Benyamin v. Holder (9^th Cir. August 24, 2009)

MCKEOWN, Fletcher, Smith

 

Petitioner Benyamin, a native and citizen of Indonesia, is married to Rodriguez, a native and citizen of Venezuela.  They have a daughter named Anissa, born in Indonesia, and daughter named Anakarina, born in Venezuela.  Anissa suffered FGM when the family lived in Indonesia but Anakarina was spared, as she has never lived there.

 

 Benyamin initially applied for asylum, citing the following fears or past harms in Indonesia: (1) that he and his wife had been persecuted and would be persecuted because they are a Muslim-Catholic couple, (2) that Anissa had suffered past persecution by undergoing FGM and (3) that Anakarina would suffer FGM if removed with her parents to Indonesia. 

 

The IJ and BIA denied asylum, reasoning that (1) the couple had suffered, and fears, mere harassment on account of religion, (2) that Anissa’s FGM procedure was not as serious as that practiced in, e.g., Ethiopia, as it involves only “minimal short-term pain, suffering, and complications” and (3) that FGM committed against the couple’s daughters, even if persecution, did not make petitioners eligible for asylum.

 

The CtApp found:

1.  Analogizing to cases involving “constructive deportation” of USC children of asylum applicants establishes that Anissa’s past FGM, and Anakarina’s fear of future FGM, are relevant to Benyamin’s asylum claim.

2. Anissa’s procedure “undoubtedly constitutes persecution.”  The CtApp reaffirmed that even the least invasive FGM procedures constitute persecution.  Because FGM is “particularly severe form of persecution,” it remanded to the agency to determine whether a humanitarian grant of asylum was appropriate. 

3.   The BIA must consider Anakarina’s fear of future FGM in adjudicating Benyamin’s asylum claim.

4.  The agency correctly found no well-founded fear of persecution on account of membership in social group of Muslim men married to Christian women.

5.  The BIA can consider whether the family can find “safe haven” in Venezuela as an alternative to granting asylum w/r/t Indonesia.

 

Read decision here. 

Rodriguez v. Hayes (9^th Cir. August 20, 2009)

 

FLETCHER, Fisher, Gould

 

This is an appeal of a habeas action requesting certification of the class of aliens detained without bond hearings pursuant to “general immigration statutes.”  The District Court denied certification of the class without analysis, and this appeal followed. 

 

Procedural history:

The lead petitioner of the putative class, Rodriguez, was detained in April, 2004. 

The BIA found Rodriguez removable due to an aggravated felony theft offense. (The IJ also ruled that an aggravated felony drug offense rendered him removable, but the BIA reversed this ruling and remanded, thus prolonging detention).  Rodriguez contests the theft offense AggFel ruling at the Ninth Circuit, which is holding the petition in abeyance on that issue pending Supreme Court review.  Rodriguez filed his habeas in May 2007, and moved for certification of the class in June.  In July, ICE released him on an OSC.

 

The government attacked class certification on the following grounds:  1) the proposed class is undefined; 2) the claim of Petitioner is moot; 3) the claims of the proposed class are unripe; 4) class relief is barred by 8 U.S.C. § 1252(f); 5) the court lacks jurisdiction

over the claims of the proposed class in light of the holding in Rumsfeld v. Padilla; and 6) the proposed class does not meet the requirements of Federal Rule of Civil Procedure 23.

 

1. Rodriguez’s citation to aliens held pursuant to “general immigration statutes” in defining the class does not render the class indeterminate, as the CtApp surmised that he refers to 8 U.S.C. §§ 1226, 1225(b) and 1231.  These statutes, taken together, adequately define a group of individuals subject to detention without bond hearings under them.
2. Release on an Order of Supervision does not moot a habeas challenge to immigration detention:  ICE has authority to re-detain at any time after release on an OSC, so Rodriguez has a personal stake in the litigation.  In addition, the conditions of his release (ankle bracelet, curfew) continue to impose restrictions on his liberty.
3. The gov argued that, because there is no showing that the government is not complying with Court’s orders in Casas-Castrillon, which would apply to class members detained under 1226(a), the class is not ripe.  The CtApp ruled that the prospective issuance of “Casas bonds” will only cause some members of the class to drop out, but does not mean that these individuals were not once members of the class.
4. 8 U.S.C. § 1252(f)(prohibiting injunctions against the operation of the INA) does not bar relief to the class: (A) the respondent’s seek declaratory relief for individual members of the class, not an injunction writ large and (B) the class claims that the complained of conduct is not authorized by the statute, so the claim is outside of1252(f)’s bar on enjoining the operation of statutes.
5. Rumsfeld v. Padilla, 542 U.S. 426 (2004), which states that the default respondent in “core” habeas proceedings is the physical custodian, does not bar class certification.  The government argued that all members of the class therefore are required to have the same physical custodian but:  (A) Rumsfeld specifically reserved addressing immigration detention challenges and (B) courts often certify classes of habeas petitioners who have multiple physical custodians.
6. The class meets the requirements of Federal Rule of Civil Procedure 23: 
   1. Commonality: Although more than one statute is at play here, the constitutional issue – when is prolonged detention without a bond hearing authorized – is common to all members of the class. 
   2. Typicality – Rodriguez is sufficiently typical.  His release on OSC does not moot his claim and his AggFel status, while relevant to his ultimate removal and the merits of his bond hearing, does not vitiate his claim that he is entitled to a bond hearing.
   3. Counsel (ACLU, Stanford, Sidley Austin) is adequate to represent the interests of the class.
   4. Rule 23(b)(2)(whether the opposing party has acted or refused to act on grounds that generally apply to the class).  The gov basically repeated its argument that different statutory authorities govern the detention decisions and that, therefore, the reasons for action are not generally applicable to the class.  The CtApp ruled that it is sufficient “that the class members complain of a pattern or practice that is generally applicable to the class as a whole.”  The class challenges detention without a bond a hearing, which applies to each member.

 

Given the different statutory regimes governing detention of class members, the CtApp instructed the DistCt to consider requests for forming subclasses within the class.

 

Read opinion here. 

Pacheco-Fregozo v. Holder (9^th Cir. August 12, 2009)

 

 BERZON, Smith, Thompson

 

 Petitioner Pacheco pleaded nolo contendere to misdemeanor child endangerment, Section 237(b) of the California Criminal Code.  The issue before the CtApp was whether a conviction under § 237(b) is categorically a crime of child abuse under the INA and whether remand for application of the modified categorical approach was necessary. 

Categorical analysis:

1. The agency decision here occurred before the BIA precedentially defined “child abuse” under the INA in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008).  Here, the BIA relied on Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), which the 9th ruled had only defined child abuse in dicta.  The gov argued that remand was necessary to consider the application of Velazquez-Herrera under a categorical analysis.  The gov acknowledged that the latter decision reached broader conduct than the former, however, so the CtApp held that remand was not necessary: if the state conviction is not categorically within Velazquez’s definition of child abuse, it is necessarily not within the narrower definition relied on by the BIA in this case.
2. Velazquez construed a crime of child abuse to require actual injury to a child: “this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight [and] mental or emotional harm, including acts injurious to morals.”[EB – The BIA’s definition is arguably not exhaustive.]  The statute reaches conduct that only presents the possibility (“may have been injured”) of harm to a child – the CtApp highlighted a conviction for leaving a child on a “high bed” without railings.  The misdemeanor statute specifically excludes conduct “likely to produce great bodily harm or death,” unlike the felony statute.  Ergo, a conviction under 237(b) is not categorically a crime of child abuse.

Modified categorical analysis:

The CtApp remanded for application of the modified categorical approach because (1) the criminal complaint originally alleged more serious conduct than the minimum conduct reached by the misdemeanor statute, and Pacheco might have admitted to this more serious conduct and (2)  The BIA did not apply Velazquez in the modified categorical analysis, and should be given the opportunity to do so.  The CtApp provided reasons for why, under California law, Pacheco may not have admitted to the alleged conduct.  

Read opinion here. 

 

Soriano v. Holder (9th Cir. June 26, 2009)

 

GRABER, Bea, Rymer

 

Soriano was a witness in the U.S. in a criminal investigation of a Filipino drug ring in which he was a participant.  He applied for asylum, withholding and CAT on this basis.  The CtApp found that whatever harm he feared, he could not establish that a political opinion or particular social group would be its cause. 

 

On political opinion, the CtApp upheld the BIA’s finding that harm to Soriano would be motivated by retaliation for informing and not by any political opinion – he failed to express any.

 

 On PSG:  The CtApp held that Matter of C-A-’s determination that noncriminal informants do not comprise a social group should be accorded Chevron deference.  However, Soriano is a criminal informant, so it proceeded to further analysis.  [EB – the fact that C-A- claimed civic duty and morality as a motivation and as the fundamental trait underlying the PSG should have been used to differentiate this case.  Soriano’s motives were more cynical, as he cooperated only once arrested, so the C-A- arguments should not have been fully before the CtApp].  Analogizing Soriano’s claim to the insufficiently particular social groups addressed in gang and other cases, the CtApp found that criminal government informants are not sufficiently “cohesive and homogenous” to constitute a PSG.       

 

Read opinion here.