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.
Gumaneh v. Mukasey, No. 07-3003 (8th Cir.)(August 1, 2008)
Smith, Bowman, Gruender
The Eighth Circuit denied withholding of removal to a Gambian woman who had been subjected to FGM in the past and feared her two US-born daughters would also be subjected to the practice.First, the Court summarized the circumstances that led Ms. Gumaneh, who entered the US in December of 1999, to file for asylum well over one year later, in April of 2004. The IJ had found that, while Ms. Gumaneh’s circumstances had changed (her family began writing to her in 2000 requesting that she bring her daughter to the Gambia to be subjected to FGM), she had not filed for asylum within a reasonable time after last of the requests came in September of 2003. The Eighth Circuit left this finding undisturbed, reiterating its position that Congress has precluded judicial review of the “reasonable delay” question.
The Court went on to deny withholding of removal, however, finding that a parent cannot raise a derivative claim based on a child’s potential future persecution. The Court cited to the Fourth Circuit’s decision in Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007) and the Seventh Circuit’s decision in Ofori v. Ashcroft, 354 F.3d 609 (7th Cir. 2003) to find that the statutory language of 8 USC § 1231(b)(3)(A) does not support a reading that makes derivative claims possible.The Court also addressed its decision in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007) finding the case inapplicable because it never reached the question of whether the petitioner in that case could raise a claim of persecution based on potential future harm to her US-born daughters. Instead, Hassan was remanded on the question of where the daughters would reside following their father’s deportation (the IJ had found that the daughters could remain in the US with their father, and subsequent to the decision, the father had been deported from the US).
The Court did reference the Sixth Circuit’s decision in Abay v. Ashcroft, which held that a parent can have an independent claim of her own based on psychological harm arising from fear of having a daughter subjected to FGM. Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). The Eighth Circuit noted however that Ms. Gumaneh had not raised this claim and declined to address the issue.
Redd v. Mukasey, No. 07-3263 (8th Cir.) July 29, 2008
Smith, Gruender, Rosenbaum
In Redd v. Mukasey, the petitioner sought asylum from Liberia, claiming he had been forced to spy on members of his own ethnic group, the Krahn, by an official of the Charles Taylor regime named Gbollie, after being held prisoner for three to four days. Although he provided no useful information to the official, Redd claimed nonetheless to be targeted on account of his membership in the Krahn when members of the Taylor regime broke into his home and raped his wife. Thereafter, Redd testified that he sought help from the chief of security at the US Embassy in Liberia, who provided him with a letter written by Gbollie to a colonel, confirming Redd was targeted for death. Redd traveled throughout Liberia en route to escape with this letter and eventually fled Liberia using his Liberian passport.
The Eighth Circuit found that substantial evidence supported the IJ’s finding that Redd’s testimony was both incredible and implausible and his corroborating evidence insufficient. The court found significant inconsistencies based on Redd’s testimony that both he and his wife’s parents were present at home on the night she was raped, while his wife testified that they were not; and that the affidavit submitted by the chief of security for the US Embassy in Liberia claimed Redd had been beaten during his detention while Redd testified he had not. Further, the court agreed with the IJ in finding implausible Redd’s testimony that he traveled through various military checkpoints when escaping Liberia with the letter targeting him for death and that he was eventually allowed to leave Liberia despite the death sentence.
In an alternate holding, the Eighth Circuit stated that even if Redd had been found credible, any presumption of future persecution was overcome by the fact that the Taylor regime is no longer in power in Liberia, that Charles Taylor himself is being tried at the Hague for war crimes, and that there was no evidence that the current Liberian regime persecutes the Krahn.
The Petitioner sought to remove the conditions on her LPR status (married to USC), but they lived apart much more than they lived together, and seemed possibly involved with other people (though both deny it). Govt had BoP that it was a sham marriage. CtApp found that facts didn't compel a contrary finding, even if the alternate explanations were not impossible: "Hassen and Ali acknowledge that the marriage has been rocky since Ali moved to Wisconsin, but they argue that it was entered into in good faith. Hassen contends that they are trying to establish themselves financially before establishing a home together and that in their culture, similar arrangements are not uncommon. Although not beyond the realm of the possible, Hassen’s explanations are not so strong that any reasonable fact-finder would be compelled to accept them."
She also sought asylum - denied on credibility grounds, based on alleged inconsistencies with visa app (where she didn't say that she was hiding for 2 years). Again, evidence didn't compel alternate conclusion.
Eighth Circuit 
