Gaiskov v. Holder (7th Cir. 5/28/09)

FLAUM Coffey Kappala (Dct)

The 7th Cir upheld the Board's finding that an Indiana statute criminalizing "touching" of a minor for sexual pleasure - without regard to which part of the body is touched - constitutes sexual abuse of a minor for purposes of the AggFel statute.

The Indiana offense barred "perform[ing] or submit[ing] to any fondling or touching, of either the child or the older person, with the intent to arouse or satisfy the sexual desires of either the child or the older person" - it applied to minors ages 14 and 15, and where the adult was 18+, and more than 4 yrs older than the victim.  Under the 7th Cir's decision in Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir. 2005) - which upheld the BIA's decision in Matter of Rodriguez-Rodriguez, 22 I.&N. Dec. 991, 993-94 (B.I.A. 1999) under Chevron - the result was basically preordained.  Gaiskov argued that touching was too innocent to qualify and that there was no harm to the child - both arguments were rejected.

Gaiskov contends that a conviction under the Indiana statute cannot be considered sexual abuse of a minor because the prohibited conduct includes touching that is too minor to constitute sexual abuse. Specifically, he argues that the Indiana statute does not fit within the definition for “sexual abuse of a minor” because it does not require the touching of specific sexual body parts. We find this argument unconvincing. First, as our decision in Gattem illustrates, touching, let alone the touching of sexual body parts, is not required for a crime to be classified as “sexual abuse of a minor.” See Gattem, 412 F.3d at 760-61; see also Bahar v. Ashcroft, 264 F.3d 1309, 1310-13 (11th Cir. 2001) (holding that “taking indecent liberties” with a child under 16 for sexual gratification constitutes sexual abuse of a minor, even without physical contact). Second, Ind. Code § 35-42-4-9(b) does not prohibit innocent physical contact such as a hand shake or a hug. Rather, it requires the government to prove that the adult touched or fondled the child with “the intent to arouse or satisfy the sexual desires of either the child or the older person.” Because the statute requires specific intent, purely innocuous touching is not criminalized....

Gaiskov also argues, in general, that a minor victim is not sufficiently harmed by the sexual misconduct prohibited by Ind. Code § 35-42-4-9(b) for it to constitute sexual abuse. First, we reject Gaiskov’s suggestion that a minor is not seriously harmed by the conduct prohibited in Ind. Code § 35-42-4-9(b). However, even if there was little harm to the minor associated with the crime, this would not foreclose its classification as an aggravated felony.

Note that not all circuits defer to the BIA's interpretation of 101(a)(43)(A) - the 9th Cir in particular ruled in Estrada-Espinoza v. Mukasey that the term "sexual abuse of a minor" had to be read as meaning the same as "sexual abuse of a minor" as definied in U.S. criminal statute, specifically 18 U.S.C. § 2243.  Other related cases include Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001); US v. Munoz-Ortenza, __ F.3d __ (5th Cir. Apr. 13, 2009); and Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001); Emile v. INS, 244 F.3d 183 (1st Cir. 2001).

The BIA uses 18 U.S.C. § 3509(a)(8) as a "guide" to understanding sexual abuse of a minor, but the 9th Cir finds that unhelpful because it is not a criminal statute.  The 7th Cir has previously deferred under Chevron to the Board's interpretation of 101(a)(43)(A), and found the use of the civil statute to be reasonable.  As a side not, certiorari has been requested in Canales-Matamoros v. Holder (08-643), which remains pending at the Supreme Court.

Read decision here: 

Castilho de Olveira v. Holder (7th Cir. 5/8/09)

SYKES Kanne Posner

The 7th Cir reversed an asylum denial for a Brazillian youth fearing persecution by corrupt Govt officials who had murdered his father, because the IJ deprived him of a fair hearing.

Without commenting on the merits of Castilho de Oliveira’s claim, we conclude that he did not receive a fair hearing before a neutral immigration judge. The IJ repeatedly interrupted the testimony to ask irrelevant and sometimes inflammatory questions, refused to consider important evidence, and decided the case without seriously engaging with the evidence in the record. Indeed, so troubling are some of these lapses that we are left with the impression that the IJ “cared little about the evidence and instead applied whatever rationale he could muster to justify a predetermined outcome.”

The IJ made various errors, by finding Petitioner's story implausible after comparing Brazilian practices to American practices.  The IJ also required corroboration of various sorts, including from a priest (though no priest was even remotely involved in what occured in Brazil) and from Petitioner's undocumented family within the US.

The IJ also discredited Castilho de Oliveira’s testimony as insufficiently corroborated because his mother and sister had not testified on his behalf. Castilho de Oliveira’s mother did submit a lengthy affidavit, which the IJ ignored. Instead, the judge speculated that his mother and sister had declined to testify in person because their stories could not withstand cross-examination. The IJ did not consider an equally plausible explanation for their absence—that Castilho de Oliveira’s mother and sister, both of whom are apparently in this country illegally, refrained from appearing to avoid detention based on their status. 

The IJ refused to admit original newspaper articles absent authentication from the newspaper itself, which the CtApp found unreasonable.

Castilho de Oliveira tried to submit numerous newspaper articles—many of them originals—corroborating the details of his father’s murder. The IJ refused to consider the articles because they had not come directly from the newspaper’s “morgue” and did not bear any form of authentication from the newspaper’s publisher. There is no justification for such a requirement. Under the Federal Rules of Evidence, documents purporting to be newspaper articles are self-authenticating, see FED. R. EVID. 902(6), and in immigration proceedings—where the rules of evidence do not apply—evidentiary standards are generally more lax. Absent evidence of forgery, alteration, or some other reason to doubt their authenticity, the IJ was not entitled to completely disregard the newspaper articles. Cf. Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. 2006) (lack of authentication is not evidence of forgery). 

The IJ's analysis of the claim itself was flawed because it failed to grapple with the actual asylum claim which was made.  Although a denial might well be sustainable, the IJ needed to understand and rule on the actual claim being made.

Finally, the CtApp harshly criticized the IJ for asking inflammatory, biased, and inappropriate questions.

Judge Brahos repeatedly stopped both Castilho de Oliveira and his expert witness to ask irrelevant—and in some cases entirely inappropriate—questions. For example, the IJ demanded to know the witnesses’ religious beliefs—and pursued this line of questioning at some length with each witness—even though Castilho de Oliveira’s claims were not based on religious persecution. The IJ questioned Castilho de Oliveira about whether his half-sister was “born out of wedlock,” an utterly irrelevant inquiry. The IJ derailed the expert’s testimony to discuss the totally inappropriate and irrelevant topic of whether Castilho de Oliveira might be infertile—or, as the judge indelicately put it, whether Castilho de Oliveira might “shoot blanks.”

Comments and questions of this nature are wholly inappropriate, if not enough alone to warrant a new hearing. While these improper questions did not ultimately have the effect of preventing Castilho de Oliveira from putting on his case, see Apouviepseakoda, 475 F.3d at 885-86, they are worth discussing because they suggest a larger problem of apparent bias on the part of the IJ. 

[T]he record as a whole—the tone of the IJ’s crossexamination of Castilho de Oliveira and his expert witness, the frequent interruptions, the inappropriate questions and comments, and the IJ’s ultimate failure to engage with the evidence in the record while resting his decision on speculation and irrelevancies—leaves the impression that the IJ entered the hearing with his mind already made up.

FN4 We have previously called into question similar behavior by Judge Brahos in other cases: “factual error, bootless speculation, and errors of logic,” Pramatarov v. Gonzales, 454 F.3d 764, 765-66 (7th Cir. 2006); questioning “so harsh and rude as to suggest bias,” id.; and conduct that was “unseemly,” “intempera[te],” and even “mocking,” Apouviepseakoda, 475 F.3d at 886. That it continues is inexplicable.

Katten Muchin represented Olveira pro bono, together with NIJC.

Read Decision Here: 

Ayele v. Holder (7th Cir. 5/4/09)

WILLIAMS Sykes Kanne

Petitioner is an Ethiopian asylum-seeker whose father was a high-ranking member of the Mengistu regime; she fears return on that basis.  There was no claim of past persecution. The IJ and Board found that she had a subjective fear of return, but that it wasn't objectively reasonable.

The CtApp upheld the IJ's findings as to her political opinion and Amharic ethnicity - finding no evidence that she would be singled out for persecution - but reversed and remanded for failure to consider her PSG claim based on her family.  It found several flaws in the analysis:

Every member of Ayele’s immediate family either is in exile, has disappeared, has been imprisoned and tortured, or is under house arrest.... Her mother, and her uncle who was imprisoned and tortured based on his political activism, are outside of the reach of the government, making Ayele particularly vulnerable. See Mema v. Gonzales, 474 F.3d 412, 417 (7th Cir. 2007) (“Oft times persecutors target children of political dissidents not because they have imputed the parents’ political opinion to the children, but as a means of harassing, intimidating, and influencing the behavior of the parent.”)....

[The IJ] characterized Ayele’s father as “relatively unharmed.” The IJ explained that Mr. Ayele had not been physically harmed since his release from prison, but was placed merely under surveillance. This reasoning is problematic because it fails to recognize that surveillance has been recognized as a possible form of persecution in this circuit, see, e.g., Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004), and that this circuit has never required physical harm to demonstrate persecution, see Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir. 2002)....

To the extent that the IJ relied on the reports to assess Ayele’s family claim, this reliance is erroneous because the IJ credited the testimony of Ayele and her uncle, which provides the only foundation for which one could determine that Ayele faced the possibility of persecution because of her family ties. See Bace v. Ashcroft, 352 F.3d 1133, 1139 (7th Cir. 2003) (“[I]t would be improper to find that a witness’s testimony about specific events could be contradicted by a generalized State Department report broadly discussing conditions in the applicant’s country of origin.”) (internal quotation marks omitted). Country Reports may inform an IJ in determining the treatment of a particular political organization or ethnic group, but Country Reports will rarely aid the IJ in analyzing the unique position of a family as a social group. See Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000)

Moreover, IJ failed to conduct a pattern and practice analysis, as required by Banks v. Gonzales, 453 F.3d 449, 452 (7th Cir. 2006) (the CtApp rejected the Govt's exhaustion argument) [CR: note that Banks seems not to require exhaustion, oddly enough]

The CtApp did not reach the Withholding and CAT questions, having remanded on the Asylum Question.

Finally, the CtApp separately wrote to explain that it was taking judicial notice of several State Department reports - the 7th cir's case law does permit it, see Lhanzom v. Gonzales, 430 F.3d 833, 848 (7th Cir. 2005); Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007).  The CtApp declined to take judicial notice of an Amnesty International report, on the grounds that it had already rejected her political opinion arguments.

Read decision here: 

Patel v. Holder (7th Cir. 4/24/09)

TINDER Bauer Ripple (concurring)

The Petitioner was on his second motion to reopen. He was removed in absentia after moving without informing anyone.  First, he retained an attorney who (!!?) forged an envelope that purportedly included a change of address, mailed out prior to the entry of the removal order.  Then, he filed a second motion to reopen, arguing that the Govt's NYC address didn't match the actual addres, and also presented a letter from the owner of the address in NYC to which the mail was delivered, averring that Patel hadn't lived there at the time the letter was sent.

Under Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008) (1252(a)(2)(B)(ii) applies to motions to reopen), the 7th Cir only has jurisdiction over reopening denials to the limited extent it is permitted by 1252(a)(2)(D). The Court held that Petitioner hadn't developed his constitutional argument regarding adequacy of notice, by briefing only actual receipt instead of the sufficiency of the attempt.  Moreover, the receipt of the letter was a question of law.  The argument that he was unaware of prior atty's fraud was also a question of weighing evidence, not a question of law.

But even if the CtApp had jurisdiction, the claim would fail - since he had failed to keep the immigration authorities apprized of his address as required by law. 8 U.S.C. § 1305(a).

Ripple, concurring:

I write separately to suggest, respectfully, that, as our court strays more and more from the view of the majority of circuits and from the view of the agency charged with the administration of the statute on an important question threatening the evenhanded application of the immigration law, the time has come for higher appellate authority to determine whether the rest of the Nation now should follow our view or whether we should re-join the rest of the Nation. See Supreme Court Rule 10.

However, Judge Ripple would have denied the petition anyway, because substantial evidence supports the contention that the letter was mailed to his last known address, which is all that is required by Due Process.

Read decision here: 

Note that Judge Ripple's plea to the Supreme Court was adopted almost immediately, as the Supreme Court granted cert in Kucana.