Rajah et al v. Mukasey, 2nd Cir. (9/24/08, case nos. 06-3493-ag; 06-3811-ag; 06-4102-ag; 06-5390-ag)
WINTER, Walker, Calabresi
In consolidated case of 4 individuals placed in removal proceedings and ordered removed following their registration as part of the post-9/11 NSEERS (Special Registration) program, the Second Circuit rejected all of petitioners’ legal challenges to the NSEERS program and the deportation proceedings brought against them. In short, the court found (1) statutory authorization for NSEERS is found in the registration provisions of the INA (2) the gvt was not required to follow notice & comment as set forth in the APA because the foreign affairs exemption applied (3) the program passed rational basis scrutiny and thus did not violate equal protection (4) there was no 4th or 5th amendment violation requiring suppression of evidence (5) although regulatory violations did take place, these violations did not warrant invalidation of the deport orders, suppression of evidence, or termination without prejudice.
With the exception of petitioner Rajah, whose case was remanded according to Judge Calabresi’s separate opinion in case no. 06-3493-ag, the court denied the PFRs.
Petitioners filed PFR challenging BIA's order affirming IJ's denial of their motion to suppress statements obtained after immigration officials allegedly seized them on the basis of their race and nationality for questioning at the airport. The court affirmed the Board's order, finding that petitioners had not been seized within the meaning of the 4th Amendment b/c their encounters while disembarking from a plane from Guatemala with the agents had been consensual. In particular, the court focused on the fact that petitioners had not been physically restrained, ordered to stop, or otherwise coerced to answer questions, and that - as the agents were plainclothes officers who did not identify themselves as immigration officials - petitioners were not compelled to respond to an assertion of authority. This conclusion was bolstered by the fact that petitioners had testified that they did not know the persons approaching them were law enforcement officers.
Petitioners’ testimony before the IJ does not suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions when the agents approached them. Nor can petitioners plausibly argue that they answered the agents’ questions in response to an assertion of authority. Petitioners testified that they were not aware that the persons approaching them were law enforcement officers. Indeed, the agents were not dressed in uniform, did not display their badges, or otherwise identify themselves as immigration officials.
Moreover, the court, relying on the Supreme Court's opinion in INS v. Delgado, 466 U.S. 210 (1984), concluded that the fact that the agents were blocking the ramp while petitioners disembarked from the plane did not make the encounter a stop or seizure meriting 4th Amendment protections. Just as Delgado had held that INS agents' presence at factory doors, in order to ensure that all persons inside the factories were questioned, was not a seizure, the agents' presence at the ramp here was not a seizure since the agents' conduct "should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Delgado at 218.
Although the court did not find a 4th Amendment violation in the case at hand, it did - citing its decision in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006) - acknowledge that, under Lopez-Mendoza, exclusion of evidence would be appropriate if record evidence established an egregious violation that was fundamentally unfair or a violation that undermined the reliability of the evidence in dispute. The court also cited its decision earlier this year in Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) for the proposition that a seizure that was not especially severe might nevertheless qualify as an egregious violation if the stop were based on race. The court left open the question of whether use of the INS Protocol in place - which used criteria including "Mestizo physical appearance" and choice of flight - would constitute an egregious violation warranting exclusion, declining to consider this question since petitioners had not been seized. The court noted:
In addition, although the IJ and IA both concluded that there was nothing unreasonable or egregious about the encounter between
petitioners and the immigration officials, the affidavit of the special agent in charge of the operation indicates that “[i]n determining who would be identified for questioning, the protocol dictated that
Agents look for passengers” who, inter alia, had a “Mestizo physical appearance.”
The 2nd Circuit considered this PFR in which petitioner argued that the procedure for reinstating a prior order of removal (1) is not authorized by statute, and (2) violated his right to due process. The court disposed of both claims, relying heavily on its decision earlier this year in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2nd Cir. 2008). In addition to citing Garcia-Villeda, the court held that petitioner here, who had elected not to contest the predicate facts underlying the reinstatement order before the agency or in his petition (rather than conceding them as had the petitioner in Garcia-Villeda), could not claim that the procedures in place violated his due process rights. Petition for review denied.
Jin v. Mukasey (2nd Cir. 08/15/08, docket nos. 05-5485-ag, 05-6367-ag,
06-0004-ag, 06-2998-ag)
WALKER,
Cabranes, Sack (concurring)
In this consolidated appeal of 4 cases, the 2d Circuit
joined the 3rd, 7th, 8th, and 9th
Circuits in agreeing with the Board’s published decision in In re C-W-L, 24
I&N Dec. 346 (BIA 2007) that petitioners, who sought to file successive
asylum applications more than 90 days following their final orders of removal,
based on changed personal circumstances alone, could not do so without also
showing changed country conditions, as required under the INA and regs when
filing an untimely motion to reopen in conjunction with an asylum
application.
The court engaged in
statutory interpretation, according Chevron deference to the Board’s decision,
and found the Board’s interpretation of the law - that an untimely motion to
reopen had to accompany a successive asylum application filed more than 90
after the final order to removal – was not arbitrary, capricious, or manifestly
contrary to the statute.
Moreover, the court rejected the petitioners’
constitutional claims, finding that the Board’s interpretation violated neither
due process nor equal protection.
Finally, the court rejected the petitioners’ international law claims
since neither the UN Protocol nor CAT created enforceable individual rights
beyond what had been implemented in statutes and regs, and domestic statutes
superseded any other conflicts with customary international law.
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.
Second Circuit 
