Lin-Zheng v. Att'y Gen'l (3d Cir. 2/19/09)

McKEE (for a unanimous en banc court)

The 3d Cir agreed with the BIA in Matter of J-S-, 24 I&N Dec 520 (AG 2008) and the 2d Cir in Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc), and held that spouses of women forced to have abortions cannot categorically fit within the statutory definition of refugee.  The Board had held to the contrary in Matter of C-Y-Z- and Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006).  The Lin-Zheng panel had given Chevron deference to S-L-L- in its 2-1 decision, which argument was obviously undercut by the AG's subsequent overruling of that decision.  But the 3d cir decision is actually a Chevron step one decision - that is, the CtApp found the statutory language clear in applying only to individuals actually forced to have an abortion.

[In my view, these decisions somewhat miss the point. Sure, an individual has to be individually persecuted to qualify for asylum; the question is whether you're persecuted when your wife is forced to have an abortion. If soldiers break into your house and rape a man's wife in front of them, they aren't just persecuting her; they're persecuting him, intending for him to feel helpless and violated just as she is. When the Chinese govt forcibly aborts a child, are they really intending to "get" the woman? Esp. in a society where the man has a role in the family that would generally make him the focus of group categorizations, I just don't see that. - CR]

[Oh, and one more thing - there seems to be an undercurrent in these cases of thinking that it's odd for the woman forced to abort to be left behind in China while the man escapes. But why should that be odd, if it's somehow easier for the man to escape? If the couple has to pay for two smuggling trips, that is twice as much money (him and her); if she comes alone, she's at much greater risk of victimization by snakeheads, etc. Given that she could simply and safely follow-to-join, per INA 208(b)(3)(A), I see nothing untoward in a couple sending the man ahead first. - CR]

Read decision here: 

Ponta-Garcia v. Atty Gen USA (3d Cir. 2/20/09)

BARRY Sloviter Siler

The 3d Cir joined a bevy of other courts in upholding the reinstatement of removal regulations against statutory and constitutional challenges.  [Ugh.]  But where the Petitioner presented substantial evidence suggesting that (a) his earlier removal order may well have been overturned, and (b) he had not reentered illegally, but had reentered on a validly issued LPR card, that the Agency had to look at all the issues again.

In most cases, a reinstatement determination will be simple, and the underlying grounds for reinstatement (the existence of an order of removal, identity confirmation, and the fact of illegal reentry) will not be contested. However, in circumstances such as these, where the alien claims that he contested the bases for reinstatement and offered some support for why he may be correct, the regulation requires that the immigration officer “consider [the alien’s] evidence” and “attempt to verify an alien’s claim.” 8 C.F.R. § 241.8(a)(3). As the government tells us in its brief on appeal, “ICE has the necessary expertise to determine the validity of Petitioner’s assertions.” (Respondent’s Br. 25.) Assuming that Ponta-Garcia contested before the immigration officer the notice of intent to reinstate the prior order of removal, more is required than it appears was done here.

[Ok, I think this decision stinks.  In cases where the Petitioner presents serious, non-frivolous arguments that he either didn't have a prior removal order or didn't illegally reenter the country, how can it be constitutionally sufficient to have ICE adjudicate that in a non-adversarial process, decided by non-attorneys (let alone Immigration Judges)?  And while the alien is granted the right to make a statement, is he given the right to present other evidence?  Can he cross-examine evidence presented against him?  Is he given notice of the availability of free legal advice?  Granting that Due Process might not support facial invalidation of the regulation as to most reinstatement cases, does it not seem troubling as applied to these facts?  Nor does it seem satisfactory to say that there is judicial review afterwards, since there is no requirement that the alien be advised of the right to make such an appeal, and judicial review is severely limited.  How could you make a good record for such a case? Clearly, the 3d cir just went along with a bunch of other circuits, but the whole thing stinks - CR]

Read decision here: 

Ndayshimiye v. Atty Gen USA, (3d Cir. 2/24/09)

FUENTES, Scirica, Hardiman

The 3d Cir considered the Board's formulation of the post-REAL ID standard for nexus ("at least one central reason").  The Board in In re J–B–N– & S–M–, 24 I. & N. Dec. 208 (B.I.A. 2007) found that the new law requires a showing that a reason for persecution is more than “incidental, tangential, superficial, or subordinate to another reason for harm.”

The Court of Appeals rejected the "subordinate" prong of that analysis, finding that the legislative history "demonstrates that the mixed-motives analysis should not depend on a hierarchy of motivations in which one is dominant and the rest are subordinate." However, it found the rest of the Board's analysis to be correct.  The CtApp considered that its holding was not contra other circuits, not even Parussimova v. Mukasey, 533 F.3d 1128, 1135 (9th Cir. 2008).

Despite rejecting part of the Board's formulation, the decision here was upheld. The Board had called the Petitioner's Burundian heritage "incidental" and "tangential" to the real reasons for persecution (a land dispute). There was no conflict with the persecutor until the land dispute arose; then her heritage was raised as a reason she should "go back" to Burundi and thus cede the land. Thus, said the CtApp, nationality was not a central reason.

The CtApp noted and distinguished an example raised by amici, of a Jewish shopowner attacked in Nazi Germany after a commercial dispute, finding "Where such strong evidence of religious hatred in addition to another, non-protected motivation is available, it might compel a finding of persecution based on a protected ground. In this case, however, there is simply not the same level of evidence in the record to support Petitioners’ claims." [But this isn't a proof issue - the question is whether someone who is unable to defend themselves against persecution because of their race, religion, politics, etc., is barred from asylum where one persecutor's real reason is something simpler. It seems to me that you have to take into account the social circumstances - the Jewish shopowner couldn't avail themselves of legal protections because of race/religion, that ties any other type persecution into the Nazi state's ideology. Here, the question that should have been asked was whether her heritage made the state unwilling to protect her against this persecution. -CR]

Read decision here: 

Liu v. Holder (3rd Cir., February 4, 2009)

GREENBERG, Sloviter, Irenas (distct)

Read the opinion here.