Diaz v. Holder
United States Court of Appeals for the Tenth Circuit
2012 WL 5359295 (2012)
Jose Manuel Diaz (plaintiff) came to the United States (defendant) from Guatemala on a six-month visitor visa when he was seven years old and overstayed his visa. Thirteen years later, the Department of Homeland Security (DHS) sought to remove Diaz and issued a notice to appear. Before the hearing, Diaz facilitated the purchase of 16 ecstasy pills between a buyer and a seller for $320. Diaz was present for the exchange, and he took the pills from the seller and passed them to the buyer. Diaz was convicted of a drug-trafficking crime and given a suspended sentence of 18 to 36 months in prison and three years of probation. Diaz sought withholding of removal under both the Immigration and Nationality Act (INA) and the Convention against Torture (the convention). Diaz’s parents and an expert in Central American gangs testified about general conditions and their belief that Diaz would likely be harmed or targeted by corrupt government officials or gangs for use in drug trafficking, for which refusal could result in torture. An immigration judge (IJ) denied withholding of removal under INA § 241(b)(3) but granted withholding of removal under the convention, holding that Diaz’s conviction was not for a particularly serious crime. A noncitizen was barred from receiving withholding of removal if the attorney general determined that the noncitizen was a danger to the United States due to a conviction for a particularly serious crime based on a final judgment. However, a drug-trafficking crime might not have been particularly serious if six extraordinary conditions were met: (1) a small amount of drugs, (2) a small amount of money, (3) a noncitizen’s peripheral involvement, (4) a lack of violence or threats, (5) no involvement from organized crime or terrorists, and (6) no impact on juveniles. The IJ found that Diaz met all six conditions. The IJ also found Diaz eligible for deferral of removal because it was more likely than not that Diaz would be tortured if returned to Guatemala. The DHS appealed, and the Board of Immigration Appeals (BIA) reversed and ordered Diaz removed. Unlike the IJ, the BIA determined that two conditions were not met, because $320 was not a small amount of money and Diaz’s involvement was not peripheral. The BIA ruled that Diaz had not shown a likelihood of torture. Diaz petitioned for review of the BIA’s denial of protection under the convention only. Diaz argued that he was entitled to withholding of removal or at least deferral of removal.
Rule of Law
Holding and Reasoning (Hartz, J.)
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