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.
In a two-page decision denying Lu’s PFR, the First Circuit upheld the BIA and IJ adverse credibility in Lu’s asylum hearing. The Court stood by its prior decisions in stating “‘when a lower court accurately takes the measure of a case and articulates a cogent rationale, it serves no useful purpose for a reviewing court to write at length.’” Metropolitan Life Ins. Co. v. Zaldivar , 413 F.3d 84 (1st Cir.)(citations omitted).
Boudin, Selya, DYKPina was born to unmarried parents in the Republic of Cape Verde in 1983. His father signed his birth certificate thereby, legitimizing Pina under the Civil Code of Cape Verde. Subsequently, Pina’s father moved to the United States and became a lawful permanent resident. He continued to stay involve din Pina’s life by financially supporting him and visiting regularly. In 1994, Pina and his mother also came to the Unites States as Lawful Permanent Residents and moved close by to Pina’s father. As stated by the IJ, his parents had an informal agreement “arrangement similar to that of shared custody” and “akin to shared custody” under Massachusetts law. As Pina’s father naturalized in 1996 when Pina was 13 years old, the IJ found that Pina had derived citizenship under the CCA, 8 U.S.C. § 1431(a), and terminated proceedings. The BIA determined that Pina had not shown that his father had “legal custody” as required by the CCA and remanded the case to the IJ who then entered an order of removal.
The Court disagreed with the BIA, finding that as CCA does not define “legal custody” and the INS regulation defines the terms as “responsibility for and authority over a child”, 8 C.F.R. § 320.1, the appropriate authority to look to is state law. In looking at the Massachusetts General Laws and relevant cases, the Court concluded that the government was incorrect in stating that a court order or a filing of a joint parenting agreement was required under Massachusetts law to show joint legal custody. The arrangement between Pina’s parents demonstrated shared legal custody under Massachusetts law, therefore the Court vacated the removal order and remanded the case back to the IJ “for further proceedings not inconsistent with this opinion.”
First Circuit 
