Heartland Alliance's National Immigrant Justice Center's experienced legal staff can speak about the legal ramifications of immigration laws, provide analysis of how immigration policies play out in immigrant communities, and help put reporters in touch with immigrants, refugees, and asylum seekers who can provide a human face to stories about the U.S. immigration system.
Shook v. El Paso County, Colorado (10th Cir., 8/29/08, No. 06-1454)
(Note: mental health detention conditions related case)
GORSUCH, Tymkovich, Holmes
The 10th Cir. here upheld the lower court's denial of class certification of a class under Fed.R.Civ.Pro. 23(a)(2), (a)(3), or (b)(2) comprised of "(a)ll persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail" or, alternatively, "all persons who are now, or in the future will be, confined in the El Paso County Jail." The 10th Cir. had previously remanded, 386 F.3d 963, the denial to the district court because the district court based its initial class cert denial on the Prison Litigation Reform Act instead of the standards laid out in Fed.R.Civ.Pro. 23.
This was a §1983 suit filed on behalf of prisoners alleging violations of the 8th Amend.'s ban of cruel and unusual punishment applicable to the states through the 14th Amend. Plaintiffs alleged inadequate mental health care; insufficient protections against self-inflicted injuries and suicide; inadequate protocols for medication distribution and mental health screening; and improper use of special detention cells, restraints and pepper spray against inmates.
The district court held that the plaintiffs failed to meet their burden of proof under (b)(2) of showing that the defendants acted on grounds generally applicable to the class. The 10th Cir. found that reasonable minds could disagree about the district court's denial of class certification and therefore there was no abuse of discretion, although suggesting that the use of subclasses may have mitigated or avoided the problems. The 10th Cir. also noted that the federal government's successful litigation of detention conditions under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §1997 - 1997j, rests at least in part on the fact that the government does not have to satisfy 23(b)(2)'s requirements.
Matadin v. Mukasey (2nd Cir. 10/8/08, No. 06-4742-ag)
POOLER, Straub, Walker (concurring)
Petitioner entered the US as an LPR in 1994 at age 12 but returned to Guyana at age 17, in September 1999, and remained there for the next 30 months. Upon her return to the U.S. in April 2002, DHS concluded that she had abandoned her LPR status and initiated removal proceedings. The IJ found that Petitioner bore the burden of proving that she had not abandoned her residency since she had been continuously absent for more than one year prior to seeking readmission. Petitioner argued that she was in Guyana solely to care for her sick father. However, the IJ held that she had not met her burden of demonstrating lack of abandonment, finding: (1) She had only a passing knowledge of her father's actual medical condition while residing with him in Guyana; (2) She owned no property in the U.S.; (3) She did not work in the US before departing age age 17; (4) She finished school in 1995 and indicated no intention of resuming studies in the U.S.; (5) She married a Guyanese national while in Guyana but made no attempt to secure LPR status for him while in Guyana; (6) She had no contacts with the U.S. while in Guyana; (7) She had given inconsistent testimony re: whether her father had sustained a second heart attack; (8) She was employed as a sales clerk in Guyana for a year. Based on these findings and the length of her absence, the IJ found that Petitioner had abandoned her residency and ordered her removed. The Board affirmed, adding only that Petitioner presented no unforeseen circumstances that would explain her delay to the U.S.
The 2nd Cir. vacated the removal order, finding that the IJ and Board had erred as a matter of law in assigning the burden of proof to Petitioner. The court looked to the Board's decision in In re Huang, 19 I&N Dec. 749 (BIA 1988) and 8 CFR 211.1(a)(2). Although the IJ had cited these authorities to support his conclusion that the burden shifted back to Petitioner since she had been gone for over a year, the 2nd Cir. looked to them and found nothing supporting such a conclusion. Thus, the court found that, as Petitioner had presented a colorable claim to returning resident status, DHS bore the burden of proving by clear, unequivocal, and convincing evidence that Petitioner had abandoned her LPR status.
Because the court did not have assured confidence that the agency, on remand, would conclude that Petitioner's trip was not a temporary trip abroad, it remanded to the Board to make relevant factual findings:
In light of this erroneous standard of proof, the IJ’s factual finding that Matadin was not in Guyana solely to care for her sick father meant only that, according to the IJ, Matadin had not shown by a preponderance of the evidence that she was in Guyana solely to care for sick father. This was not a suitable, or relevant, factual finding. Rather, the relevant factual inquiry was whether it could be “found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation [were] true.” Woodby, 385 U.S. at 286; see also Huang, 19 I. & N. Dec. at 754 (adopting rule of Woodby that “in deportation hearings [against those with a colorable claim to returning resident status] the Service must establish facts supporting deportability by clear, unequivocal, and convincing evidence”
Concurring, Judge Walker pondered whether the Board's decision in Huang merits Chevron deference but decided not to reach this question because he believed that the decision there articulates the proper framework for alloating the burden of proof. Judge Walker also considered whether remand would be futile, finding this question "exceedingly close" but concluding that it was possible for a reasonable factfinder to find the evidence of the nature of Petitioner's trip equivocal, which would mean the party that did not bear the burden of proof should prevail. Thus, Petitioner's claim was not necessarily doomed by her failure to introduce persuasive evidence of her continuous intent to return to the U.S.
In Re: Guantanamo Bay Detainee Litigation (D.C.Dist.Ct. 10/8/08)
URBINA
In a fairly unprecedented opinion (to a fairly unprecedented legal and factual situation), Judge Urbina, of the D.C. Dist. Ct., ordered the Government to transport 17 Uighurs from Guantanamo Bay to the continental United States - by Friday - and expressed, on the record, that he would be greatly displeased if the DHS were to detain them on arrival. He further declined to stay his decision, setting off an immediate stay application to the D.C. Cir, and a prompt response. The District Court's analysis was:
1. Mezei didn't apply, because the detention here is indefinite (since no country wants to take these individuals, and they can't be returned to China, where they'd be tortured). Mezei is superseded by Zadvydas and Clark v Martinez.
2. Mezei also didn't apply because in this case, the DC Cir has already rejected the Govt's args that they're unlawful combatants, in Parhat. (In Mezei, the judiciary didn't actually address the security risk allegations of the Govt).
3. The DistCt found the detention indefinite, noting that 10 were cleared by 2003, another 5 cleared in 2004 - but that negotiations couldn't place them anywhere.
4. While AG's failure to parole these individuals would normally be the end of the matter, they've been brought to a jail and detained indefinitely - no "absolute deference" to Govt - habeas corpus and constitution require more. No carte blanche authority to Executive.
The U.S. Govt sought an emergency stay from the Court of Appeals, arguing that entry into the US would irrevocably alter their legal status, and that they're dangers to the community. That stay motion is here.
Ajlani v. Chertoff (2d Cir. 10/7/08, No. 07-1170-cv)
RAGGI, Wesley, Livingston
The 2nd Cir. rejected this PFR of district court's finding that it lacked jurisdiction to review the propriety of pending removal proceedings and that pending removal proceedings precluded plaintiff from stating a present claim for naturalization relief.
Plaintiff applied to natz and his application was granted. However, before he took his oath, he left the country and tried to re-enter through Canada. The border officials took a closer look at his immigration status, found that he had 2 CIMTs, and served him with a notice to appear for removal proceedings. Because the gvt had not filed the appropriate docs with the immigration ct to initiate the hearing, proceedings were terminated. The exact same day, CIS sent him a notice to appear at a natz oath ceremony on October 18, 2006. However, on October 17, the USCIS NY District Director issued a motion to reopen Ajlani's natz proceedings pursuant to 8 CFR 335.5, and on October 18 Ajlani was served with this motion and not allowed publicly to take the oath of citizenship. On December 20, 2006, Ajlani was issued an NTA and placed in removal proceedings. These proceedings are still pending. Prior to the initiation of removal proceedings, Ajlani, pro se, filed suit in federal ct requesting declaratory relief, a writ of mandamus compelling adminstering of oath, or a judicial administration of that oath. Defendants filed a motion to dismiss. Ajlani, still pro se, added a claim that the pending removal proceedings were unconstitutional, discriminatory, without merit, and violative of due process. The district court dismissed the suit and Ajlani appealed.
The 2nd Cir. first rejected Ajlani's argument that he was effectively natzed on October 18, because he had not met requirement that oath be taken in a public ceremony. In addition, he did not acquire USC status under 8 USC 1101(a)(22)(B). Next, the court agreed with the district court that it lacked jurisdiction to consider Ajlani's constitutional challenges since he had not exhausted admin remedies.
The court then joined the 5th, 6th, and 9th Circuits in concluding that Ajlani, through a 8 USC 1447(b) action, could not be granted citizenship - either by the court or by compelling CIS to act - while removal proceedings were pending against him, because such relief is forbidden through 8 USC 1429, which prohibits natzing where removal proceedings against the applicant are pending. The court reasoned that 1429 limits the courts' authority to grant natz pursuant to 1421(c) (challenging natz denials) or 1447(b) (challenging natz delays):
Mindful that the animating principle behind § 1447(b) relief is the need to protect against executive delay, we conclude that Congress did not contemplate judicial orders of naturalization under circumstances where Congress has called an explicit statutory halt to the executive’s ability to give any further consideration to an alien’s naturalization application until removal proceedings end. Like the Sixth Circuit, we think district court authority to grant naturalization relief while removal proceedings are pending cannot be greater than that
of the Attorney General. See Zayed v. United States, 368 F.3d at 906. To hold otherwise would be to restart the race that Congress attempted to end between naturalization and
removal proceedings in the Internal Security Act of 1950 and various successor statutes, see Shomberg v. United States, 348 U.S. at 544, in circumstances where that race would appear particularly inappropriate, i.e., where information belatedly comes to the executive’s attention indicating not only that an alien’s naturalization application may have been improvidently granted but also that the alien should, in fact, be removed from the United States.
PFR denied.
Atty for petitioner: Scott Bratton, Margaret Wong & Associates, Cleveland, OH.
Delgado v. Mukasey (9th Cir., 10/8/08, No. 03-74442)
CANBY, Siler, Berzon (D)
Petitioner is an El Salavadoran who has been in the U.S. for 20+ years. Subsequently convicted three times for DUI, he was placed in removal in July 2001. Petitioner conceded removability, and requested asylum, withholding of removal, CAT withholding and deferral, NACARA cancellation, and suspension of deportation. The IJ denied CAT deferral on the merits and determined that the 3 convicitions were "particularly serious" crimes, although not agg felonies, and petitioner was thus precluded from asylum, withholding of removal, and CAT withholding. The IJ also denied suspension and NACARA cancellation, although those two decisions were not appealed.
The 9th Cir. held:
1. The "particularly serious" crime bars to asylum and withholding are under separate provisions of the INA, but (a) the withholding of removal section, 1231(b)(3)(B), permits a case by case adjudication that a crime is particularly serious even if not an agg felony; and, (b) the particularly serious crime section for asylum purposes, 1158(b)(2)(A)(ii) and (B)(ii), allows ad hoc decisions and does not require that the crime be found by regulation to be particularly serious.
2. The court has no jurisdiction to review the merits of the BIA's determination that DUI convictions constitute particularly serious crimes, citing 1252(a)(2)(B)(ii).
3. Substantial evidence supported the denial of CAT withholding and deferral.
The dissent, in a thirty page opinion, argued "the only viable construction of the 'particularly serious crime' provision of § 1231(b)(3)(B), the withholding version, is that only aggravated felonies can be 'particularly serious crime[s].' And the only viable interpretation of the asylum 'particularly serious crime' provision, § 1158(b)(2)(B), is that the Attorney General can make non-aggravated felonies 'particularly serious crimes' only through regulation, not on a case-by-case basis."
As to the jurisdiction issue the dissent states this decision "is directly in conflict with Morales v. Gonzales, 478 F.3d 972 (9th Cir. 2007). Morales held that asylum issues generally are reviewable, even when committed to the Attorney General’s discretion, because of an express statutory provision pertaining only to asylum decisions."
General Immigration 
