U.S. v. Jang (5th Cir. 6/30/09)

HAYNES, Davis, Owen

Jang was ordered removed to South Korea in 2003.  After failing to complete a visa application, the government indicted him under 8 U.S.C. § 1253(a)(1)(B), which criminalizes willful failure or refusal “to make timely application in good faith for travel or other documents necessary to the alien’s departure.”  Jang was convicted and sentenced to 33 months imprisonment and 2 years supervised release.  His supervision carried the additional requirement that he comply with all immigration laws, that he sign the INS Form I-229, and that he complete a South Korean visa application.

Jang was transferred to ICE custody in June 2007, but again refused to sign the I-229 or fill out the visa application.  His probation officer then filed a Petition for Offender Under Supervision with the District Court.  Appearing before the District Court, Jang finally agreed to complete all the necessary documents for his removal. However, South Korea requires that its citizens repatriate on a voluntary basis.  During his interview with the consulate, Jang candidly told the consulate that he hadn’t filled out his visa application voluntarily, and that he didn’t really wish to return to South Korea.  After the consulate refused to issue a travel document, the Government sought once again to revoke his supervision.  The District Court sentenced Jang to another 24 months imprisonment.

While before the District Court, Jang failed to make objections to the actual conviction, only his sentence. On appeal, Jang contended that plain error review was inapplicable, since both the Government’s Petition and the District Court’s oral decision did not cite a specific immigration statute that he’d violated.  However, an ICE agent had mentioned § 1253 in his testimony before the District Court, and this was good enough for the Fifth Circuit to maintain plain error review.  Further hurting Jang, the Government is only held to a preponderance standard in proceedings to revoke supervision.

Jang raised three specific arguments on appeal, two of which the Fifth Circuit inexplicably failed to address.  First, he argued that the South Korea’s voluntary repatriation requirement was an international immigration procedure, and thus outside the scope of his supervision requirements.  Second, he pointed out that the District Court was effectively requiring him to lie to the South Korean consulate.  Third, he challenged the sufficiency of the evidence.  The Fifth Circuit merely concluded it was reasonable for the District Court to find that Jang’s comments to the consulate were designed to prevent his departure, thus violating 8 U.S.C. § 1253(a)(1)(C). Judgment affirmed.

Comments

• The dystopian overtone of requiring someone to lie in order to maintain his freedom does not appear to have struck the District Court or the Fifth Circuit.  Then again, perhaps this did occur to the District Court, which was punishing Jang into subjectively desiring to leave the country.
• Criminally prosecuting this case seems excessively cruel.  The Government could have easily achieved the same objective by leaving Jang in ICE custody, and refusing to release him on an Order of Supervision.  Jang might have soon changed his mind and expressed a desire to leave to the South Korean consulate.  But now, regardless of whether Jang changes his mind, he is forced to sit in prison for another two years.  Prosecutorial discretion appears to be a dead art in the Northern District of Texas.
• It seems quite possible that Jang was unaware of South Korea's indiosyncratic requirement for repatriation. Reasonable mistake of fact defense, anyone?

Read the Opinion Here

U.S. v. Armendariz-Moreno (6/15/09)

Reavley,  Barksdale, Garza (Per Curiam)

Appellant’s criminal sentence for illegal reentry was affirmed by the Fifth Circuit in 2007.  Circuit precedent precluded the appellant’s argument that his prior conviction for unlawful use of a vehicle was not an aggravated felony (crime of violence), but the appellant sought to preserve the issue for Supreme Court review.  In light of its decisions in Begay v. U.S., 128 S.Ct. 1581 (2008), and Chambers v. U.S., 129 S.Ct. 687 (2009), the Supreme Court remanded the case back to the Fifth Circuit. “Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct.”  The Court conceded, “The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct.”  Thus, the Court remanded the case for resentencing.

Read the Opinion Here

Wu v. Holder (5th Cir. 6/11/09) 

PRADO, Jolly, Southwick

Petitioner in his case had a pending I-130 petition through his wife.  The IJ became impatient after 2 continuances, however, denied the Petitioner’s third motion for a continuance, and ordered him removed to China.  The only apparent reason for the denial was the uncertainty over when the I-130 petition would be adjudicated.  On a Petition for Review, the Fifth Circuit first noted the broad consensus among other circuits that an IJ cannot deny a continuance for processing of a nonfrivolous I-130 petition simply based on timing.  The Court pointed out the BIA’s recent decision in Matter of Hashmi, 24 &N Dec. 785 (BIA 2009), which laid out a five-factor test for this situation, and it adopted the BIA’s approach (it’s unclear from the opinion why Hashmi’s predecessor case, Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), was not followed below).  In response, the Government argued that the Petitioner had failed to present the IJ with any evidence that his marriage was bona fide.  However, the IJ didn’t base his decision on the lack of bona fides, only timing.  Thus, the IJ abused his discretion, and the Court remanded the case for a decision consistent with Hashmi.

Read the Opinion Here

Wang v. Holder (5th Cir. 6/2/2009)

HAYNES, Jones, Higginbotham

Petitioner filed her application for asylum, withholding, and CAT with the Immigration Court shortly after the passage of the Read ID Act.  She claimed that she was a member of a “secret family church of the Christian faith.”  She testified that at her last meeting with the church, she was arrested by police.  During her incarceration, she was beaten daily. After she was released to obtain medical treatment, she was still required to check in with the police every two weeks.  She was also fired from her job because of her participation in an “evil religion organization.”

The IJ made an adverse credibility finding, based on several inconsistencies between her testimony and previous statements submitted to the court.  She seemed to vacillate over the number meetings her church held, and the number of members it contained.  She also seemed to give inconsistent explanations for her return to China after briefly traveling to Singapore.  Toward the end of the hearing, her counsel twice requested a new hearing based on improper translation.  The IJ overruled this, after the Petitioner confirmed she was not having particular problems with the translator (in her brief, the Petitioner suggested that the IJ spoke Mandarin as well, but the record did not confirm this).

The Petitioner’s identity was also a matter of contention.  The Petitioner had entered the U.S. on documents (Chinese passport, U.S. visa, Chinese resident card) bearing the name “Zhijun Duan.”  She claimed that these were fraudulent, that her real name was Yanfen Wang, and she submitted several documents to support this (notarized birth certificate, different Chinese registration card, household registry, marriage certificate).  However, DHS forensics found the Zhijuna Duan documents to be authentic, as well as the Yanfen Wang registration card (which lacked a picture).  The registry that Petitioner submitted contained some apparent errors.  Also, Petitioner’s only corroborating witness didn’t appear at the merits hearing because of work.

The IJ found that the Petitioner’s testimony “was not plausible, believable or consistent enough to warrant a positive credibility finding.” The IJ characterized her testimony as “vague, hesitant and evasive.” The IJ also found that the Petitioner had not sufficiently established her identity, which was critical for a grant of asylum.  The Petitioner appealed to the BIA on two grounds: (1) IJ should have granted a continuance to obtain a new translator, and (2) the credibility determination was not supported by the record.  The BIA affirmed the IJ’s decision.

The Fifth Circuit took the occasion to enunciate the implications of the Real ID Act for IJ credibility determinations.  On PFRs, the Court still reviews factual findings for substantial evidence.  To overturn these findings, the alien “must show that the evidence was so compelling that no reasonable factfinder could conclude against it.”  Under Real ID, an asylum applicant must present testimony that is ‘credible, persuasive, and specific’ enough to show the applicant meets the definition of refugee. INA § 208(b)(1)(B)(ii).  The IJ may rely on a host of observations in making a credibility determination. § 208(b)(1)(B)(iii).  The IJ may even base an adverse finding on facts that do not go to the heart of the applicant’s claim.  Overall, Real ID manifests Congress’s general intent to provide more discretion to the IJ—this on top of the Court’s already “highly deferential review to assessments of factfinders.”  This deference exists because credibility determinations are particularly difficult to review, and the IJ is uniquely positioned to make the observations on which credibility determinations usually rest.

In Petitioner’s case, the Court found nothing in the record that compelled belief in her story.  While some evidence supported Wang’s credibility, it could not be said that no reasonable factfinder could have reached the same conclusion as the IJ.  Petitioner’s counsel only complained about the translator during cross, not direct.  The Petitioner also alleged that the IJ exhibited bias.  But the standard for bias is equally high. Even being impatient or angry on occasion is not enough to show bias.  Here, the IJ was clearly permitted to inject herself into the proceedings and ask the Petitioner questions, especially given the apparent inconsistencies in her story.  Petition denied.

Read the Opinion Here