ORDER OF TRANSFER REPORT AND RECOMMENDATION
Arrested by ICE agents on September 13, 2004, his proceduraland substantive due process rights violated, Frank Enwonwu hastoday endured 303 days of imprisonment even though there are nocriminal charges pending against him. He seeks the Great Writ ofHabeas Corpus established in clause 39 of Magna Carta (1215) andenshrined in our own United States Constitution. U.S. Const.art. I, § 9, cl. 2. For 217 years, through boom and bust, insurgency,civil war, and terrorist attack, this Court — the oldestUnited States District Court in America — has carefully and prudentiallyadministered the Writ of Habeas Corpus to secure the rights ofthe individual against overreaching by the executive. Mr. Enwonwu commenced his action in this Court on March 17,2005, had an initial hearing 25 days later, and a fullevidentiary hearing two weeks after that. This Court took thematter under advisement and commenced a detailed and reflectiveanalysis of an evidentiary record both complex and deeplydisturbing.
Then on May 11, 2005, the Congress stripped this Court ofjurisdiction to act in this pending case and all others like it.Though such direct congressional interference in a pending caseis virtually unprecedented in all our history, this surprisingmandate has gone utterly unnoticed by our people. Evidently, onlywhere an American jury sits to validate the separation of powersamong the three branches is trial court jurisdiction immune fromsuch peremptory congressional action.
How can this be in modern day America?
Mr. Enwonwu is an immigrant alien.
He has no right to trial by jury in this type of case andCongress does not much care about immigrant aliens, even thosewho, after endangering themselves assisting our law enforcementefforts to stem the international drug trade, are deported intothe hands of the very drug traders upon whom they have informed.
Does this shock your conscience as an American? If so, read onand dispassionately judge for yourself:
This habeas corpus petition stems from the Board of ImmigrationAppeals' ("BIA") reversal of the Executive Office for ImmigrationReview's ("Review Office") grant of deferral of removal under theConvention Against Torture and Other Cruel, Inhuman, or DegradingTreatment or Punishment ("Convention Against Torture") topetitioner Frank Enwonwu ("Enwonwu"). Enwonwu challenges theBIA's decision and subsequent denial of his motion to reopen onprocedural due process grounds, claiming that he was not givennotice of the executive's appeal from the Review Office's decision. Enwonwu also challenges the BIA's orderof removal itself on substantive due process grounds.
I. FINDINGS OF FACT
A. Substantially Undisputed Facts
The following facts are not substantially disputed. Wheresignificant disputes exist, the Court has resolved them insubsection B below. Mr. Enwonwu is a 56 year old native andcitizen of Nigeria whose immigration history began in 1972 whenhe was admitted to the United States as a student. Executive'sMem. in Supp. of Mot. to Dismiss ("Exec. Mem.") [Doc. No. 4] at3. On March 30, 1976, deportation proceedings were initiatedagainst Enwonwu after his student visa expired. Id. Enwonwuleft the United States of his own volition following an order ofthe Review Office permitting his voluntary departure. Id. In1980, Enwonwu briefly vacationed in the United States for twoweeks. Tr. of Hr'g of 4/29/05 ("Tr. of 4/29/05") [Doc. No. 18] at26. Enwonwu returned to the United States again on January 20,1986, arriving at Logan International Airport in Boston,Massachusetts with a tourist visa. Pet. for Writ of Habeas Corpus("Pet'r Mem.") [Doc. No. 1] at 6. Upon his arrival, United StatesCustoms officials interrogated and searched Enwonwu. Id. Thesearch revealed that Enwonwu was concealing approximately fiveounces of heroin within his body. Id. Enwonwu was transporting the heroin for a Nigerian militaryofficer named Lieutenant Charles ("Charles"). Tr. of 4/29/05 at27. Enwownu agreed to smuggle the heroin into the United Statesand deliver it in exchange for a payment of $5,000. Tr. of Hr'gof 5/2/05 ("Tr. of 5/2/05") [Doc. No. 19] at 12. Enwonwu claimshe received the heroin two hours before his flight out of Nigeriawhen he and approximately ten other individuals were given smallpackages. Aff. of Frank I. Enwonwu ("Enwonwu Aff.") [Doc. No. 9]¶¶ 20-21. Upon receiving his package, Enwonwu was instructed byCharles to insert it into his rectum. Id. at ¶ 22. Enwonwucomplied. Id. at ¶ 25.
After Enwonwu successfully concealed the package, Charleshanded him $300 and a telephone number he was to call when hearrived in the United States. Id. at ¶ 26. Charles thentransported Enwonwu to the airport where they were waived throughby customs agents and police officers who were participants inthe drug trafficking organization. Tr. of 5/2/05 at 12; Hr'g of4/29/05, Ex. 6, Tr. of Review Office Hr'g ("Ex. 6") at122.1 Prior to his departure, Charles took Enwonwu's caras collateral to be returned following the successful delivery ofthe heroin. Tr. of 5/2/05 at 12. Although Enwonwu wanted to leavethe car with his cousin, Charles insisted on keeping it as "ransom" untilEnwonwu returned. Ex. 6 at 122. Several of Enwonwu's possessions,including his driver's license, were in his car. Id.
Following the discovery of heroin, Special Agent Herbert Lemon("Agent Lemon" or "Lemon") of the Drug Enforcement Administration("DEA") was called to the scene. Pet'r Mem. at 6. Agent Lemoninformed Enwonwu that he had run a criminal background check onhim and noted that he did not appear to have a criminal record.Tr. of 4/29/05 at 27. Agent Lemon then asked Enwonwu how he hadfound himself in the present situation. Id. Enwonwu explainedto Lemon that he had become involved with drug traffickers inNigeria and had reluctantly agreed to serve as a courier forCharles. Id. Agent Lemon then inquired as to whether Enwonwuwas willing to help convict Charles noting that the DEA was"really looking for the big guys who sent [Enwonwu] on thistrip." Id.; Tr. of 5/2/05 at 14 (indicating that Lemon askedEnwonwu whether he was "ready to help [him] convict Mr.Charles"). Further, according to Enwonwu, Lemon stated that ifhis story turned out to be true and he cooperated, Enwonwu wouldavoid prosecution and receive protection from Charles and hisconfederates. Enwonwu Aff. ¶ 42, 44.
Enwonwu also claims that Agent Lemon promised that in exchangefor his cooperation he would not be sent back to Nigeria. Id.at ¶ 42. But see infra section I(B). Lemon cautioned, however, that if Enwonwu was lying and wastingeveryone's time there would be no deal. Id. at ¶ 43. Accordingto Enwonwu, he accepted the offer and, to prove to Lemon that hewas telling the truth, produced the telephone number given to himby Charles which number he was to call upon his arrival. Tr. of4/29/05 at 28; Tr. of 5/2/05 at 15. Agent Lemon subsequentlyarranged for Enwonwu to place a call to that number whichconnected to Charles' room at a Lagos, Nigeria hotel. Tr. of4/29/05 at 28.
As instructed by Agent Lemon, Enwonwu informed Charles that hehad "arrived [in] Boston safely." Enwonwu Aff. ¶ 46; Tr. of4/29/05 at 28. An "excited" Charles ordered Enwonwu to call himthe next morning for precise instructions on how to complete thedelivery. Id. at 28-29. Agent Lemon and another DEA agent whohad recording equipment and listening devices connected to thetelephone listened to the call Enwonwu made to Charles. Id.Following the phone call, Enwonwu was taken to a detentionfacility and told by DEA agents that he would be picked up thefollowing day. Id. at 29.
The next morning, Agent Lemon retrieved Enwonwu and brought himto a Holiday Inn in Boston where he was checked into a room withseveral DEA agents. Id. At the scheduled time, Enwonwu placedanother telephone call to Charles which the DEA agents againrecorded. Id. at 30. Charles informed Enwonwu that twoindividuals were being sent from New York to receive the heroin. Id. Enwonwu then provided Charles with a contact telephonenumber (given to him by Agent Lemon) that the New Yorkindividuals were to call when they arrived in Boston. Id.
When the individuals from New York later called Enwonwu, theyinformed him that they would be in Boston the following day.Id. at 31. Enwonwu spent that evening at the Holiday Inn underDEA protection. Ex. 6 at 124. The following morning, the New Yorkindividuals called Enwonwu again to tell him the time and placeof their rendezvous. Tr. of 4/29/05 at 31. The individual withwhom Enwonwu spoke informed him that they were to meet at acoffee shop near the Holiday Inn at noon. Enwonwu Aff. ¶ 56.Enwownu briefly described what he was wearing so that they wouldbe able to recognize him. Id. After Enwonwu completed the call,Agent Lemon introduced him to a female DEA agent who would beposing as Enwonwu's companion. Tr. of 4/29/05 at 31. Lemoninstructed Enwonwu that upon meeting the individuals he was tolure them to the car being driven by the undercover agent inorder to complete the putative transaction. Id.
When Enwonwu entered the coffee shop later that day, two mengestured for him to come over to them. Id. at 32. According toEnwonwu, he could tell by their physical appearance that "theywere Nigerians [or a]t least they were Africans." Id. WhenEnwonwu walked over to the men he informed them that hisgirlfriend was outside in a car along with the heroin. Id. Themen followed Enwonwu to the car where they sat in the back seat and Enwonwu and the undercover DEA agent sat in the front. Id.Once in the car, one of the men handed Enwonwu $5,000 and theundercover agent handed them the package of heroin. Id.
Upon receiving the heroin, one of the men grew suspicious of atear in the package that had been covered with a piece of tape.Id. at 32-33.2 Before Enwonwu could respond, the carwas surrounded by DEA agents and police "with their weaponsdrawn." Id. Enwonwu and the two men were taken into custody.Id. at 34. During the arrest Enwonwu "started yelling" tocreate the impression that he did not "know what was going on."Id. After Enwonwu was taken into custody, he was brought backto the Holiday Inn and debriefed. Id., Enwonwu Aff. ¶ 72. A fewhours later, Agent Lemon informed him that the two New Yorkcontacts had begun to cooperate and had informed him that theyhad been sent by their "big boss" in Ohio. Tr. of 4/29/05 at 34.Agent Lemon then requested Enwonwu's further cooperation andasked him to place a call to the individual in Ohio whosetelephone number the New York individuals had given him. Id. at34-35; Ex. 6 at 125.
Agent Lemon instructed Enwonwu to tell the Ohio contact that hedecided not to sell the heroin for the agreed upon price of$5,000. Tr. of 4/29/05 at 34-35. Rather, Enwonwu was to insist on$10,000. Id. at 35. Enwonwu agreed to cooperate and placed the call as instructed. Id. In speaking to the individual,Enwonwu learned that he too was Nigerian. Id. The man informedEnwonwu that he was from a town just sixty miles from Enwonwu'shometown of Onitsha. Id. As instructed, Enwonwu informed theman that he would not deliver the heroin unless he received$10,000. Id. at 35, 36.
The man became irate and expressed his anger over the fact thatEnwonwu had become so greedy after "they" had just given him his"first opportunity" in the drug business. Id. at 36. Enwonwureplied that this was not a question of greed and pointed outthat Charles had taken his car. Id. This conversation went onfor approximately twenty more minutes. Id. The Ohio individualbecame increasingly angry and cursed at and threatened Enwonwu.Id. At the end of the conversation, Enwonwu and the individualagreed that they would speak again the next day and attempt torenegotiate. Id. Enwonwu remained in DEA custody that eveningat the Holiday Inn. Id.
The following day at noon, Enwonwu was instructed to call theOhio individual again and "to really stall him." Id. at 36-37.During the call, Enwonwu remained insistent on receiving moremoney and told the man that he "did not care how much hethreatened" him. Id. at 37. As the conversation progressed, theOhio individual offered Enwonwu $8,000 for the heroin whichEnwonwu refused. Id. Within moments, Enwonwu heard "commotion"from the other end of the telephone, "like people busting into the room." Id. Enwonwu then heard the man shouting just beforethe line went "dead." Id. The DEA agents listening in the roomwith Enwonwu began "high fiving each other" and "makingstatements that made [Enwonwu] believe" that the Ohio individualhad been "busted." Id. Agent Lemon congratulated Enwonwu andtold him that he had been "very, very helpful to them."Id.3
Agent Lemon informed Enwonwu that he would be set free withinone to two weeks but that he would be detained until then.Enwonwu Aff. ¶ 80. On January 28, 1986, Enwonwu was arraignedbefore Magistrate Judge Joyce Alexander of the United StatesDistrict Court for the District of Massachusetts and charged withimporting or attempting to import heroin in violation of21 U.S.C. §§ 952, 960, and 963. Hr'g of 4/27/05, Ex. 1, CertifiedCopy of R. of Crim. Proceedings against Frank I. Enwonwu ("Ex.1") at 14. On the advice of his court appointed attorney, Enwonwupleaded not guilty. Enwonwu Aff. ¶ 84. On January 30, 1986,Enwonwu was indicted on those charges. Ex. 1 at 10. Theindictment contained a second count charging Enwonwu withpossession of heroin with intent to distribute in violation of21 U.S.C § 841(a)(1). Id. at 11. Following a request by Agent Lemon, the United StatesAttorney's Office consented to Enwonwu's pretrial release. Tr. of4/27/05 at 31-32; Pet'r Mem. at 6. On February 5, 1986,Magistrate Judge Alexander issued an order permitting Enwonwu'spretrial release to Douglass Clott, a friend of Enwonwu's fromhis student days in Boston. Pet'r Mem. Ex. 4, Order on Release of2/5/86; Tr. of 4/29/05 at 39. On March 21, 1986, as part of anagreement with the United States Attorney's Office, Enwonwupleaded guilty to the charge of importing heroin in exchange forthe dismissal of the possession with intent to distribute charge.Pet'r Mem. at 7. Enwonwu received a five-year suspended sentenceand was placed on three years of probation. Ex. 1 at 1. One ofthe conditions of Enwonwu's probation was that he not serve as agovernment informant. Id. at 2. Despite the terms of hisprobation, the DEA continued to use Enwonwu's services as aninformant both before and after the termination of criminalproceedings against him. Tr. of 4/29/05 at 42-43.
DEA agents informed Enwonwu that because the individuals hebetrayed were part of a large drug trafficking organization, hislife was in danger and he needed to be careful. Ex. 6 at 132-33.Accordingly, Enwonwu was given a DEA 24-hour hotline number.Id. at 132. Agent Lemon told him immediately to call the numberif he encountered a suspicious situation. Id. at 133.4 According to Enwonwu, he reported to the DEA office in Bostonseveral times per week. Tr. of 4/29/05 at 42. Initially, Enwonwudealt only with Agent Lemon but eventually dealt with variousagents. Id. at 42-43. The DEA sought information from himregarding "drug activities going on in Nigeria." Id. at 42.Enwonwu claims that he provided the DEA with everything he knewabout the current status in Nigeria, including information aboutthe corruption of the Nigerian government and how heroin cameinto Nigeria. Ex. 6 at 126-27.
Specifically, Enwonwu informed the DEA that Pakistan was theprimary source of heroin in Nigeria. Id. According to Enwonwu,Nigerian soldiers brought the heroin back from "Samhaus,"Pakistan where they were sent for military training. Id.Enwonwu further informed the DEA that members of the militaryrecruited Nigerians to transport the heroin to the "United Statesor to [Great] Britain for a fee." Id. Additionally, Enwonwuprovided the DEA with the names of "prominent businessmen" thatwere widely known to be involved in the Nigerian drug trade.Id. Each day that he came to the DEA office, Enwonwu was askedto think for hours of every name or address that he could connectto the drug trade. Id.5 Enwonwu was compensated by the DEAfor these services. Tr. of 4/29/05 at 43. Specifically, Enwonwutestified that Agent Lemon periodically made $200 cash paymentsto him. Id.6
In addition to working for the DEA, Enwonwu also cooperatedwith the Immigration and Naturalization Service ("INS"). Tr. of4/29/05 at 39. While Enwonwu was working for the DEA, Agent Lemonintroduced him to agents at the INS, whose office was located inthe same building. Id. at 39-40. When Enwonwu met with INSagents he was asked in what type of employment he was interested.Id. at 40. Enwonwu replied that because he used to drive a cabas a student in Boston, he was interested in that type of work.Id.
The INS subsequently issued Enwonwu a work authorizationdocument and sent him to Boston Police headquarters to meet witha Captain Devine who was to issue Enwonwu a hackney license.Id. Additionally, the INS extended the period of time thatEnwonwu could voluntarily remain in the United States to the endof the year. Pet'r Mem. Ex. 7, Employment Authorization. Following theissuance of Enwonwu's hackney license, he was hired by theChecker Cab Company where he worked for the next six years. Id.The INS, according to Enwonwu, also assigned him to one of theiragents for periodic reporting. Tr. of 4/29/05 at 44. The INS,Enwonwu claims, provided him with photographs and addresses ofNigerian individuals that he was to "check on" and providefeedback on. Id.; Ex. 6 at 128. According to Enwonwu, theseindividuals' precise whereabouts were unknown to INS, which was"looking for" them. Id. at 128.7 While working as a cabdriver, Enwonwu also provided the DEA with the names of Nigeriansliving in the United States that he had learned were involvedwith illegal drugs. Id. at 129.
To carry out his tasks as a government informant, Enwonwu askedmany questions of fellow Nigerians that he "met at the taxipark[,] especially at the airport." Tr. of 4/29/05 at 45. Enwonwuclaims that these individuals grew suspicious of him and began tospeculate as to his motives. Id. Enwonwu later learned that hehad created "a lot of enemies" because the people he had beeninquiring of had put "two and two together." Id. That is,according to Enwonwu, the Nigerians he had been questioning knew that he had been arrested and wondered why he never served timefor his offense. Ex. 6 at 133. Enwonwu claims that given thetypes of questions he had been asking, these individuals figuredout that he had "made a deal with the [g]overnment." Id.
In addition to aiding the DEA and INS as an informant, Enwonwualso cooperated by testifying in 1986 before the grand jury thatindicted the two New York individuals arrested in the controlleddrug purchase. Tr. of 4/27/05 at 40 (cross examination testimonyof Agent Lemon). Although the identities of those individuals arecurrently unknown to Enwonwu, counsel for the executive informedthis Court that Joshua Adegoke Ogunniren ("Ogunniren") and GeorgeAmarkwei Brock ("Brock") were arrested in that operation.Executive's Resp. to Order Regarding Subsequent Arrests [Doc. No.13]. Although counsel for the executive was unaware of theultimate outcome of that criminal case, based on the names itprovided, this Court was able to secure information from its ownsearch of the records of the United States District Court.
In proceedings before Judge Robert E. Keeton in May of 1986,Ogunniran and Brock were each sentenced to two years imprisonmentafter pleading guilty to charges of conspiracy to possess heroinwith intent to distribute in violation of 21 U.S.C § 841(a)(1).This Court takes judicial notice of the facts contained in thoserecords. Fed.R. Evid. 201. See, e.g., Kowalski v. Gagne,914 F.2d 299, 305 (1st Cir. 1990) ("[I]t is well-accepted that federal courts may take judicial notice ofproceedings in other courts if those proceedings have relevanceto the matters at hand"). The current whereabouts of Ogunniranand Brock are unknown to this Court.8
Several months after Enwonwu had been acting as an informantfor the DEA and INS, Enwonwu's probation officer began inquiringabout his sources of income. Tr. of 4/29/05 at 46. Enwonwuindicated that in addition to his income from taxi driving, hewas also receiving money from the DEA and INS for his services asan informant. Id. at 46-47. Upon hearing this information, theprobation officer sternly reminded Enwonwu that serving in such acapacity violated the terms of his probation. Id. at 47.Enwonwu agreed immediately to stop those activities to avoid theprobation officer's report of his violation. Id.; Enwonwu Aff.¶¶ 123-24.
When Enwonwu was later contacted by DEA agents for information,he informed them that because of the terms of his probation, hecould no longer assist them. Ex. 6 at 138. According to Enwonwu,the agents continued to seek his assistance for another few weeksbut eventually stopped after his persistent refusals. Id. at139. According to DEA records, Enwonwu's status as an informant officially terminated in November 1986,nearly ten months after he initially cooperated. Ex. A.
Believing that the United States Government was "at peace" withthe fact that he was no longer serving as an informant, Enwonwuresolved to continue making his living as a taxi driver. EnwonwuAff. ¶¶ 126, 129. In 1991, Enwonwu successfully completed hisprobation and began a new career as a nursing assistant. Pet'rMem. at 8; Tr. of 4/29/05 at 48. After Enwonwu's probationofficer suggested that he petition the INS for his green card,Enwonwu made such a request in writing but received no reply.Enwonwu Aff. at ¶ 131.
In April 1997, the INS began implementing the 1996 amendmentsto section 241 of the Immigration and Nationality Act ("INA")which retroactively classified past drug-related offenses as"aggravated felonies," the commission of which render an alienremovable from the United States. 8 U.S.C. §§ 1101(a)(43),1227(a)(2)(A)(iii); Pet'r Mem. at 8. Enwonwu became injured inJune 1997 and applied for disability benefits from the SocialSecurity Administration. Enwonwu Aff. ¶ 133; Tr. of 4/29/05 at50. At the behest of the Social Security Administration, Enwonwuvisited the INS to "adjust [his] status in order to qualify fordisability benefits." Enwonwu Aff. ¶ 133.
Shortly after Enwonwu identified himself at the INS office hewas arrested and placed in removal proceedings before the ReviewOffice "as an alien known to be a trafficker in controlled substances and as an immigrant without an immigrant visa, under8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1182(a)(2)(C), and 1182(a)(7)(A),respectively." Exec. Mem. at 4; Enwonwu Aff. ¶ 134. Enwonwu'sremoval proceedings were presided over by Immigration HearingOfficer Leonard Shapiro ("Hearing Officer Shapiro" or the"hearing officer"). Pet'r Mem. at 8. Enwonwu retained an attorneyto represent him in these proceedings. Enwonwu Aff. ¶ 138.Enwonwu asked his attorney to contact the DEA to inform themthat, despite their alleged agreement, he was being deported.Id.
Enwonwu's attorney contacted Agent Lemon and discussed with himthe possibility of Enwonwu being issued an "S" visa, a specialvisa available to aliens who provide the government with reliableinformation regarding criminal enterprises in the United States.8 U.S.C § 1101(a)(15)(S); Ex. 6 at 13; Pet'r Mem. at 8 & n. 5.The DEA subsequently agreed to interview Enwonwu regarding thepossibility of issuing him such a visa. Ex. 6 at 13. Uponreceiving this information, the hearing officer granted theparties leave to explore this possibility. Id. at 29.
At the request of Agent Lemon, DEA agent Anthony Pettigrew("Pettigrew") interviewed Enwonwu at the Hillsborough County Jailin New Hampshire where Enwonwu was being detained. Tr. of 4/29/05at 13-14. According to Pettigrew, Enwonwu could not provide anynew information that was "useful to open a DEA investigation."Id. at 17. Agent Pettigrew subsequently informed Enwonwu's attorney that Enwonwu had not provided himwith enough information to "go forward." Id. at 19. Thus, an"S" visa was never issued to Enwonwu and his deportationproceedings resumed.
Following a summary hearing on August 28, 1997, the hearingofficer "sustained the claims in the INS charging documents andordered that Enwonwu be removed back to Nigeria." Pet'r Mem. at8; Ex. 6 at 267-68. Thereupon, Enwonwu promptly appealed hisremoval to the BIA. Pet'r Mem. at 9. "While [Enwonwu's] appealwas pending, [he] wrote numerous letters to both the DEA and theINS pleading with them to remember their promises and remindingthem that [his] life was at stake." Enwonwu Aff. ¶ 150. That is,Enwonwu feared that he would face deadly retribution in Nigeriafor his cooperation with the DEA. Id. at ¶ 137; Tr. of 5/2/05at 26. Enwonwu's appeal was denied on June 10, 1998. Pet'r Mem.at 9. Following the denial of his appeal, Enwonwu was transferredto the Krome Detention Center in Miami, Florida. Id.; EnwonwuAff. ¶ 153.
Enwonwu subsequently filed a petition for a writ of habeascorpus in the United States District Court for the NorthernDistrict of Florida. Pet'r Mem. at 9. Enwonwu's petition wasdenied for lack of jurisdiction. Id. Enwonwu also filed amotion to reopen his case with the BIA so that he could pursuerelief under the Convention Against Torture. Enwonwu Aff. ¶ 152.Under the Convention Against Torture, a signatory country is prohibited from returning an alien "to a country in which thereare substantial grounds for believing the person would be indanger of being subjected to torture. . . ." Foreign AffairsReform and Restructuring Act of 1998, 8 U.S.C § 1231 (1998); seealso 8 C.F.R. §§ 1208.16(c)(4), 1208.17, 1208.18. While Enwonwuawaited a ruling on his motion, his plight was detailed in aFebruary 14, 1999 Boston Sunday Globe article after he agreed tobe interviewed. Pet'r Mem., Ex. 14, Teresa Mears, As INS JailsFill, A Release Plan Surfaces, Boston Globe, Feb. 14, 1999, atA16; Tr. of 5/2/05 at 26. The article mentioned the fact thatEnwonwu cooperated with the DEA and that he feared for his life.Mears at A16.
On June 2, 1999, the BIA granted Enwonwu's motion to reopen andallowed him to pursue relief under the Convention AgainstTorture. Enwonwu's case was remanded back to the Review Office inBoston where Hearing Officer Shapiro again presided. Pet'r Mem.at 10. Over the course of Enwonwu's three-day Convention AgainstTorture hearing, testimony was taken from Agent Lemon, Enwonwu,and Professor Michael Watts of the University of California,Berkeley.
Agent Lemon acknowledged that Enwonwu had cooperated with theDEA by participating in a controlled drug purchase and by makingtelephone calls to both Nigeria and Chicago. Ex. 6 at 74-75.Agent Lemon specifically recalled Enwonwu making calls to the"ultimate recipient" of the heroin. Id. at 74. As Agent Lemon recalled, the individuals who came to Boston to purchasethe drugs were Nigerian nationals. Id. Lemon also testifiedthat he remembered that three individuals were arrested inconnection with the controlled buy and that some of them hadtraveled from Nigeria to complete the transaction. Id. at74-75.
In addition to the telephone calls Enwonwu placed, Lemontestified that Enwonwu also provided "some information aboutthese individuals in Nigeria." Id. at 76. Further, Lemonrecalled that Enwonwu and an undercover agent had met with theprospective purchasers prior to the arrest. Id. When askedwhether Enwonwu provided the DEA with information aboutindividuals other than the three who were arrested in connectionwith the controlled drug purchase, Lemon responded affirmativelybut noted that he had been instructed by the DEA Office of ChiefCounsel that he could not "get into particulars with respect tothe information." Id. at 76-77.
Agent Lemon testified further that he did not recall Enwonwuimplicating any high ranking military officials in Nigeria. Id.at 79. Lemon did recall, however, that Enwonwu indicated that thepeople with whom he had dealt were in Nigeria. Id. at 80. AgentLemon also acknowledged that he introduced Enwonwu to agents atthe INS to "see if Mr. Enwonwu could be of any value" to them.Id. at 88. Lemon elaborated that his understanding was that INSobtained a "taxi cab license" for Enwonwu who was going to"attempt to be of some assistance" to them. Id. Lemon testified further that he contacted an Assistant United StatesAttorney to ensure that Enwonwu received a suspended sentence asa result of his cooperation with the DEA. Id. at 81-82.
When asked if Enwonwu was compensated by the DEA, Lemonresponded that he did not know but noted that "the majority oftimes" informants who cooperate in exchange for leniency in apending criminal case "are not compensated . . . with money, butthat's not to say that it did not occur." Id. at 89. Lemondenied ever promising to secure an "S" visa for Enwonwu. Id. at105. Lemon also denied that anyone in the DEA promised asylum toEnwonwu, noting that "we're not allowed to make promises." Id.at 106-07.
While testifying on his own behalf, Enwonwu stated that hefeared returning to Nigeria because of the retribution he wouldendure at the hands of the individuals connected to the drugcartel that he betrayed. Id. at 139. Enwonwu noted that membersof the organization still had possession of his car and hisdriver's license. Id. Enwonwu added that it was a "mafia kindof thing going on in Nigeria and they will want to have revengeon me" for interfering with their business. Id.
During his testimony, Enwonwu admitted to the hearing officerthat he had lied under oath to an asylum interviewer regardingthe identity of the mother of his son Brian. Id. at 188-190.Enwonwu acknowledged that he untruthfully told the interviewerthat a woman named Virginia Cole was Brian's mother in an effort to protect his ex-wife (Brian's actual mother) whowas then living in the United States and wished not to beinvolved in Enwonwu's immigration affairs. Id. at 188.
The final person to testify at Enwonwu's Convention AgainstTorture hearing was Professor Michael Watts.9 ProfessorWatts teaches geography and development studies at the Universityof California, Berkeley where he has been employed since 1979.Id. at 209. Professor Watts is also the director of theschool's International Studies Institute, an organization devotedto international studies and foreign affairs. Id. ProfessorWatts' specific area of expertise focused on West Africa,particularly Nigeria. Id.
Professor Watts testified that he was especially interested inNigerian "politics, economics, and resource use." Id. Hetestified that he first traveled to Nigeria in 1972, that helived there for two years in the mid-1970's, and that had beenreturning "regularly" since that time. Id. At the time of histestimony, Professor Watts had written three books on Nigeria.Id. at 210. The most recent book Watts had co-written "had todo particularly with questions of the rise of the military andthe military [g]overnment in that country, problems of corruption. . . and how that was shaping? patterns of social and cultural life"in Nigeria. Id. at 210-11. Professor Watts also testified thathe was not being compensated for his testimony. Id. at228.10
In addition to authoring books on Nigeria, Watts draftedconsultancy documents for organizations such as the Ford andRockefeller Foundations regarding country conditions in Nigeria.Id. at 211. Watts also authored a report to the United NationsDevelopment Program on a similar topic. Id. Watts has receivedmany research grants to study country conditions in Nigeria.Id. at 211-12. Some of those grants were awarded by theUnited States Government, the Ford Foundation, and the MacArthurFoundation. Id. at 212. Based on Professor Watts' background,the hearing officer qualified him as an expert on the countryconditions of Nigeria. Id. at 215.
Professor Watts testified that, in his opinion, it was likelythat Enwonwu would be subject to torture should he return toNigeria. Id. at 217-18 (opining it was "likely that should Mr.Enwonwu return [to Nigeria,] he would experience torture as aresult of the activities that he had previously been involvedin"). Watts' opinion was based in large part on Enwonwu'scooperation with the DEA. Id. at 219. According to Professor Watts, there existed a "very serious likelihood" that theNigerian drug traffickers with whom Enwonwu had dealt would meteout retribution against him for that cooperation. Id. at 219,223. That Enwonwu's interaction with these Nigerian individualsoccurred "in the mid-1980's" did not alter Watts' assessment.Id. at 223, 251.
According to Watts, the Nigerian drug trade "very clearly hasactors that are drawn from the military" as well as thegovernment. Id. at 223. Thus, when testifying about theNigerian drug trade, Professor Watts made clear that he was"simultaneously talking about the interrelationship of all three:senior military, senior and middle level government officials,and a sort of independent drug business, so to say." Id. at223-24. Because of that interconnection, Professor Watts opined,"there would? not only be retaliation from the drug businessside of things, but there would also be a likelihood ofimprisonment, arrest and subsequent torture from the . . .military and [g]overnmental constituencies, insofar as they arepart of that larger drug activity." Id. at 224.
Professor Watts testified further that the Nigerian governmentuses sophisticated surveillance and monitoring apparatusescapable of identifying and tracking down individuals likeEnwonwu, even if they avoid parts of the country they previouslyinhabited. Id. at 218, 224-25. In fact, Watts testified, thereare documented cases of individuals being tracked down and arrested after being absent from Nigeria for tento fifteen years. Id. at 242.
According to Professor Watts, in the last twenty years Nigeriahas emerged as a "major . . . player" in the international drugtrade. Id. at 229. Watts testified that Nigeria is a key sourceof heroin, accounting for two-thirds or more of the global trade.Id. That trade, he noted, is the source of a considerableamount of violence within Nigeria. Id. Watts testified thatthere is a "great deal" of "well documented" evidence of violenceinvolving "lower operative[s]" in the Nigerian drug trade. Id.
Specifically, there existed "enormous amounts of . . .retaliative violence" incident to that trade. Id. at 230. Suchviolence thrives, according to Professor Watts, because ofNigeria's National Drug Enforcement Agency, which he described as"an extraordinarily corrupt organization" that "shows absolutelyno willingness [or] ability to . . . apprehend . . . or convict"high level drug traffickers. Id. at 229-30. In fact, Wattstestified, that agency is often "complicit?" with the drugtraffickers. Id. at 229.
When asked to discuss the rule of law in Nigeria, ProfessorWatts testified that up until May of 1999 there simply was "norule of law." Id. at 225. Citing United Nations reports, Wattsobserved that he was not alone in reaching that conclusion. Id.Watts observed further that Nigeria is "[o]ne of the most, if not the most," corrupt nations in the world. Id. at 225. Wattsnoted that Nigeria has a culture of "vast corruption" and"organized and unorganized violence." Id. Further, Wattstestified, Nigeria lacks a free press and "[t]he independence ofits judiciary has been totally undercut by the military." Id.Watts observed that despite a recent democratic transition, therule of law had not returned to Nigeria which is still dogged byproblems of corruption and violence. Id. at 225-27.
Recent United States State Department reports reflect that thesituation in Nigeria has not much improved since 1999. Hr'g of4/29/05, Ex. 2, Bureau of Democracy, Human Rights, and Labor,Country Reports on Human Rights Practices — 2004: Nigeria (Feb.28, 2005) ("Nigeria Country Report") at 1-27. The StateDepartment observes that arbitrary violence and lethal force atthe hands of police and the military continue. Id. at 3.Additionally, "[v]igilante violence continued throughout thecountry. . . ." Id. at 2. Further, the report observes,"[c]orruption was massive, widespread, and pervasive, at alllevels of the government and society." Id. at 17. The reportdetailed flagrant violations of human rights and civil libertiesby the Nigerian government that included arbitrary arrests andpolitically motivated killings, id. at 2, politically motivatedincarcerations and disappearances, id. at 5, denials of fairpublic trials, id. at 9, arbitrary interferences with privacy rights, id. at 10, and restrictions on speech and assemblyrights, to name a few. Id. at 10-12.
Another recent United States State Department report discussinginternational narcotics trafficking notes that Nigeria remains "ahub of trafficking of persons and narcotics." Bureau forInternational Narcotics and Law Enforcement Affairs,International Narcotics Control Strategy Report — 2005 CountryReports: Nigeria (Mar. 2005) ("Nigeria Narcotics Report")available at, http://www.state.gov/g/inl/rls/nrcrpt/2005/vol2/html/42395.htm. Further, the report notes, "Nigeria is a centerof criminal financial activity for the entire continent.Individuals and criminal organizations have taken advantage ofthe country's location, weak laws, systemic corruption, [and]lack of enforcement . . . to strengthen their ability toperpetuate all manner of financial crimes at home and abroad."Id. Despite the Nigerian government's recent attempts atcombating rampant crime and corruption, "Nigerians continue to beplagued by crime." Id.
On December 16, 1999, after the close of all the evidence, thehearing officer granted Enwonwu deferral of removal under theConvention Against Torture. Ex. 6 at 5; Pet'r Mem. at 10.Although the hearing officer "disbelieved" Enwonwu's testimonythat he identified various members of the Nigerian military as his co-conspirators,11 he did find that Enwonwucooperated with the DEA "and provided names." Ex. 6 at 5. Theissue, according to the hearing officer, was whether Enwonwu,"having been convicted of a drug trafficking crime in thiscountry, having cooperated with the Drug EnforcementAdministration, and having been involved in smuggling narcoticsinto this country from Nigeria, would face the likelihood oftorture upon his return to Nigeria." Id. at 3.
It was evident, the hearing officer found, that Enwonwu was"involved with others in Nigeria" who were possibly "connected tothe military or the [g]overnment." Id. Further, according tothe hearing officer, the documentary evidence established that"Nigeria is a narcotics trafficking center of major proportions . . .responsible for a significant portion of the heroin that isabused in the United States." Id. Additionally, the hearingofficer found that the Nigerian government "has fostered aclimate receptive to criminal activities and it is widelybelieved that corruption and criminal activity and narcoticstrafficking are fostered by some of the Nigerian elite, some ofwhom have links to ranking Nigerian government officials, as wellas the military." Id. at 3-4. The hearing officer found that it is the policy and the law inNigeria that those who have been convicted of drug traffickingcrimes outside Nigeria are subject to prosecution and convictionin Nigeria for those same crimes. Id. at 4. Further, thehearing officer found that it had been clearly established thatthe Nigerian prison system is a haven for human rights abuses andthat prisoners within that system are routinely tortured. Id.The hearing officer credited Professor Watts' testimony thatEnwonwu would be highly identifiable upon his return to Nigeriaand that "many people who do return to that country even afterten to fifteen years are apprehended and arrested for grievanceswhich the government might have against them which occurred along time ago." Id. According to the hearing officer, Enwonwuwould likely be identified and apprehended upon his return toNigeria by virtue of being returned under an order ofdeportation. Id.
Based on all of the evidence, the hearing officer concludedthat it was "more likely than not" that Enwonwu would be torturedif he was returned to Nigeria. Id. at 4, 5. The hearing officerbased his ruling on two grounds. First, because of Enwonwu'sconviction in the United States, he would likely be incarceratedin Nigeria and subject to torture in prison. Id. Alternatively,even if Enwonwu was not imprisoned based on his United Statesconviction, it was more likely than not that "because of theinterrelationship of the drug traffickers, the military, and the [g]overnment, that retribution would be still sought against himbecause of his cooperation with the Drug EnforcementAdministration." Id. at 4-5. The hearing officer noted thatthis "retaliation, either by the military or the [g]overnment,would amount to acquiescence by a [g]overnmental agency. . . ."Id. at 5.
Following the hearing officer's decision, Enwonwu was released.Pet'r Mem. at 10. The INS, however, reserved its right to appealthe decision and Enwonwu was required to provide the ReviewOffice with his contact address. Id.; Ex. 6 at 264. Enwonwuprovided his address at the time which was: "c/o Rose O.Mgbojikwe, 39 Sheridan Drive, Apartment # 8, Shrewsbury,Massachusetts 01545." Pet'r Mem. at 10.12 Enwonwuinquired of his attorney — Anthony Pelino ("Pelino") — about thesignificance of the INS reserving its right to appeal. Id. at11. According to Enwonwu, this information was especiallyimportant to him in light of the fact that Pelino would soon bemoving his practice to Arizona. Id. Pelino informed him thatalthough the INS did not usually appeal rulings of the ReviewOffice, it had reserved its right to do so in his case within thenext thirty days. Id.
With this information in mind, Enwonwu "counted the secondsuntil after January 18, 2000," the last day the INS could fileits notice of appeal. Id. By the end of that month when Enwonwu received no communication from either Pelino or the INS, heconcluded that the matter was closed. Id. Unbeknownst toEnwonwu, however, the INS did, in fact, file a timely appeal withthe BIA. Id. at 12. While it appears that notice of the appealwas mailed to Pelino, Enwonwu himself received no notice. Id.Although the BIA mailed notice of the appeal to Enwonwu, it didnot indicate that his address was "c/o Rose O. Mgbojikwe." Id.at 12-13, 20. As such, the notice of appeal was never deliveredto Enwonwu but instead returned to the BIA and marked "[u]nknownat above address." Id. at 20.
Later in 2000, after the INS filed its notice of appeal,Enwonwu moved with his sister to a new address in Shrewsbury,Massachusetts (27 Lebeaux Drive). Id. Ms. Mgbojikwe filed achange of address form with the United States Postal Service.Id. at 10. Enwonwu believed that he provided sufficient noticeto the INS of his address change when he renewed his EmploymentAuthorization Document at the Bureau of Citizenship andImmigration Services as he was annually required to do. Id. at10-11.13 Believing that his immigration problems had beenresolved, Enwonwu "began taking steps to regain control of hislife." Id. at 11. By 2003, Enwonwu had earned his realtor's licence and wassubsequently hired by ReMax Realtors in Malden, Massachusetts.Id. By the autumn of 2004, however, Enwonwu realized that thesale of real estate was seasonal and decided to seek anadditional job. Id. To that end, on September 13, 2004, Enwonwuvisited the Bureau of Customs and Immigration Services office inBoston to seek the necessary employment authorization. Id. Uponidentifying himself, Enwonwu was again arrested and detained.Id. at 12. When Enwonwu asked why he was being arrested, he wasinformed that the INS, now the Department of Homeland Security,had successfully appealed Hearing Officer Shapiro's 1999 deferralof removal order. Id.
Indeed, on May 30, 2003, the BIA issued a decision vacating thehearing officer's decision and ordering Enwonwu's removal fromthe United States. Pet'r Mem. Ex. 18, BIA Decision of 5/30/03("BIA Decision of 5/30/03"). According to the BIA: The Immigration Judge granted [Convention Against Torture] relief largely based on the fact that the respondent, under Nigerian law, will likely be subject to arrest, detention and prosecution on account of his drug conviction in the United States. We have previously held that a Nigerian convicted of a drug offense in the United States failed to establish eligibility for deferral of removal because the evidence she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law Enforcement Agency could not meet the burden of proof for [the Convention Against Torture]. See Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002). We therefore conclude that the mere possibility of arrest and prosecution in Nigeria does not establish that the respondent in this instance would more likely than not be subject to torture by a public official or with the acquiescence of such an official. See 8 C.F.R. §§ 1208.16(c)(4), 1208.18(a)(7). Id.14
Following his arrest, Enwonwu's siblings contacted attorneyPelino, who was then practicing in Arizona. Pet'r Mem. at 12.According to Enwonwu, Pelino claimed to have no knowledge thatthe INS pursued an appeal of the hearing officer's decision.Id. Thereafter, Enwonwu retained new counsel to file a motionto reopen his case. Id. On February 15, 2005, the BIA deniedEnwonwu's motion because it had not been filed within 90 days ofits May 30, 2003 decision. Pet'r Mem. Ex. 20, BIA Decision of2/15/05 ("BIA Decision of 2/15/05"). The BIA ruled that despiteEnwonwu's claim that neither he nor his attorney were notified ofthe appeal, "the record indicates that the Notice of Appeal (EOIRForm 26) was mailed to [Enwonwu]'s former attorney at the lastknown address in the file." Id. Enwonwu initiated habeas corpus proceedings in this Court onMarch 17, 2005. In his petition, Enwonwu asserts both proceduraland substantive due process claims. Pet'r Mem. at 18-24. First,Enwonwu argues, the BIA's May 30, 2003 decision and its February15, 2005 order denying his motion to reopen deprived him ofprocedural due process as he was not afforded sufficient noticeof the appeal of the hearing officer's Convention Against Torturedetermination. Pet'r Mem. at 19-22. Second, Enwonwu argues thatthe BIA's order of removal violates his substantive due processrights because returning him to Nigeria subjects him to agovernment-created danger. Pet'r Mem. at 22-23.
On April 11, 2005, this Court granted Enwonwu's Emergency ExParte Motion for Stay of Deportation [Doc. No. 7] and scheduledan evidentiary hearing. This Court conducted an evidentiaryhearing over the course of four days and heard testimony fromAgents Lemon and Pettigrew as well as from Enwonwu. At the closeof the evidence on May 3, 2005, this Court took the matter underadvisement.
The first witness to testify at the evidentiary hearing wasAgent Lemon. Unlike his 1999 testimony before Hearing OfficerShapiro in which he testified that three individuals werearrested in connection with the 1986 controlled heroin purchase,Agent Lemon testified before this Court that only two individualswere arrested. Tr. of 4/27/05 at 26. Agent Lemon testified that,to his knowledge, no one was arrested in Ohio as a result of the investigation. Id. Additionally, in contrast to Lemon's1999 testimony in which he testified that he did not know whetherEnwonwu was paid for his services as an informant, Agent Lemontestified before this Court that several $200 cash payments weremade to Enwonwu which totaled "fifteen or sixteen hundreddollars." Compare id. at 29-30 with Ex. 6 at 89. In fact,Lemon recalled before this Court that he himself made thosepayments. Compare Tr. of 4/27/05 at 30 with Ex. 6 at 89.
Another inconsistency in Agent Lemon's testimony before thisCourt related to the nationality of the two individuals who werearrested after purchasing the heroin from Mr. Enwonwu in 1986. In1999, Lemon testified that these individuals were Nigerian. Ex. 6at 74. In response to a question from this Court, however, AgentLemon stated that they were not from Nigeria. Tr. of 4/27/05 at38 (remembering they "were on the American side"). Additionally,unlike his 1999 testimony in which he claimed to have introducedEnwonwu to INS agents "to see if [he] could be of any value" tothem, Ex. 6 at 88, Agent Lemon testified before this Court thatsuch introduction was made because he wanted to help Enwonwuobtain a "work permit." Tr. of 4/27/05 at 27-28.
Consistent with his testimony in 1999, Agent Lemon testifiedbefore this Court that Enwonwu was not promised that in exchangefor his cooperation he would be permitted to remain in theUnited States. Id. at 37-38. Agent Lemon also testified that he didnot promise Enwonwu that he would be protected from Lieutenant Charles or his confederates. Id. at 37. According to AgentLemon, the only promise made to Enwonwu was that his cooperationwould be brought to the attention of the United States Attorneyin connection with the criminal case against him. Id. at 31.
While testifying before this Court, Mr. Enwonwu stated that hefeared returning to Nigeria because of his cooperation with theUnited States Government which facilitated the arrest of fellowNigerians. Tr. of 4/29/05 at 58. Specifically, Enwonwu testifiedthat he received word from Nigeria that he was being "looked for"by a lot of people. Id. Additionally, Enwonwu attempted to puton evidence regarding violence committed against several membersof his family in Nigeria. Enwonwu Aff. ¶¶ 173-74, 176-79. ThisCourt, however, refused to admit such evidence as it constitutedhearsay and does not consider it now. Tr. of 4/29/05 at 57-58,74-75. This Court did, however, permit Enwonwu to testify to thefact of his knowledge that his cousin in Nigeria, HerbertEnwonwu, was dead. Id. at 75-76. On hearsay grounds, however,this Court did not permit Enwonwu to testify as to thecircumstances of his cousin's death. Id. at 76.
In response to questions about the voluntariness of hiscooperation with the DEA, Enwonwu acknowledged that although hewillingly cooperated, such choice was conditioned on promisesmade by the DEA. Tr. of 5/2/05 at 15. As Enwonwu stated, Special Agent Lemon promised me I'll be safe from Lieutenant Charles and the rest of his boys. There was a condition there. Because when I left Lagos, I knew I was dealing with a lot of dangerous people and cooperating with the government to get to these people was going to put my life at risk.Id.
Enwonwu noted further, "If I knew that after I cooperated withthe government to get to Lieutenant Charles that the governmentwas going to send me back to Nigeria, I'll be the damndest foolto do that." Id. When it was suggested that Enwonwu had simplycooperated to avoid a prison term in the United States, Enwonwuresponded that if "protection of my life was not guaranteed,going to jail and getting . . . deported back to Nigeria was alittle price to pay." Id. at 16.
Portions of Enwonwu's evidentiary hearing were observed bymembers of the news media. As a result, several news storiescirculated about Enwonwu's case. See Hr'g of 4/29/05, Exs. 3-4.One story featured on the Nigerian news website "Nigeria Digital"noted that Enwonwu had been a government informant and that hefeared for his life upon returning to Nigeria. Hr'g of 4/29/05,Ex. 4.
B. Resolution of Disputed Issues of Fact
On April 29, 2005, after hearing all of the testimonialevidence, this Court ruled from the bench that it was notpersuaded by a fair preponderance of the evidence that there wasan actual agreement between Enwonwu and the DEA that they wouldnot deport him in exchange for his cooperation. Tr. of 4/29/05 at 80. This Court later explained that its ruling did notforeclose a finding that less specific representations were madeto Enwonwu, including an assurance that he would be protected inconnection with his cooperation. Tr. of 5/2/05 at 6. For purposesof the legal discussion that follows, in addition to theundisputed facts, this Court is persuaded of the following by afair preponderance:
This Court finds that in addition to cooperating in the 1986controlled heroin purchase, Enwonwu also aided the DEA by makingcontrolled telephone calls to an individual in the midwesternUnited States, either in Ohio or Chicago. Although Agent Lemontestified before this Court that he did not recall suchcooperation, the Court finds his memory to be unreliable. Asdiscussed above, there were several inconsistencies between AgentLemon's testimony in 1999 before the hearing officer and his 2005testimony before this Court.
That Enwonwu contacted an individual in the Midwest issupported by his own testimony, which this Court credits, as wellLemon's 1999 testimony, portions of which this Court credits. In1999, Lemon testified that Enwonwu contacted the "ultimaterecipient" of the heroin and that he believed Enwonwu made phonecalls to Chicago. Ex. 6 at 73-75. That Enwonwu made calls to the"ultimate recipient" of the heroin is further supported by AgentLemon's testimony that it is the policy of the DEA to "take theinvestigation as far as possible." Ex. 6 at 74; Tr. of 4/27/05 at 24. This Court is persuaded that the DEA's effortswent beyond simply apprehending Brock and Ogunniran and that itcast a wider net which included controlled telephone calls to theintended recipient of the heroin.
This Court credits Enwonwu's testimony that the Ohio individualwas an African national who became angry with and threatenedEnwonwu upon learning that he had doubled the price of theheroin. The reasonable inference is available that between hisfirst and second conversation with Enwonwu, the Ohio individualinformed the traffickers in Nigeria of Enwonwu's betrayal.Further, this Court is persuaded that Mr. Brock and Mr. Ogunniranare African nationals who were likely deported back to theircountries of origin after serving their sentences.
This Court further finds that representations were made toEnwonwu by the DEA regarding protection from certain dangers inconnection with his cooperation. This Court credits Enwonwu'stestimony that the DEA assured him that his life would besafeguarded from the drug traffickers he was being asked tobetray. Although Enwonwu understood this promise to include aguarantee that he would not be deported, this Court finds thatthe assurance was less specific. This Court credits Enwonwu'stestimony that given the dangerousness of the drug traffickers hewas dealing with, he would not have cooperated without the DEA'sassurances of protection. Professor Watts attested to thedangerousness of these individuals, discussing at length thecutthroat and retaliatory nature of the Nigerian drug trade. Ex. 6 at217-18, 223-24, 228-30.
That these assurances were made is further supported byEnwonwu's testimony that the DEA provided him with a hotlinenumber after telling him that, as an informant, his life was indanger. Ex. 6 at 142-43. Additionally, Agent Lemon's willingnessto send an agent to meet with Enwonwu to discuss the possibilityof an "S" visa further supports this finding. Ex. 6 at 13. Thesemeetings followed pleas from Enwonwu's lawyer and letters fromEnwonwu stating that he feared for his life. Id.; Tr. of4/29/05 at 21. While it is possible that the DEA agreed to meetwith Enwonwu out of compassion or the hope of obtaining valuableinformation, this Court finds it more likely that Agent Lemonagreed to do so out of a sense of obligation. That is, AgentLemon assured Enwonwu that he would be protected from the drugtraffickers and realized that removal would subject him toretribution at their hands.15
A. Exhaustion of Administrative Remedies
Courts are prohibited by 8 U.S.C. § 1252(d)(1) from reviewing afinal order of removal unless the alien seeking review hasexhausted all administrative remedies available to her "as of right." Section 1252(d)'s exhaustion requirement "appliesgenerally to habeas corpus petitions." Sayyah v. Farquharson,382 F.3d 20, 26 (1st Cir. 2004). A different result "would allowan alien subjected to an adverse decision to reject the veryadministrative review processes established to correct mistakesand to insist, instead, upon immediate access to a federalcourt." Id.
To the extent that a claim is beyond the authority of the BIAto adjudicate, however, a petitioner need not exhaust herremedies administratively. Jupiter v. Ashcroft, 396 F.3d 487,492 (1st Cir. 2005). Administrative exhaustion is not required ofEnwonwu's substantive due process claim because, as the FirstCircuit has observed, "[t]he BIA is without jurisdiction toadjudicate purely constitutional issues." Ravindran v. INS,976 F.2d 754, 762 (1st Cir. 1992) (citations omitted). Thisexception applies only to "due process claims that go beyond mere`procedural errors,' which the BIA plainly may address." Id.(citations omitted); see also United States v.Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir. 2002) ("Whileconstitutional claims lie outside the BIA's jurisdiction, itclearly can address procedural defects in deportationproceedings.").
Unlike Enwonwu's procedural due process claim which attacks theadequacy of the notice provided to him, his substantive dueprocess claim challenges the constitutionality of the removalorder itself in that it impermissibly subjects him to a government-created danger. The BIA lacks the authority toadjudicate this claim because it raises a purely constitutionalquestion completely separate from matters of procedure.Ravindran, 976 F.2d at 762. Accordingly, administrativeexhaustion does not apply to Enwonwu's substantive due processclaim. Jupiter, 396 F.3d at 492.
Regarding Enwonwu's procedural due process claim, counsel forthe executive contends that because Enwonwu failed to defendagainst its appeal of the hearing officer's December 16, 1999Convention Against Torture decision, "he has failed to exhausthis administrative remedies and habeas review of the BIA's May30, 2003, decision is barred by 8 U.S.C. § 1252(d)." Exec. Mem.at 19. Counsel for the executive, however, has not cited a singlecase holding that an alien's failure to defend an appeal of adecision deferring removal constituted a failure to exhaustadministrative remedies.
In making its argument, counsel for the executive misinterpretsthe function of section 1252(d)(1)'s exhaustion requirement. Asthe First Circuit noted in Sayyah, exhaustion requires aliensto utilize administrative procedures "to correct mistakes" thatwere made in "adverse decision[s]" rendered against them.Sayyah, 382 F.3d at 26. "Telling a petitioner that he must seekthe remedy for an error before an administrative agency . . .prior to seeking it in a habeas proceeding is not the same thingas telling him that he may not pursue the remedy in a federal habeas proceeding in any event."Id. (quoting Sundar v. INS, 328 F.3d 1320, 1324 (11th Cir.2003) (emphasis added)).
Here, Enwonwu began the process of exhaustion by pursuingConvention Against Torture relief before the Review Office, whichwas granted. Thereafter, it was incumbent on counsel for theexecutive to appeal the decision and to persuade the BIA tovacate it. While the executive successfully carried that burden,its success does not retroactively transform the hearingofficer's decision into an adverse ruling against Enwonwurequiring him to recommence his ascension of the administrativeladder. Rather, it was not until the BIA's ruling on May 30, 2003that an "adverse decision" was entered against Enwonwu. Sayyah,382 F.3d at 26.
Put another way, prior to the BIA's May 30, 2003 decision theresimply were no further "remedies" for Enwonwu to exhaust as therewas no conceivable error for him to remedy. See Sayyah,382 F.3d at 26; Sundar, 328 F.3d at 1324. Based on the executive'sreasoning, it seems that any alien who fails initially to opposeremoval and then is ordered removed in absentia would forever beprecluded from exhausting administrative remedies — and byextension from obtaining habeas review. This is not the law.See Kaweesa v. Ashcroft, 345 F. Supp. 2d 79, 101, 103-04(D. Mass. 2004) (noting that 8 U.S.C. § 1229a(b)(5)(C) permits analien to seek rescission of an order of removal entered in absentia and holding that hearing officer'srefusal to rescind order may be reviewed by habeas court) (appealpending).
The proper exhaustion inquiry, therefore, is whether Enwonwuexhausted his administrative remedies after the BIA's May 30,2003 decision. As mentioned above, when Enwonwu learned of theBIA's May 30, 2003 decision he utilized the only administrativeprocedure available to him: he filed a motion to reopen his case.Pet'r Mem. Ex. 19, Pet'r Mot. to Reopen. The BIA denied Enwonwu'smotion because it was not filed within 90 days of its May 30,2003 decision and concluded that no exceptions to the 90-day ruleapplied. BIA Decision of 2/15/05 (citing8 C.F.R. § 1003.2(c)(2)).
Enwonwu's failure timely to file a motion to reopen forecloseshabeas review of the BIA's May 30, 2003 Convention AgainstTorture decision only if such a motion is a remedy available "asof right." 8 U.S.C. § 1252(d)(1). This issue was addressed by theFirst Circuit in Hernandez v. Reno, 238 F.3d 50 (1st Cir.2001) which dealt with the exhaustion requirement of section1152(d)(1)'s predecessor, 8 U.S.C. § 1105a(c). In discussing analien's untimely motion to reopen, the court noted that to theextent the BIA "does provide currently available remedies as amatter of grace, a court is free to require exhaustion of suchremedies — not because of any . . . statutory command butsimply because it makes sense." Id. at 54-55 (citations omitted, emphasis added). Three years later inSayyah, the First Circuit noted that in Hernandez, "wediscussed the fact that an untimely motion to reopen is adiscretionary motion but that, to the extent the BIA grants such`currently available remedies as a matter of grace,' courts mayrequire exhaustion of them." Sayyah, 382 F.3d at 27 (quotingHernandez, 238 F.3d at 54-55) (emphasis added).
Both Hernandez and Sayyah observed that the decisionwhether to grant a motion to reopen is within the BIA'sdiscretion and that courts may excuse a petitioner from pursuingsuch a remedy. Sayyah, 382 F.3d at 27; Hernandez,238 F.3d at 55. Because courts may excuse a petitioner's failure to file amotion to reopen, such a remedy cannot be one that is available"as of right." 8 U.S.C. § 1252(d)(1). If such a remedy wasavailable as of right, courts would not be permitted to exempt itfrom section 1252(d)(1)'s exhaustion requirement. Id.; seealso Panjwani v. Gonzales, 401 F.3d 626, 631 (5th Cir. 2005)("[T]he BIA's broad discretion to deny or grant a motion toreopen suggests that the initial filing of such a motion cannotbe characterized as a remedy available as of right" (internalquotation marks and citation omitted)); Molina-Camacho v.Ashcroft, 393 F.3d 937, 942 n. 3 (9th Cir. 2004) ("Nor does8 U.S.C. § 1252(d)(1) bar relief, despite petitioner's failure tomove the BIA to reopen or reconsider its decision." (citationomitted)); Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9thCir. 2003) ("[M]otions to reopen, are not `remedies available . . . asof right' within the meaning of 8 U.S.C. § 1252(d)(1)."(alteration in original)) .
In any event, even if a motion to reopen was a remedy availableas of right, Sayyah and Hernandez make clear that so long assuch a remedy is pursued, even if out of time, a petitioner maybe found to have exhausted that remedy. Sayyah, 382 F.2d at 27(quoting Hernandez, 238 F.3d at 54-55). Accordingly, becauseEnwonwu sought to reopen his case, albeit tardily, he exhaustedthat administrative remedy. Id.; Kaweesa,345 F. Supp. 2d at 84, 99 (ruling that petitioner who filed untimely motion toreopen with BIA nonetheless exhausted administrativeremedies).16
Even if counsel for the executive was correct in its contentionthat Enwonwu is barred from challenging the BIA's May 30, 2003Convention Against Torture decision, it would not bar him frommounting a constitutional challenge to the BIA's February 15,2005 denial of his motion to reopen. Cf. Panjwani,401 F.3d at 631 (noting that BIA's denial of an untimely motion to reopen is a final, appealable order over which courts ofappeal have power to review); Foroglou v. Reno, 241 F.3d 111,113-14 (1st Cir. 2001) (entertaining challenge to BIA's denial ofalien's untimely motion to reopen); see also Kaweesa,345 F. Supp. 2d at 104 (noting that habeas courts have jurisdiction todetermine whether hearing officer's discretionary denial ofmotion to reopen "falls within the implicit limits set by thestatutory scheme and the Constitution"). While, as discussedbelow, there are further jurisdictional hurdles for Enwonwu toclear, exhaustion is not one of them.
B. Procedural Due Process Claim
Enwonwu maintains the BIA's May 30, 2003 decision and itsFebruary 15, 2005 denial of his motion to reopen violated hisprocedural due process rights. Pet'r Mem. at 18-19, 22. Accordingto Enwonwu, because he was not provided with adequate notice thatthe INS appealed the hearing officer's Convention Against Torturedetermination, the BIA's May 30, 2003 decision was rendered inviolation of his Fifth Amendment procedural due process rights.Id. at 22 (citing United States v. Jauregui, 314 F.3d 961,962-63 (8th Cir. 2003)). The BIA again deprived him of proceduraldue process, Enwonwu contends, when it denied his motion toreopen on February 15, 2005. Id. at 18-19.
Enwonwu acknowledges that although the notice of appeal wasmailed to Pelino (his former attorney), notice was neither served on him [Enwonwu] personally nor was a copy mailed to him. Id.at 19. Enwonwu points out that because the BIA failed accuratelyto address the notice of appeal "c/o Rose O. Mgbojikwe," it wasnever delivered to him. Id. at 20. As such, Enwonwu argues, thenotice provided by the BIA fails to conform with8 C.F.R. § 1003.3(a) which provides that "[t]he appeal must reflect proof ofservice of a copy of the appeal and all attachments on theopposing party." 8 C.F.R. § 1003.3(a)(1) (emphasis added); Pet'rMem. at 19. Thus, Enwonwu argues, "the BIA should have reopenedthe proceedings and afforded [him] the opportunity to be heard onthe merits." Id. at 21-22 (citing Matter of Grijalva, 21 I. &N. Dec. 27, 37 (BIA 1995)).
As counsel for the executive correctly points out, however,Enwonwu's argument fails to account for the different rules ofservice applicable to individuals represented by counsel. Exec.Mem. at 9. Counsel for the executive does not dispute that8 C.F.R. § 1003.3(a) directs that notice be served on an opposingparty but notes, however, that under 8 C.F.R. § 1292.5(a), whenan individual has legal representation, service is directed tocounsel, not directly to the represented party. Id. Accordingto that provision: Whenever a person is required by any of the provisions of this chapter to give or be given notice; to serve or be served with any paper other than a warrant of arrest or a subpoena; to make a motion; to file or submit an application or other document; or to perform or waive the performance of any act, such notice, service, motion, filing, submission, performance, or waiver shall be given by or to, served by or upon, made by, or requested of the attorney or representative of record, or the person himself if unrepresented.8 C.F.R. § 1292.5(a) (emphasis added); Exec. Mem. at 9.
As mentioned above, Enwonwu does not dispute the fact thatnotice of appeal was served on Pelino, his attorney of record.Pet'r Mem. at 12, 19. It therefore follows that under thegoverning regulation, Enwonwu himself was properly served withthe notice of appeal. 8 C.F.R. § 1292.5(a); see also Radkovv. Ashcroft, 375 F.3d 96, 97 n. 1 (1st Cir. 2004) (notingconcurrence of parties that mailing of decision to petitioners'attorney was the equivalent of mailing directly to petitioners).As counsel for the executive points out, although Enwonwu claimsthat he never received the notice of appeal from Pelino, no claimof ineffective assistance of counsel has been raised. Exec. Mem.at 11. Accordingly, Enwonwu's procedural due process claim basedon insufficient notice must fail. Bejar v. Ashcroft,324 F.3d 127, 131 (3d Cir. 2003) (refusing to hear alien's due processclaim based on lack of notice where notice was received byattorney of record).
Enwonwu also faults the BIA's May 30, 2003 ruling for failingadequately to consider the findings of Hearing Officer Shapiro.Pet'r Second Supplemental Mem. of Law ("Pet'r Supp. Mem. II")[Doc. No. 16] at 2-4. As Enwonwu observes, the hearing officercredited the testimony of Professor Watts in concluding that itwas more likely than not that he would be subject to torture upon his return to Nigeria. Id. at 3. The BIA'sdecision, Enwonwu argues, "utterly failed" to consider thehearing officer's "thoughtful analysis." Id.
Indeed, the BIA noted in its May 30, 2003 decision that thehearing officer had "granted relief largely based on the fact"that "under Nigerian law, [Enwonwu] will likely be subject toarrest, detention and prosecution on account of his drugconviction in the United States." BIA Decision of 5/30/03. TheBIA vacated the hearing officer's decision solely on the groundthat "the mere possibility of arrest and prosecution in Nigeria"does not establish the likelihood that Enwonwu would be subjectto torture upon his return. Id.
While the BIA was correct in noting that this was a partialbasis for the hearing officer's ruling, it completely ignored thealternative ground on which the decision rested. That is, even ifEnwonwu was not subject to arrest and prosecution in Nigeriabased on his conviction in the United States, it remained "morelikely than not" that "because of the interrelationship of thedrug traffickers, the military, and the [g]overnment, thatretribution would be still sought against him because of hiscooperation with the Drug Enforcement Administration" and thattorture would result. Ex. 6 at 4-5 (emphasis added). It istherefore manifest from the BIA's decision that it failed toconsider the evidence adduced at Enwonwu's Convention AgainstTorture hearing regarding the likelihood that retribution by torture would be meted out against him as a result of hiscooperation with the DEA.
The hearing officer expressly credited the testimony ofProfessor Watts, noting that he was "an informative,knowledgeable, and believable witness" who "clearly has anin-depth knowledge of the country conditions in Nigeria." Ex. 6at 5. Professor Watts testified that there were two sources ofpotential torture stemming from Enwonwu's cooperation with theDEA: one involving "retaliation from the drug business side ofthings" and another arising from the "likelihood ofimprisonment." Id. at 224. Watts explained that there was a"very serious likelihood" that individuals involved in theNigerian drug trade would seek out retribution against Enwonwu.Id. at 223.
Professor Watts noted that there is "well-documented" evidenceof violence involving "lower order . . . operative[s]" of theNigerian drug trade. Id. at 229. Specifically, Watts testifiedthat there were "enormous amounts" of "retaliative violence"within that trade. Id. at 230. The hearing officer creditedthis testimony and concluded that, given the military andgovernmental involvement in the Nigerian narcotics industry, such"retaliation" against Enwonwu would be with the acquiescence of agovernmental agency for purposes of the Convention AgainstTorture. Id. at 4-5. Thus, in addition to the likelihood that Enwonwu would beimprisoned and tortured based on the enforcement of Nigerian druglaws, Watts testified that such imprisonment and torture werealso likely based on his cooperation with the DEA. Id. at 224.Additionally, because of Enwonwu's cooperation with the DEA, itwas more likely than not that violent retaliation would be metedout against him by those in the drug trafficking organizationwhom he betrayed. Id. Absent from the BIA's decision is anyacknowledgment of this evidence or the portion of the hearingofficer's decision which relied upon it.
The decision of the BIA in this case bears a strong resemblanceto its decision at issue in St. Fort v. Ashcroft,223 F. Supp. 2d 343 (D. Mass. 2002) (Stearns, J.) aff'd, 329 F.3d 191,204 (1st Cir. 2003). In St. Fort, the habeas petitioner wasgranted deferral of removal under the Convention Against Tortureby the Review Office. Id. at 344. The hearing officer concludedthat the petitioner was entitled to Convention Against Tortureprotection as it was more likely than not that he would suffertorture in prison upon his return to Haiti. Id. The hearingofficer based his finding on State Department Human RightsReports, a prior BIA decision, and the petitioner's owntestimony. Id. The hearing officer's decision was reversed bythe BIA, which "summarily concluded that Saint Fort had presentedno evidence that he would be tortured if returned to Haiti."Id. As the St. Fort court observed, the BIA's evidentiaryconclusion "simply cannot be squared with the findings of the[hearing officer] whose decision was based not only ondocumentary evidence" but the petitioner's own testimony as well.Id. at 346. Because it was "impossible to tell" from the BIA'sdecision whether it even considered the available evidence, thecourt remanded the case to the BIA for "clarification of thegrounds" of its decision. Id. Here too, the BIA's decisioncannot be squared with the findings of the hearing officer. Inruling that Enwonwu failed to meet his burden under theConvention Against Torture, the BIA addressed only the portion ofthe evidence related to the enforcement of Nigerian drug laws.See BIA Decision of 5/30/03. The BIA did not address thealternative basis for the hearing officer's decision: thatretribution would be sought against Enwonwu for his cooperationwith the DEA. Ex. 6 at 4-5.
The Supreme Court unambiguously has held that an administrativeagency's failure to consider the evidence before it offendsFifth Amendment due process. Anniston Mfg. Co. v. Davis,301 U.S. 337, 357 (1937) ("The whole scheme of the administrativeproceeding presupposes hearing and determination in accordancewith the demands of due process. The Board which makes itsfindings and renders its decision must consider the evidence andbase its findings and decision upon it. . . ."). Aliens indeportation proceedings are not beyond the scope of the Fifth Amendment's due process guarantee. Shaughnessy v. UnitedStates ex rel. Mezei, 345 U.S. 206, 212 (1953) ("It is true thataliens who have once passed through our gates, even illegally,may be expelled only after proceedings conforming to traditionalstandards of fairness encompassed in due process of law.");Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000) (collecting cases establishing an alien's due processrights) (citations omitted).
In the immigration context, "[d]ue process is satisfied only bya full and fair hearing, which requires that each case beevaluated on its own merits to determine whether the alien'sfactual support and concrete evidence are sufficient to meet thealiens burden of proof." Id. at 1095 (internal quotation marksand citation omitted). Accordingly, due process mandates that theBIA, in "its capacity as reviewing tribunal," consider "allrelevant evidence submitted on appeal." Id. As the BIA failedproperly to address the evidence before it, this Court recommendsthat the case be remanded to the BIA for reconsideration in lightof all the evidence relied upon by the hearing officer. SeeSt. Fort, 223 F. Supp. 2d at 346.
It bears noting that the BIA is required to grant significantdeference to the hearing officer's findings of fact andcredibility determinations. Hossain v. Ashcroft, 381 F.3d 29,32 (1st Cir. 2004) (noting "the BIA overturns a[hearingofficer]'s credibility findings, like other findings of fact, only if they are clearly erroneous"); Laurent v. Ashcroft,359 F.3d 59, 64 (1st Cir. 2004) (observing that where a hearingofficer makes a credibility determination and supports it withspecific findings, a reviewing court should "treat thatdetermination with great respect"). Under the "clearly erroneous"standard of review, the BIA "simply cannot supplant" the hearingofficer's perspective with its own, "notwithstanding that themembers of the [BIA], if writing on a pristine page, might havederived a different set of conclusions from the same underlyingfacts." Valentin v. Hospital Bella Vista, 254 F.3d 358, 367(1st Cir. 2001). "To the contrary," the hearing officer's "choicebetween two plausible, but conflicting, interpretations of afactual scenario cannot amount to clear error." Id.
C. Substantive Due Process Claim
In addition to asserting a procedural due process claim,Enwonwu also argues that the BIA's order of removal violates hissubstantive due process rights. Pet'r Mem. at 22-24. According toEnwonwu, the United States Government subjected him to the riskof violent retribution in Nigeria by inducing his cooperation asan informant through its promises of protection. Id. at 23-24;Tr. of 5/2/05 at 15. Having created this dangerous condition,Enwonwu argues, the executive assumed an affirmative duty not toplace him in a position where that danger would come to fruition. Pet'r Mem. at 23-24. The executive's affirmativeefforts to remove him combined with its deliberate indifferenceto the consequences of removal, Enwonwu argues, "shock theconscience." Id.
Before addressing the merits of this argument, counsel for theexecutive first makes a jurisdictional argument, pointing outthat under 8 U.S.C. § 1252(g), "no court shall have jurisdictionto hear any cause or claim . . . of any alien arising from thedecision or action by the Attorney General to . . . executeremoval orders against any alien under this Act." Executive'sSupplemental Mem. in Supp. of Mot. to Dismiss ("Exec. Mem. II")[Doc. No. 11] at 3. According to counsel for the executive,because Enwonwu does not claim any statutory entitlement torelief from the execution of his order of removal, his claim isbarred by section 1252(g). Id. at 3-4. This argument isunavailing.
Despite the language of section 1252(g), federal courts retain"subject matter jurisdiction over habeas petitions brought byaliens facing removal to the extent that those petitions arebased on colorable claims . . . that an alien's statutory orconstitutional rights have been violated." Carranza v. INS,277 F.3d 65, 71 (1st Cir. 2002) (emphasis added). Thus, becauseEnwonwu claims a violation of his constitutional rights, section1252(g) does not deprive this Court of subject matterjurisdiction over his habeas petition. Id. The executive's alternative contention that Enwonwu fails tostate a colorable claim within the scope of habeas review asrequired by Carranza is equally misplaced. Exec. Mem. II at4-8. Counsel for the executive is quick to highlight thedistinction between habeas review of constitutional errors andjudicial review of factual or discretionary determinations. Id.at 6-7. This distinction, however, is inapposite here asEnwonwu's substantive due process claim does not challenge anyfactual or discretionary determinations made by theBIA.17 Rather, Enwonwu attacks the constitutionality ofthe BIA's order of removal insofar as it violates his substantivedue process rights. Pet'r Mem. at 23-24. This is a proper subjectof habeas review. Carranza, 277 F.3d at 71.
1. State-Created18 Danger Theory of Due ProcessProtection
The Supreme Court in DeShaney v. Winnebago County Dep't ofSoc. Servs., 489 U.S. 189, 197 (1988), held that, "[a]s ageneral matter," the Due Process Clause does not obligate thegovernment "to protect an individual against private violence."This principle stems from the fact that the Due Process Clause"is phrased a limitation on the State's power to act, not as aguarantee of certain minimal levels of safety and security."Id. at 195 (emphasis added). Thus, "[i]ts purpose was toprotect the people from the State, not to ensure that the Stateprotected them from each other." Id. at 196. Accordingly, thefailure of state-employed social workers to protect a child fromviolent abuse at the hands of his father did not amount to aviolation of the child's substantive due process rights. Id. at191.
In DeShaney, however, "the Supreme Court also recognized adistinction between the case before it and other cases in whichthe state created the risk faced by the plaintiff. . . ."Soto v. Flores, 103 F.3d 1056, 1063 (1st Cir. 1997) cert.denied, 522 U.S. 819 (1997) (citation omitted, emphasis added).In other words, while
there is no constitutional right to be protected by the state against being murdered by criminals. . . . [i]f the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir. 1982) (Posnor,J.) (cited with approval by the First Circuit in Soto,103 F.3d at 1063 n. 6). Thus, in certain cases, "an affirmativeconstitutional duty to protect" an individual from privateviolence "may arise." Rivera v. Rhode Island, 402 F.3d 27, 34(1st Cir. 2005). In Soto, the First Circuit traced the history of this"state-created danger theory" of due process protection andobserved that it was first recognized as a viable mechanism forestablishing a constitutional claim in 1979. Soto,103 F.3d at 1064-65 (citing White v. Rochford, 592 F.2d 381, 383 (7thCir. 1979) as "finding Due Process Clause violation where`unjustified and arbitrary refusal of police officers to lend aidto children endangered by the performance of official dutyultimately resulted in physical and emotional injury to thechildren'" (alteration marks omitted)). The Soto court went onto observe that, "[i]n DeShaney, the Supreme Court acknowledgedthat state actions that create dangers or render private citizensmore vulnerable to harm could amount to constitutionalviolations." Id. at 1065 (citing DeShaney, 489 U.S. at 201).At the time Soto was decided in 1997, seven circuit courts ofappeals had recognized the state-created danger theory. Id.(citation omitted).19 Recently, in Rivera, the First Circuit revisited thestate-created danger theory of due process protection.402 F.3d at 343-8. The court initially observed that in order to establishany substantive due process claim, a plaintiff must first pointto a deprivation of a protected interest in life, liberty, orproperty. Id. at 33-34.20 Second, the court noted, a"plaintiff must show that the deprivation of [her] protectedright[s] was caused by governmental conduct." Id. at 34. Thisis easily demonstrated, the court noted, when a government actorpersonally inflicts the injury complained of. Id. Although therequisite governmental conduct is "much more difficult" toestablish when the injury is inflicted by a private individual,the court noted that there are "possible scenarios of governmentinvolvement with a private individual which amount to government conduct. . . ."Id.
The conduct complained of in Rivera was that the government"enhanced the danger posed by a private individual and thenfailed to protect against" it. Id. The Rivera court pointedout that in addition to demonstrating that the state created orenhanced a danger, a plaintiff must also show that state'sconduct was "so egregious, so outrageous, that it may be fairlysaid to shock the contemporary conscience." Id. at 36 (quotingCounty of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8(1998)). The court observed that conduct which is intendedunjustifiably to injure an individual is the type most likely torise to this level. Id. at 36 (citation omitted). "Of course,whether behavior is conscience shocking varies with regard to thecircumstances of the case. In situations where actors have anopportunity to reflect and make reasoned and rational decisions,deliberately indifferent behavior may suffice to `shock theconscience.'" Id. (citations omitted).
In Rivera, fifteen-year-old Jennifer Rivera ("Jennifer") wasshot and killed at the behest of Charles Pona ("Pona") to preventher from testifying at his murder trial. Id. at 30. Prior toher murder, Jennifer repeatedly was threatened with death shouldshe testify. Id. at 31. When Providence, Rhode Island policedetectives were notified of these threats, they "repeatedlyassured [Jennifer] she would be safe." Id. On the eve of trial, Jennifer was subpoenaed. Id. at 32. Jennifer informed stateattorneys and Providence police officers that she feared going tocourt "because she would be killed." Id. Again, Jennifer'sprotection was assured. Id. On the day before she was totestify, however, Jennifer was gunned down in front of her home.Id.
The complaint of Rivera's mother ("Rivera") alleged that "thedefendants undertook a duty to protect Jennifer by identifyingher as a witness . . . [,] promising to protect her if shetestified, and subpoenaing her to testify . . . `knowing that shewas reluctant to testify without such protection because of therepeated death threats she had received.'" Id. Rivera arguedthat "by failing to protect Jennifer the defendants acted with`deliberate indifference to [Jennifer's] constitutional rights'and that [their] conduct `shocks the conscience.'" Id. at 32-33(alteration in original in part, added in part). Because theFirst Circuit found "no cognizable claim of a violation of [any]constitutional right" alleged in the complaint, it upheld thedismissal of the claim. Id. at 33.
According to the court, the factual circumstances did "notamount to the type of state creation of risk contemplated" by thestate-created danger doctrine. Id. at 36. That is, the actionsof the defendants were not the kind of "affirmative acts" thatgive rise to the constitutional duty to protect. Id. at 37(quoting Souza v. Pina, 53 F.3d 423, 427 (1st Cir. 1995)) (emphasis added). Rivera argued that the state's two actions inidentifying Jennifer as a witness and taking her witnessstatement compelled her to testify and thus enhanced the dangerto her. Id. As the court observed, however, "[b]oth arenecessary law enforcement tools, and cannot be the basis toimpose constitutional liability on the state." Id.
The court reached the same conclusion regarding the state'saction of issuing a subpoena to Jennifer noting that "[e]verywitness involved in a criminal investigation and issued asubpoena to testify in a criminal proceeding faces some risk, andthe issuance of a subpoena cannot become the vehicle for aconstitutional claim against a state." Id. The only remainingaffirmative acts alleged in the complaint, the court observed,were the "defendants' assurances of protection." Id. Ifaccepted as true, the court noted, such promises may havesubjected Jennifer to an increased risk by "induc[ing] Jenniferinto a false sense of security, into thinking she had some degreeof protection from the risk, when she had none. . . ." Id.
The court concluded, however, that "merely rendering a personmore vulnerable to risk does not create a constitutional duty toprotect" because such risk did not cause the deprivationcomplained of. Id. at 37-38. A different ruling, the courtcommented, would permit an end run around DeShaney's coreholding which requires a deprivation by state actors. Id. at38. In short, because these actions were not the sort of"affirmative acts" on the part of the state which give rise to a duty toprotect, Rivera's claim failed. Id. at 38 (citation omitted).
In contrast to the facts in Rivera, the requisite"affirmative acts" were present in McIntyre v. United States,336 F. Supp. 2d 87, 115 (D. Mass. 2004) (Lindsay, J.). InMcIntyre, the estate of John McIntyre ("McIntyre"), agovernment informant, filed suit against several former FBIagents. 336 F. Supp. 2d at 94. The complaint alleged inter aliathat one of the FBI agents, John J. Connolly, Jr. ("Connolly"),disclosed McIntyre's status as a confidential informant to theorganized crime figures who were the subject of McIntyre'sinformation. Id. at 99. Such disclosure, the complaint alleged,resulted in McIntyre's 1984 murder at the hands of thoseindividuals. Id. The agent defendants in McIntyre, moved forjudgment on the pleadings as to some of the constitutionalviolations alleged in the complaint. Id. at 95 (seekingjudgment based on qualified immunity).
In addressing McIntyre's substantive due process claim, thecourt observed that under the state-created danger exception toDeShaney's general rule, "where the government's affirmativeacts render a citizen more vulnerable to private violence," thatindividual has a constitutional right to be protected from suchviolence. Id. at 113 (emphasis added). The court noted that theFirst Circuit requires government protection from privateviolence "only when the government's affirmative acts placethe person in a worse position than . . . had it not acted atall." Id. at 114 (alteration in original, internal quotation marksand citation omitted, emphasis added).21
The defendant FBI agents in McIntyre argued that they wereentitled to qualified immunity because, in 1984, a substantivedue process right under the state-created danger theory was notclearly established. Id.22 The court noted, however,that before considering the issue of qualified immunity, it hadto first determine "whether the alleged conduct of Connollyviolated that right as to McIntyre." Id. According to thecourt, this was "not a difficult analysis" because "revealing toknown murderers that one of their associates is an informant,cooperating with the government unquestionably endangers thesafety of that informant." Id.
"Therefore, when plaintiffs allege that, in disclosing theinformant status of McIntyre to Bulger and Flemmi, Connolly actedaffirmatively to put the life of McIntyre in jeopardy, theyhave sufficiently alleged a violation by Connolly of McIntyre'ssubstantive due process right to be protected from the danger ofthe government's own creation." Id. (emphasis added); seealso Monfils v. Taylor, 165 F.3d 511, 520 (7th Cir. 1998)(affirming jury verdict finding substantive due process violation understate-created danger theory on similar facts). Thus, based on hisaffirmative acts, it could be fairly said that Connolly wentbeyond merely rendering McIntyre more vulnerable to harm andcaused the deprivation complained of.
Counsel for the executive argues that Enwonwu's state-createddanger claim fails for the following three reasons: (1) aremovable alien has no substantive due process right to remain inthe United States; (2) executive actions that do no more thancarry out statutory commands cannot be the basis for asubstantive due process violation; and (3) under the FirstCircuit's decision in Rivera, the government has no duty toprotect Enwonwu. Exec. Mem. II at 25-26. The Court addresses eachof these arguments in turn.
First, counsel for the executive argues that even if the FirstCircuit recognizes the state-created danger postulate of dueprocess protection, this exception to DeShaney's general rule"must be read as limited to the non-law enforcement context ofliability for deprivation[s] of [c]onstitutional rights withinthe meaning of 42 U.S.C. § 1983." Id. at 12. Such a limitationfollows, argues counsel, because Enwonwu has "no substantive dueprocess right not to be deported." Id. (citing Harisiades v.Shaughnessy, 342 U.S. 580, 586-87 (1952)) (additional citationsomitted). This argument, however, misses the mark. Enwownu doesnot claim a substantive due process right to remain in the United States, but the right to live and the right to be free from statesanctioned torture, the danger of which, he alleges, theexecutive created. Pet'r Mem. at 22-23. Put simply, that Enwonwumight remain in the United States should his claim prevail doesnot transform it into one seeking that result as matter ofsubstantive due process.
Next, the executive points out, in the context of enforcementof final orders of removal, the First Circuit has held that"[e]xecutive actions that do no more than comport with validstatutory commands simply are not the stuff from whichsubstantive due process violations can be fashioned." Exec. Mem.II at 14 (quoting Herrera-Inirio v. INS, 208 F.3d 299, 309(1st Cir. 2000) (citation omitted)). Here too, counsel's argumentis misguided. First, the petitioner in Herrera-Inirio did notclaim any fundamental right encompassed by the Due Process Clausebut instead the "`right' to have a state law definition of`conviction' applied in removal proceedings." 208 F.3d at 308(describing the petitioner's argument as "wishful thinking").
Second, even though "[e]xecutive actions that do no more thancomport with valid statutory commands" cannot be the basis for asubstantive due process claim, Enwonwu's claim stems fromexecutive actions which do much "more than" that. Id. at 309(emphasis added). The substantive due process claim asserted byEnwonwu relies on the BIA's order of removal combined with: (1)the executive's affirmative solicitation of his services as an informant; (2) the executive's assurances of protection; and (3)the executive's indifference to the risk of danger removalcreates. Pet'r Mem. at 23-24. Thus, were the order of removal thesole basis for Enwonwu's claim, counsel's argument would begermane. Because Enwonwu's substantive due process claim relieson additional executive actions "outside" the mere enforcementof the removal order, however, that argument is unavailing.Herrera-Inirio, 208 F.3d at 309.
Counsel for the executive maintains further that Enwonwu'sclaim is doomed to fail under the First Circuit's decision inRivera. Exec. Mem. II at 15-25; Exec. Mem. III at 3-11. First,counsel argues, Enwonwu cannot establish any constitutionalviolation on its part because any danger awaiting Enwonwu was notstate-created. Exec. Mem. III at 4. That is, counsel for theexecutive contends Enwonwu's cooperation with the DEA was done so"voluntarily and sensibly in a wholly successful effort to avoidany sentence to incarceration. . . ." Id. at 5. Accordingly,counsel argues, Enwonwu's "own voluntary actions were theproximate cause of any risk of danger to himself." Id. at 6.
While Enwonwu acknowledges that his cooperation was a result ofhis own conscious choice, the danger facing him was nonethelessstate-created because the executive induced that cooperation byassuring his protection. That is, although Enwonwu agreed to aidthe DEA in bringing his confederates to justice, that cooperationwas conditioned on the DEA's assurances that his life was not at stake. Tr. of 5/2/05 at 15. Enwonwu knewthat the Nigerian drug traffickers with whom he had dealt wereextremely dangerous individuals and that cooperating with the DEAwould put his life at risk. Id. This understanding wascorroborated by the testimony of Professor Watts which was fullycredited by the hearing officer. Ex. 6 at 4.
In Enwonwu's own words, he would have been the "damndest fool"to cooperate without a representation from the DEA that his lifewould protected. Tr. of 5/2/05 at 15. While the counsel for theexecutive understandably suggests that it was Enwonwu's owndesire to avoid incarceration in the United States that inducedhis cooperation, this Court accepts Enwonwu's testimony that ifprotection of his life was not assured, "going to jail andgetting . . . deported back to Nigeria was a little price topay." Id. at 16.
Alternatively, the counsel for the executive argues that anydanger awaiting Enwonwu was not state-created because the publicawareness of his former status as a confidential DEA informantwas caused by Enwonwu himself when he volunteered his story tothe media and failed to file his court actions under seal. Exec.Mem. III at 13-15; Exec. Mem. II at 24. Indeed, because therecent media coverage of Enwonwu's plight was not a result ofexecutive conduct, such publicity cannot be the basis for anystate-created danger. Rivera, 402 F.3d at 38. Enwonwu, however, has still carried his burden of establishing that the executivecreated the danger of retribution that he faces.
Even if Enwonwu's status as a confidential informant had notbeen made public, that status could nonetheless be inferred fromthe events attendant to the 1986 controlled heroin purchase.Because DEA agents were already on the scene ready to arrest theindividuals participating in the controlled buy, it was obviousthat the DEA had been made aware of the transaction in advance.Moreover, because Enwonwu was never detained or tried with theother two individuals who were arrested,23 the reasonableinference was available that Enwonwu had been "in on" thearrest.24
Moreover, even if Enwonwu's status as a confidential informantremained unknown, the executive still subjected him to the dangerhe faces by instructing him to double-cross the Nigerian drugtraffickers for whom he was working. That is, at the behest ofthe DEA, Enwonwu informed the Ohio individual that he would notdeliver the heroin to the Ohio individual's henchmen at theagreed upon price of $5,000. Tr. of 4/29/05 at 35. Rather,Enwonwu was made to insist on double that amount. Id. Suchperfidy caused the Ohio individual to become irate and to threaten Enwownu. Id. 35-36. The Ohio individual specificallyexpressed his outrage over the fact that Enwonwu had becomegreedy after "they" had given him his "first opportunity" in thedrug trade. Id. at 36. Because it is clear that this individualwas tied to the Nigerian individuals who sent Enwonwu to theUnited States, it can reasonably be inferred that the Ohioindividual brought his treachery to their attention. Those sameindividuals had possession of both Enwownu's car andidentification documents.
In this Court's assessment, Enwonwu has successfully carriedhis burden of establishing that the executive, in inducing hiscooperation as an informant, created a danger of violentretribution at the hands of the individuals he betrayed.Furthermore, the executive's affirmative act of removing him toNigeria where those individuals can easily access him issufficient to trigger a constitutional duty to protect him.Rivera, 402 F.3d at 37 (emphasis added). Although counsel forthe executive contends that Enwonwu has failed to show that suchdanger "has not dissipated," Exec. Mem. III at 5, it cites noprecedent from within or outside the First Circuit which placesthat burden on Enwonwu. Rather, Enwonwu's burden is todemonstrate that the state created a danger, which he has done.Rivera, 402 F.3d at 34-35; Hasenfus v. LaJeunesse,175 F.3d 68, 73 (1st Cir. 1999); Soto, 103 F.3d at 1064-65 (emphasisadded). The burden of rebutting that showing with proof that suchdanger has dissipated, it seems, logically should fall on the executive.The executive has not made that showing by a fair preponderanceof the record evidence.
In any event, a conclusion that such danger has dissipated isdirectly at odds with the explicit finding of Hearing OfficerShapiro, whose 1999 Convention Against Torture decision observedthat Enwownu faced a present danger of violent retributiondespite the passage of time since his cooperation. Ex. 6 at 4-5(emphasis added). This finding was not disturbed by the BIA's May30, 2003 decision which focused narrowly the issue of theenforcement of Nigerian drug laws in relation to Enwonwu'sConvention Against Torture burden. See BIA Decision of5/30/03.25 Counsel for the executive has introduced noevidence to rebut the hearing officer's finding to which thisCourt assigns significant weight. Syed v. Ashcroft,389 F.3d 248, 251 (1st Cir. 2004) (noting that a party seeking to overturnthe factual findings of an immigration hearing officer mustdemonstrate that the contrary evidence presented was "socompelling that no reasonable fact finder could fail to" reach adifferent conclusion (citations and internal quotation marksomitted)); Hossain, 381 F.3d at 32 (noting the credibility findings of an immigration hearing officer will only beoverturned if "clearly erroneous").
Counsel for the executive next points out that in Rivera thecourt noted that "necessary law enforcement tools" such asidentifying witnesses and taking witness statements "cannot bethe basis to impose constitutional liability on the state." Id.According to counsel, "the use of informants and confidentialsources is exactly the [same] kind of `necessary law enforcementtool'" and cannot provide a basis for Enwonwu's claim. Exec. Mem.II at 23 (quoting Rivera, 402 F.3d at 37). This argumentsuffers from the same shortcomings as counsel's earlier argumentregarding the use of removal orders as a basis for substantivedue process claims. That is, such law enforcement tools are notthe "basis" for Enwonwu's claim. Rather, as mentioned above,Enwonwu's claim is based on the executive's pattern of behaviorwhich includes its affirmative solicitation of his services as aninformant and (1) the executive's assurances of protection; (2)the executive's order of removal; and (3) the executive'scomplete indifference to the risk of danger that removing himcreates despite its assurances of protection.
Counsel for the executive observes further that in Rivera,the substantive due process claim was "based upon immediatethreats of death to an innocent 15-year old witness, who wassubpoenaed for testimony and explicitly promised protection ofher life by the state if she testified, yet who was not protected by the state and was murdered as a result." Exec. Mem. II at 22.If a state-created danger claim was not recognized in that case,counsel suggests, one should certainly not be recognized here.Id. If the facts of this case were analogous to those inRivera, counsel would be correct. This case, however, isdistinguishable from Rivera.
In Rivera, the court concluded that the state-created dangerclaim failed because the actions of the defendants were "not thekind of affirmative acts by the state that would give rise tothe constitutional duty to protect." 402 F.3d at 37 (internalquotation marks and citations omitted, emphasis added). In otherwords, merely rendering an individual "more vulnerable" to harmis not enough to trigger a constitutional duty to protect. Id.Thus, if, as in Rivera, the executive, after promising toprotect Enwonwu from being killed by those it induced him intobetraying, simply failed to do so, Enwonwu would have no claimbecause such unkept promises merely rendered him more vulnerableto harm and would not "cause" the deprivation. Id.
Enwonwu's claim is distinguished, however, by the added factthat the executive now seeks affirmatively to place him in anenvironment where he will be readily accessible to those wishingto harm him (i.e., it seeks to "throw? him into a snake pit").Soto, 103 F.3d at 1063 n. 6 (citation omitted). Suchaffirmative acts go beyond the realm of simply rendering him morevulnerable and can be fairly said to have causal effect. SeeRivera, 402 F.3d at 37-38. Thus, this case is more akin to McIntyre wherethe necessary elements of a state-created danger claim werepresent because of the affirmative disclosure of McIntyre'sidentity as a confidential informant to the very people he wasinforming on. 336 F. Supp. 2d at 113-14.
Similarly, if in Rivera, rather than simply failing toprotect Jennifer from the associates of Pona, the state removedher against her will from a comparatively safe environment to onein which those individuals could easily get their hands on her, adifferent analysis would have been in order. 402 F.3d at 38.Under those circumstances, Rivera would impose a duty toprotect Jennifer because by placing her in close proximity tothose bent on harming her, the police would have committed "thekind of affirmative acts" triggering such a duty. Id. at 37(internal quotation marks omitted).
Although Enwonwu has established that removal will cause adeprivation of his protected rights by affirmatively subjectinghim (without protection) to a state-created danger, to prevail onhis substantive due process claim, such conduct must "shock theconscience of the court." Id. at 35-36. Here, the executive'sdeliberate indifference to the risk of death and torture itsactions have caused meets this "onerous requirement". Id. at 36("In situations where actors have an opportunity to reflect andmake reasoned and rational decisions, deliberately indifferentbehavior may suffice to `shock the conscience.'"); McIntyre, 336 F. Supp. 2d at 108 (noting that official acts falling somewherebetween "negligently inflicted harm" and "conduct intended toinjure" may be found to be conscience shocking depending on thecircumstances); Builes v. Nye, 239 F. Supp. 2d 518, 526 (M.D.Pa. 2003) (holding that in its longstanding attempt to remove analien, the government's deliberate indifference to danger ofretribution resulting from the alien's cooperation with lawenforcement "shocks the conscience").
For the executive to subject Enwonwu to the risk of deadlyretribution by inducing his cooperation though promises ofprotection and then force him to face that retribution is utterlyegregious and intolerable. The Constitution simply cannot permitthe executive to endanger the life of an alien, promise toprotect him, and then cast him aside like refuse when he is nolonger useful.26 The executive's suggestion that Enwonwualone bears responsibility for his fate because of his decisionto smuggle heroin into the United States demonstrates afrightening callousness. Exec. Mem. II at 24-25; Exec. Mem. III at 10. Whilethe seriousness of Enwonwu's crime is not to be overlooked, thatcrime does not license the executive to disregard hisconstitutional rights much less his human dignity. Furthermore,that Enwonwu's crime rendered him removable makes removal onthese facts no less unconstitutional. This is a man's life.
Because Enwonwu has demonstrated that his removal to Nigeriawill deprive him of a constitutionally protected interest whichshocks the conscience, he has shown that removal will violate hissubstantive due process rights. Rivera, 402 F.3d at 33-34.Accordingly, this Court would grant Enwonwu's habeas corpuspetition and enjoin his removal to Nigeria until such time as theexecutive can prove that the danger facing Enwonwu hasdissipated. While this Court reaches its conclusion based solelyon First Circuit law, cases from outside the First Circuitgranting habeas relief in similar circumstances provide usefulanalogies.
In Rosciano v. Sonchik, No. CIV 01-472-PHX-FJM, 2002 U.S.Dist. LEXIS 25419, *2-3 (D. Ariz. Sept. 10, 2002) (unpublishedopinion), Maria Rosciano ("Rosciano"), a citizen of Colombia, wasarrested for her role in a controlled heroin transactionconducted on her property. Id. at *3. At the request of FBIagents investigating the case, Rosciano agreed to provideinformation regarding the identity of the leader of the drug ringin Colombia. Id. Rosciano also cooperated by helping convict other parties to the drug transaction. Id. In exchange for hercooperation, Rosciano received a more lenient sentence for herrole in the transaction. Id.
After Rosciano finished serving her sentence, the INS commencedremoval proceedings against her. Id. at *4. During her removalproceedings, the immigration hearing officer determined thatRosciano's life was in danger from the drug traffickers inColombia as a result of her identification of a "majortrafficker" and her role in convicting two other traffickers.Id. Because Rosciano had "committed a particularly seriouscrime," however, "she fit into an exception to the statutoryprotection against removal." Id. at *4-5 (citing8 U.S.C. §§ 1231(b)(3)(A), 1231(b)(3)(B)(ii)). Accordingly, Rosciano wasordered removed to Colombia. Id. at *5.
After the BIA affirmed the hearing officer's decision, Roscianofiled a petition for a writ of habeas corpus. Id. at *5.Rosciano argued that "having taken her into custody andinduc[ing] her into becoming an informant, the government has anobligation under the Fifth Amendment not to send her to a certaindeath." Id. at *7. That is, she argued, her case fell withinthe danger-creation exception to DeShaney's general rule. Id.at *8. The executive responded that "because [it] did not causethe dangerous drug lords to exist or introduce [Rosciano] to suchpeople, and because [Rosciano] assisted the government voluntarily, this is not a situation covered by thedanger-creation exception." Id. at *12.
The court granted Rosciano's petition. Id. at *16. Accordingto the court, the executive created the danger facing Roscianoby: (1) r[unning] the sting operation in order to place [her] ina position in which she would cooperate;" (2) refusing to assistRosciano in her effort to avoid removal even though it knewremoval would place her in danger; and (3) "actively attemptingto remove her" despite its knowledge of the danger awaiting her.Id. at *12-13. Accordingly, the court enjoined the governmentfrom removing Rosciano to Colombia until such time as it couldshow "that she is not likely to be murdered there." Id. at *17.
In Builes v. Nye, the United States District Court for theMiddle District of Pennsylvania granted an alien's habeaspetition on similar grounds. 239 F. Supp. 2d at 526. In Builes,Jorge Builes ("Builes"), a citizen of Colombia, had been indictedfor conspiracy to distribute heroin. Id. at 521. Following hisarrest, Builes agreed to cooperate in the prosecution of twomembers of the drug trafficking ring for which he had worked.Id. In exchange for his cooperation, Builes was given a morelenient sentence. Id. Six months into Builes' sentence, he wasplaced in expedited removal proceedings and ordered deported.Id. During his removal proceedings, the immigration hearing officerconcluded that Builes' life was in danger from Colombian drugtraffickers who had threatened him. Id. Additionally, thehearing officer found that the traffickers had the power to carryout such threats due to "the political conditions in Colombia."Id. at 522. The hearing officer subsequently granted Builesdeferral of removal under 8 U.S.C. § 1231(b)(3). Id. Followingan appeal by the INS, the BIA reversed the hearing officer'sdecision. Id. Prior to the BIA's decision, Builes' brother andsister were murdered in Colombia. Id.
Relying on the state-created danger doctrine, Builes' habeaspetition alleged that the order of removal violated hissubstantive due process rights. Id. at 525-26. The courtobserved that under Third Circuit precedent, that doctrine hasfour elements: (1) "the harm must be foreseeable and fairlydirect"; (2) the executive conduct must shock the conscience; (3)there must exist "some relationship between the state and theplaintiff"; and (4) the state actors must use "their authority tocreate an opportunity that otherwise would not have existed forthe third party's crime to occur." Id. at 526 (quoting Niciniv. Morra, 212 F.3d 798, 809-10 (3d Cir. 2000) and Kneipp v.Taylor, 95 F.3d 1199, 1209 (3d Cir. 1996)) (internal quotationmarks omitted). The court found that each of these elements hadbeen established. Id. The first element was met because Builes had already receiveddeath threats and his brother and sister had "probably" beenmurdered by drug traffickers. Id. Builes had established thesecond element because the INS "in its longstanding attempt toremove him" was deliberately indifferent to the known threat tohis life. Id. The third element was satisfied because Buileswas in the executive's custody. Id. Builes had demonstrated thefinal element because returning him to Colombia created anopportunity that would not otherwise exist for the drugtraffickers to kill him. Id. Accordingly, the court grantedBuiles' petition and enjoined his removal until such time as hecould be removed to Colombia or some other country without beingkilled. Id.; Builes v. Nye, 253 F. Supp. 2d 818, 820-21(M.D. Pa. 2003).
In Edwards v. INS, No. 03-286, 2003 U.S. Dist. LEXIS 15572,at *2 (E.D. Pa. Aug. 21, 2003) aff'd, 100 Fed. Appx. 126 (3dCir. 2004) (unpublished opinion),27 Richard Edwards("Edwards"), a citizen of Jamaica, was convicted of several drug traffickingoffenses. As a result of a 1991 conviction, Edwards was orderedremoved from the United States. Id. at *3. Edwards, in hishabeas petition, claimed that he would be tortured and possiblykilled by political opponents if removed to Jamaica. Id. at *5.Edwards argued that his removal should be enjoined under thestate-created danger theory. Id. at *10. Although Edwards'petition was denied on several procedural grounds, the court alsoopined that "there is no authority for extension of the[state-created danger] doctrine to removal proceedings like theone conducted here." Id. at *18.
Specifically, the court noted that the two cases cited byEdwards, Builes and Rosciano, "are readily distinguishablebecause the risk demonstrated in those cases came about as aresult of the United States Government asking the petitioners toserve as government informants and to provide information on theactivities of certain individuals still connected with thepetitioners' countries of origin." Id. at *16 (emphasis added)."By doing so," the court observed, "the government placed the petitioners in danger in their countries of origin." Id. Thecourt continued: Thus, the issue in those cases was whether the United States government affirmatively placed petitioners in danger by coercing or inducing them to provide intelligence information on drug traffickers in their countries of origin. In the instant case the petitioner was not asked to provide any information on individuals in his country of origin or to do anything else on behalf of or at the insistence of the government. Given this important factual difference, the court concludes that, at the very least, absent such conduct by the government, i.e., asking a petitioner to serve as an informant and to provide information that would put him or her at risk in his or her own country, the state created danger doctrine does not apply to a removal proceeding. Unlike the petitioners in Builes or Rosciano, the danger that potentially awaits petitioner in Jamaica is not centered or enhanced by any request on the part of the United States government that petitioner act as a government informant or do anything else.Id. at *16-17.
The following year in Lawson v. Gerlinski,332 F. Supp. 2d 735, 743 (M.D. Pa. 2004), the Middle District of Pennsylvaniacontinued to recognize the viability of the state-created dangerdoctrine in the alien-informant context. In Lawson, Patrick St.Aubyn Lawson ("Lawson"), a citizen of Jamaica, had been indictedon marijuana trafficking charges. Id. at 738. Lawson pleadedguilty and was sentenced to an 87-month prison term. Id. Whileserving his sentence, the INS initiated removal proceedingsagainst Lawson. Id. After removal proceedings had begun,Lawson's sentence was reduced to 48 months based on hiscooperation that helped secure an indictment against one individual and guilty pleas from three other individuals. Id.at 738-39.
During his removal proceedings, Lawson produced a statementfrom an Assistant United States Attorney that he "and his familywere at risk of retaliation as a result of [his] cooperation."Id. at 739. The immigration hearing officer, however, orderedLawson's removal to Jamaica. Id. Before Lawson's appeal wasdenied by the BIA, he wrote to the INS seeking "deferred action."Id. Lawson based his request "upon his fear for his life ifreturned to Jamaica based upon the assistance he provided to thegovernment to secure convictions of co-conspirators." Id. TheINS denied Lawson's request. Id. at 740.
Lawson's habeas petition asserted that removal to a countrywhere his life was in danger violated his Fifth Amendmentsubstantive due process rights. Id. In addressing this claim,the court first acknowledged that "all aliens within theUnited States are `persons' entitled" to substantive due processprotection. Id. at 742 (citing The Japanese Immigrant Case,189 U.S. 86, 100-01 (1903) and Ngo v. INS, 192 F.3d 390, 396(3d Cir. 1999)). The court next observed that Lawson hadpresented "some evidence of a risk of substantial bodily harm ordeath if removed to Jamaica." Id. at 743. Specifically, thecourt noted, Lawson produced evidence that he exposed himself andhis family to a risk of harm as a result of his cooperation withlaw enforcement. Id. at 739, 743. The INS argued that Lawson's claim should fail because heknowingly exposed himself to the risk of harm in exchange for areduced sentence. Id. at 743 n. 11. Having made such a choice,the INS contended, "Lawson cannot now contend that it is theUnited States government that is exposing him to a risk of deathupon his return to Jamaica." Id. As the court observed,however, "there is an issue of fact as to whether Lawsonknowingly exposed himself to the peril he now claims," as the"record [wa]s unclear as to whether the prosecuting authoritiesinduced cooperation from Lawson. . . ." Id. (emphasis added).Thus, the court held, a state-created danger claim may beavailable where the government affirmatively places anindividual in danger by "coercing or inducing them to provideintelligence information on drug traffickers" in their homecountries. Id. (citation omitted, emphasis added).
According to the court, "[w]hile this evidence is not ascompelling as that which prompted granting relief in Builes andRosciano, the evidence is sufficient to accord Lawson anopportunity to more fully substantiate his fears and claim."Id. at 743. On that basis, the court ordered that Lawson bereleased and that an evidentiary hearing be scheduled on hissubstantive due process claim. Id. at 746-47; see alsoMomennia v. Estrada, 268 F. Supp. 2d 679, 683-84 (N.D. Tex.2003) (recognizing that state-created danger doctrine maypotentially prohibit removal of an alien-informant where government affirmatively places alien indanger by inducing cooperation).
Again, this Court does not rely on the foregoing cases as abasis for any of its legal conclusions, which are entirely basedon First Circuit law. Indeed, because none of the cases discussedabove involved affirmative assurances of protection from thedanger arising from cooperation, they are readily distinguishablein that the danger was less clearly "state-created." This Courtdiscusses these cases, however, to demonstrate that substantivedue process protection under these circumstances is not novel.
Indeed, even had no court previously granted relief insituations like these, this Court would still be prepared to doso. As a distinguished fellow district court judge has commented: Trial judges have the obligation to maintain the pressure for sound interpretation when they see grave and unnecessary injustice. Occasionally, they will be reversed in a harsh opinion, but that possible slight to their egos cannot and should not be permitted to inhibit them. Trial judges protected by Article III are, like their appellate court colleagues, expected to use their independence to help guarantee a fair and effective system of justice.Hon. Jack B. Weinstein, Every Day is a Good Day for a Judge toLay Down His Professional Life for Justice, 32 Fordham Urb. L.J.131, 155 (2004).
This Court should make clear that it does not recommend therecognition of a new type of due process protection for aliens facing removal to "more dangerous" nations. That aliens are oftendeported to such countries is simply a consequence of thenecessary immigration laws of the United States and triggers noconstitutional concern. See Herrera-Inirio, 208 F.3d at 309.This Court limits its recognition of due process protection tothe unique facts of this particular case in which (1) theexecutive created the specific danger facing Enwonwu by inducinghis cooperation with promises of protection from the very sourceof harm that now threatens him; (2) the course of executiveconduct culminating in removal will affirmatively place him inthe zone of danger; and (3) the executive's deliberateindifference meets the onerous burden of shocking the conscienceof the court.
D. Habeas Jurisdiction Following the Enactment of Section 106of the REAL ID Act of 2005
Verbal and political attacks on an independent federaljudiciary are as old as the republic, and as healthy. See,e.g., Mark R. Levin, Men in Black: How the Supreme Court isDestroying America (Regency Publishing 2005). We learn from ourhistory, recoiling from extremism. Each generation must strikeanew the balance between Congress, the President, and theJudiciary.
Today, the most sophisticated attack comes replete with lengthyintellectual credentials. See Larry D. Kramer, The PeopleThemselves — Popular Constitutionalism and Judicial Review(Oxford Univ. Press 2004), and Mark Tushnet, Taking the Constitution Away from the Courts (Princeton Univ. Press 1999)."Popular constitutionalism" is a well-argued critique of judicialreview which apparently contends that whenever one disagrees witha court's constitutional ruling, one is free to ignore it unlessone is a direct party to the lawsuit. There is a devastatingriposte by Larry Alexander and Lawrence B. Solum at 118 Harv. L.Rev. 1594 (2005) which exposes "popular constitutionalism" asnothing more than rule by executive fiat.
Still, words matter and Congress, by adjusting the jurisdictionof the lower federal courts, can effectively strip disfavoredclasses from full access to justice and thereby restrict, if notextinguish, cherished individual rights and liberties.28This is known as "rights stripping." This Court has had occasionto point it out before: [The Antiterrorism and Effective Death Penalty Act] and its cousin . . . the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) (codified in scattered sections of the U.S.C.), are recent examples of "jurisdiction stripping" legislation, a legislative technique that descends directly from bills proposed in the 1980s to strip federal courts of jurisdiction over abortion and busing, Note, Powers of Congress and the Court Regarding the Availability and Scope of Review, 114 Harv. L. Rev. 1551, 1552 (2001). As commentators have noted, "jurisdiction stripping" is, in effect, "rights stripping," Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129, 129-30 & n. 1 (1981) (arguing that such measures unduly burden constitutional rights); contra Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 U.C.L.A.L. Rev. 233, 261-69 (1988) (discussing study on parity of state and federal courts), because it removes, in a single stroke, the nuanced views of the 674 federal district judges from the rich common law tradition of evolutionary statutory interpretation and leaves the matter solely to twelve circuit courts of appeal and the Supreme Court. While society — acting through Congress — recoiled from thus rights stripping women and blacks, it had no such hesitancy concerning felons and aliens. Sadly, . . . resort to this technique [has] become more frequent with the concomitant erosion of the very rights a truly independent judiciary was designed to protect.Gonzalez v. United States, 135 F. Supp. 2d 112, 115 n. 5 (D.Mass. 2001) (original alterations omitted, alterations added).
Enwonwu's case provides a stark and stunning example of "rightsstripping" and confirms Alexander and Solum's observation that,practically, "popular constitutionalism" is nothing more than aeuphemism for rule largely by executive fiat.
It is constitutional bedrock that "[t]he judicial Power of theUnited States, shall be vested in one supreme Court, and in suchinferior Courts as the Congress may from time to time ordain andestablish." U.S. Const. art. III, § 1. There is but a singlelimit on the Congress' broad powers to establish and disestablishinferior courts, expand or trim their jurisdiction,29 andmove jurisdiction from one such court to another. That single limit is the American jury. "The Trial ofall Crimes, except in Cases of Impeachment, shall be byJury. . . ." U.S. Const. art. III, § 2, cl. 3. "In Suits atcommon law, where the value in controversy shall exceed twentydollars, the right of trial by jury shall be preserved. . . ."U.S. Const. amend. VII.30 These constitutionalcommands necessarily require the existence of jury trial courtsto give them effect.
The American jury, that most vital expression of directdemocracy extant in America today, thus functions as a practicaland robust limitation on congressional power. It is as crucialand central a feature of the separation of powers among theCongress (Art. I), the President (Art. II), and the Judiciary(Art. III), as is the Supreme Court. See Jackie Gardina,Compromising Liberty: A Structural Critique of the Sentencing Guidelines, 38 U. Mich. J.L. Reform 345, 377 (2005) ("[T]hejury can serve . . . as a structural protection within theconstitutional scheme."). Indeed, within her proper fact-findingsphere, an American juror is the constitutional equal of thePresident, a Senator or Representative, or the Chief Justice ofthe United States.
On the criminal side, for example, it is congressionalmarginalization of the jury's fact-finding role that rendered theUnited States Sentencing Guidelines unconstitutional. UnitedStates v. Booker, 125 S. Ct. 738, 752 (2005). On the civilside, those lawsuits that are the functional equivalent of"[s]uits at common law" that were tried to juries at the time ourConstitution was adopted, e.g., patent cases,31 muststill be so tried. Tull v. United States, 481 U.S. 412, 417(1987) (Brennan, J.).
1. What Congress Did Despite its readiness to issue a decision in this case, thisCourt now lacks jurisdiction to do so following the May 11, 2005enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B.119 Stat. 231, 302 ("REAL ID Act").32 Buried within theREAL ID Act are amendments to the Immigration and Nationality Act("INA"). Most notably, section 106 of the REAL ID Act ("Section106") explicitly limits habeas corpus review of removal orders tothe courts of appeals: Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act [the Immigration and Nationality Act], except as provided in subsection (e) [of 8 U.S.C. § 1252].REAL ID Act, § 106(a)(1)(B)(5).
Section 106 took effect upon its enactment and applies "tocases in which the final administrative order of removal,deportation, or exclusion was issued before, on, or after thedate of enactment of this division." Id. at § 106(b). Section106 requires district courts to transfer to the appropriate courtof appeals, all pending habeas petitions, such as Enwonwu's,which challenge removal orders: If an alien's case, brought under section 2241 of title 28, United States Code, and challenging a final administrative order of removal, deportation, or exclusion, is pending in a district court on the date of the enactment of this division, then the district court shall transfer the case (or the part of the case that challenges the order of removal, deportation, or exclusion) to the court of appeals for the circuit in which a petition for review could have been properly filed under section 242(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this section [Section 106 of the REAL ID Act], or under section 309(c)(4)(D) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note). The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that subsection (b)(1) of such section shall not apply.
Id. at § 106(c) (emphasis added).
Although criminal aliens such as Enwonwu were previouslyprohibited from seeking direct review of removal orders in thecourts of appeals by 8 U.S.C § 1252(a)(2)(C), the REAL ID Actamends section 1252(a)(2)(C) to read that "[n]othing in [this]subparagraph . . . which limits or eliminates judicial review,shall be construed as precluding review of constitutional claimsor questions of law raised upon a petition for review filed withan appropriate court of appeals in accordance with this section."Id. at § 106(a)(1)(A)(iii). Counsel for the executive has movedto transfer this case to the United States Court of Appeals forthe First Circuit pursuant to Section 106(c). Executive's Mot. toTransfer [Doc. No. 15].
2. What Congress Said The Conference Committee Report on the REAL ID Act reveals thatSection 106 was inspired in large part by Congress'dissatisfaction with the Supreme Court's decision in INS v.St. Cyr, where it ruled that the Illegal Immigration Reform andImmigrant Responsibility Act of 1996 ("IIRIRA") and theAntiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")did not deprive the federal district courts of jurisdiction over28 U.S.C. § 2241 habeas petitions challenging removal ordersresulting from criminal convictions. 533 U.S. 289, 314 (2001);H.R. Conf. Rep. No. 109-72, 151 Cong. Rec. H2813-01 (May 3, 2005)available at 2005 WL 102581 ("Committee Report") atH2872-H2873. According to the Committee Report, St. Cyr had theundesirable effect of "allow[ing] criminal aliens to delay theirexpulsion from the United States for years." Id. at H2872.
Furthermore, under St. Cyr, "criminal aliens [were] able tobegin the judicial review process in the district court, and thenappeal to the circuit court of appeals." Id. "Criminal aliensthus [could] obtain review in two judicial forums, whereasnon-criminal aliens may generally seek review only in the courtsof appeals." Id. "Not only is this result unfair andillogical," the report noted, "but it also wastes scarce judicialand executive resources." Id. "Finally," the report commented,"the result in St. Cyr has created confusion in the federalcourts as to what immigration issues can be reviewed, and whichcourts can review them." Id. According to the Committee Report,Section 106 of the REAL ID Act "address[es] the anomalies created by St.Cyr and its progeny by restoring uniformity and order to thelaw." Id. at H2873.
Thus, Congress has solidified its long-standing effort toensure that "only the courts of appeals may review removalorders." Id. at H2872. As the Committee Report points out,Congress' goal has long been to "abbreviate the process ofjudicial review of deportation orders and to eliminat[e] theprevious initial step in obtaining judicial review" in thedistrict courts. Id. (internal citations and internal quotationand alteration marks omitted). According to the report, Section106 will "give every alien one day in the court of appeals"thereby "satisfying constitutional concerns" because such reviewis "an `adequate and effective' alternative to habeas corpus."Id. at H2873 (citation omitted).
3. What the Drafters Meant33
While Congress represents that "abbreviat[ing] the process ofjudicial review" leaves room for an "adequate and effectivealternative to habeas" review, id., the REAL ID Act is actuallyintended to, and has the practical effect of, "rights stripping."This Court's own examination of District of Massachusetts casesrevealed that there are no less than 68 pending section 2241 habeas corpus petitions.34 Many of those petitions werefiled by aliens challenging their orders of removal. See, e.g.,Castillo-Vasquez v. Winn, 05-40070-PBS; Dahrouj v.Ashcroft, 05-11939-PBS; DeArujo v. Gonzales, 05-10968-RCL;Perez v. Gonzales, 05-10895-DPW; Gitau v. Chadbourne,05-10803-GAO; Osmon v. McDonough, 05-10771-PBS;Kibanda-Bullock v. INS, 05-10741-PBS; Medero-Gonzales v.Department of Homeland Sec., 05-10624-MLW; Bernard v. UnitedStates, 05-10467-RWZ; Espady v. Department of Homeland Sec.,05-10466-NG; Chacon v. Chadbourne, 05-10465-MEL; Abreu Cabrera v. Chadbourne, 05-10410-NG; Gallego v.Ashcroft, 05-10321-GAO; Smith v. MacDonald, 04-30205-MAP;Phillip v. Hodgson, 04-11896-MLW; Kaweesa v. Ashcroft,04-10513-WGY; Pinto v. McDonough, 04-10404-MEL; Grigous v.Attorney General, U.S.A, 04-10229-MAP; Arias v. Ashcroft,04-10171-NG; Matos v. Winn, 034-0224-FDS; Jacquet v.Chadbourne, 03-12457-RWZ; Pena-Muriel v. Ashcroft,03-10984-MEL; Jean v. INS; 03-10890-MEL; andOrumwensse-Lawrence v. Farquharson, 03-10673-MLW.
Pursuant to Section 106(c) of the REAL ID Act, the executivehas already filed motions to transfer several of those actions tothe First Circuit. These petitioners are now without the benefitof the district courts' experience in conducting searchingevidentiary hearings and listening to their first-handnarratives. See Developments in the Law, The Law of Prisons,115 Harv. L. Rev. 1838, 1865 (2002). Instead, they will each nowbe afforded their "one day in the court[s] of appeals," CommitteeReport at H2873, judicial bodies more accustomed to reviewing"cold record[s]" for legal error than hearing testimony andevaluating evidence. The Law of Prisons, 115 Harv. L. Rev. at1865 (citation omitted). One has to wonder if the REAL ID Act'sjurisdiction limiting provisions will make even constitutionallymeritorious cases, such as Enwonwu's, harder to win. Cf. MargoSchlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1556,1644 (2003) (observing that the Prison Litigation Reform Act's restrictions of inmates' access to federal courts make evenconstitutionally meritorious cases harder to file and win).
4. The Drafters Disparage and Distrust the District Courts
The REAL ID Act imposes a chokehold on the free and properexercise of the writ of habeas corpus. But it does more. Itreveals the drafters' deep distrust of the district courts, thenation's sole jury trial court.35 Consider: of thepending habeas petitions in this District alone that involvealiens, upwards of 32 require immediate transfer to the Court ofAppeals. Some of these petitions — Enwonwu's is an example —had already engaged significant judicial resources. Others nodoubt had not.36 Assume, to be conservative, that each ofthese cases had engaged only a single day of district court judicial time. Howmany such cases are there nationwide? With 94 judicial districts,most have less judicial business than the District ofMassachusetts, but many have significantly higher caseloadsinvolving aliens than does this District. The Districts ofArizona, Central and Southern California, Middle and SouthernFlorida, Eastern Louisiana, New Mexico, Eastern New York, andWest Texas are prime examples. If one estimates that in theentire United States there are but 1,000 such cases now to betransferred to start afresh in twelve courts of appeals, then the waste of the taxpayers' money approximates$25,000,000.00.37 This is a high price to pay forcongressional distrust of a district court judiciary thought tobe "too soft on immigrant aliens." Congress instead has placedits faith in the executive and the 200 "S" visas he has todistribute.
5. No Jury Trial For Enwonwu
So it is that had Enwonwu a right to a jury trial on his habeaspetition, the present reallocation of jurisdiction as between thedistrict courts and the courts of appeal would beunconstitutional as depriving Enwonwu of that constitutionalright. It is only the district courts — our great American trialcourts — that are empowered to summon jurors,28 U.S.C. §§ 1863(a), 1866, empanel them, id. at §§ 1863(a), 1866, 1867, andconduct jury trials. Id. at § 1861. In short, theconstitutional guarantee of the right to jury trials alsoguarantees a vigorous judicial branch by necessarily guaranteeingthat America has jury trial courts in addition to "one supremeCourt." U.S. Const. art. III, § 1. Unfortunately for Enwonwu, heis not entitled to have his habeas petition heard before a jury.Though phrased as a mere limitation of jurisdiction, Section 106 of the REAL ID Actactually has the very real effect of limiting Enwonwu's rights.
Although Congress is empowered to limit the district courts'jurisdiction, both "Congress and the courts are limited . . . inhow they may restrict [the] availability of the writ of habeascorpus." Brackett v. United States, 206 F. Supp. 2d 183, 184n. 3 (D. Mass. 2002). Such writ is constitutionally protected.U.S. Const. art. I, § 9 cl. 2. Thus, "courts must be cognizantthat interpreting [the REAL ID Act] to pinch too tightly onaccess to the writ may create significant constitutionalconcerns." Brackett, 206 F. Supp. 2d at 184 n. 3 (citing St.Cyr, 533 U.S. at 301 n. 13; Note, The Avoidance ofConstitutional Questions and the Preservation of Judicial Review:Federal Court Treatment of the New Habeas Provisions, 111 Harv.L. Rev. 1578 (1998); Gerald Neuman, Habeas Corpus, ExecutiveDetention, and the Removal of Aliens, 98 Colum. L. Rev. 961(1998); and Richard H. Fallon, Jr., Applying the SuspensionClause to Immigration Cases, 98 Colum. L. Rev. 1068 (1998)). Theissue whether Section 106 unconstitutionally restricts the writof habeas corpus as a functional matter is one best addressed bythe courts of appeal once they see the practical effect of thiswholesale dumping of these cases onto their already overburdeneddockets. Therefore, this Court has no choice but to transfer thiscase in accordance with the Congressional mandate. III. CONCLUSION
To the extent Enwonwu's petition [Doc. No. 1] challenges merelythe duration of his detention, it is DENIED.
The Executive's Motion to Transfer this case pursuant toSection 106(c) of the REAL ID Act of 2005 [Doc. No. 15] isALLOWED. Accordingly, it is hereby ordered that this action beTRANSFERRED forthwith to the United States Court of Appeals forthe First Circuit.
In transferring this case, this Court makes the followingrecommendations:
This case should be REMANDED to the BIA for reconsideration inlight of all of the evidence relied upon by the hearing officer'sDecember 16, 1999 Convention Against Torture determination.
To the extent Enwonwu's petition challenges his order ofremoval on substantive due process grounds, it should be ALLOWED.
If, after reconsideration, the BIA reinstates its order ofremoval, this Court recommends that Enwonwu's removal to Nigeriabe enjoined until such time as the executive can establish thatthe danger of retribution resulting from his cooperation with theUnited States Government has dissipated.
This Court recommends that it be ordered that any futureproceedings in this matter be filed under seal. Finally, this Court recommends that Enwonwu be released at onceand the case be administratively closed.
SO ORDERED and RECOMMENDED.
1. Both parties agreed that this Court may assign to theadministrative record of proceedings before the Review Office andBIA, whatever evidentiary weight it deemed appropriate, includingthe transcripts of proceedings. Tr. of Hr'g of 4/27/05 ("Tr. of4/27/05") [Doc. No. 17] at 9.
2. Enwonwu believes that the package was torn by the DEA whenit tested the contents of the package. Id. at 33.
3. Agent Lemon later informed Enwonwu that when the DEAattempted to locate Lieutenant Charles, it learned that the phonenumber he had been reached at no longer existed and that he wasno longer staying at the hotel where Enwonwu called him. Tr. of5/2/05 at 20.
4. Enwonwu called the number on one occasion when he thoughtsomeone was following him. Ex. 6 at 133. He spoke to Agent Lemonwho told him to call back in ten minutes if he was still beingfollowed. Id. A few moments later, Enwonwu realized that he wasnot being followed and he and Lemon agreed that it had been a"false alarm." Enwonwu Aff. ¶ 117; Ex. 6 at 133.
5. Enwonwu was in a position to supply this informationbecause while living in Nigeria he was the public relationsmanager of the largest hotel in the city of Onitsha. Ex. 6 at135. "All the big army officers around the area and the big drugcartels live in Onitsha. . . ." Id. Further, Enwonwu claimsthat many of the "big drug dealers" frequented the hotel. Id.at 127.
6. According to DEA records, Enwonwu was paid a total of$1,600 for his services. Hr'g of 4/27/05, Ex. A, DEA Report of11/6/86 ("Ex. A").
7. Enwonwu also testified that at one of his meetings with theINS, he was given an I-485 adjustment of status form. Tr. of4/29/05 at 44. Enwonwu maintains that the form was already filledout with his information and that he was asked simply to sign it.Id. Enwonwu claims that he was then told that his "green cardwould be ready in a short while." Id.
8. According to counsel for the executive, "[i]t appears" froma review of Department of Homeland Security records that "one ofthe men was deported, re-entered illegally, and was deportedagain, most recently to Ghana. The location of the other isunknown at present." Executive's Second Supplemental Mem. ("Exec.Mem. III") [Doc. No. 23] at 8-10 n. 7.
9. Professor Watts received his Bachelor of Science degree in1972 from the University of London and received both a Master'sDegree and, in 1979, a Ph.D. in geography from the University ofMichigan. Id. at 208. Professor Watts was also a researchfellow at the University of Ibadan in Nigeria. Id.
10. According to Watts, he agreed to testify because he wasparticularly concerned about human rights abuses going on inNigeria, a country he has lived in and "care[s] deeply about."Ex. 6 at 228.
11. According to the hearing officer, he discredited thisaccount because of Agent Lemon's testimony that "he certainlywould have remembered if a high level military official were tohave been identified" by Enwonwu. Ex. 6 at 2.
12. Ms. Mgbojikwe is Enwonwu's sister with whom he wasresiding. Id. at 10 n. 9.
13. According to Enwonwu, each time he renewed his employmentauthorization, he was required to provide his current address.Pet'r Mem. at 10-11.
14. Apparently, the BIA ignored the hearing officer'sadditional conclusion that even if Enwonwu was not subject toarrest and prosecution under Nigerian law based on hisUnited States conviction, it remained "more likely than not" that"because of the interrelationship of the drug traffickers, themilitary, and the [g]overnment, that retribution would be stillsought against him because of his cooperation with the [DEA]"and that torture would result. Ex. 6 at 4-5 (emphasis added). Incontrast, the case relied on by the BIA for its ruling, did notinvolve any claim that torture was likely as a result of thepetitioner's cooperation with the United States Government as aninformant. See Matter of M-B-A-, 23 I. & N. Dec. 474 (BIA2002). Moreover, six members of the thirteen-member en banc boardthat decided Matter of M-B-A-, strongly dissented from itsruling that the likelihood of torture had not been established byevidence regarding the enforcement of Nigerian drug laws. Id.at 480-87 (Rosenberg, Board Member, concurring in part,dissenting in part); Id. at 487-90 (Schmidt, Board Member,dissenting).
15. That Agent Lemon could not secure an "S" visa for Enwonwuis not surprising in light of the fact that no more than 200 suchvisas can be issued per year. 8 U.S.C. § 1184(k)(1).
16. Alternatively, the First Circuit noted in Hernandez thata petitioner's failure timely to exhaust administrative remedieswill not bar a habeas petition where, as here, the petitionerfaces immediate deportation and "his failure to timely exhaustmay have been caused by the very incompetency complained of."Sayyah, 382 F.3d at 26 (quoting Hernandez,238 F.3d at 54-55). Here, Enwonwu's failure timely to file a motion to reopenwas caused, he claims, by the defect in service. Pet'r Mem. at21.
17. Indeed, as mentioned above, the BIA did not have even theinstitutional competence to consider Enwonwu's substantive dueprocess argument. Ravindran, 976 F.2d at 762.
18. Although termed the "state-created danger theory," theanalysis that follows applies equally to state and federalgovernmental actors because the same substantive due processanalysis applies under both the Fifth and Fourteenth amendments.See, e.g., Reno v. Flores, 507 U.S. 292, 301-02 (1993).
19. In making his argument under the state-created dangerexception to DeShaney's general rule, Enwonwu also cites aseparate "special relationship" exception to DeShaney underwhich the state is obligated to protect an individual fromprivate violence when it restrains that individual against his orher will. Pet'r Supplemental Mem. in Support of Writ of HabeasCorpus ("Pet'r Mem. II") [Doc. No. 14] at 6, 8 (citationomitted). As the counsel for the executive correctly points out,however, under the "special relationship" exception, it is onlythe harm to which an individual's custody at the hands of thestate renders her vulnerable that the state must thereforeprotect against. Exec. Mem. III at 7 n. 6. Therefore, any dangerawaiting Enwonwu in Nigeria would not fall under the "specialrelationship" exception which is inapposite here. See Rivera,402 F.3d at 34.
20. In this case, Enwonwu contends that his forced removal toNigeria will deprive him of his life as well as his libertyinterest in being free from government sanctioned torture. Pet'rMem. at 23-24. Enwonwu's interest in his own life is a protectedinterest. See, e.g., Rivera, 402 F.3d at 34. Equally so,Enwonwu's interest in being free from torture is constitutionallyprotected. See, e.g., Furman v. Georgia, 408 U.S. 238, 319(1972) (Marshall, J., concurring) (stating "there is no doubtwhatever that in . . . the Eighth Amendment, our Founding Fathersintended to outlaw torture"); see also Kane v. Winn,319 F. Supp. 2d 162, 193-94, 197-200 (D. Mass. 2004) (emphasizing thewell-understood principle that the Eighth Amendment, as well as"customary international law," prohibit torture). Although thesealleged deprivations will not result until after the enforcementof Enwonwu's removal order, he (logically) is permitted to seekpreenforcement relief to prevent such constitutional violationsfrom occurring. See Auburn Police Union v. Carpenter,8 F.3d 886, 889 (1st Cir. 1993) (seeking declaratory relief priorto enforcement of act).
21. This is merely a different way of stating Rivera's laterholding that simply rendering an individual more vulnerable toharm is not enough; there must also be a causal link between thegovernment conduct alleged and the deprivation complained of.Rivera, 402 F.3d at 34, 38.
22. The court ultimately agreed with this assessment.McIntyre, 336 F. Supp. 2d at 115.
23. As reflected in the court records from their case, thosetwo individuals were tried together.
24. Counsel for the executive itself acknowledges this much.Exec. Mem. II at 25.
25. Thus, the suggestion by counsel for the executive that theBIA "rejected" the notion that Enwonwu would be tortured orkilled is simply wrong. Exec. Mem. at 16.
26. Nor is Enwonwu's case an isolated incident as theextraordinarily limited availability of the "S" visademonstrates. Consider: "Jane Doe," a pseudonym, is a young, single mother. A drug addict, she dealt cocaine to support her habit. Eventually apprehended, she too cooperated and testified in open court so that the government might secure a conviction of an important drug lord from her homeland. In light of her cooperation, the government recommends a short sentence. As an alien, however, the [executive] proposes to deport her back to her homeland where, the [executive] admits, she will almost certainly be killed, perhaps after torture.United States v. Green, 346 F. Supp. 2d 259, 264 (D. Mass.2004).
27. See proposed Fed.R.App.P. 32.1(a) (proscribingrestrictions on the citation to unpublished opinions that are notsimilarly imposed on published opinions). Proposed subsection (a)reads: No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like, unless that prohibition or restriction is generally imposed upon the citation of all sources.Id. As already required by some circuits, Subsection (b) of theproposed rule provides that a copy of an unpublished opinioncited in a court document and not available on electronicdatabases must be submitted to the court. See, e.g., 1st Cir.R. 32.3(a)(3). But see generally Niketh Velamoor, Proposed Federal Rule ofAppellate Procedure 32.1 to Require that Circuits Allow Citationto Unpublished Opinions, 42 Harv. J. on Legis. 561 (2004)(identifying potential shortcomings of the proposed rule).
28. As the House Majority Leader Tom Delay recently remarked,"We set up the courts. We can unset the courts." Miara v.First Allmerica Fin. Life Ins. Co., — F. Supp. 2d —, 2005 WL1463299, at *43 n. 57 (D. Mass. June 16, 2005) (citationomitted).
29. For example, a recently proposed federal bill seeks tolimit federal courts' jurisdiction over questions arising underthe Defense of Marriage Act. Marriage Protection Act of 2005,H.R. 1100, 109th Cong. § 2 (2005). Another bill seeks to curtailfederal courts' jurisdiction over questions pertaining to theconstitutional validity of the Pledge of Allegiance. PledgeProtection Act of 2005, H.R. 2389, 109th Cong. § 2 (2005).Knowledgeable observers uniformly predict these bills are goingnowhere. See, e.g., Judith Resnik, Judicial Selection andDemocratic Theory: Demand, Supply, and Life Tenure, 26 CardozoL. Rev. 579, 646 (2005). The reason, however, may lie not in alack of congressional will or doubts as to constitutionality, butrather in the fact that if the federal courts are stripped ofjurisdiction in any of these areas, these fields will be leftentirely to the judiciaries of the 50 states, see, e.g.,Murphey v. Lanier, 204 F.3d 911, 914 (9th Cir. 2000), i.e.,judiciaries which the Congress plays no institutional role inconfirming or funding.
30. Efforts to water down the plain language of theConstitution continue to this day. Developments in the Law, TheCivil Jury, 110 Harv. L. Rev. 1408, 1493-1503 (1997) (discussingproposals to limit the jury's role in complex civil cases); seealso Note, The Twenty Dollars Clause, 118 Harv. L. Rev. 1665,1686 (2005) (suggesting that the United States has "outgrown" thephilosophy undergirding the Seventh Amendment).
31. In Amgen, Inc. v. Hoechst Marion Roussel, Inc.,126 F. Supp. 2d 69, 80 (D. Mass. 2001), this Court explained thatbecause the Seventh Amendment requires patent infringement claimsbe tried to a jury, courts must be especially careful to avoidconflating the "legal explication" required of a claimconstruction or Markman hearing "with the fact finding that theSeventh Amendment ultimately reserves for the American jury." Assuch, because the Markman hearing in that case arose at thesummary judgment stage, this Court conducted "two hearingsindependently of each other — the Markman hearing being heldprior to and entirely independently of the summary judgmenthearing." Id. Although combining such hearings was permissible,this Court expressed its fear that doing so "cuts against thespirit of both Markman itself and its recognition of theimportance of the fundamental divide between fact and law. . . ."Id. at 80-81.
32. The REAL ID Act is part of the much broader EmergencySupplemental Appropriations Act for Defense, the Global War onTerror, and Tsunami Relief, 2005, Pub.L. No. 109-13,119 Stat. 231 (May 11, 2005).
33. The Court uses the word "drafters" here to refer to thosemembers of Congress instrumental in inserting section 106(c) intothe "must-pass" wartime appropriations bill.
34. As this Court has written to the Chair of the CourtAdministration and Case Management Committee of the JudicialConference, Despite all the efforts devoted to our in-house [electronic database] product, PACER, it's not very good. I just returned from the national 2005 Managing Electronic Records Conference. Two of the speakers referred to our system as "pathetic PACER." Academic commentators agree. [Gillian K. Hadfield, Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition, 57 Stan. L. Rev. 1275, 1286 n. 37 (2005) (noting shortcomings of PACER, namely its single suit code filing format and its inability to address filing errors); Elizabeth Warren and Jay Lawrence Westbrook, Contracting Out of Bankruptcy: An Empirical Intervention, 118 Harv. L. Rev. 1197, 1208-09 (2005) (indicating "[t]he PACER system created special difficulties for separating Chapter 7 business cases from Chapter 7 consumer cases, requiring substantial? time and effort to select a sample . . .").] Indeed, when I first became aware of the mandatory transfer of pending alien removal habeas petitions to the courts of appeals under the REAL ID Act, as a district chief I tried to find out how many such pending cases we had in our district. "Can't be done," said my systems people. It was only after a hand count of all pending habeas petitions identified by case category number that we could figure this out. PACER simply is not a very usable data base.William G. Young, Letter to Hon. John W. Lungstrum, June 9,2005.
35. Other recent legislation confirms the depth and breadth ofthis rift. See Green, 346 F. Supp. 2d at 283-289 (discussingthe Feeney Amendment); Bankruptcy Abuse Prevention and ConsumerProtection Act of 2005, Pub.L. No. 109-8, § 1233, 119 Stat 23(2005) (parties may opt to bypass the district judge altogetherto attempt to bring a bankruptcy case before the courts ofappeal).
36. For a statistical overview of the resolution of habeaspetitions in this District as compared with the national average,see Kane v. Winn: In this District, the average resolution time for cases decided on the merits is lower than the national average, but the average resolution times for other habeas cases, and for all categories of habeas cases combined, are higher. In 2001, 102 habeas corpus petitions challenging state court convictions were filed in this District. As of April 30, 2004, 37 of those petitions (36.27%) had been decided on the merits, taking an average of 415 days to resolve. That is 62 days faster than the national average. Fifteen (14.71%) had been dismissed for failure to exhaust state remedies, and on average it took 387 days for those petitions to be dismissed. Thirty-seven (36.27%) had been terminated for other reasons (usually failure to pay a filing fee or to file an amended petition), and took an average of 196 days to resolve. Thirteen (12.75%) remain pending. If the Court presumes that those 13 scatter evenly around July 2, 2001 (the midpoint of the year), and that those cases will be resolved by the end of this year, those cases will take an average of 1,278 days to resolve. If the Court presumes that all 13 will be dismissed without reaching the merits, then this District takes an average of 458 days to dispose of habeas petitions without reaching the merits, 190 days more than the national average. Because it is difficult to know how accurate this presumption is, a comparison of overall disposition times may be more informative. The national average is 345 days to dispose of a habeas petition. The average in this District is roughly 443 days, and will become longer if the unresolved cases are not resolved this year. As the Court discusses below, the length of resolution to some degree reflects the laudable practice of staying proceedings while a petitioner exhausts unexhausted claims. It is at least possible that this District takes longer than average to resolve habeas cases in part because judges here engage in this practice more consistently than in other districts.319 F. Supp. 2d at 217 n. 87.
37. Current estimates place the fully distributed costs of aUnited States district court session at $25,000 per court day.See Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374,423-24 (1982) for the methodology employed in making thiscalculus. See also United States v. Alfonso,284 F. Supp. 2d 193, 204 n. 4 (D. Mass 2003); Chappee v. Commonwealth,659 F. Supp. 1220, 1227 n. 9 (D. Mass. 1987), rev'd on othergrounds by Chappee v. Vose, 843 F.2d 25 (1st Cir. 1988).