Rosciano v. Sonchik: District Court Grants Habeas Petition to Prevent Life-Threatening Removal

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

ROSCIANO V. SONCHIK: DISTRICT COURT GRANTS HABEAS PETITION TO PREVENT LIFE-THREATENING REMOVAL
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The federal district court in Arizona has permanently enjoined the removal of a habeas petitioner until such time as the government can show that she is not likely to be murdered were she to be removed to Colombia. The court based its ruling on the constitutional duty of the government to protect an individual whom the government has affirmatively placed in danger.

The petitioner in this case, Maria Rosciano, is a Colombian national who became a lawful permanent resident of the United States in 1984. In 1996 her brother was murdered because of his role in a failed drug transaction. After that murder, the Federal Bureau of Investigation used confidential agents to befriend Rosciano in an effort to learn the identity of "El Indio," a major drug lord involved in the failed drug transaction. Ultimately, in 1997, Rosciano was arrested after the FBI informants arranged a drug purchase on Rosciano's property from persons introduced to them by her.

After the arrest, Rosciano fully cooperated with the authorities, both by helping convict the drug sellers she had put in contact with the informants and by providing information about the identity of El Indio. She called relatives in Colombia, and eventually her sister provided a name, which Rosciano passed on to authorities. Her sister in Colombia was informed that El Indio would seek revenge, and, shortly after, she died in a suspicious accident when her car's brakes failed.

Rosciano pled guilty to the drug charge, and federal prosecutors asked that she be given a shorter sentence for her cooperation and because "the risk of danger as a result of her assistance is high." However, the prosecutors declined to help her obtain a visa, assuring her that she was unlikely to face deportation if the judge in the criminal case recommended that she not be deported (which he did).

On the completion of her criminal sentence in 1999, the INS initiated removal proceedings against Rosciano. The immigration judge found that Rosciano's "life is in danger from the drug traffickers in her native Colombia and that it is likely she will be killed if returned to Colombia because she helped United States law enforcement officials learn the identity of a major trafficker and she helped convict two other traffickers." Nonetheless, the IJ concluded that she did not qualify for withholding of removal because her conviction was for a particularly serious crime. The Board of Immigration Appeals affirmed the IJ's decision ordering her removal.

Rosciano then filed a habeas petition in federal district court under 28 U.S.C. section 2241. The district court granted a temporary restraining order, then a preliminary injunction, and finally a permanent injunction. The court based its ultimate resolution of the case on the government's duty to Rosciano under the Fifth Amendment to the U.S. Constitution.

The court found that if the government were to remove Rosciano to Colombia, this would "place her in a more dangerous situation than that in which the government found her." The court noted that it was uncontested that "if removed to Colombia, Petitioner faces a grave risk of death as punishment for having assisted the government in its investigation into the identity of El Indio." In reaching its ruling, the court relied on Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). In that case, a police officer had arrested a woman for drunk driving, impounded her car, and then left her alone in an area with a high crime rate at 2:30 a.m., where she was subsequently raped. The Ninth Circuit found that the police officer had violated the woman's substantive due process rights by placing her in greater danger as a result of his actions. Similarly, in Munger v. City of Glasgow Police Dept., 227 F.3d 1082 (9th Cir. 2000), the court found that police officers who ejected a drunken driver from his car on a cold night violated the Fifth Amendment. The driver, who was wearing only jeans and a t-shirt, was abandoned by the officers and died of hypothermia.

The district court in this case rejected the government's claim that Rosciano's cooperation with authorities was voluntary and therefore not the government's responsibility. The court found this argument contrary to Ninth Circuit precedent, noting that in Munger the driver had voluntarily consumed the alcohol (i.e., voluntarily undertaken the action that placed him in a perilous situation). The court also found that government actions—first, its running a sting operation to cause her arrest, and, second, its refusing to help her obtain a visa and instead erroneously representing that a judicial recommendation against deportation would protect her—affirmatively placed Rosciano in greater danger.

The court also discussed Wang v. Reno, 81 F.3d 808 (9th Cir. 1996). In Wang the Ninth Circuit found that substantive due process prohibited the deportation of the petitioner, after a long pattern of governmental misconduct resulted in a situation where his removal to China would place his life in danger. The court in this case concluded that, while the circumstances in Wang are distinguishable, the appellate court decision does provide support for the court's ruling.

Rosciano v. Sonchik, No. CIV 01-472 PHX-FJM (D. Az. Sept. 10, 2002).