Marynenka v. Holder (4th Cir. Jan. 25, 2010)

MICHAEL Gregory Legg (dct by designation)

The applicant was an asylum-seeker from Belarus who had been sexually assaulted, among other things, for opposing the regime.  The IJ denied for failure to corroborate.  He expressed some doubt about the testimony, but made no adverse credibility finding. 

1.  As to the medical reports showing a sexual assault, the CtApp found the IJ's reason for rejecting the document - that it wasn't on letterhead - speculative, particularly as it was a medical report.  It also rejected the IJ's discounting of the document because she couldn't establish the chain of custody.  The rules of evidence don't strictly apply, and there has to be a better reason for rejecting a document than that.

2.  The CtApp rejected the IJ's conclusion that it was "implausible" for a rape victim to wait until the next morning to tell the police.  "Waiting overnight to seek medical attention after a traumatic sexual assault is not implausible; if anything, it is understandable."

3.  The IJ also rejected a letter corroborating her participation in a political protest, finding that the IJ had no way of corroborating the truth of the letter.  The CtApp held that there is no automatic requirement to corroborate corroboration. 

Since the IJ's analysis of corroboration was flawed, petition was granted and remanded to Board for reconsideration.

Read opinion here: 

Bayo v. Holder (7th Cir. Jan. 20, 2010)

WOOD (7th Cir en banc) (no dissents or concurrences)

Bayo entered on the Visa Waiver Program (VWP), using a fake passport - he's from Guinea, and doesn't speak English.  He later married a USC, and tried to adjust; but was denied.  He argued that fake VWP entrants can't be removed under the VWP; that his waiver of rights under the VWP wasn't knowing and intelligent; and that he is in any event eligible for adjustment.

1.  The CtApp found jurisdiction to consider whether the VWP order stripped the Court of jurisdiction.  It did not cite 1252(a)(2)(D), relying on older and different case law establishing a Court's power to determine its own jurisdiction.  That analysis would seem sufficient to permit review of whether the VWP order was valid; but perhaps not whether one could nonetheless adjust status. 

2.  Fake VWP entrants can be removed under the VWP.  The CtApp found the statute silent on the point; and found that silence to create an ambiguity.  It then asked whether the agency's regulations (which permit non-VWP-eligible people to be removed under the VWP) were reasonable.  ("There is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the Program.") The fact that the agency's interpretation of the VWP means that such individuals need not pass credible fear interviews before applying for asylum was not dispositive.  AG could adopt regs which would permit expeditious removal of fake VWP entrants, even at the costs of giving some extra rights to some.

3.  A VWP waiver must be knowing and intelligent, but Bayo cannot show prejudice.

a.  In Bayo I (Bayo v. Chertoff, 535 F.3d 749 (7th Cir. 2008)), it was held that Bayo had constitutional rights at the time of his entry, citing Boumediene v. Bush, 128 S. Ct. 2229 (2008).  Said the Court, "Boumediene suggests that Bayo, as an alien technically outside the country’s border when he submitted his waiver to border agents, enjoyed some constitutional protections against arbitrary government action." In Bayo II, the Court dodged that question, noting that neither party disputes that Bayo did in fact make an entry into the U.S. - as such, he has due process rights.

b.  A waiver of rights under the VWP must be knowing and intelligent.

The government argues that Bayo waived these rights by signing the VWP form, but Bayo counters that the waiver he signed is invalid because he did not understand it. If the VWP waiver were a garden-variety contract, Bayo’s argument would almost certainly fail.... The VWP waiver, however, is no normal contract. It includes a waiver of the right to a full immigration hearing; that waiver implicates both statutory rights and, in the final analysis, the constitutional right to due process.

In criminal cases, courts both “indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . do not presume acquiescence in the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted). The Supreme Court also has established constitutional standards for waivers of constitutional rights in civil cases. See Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972).... While the Supreme Court has consistently classified deportation proceedings as civil rather than criminal, e.g. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952), at the same time the “Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification.” Woodby v. INS, 385 U.S. 276, 285 (1966). We conclude from this that the waiver standard in immigration cases, while perhaps not quite as strict as the one applicable to criminal cases, see Johnson v. Zerbst, must reflect the Supreme Court’s recognition of the unique character of this area.

c.  The CtApp rejected the Govt's argument for a "presumption" of knowledge rather than a requirement of actual knowledge.  The CtApp held that this would, practically speaking, eliminate the requirement of knowledge altogether.  The CtApp said it would be inconsistent with case law creating presumptions against waiver of constitutional rights.  It would change the law other contexts where waivers are requirements, and would be absurd.  Moreover, the CtApp noted that it would quite possibly be particularly harmful to women who have been trafficked into the country, many of whom come from VWP countries. 

d.  The CtApp noted that the 5th cir's decision in Nose v. Attorney Gen. of United States, 993 F.2d 75, 78-79 (5th Cir. 1993) hadn't created a massive amount of litigation there. 

e.  The CtApp noted in passing that it was not requiring that ICE actually explain the waiver to people, and did not seek to tell the Govt what it should do to ensure that non-English speakers understand the waiver.  The CtApp noted that the new ESTA program advises people in various languages, and might help resolve the problem.  The CtApp said that it "trust[s] the executive branch to devise a system that fulfills the goals of fairness, efficiency, and security."

f.  The CtApp distinguished The Japanese Immigrant Case, 189 U.S. 86, 101-02 (1903), because this case doesn't involve any increase in federal court jurisdiction on account of language.

4.  However, to succeed under Due Process, one must show prejudice.  Here, Bayo can't show prejudice because if he had refused to sign the VWP waiver, he would simply have been summarily removed.  It is possible that he would have entered by some other means, and thereafter met and married his wife; but that is too speculative. 

5.  The next question is whether there's a conflict between INA 245(c) - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions.  The CtApp resolved the apparent ambiguity by interpreting 245(c)(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application.  That conclusion - wrong as it is - is the unanimous view of the 6 other CtApps to consider the issue.  See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

Read opinion here: 

Read briefs here:

Kucana v. Holder, __ U.S. __, 08-911 (Supreme Court Jan. 20, 2010)

The question before the Supreme Court was: 

Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals.

I.e., whether the fact that reopening is discretionary under the regulations would be sufficient to trigger the bar to jurisdiction over discretionary matters.  The answer, in short, was no.  Justice Ginsburg wrote for a unanimous court, with Justice Alito concurring in the judgment, reversing the 7th cir's decision to the contrary.

1.  When 1252(a)(2)(B)(ii) bars jurisdiction for decisions or actions the authority of which is specified "under" subchapter 2 of the INA to be discretionary.  The Court found the term "under" to be ambiguous as text; so the Court looked to other indicia of what it meant.

a.  First, it looked to the placement of (B)(ii), specifically comparing it to 1252(a)(2)(A) (admissibility issues) and 1252(a)(2)(C) (criminal grounds), noting that those sections were entirely statute-focused.

b.  Second, it compared (a)(2)(B)(ii) with (B)(i), which lists a bunch of forms of statutory-based discretionary relief.  That, said the Court, was another indicia that (a)(2)(B)(ii) was limited to situations where the statute itself grants discretion.

c.  Third, it compared the types of relief in (a)(2)(B)(i) - basically, a noscitur a sociis argument - noting that (B)(i) included only "substantive decisions . . . made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not"

Decisions on reopening motions made discretionary by regulation, incontrast, are adjunct rulings: The motion to reopen is a procedural device serving to ensure “that aliens [a]regetting a fair chance to have their claims heard.” Tr. of Oral Arg. 17. A court decision reversing the denial of amotion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims havebeen accorded a reasonable hearing

2.  The history of the statute also supported that conclusion.  In 1996, when it adopted IIRIRA's jurisdiction-stripping provisions (including (a)(2)(B)(ii)), Congress codified large parts of the regulations pertaining to reopening, but left out the discretionary language.  In Real ID, Congress left the statute alone, notwithstanding that some CtApps had already found that (a)(2)(B)(ii) had not stripped jurisdiction over motions to reopen. 

3.  Finally, the Court noted the general presumption in favor of reviewability of administrative decisions. 

4.  The Court flagged two issues which it did not decide today: (a) whether the bars to review over discretionary relief (e.g., adjustment of status) would thus bar review over reopening decisions in that context, and (b) whether sua sponte reopening would be beyond federal court jurisdiction, notwithstanding today's decision. 

Justice Alito concurred separately.  He concluded that the regulations had promulgated under the authority of 8 USC 1103(a), which is in subchapter 1 of the INA.  Because 1252(a)(2)(B)(ii) only applies to subchapter 2 of Title 8, the reopening regulations would not trigger that provision.  Thus, he would have decided the case on narrower grounds.

Read decision here:

For a link to the briefing: 

Decision of the 7th cir: 

Ortega v. Holder (7th Cir. Jan. 15, 2010)

RIPPLE Flaum Manion

Angela Ortega was put into removal proceedings in 2002, but obtained termination with prejudice in 2003 after proving that she had acquired citizenship through her father.  At the time the IJ terminated proceedings, USCIS had already denied her N-600 application (without any hearing), and she had appealed to the AAU.  The AAU denied the appeal, again without any hearing and without hearing any evidence.  She sought reopening from the AAU, sending them evidence from the removal proceedings; the AAU refused to reopen.  She then filed a declaratory action in District Court, seeking a declaration of her citizenship.  The Govt argued that there was no jurisdiction, because her citizenship had first arisen in removal proceedings.  8 USC 1503(a) bars a declaratory judgment action where the citizenship claim was related to removal proceedings: "no such action may be instituted in any case if the issue of such person’s status as a national of the United States (1) arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or (2) is in issue in any such removal proceeding."  The District Court agreed, and dismissed.  Ms. Ortega appealed.

The 7th Cir, after reviewing the statutory scheme, found that Congress would have wanted to provide some remedy for individuals like Ms. Ortega.

There certainly is nothing in the language of the statute or in the legislative history of § 1503(a) that would justify the conclusion that Congress meant to leave an individual, with more than a colorable claim of nationality, in legal limbo—able to remain in this Country, but without any means of establishing her nationality. Congress’s solicitude in providing all others with a means of obtaining a certificate of citizenship either through the general application process or through the removal process evinces Congress’s concern that individuals be able to settle, definitively, the issue of citizenship. Indeed, it would be disrespectful to impute to Congress a desire to leave someone in Ms. Ortega’s situation permanently out in the cold.

The Court then adopted the Government's proposed reading of the statute, under which Ms. Ortega could make a new application for citizenship would be treated as not "arising from" the then-terminated removal proceedings. 

It went on to consider whether Ms. Ortega fell within that understanding.  Citing 8 C.F.R. § 341.6, the CtApp held that a motion to reopen or reconsider was the proper means of reasserting a claim of citizenship after proceedings were terminated.  It also suggested in passing that an IJ order terminating proceedings would be sufficient grounds for an exception to the normal 30 day period for filing such motions to reopen. 

We believe that an individual, such as Ms. Ortega, who is armed with an order of an IJ terminating removal proceedings in her favor, certainly will make at least a prima facie showing that both her change of status (as nonremovable) and the termination of removal proceedings constitute new facts for purposes of a motion to reopen. Cf. Johnson v. United States, 544 U.S. 295, 302 (2005) (holding that the vacatur of an underlying state-court judgment is a fact, the discovery of which triggers the running of the statute of limitations under 28 U.S.C. § 2255). Although such an individual still must rely on the agency’s discretion to reopen such proceedings, we have to believe that the agency will exercise this discretion judiciously and with an eye to accomplishing Congress’s purpose in enacting § 1503(a) and § 1252(b).

The Court then found that Ms. Ortega had taken the appropriate steps in seeking reopening; and thus found that 1503(a) did not bar the action. 

On further review of Ms. Ortega’s administrative file, however, we have ascertained that Ms. Ortega in fact has accomplished this necessary step. As we have discussed in some detail, 8 C.F.R. § 341.6 requires that any subsequent application for citizenship be filed as a motion to reconsider or to reopen. In this case, Ms. Ortega did file a motion to reconsider or to reopen after the AAO denied her appeal and after her removal proceedings had been terminated. * * *

Because Ms. Ortega’s motion to reopen or reconsider is, by the Government’s own regulation, the correct substitute for a second application for a certificate of citizenship, Ms. Ortega’s motion satisfied the Government’s requirement that she reinstitute an administrative action after the termination of removal proceedings. Having done so, and having been denied administrative relief, there is no longer a jurisdictional impediment to her instituting a declaratory judgment action under § 1503(a) because the action that she is challenging is not tainted by its connection to removal proceedings.

Read opinion here: 

N.b.: NIJC pro bono attorney James Morsch, of Butler Rubin, LLP, represented Ms. Ortega in this matter.

Haile v. Holder (7th Cir. Jan. 6, 2010)

POSNER Rovner Kanne

Several years ago, the 7th Cir appeared to have decided that ethnic-based denaturalizations of Ethiopians of Eritrean ancestry was persecution.  Haile v. Gonzales, 421 F.3d 493, 496 (7th Cir. 2005).  However, on remand, the Board found that not all denaturalizations constitute persecution, and further found that Haile appeared eligible to resume his citizenship on return to Ethiopia.

The 7th Cir reversed.  While not all denaturalization is persecution, that doesn't mean that ethnic-based denaturalization isn't. 

From the correct premise that a change of citizenship incident to a change in national boundaries is not persecution per se, it does not follow that taking away a person’s citizenship because of his religion or ethnicity is not persecution. If Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans; and the analogy to the Nazi treatment of Jews is close enough to suggest that his denationalization was persecution and created a presumption that he has a wellfounded fear of being persecuted should he be returned to Ethiopia.

The 7th cir also stated its belief that being forcibly rendered stateless would constitute persecution. 

As to the potential that Haile could reobtain Ethiopian citizenship, the CtApp found that the Board's analysis of Ethiopian law was flawed.  It appears that one cannot automatically reobtain Ethiopian citizenship; it's unclear whether the new statute in Ethiopia even applies to people like Haile who haven't obtained citizenship elsewhere; and the fact that Ethiopia would issue a laisser-passer to Haile (which seemed to create a presumption of Ethiopian citizenship) was not dispositive as to how Haile would be treated upon return. 

Read opinion here: 

Milanouic v. Holder (7th Cir. Jan. 6, 2010)

ROVNER Manion Wood

The Petitioner had established past persecution in Yugoslavia under the Milosevic regime, but the IJ and BIA found that the Govt had established changed country conditions, rebutting the presumption of future persecution.  He argued that local govt officials would still persecute him.  The CtApp held, citing Ishitiaq v. Holder, 578 F.3d 712, 717-18 (7th Cir. 2009), that he had an obligation to administratively exhaust specific arguments before raising them at the CtApp; and as he had not done so, his claim failed.  The Court also held that it would fail on the merits, since country conditions reports could suffice to rebut a presumption of future harm if they went to the reason the applicant feared returning. 

Read opinion here: 

Benitez Ramos v. Holder (7th Cir. Dec. 15, 2009)

POSNER Rovner Cudahy

The Petitioner is a former member of the Mara Salvatrucha, who sought asylum because he had deserted the gang and become "born again." The BIA denied the claim for asylum and withholding on the basis that the proposed social group did not have social visibility.  The 7th Cir reversed.

1.  First under the authority of Gatimi v. Holder, 578 F.3d 611, 614 (7th Cir. 2009) (contra Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009)), the CtApp rejected the idea that social visibility can be a requirement for an asylum claim - at least, if understood as requiring some externally identifiable criteria. 

By this, the Government means * * * that you can be a member of a particular social group only if a complete stranger could identify you as a member if he encountered you in the street, because of your appearance, gait, speech pattern, behavior or other discernible characteristic.

This position has some judicial support, see, e.g., Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009), but we have rejected it in Gatimi and other cases, cited in Gatimi, as a misunderstanding of the use of “external” criteria to identify a social group; see the illuminating discussion in Castellano-Chacon v. INS, 341 F.3d 533, 546-49 (6th Cir. 2003). If society recognizes a set of people having certain common characteristics as a group, this is an indication that being in the set might expose one to special treatment, whether friendly or unfriendly. In our society, for example, redheads are not a group, but veterans are, even though a redhead can be spotted at a glance and a veteran can’t be. “Visibility” in the literal sense in which the Board has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the Board is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference. See, e.g., In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-75 (BIA 2007).

2.  The CtApp also rejected the argument that former gang members are too "amorphous" to constitute a particular social group - specifically noting that the way that society (or persecutors) treat members of the group may help establish the viability of the social group definition.

There may be categories so ill-defined that they cannot be regarded as groups—the “middle class,” for example. But this problem is taken care of by the external criterion—if a Stalin or a Pol Pot decides to exterminate the bourgeoisie of their country, this makes the bourgeoisie “a particular social group,” which it would not be in a society that didn’t think of middle class people as having distinctive characteristics; it would be odd to describe the American middle class as “a particular social group.” Ramos was a member of a specific, well-recognized, indeed notorious gang, the former members of which do not constitute a “category . . . far too unspecific and amorphous to be called a social group.” It is neither unspecific nor amorphous.

3.  Secondly, as to the precise social group (former MS members), the CtApp found that while "gang membership" itself would not be cognizable as a particular social group (because we want people to cease being gang members), former gang membership is immutable.

Being a member of a gang is not a characteristic that a person “cannot change, or should not be required to change,” provided that he can resign without facing persecution for doing so. Arteaga v. Mukasey, supra, 511 F.3d at 945-46.

But if he can’t resign, his situation is the same as that of a former gang member who faces persecution for having quit—the situation Ramos claims to be in. A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group. On this ground we held in Gatimi v. Holder, supra, that a former member of a violent criminal Kenyan faction called the Mungiki was a member of a “particular social group,” namely former members of Mungiki. We relied on Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), characteristically not cited in this case by either the Board or its lawyer, which holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation constituted a particular social group. One could resign from the attorney general’s office but not from a group defined as former employees of the office. See also Koudriachova v. Gonzales, 490 F.3d 255, 262- 63 (2d Cir. 2007) (former KGB agents); Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir. 2000) (former members of the police or military); Velarde v. INS, 140 F.3d 1305, 1311-13 (9th Cir. 1998) (former bodyguards of the daughters of the president); Chanco v. INS, 82 F.3d 298, 302-03 (9th Cir. 1996) (former military officers); In re Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988) (former members of the national police).

4.  Moreover, the CtApp cited statutory provisions barring individuals from asylum and withholding if they are former persecutors, or committed a serious nonpolitical offense outside the country.  It noted that if Benitez Ramos was found to have committed violent acts, he might well be barred from withholding, but the Board can address that on remand.  (The Board could also deny asylum in the exercise of its discretion; but withholding is non-discretionary).

5.  Finally, in passing, the CtApp disapproved of the IJ's citation to a State Dept letter which was sent to him only, and to which the Petitioner was never given a chance to respond.

Read opinion here: 

N.b.: NIJC attorney Claudia Valenzuela argued the case for Benitez Ramos; his attorneys also included Roy Petty (Arkansas) and Mel Washburn of Sidley Austin. 

Shi Jie Ge v. Holder (2d Circuit, December 2, 2009)

Petitioner entered the U.S. from China in May 2000, and in 2001, while in the U.S., he joined the China Democracy Party (CDP).  Petitioner's work included the clandestine recruitment of party members within China.  In 2003 his membership was revealed to government authorities in China after an individual he recruited was arrested.  In October 2003, Petitioner's wife - who still resided in  China - was visited by Chinese police officials who urged her to encourage Petitioner to return to China. Petitioner filed his application for asylum in March 2004. He argued that he was subject to an exception to the one-year deadline because his CDP membership only became known to Chinese authorities in 2003.  The IJ rejected Petitioner's claim, and he appealed.  The BIA also rejected Petitioner's one-year arguments, finding that even if his CDP membership did constitute a changed circumstances, Petitioner still had waited nearly 3 years since he joined before filing for asylum. The BIA also rejected Petitioner's reliance on Tun v. INS, 445 F.3d 554 (2d Cir. 2006), finding that while in that case it was shown that the Burmese government conducted extensive intelligence gathering and surveillance on groups of Burmese expatriates active against the Burmese government in the U.S.,  there is no indication that the Chinese government tracks expatriate political activists.

On appeal, the 2d Circuit found that Petitioner had raised a valid question of law concerned the BIA's application of the "changed circumstances exception" to the one-year filing deadline, promulgated at 8 CFR 208.4(a)(4)(i)(B).  The court found that the Board had legally erred in looking to the date Petitioner joined the CDP as the only changed circumstance and agreed with Petitioner that the plain terms of the reg define changed circumstances far more broadly.  Rather, the reg entitled Petitioner to consideration of his contention that it was events taking place after he joined the CDP that placed him at risk of persecution should he return to China.

The 2d Circuit also rejected the Board's reading of Tun v. INS, noting that the Board's reading would make a grant of relief contingent upon a showing that the country to which he is to be returned has such extensive monitoring activities beyond its borders that it can be assumed the authorities are aware of the petitioner's activities while living abroad.  Rather, as recently discussed in Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir. 2008), a well-founded fear of persecution can be based on a showing that the authorities are either aware of his activities or likely to become aware of his activities after his return.

PFR granted, remanded to permit Petitioner to present add'l evidence as to the Chinese government's likely future awareness of hsi involvement with the CDP, and for the IJ to determine whether Petitioner had made a substantial showing of (1) a well-founded fear of persecution because (2) the Chinese government is likely to become aware of his membership in the CDP after his return to China.

Atty for Petitioner: David S. Kim (Matthew L. Guadagno, KErry W. Bretz, and Jules E. Coven, on the brief), Bretz & Coven, LLP, New York, NY.

Read opinion here.

Ljutica v. Holder (2d Circuit December 3, 2009)

LEVAL, Jacobs, Sack

Plaintiff Rajko Ljutica, an LPR from Montenegro, appealed the SDNY's grant of summary judgment in favor of the government, which affirmed USCIS's denial of citizenship to him.  Ljutica argued that USCIS erred in determining that his 1993 bank fraud conviction (in which the bank's money was wired into his account, but he was caught before he could withdraw it) was an aggravated felony which statutorily precluded him from establishing GMC as required for naturalization.  He also argued that principles of res judicata prohibited the government from using his 1993 conviction against him, as he was granted 212(c) relief in 1996.  The 2d Circuit rejected both arguments.

First, Ljutica argued that his crime was not aggravated felony because (1) he was convicted of bank fraud, not attempted bank fraud, since the crime was completed when the money was wired into his account (thus rendering inapplicable INA 101(a)(43)(U) regarding attempted crimes and intended loss), and (2) the bank suffered no actual loss, because he was caught before he could withdraw the money (thus rendering inapplicable INA 101(a)(43)(M)(i)).  The 2d Circuit rejected these arguments, concluding based on the record of conviction (including the charge, plea, and judgment of conviction) that Ljutica was convicted of attempted bank fraud, regardless of whether the facts would also support a conviction for the completed crime.  Because Ljutica was convicted of attempted bank fraud, section 101(a)(43)(U) applied, rendering his crime an aggravated felony even though there was no actual loss to the bank because the intended loss was greater than $10k.

The 2d Circuit also rejected Ljutica's argument that his prior deportation proceedings and 212(c) grant foreclose under res judicata a determiantion that he does not possess GMC because the gvt did not argue that he was an aggravated felon during his earlier deportation proceedings, and because his 212(c) waiver included a determination that he does have good moral character.  The court noted that it had not yet considered whether res judicata bars the government from asserting, in a second immigration proceeding, grounds it could have asserted but did not in a prior proceedings.  However, the point was moot here because the government could not have argued while he was in deportation proceedings that his crime was an aggravated felony, as IIRIRA's retroactive application of 101(a)(43)(M)(i) did not apply at that time.  The court also rejected Ljutica's argument that his 212(c) waiver determined that he possessed GMC.  While a factor in granting 212(c) waivers is evidence attesting to a respondent's good character, the court found that good moral character as defined in 101(f) is defined differently from "good character" in reference to a 212(c) waiver.

District court judgment affirmed.

Atty for Appellant: Walter Drobenko, Drobenko & Associates, P.C., Astoria, New York

Read opinion here.

Mendiola v. Holder, No. 08-9565 (10^th Cir. Oct. 28, 2009)

Petitioner Eddie Mendiola is a Peruvian citizen who became a lawful permanent resident of the U.S. in 1989. In 2004, the Department of Homeland Security commenced removal proceedings against him, as a result of, among other things, two felony convictions for possession of steroids. The Immigration Judge ordered him removed and the Board of Immigration Appeals affirmed that decision; a petition for review was denied by the 10^th Circuit. In March 2005, while the petition was pending, petitioner was removed to Peru. He then returned illegally and was detained. In 2007, while in custody, petitioner filed a motion to reopen with the BIA. This motion was denied as jurisdictionally barred and untimely.  On appeal to the 10^th Circuit, the BIA decision was affirmed.

Petitioner, after obtaining new counsel, filed a second motion to reopen with the BIA, arguing ineffective assistance of counsel and that his second possession conviction had been reduced to a misdemeanor. Once again, the BIA denied the motion, restating that it lacked jurisdiction and the motion was untimely. It also noted that according to statute, an alien may only file one motion to reopen.

At appeal, the issue was framed as whether BIA is properly deprived of jurisdiction to entertain a motion to reopen by 8 C.F.R. 1003.23(b)(1). This section reads, as quoted in the opinion:

“A motion to reopen or a motion to reconsider [before the BIA] shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.”

The Court began by recounting the legislative and regulatory history of the post-departure bar. In September 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which repealed judicial post-departure review first instituted by the Attorney General in 1952, but also instituted numerical and time limits on motions to reopen before an Immigration Judge and BIA. The next year, the Attorney General issued new regulations, which retained the post-departure bar. The 10^th Circuit concluded in Rosillo-Puga v. Holder, a case decided after briefing in the instant case, that the regulatory post-departure bar is a valid exercise of the Attorney General’s rule-making power, and does not contravene 8 U.S.C. 1229a(c)(7), which grants an alien the right to file one motion within 90 days. (It should be noted that, according to the instant decision, the 4^th Circuit has come to the opposite conclusion, concluding that the statute unambiguously provides all aliens with the right to file one motion to reopen within the time limit, and that the regulatory post-departure bar conflicts with the statute and is invalid.)

The Court found that the language of 1003.23(b)(1) mirrored the statutory language at issue in Rosillo-Puga. Relying on that case’s precedent, and stressing stare decisis, the Court reasserted the conclusion that “Congress’s provision for one motion to reopen within 90 days of removal in those statutory subsections does not alter the valid continued operation of the regulatory post-departure bar to motions to reopen.” Because it found that the BIA’s jurisdiction had been divested by the post-departure bar, the Court did not need to reach the issue of whether equity would require a tolling of the time and numerical limitation as a result of ineffective assistance.

Read opinion here (PDF).