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As Benito had not raised the issue of the IJ failing to explicitly state a finding on past persecution before the BIA, the Court held that it lacked jurisdiction to reviewed this claim since administrative remedies had not been exhausted. However, the Court did have jurisdiction to consider his withholding claim as a whole and found that given the IJ’s findings, that the phone threats and graphic emails did not establish a probability of future persecution, that Benito had not been [physically harmed and that Benito’s family continues to live in Indonesia and practice Christianity without being harmed, the Court found that a finding of no past or future persecution was proper. Furthermore, the Court held that the BIA properly concluded that the two country conditions articles Benito submitted did not establish a sufficient change in country conditions to warrant a remand.
Orozco v. Mukasey (9th Cir., 10/20/08, No. 06-75021)
Wardlaw, Bea, N. Randy Smith
ORDER
The Joint Motion to Vacate and Motion to Dismiss Voluntarily is hereby GRANTED. The published opinion in Orozco v. Mukasey, 521 F.3d 1068 (9th Cir. 2008), is hereby vacated. The case is also hereby dismissed pursuant to Federal Rule of Civil Procedure Rule 42(b). This order served on the agency shall, 21 days after the date of this order, become the mandate of this court.
The 9th Cir found that an entry by fraud is not a "lawful entry," and thus not an "admission" under 101(a)(13), and thus the person is not eligible to adjust status under INA 245(a) - distinguishing Matter of Areguillin, 17 I. & N. Dec. 308 (BIA 1980) (where someone inspected and authorized, could adjust status under 245(a)).
The Supreme Court granted cert to resolve the question of whether a defendant in an Aggravated Identity Theft prosecution has to be knowingly using a fake ID that belongs to someone else (as opposed to it belonging to no one). The circuits are split on the question, which seems to arise most frequently in the prosecution of undocumented individuals caught working with fake papers.
1st, 9th, and DC cirs interpret statute narrowly:
United States v. Godin, No. 07-2332, 2008 WL 2780646, at *1 (1st Cir. July 18, 2008) (“[W]e hold that the ‘knowingly’ mens rea requirement extends to ‘of another person.’ In other words, to obtain a conviction under § 1028A(a)(1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person.”); United States v. Miranda-Lopez, No. 07-50123, 2008 WL 2762392, at *5 (9th Cir. July 17, 2008); United States v. Villanueva-Sotelo, 515 F.3d 1234, 1235 (D.C. Cir. 2008)
8th, 11th, and 4th cirs interpret crim liability broadly:
United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (“the Government was not required to prove that Mendoza-Gonzalez knew that [the person whose name and social security number he used] was a real person to prove he violated § 1028A(a)(1)”); United States v. Hurtado, 508 F.3d 603, 610 (11th Cir. 2007); United States v. Montejo, 442 F.3d 213, 217 (4th Cir. 2006)
Bebri, an Albanian national, immediately applied for asylum in the United States upon his 2001 entrance due a violent attack he suffered due to his activities as an officer of the Democratic Party of Albania. However, he told 3 different accounts of this attach, the “linchpin incident”, to the asylum officer, on his asylum application and in his IJ testimony. Therefore, the IJ made an adverse credibility finding due to the vast discrepancies in each of the narratives of this incident and due to the lack of detail that Bebri provided about his political participation. The Court agreed with the IJ, stating that the discrepancies were not merely minor differences in dates and time but instead went to the heart of the matter.
Treap Thap v. Mukasey (6th Cir., 10/15/08, No.s 07-3752/4168)
ZATKOFF, Daughtrey, Gibbons
Petitioner came to the U.S. in 1983 at the age of seven as a refugee from Cambodia and thereafter adjusted to LPR status. In 1996 he was convicted of robbery in the second degree and was subsequently ordered removed based on the finding that the conviction was an aggravated felony. This case is a consolidation of direct appeal and the denial of a motion to reopen.
1. Petitioner argued that under the United Nations Convention Relating to the Status of Refugees could not lose his refugee status until he acquired the nationality of another country. The 6th Cir. in denying this argument cited its earlier decision in Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003), wherein they had held that an alien cannot rely upon the Protocol Relating to the Status of Refugees (October 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577) to circumvent the INA because the Protocol is a non-self-executing treaty and therefore not judicially enforceable law.
2. The court also rejected Thap's argument that he should be allowed to apply for re-adjustment of his status under INA § 209(a), accompanied by a waiver of inadmissibility under INA § 209(c), which is the same waiver available to a refugee when he initially applies for permanent resident status. The 6th Cir. stated that he was not eligible for a 209(c) waiver due to his conviction being a crime of violence and therefore an aggravated felony.
3. Also rejected was his argument that his conviction was a crime involving moral turpitude making him excludable but eligible for a 212(c) waiver. The court adopted the majority rule (BIA, 1st, 3rd, 5th, 8th, 9th) that "it is irrelevant that Thap’s robbery offense might be considered a crime involving moral turpitude. Instead, Thap would be removable based on his robbery conviction (a crime of violence), which crime does not have a statutory counterpart in § 212(a)" and rejected the 2nd Cir.'s minority rule.
4. The 6th Cir. also held that this was not an Equal Protection violation (excludable returning LPR has waiver under 212(c) for CMT, but in country LPR has no waiver under removal ground for agg felony even though same criminal statute resulting in conviction).
5. Finally, the 6th Cir., found Petitioner ineligible for withholding of removal because he failed to prove past persecution or that he was more likely than not to face future persecution.
General Immigration 
