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

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Zhang v. Holder (2d Cir. 10/30/09, no. 07-0327-ag)

Petitioner appealed the denial of her Chinese family planning asylum claim, arguing that the IJ and BIA had erred in finding her testimony incredible and in basing this determination on inconsistencies between her testimony in front of the IJ, her airport interview, and her credible fear interview.  The 2d Circuit held that the records of Petitioner's airport and credible fear interviews were sufficiently reliable to be considered by the agency and that taking these records into account.  The court further found that substantial evidence supported the agency's determination that petitioner did not testify credibly.

The court first found that the agency had correctly relied on the record of her airport interview, citing the 2d Circuit's decisions in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) and Guan v. Gonzales, 432 F.3d 391 (2d Cir. 2005).  Despite Petitioner's subsequent assertions that she was "nervous" and "afraid" during the interview, the court found that the record of the airport interview was sufficiently reliable. The court took into account that Petitioner was informed about the purpose of the interview and the importance of providing full and accurate testimony, asked about her ability to comprehend the questions asked, and given the opportunity to be interviewed in a private area.  As the interview was conducted in a non-coercive qand careful manner and appropraitely documented by the interviewing authorities, it was "sufficiently reliable" to merit consideration.

The court then turned to Petitioner's credible fear interview, a matter of first impression.  The court started off by noting that all of the concerns relevant to airport interviews - e.g., it takes place directly after arrival in the U.S. after travel and may be perceived as coercive or threatening, do not apply to the same degree in credible fear interviews. But the court noted that credible fear interviews fall somewhere in the middle of the spectrum between airport interviews and asylum interviews.  The applicant has, after several days in detention, had the opportunity to consult with a person of his choosing (HM note: REALLY?) and has been notified prior to the interview that it is very important to tell the officer all the reasons they have concerns about being removed.   On the other hand the court noted, "an alien appearing at a credible fear interview has ordinarily been detained since his or her arrival in the United States and is therefore likely to be more unprepared, more vulnerable, and more wary of government officials than an asylum applicant who appears for an interview before immigration authorities well after arrival."

Taking these considerations into mind, the 2d Circuit concluded that credible fear interviews are more like airport interviews than asylum interviews and thus warrant the close examination called for by Ramsameachire.  The court noted the distinction between a defensive path to asylum and an affirmative path to asylum.   It found it not surprising that, in some cases, "insignificant details" might not be mentioned during the credible fear interview.

The court found however that where the record of a credible fear interview displays the "hallmarks of reliability," it can appropriately be considered in assessing credibility.  It noted that although it is unclear whether a credible  fear interview report purports to be a verbatim account of the interview, the proceeding was memorialized in a typewritten document setting forth the questions as well as her responses, with the aid of a Mandarin interpreter.  The court also noted that the interviewing officer explained the purpose of the interview, the importance of providing full and accurate testimony, and the fact that Petitioner could ask for clarification at any point.  It noted moreover that Petitioner was asked questions that were clearly designed to elicit a potential basis for an asylum claim, such as whether she or her family had been mistreated or threatened in the past.  The court rejected the notion that a petitioner's claim that she was nervous and distracted during the credible fear interview automatically undermines or negates its reliability as a soure of her statements.

Based on Petitioner's omission of two forced abortions and attempted suicide in her airport and credible fear interviews, which she later testified to in front of the IJ, the 2d Circuit found that substantial evidence supported an adverse credibility finding.

Atty for Petitioner: Vlad Kuzmin, Kuzmin & Associates, P.C., New York, NY.

Read opinion here.

Wang v. Holder (2d Cir. 10/2/09, no. 07-5369-ag)

Walker, Katzmann, Roth (per curiam)

Petitioner sought asylum, withholding, and deferral under the CAT, as he feared torture by Chinese officials based on the fact that he revealed the Chinese government's secret practice of harvesting the organs and tissue of executed prisoners for profit and publicly humiliated the Chinese Government.  Petitioner had himself participated in this scheme and had extracted organs and tissue from executed prisoners himself at least one hundred times (from 1988 to 1995, at which point he began refusing to participate), and possibly was involved in the extraction of organs from live prisoners, though he asserted that he was not.  Thus, the IJ found serious reason to believe that he had committed a serious nonpolitical crime - namely torture - and found him ineligible for asylum and withholding.  However, the IJ granted deferral of removal under the CAT to Petitioner. Petitioner appealed the serious nonpolitical crime finding; the gvt appealed the CAT grant. The Board dismissed the appeal, adopting and affirming the IJ's decision.  The Board agreed that the organ extraction program would be considered criminal in the United States and under international law and found that even if Petitioner was not involved in organ extraction from live prisoners (i.e., torture), the serious nonpolitical crime bar would still be applicable due to his involvement in the government's scheme to remove organs for profit.   The Board found that even if Petitioner were eligible for asylum, they would not grant for discretionary reasons.

The 2d Circuit first looked at the standard of proof, citing its 2004 decision in Khouzam v. Ashcroft as holding that the "serious reason to believe" standard is equivalent to probable cause.  The court then looked at the treatment of for-profit organ harvesting under U.S. federal law and agreed that participation in the organ harvesting scheme was a serious crime, and nonpolitical.  It also noted in a footnote that, though not dispositive, this determination is further supported by the general condemnation of this type of behavior by the world community, including China.  The court did not address the agency's conclusion that Petitioner committed torture or the Board's statement that it would deny asylum in the exercise of discretion.  Finally, as the government did not appeal the CAT grant to the 2d Circuit, the court left this in place.

PFR denied.

Atty for Petitioner: John F. Clark, Holland & Hart LLP, Washington, D.C.

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Santoso v. Holder (2d Cir. 9/14/09, 07-4713-ag)

Calabresi, Cabranes, Hall (per curiam)

The 2nd Cir. denied this PFR, rejecting Petitioner's claim that the IJ had failed to adequately address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics in Indonesia.  The 2nd  Cir. found that the IJ had in fact adequately addressed this claim and that its finding that no such pattern or practice exists is supported by substantial evidence.  The court rejected Petitioner's reliance on Mufied v. Mukasey (2d Cir. 2007), where the court *did* remand so that the agency could consider whether a pattern or practice existed.  In Mufied the IJ ignored the petitioner's pattern or practice claim while here the IJ addressed the claim but found no pattern or practice.  Furthermore, the IJ and BIA's failure to articualte the precise standard they applied to analyze the pattern or practice claim was not required under Mufied.  Finally, the court found no error in the agency's determination that petitioner had not established a pattern or practice, noting that the IJ considered the background materials provided by petitioner.  The court also took judicial notice of the fact that "Indonesia is a nation state consisting of approximately 6000 inhabited islands and that, in many places, Roman Catholicism is predominant."

PFR denied.

Atty for Petitioner, H. Raymond Fasano, Madeo & Fasano, New York, NY.

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