Lovan v. Holder, No. 08-2177 (8th Cir. July 31, 2009)

 LOKEN, Melloy, and Benton

Mr. Lovan was convicted by a jury in 1991 of sexual abuse of a minor.  At the time he was convicted, he was not deportable as an aggravated felon because his crime did not then fall within the statutory definition of an aggravated felony.  In 1996, with the passage of the Illegal Immigration Reform and Responsibility Act (IIRIRA), Congress amended the aggravated felony definition to include “sexual abuse of a minor” and made the definition applicable to convictions prior to its enactment.

Mr. Lovan left the country in 2002 and was re-admitted a month later.  He applied for naturalization later that year.  The Service responded by issuing an NTA charging him as removable as an aggravated felon.  Mr. Lovan applied for a waiver of deportation under former INA § 212(c).  IIRIRA repealed 212(c).  However, the Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 314-26 (2001) that prohibiting aliens who became eligible for 212(c) by pleading guilty prior to the statute’s repeal would have an impermissible retroactive effect.  The Court noted that there is a circuit split on the question of whether St. Cyr also applies to aliens convicted by juries.  The Court agreed with the Third Circuit’s reasoning in Atkinson v. Attorney General, 479 F.3d 200 (3d Cir. 2007) and determined St. Cyr should also apply to Mr. Lovan.

The plain language of 212(c) allowed excludable (today deemed “inadmissible”) to apply for relief.  Equal protection concerns eventually led to the opportunity for deportable (today deemed “removable”) aliens to apply for 212(c) relief if the alien was deportable “on a ground which does not have a statutory counterparty in section 212 of the Act.”  8 C.F.R. § 1212.3(f)(5).  (This is a short version of a long story: the history of 212(c) relief is explained in detail in the Court’s opinion.) 

The major question the Court addressed was whether Mr. Lovan’s case should be determined by the BIA precedent and Circuit adherence to Matter of Blake, 23 I&N Dec. 722 (BIA 2005) or by Matter of G-A-, 7 I&N Dec. 274 (BIA 1956) and Matter of L-, 1 I&N Dec. 1 (A.G. 1940).  The Court found that facts of Mr. Lovan’s case were analogous to the facts underlying the reasoning in Matter of G-A-.  In G-A-, an LPR was admitted after traveling despite being excludable for a prior criminal conviction.  The INS then sought his deportation.  Exercising its 212(c) discretion after the fact, the BIA ordered that the alien be “regarded as having been lawfully admitted to the United States for permanent residence… notwithstanding his inadmissibility at that time.”  Id. at 275. In Blake, the BIA held that Mr. Blake’s deportable charge of “sexual abuse of a minor” does not have a statutory counterpart in the INA’s inadmissibility grounds, therefore rendering Mr. Blake ineligible to apply for 212(c) relief.  The Court distinguished G-A- from Blake because G-A- was intended to provide 212(c) relief to an “excludable LPR who temporarily left the country, reentered while immigration officials overlooked his excludability, but then was placed in deportation proceedings based on the conviction that made him excludable.”  The Court’s opinion invites the BIA on remand to explain why Blake and not G-A- and Matter of L- apply to Mr. Lozan’s case, but the Court held that the G-A- and L- opinions “were never overruled, nor were they expressly made subject to the statutory counterpart doctrine.”

The Court upheld the BIA’s denial of Mr. Lovan’s withholding and CAT claims. 

Marroquin-Ochoma v. Holder, No. 08-2760 (8th Cir. July 28, 2009)

 Murphy, MELLOY, and Shepherd

 Ms. Marroquin-Ochomo worked in the payroll department of a Guatemalan company.  She regularly received notes and phone calls from gang members demanding money and pressuring her to join the gang.  The notes and calls threatened her life and the lives of her family members if she did not comply with their demands.  Ms. Marroquin-Ochomo informed her employer and the police.  She did not report her claims to the public prosecutor as the police had suggested because she believed it would be “futile.”

Ms. Marroquin-Ochomo fled Guatemala on account of these threats.  After she left, gang members assaulted her father in reprisal for her failure to meet the gang’s demands. 

Ms. Marroquin-Ochomo sought remand at the Eight Circuit arguing that she was threatened on account of an imputed anti-gang political opinion.  The IJ asserted that “resistance to the role of gangs” did not constitute a political opinion and denied her applications for asylum, withholding and CAT.  The Court ultimately upheld the IJ’s findings on the merits.  However, the Court discouraged the outright rejection of asylum applicants with claims that they were persecuted on account of an anti-gang political opinion.  The Court cited to its previous opinion in DeBrenner v. Ashcroft, 388 F.3d 629, 638 n.2 (8th Cir. 2004) cautioning that “careful attention to the particular circumstances surrounding the alleged persecution remains necessary even if the persecution is generally categorized as extortion or recruitment.”  The Eighth Circuit rejects a “categorical rule that opposition to government extortion cannot serve as the basis for a claim based on political opinion.”  However, the Court felt that the IJ had not erred in his finding that “resistance to criminal activity is not a political opinion in this context.”  

The Court emphasized that should a claim go forward based on anti-gang political opinion, the applicant would have to establish that the “gang believes resistance to those recruitment efforts is based on an anti-gang political opinion.”  The Court cited to other circuits’ opinions in gang-resister asylum cases where the claims failed because the applicant had not presented sufficient evidence that the persecution was on account of his or her political opinion.  The Court also cited two Board cases for the same purpose: Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008) and Matter of S-E-G-, 24 I&N Dec. 579.  (But the very day that the Eight Circuit issued this opinion in Ms. Marroquin-Ochomo’s case, the Board granted a joint motion to reopen and remand S-E-G-.  Arguably, the precedential status of S-E-G- is up in the air.) 

The Court also denied Ms. Marroquin-Ochomo’s application for protection under the Convention Against Torture because the record contained evidence that the police had sufficiently responded to her report of the threats.  The Court stated that “on the whole, the record before us indicates that law enforcement is weak and inexperienced, not that it acquiesces in gang activity.”  The opinion contains an analysis of what constitutes government “acquiescence” to succeed in a CAT claim.  The Court noted that Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), which held that CAT relief does not extend to torture by entities the government is unable to control is not solid precedent.  Although the government’s inability to control a particular group is not dispositive in the CAT inquiry, it may be relevant evidence of acquiescence.  

Read the opinion here….

Mambwe v. Holder, No. 08-1224 (8th Cir. July 16, 2009)

Bye, Gibson, and GRUENDER

The IJ and BIA determined that the attack on Mambwe’s village in Angola in 1984 constituted past persecution. Her village was known to be “aligned” with the Popular Movement for the Liberation of Angola (“MPLA”) when it was attacked by forces from the National Union for Total Independence of Angola (“UNITA”).  However, the IJ concluded, and both the BIA and Court affirmed, that the 2002 peace agreement between the MPLA and UNITA which ended Angola’s civil war constituted “fundamental change in circumstances” rebutting Mambwe’s well-founded fear of future persecution.  The Court affirmed the finding that the 1984 attack was not severe enough to warrant a grant of humanitarian asylum: although Mambwe suspected her father and brothers were conscripted or killed “she apparently did not witness their deaths” and she was not physically harmed during the attack.

Mambwe’s encounters with UNITA did not end in 1984.  She and her mother fled to Zambia after the 1984 attack.  In 1997, UNITA forces kidnapped her from a refugee camp, and subsequently detained, raped and beat her.  The Court affirmed the IJ and BIA finding that the Petitioner failed to show that the events of 1997 constituted past persecution on account of her membership in the Mbundu ethnic group or imputed political opinion.  The Court surmised that “there is no shortage of alternative explanations for why rebel soldiers might carry out a village-wide attack in foreign territory without engaging in persecution on account of a protected ground, including simple lawlessness and base criminality.”  The Court noted that Mambwe could not rely on this 1997 attack to support her claim for humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A), because before one can be considered for humanitarian asylum, she must have been found to have suffered past persecution on account of a protected ground.

Because Mambwe did not specifically appeal the denial of her withholding and CAT claims to the BIA, the Court did not reach the merits of those claims.  The Court rejected her claims that her right to Due Process was violated during proceedings before the IJ and BIA. 

Read opinion here....

Chibwe v. Holder, No. 08-3407 (8th Cir. July 2, 2009)

Murphy, ARNOLD, and Gruender

The 8th Circuit denied a wife and husband’s petition for review of the denial of their claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). 

The Court did not have jurisdiction to review the BIA’s finding that the asylum applications were not timely filed 8 U.S.C. § 1158(a)(3).  The Court rejected the petitioners’ constitutional claims finding them to be “attempts to couch challenges to the BIA’s exercise of its discretion in constitutional terms.”

The Court’s review of the denial of withholding is under a substantial evidence standard  The Court could not find that “any reasonable adjudicator would be compelled to conclude” that the petitioners faced a threat based on one of the protected grounds.  The Petitioner wife, Ms. Chibwe, a citizen of Zambia, had had an “abusive extramarital affair” with a powerful man in Zambia before she ended the affair to marry the Petitioner husband, Mr. Kamphambale, a citizen of Malawi.  The couple feared that the man in Zambia would “exact revenge” should they be forced to return to Zambia.  The BIA deemed the threat as related to “personal matter” rather than on account of one of the protected grounds.

Read the opinion here…