1120, 1 1 3 4 -3 5 & n.6 (5th Cir. 1997); see also United States v. Davis, 226 F.3d 346, 356 (5 t h Cir. 2000) (citing Tencer as holding that "section 1956 requires only that a n y part of transaction involved tainted funds"). Accordingly, the $10,000

r e q u ir e m e n t of § 1101(a)(43)(D) is satisfied where the money laundering " in v o lv e d " more than $10,000, even absent proof that all of the money was g a in e d through unlawful activity. See Tencer, 107 F.3d at 1135-36 & n.6. Hakim suggests that in Chowdhury v. INS, the Ninth Circuit reached the o p p o s it e result. 249 F.3d 970, 973 (9th Cir. 2001). In Chowdhury, the defendant w a s convicted of multiple fraud crimes as well as a money-laundering t r a n s a c t io n that "involved one check issued in the amount of $1,310." Id. at 971. The court explained that the amount of laundered money was limited to the $ 1 ,3 1 0 and did not include larger sums lost by the victims. Id. at 973. When the c o u r t referred "to the amount of money that was laundered" it was merely d is t in g u is h in g the money involved in the money laundering crime from "the loss t o the victim or the total proceeds of the criminal activity." See id. The court did n o t examine or discuss whether all or part of the $1,310 was tainted, and it did n o t require proof that all or part of it was tainted. See id. Hakim's reliance on United States v. Allen is similarly misplaced. 76 F.3d 1 3 4 8 (5th Cir. 1996). In Allen, this court rejected the defendant's request to e x c lu d e from the laundered amount certain fees that had not caused an actual lo s s to the victims. Id. at 1369. This court noted that the sentence for money la u n d e r in g was based on "the value of the funds that the defendant laundered" r a t h e r than the amount of loss. Id. Like the Ninth Circuit in Chowdhury, the A lle n court was simply distinguishing the money involved in the laundering c r im e from the loss suffered by the victims. See id. The Allen court concluded 5

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t h a t all funds diverted to the defendant were countable as laundered money. Id. Thus, neither Chowdhury nor Allen nor the relevant aggravated-felony a n d money-laundering statutes require an exact accounting of the source of each d o lla r charged in connection with a money-laundering crime. There is, therefore, n o authority to support Hakim's narrow construction of § 1101(a)(43)(D) as r e q u ir in g proof that all of the $10,000 be tainted funds. Accordingly, we hold the D H S was required to show only that Hakim's crime involved more than $10,000. The record contains clear, convincing, and properly admitted evidence to e s t a b lis h that Hakim's crime involved at least $50,000 of illegal drug money. We t h e r e fo r e find that Hakim committed an aggravated felony and is therefore d e p o r ta b le . B. H a k im contends that the BIA failed to use the correct legal standard to d e c id e that he had committed a particularly serious crime under

§ 1231(b)(3)(B)(ii). Hakim's aggravated-felony sentence was less than five years, s o it was not automatically deemed to be particularly serious. But, the Attorney G e n e r a l retains discretion to determine whether an aggravated felony resulting in a lesser sentence was a particularly serious crime. § 1231(b)(3)(B). The A t to r n e y General found that Hakim's crime was particularly serious. The BIA a g r e e d , noting the link between Hakim's money laundering and drug activity. Hakim contends that the BIA applied the legal standard improperly b e c a u s e it did not examine, individually, each of the factors set forth in Matter o f Frentescu, 18 I&N Dec. 244, 247 (BIA 1982). In support of this proposition, H a k im cites Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006). Afridi discusses a t length whether the BIA must consider each Frentescu factor and cites c o n s id e r a b le case law holding that the BIA is only required to perform "case s p e c ific analysis," not consideration of each individual factor. Afridi does not

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e x p lic it ly hold, nor do we understand it to mean, that the BIA must individually c o n s id e r each Frentescu factor before reaching its decision. Therefore, because t h e BIA opinion clearly indicates that the BIA performed a case-specific analysis o f Hakim's claim consistent with precedent, we find that it applied the correct le g a l standard.1 C. H a k im argues that the BIA failed to use the correct legal standard to find t h a t he was ineligible for protection under the CAT. He further contends that t h e BIA's denial of relief was not supported by substantial evidence. In

u n p u b lis h e d opinions, this court has found that it does not have jurisdiction to a n a ly z e factual questions of CAT relief, but may consider whether the IJ or BIA a p p lie d the correct legal standard. Ahmed v. Mukasey, 300 F. App'x 324, 327-28 (5 t h Cir. 2008) (holding that absent a constitutional claim or question of law, the c o u r t lacks jurisdiction over BIA or IJ decisions on CAT relief); Marmorato v. H o ld e r , 376 F. App'x 380, 384-85 (5th Cir. 2010) (taking jurisdiction to decide w h e t h e r IJ applied the proper legal standard on an issue of CAT relief). The q u e s t io n is, therefore, whether the BIA applied the correct legal standard to d e t e r m in e whether Hakim was eligible for CAT protection.

Although he claims his argument pertains to the legal standard used by the BIA, much of Hakim's argument is in fact based upon the merits of the BIA decision . Circuits are split on the issue of whether an appellate court has jurisdiction to consider the merits of a BIA determination that a crime was not particularly serious under § 1231(b)(3)(B). See SolorzanoMoreno v. Mukasey, 296 F. App'x 391, 394 n.5 (5th Cir. 2005) (noting that there is a circuit split over whether a finding that an alien has been convicted of a "particularly serious" crime is discretionary, and therefore outside the jurisdiction of appellate courts); Michael McGarry, Note, A Statute in Particularly Serious Need of Reinterpretation: The Particularly Serious Crime Exception to Withholding of Removal, 51 B.C. L. Rev. 209, 211 n. 22 (2010) (same). In an unpublished opinion, this court has held that it did not have jurisdiction to consider the merits of the BIA's determination that the crime was particularly serious. Razaq v. Gonzales, 242 F. App'x 181, 182 (5th Cir. 2007). Because Hakim asks only that we consider the legal standard used by the BIA, we need not address whether we have jurisdiction over the meritsbased aspects of his argument.

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T o obtain protection under the CAT, an alien must demonstrate that, if r e m o v e d to a country, it is more likely than not he would be tortured by, or with t h e acquiescence of, government officials acting under the color of law. 8 C.F.R. § 208.16(c)(2). We have held that the requisite "acquiescence" is satisfied by a g o v e r n m e n t 's willful blindness of torturous activity. A s h c r o ft, 303 F.3d 341, 354 (5th Cir. 2002). T o make a CAT determination for Hakim, the BIA relied on the standard a r t ic u la t e d in Matter of S-V-,2 which states that "[t]o demonstrate `acquiescence' b y [g]overnment officials, the respondent must do more than show that the o ffic ia ls are aware of the activity constituting torture but are powerless to stop it . He must demonstrate that [the] officials are willfully accepting of the [ ] t o r t u r o u s activities." 22 I. & N. Dec. 1306, 1312 (BIA 2000). The Sixth and Ninth Circuits have overruled Matter of S-V-, noting that it failed to properly include "willful blindness" in the definition of "acquiescence." Zheng v. Ashcroft, 332 F.3d 1186, 1194-96 (9th Cir. 2003) (noting that the "BIA's in t e r p r e t a t io n and application of acquiescence impermissibly requires more than a w a r e n e s s and instead requires that a government be willfully accepting of a t h ir d party's tortu[r]ous activities"); Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th C ir . 2005) (acknowledging that in Zheng the Ninth Circuit overruled Matter of S -V ); see Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006) (overruling Matter o f S-V-). The Fifth Circuit has mentioned Matter of S-V- twice. In Ontunez-Tursios v . Ashcroft, we cited Matter of S-V- for the proposition that "`[w]illful blindness s u ffic e s to prove `acquiescence.'" 303 F.3d at 254 (citing Matter of S-V-, 2000 WL 5 6 2 8 3 6 ). Although Ontunez did not provide a pin citation for this proposition, Ontunez-Tursios v.

Courts have used the case names "Matter of S-V-" and "In re S-V-" interchangeably to refer to the same case, which is: 22 I. & N. Dec. 1306, 1312 (BIA 2000).

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t h e only place "willful blindness" appears in the majority opinion of Matter of SV - is in the following quotation: T h e Senate Committee on Foreign Relations clarified the point by s t a t in g that "(t)he purpose of this condition is to make it clear that b o th actual knowledge and `willful blindness' fall within the d e fin it io n of the term `acquiescence.'" Senate Report, supra, at 9. C o n s e q u e n t ly , the definition of "torture" " includes only acts that o c c u r in the context of governmental authority." Regulations C o n c e r n in g the Convention Against Torture, 64 Fed. Reg. 8478, 8 4 8 3 (1999) (citing S. Treaty Doc. No. 100-20, at 19). M a tte r of S-V-, 22 I& N. Dec. at *1312. Thus, the citation of Matter of S-Vfo llo w in g the discussion of "willful blindness" in Ontunez-Tursios could not refer t o the actual holding of Matter of S-V-, but instead must refer to the portion of t h e opinion discussing the views of the Senate Committee on Foreign Relations. We did not, therefore, uphold Matter of S-V- in Ontunez-Tursios. I n the unpublished opinion Trejo-Robles v. Holder, we upheld a BIA d e c is io n citing Matter of S-V- after finding that the decision "did not turn on a la c k of government acquiescence to torture, but rather on Trejo-Robles's failure t o prove that it was `more likely than not' he would be tortured." 348 F. App'x 9 8 2 , 984 (5th Cir. 2009). Thus, in Trejo-Robles, this court did not decide whether M a tte r of S-V- was correctly decided, but instead decided the case on other grou n ds. The government argues that in Chen v. Gonzales we have previously u p h e ld a standard similar to the one employed by the BIA in this case. 470 F.3d 1 1 3 1 (5th Cir. 2006). In Chen, the alien seeking CAT protection argued that the I J applied the wrong legal standard for "acquiescence" by requiring actual a c c e p t a n c e of torture. Id. at 1141. The court found that "Chen's

c h a r a c t e r i z a t io n of the IJ's conclusion [was] overstated" because there was no in d ic a tio n that the IJ denied Chen's claim by requiring that she show "actual"

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a c q u ie s c e n c e to torture. Id. In Chen, we cited the IJ opinion to show that it was c o n s is t e n t with the "willful blindness" standard articulated by this court and s im ila r ly followed in the Sixth and Ninth Circuits: I guess another aspect of this would be whether if the money lenders w h o have not yet been paid came after her might the government lo o k the other way and therefore be at least complicit in whatever m ig h t happen to [her] at the hand of these loan sharks, and perhaps t h e n whatever would happen to [her] that might be seen as torture if the government were aware of any penalties being meted out and t o o k no action to protect the respondent. I d . at 1141-42 (quoting the order of the IJ) (emphasis added in Chen). In c o n t r a s t with the IJ in Chen, the BIA in this case did not employ a willful b lin d n e s s standard consistent with our precedent and that of other circuits. A c c o r d in g ly , we agree with our sister circuits in finding that the standard a r t ic u la t e d in Matter of S-V- does not include the willful blindness standard r e q u ir e d for CAT protection. Requiring that government officials "willfully a c c e p t []" torture is inconsistent with the Senate Committee on Foreign Relations s t a t e m e n t that "willful blindness" satisfies the statutory standard. IV . W e find that the BIA correctly ruled that Hakim laundered more than $ 1 0 ,0 0 0 ; we DENY the petition to review that issue. We also find that the BIA u s e d the correct legal standard to determine that Hakim's conviction constituted a particularly serious crime, and accordingly DENY the petition to review that is s u e . We find that the BIA applied an incorrect legal standard in assessing H a k im 's CAT claim and therefore VACATE the BIA's holding and REMAND the C A T claim to the BIA be decided in accordance with the legal standard set forth in this opinion. R E V I E W DENIED in part; VACATED and REMANDED in part.

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