Shao et al v. Mukasey, No. 07-2689-ag, October 10, 2008

RAGGI, Wesley, Livingston

The three petitioners in Shao filed PFRs, appealing the BIA’s published decisions in their cases, Matter of J-H-S, 24 I&N Dec. 196 (BIA 2007); Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007); Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007). The Shao petitioners challenged, not the Board’s construction of 8 § USC 1101(a)(42); (INA §101(a)(42)(definition of a “well-founded fear), but rather, the application of its analysis to the facts of each of their cases, arguing the agency erred in denying asylum and in the case of one petitioner, reopening for asylum.

The Court first summarized the procedural history of the cases:

As to Shao, the lead petitioner, the Court addressed its decision on a prior petition for review in which it affirmed the agency’s adverse credibility finding but remanded for the Board to consider whether Shao’s case was distinguishable from that of the petitioner in Huang v. INS, 421 F.3d 125 (2d Cir. 2005). In Huang, the Court had found that the petitioner did not have a well-founded fear of persecution because his children were born in the United States, whereas Shao’s children were born in China. The 2d circuit remanded, stating the Board was in the better position to consider the definition of a “refugee” in this regard, because of its “foreign and public policy” considerations.

Petitioner Shi

Shi had originally been ordered removed in absentia, and 8 years later moved to reopen his case after marrying a USC and fathering a child.  Shi won his case before the IJ, only to have the grant of asylum reversed by the Board, finding that Shi did not prove that his fear was objectively reasonable. Specifically, Shi did not provide any evidence that China’s one-child policy would result in persecution to him as the father of US-born children (the Board also dismissed Shi’s claims that he and his wife would be persecuted if they chose to have another child as too speculative, and that he would be jailed for having left China illegally as also not objectively reasonable or on account of a protected ground).

Guo feared being subjected to China’s policy of forced sterilization because she had one child born in China and wished to have more children with her husband. Eventually, by the time of her merits hearing, Guo had another child born in the US and had adopted another child from China. Also, in China, Guo had been subjected to a mandatory IUD implant and a forced abortion. The IJ made an adverse credibility finding, based on inconsistencies and demeanor. The Board affirmed. Thereafter Guo filed two subsequent motions to reopen; one in 1999 to raise a CAT claim (denied by the Board because it did not address the IJ’s previous adverse credibility finding) and a second in 2003 to raise a claim of changed circumstances, providing evidence that China’s one-child policy continued to be applied (denied by the Board because although documents were “new,” they did not support a “changed circumstances” argument). Guo filed a PFR following denial of her 2003 MTR, which the 2d circuit remanded to the Board, having found that it failed to adequately consider the evidence, which was new and material.

The Court then summarized the Board’s precedential decisions regarding these three petitioners.  In Matter of J-H-S-, the Board had held that Congress’ definition regarding a well-founded fear of forced sterilization or abortion was not a categorical one, and thus, could not be read to apply to all Chinese individuals who fear such a practice across the board. Rather, the Board held that the definition had to be applied on a case-by-case basis, using a three-step analysis, which the Second circuit summarized as follows:

“has petitioner (1) identified the government policy implicated by the births at issue, (2) established that government officials would view the births as a violation of the policy, and (3) demonstrated a reasonable possibility that government officials would enforce the policy against petitioner through means constituting persecution?”

The Board likewise applied this analysis to the respondent’s case in Matter of J-W-S- as well, and as to its third precedential decision in Matter of S-Y-G-, applied a modified version of this analysis in the context of a motion to reopen based on China’s one-child policy, which the Court quoted as follows:

“Preliminary to reviewing the record evidence relevant to this question, the BIA noted (1) the law’s general inclination to view motions to reopen with disfavor… (2) the Board’s ‘broad discretion over motions to reopen,’…(3) its disinclination to exercise that discretion favorably in the case of an alien, such as petitioner, ‘who was previously found to have offered incredible testimony to gain immigration benefits’…and (4) the movant’s burden, in any event, to “‘establish prima facie eligibility for asylum, i.e., a realistic chance that [s]he will be able to establish eligibility’...."

Evaluating the three cases thus, the Board denied all of the claims raised by the petitioners. Finding no legal error in the Board’s formulation, the Second circuit affirmed the denials (the Court also noted that the Board’s analysis in this case provided guidance for “pattern and practice” claims by Chinese nationals as well per 8 CFR § 208.13(b)(2)(iii)).

First, applying Chevron deference, the Second Circuit approved of the Board’s statutory interpretation of 8 USC § 1101(a)(42), declining to adopt a categorical definition of “well-founded fear” and instead, applying a case-by-case approach to the meaning of the term. Second, the Court affirmed the Board’s finding that each petitioner failed to demonstrate that their well-founded fear was objectively reasonable, after an examination of the various reports and evidence on China’s one-child policy.

As to petitioner Shi, the Court found no due process violation by the Board, where it took administrative notice of a document not in the record – the State Department’s 2007 Profile for China – for support of its decision. The Court noted the Board’s authority to take administrative notice per 8 C.F.R. § 1003.1(d)(3)(iv); reiterating that while State Department reports are not “binding,” they are “usually the best available source of information.”  Also, Shi had previously submitted the 1998 State Dept Profile, and so it was reasonable for the Board to update the record with the most recent Profile. The Court stated that, although it would have been preferable for the Board to have apprised Shi of its intention to take judicial notice of the 2007 Profile, it found no due process violation. The Court distinguished Shi’s case from its decisions in Chhetry v, US Dept of Justice, 490 F.3d 196 (2d Cir. 2007) and Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007), in which the Board’s sole basis for denying relief were facts taken by judicial notice. Here, the 2007 Profile corroborated the facts already in the record.

The Court stated that Guo’s burden was the highest of all three petitioners because her case was procedurally in the context of a motion to reopen. Reiterating that MTRs are generally disfavored and require new, material evidence, the Court reviewed the Board’s denial under the deferential abuse of discretion standard, finding none here.  The Court addressed Guo’s argument that the Board committed legal error because its three-part test enunciated in Matter of J-H-S- and J-W-S- essentially imposes a higher burden of proof on asylum applicants, who need only show a “reasonable possibility” of persecution. It rejected this claim, finding that the Board’s test was instead a reasonable means to analyze whether a petitioner could in fact show that persecution was a reasonable possibility. Likewise, the Court affirmed the Board’s denial of a motion to reconsider made by Guo, finding that Guo “simply repeated” previous arguments and did not point to any error of fact or law in its decision. Although she submitted new evidence, she did not explain why it had not previously been submitted, and in any event, the Board considered it only to find it unpersuasive.

Read opinion here:

Matadin v. Mukasey (2nd Cir. 10/8/08, No. 06-4742-ag)

POOLER, Straub, Walker (concurring)

Petitioner entered the US as an LPR in 1994 at age 12 but returned to Guyana at age 17, in September 1999, and remained there for the next 30 months. Upon her return to the U.S. in April 2002, DHS concluded that she had abandoned her LPR status and initiated removal proceedings. The IJ found that Petitioner bore the burden of proving that she had not abandoned her residency since she had been continuously absent for more than one year prior to seeking readmission. Petitioner argued that she was in Guyana solely to care for her sick father. However, the IJ held that she had not met her burden of demonstrating lack of abandonment, finding:  (1) She had only a passing knowledge of her father's actual medical condition while residing with him in Guyana; (2) She owned no property in the U.S.; (3) She did not work in the US before departing age age 17; (4) She finished school in 1995 and indicated no intention of resuming studies in the U.S.; (5) She married a Guyanese national while in Guyana but made no attempt to secure LPR status for him while in Guyana; (6) She had no contacts with the U.S. while in Guyana; (7) She had given inconsistent testimony re: whether her father had sustained a second heart attack; (8) She was employed as a sales clerk in Guyana for a year. Based on these findings and the length of her absence, the IJ found that Petitioner had abandoned her residency and ordered her removed.  The Board affirmed, adding only that Petitioner presented no unforeseen circumstances that would explain her delay to the U.S.

The 2nd Cir. vacated the removal order, finding that the IJ and Board had erred as a matter of law in assigning the burden of proof to Petitioner. The court looked to the Board's decision in In re Huang, 19 I&N Dec. 749 (BIA 1988) and 8 CFR 211.1(a)(2).  Although the IJ had cited these authorities to support his conclusion that the burden shifted back to Petitioner since she had been gone for over a year, the 2nd Cir. looked to them and found nothing supporting such a conclusion. Thus, the court found that, as Petitioner had presented a colorable claim to returning resident status, DHS bore the burden of proving by clear, unequivocal, and convincing evidence that Petitioner had abandoned her LPR status. 

Because the court did not have assured confidence that the agency, on remand, would conclude that Petitioner's trip was not a temporary trip abroad, it remanded to the Board to make relevant factual findings: 

In light of this erroneous standard of proof, the IJ’s factual finding that Matadin was not in Guyana solely to care for her sick father meant only that, according to the IJ, Matadin had not shown by a preponderance of the evidence that she was in Guyana solely to care for sick father. This was not a suitable, or relevant, factual finding. Rather, the relevant factual inquiry was whether it could be “found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation [were] true.” Woodby, 385 U.S. at 286; see also Huang, 19 I. & N. Dec. at 754 (adopting rule of Woodby that “in deportation hearings [against those with a colorable claim to returning resident status] the Service must establish facts supporting deportability by clear, unequivocal, and convincing evidence”

 

Concurring, Judge Walker pondered whether the Board's decision in Huang merits Chevron deference but decided not to reach this question because he believed that the decision there articulates the proper framework for alloating the burden of proof.  Judge Walker also considered whether remand would be futile, finding this question "exceedingly close" but concluding that it was possible for a reasonable factfinder to find the evidence of the nature of Petitioner's trip equivocal, which would mean the party that did not bear the burden of proof should prevail. Thus, Petitioner's claim was not necessarily doomed by her failure to introduce persuasive evidence of her continuous intent to return to the U.S.

PFR granted, remanded to BIA.

Atty for Petitioner: Harry DeMell, New York, NY

Read opinion here  

Ajlani v. Chertoff (2d Cir. 10/7/08, No. 07-1170-cv)

RAGGI, Wesley, Livingston

The 2nd Cir. rejected this PFR of district court's finding that it lacked jurisdiction to review the propriety of pending removal proceedings and that pending removal proceedings precluded plaintiff from stating a present claim for naturalization relief.

Plaintiff applied to natz and his application was granted. However, before he took his oath, he left the country and tried to re-enter through Canada. The border officials took a closer look at his immigration status, found that he had 2 CIMTs, and served him with a notice to appear for removal proceedings.  Because the gvt had not filed the appropriate docs with the immigration ct to initiate the hearing, proceedings were terminated. The exact same day, CIS sent him a notice to appear at a natz oath ceremony on October 18, 2006.  However, on October 17, the USCIS NY District Director issued a motion to reopen Ajlani's natz proceedings pursuant to 8 CFR 335.5, and on October 18 Ajlani was served with this motion and not allowed publicly to take the oath of citizenship. On December 20, 2006, Ajlani was issued an NTA and placed in removal proceedings. These proceedings are still pending. Prior to the initiation of removal proceedings, Ajlani, pro se, filed suit in federal ct requesting declaratory relief, a writ of mandamus compelling adminstering of oath, or a judicial administration of that oath.  Defendants filed a motion to dismiss. Ajlani, still pro se, added a claim that the pending removal proceedings were unconstitutional, discriminatory, without merit, and violative of due process. The district court dismissed the suit and Ajlani appealed.

The 2nd Cir. first rejected Ajlani's argument that he was effectively natzed on October 18, because he had not met requirement that oath be taken in a public ceremony.  In addition, he did not acquire USC status under 8 USC 1101(a)(22)(B). Next, the court agreed with the district court that  it lacked jurisdiction to consider Ajlani's constitutional challenges since he had not exhausted admin remedies. 

The court then joined the 5th, 6th, and 9th Circuits in concluding that Ajlani, through a 8 USC 1447(b) action, could not be granted citizenship - either by the court or by compelling CIS to act - while removal proceedings were pending against him, because such relief is forbidden through 8 USC 1429, which prohibits natzing where removal proceedings against the applicant are pending. The court reasoned that 1429 limits the courts' authority to grant natz pursuant to 1421(c) (challenging natz denials) or 1447(b) (challenging natz delays):

Mindful that the animating principle behind § 1447(b) relief is the need to protect against executive delay, we conclude that Congress did not contemplate judicial orders of naturalization under circumstances where Congress has called an explicit statutory halt to the executive’s ability to give any further consideration to an alien’s naturalization application until removal proceedings end. Like the Sixth Circuit, we think district court authority to grant naturalization relief while removal proceedings are pending cannot be greater than that
of the Attorney General. See Zayed v. United States, 368 F.3d at 906. To hold otherwise would be to restart the race that Congress attempted to end between naturalization and
removal proceedings in the Internal Security Act of 1950 and various successor statutes, see Shomberg v. United States, 348 U.S. at 544, in circumstances where that race would appear particularly inappropriate, i.e., where information belatedly comes to the executive’s attention indicating not only that an alien’s naturalization application may have been improvidently granted but also that the alien should, in fact, be removed from the United States.

 

PFR denied. 

Atty for petitioner: Scott Bratton, Margaret Wong & Associates, Cleveland, OH. 

Gertsenshteyn v. Mukasey, 2nd Cir. (9/25/08, case nos. 07-1183-ag)

CALABRESI, B.D. Parker, Underhill

Petitioner, a citizen of Ukraine who was convicted of violating and conspiring to violate 18 U.S.C. § 2422(a), prohibiting the enticing of individuals to travel in interstate or foreign commerce to engage in prostitution, filed PFR following BIA’s determination that he had been convicted of an aggravated felony.  In order to constitute an ag fel under 8 U.S.C. § 1101(a)(43)(K)(ii), INA § 101(a)(43)(K)(ii), the crime of which he had been convicted had to have been committed for commercial advantage.  The IJ, affirmed by the Board, held that his crime was an ag fel, relying on evidence in the record along with petitioner’s testimony, to conclude that the crime had been committed for commercial advantage, despite the absence of this element from the criminal statute in question.  The 2d Circuit reversed, holding that the Board had erred in considering evidence outside the record of conviction to find that petitioner had committed his offense for commercial advantage and rejecting the Board’s reasoning and gvt’s arguments that a new approach was warranted here.  The court then remanded to the Board to consider whether, within the legal framework that remained the law in the 2d Circuit (i.e., following either the categorical approach or modified categorical approach where the statute is divisible), petitioner’s conviction was an ag fel. 

DETAILED SUMMARY AFTER THE JUMP

Read opinion here:  

See previous blog entries summarizing other circuits' (mostly contrary) opinions on this issue:

Ali v. Mukasey (7th Cir. 4.4.08) (finding that the Board is not obligated to apply a categorical test to the CIMT determination)

Nijhawan v. Atty Gen'l (3d Cir. 5.4.08) (finding Taylor inapplicable to 10K loss in fraud AggFel case)

Arguelles-Olivares v. Mukasey (5th Cir. 4.22.08) (permitting use of PSR to show amount of loss in fraud case)

Kawashima v. Mukasey (9th Cir. 7/2/08) (finding 10K loss in 101(a)(43)(M) is element and was not proven, with concurrence urging rejection of strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).)