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Purveegiin v. Gonzales

June 1, 2006

BATSAIHAN PURVEEGIIN, PETITIONER
v.
ALBERTO R. GONZALES,* ATTORNEY GENERAL OF THE UNITED STATES; MICHAEL CHERTOFF,* SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; RESPONDENTS *SUBSTITUTED PURSUANT TO FED. R. APP. P. 43(C)



On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A74 879 850) Immigration Judge Walter A. Durling.

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) February 14, 2006

Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.

OPINION OF THE COURT

The Board of Immigration Appeals, in a series of decisions over the course of several years, denied numerous requests by Batsaihan Purveegiin for withholding of removal under the Convention Against Torture (CAT).*fn1 Purveegiin claimed that, if deported to his native country of Mongolia, he would be imprisoned for outstanding student loan debts and his criticisms of the Communist Party, and that he would be denied essential medical treatment while detained. An immigration judge granted Purveegiin relief from removal, but the Board, acting through a single member, reversed.

Purveegiin now petitions for review. He asserts that the Board erred factually in discounting his allegations, legally in concluding that his imprisonment would not constitute torture, and procedurally in refusing to refer the case to a three-member panel for resolution. We agree with the last point, and will remand to the Board for further proceedings.

I.

A.

Purveegiin was working as an artist in communist Mongolia during the late 1980s when he came to the attention of the prime minister. The official admired his work, and became Purveegiin's patron. He helped Purveegiin to obtain a student visa and arranged for him to receive approximately $20,000 in government funds to attend art school in New York City. Purveegiin entered the United States in 1991 and commenced his studies later that year.

Things did not go as planned. He quit school in 1992, for reasons that are not clear from the record. He was diagnosed with diabetes in 1995, and placed on insulin treatment. He was convicted by New York authorities of petty larceny, criminal impersonation, and sexual abuse in 1995 and 1996. The prime minister who had been his patron was arrested and detained, and other Mongolian officials, now in power, informed Purveegiin that the $20,000 was a loan, not a grant, and must be repaid.

He sought support from the Mongolian consulate, but the results were decidedly negative. The chief consular official not only denied his request for additional funds but also threatened that, if Purveegiin did not pay back the money, he would be imprisoned. Purveegiin responded, perhaps unwisely, by criticizing the Communist Party, further angering the consular official.

B.

He fared no better with United States authorities. The Immigration and Naturalization Service charged Purveegiin in 1997 as an alien subject to deportation for failure to maintain the conditions of admission, 8 U.S.C. § 1227(a)(1)(C)(i), and for convictions of crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), (ii). Purveegiin conceded removability, but sought withholding of removal under the CAT.*fn2

1.

A hearing on the application for withholding of removal was held in October 1999. Purveegiin recounted his entry into the United States, his failed art studies, and his conflicts with Mongolian officials. He testified that he feared imprisonment if returned to Mongolia and argued, relying on country reports from the United States Department of State and Amnesty International, that he would be denied medical care if detained. He stressed that he required daily insulin injections and that, without treatment, he would die in a very short time.

The immigration judge granted withholding of removal. The judge found, based on Purveegiin's testimony and the country reports, that Purveegiin more likely than not would be imprisoned upon his return to Mongolia, on account of his defaulted loan obligations and anti-communist comments, and would be deprived of necessary medical treatment while in detention. Moreover, the judge concluded that, because "government officials . . . know . . . of the abysmal conditions in the prison cells . . . and would [not] be ignorant of the severe pain to [Purveegiin] or any other prisoners," the pain and suffering caused to Purveegiin would be "specifically intended" by those officials.*fn3

2.

The Board, acting through a single member, reversed. It disagreed with the immigration judge's findings that Purveegiin would be jailed upon his return to Mongolia and would be denied medical care. It stated, without elaboration, that "there is no convincing evidence that [Purveegiin] will be imprisoned or even briefly detained" if deported to Mongolia. The Board further concluded that "it is not established that [Purveegiin] would not be provided with medication in Mongolian prison facilities." It did not address the ...


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