Thursday, 23 July 2009 00:00
Claudia Valenzuela
10th Circuit
Witjaksono v. Holder, No. 08-9540 (10th Cir. July 23, 2009)
Baldock, LUCERO, and McConnell
Humphrey Sarwono Witjaksono and his wife Ligiowati are Indonesian nationals of Chinese descent, and practicing Catholics. They have three children, including one who is a U.S.C. After overstaying their visas, Witjaksono applied for asylum, withholding of removal, and CAT (with his wife as a rider on his application). Witjaksono testified to violence and harassment suffered by his family due to being ethnically Chinese and Catholic, including one incident where an Indonesian soldier blocked Witjaksono’s car and then punched him three times while insulting him for being Chinese. The Immigration Judge denied all relief.
Witjaksono appealed to the BIA and argued that the fifty-seven page transcript of the proceedings before the IJ—which contained 189 notations of “(Indiscernible)”—was inadequate, thereby denying him due process. The BIA denied Witjaksono’s motion for remand and dismissed his appeal because it claimed that Witjaksono had failed to point to any material testimony omitted from the transcript that had adversely affected his application. It also found that Witjaksono had failed to establish his claims of persecution.
Upon review, the Court found it “well settled that an alien in an immigration proceeding is entitled to a reasonably complete and accurate record to facilitate appellate review.” In fact, the Court noted, the government has a statutory (8 U.S.C. § 1229a(b)(4)(C)) and regulatory (8 C.F.R. § 1240.9) duty to completely and accurately record removal proceedings. However, the Court held that the government’s failure to prepare an adequate transcript—in this case, the one produced was undeniably incomplete and oftentimes incomprehensible—does not rise to the level of a due process violation mandating reversal or remand unless prejudice is shown. Here, because the omitted portions of the transcript were primarily Witjaksono’s own testimony and he had not attempted to fill the gaps through a sworn statement or affidavit, the Court found that the required showing of prejudice had not been met. The Court pointed to the BIA’s regulations and Practice Manual, which both provide for supplementing a faulty transcript. Given the available process, the Court declared that it was not unreasonable to expect that Witjaksono recreate the omissions.
The Court further found that Witjaksono had not shown he suffered any injuries rising to the level of persecution. It also deferred to the BIA for lack of jurisdiction to review claims as to a pattern or practice of persecution against Christian Indonesians or Indonesians of Chinese descent because Witjaksono had not challenged the IJ’s finding that this was not the case. Finally, the Court remained unconvinced by Witjaksono’s CAT claim, finding the evidence not to show that the Indonesian government would torture Witjaksono or acquiesce to his being tortured.
Read opinion here.
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Friday, 10 July 2009 00:00
Claudia Valenzuela
10th Circuit
Arambula-Medina v. Holder, No. 08-9589 (10th Cir. July 10, 2009)
Kelly, BRISCOE, Holmes
Petitioner Luis Enrique Arambula-Medina sought review of the BIA’s denial of his non-LPR cancellation of removal application. The Court, lacking jurisdiction, granted the government’s motion to dismiss, but not before reasserting that undocumented migrants have only minimal procedural due process constitutional rights.
Arambula-Medina, a native of Mexico, entered the U.S. without inspection in 1991, along with his mother and two younger brothers. While his mother and brothers became LPRs, Arambula-Medina remained without lawful status. After receiving an NTA, Arambula-Medina requested non-LPR cancellation of removal pursuant to 8 U.S.C. 1229b(b), asserting that his removal would result in exceptional and extremely unusual hardship to his LPR mother, who suffers a heart condition and relies on her son to help care for her youngest children.
The IJ denied Arambula-Medina’s application, maintaining that Arambula-Medina is actually more dependent on his mother than she is on him, and that she had the support of her husband and other sons. The IJ also found that Arambula-Medina had family ties in Mexico, possessed “all the requisite skills and knowledge to succeed” in Mexico, and would be able to adequately communicate in Mexico because of his knowledge of Spanish. The BIA affirmed the IJ’s decision without opinion.
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Wednesday, 24 June 2009 00:00
Claudia Valenzuela
10th Circuit
U.S. v. Cruz-Rodriguez, No. 07-4083 (10th Cir. June 24, 2009)
O’Brien, Tymkovich, and HOLMES
Arturo Cruz-Rodriguez was convicted for illegal reentry in violation of 8 U.S.C. § 1326 and sentenced to seventy-seven months in prison. He appealed to the Tenth Circuit based on the ground that the district court impermissibly expanded the scope of the indictment through a jury instruction. The Court affirmed, however, finding that Cruz-Rodriguez had effectively waived this argument though his litigation strategy.
Cruz-Rodriguez, through legal counsel, objected to a proposed jury instruction which stated in part: “If you find that the defendant was deported from the United States at any time prior to July 10, 2006, the [prior deportation] element [of the offense] is met.” The district court overruled the objection because the date of the deportation is not an element of the offense. The government also planned to call an expert witness to testify that Cruz-Rodriguez’s fingerprints matched a warrant of deportation dated May 20, 2002, from his A-file. The district court rejected Cruz-Rodriguez’s motion in limine arguing irregularities in the warrant of deportation and admitted the warrant under the public records exception to the hearsay rule.
Cruz-Rodriguez’s counsel conceded during his opening statement that his client had been previously deported, hoping to focus the jury on whether the government had proved that Cruz-Rodriguez was not a citizen of the U.S. After opening statements, Cruz-Rodriguez and the government entered into a factual stipulation wherein they agreed, among other things, to the fact that: “Defendant was deported on June 10, 1988, March 8, 1993, January 24, 1997, and May 31, 2002.” Additionally, Cruz-Rodriguez’s counsel agreed that the jury instruction could be amended to state that the jury “must consider [the prior-deportation element] proven.”
After the jury returned with a conviction, Cruz-Rodriguez appealed, arguing that the jury instructions constructively amended the indictment by requiring only proof of deportation “prior to the time of the offense alleged in the Indictment,” instead of proving the indictment’s specific charge of deportation on May 31, 2002. The instructions did not require the jury to specify upon which prior deportation it was resting its finding. Thus, it was possible that the jury had convicted Cruz-Rodriguez of a crime with which he was not charged, in violation of his Fifth and Sixth Amendment rights.
The Court declined to review the merits of Cruz-Rodriguez’s constructive-amendment argument, concluding instead that Cruz-Rodriguez had waived appellate review by stipulating to the fact of his prior deportations, including the deportation charged in the indictment, and agreeing to the court’s instructions. The Court pointed out that the amended jury instruction, to which Cruz-Rodriguez had agreed, effectively took away the jury’s obligation of making any finding on the prior deportation element at all, and instead deemed the element proven. Because Cruz-Rodriguez had waived the challenge by stipulating to the jury instructions, rather than forfeiting the argument through neglect, the Court was without power to review the district courts decision. Decision affirmed.
Read opinion here.
Wednesday, 17 June 2009 00:00
Claudia Valenzuela
10th Circuit
Alzainati v. Holder, No. 07-9565 (10th Cir. June 17, 2009)
O’BRIEN, Brorby, and McConnell
Petitioner, Khaled FM Alzainati, is a native of Jordan and entered the U.S. in 1991 on a B-2 visitor visa with his wife and two sons. His third son, Jawad, was born in the U.S. that same year. Alzainati and his family never returned to Jordan.
When DHS attempted to remove him in 2003, Alzainati filed for non-LPR cancellation of removal under 8 U.S.C. § 1229b(b)(1), asserting “exceptional and extremely unusual hardship” to his U.S.C. son, Jawad. Alzainati claimed that Jawad would have difficulty adapting to Jordan because he was not sufficiently schooled in Arabic, he would encounter anti-American sentiment, it would be difficult to find eye care for his nearsightedness and medications for his recurrent skin rashes, and Alzainati would have a hard time finding work to pay for such care even if it were available.
The IJ denied Alzainati’s cancellation application, stating that he had not met his burden of showing exceptional and extremely unusual hardship to Jawad. The BIA affirmed.
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Monday, 27 April 2009 08:53
Claudia Valenzuela
10th Circuit
Razkane v. Holder, No. 08-9519 (10th Cir. April 21, 2009)
MURPHY, Briscoe, Holloway
Razkane entered on a J-1 in 2003, and stayed beyond the authorized period. After being placed in removal proceedings, he applied for Withholding of Removal pursuant to INA § 241(b)(3) (the 10th Circuit stated in its opinion that it would use the statutory term “Restriction on removal” rather than the term “withholding of removal” which remains in the regulations).
Razkane claimed to fear persecution if forced to return to Morocco based on his sexual orientation. He testified that he had always kept his homosexuality a secret in Morocco, where it was considered “deviant” behavior. Razkane introduced expert and country condition evidence that homosexuality is severely punished in Morocco, an overwhelmingly Islamic country that does not tolerate homosexuality. At one point, he was threatened at gunpoint by a neighbor, and although the neighbor was persuaded against harming Razkane and the neighbor’s family apologized, Razkane remained fearful of remaining in Morocco. He sought a way out of the country and eventually left for the US under the Fulbright Program.
The IJ found Razkane credible, and also, acknowledged that the BIA has found homosexuals to be a particular social group for protection purposes, but he denied Razkane’s application for restriction on removal for various reasons. First the IJ found that Morocco was a country that simply punished homosexuals, versus actively persecuting them as in other countries. Although the IJ did accept this would not make Razkane ineligible, however, Razkane still could not demonstrate it was more likely than not that he would be persecuted for being gay. For one, the IJ opined, he did not look gay, stating, “[h]e does not dress in an effeminate manner or affect any effeminate mannerisms.” Also, the IJ stated that Razkane had no serious boyfriends and did not show it would be more likely than not that he would be engaged in homosexuality activity, further, that it would be the type of “overt homosexuality that would bring him to the attention of the authorities or society in general.” The BIA affirmed the IJ’s ruling.
On appeal, the 10th Circuit noted that the IJ’s conclusions that Razkane would not be targeted as gay in Morocco were based on his own stereotypical views, rather than on the objective evidence presented, citing to Second and Eighth Circuit cases addressing similar circumstances, in which IJs opinions reliance on stereotypes, rather than objective evidence in the record, Ali v. Mukasey, 529 F.3d 478, 485, 491-92 (2d Cir. 2008); Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007). The Court went on to state that the IJ’s
“analysis elevated stereotypical assumptions to evidence upon which factual inferences were drawn and legal conclusions made. To condone this style of judging unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results. The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirements of substantial evidence and free from vagaries flowing from notions of the assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion.”
Reversed and remanded.
Read opinion here:
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