United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
Cristian Aguasvivas filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241 and a complaint for
declaratory and injunctive relief, claiming that he faces the
prospect of being extradited for a crime he did not commit to
a country whore he will be tortured. The Court grants Mr.
Aguasvivas' Petition for a Writ of Habeas Corpus,
dismisses the Extradition Complaint for failure to comply
with the relevant Treaty; finds that Mr. Aguasvivas'
extradition would violate the United Nations Convention
Against Torture and Other Cruel, Inhumane or Degrading
Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85
("CAT"), given the final Board of Immigration
Appeals ruling; and orders Mr. Aguasvivas released from
December 6, 2013, Mr. Aguasvivas, a cabinet-maker apprentice
and father of two, was waiting outside his boss' house to
travel with him to a job, when agents of the Dominican
Republic's National Directorate for Drug Control (DNCD)
dressed in civilian clothing and in an unmarked vehicle tried
to arrest him for suspected drug dealing in the Dominican
erupted because Mr. Aguasvivas and his family and friends
witnessing the event believed he was being kidnapped. The
police cuffed Mr. Aguasvivas' hands in front of his body
and forced him into the front passenger's seat of their
unmarked vehicle. While two officers were physically pushing
Mr. Aguasvivas into the vehicle, shots were fired. DNCD Agent
Lorenzo Ubri Montero died from his wounds, and Captain Felipe
de Jesus Jimenez Garcia and Agent Jose Marino Hernandez
Rodriguez sustained non-fatal injuries in the
commotion. Mr. Aguasvivas and his brother Francis Aguasvivas,
who witnessed the event, fled from the scene.
written after the incident give conflicting evidence of the
perpetrator of the killing. The autopsy of Agent Ubri
conducted hours after the shooting states that "[Agent
Ubri] was seriously injured when he and other agents of the
[DNCD] were performing an anti-drug operation, ..[and] tried
to arrest and introduce into a vehicle to a presumed drug
dealer, but they were injured by someone else, who tried to
stop the arrest." ECF No. 9-4 at 71. It also states that
the decedent was killed by "distant" wounding.
Id. But the arrest warrant issued by the Dominican
police the day of the shooting, states "at the moment
when the agents of the [DNCD] were making an anti-drug
operation and were preparing to arrest Estarling
Aguasvivas... [he] disarmed and fired three shots to
the [decedent]." Id. at 64. An affidavit by the
Dominican prosecutor, written three years later, alleges that
Mr. Aguasvivas "in a surprising way, attacked to the
agent the [decedent], to whom disarmed and killed, opening
fire on all the agents of the [DNCD] that were present."
Id. at 58. In a supplemental affidavit dated four
months later, the prosecutor asserts that the two
"surviving victims of the shootout attack on the
anti-narcotics patrol carried out by [Mr. Aguasvivas]"
are "eyewitnesses because they saw [Mr. Aguasvivas]
disarm, shoot, and kill the [decedent]." Id. at
the shooting, to extract information from them about Mr.
Aguasvivas' location, the DNCD tortured members of Mr.
Aguasvivas' family, according to four family
members. See ECF No. 9"2 at 16"18
(summarizing the torture victims' testimony). The victims
consistently testified about "having D black bags placed
over their heads and onions placed in their mouths, "
and that "the black bag/onion tactic, [was] intended to
simulate/cause suffocation." ECF No. 95 at 2.
Dominican police shot and killed Mr. Aguasvivas' brother,
Francis Aguasvivas, soon after the brothers went their
separate ways. Mr. Francis Aguasvivas' autopsy shows that
he was killed "by contact of a firearm projectile"
to the chest and lists his manner of death as homicide caused
by wound to the heart. ECF No. 9-7 at 5, 6. The police
maintain that they killed him in a shootout.
Aguasvivas fled the country and came to the United States
upon hearing the news of his family's torture and his
arrival in the United States, Mr. Aguasvivas sought asylum,
withholding of removal, and protection under the CAT in
immigration court. The Immigration Judge held nine hearings
and considered the testimony of ten witnesses. See ECF No.
9-2 at 14-15 (listing witnesses). Mr. Aguasvivas testified
and called eight witnesses; Joseline Ballez, Angel Pimenthal,
Keila Aguasvivas, and Sandra Aguasvivas testified to being
tortured; Yolanda Diaz testified as a percipient witness! and
three individuals testified as character witnesses. The
Government called one witness, a DEA agent working in the
Dominican Republic. See Id. at 13-14 (summarizing
the DEA agent's testimony). Mr. Aguasvivas also presented
reports and articles documenting human rights violations by
the Dominican police. See Id. at 2-3, 5. The
Government submitted documents in support of its allegation
that Mr. Aguasvivas committed the shooting, including the
Dominican arrest warrant, police reports, an Interpol notice
for Mr. Aguasvivas, and news articles about Mr.
Aguasvivas' involvement in the shooting. See Id.
Immigration Judge found that Mr. Aguasvivas was not eligible
for asylum or withholding of removal because he did not
establish persecution because of his race, religion,
nationality, membership in a particular social group, or
political opinion. See Id. at 29. The Immigration
Judge also found there were "serious reasons for
believing" that Mr. Aguasvivas had committed the murder,
a serious nonpolitical crime. See Id. at 26, 29. The
Immigration Judge also denied Mr. Aguasvivas the CAT relief.
See Id. at 30, 31. Mr. Aguasvivas appealed.
Board of Immigration Appeals ("BIA") reversed the
decision on the CAT relief, concluding that Mr. Aguasvivas
"met his burden of demonstrating on this record that it
is more likely than not that he will be tortured at the
instigation of or with the consent or acquiescence of public
official[s] in the Dominican Republic." ECF No. 9-5 at
2. Significantly, the BIA held that
The record contains evidence of human rights conditions in
the Dominican Republic, including evidence revealing that
despite efforts to curb abuses, there have been persistent
reports of arbitrary arrests, extrajudicial killings,
impunity, and corruption involving police and security
forces, and that "the police were involved in incidents
that resulted in maiming or severe injury to unarmed
civilians." Indeed, "[a]lthough the law prohibits
torture, beatings, and physical abuse of detainee and
prisoners, there were instances in which members of the
security forces, primarily police, reportedly carried out
Id. (internal citations omitted). The BIA granted
Mr. Aguasvivas withholding of removal. ECF No. 9-8. This
represented the final order on the CAT. Mr. Aguasvivas was
released from custody and the United States Government was
barred from removing him from this country because of the
likelihood that he would be tortured.
one year after the BIA granted Mr. Aguasvivas withholding of
removal under the CAT, the United States Government filed an
Extradition Complaint in the United States District Court for
the District of Massachusetts. In re Aguasvivas,
Misc. No. 17-MJ-4218-DHH (D. Mass. Sept. 13, 2017). The
request sought extradition on conspiracy, homicide, illegal
possession of firearm, and robbery charges stemming from his
arrest in the Dominican Republic. ECF No. 9-4 at 56. The
United States Marshal Service detained Mr. Aguasvivas and he
has been in federal custody at the Wyatt Detention Facility
in Central Falls, Rhode Island for the last two years. Mr.
Aguasvivas moved to dismiss the Extradition Complaint. The
Magistrate Judge held a hearing on the motion to dismiss and
an evidentiary hearing on the extradition request.
Magistrate Judge found that the Treaty between the United
States and the Dominican Republic was in full force and
effect, and that the Treaty covered the crimes for which the
Dominican Republic requested surrender. ECF No. 9-12 at
12-16. He also found that there was enough evidence to
support a probable cause finding on the charges of robbery,
illegal possession of firearms, and murder, denying
certification on the conspiracy charges. Id. at
¶ 17-31. He later issued an Order denying the motion to
dismiss, issued a Certificate of Extraditability, and an
Order of Commitment. Id. at 2, 38-39. The Magistrate
Judge did not have the issue of the CAT before him. The
matter now comes here by a Petition for Writ of Habeas
Corpus, in essence appealing the Magistrate Judge's
Aguasvivas sets forth two arguments in seeking review of the
Magistrate Judge's certificate of extradition. First, he
challenges his extradition under the Treaty between the two
countries by both claiming that there was no probable cause
established that he committed the crimes, and that the
Dominican Republic government did not meet the documentary
requirements of the Treaty. Second, he argues that
extradition is unlawful under the CAT because he will be
tortured in the Dominican Republic if the United States
returns him there. While the Court agrees with some of Mr.
Aguasvivas' arguments and disagrees with others,
ultimately it finds that Mr. Aguasvivas is not extraditable
under either the Treaty or the CAT.
Probable Cause Finding
Standard of Review
extradition request must establish probable cause that the
accused committed the offense or offenses for which
extradition is sought. 18 U.S.C. § 3184; see Treaty. The
First Circuit has held that on habeas corpus review of a
Certificate of Extraditability, the court need only examine
the Magistrate Judge's determination of probable cause to
see if there is "any evidence" to support it.
United States v. Kin-Hong, 110 F.3d 103, 116 (1st
Cir. 1997) (citing Fernandez v. Phillips, 268 U.S.
311, 312 (1925)). Previously, the Circuit interpreted the
concept of "any evidence" liberally and
historically conducted a deferential review of a magistrate
judge's findings. See Koskotas v. Roche, 931
F.2d 169, 176 (1st Cir. 1991); In re Extradition of
Manzi, 888 F.2d 204, 205 (1st Cir. 1989); Brauch v.
Raiche, 618 F.2d 843, 854 (1st Cir. 1980); Greci v.
Birknes, 527 F.2d 956, 958 (1st Cir. 1976).
Kin-Hong, the First Circuit acknowledged that other appellate
courts have engaged in a more rigorous review of the evidence
presented before a magistrate judge, that "it is
arguable that the 'any evidence' standard is an
anachronism, and that this court should engage in a more
searching review of the magistrate's probable cause
findings." Kin-Hong, 110 F.3d at 117. Despite
this reflection, the court failed to adopt explicitly a more
searching review because the government had met its burden in
that case through whatever prism the court reviewed the
record. Id. Thus, the Court need only examine the
Magistrate Judge's determination of probable cause to see
if there is "any evidence" to support it.
support of probable cause, the Government, on behalf of the
Dominican Republic, offered: (1) the affidavit of Dominican
Prosecutor Feliz Sanchez Arias, which attached the arrest
warrant; the autopsy report for Agent Ubri; medical
certificates for the two other drug agents who were shot; and
two photographs of the person sought, ' (2) the
supplemental affidavit of Prosecutor Sanchez; (3) the
declaration and the supplement of State Department legal
counsel Tom Heinemann! and (4) the second additional
affidavit of Prosecutor Sanchez.
probable cause, Mr. Aguasvivas submitted: (1) a YouTube video
of the shooting; (2) his concession that he is the person in
the video wearing a blue shirt; (3) a Spanish transcription
and English translation of statements heard on the video; (4)
the affidavit of Prosecutor Sanchez in support of extraditing
Mr. Aguasvivas' uncle, Ramon Emilio Aguasvivas; (5)
transcriptions and translations of pertinent articles of the
Dominican Criminal Procedure Code; (6) an affidavit of
attorney Ambar M. Maceo, about the elements necessary to
charge the crime of conspiracy under the Dominican Criminal
Code; and (7) a decision from the Supreme Court of Justice of
the Dominican Republic on the elements of conspiracy.
Magistrate Judge's probable cause determination was based
in part on Prosecutor Sanchez's affidavit recounting the
incident and citing two eyewitnesses to the
shooting. ECF No. 9-12 at 20 ("In a nutshell,
the prosecutor assigned to investigate this matter has sworn
in an affidavit that two police officers who were present-and
who were themselves wounded during the crime-saw Mr.
Aguasvivas shoot Agent Ubri, and that Agent Ubri died of the
gunshot wounds Mr. Aguasvivas inflicted. While a more
detailed affidavit certainly could have been presented, more
is not necessary to establish probable cause."). The
Magistrate Judge also found that the autopsy report and the
video evidence supported a probable cause finding.
Id., at 20-21. He held that three bullets fired at
short range to the area of the heart, as documented in the
autopsy report, are enough to establish probable cause that
Mr. Aguasvivas shot Agent Ubri with the intent to kill him.
Id, at 20. He also held that the video supports a probable
cause finding because it shows that the arrest occurred in
good light with the agents within feet of Mr. Aguasvivas when
the shots were fired, and thus they were well positioned to
see the shooting and identify the shooter. Id. at
the generous and deferential prism of "any evidence
warranting the finding that there was reasonable ground to
believe the accused guilty, " the Court finds that the
Magistrate Judge's probable cause determination was
supported by evidence (the affidavit, the video, the autopsy
physical findings) and so this Court must uphold that
decision. Fernandez, 268 U.S. at 312.
7 § 3 of the Treaty states that "a request for
extradition of a person sought for prosecution shall  be
supported by, " inter alia-
(a) a copy of the warrant or order of arrest or detention
issued by a judge or other ...