Cubillos v. Holder, No. 08-2007 (8th Cir. May 12, 2009)

 

Murphy, SMITH, and Limbaugh

 

The BIA vacated the IJ’s asylum grant to Mr. Cubillos and his wife and children.  The Court affirmed.

 

Mr. Cubillo’s asylum claim was based on his political opinion as a member of the Radical Change Party in Colombia.  He received two anonymous calls demanding money and telling him he should “reconsider his position that [he] had towards the political parties there.”  After the second call, he moved his family from Bogota to Cali.  Two years later, Mr. Cubillos received a letter informing him that he was being watched and that his life was in danger.  Two months later, he received another anonymous letter implying that his sons were in danger.

 

In affirming the BIA’s decision, the Court cited Flores-Calderon v. Gonzales, 472 F.3d 1040, 1043 (8^th Cir. 2007), for the proposition that because the threats came from an unidentified source, it could not conclude the threats were acts of persecution or acts committed by persons that the government was unwilling or unable to control. 

 

The Court also found that the threats against Mr. Cubillos and his family to be “mere harassment” rather than persecution.

 

Mr. Cubillos argued that the BIA’s vacatur of his asylum grant exceeded its authoring by engaging in fact finding.  8 C.F.R. 1003.1(d)(3)(iv).  However, the Court rejected this argument finding the BIA had accepted the IJ’s findings of fact.  The Court held that the BIA did not engage in fact finding but “made a legal conclusion as to whether the facts established persecution.” 

 

Read the opinion here…

Arellano-Hernandez v. Holder, No. 07-3945 (8th Cir. May 4, 2009)

BYE, Beam, Shepherd

 

Arellano-Hernandez sought cancellation of removal in proceedings as a non-permanent resident. On the day of her hearing, she sought to assert a cancellation of removal claim under the Violence Against Women Act (VAWA) by checking off the box on the application form itself.  The IJ refused to allow her to do so, finding that she had waived this claim because she had not raised it prior to the court filing deadlines.  See 8 CFR § 1003.31(c).  Subsequently, the IJ sustained the government’s objections to any testimony by Arellano-Hernandez regarding her VAWA claim, which was based on the sexual abuse to which she was subjected as a young girl by her father, an LPR.  At the end of the hearing, the IJ denied non-LPR cancellation of removal, because Arellano-Hernandez did not establish the requisite hardship to her USC son.

 

The BIA affirmed the IJ’s decision, finding that 1) she did not meet the hardship standard for non-LPR cancellation, 2) she had waived her VAWA cancellation claim by raising it until the day of her hearing, and 3) in any case, she did not establish a prima facie case for VAWA cancellation.

 

The 8th Circuit noted that it did not have jurisdiction to review discretionary decisions by the AG under 8 USC § 1252(a)(2)(B), except to the extent it was presented with a legal question.  The Court agreed with the agency finding that Arellano had waived her claim, relying on 8 CFR § 1003.31(c).  It rejected Arellano’s argument that her VAWA claim should not have been deemed waived where she had filed her application for non-LPR cancellation in a timely manner, and that her VAWA application was not a separate one. The Court found no support for this argument, held that the agency had not abused its discretion in refusing to consider Arellano’s VAWA cancellation claim, and that because her claim was untimely, the agency did not need to rule on the merits of that claim.

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USA v. Pereyra-Gabino, No. 08-2869 (8th Cir. April 16, 2009)

MURPHY, Melloy, Shepherd

 

In Pereyra-Gabino, the defendant was a union organizer for the United Food and Commercial Workers Union Local 1149 at Swift & Co.  He was ultimately charged pursuant to 8 USC § 1324(a)(1)(A)(iii) (harboring illegal aliens) and 42 USC § 408(a)(7)(B)(false representation of a social security number) and 18 USC § 1028A(aggravated identity theft).  The charges against Pereyra-Gabino were based on a union orientation he gave to Swift workers, which was tape-recorded by an undercover ICE agent, as well as the testimony of two witnesses who subsequently received work authorization and permission to remain in the US in exhchange for their testimony against Pereyra-Gabino. 

 

Ultimately, Pereyra-Gabino was found guilty by a jury and convicted of the first count, dealing with harboring or shielding undocumented individuals pursuant to 8 USC § 1324(a)(1)(A)(iii), but found not guilty on the other two counts.

 

Pereyra-Gabino challenged his conviction before the 8th Circuit based on the following: 1) that the indictment against him regarding the 8 USC § 1324 was impermissibly vague and therefore constituted a 5th amendment due process violation; 2) his union speech was protected speech under the 1st amendment; 3) the language at number 12 of the jury instructions allowed the jury to convict him of shielding undocumented individuals even if not all of the elements were met for a particular individual named in the instruction before the jury; 4) the evidence at trial did not support a guilty finding as to the two witnesses who testified against him; and 5) the district court erred in enhancing his sentence based on its finding that Pereyra-Gabino had abused a position of trust.

 

The 8th circuit reversed the lower court’s based on the language at jury instruction number 12, agreeing with Pereyra-Gabino’s argument that the instruction permitted the jury to “mix and match ‘the individuals identified’ to the essential elements of the crime charged.”  The instruction listed the three elements that needed to be met under the offense, and under the first element only, listed the two specific individuals who testified against him, as well as an individual described as using the identity of a “Mohammed Carrasquillo,” and finally, “any individual in attendance at Swift union orientation given by defendant on August 22, 2006,” but did not thereafter list the individuals under the remaining elements. The Court agreed that the instruction did not clearly convey that the three elements needed to be met for whatever individual the jury found Pereyra-Gabino guilty of “shielding.” Further, the Court found the instruction did not inform the jury of the government’s burden in the case.  Reversing on this ground, the 8th circuit concluded it did not need to address Pereyra-Gabino’s other challenges. In a footnote, it cautioned the district court to “revisit” Pereyra-Gabino’s original motion to dismiss the indictment against him, “considering the possible relevance of any of the conclusions here.”

 

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Nyari v. Napolitano et al., No. 08-1406 (8th Cir. April 13, 2009)

SMITH, Melloy, Bowman

 

Nyari had entered as a Hungarian refugee, became an LPR and had filed successive applications to become a US citizen beginning in the late 80s.  His naturalization was held up because of allegations of sexual abuse made against Nyari by his ex-wife and then minor daughters.  As a result, the Department of Social Services (DSS) investigated the allegations, deemed the allegations “founded” and Nyari was listed in Virginia’s child abuse and neglect central registry.

 

No criminal charges were made against Nyari based on the sexual abuse allegations. Subsequently, Nyari’s daughters recanted their testimony about sexual abuse, stating they had been pressured as children to make them (Nyari had in fact received custody of his older daughter in 1992). 

 

In 2003, Nyari made a third application for naturalization, which was denied based on a lack of good moral character, tied to his registration in the Virginia registry.  Nyari appealed, submitting sworn statements by both daughters recanting any allegations of sexual abuse.  Nyari then filed a petitioner for review with the District Court pursuant to 8 USC § 1421(c).  On cross motions for summary judgment, the District Court granted the government’s motion, finding that Nyari was unable to establish his burden that he is a person of good moral character. The District Court did note that the record surrounding Nyari’s registration with the sexual abuse and neglect registry contained no facts as to the sexual abuse allegations but accounted the absence of any to Nyari’s failure to appear at that time and deemed his failure to appear the “equivalent of a ‘no contest.’”

 

On appeal, the 8th Circuit first noted that Nyari was not statutorily barred from establishing good moral character pursuant to 8 USC § 1427(a); 8 USC § 1101(f); 8 CFR § 316.10(b)(1)-(2), since the allegations were made more than 5 years preceding his application for naturalization.  The Court went on to note, however, that, 8 USC § 1427(e) permitted looking to acts outside of the statutory period required in determining an applicant’s good moral character.  See also 8 CFR § 316.10(a)(2). 

The Court also reviewed the District Court’s grant of summary judgment in the government’s favor, noting that the government, as the moving party, bore the burden of establishing the absence of a genuine issue of material fact and that it was entitled to the judgment as a matter of law.

 

The Court first looked to the weight both parties gave to Nyari’s inclusion in the registry, noting that Nyari’s name had been included as a result of administrative proceedings, not criminal in nature.  The District Court, the Court of Appeals noted, needed to engage in de novo review of the good moral character requirement, and engage in its own findings of fact rather than accept the findings of the Virginia DSS determination. No court, the Appeals Court noted, had ever relied on the conclusion of a civil administrative proceeding to support of finding of lack of good moral character.  The Appeals Court also noted that the “conduct” which led to Nyari’s inclusion in the registry did indeed occur more than 5 years before the application for naturalization and that his inclusion in the registry beyond the 5 years did not constitute “conduct” for purposes of 8 USC § 1427(a).

 

The Court also addressed the District Court’s conclusions around the fact that Nyari had failed to appear at the original administrative proceeding to challenge the sexual abuse allegations made against him, finding that the District Court’s conclusion that his failure to appear was the equivalent of a “no contest” plea in the criminal context. The Court noted that in a nolo contendere plea, the defendant specifically does not “expressly admit his guilty.”

 

As to the allegations of sexual abuse themselves, the Court noted that the District Court should have held a hearing to assess the credibility and weight of the recantations made by Nyari’s daughters and that it should not have dismissed these on a motion for summary judgment. 

 

Finally, the Court of Appeals held that the District Court did not err in denying Nyari’s own motion for summary judgment, opining that the District Court could still conclude that Nyari lacked good moral character.   While the Virginia DSS determination could not necessarily preclude a finding of good moral character, it did weigh against summary judgment in Nyari’s favor.

 

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