An Algerian man who refused to give supplies to the Islamicists (for free) was denied asylum for lack of a nexus to any political opinion. The 7th Cir affirmed. "Aid did not go to the police with the intent of allying himself with the Algerian government or getting the terrorists into trouble. Rather, his motivation was self-preservation: he sought to protect himself from misdirected retribution by the army mistakenly thinking that he was working in concert with the terrorists." Found that while "reasonable minds could differ," substantial evidence does support the Board's denial.
The 7th Cir held that for the VWP waiver to be valid, it must be a "knowing and intelligent waiver," and remanded for DHS to determine whether the French-speaking Petitioner (married to a USC) knew what he was doing. Accord, Nose v. Att’y Gen., 993 F.2d 75, 79 (5th Cir. 1993).
Reasoning: The Govt argued that as someone not yet admitted, he had no constitutional rights, so no waiver had to be knowing and intelligent: "the government’s position, if correct, would mean that before an alien enters the country, the Constitution does not prevent it from confusing, tricking or coercing that alien into signing a waiver." The CtApp distinguished Eisentrager and Verdugo-Urquidez because those occurred outside the US; and noted that Boumediene suggests that even aliens seeking entry have some constitutional rights. Moreover, the waiver is prospective to a time when the alien clearly has due process rights: "While the government is correct that an alien in detention at a port of entry is not technically within the United States, see Atunnise, 523 F.3d at 838-39, the government’s analysis treats Bayo as though he were still at the border today, instead of within the United States, where he unquestionably enjoys constitutional protections against removal." Govt could have argued that contract principles don't let someone get out of their deal simply by claiming not to speak English; "[b]ut more is required for a valid waiver of constitutional rights than for an enforceable contract. See Pierce v. Atchison Topeka & Santa Fe R.R. Co., 110 F.3d 431, 438 (7th Cir. 1997) (observing that waivers of federal rights cannot be governed solely by contract law)." Govt could have taken the "more moderate stance" that it didn't try to mislead him here; "however, due process would nonetheless require that the government take steps reasonably designed to assure that the waiver is knowing and voluntary." Rejected the floodgates theory, noting that the Fifth Cir held similarly in 1993, without any wave of VWP challenges. Govt argued that Petitioner suffered no harm from signing the VWP, because if he hadn't, he'd have been excluded; but he might also have been admitted through regular channels, and then have become eligible for AOS. Ultimate holding: "we adopt the view that we assumed in Wigglesworth, and that the Fifth Circuit endorsed in Nose, that waivers of rights under the VWP must be knowing and voluntary."
Whether Petitioner understood the waiver is a question of fact. Govt argued for remand to DHS; Petitioner argued for remand to BIA. CtApp remanded to DHS, giving it leeway to design appropriate procedures to determine whether the waiver was knowing and intelligent. (Note that Govt argued that such hearings need not be adversarial or feel like an IJ hearing.)
Under 2006 regulations, IJs don't have jurisdiction to consider AOS applications by arriving aliens - but USCIS has concurrent jurisdiction to do so. The IJ and BIA denied a continuance here, because the Petitioner is an arriving alien, and so the application is outside their jurisdiction - but didn't consider the reg comment that “it will ordinarily be appropriate for an immigration judge to exercise his or her discretion favorably to grant a continuance . . . in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing.” See Interim Rule Notice, 71 Fed. Reg. at 27,589-90. Ct app held that:
1. Jurisdiction not stripped by Ali v. Gonzalez, 502 F.3d 659, 663 (7th Cir. 2007), because would have the “effect of nullifying the statutory opportunity to adjust status.” Id. at 665 (citing Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004)).
2. Found that denial of continuance to let USCIS decide Adjustment had effect of denying AOS, because (a) removals usually have to be effectuated within 90 days, (b) you cannot adjust status from abroad.
3. Noted that ability for arriving aliens to adjust in proceedings would be illusory, unless agencies coordinate: "under the new regulatory regime, unless these subagencies engage in some minimal coordination of their respective proceedings—for example, by the immigration courts favorably exercising discretion, in the appropriate case, to continue proceedings to allow the other subagency to act—the statutory opportunity to seek adjustment of status will prove to be a mere illusion."
4. Disagreed with 11th Cir in Scheerer v. U.S. Attorney Gen., 513 F.3d 1244 (11th Cir. 2008): "In our view, the fact that Mr. Ceta’s application, in accordance with the amended regulation, will not be adjudicated by the immigration courts is not a sound or responsive reason for denying his continuance request. See Sheng Gao Ni, 520 F.3d at 129-30; Kalilu, 516 F.3d at 780; see also Benslimane, 430 F.3d at 832; Subhan, 383 F.3d at 595 * * * * Indeed, granting a continuance in appropriate cases, as contemplated in the Interim Rule Notice, will ensure that the immigration courts do not intrude into the USCIS’ new role, under the amended regulations, as the sole adjudicator of adjustment applications. Furthermore, any difficulty in coordinating the proceedings—for example, after the USCIS adjudicates the adjustment application—may be resolved by counsel notifying the IJ of the ultimate outcome of the adjustment application." [Note pending cert petition in Scheerer. - CR]
5. Found that Board gave no good reason for denying continuance. Failure to file AOS with USCIS until appeal was not unreasonable under these odd circumstances (where regs enacted while case at BIA). CtApp noted that it would take 12 months to adjudicate the I-485, by which time he would have been long-removed.
6. Because it ruled for Petitioner on other grounds, did not address argument that Board's denial of the continuance was contrary to the purpose and intent of the regulation.
Interpreting Kucana v. Mukasey, No. 07–1002, 2008 WL 2639039 (7th Cir. July 7, 2008), the 7th Cir analyzed four reopening appeals, under the following analytical framework:
The facts that the Board finds, and the reasons that it gives, en route to exercising its discretion to grant or deny a petition to reopen a removal proceeding, and the discretionary decision itself, cannot be reexamined by a court, whether for clear error, lack of substantial evidence, abuse of discretion, or any other formulation of a ground for reversing an administrative decision; all the court can decide is whether the Board committed an error of law. See also Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir. 2008). That will usually be a misinterpretation of a statute, regulation, or constitutional provision. Kucana v. Mukasey, supra, at *2–4; Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir. 2008); Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006); Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153 (2d. Cir. 2006); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). But it could also be a misreading of the Board’s own precedent, as in Ssali v. Gonzales, 424 F.3d 556, 564–66 (7th Cir. 2005), or the Board’s use of the wrong legal standard, as in Azanor v. Ashcroft, 364 F.3d 1013, 1019–21 (9th Cir. 2004), or simply a failure to exercise discretion or to consider factors acknowledged to be material to such an exercise. Kucana v. Mukasey, supra, at *4; see also Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008) (“wholesale failure to consider evidence”).
The Court then proceeded to analyze several fact patterns, in consolidated cases - which are discussed after the jump.
The 7th cir reversed the Board's denial of reopening where the reasons given were that heavy fines for population control laws were not persecution, and no physical force was to be used to force sterilization - this is so, said the Govt, even if she couldn't pay and got sterilized. The Court said no:
The implication is that if a government tells a religious heretic we are going to fine you $1 million for your heresy and if you cannot pay we are going to burn you at the stake, and the heretic cannot pay and therefore is executed, the burning of the heretic would not, in the Board’s view, amount to persecution. We cannot imagine that this is really the Board’s view, since in cases like In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board has said that “a particularly onerous fine” can amount to persecution even if nonpayment does not subject the victim of the persecution to physical violence.
The CtApp did suggest potential internal relocation, but since the Govt didn't argue that point, CtApp did not pursue it.
[An interesting side issue is whether this case conflicts with the Kucana case, decided the day earlier. Judge Posner didn't specify whether the Board's error was of law or of discretion... CR]
Seventh Circuit 
