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Martinez v. Mukasey (9th Cir., 10/6/08, No. 04-72975)
TROTT, Noonan (C), Pregerson (D)
Petitioner had filed affirmatively for asylum based on political opinion as a member of a persecuted student group in Guatemala; in removal proceedings before the IJ he changed his ground for asylum to persecution because he was gay and admitted he'd lied earlier about his student activities in both his initial app and to the Asylum Officer. This case had been remanded by the 9th Cir. in 2003 to the BIA because the BIA failed to state cogent reasons for rejecting petitioner's testimony; while the BIA agreed with with the IJ's adverse credibility finding it did not adopt that finding. Petitioner also had filed a MTR to consider his CAT claim. The 9th Cir. denied both grounds of the PFR.
The 9th Cir. stated that its earlier opinion was not the law of the case since it had remanded to the BIA as to the reasons the BIA had upheld the IJ's denials of asylum/withholding/VD. The BIA on remand had stated petitioner's testimony was not credible due to his earlier lying and his admissions of those lies. The court here then said its misunderstanding of the initial BIA decision shouldn't benefit petitioner.
The concurrence notes that to adopt its earlier decision, which would have led to a favorable decision for petitioner, was manifestly unjust and thus within an exception to the law of the case doctrine.
The dissent points out that the question of whether the false statements were a sufficient reason to deny petitioner's asylum app had already been decided earlier by the 9th Cir. (No, they weren't sufficient reason). Also, there was not manifest injustice since petitioner's failure to allege persecution based on sexual orientation was not illogical given the state of the law at the time he came to the U.S. and applied for asylum.
Kadri timely applied for asylum because of the persecution he suffered in Indonesia due to his sexual orientation. Kadri was a factor in Indonesia who was effectively prevented from practicing because of rumors circulating within the medical community that Kadri was a homosexual. The IJ found Kadri credible, found past persecution and granted asylum because he was deprived of the ability to make a living and found a reasonable person in Kadri’s position would have a fear of future persecution based on “an attitude, atmosphere and an environment of hostility towards the gay community, which is so discriminatory and so pervasive as to rise to the level of persecution”.
DHS appealed and the BIA reversed the IJ ‘s opinion finding that economic deprivation was not enough for past persecution. The BIA also stated that “closeted homosexuality is tolerated in Indonesia” and that as the State Department report on Indonesia did not include information on violence against homosexuals, there was not enough evidence of future persecution.
The First Circuit noted that the BIA did not dispute the IJ’s finding that Kardi was a homosexual or that sexual orientation is a basis for seeking asylum as a member of a particular social group. The BIA reversed the IJ’s finding that Kadri had not shown that the economic deprivation that he suffered on account of being homosexual amounted to persecution or that such deprivation would be future persecution. Noting that the BIA and sister circuits had not been consistent in establishing what the standard was for a claim of economic persecution until the BIA’s decision in In Re T-Z, 24 I&N Dec. 163 (BIA 2007). The Court remanded the case to the BIA to remand back to the IJ to evaluate Kadri’s case under the In re T-Z standard.
The First Circuit held that a Rhode Island conviction for “forgery, counterfeiting, or alteration of trademark, service mark or identification mark” in violation of R.I.G.L. Sec. 11-17-13(c)(1) does constitute an aggravated felony under 8 U.S.C. Sec. 1101(a)(43)(R) (an offense relating to commercial briery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year) as all of the elements of the Rhode Island offense were include in (a)(43)(R).
Furthermore, the Court rejected Magasouba’s argument that the proper subsection to be applied to his case is 8 U.S.C. Sec. 1101(a)(43)(M) which states that to constitute an aggravated felony a fraud or deceit offense must involve a loss that exceeds $10,000. The Court found that when more than one removability subsection may apply, the government has discretion to proceeds under either or both subsections. It stated that “such discretion would only be limited if one provision was a subset of the other” which is not the case with the provisions at hand.
The Court also rejected the due process challenge that Magasouba attempted to raise relating to the DHS issuing an I-261 rather than dismissing the original NTA and issuing a new one. The charges in the original NTA were not sustained but the court but the IJ did sustain the charges raised in the I-261. Magasouba attempted to argue that if the DHS had dismissed the original notice and issued the new one, it would have been bared by res judicata from raising additional charges based on the same conviction. The Court agreed with the BIA that the I-261 was the “functional equivalent” of filing the same charge on an NTA and that Magasouba had an opportunity to respond to the new charges contained in the I-261.
Finding no jurisdiction to review the IJ and BIA determination that Odmar was presented an exceptional circumstances or changes country conditions to excuse filing for asylum past the one year filing deadline, the Court dismissed Odmar’s appeal on this issue. Additionally, finding that the IJ did not err in finding a lack of past or future persecution, the Court denied Odmar’s PFR relating to his withholding claim.
General Immigration 
