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United States Court of Appeals for the Ninth Circuit: Nuru V. Gonzales*

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 44 , Issue 4 , July 2005 , pp. 947 - 960
Copyright
Copyright © American Society of International Law 2005

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Footnotes

*

This document was reproduced and reformatted from the text appearing at the Findlaw website (visited June 2, 2005)<http://caselaw.lp.findlaw.com/data2/circs/9th/037139lp.pdf>

**

Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).

***

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

References

1 The INS is now called the Bureau of Citizenship and Immigration Services. For the sake of consistency, we will refer to it as the INS throughout this opinion.

2 As the government's brief points out, Nuru agreed that on occasion he received food twice a day. See Brief for Resp't at 5.

3 Nuru has not made a claim based on the actions of the Ethiopian government, and neither the immigration judge nor the BIA considered the treatment by Ethiopian authorities in their respective decisions.

4 We note one qualification. If the alien has committed a ' 'particularly serious crime" or an aggravated felony for which the term of imprisonment is at least five years, only deferral, not withholding, of removal is authorized. See 8 C.F.R. §§ 1208.16(d), 1208.17.

5 The United States Senate included a reservation when it ratified the Convention, narrowing the definition of torture with respect to "mental pain or suffering." The reservation states that "mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality." U.S. Reservations to CAT, available at http://www.ohchr.org/english/countries/ratification/9.htm#Nll. Because Nuru's CAT claim is based on severe physical (rather than mental) pain and suffering, the U.S. reservation does not affect his claim.

6 We have previously held with respect to the presumption of a wellfounded fear of persecution that in asylum and withholding of removal cases an " 'individualized analysis' of how changed conditions will affect the specific petitioner's situation is required. Information about general changes in the country is not sufficient." Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998) (citations omitted). The same reasoning applies in the torture context with respect to improvements in the area of human rights violations. Individualized consideration is necessary.

7 According to subsequent Country Reports (which were not introduced into the record) treatment of deserters in Eritrea has only worsened. The 2002 Report (available at http://www.state.gov/g/drl/rls/hrrpt/2002/18202pf.htm) states, for example, that the government has authorized the use of deadly force against anyone resisting or attempting to flee during searches for deserters and draft evaders.

8 Nuru's treatment is also substantiated by Amnesty International's most recent annual report on Eritrea (which is also not a part of the record). The Report states that "[tjorture is used as a standard form of military punishment. Prisoners are commonly beaten but the special and principle [sic] torture method is 'tying.' . . . The most commonly described torture method is tying with [a] rope, and the most common form is nicknamed 8 the helicopter.' " Amnesty International, Eritrea: 'You have no right to ask' Government resists scrutiny on human rights, May 2004, available at http://web.amnesty.org/library/print/ENGAFR640032004. The report concludes that national service conscripts, members of the armed forces deserting the army, and critics of the government are among the categories of people who are most at risk for arbitrary detention, torture and illtreatment, or possible extra-judicial execution. Id.

9 Even aside from the implementing regulations, it is wellaccepted in international law on treaty interpretation that a party-state may not take actions that defeat the object and purpose of the treaty or convention. See Vienna Conv. on the L. of Treaties, May 23, 1969, art. 31(1), 1155 U.N.T.S. 331 (1969) ("A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."). Thus, the portion of the federal regulations that limits the exclusion of lawfully imposed sanctions to those that are consistent with the object and purpose of the Convention is simply a reaffirmation of the rule that must in any event be applied under controlling international law.

10 Controversy has raged, largely in the academic world, over the "ticking bomb" question. Compare Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge 142-49 (2002) (arguing that torturing the suspect in the "ticking bomb" case is permissible); Michael Walzer, Political Action: The Problem of Dirty Hands, in War and Moral Responsibility 62, 69 (Marshall Cohen et al. eds., 1974) (same), with William F. Schulz, The Torturer's Apprentice, The Nation, May 13,2002, at 26 (arguing that the ''ticking bomb" scenario is flawed and that torture is never permissible). The ''ticking bomb'' is a classic case familiar to all those who have survived a freshman philosophy class:''Suppose the authorities are holding a suspect who knows where a ticking bomb is located, a bomb that will kill hundreds of people if it explodes. Would they be justified in torturing the suspect to procure the information and thereby save innocent lives?" Id. That dispute is irrelevant to the question before us. We are not presented with the use of torture in order to obtain information, but rather, with the authorization of torture as a means of punishment.

11 See, e.g., 18 U.S.C. § 2340-2340A (criminalizing torture); Arg. Const, ch. 1 (Declarations, Rights and Guarantees), § 18 ("Death penalty for political causes, any kind of tortures and whipping, are forever abolished."); Braz. Const, art. 5 ("[N]o one shall be submitted to torture or to inhuman or degrading treatment."); Eri. Const, ch. Ill, art. 16, cl. 2 ("No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."); Eth. Const, ch. Ill (Fundamental Rights and Freedoms), pt. 1 (Human Rights), art. 28 (Crimes Against Humanity) ("Criminal liability of persons who commit crimes against humanity . . . such as . . . torture shall not be barred by statute of limitation. Such offences may not be commuted by amnesty or pardon of the legislature or any other state organ."); Iran Const. § 3 (Rights of the People), art. 38 ("All forms of torture for the purpose of extracting confession or acquiring information are forbidden."); Penal Law § 277 (Isr.) (" A public servant who does . . . the following is liable to imprisonment for three years: (1) uses or directs the use of force or violence against a person for the purpose of extorting from him or from anyone . . . a confession of an offense or information relating to an offense . . ."); Japan Const, ch. Ill (Rights and Duties of the People), art. 36 ("The infliction of torture by any public officer and cruel punishments are absolutely forbidden."); Russ. Const, ch. II (Rights and Liberties of Man and Citizen), art. 21 (Human Dignity) ("No one may be subjected to torture, violence or any other harsh or humiliating treatment or punishment."); Thai. Const, ch. 3 (Rights and Liberties of the Thai People), § 31 ("A torture, brutal act, or punishment by a cruel or inhumane means shall not be permitted . . . . " ).

12 See European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S. 222, art. 3 (prohibiting torture by stating that, "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment"); African Charter on Human and Peoples' Rights, opened for signature June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art. 5 (1982) (stating that "[a]ll forms of exploitation and degradation of man, particularly . .. torture, cruel, inhuman or degrading punishment and treatment shall be prohibited''); American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123, art. 5(2) (stating that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person"); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art. 17 (stating that "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever"); Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, Dec. 10, 1948, art. 5 available at http://www.unhchr.ch/udhr/> (stating that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment''); Nuremberg Trials Final Report, Control Council Law No. 10, art. 2(1 )(c) (1945) (authorizing prosecution for torture).

13 Nuru has not waived or failed to exhaust his CAT claim. The only means that he had of raising a claim for relief under the Convention was through an "Application For Asylum and Withholding of Removal," which he completed at the time the INS issued him a notice of removal. See Eduard v. Ashcroft, 379 F.3d 182, 195 (5th Cir. 2004) (holding that when no other application for relief under the Convention is available, a petitioner may raise a CAT claim through an Application For Asylum and Withholding of Removal). In that application, he affirmed that he "fear-[ed] being subjected to torture (severe physical or mental pain or suffering, including rape or other sexual abuse) in [his] home country" and attached a declaration to the application describing the past torture he suffered and setting forth his fear of future torture. By declaring that he had a fear of future torture on his application for asylum and presenting evidence to support that claim at his hearing, Nuru placed his CAT claim at issue. See 8 C.F.R. § 1208.13(c)(1) (requiring the agency to consider "eligibility for withholding of removal under the Convention . . . if the applicant requests such consideration or if the evidence presented by the alien indicates that the alien may be tortured in the country of removal." (emphasis added)). Further, the immigration judge analyzed and decided the allegations of torture according to the standard outlined in the implementing regulations for the Convention. See Al-Saher, 268 F.3d at 1147 (quoting 8 C.F.R. § 208.16(c)(2)). Likewise, Nuru placed his CAT claim at issue before the BIA and this court. In his notice of appeal to the BIA, Nuru expressly sought review of the immigration judge's denial of his asylum, withholding, and CAT requests for relief. As well, in his brief before the BIA he squarely presented the issue of "[w|hether the Immigration Judge . .. abused his discretion in denying Petitioner's . .. relief under Article III of [CAT]." Throughout that brief he provided facts that established his claim of torture and legal arguments supporting a grant of relief under the Convention. Finally, before this court, he sought to preserve his CAT claim in his opening brief, specifically stating that he was seeking relief on that claim. He further supported his claim for relief under CAT in a supplemental brief. Given that Nuru's CAT claim relies on the identical facts as the asylum and withholding claims, that all the relevant facts are presented in the record, and that all concerned had adequate notice that Nuru sought relief under CAT, he has sufficiently and properly presented his torture claim to the BIA and to this court. See also n.15, infra.

14 In another recent case, we found that treatment similar to that Nuru suffered in Eritrea constituted persecution. In Ndom v. Ashcroft, 384 F.3d 743 (9th Cir. 2004), we held that credible death threats made to the petitioner and 25 days spent by him in dark, crowded cells without formal charges and with no indication of when he would be released, in shackles that prevented him from straightening his legs, and without the benefit of a toilet in which he could urinate rose to the level of "persecution" necessary to support an asylum claim. See id. at 753.

15 The government's argument that Nuru failed to claim past persecution is without merit. Nuru's brief specifically sets forth the injurious physical acts to which he was subjected and argues that the immigration judge erred in failing to give "the treatment he received" the proper legal significance. He cited and relied on cases in which past persecution was at issue. See, e.g., Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997). Although Nuru's brief could have been written more clearly and he did not utter the magic words "past persecution," "[w]e will not ignore the ultimate objective of [his] appeal... by parsing [his] brief s language in a hyper technical manner." Mamouzian v. Ashcroft, 390 F.3d 1129, 1136 (9th Cir. 2004); see also Ndom, 384 F.3d at 750-51 (construing an "inartful" brief in petitioner's favor). Given Nuru's application and the briefs and other documents filed before the agency, it is clear that one of his "ultimate objective[s]" was to establish his entitlement to the presumption of a wellfounded fear of persecution on the basis of past persecution. Furthermore, even if he had failed to brief past persecution, "we may review an issue not presented in an opening brief if a failure to do so would result in a manifest injustice." Mamouzian, 390 F.3d at 1136 (citing Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003)). Finally, even if Nuru's failure to use the specific words "past persecution" in his brief served to deprive him of the benefit of the presumption that arises from establishing that element of an asylum claim, the facts that show that he was persecuted in the past would nevertheless enable him to prevail ultimately on his claim of a well-founded fear of future persecution. See pt. 11(C), infra.

16 Neither the immigration judge nor the BIA stated that the reason for the punishment Nuru received was that his speech was deemed to be disruptive of the morale of his fellow soldiers or of military discipline. Nor is that a likely reason. Nuru was ordered never to express similar views in front of "other people." There was no limitation as to location or as to type of audience. Thus, it is evident that the purpose was to suppress the content of the ideas. In any event, even if the effect on morale had been a reason for the persecutory treat ment afforded Nuru, the "on account of" requirement would be satisfied because "political opinion" constituted another reason therefor. See infra at 4482-84; Borja v. INS, 175 F.3d at 735-36.

17 To the extent that the immigration judge may have suggested that Nuru was punished because he was a ' 'common deserter, he confuses the reasons for Nuru's past persecution (i.e., his political opposition to the Sudanese conflict) with one of the grounds upon which Nuru may be persecuted in the future (i.e., his desertion from the military following his punishment by torture). While the motivation for any future persecution to which Nuru might be subjected may be relevant to the question whether he has a well-founded fear of future persecution, it is not relevant to whether he has established past persecution. The judge's characterization of Nuru as a "common deserter" is also simply incorrect factually. Nuru dutifully served his country for nearly a year. Even when voicing his political opposition to the war in Sudan, he did not refuse to continue fighting. He repeatedly testified that he had no objection, religious or otherwise, to military service; his "only situation . . . with the government" was that he and his army colleagues were fighting a "nonsense war" and "dying for nothing" in a "land that is not [theirs]." He fled the country only after he was punished. There is simply no evidence to support the immigration judge's characterization, and it is speculative at best.

18 The government asserts that the punishment Nuru suffered prior to his desertion was not disproportionate and, by implication, that the postremoval conduct would not be either. Although punishment for desertion is permissible under international law, the punitive sanction of torture is never lawful and is per se disproportionate. See pt. 1(C), supra. Because the record reflects that upon his return Nuru would likely suffer persecutory treatment similar to that which he suffered in the past, persecutory treatment that we have already deemed to constitute torture, the government's argument cannot stand; we repeat: torture is never proportionate.

19 At the time of the Court's decision in Ventura, the regulations permitted the government to rebut the presumption of a wellfounded fear with evidence of changed country conditions. Since then, the regulations have been amended so that the government may rebut that presumption with evidence of changed circumstances. See 8 C.F.R. § 1208.13(b)(l)(i)(A).