Figueras v. Holder (7th Cir. July 27, 2009)

SYKES, Bauer, Kanne

The IJ denied a continuance motion, thinking that it had been filed by an attorney who hadn't filed an appearance, and found the adjustment application abandoned; the Board recognized the mistake, but found it harmless because evidence of eligibility hadn't been produced (but it had, it was just produced to the Board on appeal) (the evidence of eligibility was that she had been grandfathered into 245(i) eligibility though a visa petition filed for her husband).  The 7th cir found this a violation of 8 USC 1229a(b)(4)(B), which guarantees the right to present evidence in a case. 

1.  The CtApp found that since the BIA had found the continuance denial an error, that it wasn't reviewing the continuance, but rather, adjustment eligibility.  Ergo, the Subhan line of cases were irrelevant.

2.  It noted that Petitioner framed the issue as a Due Process issue, which it criticized.  It should have been framed according to the statutory guarantee of rights.

3.  The Board found the IJ error harmless because evidence hadn't been produced to show eligibility before the IJ, but that made no sense. 

Having assumed that the IJ had wrongfully refused to give Figueras more time to collect this documentation, the BIA could not then fault Figueras for failing to submit all her evidence to the IJ in the first place. Rather than simply dismissing the appeal, the BIA should have either remanded the case to allow the IJ to consider the additional evidence or addressed her alternative ground for eligibility as a matter of law.

4.  The Govt argued that the error had been waived by cursory briefing to the BIA and 7th cir, but since the Board had dismissed based on the failure to present evidence to the Board, the CtApp thought the Board ought to address the matter in the first instance: "the BIA dismissed Figueras’s appeal not because she had failed to develop this argument on appeal but because she had not produced evidence to support it before the IJ.... Accordingly, we think the decision to accept or reject Figueras’s alternative theory that she and her family are eligible for adjustment of status should be made by the agency in the first instance, on an appropriate record."  The CtApp found that the Board ought to look at eligibility for adjustment. 

5.  The Govt argued that they should have expressly sought remand or reopening; but the CtApp thought the appeal arguments were sufficient.

Read opinion here: 

Jin v. Holder (7th Cir. July 14, 2009)

CUDAHY Kanne Tinder

Shao Wei Jin fled China after his wife-like-relation became pregnant, and the Chinese govt tried to force her to have an abortion. The IJ found that he couldn't qualify under old BIA decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) (en banc), because he couldn't show that common law marriage was recognized in China.  The CtApp said the IJ should have distinguished between common law marriage and traditional marriage; but it didn't matter because of new AG decision in Matter of J-S-, 24 I. & N. Dec. 520, 523- 24 (BIA 2008) (“spouses are not entitled to the same per se refugee status that [§ 1101(a)(42)(B)] expressly accords persons who have physically undergone forced abortion or sterilization procedures.”).  The 7th cir didn't exactly uphold J-S- (because Petitioner seems to have offered such weak arguments against it as to have waived the matter), but it basically said that it would. 

In his reply brief, Jin claims that the Attorney General’s interpretation of IIRIRA Section 601(a) is unreasonable. However, Jin gives no real argument in support of this claim. Instead, he states in a conclusory fashion that the Attorney General’s interpretation is unreasonable as an intuitive matter and inconsistent with Congress’s legislative intent. Neither of these claims is adequately developed, so both are waived. See Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 852 n.6 (7th Cir. 2002).  At any rate, Jin’s suggestion that the Attorney General’s interpretation is unreasonable is highly dubious. Two circuits have held that the Attorney General’s interpretation is the only reasonable interpretation of IIRIRA. Thus, it seems likely that this interpretation constitutes a “permissible construction of the statute.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984).

The two circuits which would find J-S- the only possible interpretation are Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc) and Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156-57 (3d Cir. 2009) (en banc).  The 11th Cir deferred to the new interpretation in Yu v. U.S. Attorney General, No. 08-16068, 2009 WL 1457102, at *4 (11th Cir. May 27, 2009). 

[CR: Some had seemed whether the 7th cir might be a holdout against J-S-, given its earlier decision in Zhang v. Gonzales, 434 F.3d 993, 999 (7th Cir. 2006); but its deference makes it appear likely to me that all of the circuits will defer to J-S- as a reasonable interpretation of the statute.  Which is too bad - it seems to me that if one attacked two spouses who are political dissidents by holding a gun to their son's head, threatening to kill him, that would be aimed at both.  So why, if forced abortion is deemed to be political persecution, is only the wife deemed persecuted thereby?  There are parts of the statute which might be read that way; but other parts (like the use of "he or she" and "person," instead of "she" and "woman") would seem to at least render it ambiguous. It makes me wonder whether anyone has done adequate research into the legislative history... And I for one do not find persuasive the policy-based arguments against letting the husband come first. After all, a non-pregnant male might find it easier to surreptitiously escape from a country, and if the man is granted asylum, the wife can follow via an I-730. Any fraud, it seems to me, could be addressed at the adjustment stage, if the jerk hasn't filed an I-730 or other paperwork to help his wife and children come to safety.]

Read decision here: 

Kedjouti v. Holder (7th Cir. 7/9/09)

FLAUM Easterbrook Bauer

Algerian man feared persecution by Islamicists for past military service.  But failed to apply within one year, so it was just a withholding claim.  Said the Court: "The evidence in this case is grave. Islamic terrorists’ practice of creating fake roadblocks to target and brutally murder members of the Algerian military is appalling. However, the standard of review provides us no leeway here.... There is no evidence that compels the conclusion that it is more likely than not that Kedjouti will face persecution if returned to Algeria, as is required for us to grant a petition of review of a BIA order denying withholding of removal."

Read opinion here: 

Hassan v. Holder (7th Cir. 7/2/09)

TINDER

The 7th cir upheld an adverse credibility finding against an Ethiopian asylum-seeker based on very minor "discrepancies," which were "neither critical nor trivial to Hassan’s claim of persecution." More troublingly, the CtApp found that his slow travel from Ethiopia to the US somehow supported an adverse credibility finding:

We also credit the agency’s reliance on Hassan’s travel through several countries prior to arriving in the United States. In two of these countries, Yemen and Italy, Hassan remained for at least two months without seeking asylum. As stated by the IJ, after living in Djibouti for eighteen years without harm from the Ethiopian government, Hassan’s departure and passage through several countries was more consistent with a desire to settle in the United States than a fear for his life. Although we do not say that failure to seek asylum in intermediate countries is always inconsistent with a fear of persecution, in this case, it was one of several “relevant factors” that the agency could consider in finding Hassan’s testimony incredible. See 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Tarraf, 495 F.3d at 534 (recognizing that return travel to the country of persecution may be a factor weighing against an applicant’s credible fear of persecution); Balogun v. Ashcroft, 374 F.3d 492, 500-01 (7th Cir. 2004) (upholding an adverse credibility determination based in part on the applicant’s multiple prior trips to the United States and the United Kingdom without seeking asylum).

The CtApp found that the IJ's mischaracterization of the Petitioner's testimony did not taint his adverse credibility finding.

Because the discrepancies were minor and there was an undoubted mischaracterization of his explanation, the 7th Cir "thought it best" to review the alternate holding.  The CtApp found that the record did not compel his interpretation events, i.e., that an informer reported his presence to the police; it might also have been that they shot at him because he fled.  Likewise, shooting at unidentified individuals isn't like detaining, arresting, or beating someone - since the soldiers might have shot without knowing who he was, it might not have been intentional persecution. As to future persecution, Oromos are 40% of the population, so his mere membership can't be enough. And the evidence didn't compel the conclusion that the Ethiopian govt knew of his views or of his father's OLF membership. 

[NB: NIJC was co-counsel on this case]

Read opinion here