Molina Solis v. Mukasey (8th Cir. 2/8/08)

MURPHY, hansen, gruender

The 8th Cir. held that it had jurisdiction to consider whether introduction of hearsay police report to determine that prior offense was a "particularly serious crime" (PSC) was an error of law. Found no fundamental unfairness, given earlier guilty plea. Upheld CAT denial for applicant fearing persecution by Salvadoran gang, because Salvadoran govt does not acquiesce in such torture.

http://www.ca8.uscourts.gov/opndir/08/02/071297P.pdf

Facts: El Salvadoran fearing persecution at hands of Mara Salvatrucha gang, on account of past military service. Was convicted of attempted sale of cocaine, testified in Immigration Court that he didn't, Govt introduced police report to prove contrary. IJ found that drug trafficking was particularly serious crime, barring him from relief.

1.  Court held without explanation that it could only review PSC determination for constitutional claim or question of law.

   Whether Solis's crime is considered particularly serious was determinable by the Attorney General since his drug conviction resulted in a sentence of less than five years. We may review this determination only to consider a constitutional claim or a question of law. See § 1252(a)(2)(D) ("Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law . . .").

   Since Solis makes a due process claim related to the IJ's determination that he was convicted of a particularly serious crime, we have jurisdiction to address that contention pursuant to § 1252(a)(2)(D). This conclusion is similar to the one reached by the Ninth Circuit in Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006), where there was jurisdiction to review the petitioner's claim that the BIA had not used the correct legal standard in reaching its conclusion that his aggravated felony was a particularly serious crime. The Afridi court distinguished that issue from a petitioner's unreviewable claim attacking the merits of a BIA decision, citing Unuakhaulu v. Gonzales, 416 F.3d 931, 933 (9th Cir. 2005).

   [Note - the Court didn't appear to consider the effects of 1252(a)(2)(C), which likely would have been sufficient to bar review even in the absence of 1252(a)(2)(B) - nor did the Court consider whether any discretion regarding particularly serious crimes was "specified" as discretionary by the statute.]

2.  Notes that 3d cir. takes "broader approach"

FN3 The Third Circuit has taken a broader approach to reviewability. See Alaka v. Attorney General of the United States, 456 F.3d 88, 95 (3d Cir. 2006) (absence of explicit language granting Attorney General discretion to determine that an alien has been convicted of particularly serious crime permits appellate review of that determination).

3.  Found introduction of police report fundamentally fair.

[E]ven hearsay would be admissible since the traditional rules of evidence do not apply in immigration proceedings. See Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004) ("The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair."). The police report was highly probative because it directly contradicted Solis's assertion about the circumstances of his drug arrest. Moreover, there is no basis to doubt the accuracy of the police report, especially since Solis pled guilty to the drug charges and has never before disputed the police report's veracity.

4.  Upheld CAT denial, finding no evidence of Govt acquiescence.

Although the government of El Salvador may struggle to control violence, there is no evidence in the record that government agents participate or acquiesce in possible torture perpetrated by others. See Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir. 2005) (while the government of El Salvador may have a problem controlling gang activity of which it is aware, this is not sufficient to find torture by third parties).

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.