Cooke v. Mukasey, No. 07-2939 (8th Cir.) August 14, 2008
BOWMAN, Smith, Gruender
Although finding that Cooke, a former member of the political party Liberian Ministry of Finance (MOF), and his wife, were persecuted on account of his political beliefs by Charles Taylor supporters, the Court concluded that “substantial evidence supports the IJ’s determination that there are ‘substantially changed country conditions from the time that [the Cookes] left Liberia.’” Citing Redd v. Mukasey, _F3d_, 2008 WL 2889369 (8th Cir. July 29, 2008), the Court found that as Taylor was no longer in power and is on trail for war crimes and there was no objective evidence that anyone in the current Liberian government poses a threat to Cooke’s safety, there was no well founded fear if future persecution established.
Alanwoko was a well-known Nigerian soccer player, also a Christian, who was persecuted on account of his religion. The Court found that substantial evidence supported the lower courts’ findings that he was not fleeing persecution when he came to the US because he had traveled t and from Gambia, for soccer tournaments, for several years and had never sought asylum. Additionally, the Court held that the BIA did not err in denying Alanwoko’s motion to reopen as the new evidence that Alanwoko presented, articles regarding the attempted shooting of a popular Christian soccer player, did not show that the soccer player was specifically targeted because he was Christian and thus did not help establish that there was persecution of Christians ins in Nigeria.
US v. Medina-Valencia, No. 07-3642 (8th Cir.) August 13, 2008
BENTON, Melloy, Arnold
In Medina-Valencia, the defendant challenged the 16-level increase to his sentence based on the district court’s finding that his Texas conviction for sexual abuse of a child constituted a crime of violence for sentencing purposes under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Court framed the question before it as whether the statute – Texas Penal Code § 21.11 - encompassed “abuse.” Finding that the statute was overinclusive, the Eight Circuit applied the modified categorical approach and looked to the indictments and plea agreement in the case. The charges in the indictment to which Medina-Valencia pled guilty reflected that the victim was under 17 years of age and a female, and that Medina-Valencia was at least 25 years at the time. Therefore, the Court found that the conviction indeed constituted “sexual abuse of a minor” to warrant the 16-level enhancement to Medina-Valencia’s sentence.
Ezeagwu v. Mukasey, No. 07-1668, (8th Cir.) August 8, 2008
COLLOTON, Bye, Smith
The petitioner in Ezeagwu asked the Court to review the denial of his asylum, withholding and CAT claims as well as his claim of ineffective assistance of counsel by the courts below, and additionally, asked the court to remand his case back to the BIA for the taking of new evidence pursuant to 28 § USC 2347(c).
The Eight Circuit held that substantial evidence supported the lower courts’ findings of adverse credibility where there were inconsistencies between Ezeagwu’s written and in-court statements, including his testimony that he “forgot” about one episode of detention and abuse at the hands of the Nigerian State Security Services (SSS) as well as confusing dates of detention. Given these inconsistencies, the Court found it permissible for the BIA to find the lack of corroborating evidence without explanations as to why it was not obtainable to further defeat Ezeagwu’s claim.
The Court also rejected Ezeagwu’s contention that the BIA violated his right to due process in summarily dismissing his ineffective assistance of counsel claim, as it found that the BIA adequately addressed the claim to conclude that Ezeagwu failed to meet the requirements under Matter of Lozada.
Last, the Court declined to remand the case back to the BIA for it to take new evidence submitted by Ezeagwu pursuant to 28 § USC 2347(c), holding that 8 USC § 1252(a)(1) precludes the federal courts of appeals from taking new evidence under the former section.
Rafiyev v. Mukasey, No. 07-1317/2406 (8th Cir.)(August 5, 2008)
COLLOTON, Bye, Smith
Rafiyev, a native of Azerbaijan, sought asylum, arguing past persecution against himself as well as his family on account of their Armenian ethnicity. After the IJ and BIA rejected his asylum claim based on adverse credibility, Rafiyev petitioned the Court for review of the denial of his asylum claim and the denial of a subsequent motion to reopen based on ineffective assistance of counsel.
The Eighth Circuit declined to disturb the IJ and BIA findings of adverse credibility, which resulted from Rafiyev’s submission of fraudulent documents in support of his claim. The Court also rejected Rafiyev’s claims that the asylum confidentiality provisions at 8 C.F.R. § 208.6 were violated by the government when it sought verification on the authenticity of documents submitted by Rafiyev from the government of Azerbaijan. Finally, the Court also left intact the lower courts’ findings that Rafiyev had filed a frivolous asylum application because Rafiyev failed to raise this before the BIA. While the Eighth Circuit acknowledged that exhaustion of administrative remedies is not always required, it found the record too “meager” in this case to address that possibility here.
Rafiyev also asked the Court to review the denial of the motion to reopen that he filed before the BIA arguing that he had received ineffective assistance of counsel before the IJ. The BIA, which has recognized a constitutional right to effective assistance of counsel in Matter of Lozada, denied the motion, construing it as a “due process based ineffective assistance of counsel.” The Eighth Circuit, clarifying its decision in Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006) and discussing the law in other circuits, stated that it does not recognize an absolute constitutional right to effective counsel under the Fifth Amendment in removal proceedings, because such proceedings are civil, not criminal.
The Eighth Circuit did, however, interpret Rafiyev’s brief “generously” to raise a non-constitutional claim of ineffective assistance of counsel. The Eighth Circuit remanded to the BIA therefore, so the BIA could consider in the first instance whether it has discretionary authority to grant reopening based on ineffective assistance of counsel, i.e., whether Rafiyev has an administrative right to effective counsel notwithstanding the failure of his constitutional claim. If so, the Court noted that the BIA had not squarely addressed whether Rafiyev had indeed complied with Lozada and merited reopening.
Eighth Circuit 
