Stolaj v. Holder (6th Cir. 8/19/09)

ROGERS Thapar (dct) - Moore concurring in the result

The Petitioners were Albanians whose asylum applications had been mysteriously approved out of the New York Asylum Office by an AO supervisor later charged with accepting bribes.  The Asylum Officer was convincted in 2000.  Mr. and Mrs Stolaj had adjusted to LPR status in 1998 (though their LPR status was presumably backdated one year, per 8 CFR 209.2(f)); the NTA against the Stolaj family wasn't issued until 2003, just less than 5 years after the grant of LPR status.

That didn't stop the Sixth Circuit from purporting to agree with the 4th, 8th, and 9th cirs, Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004); Kim v. Holder, 560 F.3d 833, 836-38 (8th Cir. 2009); Monet v. INS, 791 F.2d 752, 754 (9th Cir. 1986); Oloteo v. INS, 643 F.2d 679, 681-83 (9th Cir. 1981), as well as the AG.  Matter of Belenzo, 17 I. & N. Dec. 374 (A.G. 1981), Matter of S—, 9 I. & N. Dec. 548, 557 (A.G. 1962), as against the Third Circuit.  Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996); Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009).  There is a circuit split on the issue of whether there is a statute of limitation for removal proceedings based on fraud in obtaining LPR status, which is currently the subject of a cert petition.  The Sixth Circuit indicated that it agreed with the majority, particularly disputing with the Third Circuit that this reading would leave the rescission statute without a purpose:

[T]he Third Circuit did not sufficiently credit the important role played by the statute of limitations on rescissions even though it does not apply to removal proceedings. As the Fourth Circuit explained, the five-year statute of limitations on rescission of status has a meaningful role because the INA provides far fewer procedural protections for rescission proceedings than for removal proceedings.

[CR: this has always struck me as a weak argument.  First, if there is any response from the person whose status is sought to be rescinded - or a simple request for a hearing - that person is given a hearing before an IJ which doesn't seem to have procedurally weaker protections than regular removal proceedings.  8 CFR 246.3, 246.4.  Second, to the extent that any of the basic fundamental fairness protections of removal proceedings don't apply to rescission (and I can't think of any that don't), that would strike me as constitutionally problematic - can you take away someone's LPR status without notice and a reasonable opportunity to be heard?]

The 6th Cir also rejected the argument that asylum status needed to be terminated prior to removal proceedings, applying Matter of Smriko, 23 I. & N. Dec. 836 (BIA 2005) to hold that asylees do not have "immunity" from removal due to their status.

The 6th Cir upheld the denial of a subpoena, finding that the Stolaj's didn't show that they had made a "diligent attempt" to locate the witnesses.  It found no constitutional problem with the refusal to permit cross-examination, because the confrontation clause doesn't apply in removal proceedings.  [Did no one cite 8 USC 1229a(b)(4)(B) (guaranteeing the right to cross-examine governmental witnesses)? So sad... - CR] 

Finally, the 6th Cir summarized the evidence and found that substantial evidence supported the IJ's finding that the Govt had proven its case by clear and convincing evidence.

Judge Moore concurred, finding no need to reach the disputed 5 year issue, in light of her assessment that the Stolaj's were removable for the act of obtaining asylum by fraud, which was precedent to and independent of, any LPR fraud. 

Read decision here: 

Alhaj v. Holder (6th Cir. 7/10/09) (publication order entered 8/7/09)

DAUGHTREY, Rogers, Kethledge

Mr. and Mrs. Alhaj are Yemenis seeking asylum on account of love.  Mrs. Alhaj had been forced by her family to marry a much older man, whose first wife could not bear children.  Mr. Alhaj noticed that she seemed persecuted.  They began an illicit affair, which was detected.  Eventually, she became pregnant, and they fled (separately) to the US.  They called the 1st husband and he granted a divorce; but he would kill them if they returned to Yemen. 

1.  IJ denied VD on grounds that he didn't have a visa to go to any country other than Yemen, and he didn't want to go there.  CtApp upheld the VD denial, because IJ was within his authority to require proof that he could lawfully enter any other country (per the regulations, 8 C.F.R. § 1240.26(c)(2) (2008)).  Note that 1252(a)(2)(D) restored jurisdiction over this legal argument, notwithstanding 1252(a)(2)(B)(i) (stripping jurisdiction over VD denials).

2.  The CtApp found that husband (and wife) weren't being persecuted on account of a Particular Social Group (PSG), but because of the affair.

Alhaj suggests that his wife is a member of such a group – the group of young women forced to marry older men – and that his association with his wife results in his membership in the group as well. Without regard to whether such a grouping would even meet the criteria of “a particular social group” entitled to protection under the Immigration and Nationality Act, see, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 546 (6th Cir. 2003) (defining “the term ‘particular social group’ as composed of individuals who share a ‘common, immutable characteristic’”), or whether Alhaj’s attempted formulation of a transitive property of persecution is valid, the fundamental basis of the petitioner’s argument in this regard is so flawed that it dooms his prospects for success on the issue.

As noted by the government, any persecution suffered by or threatened toward Alhaj is not the result of either Ekhlas’s first marriage or of the petitioner’s opposition to the  practice of older Yemeni men forcing younger women to marry them. Instead, the purported violence displayed toward Alhaj by Ekhlas’s ex-husband is solely in the nature of a personal vendetta against the petitioner for carrying on an affair and conceiving a child with his then-wife.

Isn't this really about love?  This woman was forcibly married to an older man, and held there by fear.  These two fell in love, and face severe repercussions from that, due primarily to Yemeni society's treatment of marriage.  Because she had been married to the older man, society will let him seek to punish the young couple.  But that happened because Yemeni women are forced to marry, and forced to marry older men.  The nexus is not as direct as it might be, but the persecution seems directly linked to that cause. 

3.  The CtApp denied CAT relief on nonsensical grounds. The ex-husband is a powerful man in Yemen, powerful enough to arrange for the detention of his ex-wife's father (though local govt officials secured his release within a few days). But, says the CtApp:

The potential harm that might be visited upon Alhaj upon his return to Yemen does not constitute “torture” under the Convention because it does not originate from pain or suffering either initiated by a public official or inflicted with the consent or acquiescence of such an official. Furthermore, even though Alhaj asserts that his wife’s ex-husband is a powerful man within Yemen, it is also true that when that ex-husband allegedly arranged for the detention of Ekhlas’s father, government officials intervened and released Alhaj’s father-in-law unharmed after two or three days of incarceration. Any such treatment by a nongovernmental entity, rectified by official government actors, does not constitute torture under the Convention Against Torture and, thus, does not entitle the petitioner to the relief he now seeks.

First, if Alhaj were caught and beaten/killed/imprisoned by the ex-husband, with the acquiescence of local authorities, why wouldn't that "originate" from pain inflicted with the consent or acquiescence of public officials?  Second, why does the fact that the ex-wife's father was released unharmed after two days suggest that he would be similarly unharmed?  Wouldn't the spurned lover be likely to be angrier at the man who seduced his wife than at the ex-wife's father?  And why would such action, if "rectified" by official govt actors, not constitute torture? 

Read opinion here: 

King v. Holder (6th Cir. 7/10/09)

GRIFFIN Sutton Lioi (Dct)

The 6th Cir upheld as supported by substantial evidence the finding of an IJ that Ms King engaged in marriage fraud. Apparently, Mr. King was homosexual and married her as a favor.  The 6th cir found that either he was lying, or she was lying.  And they found it odd that she didn't notice that Mr. and Mr. King were living together and had adopted an infant child while she was supposedly living in the house.  Mrs. King said her credibility had to be presumed, because the IJ didn't make any express adverse credibility finding; but in fact, the IJ had found her not credible, and the 6th cir said she'd lose even if she hadn't been found non-credible.

[CR: Is this a close case? Why publish?  (Note that this disposition was originally unpublished.) Easy cases make bad law, and that offhand comment at the end, that substantive evidence would support this holding even if there were no adverse credibility finding is a perfect example.]

Read opinion here: 

Zhao v. Holder (6th Cir 6/16/09)

DOWD (dct) Martin Gillman

The 6th Cir amended its earlier decision to take note of the AG's decision in In re J-S-, 24 I&N Dec. 520, 536-38 (A.G. 2008), but that seems mostly irrelevant to the case.  The 6th Cir upheld the IJ's adverse credibility finding against a Chinese asylum seeker, because of various discrepancies between his testimony and his asylum application, and because he didn't offer corroboration from his family (which he could have obtained).

Read opinion here: