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Abebe v. Mukasey (9th Cir., 11/20/08, No. 05-76201)
Per Curiam, Clifton (C), Thomas (D)
Petitioner, an LPR since 1984, pled guilty in 1992 to lewd and lascivious conduct upon a child, Cal. Penal Code § 288(a). INS charged him wiht being removable for an aggravated felony - sexual abuse of a minor. The IJ denied petioner's asylum, withholding and CAT claims and also found him ineligible for 212(c) relief. The BIA affirmed. A 9th Cir. three-judge panel had upheld the denial of 212(c) relief in 2007, but that decision was vacated earlier this year.
The 9th Cir. stated:
1. 212(c), repealed by IIRIRA, but available under St. Cyr to immigrants who pled guilty before IIRIRA's enactment, is relief available to immigrants who are inadmissible (excluable), not those who are deportable (removable).
2. Prior 9th Cir. caselaw, Francis and Tapia-Acuna, had held that it was "wholly irrational for Congress to give any advantage to aliens outside the U.S. that it denies to similarly situated aliens within the U.S."
3. Applying the "rational basis" test the 9th Cir. held that it was not a violation of equal protection to deny 212(c) relief to someone in removal proceedings even if they would have been eligible for such relief if outside the U.S. and applying to be admitted into the U.S.
a. There was no discrimination against a discrete and insular minority.
b. There was no incusion on fundamental rights.
c. There was a rational reason for Congress to limit 212(c) relief to immigrants with admissibility issues rather than removal issues - it creates an incentive for deportable aliens to leave the country and apply for relief outside the U.S., thus saving the government the time and money of arresting and deporting them.
4. The 9th Cir. overruled its earlier Tapia-Acuna holding that there wasn't a rational basis for providing 212(c) relief from inadmissibility, but not deportation.
5. Dismissed the withholding claim as it was not briefed to the BIA.
6. The 9th Cir. dismissed petitioner's withholding claim stating that the failure to brief the issue at the BIA constituted a failure to exhaust administrative remedies. The 9th Cir. overruled its earlier Ladha decision, 215 F.3d 889, 903 (9th Cir. 2000)(failure to brief issue at BIA not failure to exhaust administrative remedies so long as issue otherwise clearly presented).
Clifton (Concurring)
Doesn't agree that to reach same result the court needs to overrule Tapia-Acuna; the court here could and should reach the same reason by applying Komarenko. "I nevertheless concur in the judgment because I conclude that aliens who could have been, but were not, charged with removal on grounds equivalent to a ground for inadmissibility are not similarly situated to aliens who were actually so charged. Abebe’s equal protection challenge therefore fails."
Thomas (Dissent)
"Distilled to its essence, this case involves the irrationality of affording privileges to lawful permanent residents who step across the border for a day, but denying the same privileges to those who do not. The majority not only blesses this unequal treatment, but goes much further, overruling more than 60 years of precedent, approving an unconstitutional statutory scheme not even the Board of Immigration Appeals endorses, and implicitly declaring unconstitutional a federal regulation."
Petitioner from Guinea appealed BIA decision summarily dismissing his appeal from the IJ's denial of asylum/WH/CAT. The IJ found Petitioner's testimony non-credible; Petitioner argued on appeal that he was credible, emphasizing that his testimony was consistent, responsive, and sufficiently detailed, and also that the Country Reports corroborated his claims and that the IJ had overemphasized small disparities between the reports and his testimony. The 2d Circuit held that - given the presence of some errors in the BIA's decision as to issues that were properly exhausted, and the plausibility of other newly claimed errors (errors that were not exhausted before the Board) - remand would not be futile.
The 2d Circuit reviewed the IJ's adverse credibility finding under the substantial evidence standard. The court addressed in detail the limits on its review and appropriate action by the court, citing Chenery I. In particular, a reviewing court must evaluate a decision solely by the grounds invoked by the agency and cannot substitute its judgment for that of the agency; therefore if the court finds an error in the Board's decision on an issue that was exhausted before it, it would have to remand. While the court need not remand if it can "confidently predict that upon a reconsideration cleansed of errors, the agency would reach the same result," remand is appropriate where the court cannot say that it would be futile. Examples of reasons for doubting futility are (1) change of agency position or change in law (2) If petitioner could, on remand, "proffer materials to the agency that were not brought to the agency before and that are of a strength sufficient possibly to convince the agency to come out differently."
The court then clarified that remand "does not give a petitioner an unwarranted second bite at the apple" since what materials may be raised on a remand is always subject to the relevant statutes and regs. Moreover, remanding due to errors on exhausted issues is not inconsistent with the court's refusal to review unexhausted errors as the court does not ultimately consider any issues that the BIA has not reviewed. "Our decision to remand asks only whether, in addition to the errors that the BIA has made, there are other issues that are plausible enough so that, on reconsideration, the agency might change its decision."
Turning to review Petitioner's case, the court found that the IJ had erred in his reading of the background material on conditions in Guinea and in his conclusion that the Country Reports did not corroborate Petitioner's testimony. Moreover, the court rejected the IJ's reasoning that, because the Country Reports were particular as to many events, and because anti-government groups were vigilant about reporting abuses to human rights groups, the failure of human rights groups to mention any given arrest or abuse called into question its existence. "This approach, however, places undue weight on the Country Reports, which, no matter how well-researched, cannot be expected to capture all of the details of every abuse in a given country .... It also exaggerates the ability of such anti-government groups to monitor all abuses."
Given these errors in issues that Petitioner properly exhausted below, the 2d Circuit held that it could, in determining whether remand to the Board would be futile, consider the plausibility of other newly claimed errors that were not adequately raised before the agency. Therefore, the court granted the petition for review and remanded to the BIA. Moreover, the court stated that should the BIA determine that add'l development of the record is necessary, it should remand to the IJ for this purpose.
Atty for Petitioner:Barry R. Goldberg, Goldberg & Kaplan, LLP, New York, NY
Hakopian v. Mukasey (9th Cir., 11/19/08, No. 05-72532)
BEA, Sedwick, Gould
Iranian citizen's asylum, withholding and CAT claims denied on the merits, an adverse credibility finding was made, but her asylum claim was also denied by the IJ based on petitioner's failure to prove she applied for asylum within one year of entry. The BIA affirmed the IJ in a per curiam order.
The 9th Cir. held:
1. Petiioner proved she'd filed within a year of entry because she admitted the date of entry without inspection listed in the NTA served on her. Neither ICE nor petitioner ever questioned the date of entry EWI listed in the NTA. Since this was an uncontested fact, the court had jurisdiction to review the IJ's finding that petitioner failed to meet the one-year filing deadline for asylum because it was a question of law, stating: "A question of law includes the “application of law to undisputed facts.” Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007)."
2. Upheld the denial of petitioner's claims for asylum, withholding, and CAT on the merits.
Ahmed v. Mukasey (9th Cir., 11/19/08, No. 07-73661)
NELSON, Schroeder, Reinhardt
Petitioner moved to reopen her removal order 270 days after the BIA upheld the denial of asylum by the IJ. The MTR was based on marriage to a USC. This MTR was denied as untimely and lacking sufficient evidence about the bona fides of the marriage. A second MTR was filed by a second attorney with supplemental proof of the bona fides of the marriage and evidence of petitioner's lack of knowledge that the first MTR could have been timely filed but was not. This second MTR was denied and petioner appealed to the 9th Cir.
1. Ineffective assistance of counsel claims pursuant to the 5th Amendment depend on showing that counsel failed to perform with sufficient competence and that prejudice occurred.
2. "While an attorney’s representation need not “be brilliant,” it “cannot serve to make [the] immigration hearing so fundamentally unfair that [the alien] was prevented from reasonably presenting his case. Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004) (internal quotations omitted). In failing to advise Ahmed of the necessary documentation for the motion to reopen “in time for [her] to gather it,” see Iturribarria v. INS, 321 F.3d 889, 900-01 (9th Cir. 2003); in submitting the motion to reopen well beyond the deadline; in arguing for an exception to the deadline that clearly did not apply; and in misrepresenting the facts or law to Ahmed about the timeliness of the motion, (the first lawyers) prevented (petitioner) from reasonably presenting her case. That is surely not competent representation." Petitioner showed both elements of IAC.
3. The court noted that petitioner had followed the requirements of Lozada.
4. The 9th Cir. rejected the government's argument that Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), gave DHS unilateral authority to reject MTRs, stating "we hold that when the DHS opposes a motion to reopen for adjustment of status, the BIA may consider the objection, but may not deny the motion based solely on the fact of the DHS’s objection." It thus adopted the 2nd and 6th Circuits' position on Velarde and rejected Velarde and the 3rd Circuit.
Khunaverdiants v. Mukasey (9th Cir., 11/18/2008, No. 07-70145)
SEDWICK, Gould, Bea
Petitioner was granted withholding of removal but denied asylum. The IJ ruled petitioner had not proven the asylum application was filed within one year of his entry into the U.S. Petioner is an Iranian Christian who alleged past persecution and imprisonment; he was found credible by the IJ. Petitioner's testimony was inconsistent as to when he entered the U.S.
The 9th Circuit held:
1. 8 U.S.C. § 1158(a)(2)(B) requires an alien to demonstrate “by clear and convincing vidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States,” not necessarily the alien’s exact date of arrival.
2. "(W)e have jurisdiction to review the BIA’s timeliness determination because any view of the historical facts necessarily establishes that Khunaverdiants filed his asylum application within one year of his arrival. Accordingly,Khunaverdiants’ challenge to the BIA’s determination that his application is time barred is a mixed question of law and fact."
3. The BIA erred in concluding that proof of an exact departure date was necessary when other clear and convincing evidence established that Khunaverdiants necessarily filed his asylum application less than one year after arriving in the United States.
4. Since petitioner met the higher standard for withholding he is eligible for asylum.
5. Remand to the BIA regarding the AG's exercise of discretion as to whether to grant asylum.
General Immigration 
