Friday, March 02, 2007

Burke (not precedential): Cursory State Created Danger Analysis and CAT Definition Repeated

In Burke v. Gonzales, No. 05-3726 (3d Cir. Mar. 2, 2007) (not precedential), the Third Circuit overturned IJ Walt A. Durling and the BIA for applying the wrong standard for CAT relief under the Convention Against Torture as set forth in Silva-Rengifo v. Gonzales, 473 F.3d 58, 70 (3d Cir. 2007) (acquiescence under CAT includes a government's willful blindness to torturous conduct and a breach of their legal responsibility to prevent it).

Interesting is that the Third Circuit with only cursory analysis denied relief under the state created danger doctrine for someone who was an informant about Jamaican murderers and drug smugglers. The Third Circuit relied on Kamara without any analysis of how the statement about the state created danger doctrine in that case is arguably dicta for a variety of reasons -- the strange Third Circuit view of dicta under the Haitian CAT cases suggests all commentary about the state created danger doctrine in Kamara was merely dicta. Also, a big area unresolved is whether the intervening ratification of the UN Convention against Transnational Organized Crime alters the analysis of whether the state created danger doctrine applies. The Third Circuit noted it might consider deviating from Kamara if there were intervening authority. That's exactly what should be litigated and is actually being raised in a pending Third Circuit appeal (briefed, but not yet argued).


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