must have ordered, consented to or known about and failed to prevent the
torture. See id.
The BIA concluded that there was not a significant likelihood of
torture because conditions in Bulgaria today are sufficiently different
from those in 1990, when petitioner left. The standard of review
applicable to this finding is the "substantial evidence" standard, under
which this Court must accept the BIA's finding unless any reasonable
adjudicator would be compelled to conclude to the contrary. See
8 U.S.C. § 1252 (b)(4)(B); see also Singh v. INS, 134 F.3d 962, 966
(9th Cir. 1998) (holding, with respect to review of BIA's asylum denial,
"substantial evidence" requires petitioner to present compelling evidence
that no reasonable factfinder could agree with the BIA).
Petitioner presents evidence that Bulgarian police severely beat her
for her activism on behalf of ethnic Turks. The Court agrees with the BIA
that this constitutes evidence of past torture. Petitioner's evidence
also demonstrates, however, that the government regime in Bulgaria has
since changed from communist to socialist-democrat and that a new
constitution has been adopted. Petitioner presents reports that police
brutality and human rights abuses persisted into 1999, as well as a
letter from petitioner's brother that the Bulgarian police have asked
about her whereabouts. Such evidence could support a finding that
petitioner would suffer torture in the future if she returns to Bulgaria.
A reasonable factfinder, however, could also conclude that petitioner did
not meet her burden of proving that future torture was more likely than
not to occur. When the government changed hands from the communists to
socialist-democrats, the government's policies regarding political
activism, police brutality, and civil liberties changed as well. Although
the reports describe individual incidents of police brutality, they also
describe investigations and prosecutions of police officers and attempts
through an independent judiciary to curb these abuses. In addition, there
is no evidence that petitioner could not relocate to another part of
Bulgaria, thus distancing petitioner from corrupt elements of the police
force. Under the deferential "substantial evidence" standard of review,
the BIA's finding regarding future torture must stand. See Arkansas v.
Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)
(holding a court reviewing an agency's findings under the substantial
evidence standard "should not supplant the agency's findings merely by
identifying alternative findings that could be supported by substantial
evidence"). Accordingly, petitioner's claim that the denial of relief
from removal violates the UNCAT is denied.
3. Ineffective Assistance of Counsel
Petitioner claims she is attempting to set aside her underlying state
felony convictions, used as the basis for her removal, on grounds of
ineffective assistance of counsel. The Court liberally construed this
claim as a constitutional challenge to the petitioner's removal under
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) (holding Sixth Amendment guarantees effective assistance of
counsel). To succeed under Strickland, however, petitioner must show that
counsel's performance was deficient and that the deficiencies were so
serious as to deprive the defendant of a fair trial, a trial whose result
is reliable. See id. at 687-88, 104 S.Ct. 2052. Petitioner does neither.
Indeed, petitioner nowhere explains how counsel was ineffective or what
impact any ineffectiveness might have had on the verdict. As a result,
ineffective assistance of counsel claim must be denied.
4. Bond Hearing
Petitioner claims that she was detained in county jail pending her
removal. Petitioner claims that her right to due process under the Fifth
Amendment was violated because this' detention was indefinite and she did
not receive an individualized bond hearing. See, e.g., Szeto v. Reno,
No. C 00-0531 ORB, 2000 WL 630869, at **6-7 (N.D.Cal. May 5, 2000)
(finding indefinite mandatory detention provision unconstitutional).
Since petitioner has been removed to Bulgaria and is no longer detained
in county jail, this claim is moot. The relief petitioner seeks by way of
this claim is an order requiring the INS to conduct an individualized
bond hearing to determine whether she could be released from county jail
until her removal to Bulgaria. Now that petitioner is in Bulgaria, a bond
hearing would serve no purpose. Moreover, petitioner' has failed to
demonstrate any continuing collateral consequences of her lack of a bond
hearing. See Spencer v. Kemna, 523 U.S. 1, 7-12, 118 S.Ct. 978, 140
L.Ed.2d 43 (1998) (holding habeas petition is moot if there are no
continuing collateral consequences of conviction). Accordingly, this
claim is denied.
In light of the foregoing, the petition for a writ of habeas corpus is
DENIED. All pending motions are terminated and the clerk shall close the
IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.