Immigration Appeal

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Matter of Abdul Abbas , Respondent.

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File No: A 444-444-444 In Removal Proceedings

RESPONDENT’S APPEAL BRIEF Respondent, through the undersigned counsel of record, submits this brief in support of his appeal.

STATEMENT OF THE CASE Respondent, Abdul Abbas (“Abbas”) applied for relief in the form of asylum, withholding of removal and deferral of removal under the Convention Against Torture ("CAT"). During the pendency of his removal proceeding, Abbas also applied for an adjustment of status when he became the beneficiary of an I-130 petition filed by his U.S. citizen wife. After a merits hearing, the Immigration Judge ("IJ") issued a written decision denying Abbas asylum, withholding of removal and adjustment of status based on her finding that Abbas committed a serious nonpolitical crime and acts which constitute a violation of a controlled substance law. The facts underlying the IJ’s finding involve a single incident that occurred in his family, some of whom actively participate in drug trafficking, when he was a youth in Abu Dhabi. The IJ also found that Abbas was more likely than not to be tortured if he were removed to Abu Dhabi; therefore, she granted Abbas' application for deferral of removal under CAT. Abbas timely filed his Notice of Appeal on April 3, 2011, fee paid. Abbas is not currently detained.

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FACTS The IJ determined Abbas was a credible witness. In her decision (the “Decision”) the IJ recites all of the relevant facts contained in the documentary evidence submitted by Abbas and the Government, as well as those elicited from Abbas directly in the merits hearing. While the Decision discusses all of the facts and evidence relevant to Abbas' applications for relief, including deferral under CAT, the facts recited here will focus upon the background and context of the particular issue on this appeal.

Abbas is a 45-year old native of Abu Dhabi, in the United Arab Emirates, who came to the U.S. because of his fear that he would be harmed and possibly killed because he previously offered assistance to the Drug Enforcement Agency ("DEA") in two of their sting operations against Emirati drug traffickers. Although Abbas himself did not engage in drug trafficking, his well-established family in Abu Dhabi has been involved in the drug business since Abbas was a teenager. When Abbas was growing up, his uncle, Mohd Saif, was widely known as an international drug baron. In addition, Abbas' eldest brother, Hamda Abbas, was a leading member of a drug smuggling group with a notorious reputation in the U.K. See Decision, p4. Abbas' family also ran legitimate businesses—in his adult life Abbas worked as a manager in a Dubai hotel belonging to his family—but certain of his family members and their colleagues were actively involved in the mafia-style world of transporting illegal drugs.

Fortunately, Abbas’ family did not require him to join their drug trafficking activities. Indeed, Abbas wished to have no part in his family's business and testified that he never even wanted to use his family's surname—Saif—because of his deep shame about the business in which they were involved. Transcript of Hearings (“T”), p59. When Abbas became aware of his family's drug trafficking activities he simply ignored it; he

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did not discuss it with anyone or report it to any authorities in Abu Dhabi. See Decision, p5. Abbas has never transported drugs, given drugs to anyone or been involved in any form of violence. Id. at p4.

As explained by Abbas at the hearing, the culture in Abu Dhabi is very different from that found in the U.S. T, p55. Extended families are interconnected more closely, sometimes sharing resources and many times offering each other support in their personal and business lives. Familial loyalty is a deeply rooted value, and betrayal of one's family is a grave cultural offense. T, p71. In addition, younger members of the family generally do not disobey elder members. Thus, when Abbas was 14 or 15 years old (in 1982) and his uncle Saif asked him to pack and look after a shipment of heroin while he was in his uncle's home, Abbas did not disobey. T, p92.

While the IJ states that "Abbas' family asked him to pack and hold a shipment of heroin at [his uncle's] house..." (Decision, p4), Abbas' actual testimony is not as clear.

Abbas did state that "they asked me to pack these things and keep it with you for couple of hours" (T, p54), but he also stated "...I just pack and I just say it was in a house somewhere and I know it's there and they asked me to just take care of the stuff there." T, p72. No testimony was taken regarding the quantity or size of the package. Regardless, it is unlikely that Abbas, who was a teenager at the time, could have simply refused to do what was made to sound like a simple task while he was present at his uncle's house, especially given his international drug baron uncle was home at the time. T, p93.

The episode in Abbas' uncle's home is not the only time his uncle asked him to do something—when Abbas was older, while his uncle was serving a prison sentence in the U.S., his uncle called him with a DEA agent on the same line and requested he assist the

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DEA in sting operations against other drug traffickers. See Decision, p5. Abbas knew the DEA was asking him to be an informer, and he knew that it would be dangerous. The DEA agent assured Abbas that if he were ever in trouble because of his informing activities then the U.S. Government would help him. Abbas was unsure but in the end he decided assist the DEA because it would lead to a lesser sentence for his uncle and also allow him "to be better, clean, out of family record..." T, p59.

Abbas traveled to the U.S. and spent approximately one month assisting the DEA in two sting operations. After his return, Abbas felt uncomfortable with his family members and their drug activities so he tried "to stay away from them..." T, p69. Abbas eventually returned to manage the family hotel business in Dubai. Early in March 2001, a cousin approached Abbas and questioned him about his trip to the U.S. Abbas' cousin relayed that he heard Abbas had done something wrong to his family and that he was an informer. See Decision, p6. Knowing full well the consequences of being discovered as an informer—especially on one's family—Abbas was scared and decided to leave Dubai the next week. A few months later, in August 2001, he arrived in the U.S. on a multiple entry visitor visa.

When Abbas' visa was about to expire he briefly traveled to Qatar to reset his visa because he "didn't want to stay [in the U.S.] illegally." T, p72. Abbas returned to the U.S. on November 30, 2001 and has remained ever since. Despite his assistance to the DEA, and their assurances to him, when Abbas arrived in the U.S. he was given a run around from both the DEA agent with whom he previously worked and the other agents he was told to contact for help. See Decision, p5, 7. As the IJ noted, Abbas knows his life is at risk precisely because he assisted the DEA, but now that he has fled to the U.S. the DEA

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has failed to provide crucial information or to otherwise assist Abbas with his status in the U.S. For his entire life Abbas has been uncomfortable with his family's participation in the drug business and has sought to obtain an identity separate and clean from their reputation. Abbas came to the U.S. and started a new life to do just that.

ISSUES FOR APPEAL I.

The Immigration Judge Wrongly Found that Abbas Committed a Serious Nonpolitical Crime. a. The Immigration Judge Ignored Applicable Law and Principles. b. The Immigration Judge Ignored Various Compelling Factors.

II.

The Immigration Judge Wrongly Determined that Abbas is Inadmissible Based on a Single Episode Involving his Family and Occurring in his Youth.

STANDARD OF REVIEW All doubts regarding the construction of immigration laws must be “resolved in

favor of the alien due to the potentially drastic consequences of deportation.” INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987); Costello v. INS, 376 U.S. 120 (1964). The Board of Immigration Appeals (“BIA”) reviews the IJ’s factual findings for clear error. 8 C.F.R. § 1003.1(d)(i). The BIA defers to the IJ on findings of credibility and credibility related issues. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008). However, the BIA has the power to review questions of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii).

ARGUMENT The Immigration Judge Wrongly Found Abbas Committed a Serious Nonpolitical Crime The IJ made a legal determination under 8 U.S.C. § 1158(b)(2)(A)(iii) and 8 U.S.C. § 1231(b)(3)(B(iii) that Abbas committed a serious nonpolitical crime when he

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once packed and looked after an unknown quantity of heroin at his uncle’s home in Abu Dhabi. The authority granted to the IJ under the cited statutes is discretionary; thus, the IJ must render a decision that takes into account all circumstances relevant to her analysis in light of applicable case law and principles. Abbas asserts that the IJ failed to apply relevant case law and international principles related to the treatment of refugees, and to consider evidence of other compelling circumstances.

The Immigration Judge Ignored Applicable Law and Principles The IJ stated that Abbas’ testimony regarding the incident at his uncle’s home gave her sufficient serious reasons to believe Abbas aided and abetted his uncle's drug trafficking. Noting that drug trafficking offenses are consistently treated severely, the IJ determined that Abbas' conduct reached the threshold for a serious nonpolitical crime.

However, although the IJ is correct in her assessment that drug trafficking is consistently considered to be a serious offense, she ignores relevant case law that suggests Abbas’ offense in this case cannot be cleanly categorized as a serious nonpolitical crime in light of the other circumstances present. The IJ also ignored applicable principles of international refugee law in her analysis.

The Supreme Court has held that serious nonpolitical crimes cannot be rigidly defined. INS v. Aguirre-Aguirre, 526 U.S. 415, 429 (1999). Further, the Ninth Circuit opined that while drug trafficking is presumptively considered a serious offense, an applicant is permitted to present evidence that rebuts that presumption. Go v. Holder, 640 F.3d 1047, 1052 (9th Cir. 2011). The BIA, which also recognizes the seriousness of drug trafficking, has indicated that cases involving extenuating circumstances would warrant departure from treating a particular drug trafficking crime as presumptively

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serious. In re Y-L-; In re A-G-; In re R-S-R-, 23 I & N Dec. 270, 285 (BIA 2002) (declining to “exclude entirely the possibility” of an applicant demonstrating extraordinary and compelling circumstances to justify less serious treatment of a drug trafficking crime). The holdings in the cited cases create a doctrine that a drug trafficking offense cannot be conclusively considered serious in every instance but the IJ rested her argument on that very conclusion without considering the effect of the compelling circumstances (as explained above and below) in Abbas’ case.

In addition, the IJ ignored relevant and applicable principles that have been agreed to by the U.S., in collaboration with the other nations of the world, and codified in the 1951 Convention and 1967 Protocol Relating to the Status of Refugees (the “Refugee Convention”). The U.S. immigration laws relating to asylum and withholding are directly derived from the Refugee Convention1 and therefore should be interpreted in light of the Refugee Convention’s other provisions. In particular, Article 1F and its subsections— popularly known as the “exclusion clauses” and the prototype for the U.S. law now being applied to exclude Abbas—operate as exceptions to the Convention’s broader prohibition against returning a refugee to his country of origin where he has established a wellfounded fear of persecution. In light of the inherently grave consequences of denying asylum to a person who has proven a basis for it, it is often stated that the exclusion clauses should be applied restrictively.

The United Nations High Commissioner for Refugees (“UNHCR”) has provided guidance to assist adjudicators in signatory countries in analyzing whether an offense is a 1

Indeed, the language found in 8 U.S.C. § 1158(b)(2)(A)(iii) and 8 U.S.C. § 1231 (b)(3) (B)(iii) is exactly the same as the language contained in Article 1F(b) of the Convention, which reads “[t]he provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that…(b) he has committed a serious non-political crime…prior to his admission…”

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serious nonpolitical crime and therefore subjecting the asylum seeker to exclusion. In the Handbook on Procedures and Criteria for Determining Refugee Status under the1951 Convention and the 1967 Protocol relating to the Status of Refugees (the “Handbook”), the UNHCR states that “[i]n evaluating the nature of the crime presumed to have been committed, all the relevant factors—including any mitigating circumstances—must be taken into account.” Handbook, ¶157.

Further, in 2003 the UNHCR issued guidelines on the application of the exclusion clauses (the “2003 Guidelines”), which are intended to “provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary…” The 2003 Guidelines note that “criminal responsibility” can normally be established only where the requisite mental capacity is present and in the case of children it is not. 2003 Guidelines, ¶22. While the 2003 Guidelines recognize that the exclusion clauses may apply in principle to minors, it also states they only apply to those who “possess the mental capacity to be responsible for the crime in question.” 2003 Guidelines, ¶28. In addition, according to the 2003 Guidelines, all factors “generally considered to constitute defenses to criminal responsibility” should be considered, and in the case of crimes committed by minors, great care should be exercised in deliberations. 2003 Guidelines, ¶¶22, 28.

Abbas does not argue that the above discussed Handbook and 2003 Guidelines are binding on the IJ or BIA. However, the explanations and directions provided by the UNHCR in the Handbook and 2003 Guidelines are often referred to, and consulted by, the various courts addressing the particularly sensitive issue of what types of crimes and/or offenses are sufficient to reach the threshold of the severe decision to exclude a

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refugee from relief in this country. See, e.g., Aguirre-Aguirre, supra, 526 U.S. at 427 (noting although the Handbook and Guidelines are not binding, they may be useful as an interpretative aid on the court’s decision making); Delgado v. Holder, 563 F.3d 863, 872 (9th Cir. 2009) (court considered the Convention and Handbook in determining whether applicant’s conviction was for a particularly serious crime); Matter of Frentescu, 18 I & N Dec. 244 (BIA 1982) (stating the BIA can consider the Act, the Protocol and the Handbook to assist its analysis).

In light of the unique circumstances of this case—that Abbas was involved in an isolated incident with his family’s drug trafficking business while he was just a teenager many years ago—the IJ should not have reached the categorical conclusion that Abbas’ act was a serious nonpolitical offense simply because it involved drug trafficking. The cited case law requires an analysis of the facts presented in each case, especially where they are extraordinary. Moreover, the principles applicable to the treatment of refugees, particularly the consideration of crimes that are committed by children, demand a deeper analysis of the facts surrounding Abbas’ act.

The Immigration Judge Ignored Various Compelling Factors The IJ wrongly ignored several compelling factors that, when reviewed in totality with the other circumstances in this case as well as the principles discussed above, warrant a departure from the IJ’s presumption that the singular involvement by Abbas in his family’s drug trafficking business constitutes a serious nonpolitical crime.

First, Abbas was only 14 or 15 at the time of the act that is the presumed crime. In many nations of the world, including the U.S. and Abu Dhabi, at that age Abbas was still a minor. See The Majority Act, nhawalawsite.com/laws/majorit.htm; Age of Majority,

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www.youthrights.net/index.php?title=Age_of_majority. Under the 2003 Guidelines, as a minor Abbas cannot be presumed to have had the mental capacity necessary to commit the crime. This basic principle also holds true in U.S. criminal jurisprudence, where a juvenile is often permitted to raise the defense of lacking mental capacity, because it is well known that the brain of a teenager is not the same as that of a fully developed adult.

See American Bar Association, Adolescence, Brain Development and Legal Culpability, January 2004, www.abanet.org/crimjust/juvjus. The IJ wrongly assumed Abbas had the requisite mental capacity without any analysis of whether, as a teenaged minor, he was mentally capable of committing the crime under the law.

Second, the IJ did not consider at all that the crime in question occurred in 1982— nearly 30 years ago. U.S. law provides a five-year statute of limitation for the Government to prosecute, try or punish for any offense. 18 U.S.C. § 3282(a) (“no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information instituted within five years next after such offense shall have been committed”). To exclude Abbas from receiving asylum relief in the U.S. based on a crime committed well outside the statute of limitations period for bringing a criminal prosecution for that a crime is nothing short of illogical (and of course, unfair). If the Government cannot now prosecute Abbas for an action he took in 1982, then the Government should not be permitted to exclude him from asylum on the basis of that action.

Third, the IJ ignored the cultural context and circumstances surrounding Abbas’ acquiescence to his uncle’s request that he package and look after a quantity of heroin on that day 30 years ago. In concluding that Abbas was not coerced by his uncle—or any

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other family member—to commit the crime, the IJ mentions that Abbas was not pressured by his family to participate in their drug business. However, more careful consideration should be given to the scenario of what occurred at Abbas’ uncle’s house, especially in light of the 2003 Guideline’s direction that great care be taken when reviewing all mitigating factors and defenses related to minors. The 2003 Guidelines specifically refer to coercion as a factor that is often present in the case of crimes committed by children (and coercion of an adult is quite different from coercion of a minor). As explained above, the family culture in Abu Dhabi is entirely different from that in the U.S., and minor children in a family simply do not disobey their elders. When Abbas was asked by his uncle to package and look after the heroin, his choices were limited: either he could say no to his international drug baron uncle in his uncle’s home or he could simply do what was asked of him and then attempt to avoid such situations in the future (which is what Abbas ultimately did). Thus, the IJ did not properly consider the question of whether the underlying scenario involved the coercion.

Finally, the IJ failed to recognize the 2003 Guidelines directive that great care must be taken when considering crimes committed by minors. In this situation, it is hard to see the fairness in excluding Abbas—who is seeking asylum for reasons arising from his being born into a drug trafficking family—for a single offense committed three decades ago that was directly related to his membership in that family. The IJ’s analysis was thus far outside the directive to consider the circumstances of Abbas’ act with great care.

Taken together, the factors described above provide compelling reasons why Abbas’ action should not be considered a serious nonpolitical crime. The BIA should thus

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overturn the IJ’s finding that it was. See Berhane v. Holder, 606 F.3d 819, 823 (6th Cir. 2010) (if evidence compels a contrary position then a decision should be overturned).

The Immigration Judge Wrongly Determined that Abbas is Inadmissible Based on a Single Episode Involving his Family and Occurring in his Youth The IJ wrongly determined that Abbas is inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II), based on the single episode of packing and looking after a package of heroin at his uncle's home when he was in his youth. The IJ's decision is tantamount to punishing Abbas for a crime that occurred nearly 30 years ago. As discussed above, federal law prohibits a person to be punished for any offense that occurred more than five years ago. 18 U.S.C. § 3282(a). Given the severe consequences inuring to Abbas by denying his admission as the lawful husband of a U.S. citizen, the IJ’s decision should be considered a punishment. As such, the Government—through the IJ—has issued a punishment to Abbas that does not comply with federal law.

Further, the IJ did not consider evident mitigating factors for the crime committed

by Abbas. As previously discussed, Abbas’ crime occurred when he was a minor and thus, under federal and international law, lacking in the requisite capacity to commit the crime. Also, the uniqueness of the Abu Dhabi culture calls into question whether Abbas' uncle's influence over him constituted coercion as a matter of law. Both of these factors —lacking mental capacity and duress—are valid defenses to the crime of drug trafficking as prosecuted in the U.S. The IJ’s determination that Abbas committed an act that violated a controlled substance law without any consideration of defenses available to him and/or mitigating factors was inconsistent with well-established criminal jurisprudence.

CONCLUSION

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For the foregoing reasons, Abbas respectfully requests the BIA to reverse the IJ’s finding that Abbas committed a serious nonpolitical crime or an act in violation of a controlled substance law.

Submitted by,

Your Law Office 333 Park Ave. Suite #1 New York, New York 10001

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