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HomeGeneral Immigration 7th Cir (Posner) interprets "questions of law" for reopening cases, post-Kucana
7th Cir (Posner) interprets "questions of law" for reopening cases, post-Kucana
Wednesday, 16 July 2008
Huang v. Mukasey (7th Cir. 7/15/08)
POSNER Sykes Tinder
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.
1. Compared Li with Lin v. Mukasey, a 7th Cir case days earlier - there, the Board made an error of law - here, Board simply weighed differently.
One of the cases before us today, Li’s case, No. 07–3840, is almost identical to Lin, but with the critical difference that rather than suggesting that forced sterilization is not persecution as long as it just backs up the “social compensation fee,” the Board found that there was no indication that the fee to which Li might be subjected if she were returned to China and punished for violating the one-child policy would be so stiff as to place her in danger of being forced to undergo sterilization as a sanction for failing to pay it. The Board did not intimate, as it had in Lin, that so long as forced sterilization is used merely against people who fail to pay the fee for having more than one child, it is not persecution. Li is in the position therefore of merely disagreeing with the weight that the Board placed on the various items of evidence (country reports, provincial regulations, an unauthenticated notice from the government of Li’s village, etc.) en route to its discretionary denial of the petition to reopen. No question of law is presented. We therefore have no jurisdiction to decide whether the petition should have been granted.
2. Regarding reopening for new evidence where adverse credibility decision already made:
The fact that evidence presented in support of a claim of asylum is rejected as noncredible has been held not to foreclose the reopening of the removal proceeding on a separate ground. Gebreeyesus v. Gonzales, 482 F.3d 952, 955 and n. 3 (7th Cir. 2007); Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000); Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir. 2006); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004); Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001). Those holdings are rulings of law, and if the Board has rejected them, by holding that an immigration judge’s refusal to credit any part of an asylum applicant’s testimony precludes reopening even if the disbelieved testimony is at once inconsequential and unrelated to the grounds presented in the petition to reopen, its rejection would present a question of law that we would have jurisdiction to consider. But all the Board did in Zheng’s case was refuse to allow his petition to reopen to be used as a vehicle for reopening credibility issues. * * *
Since Zheng had been found to have lied at the hearing about both his claims, religious and population-policy persecution, he would have had to present evidence in support of reopening that was in no way dependent on his discredited credibility in order to establish a well-founded fear of persecution on the same grounds if he is returned to China. Guo v. Ashcroft, supra, 386 F.3d at 562; cf. Guo v. Gonzales, supra, 463 F.3d at 114. His own and his wife’s affidavits, and unauthenticated and possibly fraudulent documents purportedly from the church and the village government, were not evidence that could be assumed to be uncontaminated by his demonstrated propensity to lie to obtain asylum. The Board is not required to ignore such a propensity in assessing such evidence, and so its decision in Zheng’s case is within its discretionary authority and therefore unreviewable by us.
3. Analysis re ineffective assistance (dicta, since Board refused to reopen because it didn't toll the deadline, because it didn't believe her):
Had the Board refused to reopen the removal proceeding because it did not think that Huang had received ineffective assistance from her lawyer, rather than because the petition to reopen had been untimely, the petition for review might be thought to present a question of law. Or might not; the issue is treated inconsistently in our cases. Compare Sanchez v. Keisler, 505 F.3d 641, 647–48 (7th Cir. 2007); Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir. 2004), indicating “yes,” with Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir. 2007), indicating “no,” and Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807–09 (7th Cir. 2003), and Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), both leaning to “no.” We need not try to eliminate the inconsistency in this case.
CR Analysis: Judge Posner lucidly explains several different types of claims over which the 7th Cir still has jurisdiction after Kucana - but what is striking is that the Real ID Act is interpreted by the Court to restrict jurisdiction over asylum reopening appeals, which no court had held were foreclosed by the initial introduction of 1252(a)(2)(B)(ii). Judge Posner's analysis demonstrates the many avenues that continue to be available to litigants to challenge reopening denials. But this analysis, which may be an attempt to somewhat remediate the Kucana decision, still leaves the scope of federal review over reopening denials immensely more limited than it previously was.
Another interesting little tidbit. Every attorney in this case was from New York City, and there was not a reply brief filed by any one of these Petitioners, in four cases.
Attorneys: Yirmin Chen (NYC), Michael Brown (NYC), Gary Yerman (NYC), Ted Cox (NYC).
General Immigration 
