Aslam v. Mukasey (2d Cir. 08/08/08, Docket no. 05-1044-ag)
Pooler, Hall, Trager
The 2d Cir denied this petition for review of the IJ's decision finding petitioner removable and ineligible to adjust based on petitioner's inadmissibility due to previous marriage fraud. At his merits, petitioner's ex-wife testified via videoconferencing regarding her fraudulent marriage to petitioner. While agreeing that the admission of VTC testimony of witnesses must comply with due process, the court rejected petitioner's arguments that his due process rights were violated as the admission of the evidence was clearly probative and there was no evidence in the record that its use was not fundamentally fair. Moreover, petitioner was not prejudiced through the VTC testimony. The court next found that the IJ did not err in finding petitioner removable and ineligible for adjustment based on inadmissibility due to the marriage visa fraud. Finally, the court found that the BIA had not abused its discretion in summarily affirming without opinion the IJ's decision.
Finding both that Aronov was the prevailing party, that the government was not substantially justified in the delay and that the government was not entitled to Chevron deference, the First Circuit upheld the district court’s order granting Aronov’s EAJA application. The Court found that the District Court was correct in holding that there was “a material alteration of the legal relationship of the parties” since Aronov went from being an LPR to a USC and that there was a “judicial imprimatur on the change” as it was the order of the court remanding Aronov’s case back to USCIS so that it could grant his naturalization by a set date.
Furthermore, the Court rejected the government’s argument that the delay was substantially justified. The government attended to argue that under 8 U.S.C. § 1446(a) and the 1998 Appropriations Act require USCIS to wait for the FBI background check to clear before taking action on deciding a naturalization case. The Court found that there was no such requirement in either of the above statutes. The Court concluded that “In light of the120-day statutory directive, the agency’s long delay (over four times the statutory period), and the absence of any evidence that the government tried to expedite Aronov’s application to comply with the statute, the government’s conduct toward Aronov can only be classified as unreasonable and not substantially justified.” Therefore, the Court upheld the District Court’s EAJA finding and remanded back so that the fee award may be recalculated to reflect the costs of the appeal.
Rafiyev v. Mukasey, No. 07-1317/2406 (8th Cir.)(August 5, 2008)
COLLOTON, Bye, Smith
Rafiyev, a native of Azerbaijan, sought asylum, arguing past persecution against himself as well as his family on account of their Armenian ethnicity. After the IJ and BIA rejected his asylum claim based on adverse credibility, Rafiyev petitioned the Court for review of the denial of his asylum claim and the denial of a subsequent motion to reopen based on ineffective assistance of counsel.
The Eighth Circuit declined to disturb the IJ and BIA findings of adverse credibility, which resulted from Rafiyev’s submission of fraudulent documents in support of his claim. The Court also rejected Rafiyev’s claims that the asylum confidentiality provisions at 8 C.F.R. § 208.6 were violated by the government when it sought verification on the authenticity of documents submitted by Rafiyev from the government of Azerbaijan. Finally, the Court also left intact the lower courts’ findings that Rafiyev had filed a frivolous asylum application because Rafiyev failed to raise this before the BIA. While the Eighth Circuit acknowledged that exhaustion of administrative remedies is not always required, it found the record too “meager” in this case to address that possibility here.
Rafiyev also asked the Court to review the denial of the motion to reopen that he filed before the BIA arguing that he had received ineffective assistance of counsel before the IJ. The BIA, which has recognized a constitutional right to effective assistance of counsel in Matter of Lozada, denied the motion, construing it as a “due process based ineffective assistance of counsel.” The Eighth Circuit, clarifying its decision in Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006) and discussing the law in other circuits, stated that it does not recognize an absolute constitutional right to effective counsel under the Fifth Amendment in removal proceedings, because such proceedings are civil, not criminal.
The Eighth Circuit did, however, interpret Rafiyev’s brief “generously” to raise a non-constitutional claim of ineffective assistance of counsel. The Eighth Circuit remanded to the BIA therefore, so the BIA could consider in the first instance whether it has discretionary authority to grant reopening based on ineffective assistance of counsel, i.e., whether Rafiyev has an administrative right to effective counsel notwithstanding the failure of his constitutional claim. If so, the Court noted that the BIA had not squarely addressed whether Rafiyev had indeed complied with Lozada and merited reopening.
Servin-Acosta v. USA, No. 07-2228 (10th Cir.)(July 30, 2008)
HARTZ, McWilliams, Holmes
In Servin-Acosta v. USA, the Defendant challenged his sentence calculation for illegal reentry on two grounds: 1) that the government had failed to submit sufficient evidence to prove a prior California conviction for robbery and that in any event, 2) the robbery conviction was not a “crime of violence” such as to warrant a 16-level increase under the federal sentencing guidelines.
The Tenth Circuit first found that the evidence submitted by the government – a minute order from the California state court; a 1993 Form I-213, which led to the defendant’s deportation and the 2007 Form I-213 prepared following Mr. Servin-Acosta’s unlawful reentry into US – constituted sufficient evidence of his prior conviction.
The Court disagreed with the government’s position however, that the defendant’s California robbery conviction was a “crime of violence” under USSG § 2L1.2. While the definition of “crime of violence” under the federal sentencing guidelines includes robbery, the Tenth Circuit agreed with the defendant that the California robbery statute – which punishes “the use of force to effect an escape after a taking has occurred” - was broader in scope than the undefined offense of robbery under the guidelines, which the Court noted therefore encompasses only “generic” robbery. The Court reiterated its rejection of “the notion that whether a state conviction was for an enumerated but undefined crime ‘depends on how it is characterized under state law’,” citing US.v. Vazques-Flores, 265 F.3d 1122 (10th Cir. 2001), and restated its position that when interpreting the sentencing guidelines, the Court will adopt a uniform generic definition of the undefined offense at issue.
Gumaneh v. Mukasey, No. 07-3003 (8th Cir.)(August 1, 2008)
Smith, Bowman, Gruender
The Eighth Circuit denied withholding of removal to a Gambian woman who had been subjected to FGM in the past and feared her two US-born daughters would also be subjected to the practice.First, the Court summarized the circumstances that led Ms. Gumaneh, who entered the US in December of 1999, to file for asylum well over one year later, in April of 2004. The IJ had found that, while Ms. Gumaneh’s circumstances had changed (her family began writing to her in 2000 requesting that she bring her daughter to the Gambia to be subjected to FGM), she had not filed for asylum within a reasonable time after last of the requests came in September of 2003. The Eighth Circuit left this finding undisturbed, reiterating its position that Congress has precluded judicial review of the “reasonable delay” question.
The Court went on to deny withholding of removal, however, finding that a parent cannot raise a derivative claim based on a child’s potential future persecution. The Court cited to the Fourth Circuit’s decision in Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007) and the Seventh Circuit’s decision in Ofori v. Ashcroft, 354 F.3d 609 (7th Cir. 2003) to find that the statutory language of 8 USC § 1231(b)(3)(A) does not support a reading that makes derivative claims possible.The Court also addressed its decision in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007) finding the case inapplicable because it never reached the question of whether the petitioner in that case could raise a claim of persecution based on potential future harm to her US-born daughters. Instead, Hassan was remanded on the question of where the daughters would reside following their father’s deportation (the IJ had found that the daughters could remain in the US with their father, and subsequent to the decision, the father had been deported from the US).
The Court did reference the Sixth Circuit’s decision in Abay v. Ashcroft, which held that a parent can have an independent claim of her own based on psychological harm arising from fear of having a daughter subjected to FGM. Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). The Eighth Circuit noted however that Ms. Gumaneh had not raised this claim and declined to address the issue.
An Algerian man who refused to give supplies to the Islamicists (for free) was denied asylum for lack of a nexus to any political opinion. The 7th Cir affirmed. "Aid did not go to the police with the intent of allying himself with the Algerian government or getting the terrorists into trouble. Rather, his motivation was self-preservation: he sought to protect himself from misdirected retribution by the army mistakenly thinking that he was working in concert with the terrorists." Found that while "reasonable minds could differ," substantial evidence does support the Board's denial.
The 7th Cir held that for the VWP waiver to be valid, it must be a "knowing and intelligent waiver," and remanded for DHS to determine whether the French-speaking Petitioner (married to a USC) knew what he was doing. Accord, Nose v. Att’y Gen., 993 F.2d 75, 79 (5th Cir. 1993).
Reasoning: The Govt argued that as someone not yet admitted, he had no constitutional rights, so no waiver had to be knowing and intelligent: "the government’s position, if correct, would mean that before an alien enters the country, the Constitution does not prevent it from confusing, tricking or coercing that alien into signing a waiver." The CtApp distinguished Eisentrager and Verdugo-Urquidez because those occurred outside the US; and noted that Boumediene suggests that even aliens seeking entry have some constitutional rights. Moreover, the waiver is prospective to a time when the alien clearly has due process rights: "While the government is correct that an alien in detention at a port of entry is not technically within the United States, see Atunnise, 523 F.3d at 838-39, the government’s analysis treats Bayo as though he were still at the border today, instead of within the United States, where he unquestionably enjoys constitutional protections against removal." Govt could have argued that contract principles don't let someone get out of their deal simply by claiming not to speak English; "[b]ut more is required for a valid waiver of constitutional rights than for an enforceable contract. See Pierce v. Atchison Topeka & Santa Fe R.R. Co., 110 F.3d 431, 438 (7th Cir. 1997) (observing that waivers of federal rights cannot be governed solely by contract law)." Govt could have taken the "more moderate stance" that it didn't try to mislead him here; "however, due process would nonetheless require that the government take steps reasonably designed to assure that the waiver is knowing and voluntary." Rejected the floodgates theory, noting that the Fifth Cir held similarly in 1993, without any wave of VWP challenges. Govt argued that Petitioner suffered no harm from signing the VWP, because if he hadn't, he'd have been excluded; but he might also have been admitted through regular channels, and then have become eligible for AOS. Ultimate holding: "we adopt the view that we assumed in Wigglesworth, and that the Fifth Circuit endorsed in Nose, that waivers of rights under the VWP must be knowing and voluntary."
Whether Petitioner understood the waiver is a question of fact. Govt argued for remand to DHS; Petitioner argued for remand to BIA. CtApp remanded to DHS, giving it leeway to design appropriate procedures to determine whether the waiver was knowing and intelligent. (Note that Govt argued that such hearings need not be adversarial or feel like an IJ hearing.)
Petitioner's former counsel threatened to withdraw 2 hours before a hearing (for personal reasons), unless he gave up his asylum claim and took VD. He did, but then sought reopening and complied with Lozada. The CtApp found that (1) where personal circumstances make it difficult to continue as counsel, an atty has a duty to withdraw in a way that won't harm the client; and (2) only the client, not atty, can settle the case; attys may not coerce settlement or withdraw because settlement is declined. CtApp found prejudice, noting potential asylum claim as to Afghanistan, and as to whether the state court had permitted him to withdraw his guilty plea only for immigration reasons, or whether his insanity had something to do with it.
Chinese woman was raped by factory manager, who also held a political position and had political connections. She wrote a letter denouncing it, and complaining that govt was corrupt. IJ disbelieved her because ("inherently implausible") she didn't go to a doctor; 9th cir found it eminently believable that she wouldn't go to a doctor. IJ found difference with airport interview (where she didn't mention visits by police); but interviewing officer immediately moved onto a different topic, so CtApp found it wasn't good impeachment evidence. IJ also found that persecution was personal, not political; but CtApp found the corruption angle was at least one cause for persecution.
The First Circuit held that it lacked jurisdiction to review Ms. Lutaaya’s denial of asylum as the Court held there was no due process violation in the IJ and BIA finding that her asylum application was untimely and was unexcused by circumstances. The Court further held that the IJ and BIA properly denied Ms. Lutaaya’s withholding claim due to material discrepancies between documents she provide to the Court and her statements to the immigration court and those she previously made to the asylum officer. Included in the list of discrepancies outlined by the Court was that “Lutaaya had also reportedly told the asylum officer that five soldiers, not four, were involved in the attack and rape.” The Court also found that it lacked jurisdiction to review Ms. Lutaaya’s CAT claim as this 9sue was not raised before the BIA
The 9th Cir found that a woman who loaned her kids' birth certificates to her father and sat there while he tried to use them to smuggle other kids into the country had not been shown to have engaged herself in smuggling. The CtApp held that "mere presence and acquiescence" do not constitute smuggling, as a matter of law.
Dissent - result is unfair and unfortunate, but the law says she's not eligible. Acquiescence is indeed not an affirmative act, and so does not constitute smuggling - but what happened here was not merely acquiescence. An oral statement (in this case, permission for her father to use the birth certificates) can be an affirmative act: "in my view, Modesta’s agreement that her father could use her son’s birth certificate was “an affirmative act of assistance” sufficient to constitute alien smuggling under INA § 212(a)(6)(E)(i) and Altamirano. The fact that she was “reluctant” to do so and agreed only to avoid disappointing her father does not change this result."
Immigration Litigation Update 
