Pursuing CAT Claim Despite Drug Conviction

Filed 10/13/05, No. 04-3652
Ford v. BICE
Ford v. Bureau of Immigration and Customs Enforcement (ICE)
http://www.ca3.uscourts.gov/opinarch/043652np.pdf
non-precedential (which usually means that you might cite the case as persuasive authority, but it is not binding on future decisions)

The Convention Against Torture (known as CAT) prohibits the United States from deporting someone to a country where he is probably going to be tortured. However, the federal government does not allow anyone who is guilty of a "particularly serious crime" to apply for CAT protection.

What would happen if the Attorney General refused to examine a particular person's situation and applied a categorical rule that all drug trafficking convictions are automatically considered "particularly serious crimes"? In a 2001 decision titled Chong v. Dist. Dir., INS, 264 F.3d 378 (3d Cir. 2001), the Third Circuit said that would violate Due Process, because people have a right to have an individual determination of whether they are eligible for CAT relief.

In 2002 in the case of In re Y-L, A-G, R-S-R, 23 I. & N. Dec. 270 (A.G. 2002), the Attorney General adopted a rule that some immigration advocates believe violates Due Process by virtually guaranteeing that any drug conviction is considered a particularly serious crime. Some drug trafficking convictions arguably are not particularly serious. The AG, however, said that all drug trafficking convictions are per se particularly serious crimes but that he would only leave a sliver of an exception open for "the very rare case" where an immigrant can show "extraordinary and compelling circumstances."

In this case, the immigrant challenged the Y-L ruling as unconstitutional. How did the Third Circuit rule on this important question? Well, it avoided ruling on the issue. It said that it was not going to decide whether the Y-L ruling was constitutional or unconstitutional because it felt that the individual in this case did receive enough of an individualized determination that even if the Y-L rule was illegal, it would not matter.

This leaves immigrants exposed to the risk that the government is using an unconstitutional rule in immigration cases. But what the Third Circuit is requiring is that immigrants facing this issue must litigate it to the maximum and then yet again raise it to the Third Circuit, an expensive and time-consuming task.

Although a cynical view would assume that immigration lawyers would be grateful for the extra work opportunity, it is actually the contrary -- it is much better to clarify the law and address the possibility that this and many more immigrants will be punished by a rule that might ultimately be ruled unconstitutional.