Khunaverdiants v. Mukasey (9th Cir., 11/18/2008, No. 07-70145)
SEDWICK, Gould, Bea
Petitioner was granted withholding of removal but denied asylum. The IJ ruled petitioner had not proven the asylum application was filed within one year of his entry into the U.S. Petioner is an Iranian Christian who alleged past persecution and imprisonment; he was found credible by the IJ. Petitioner's testimony was inconsistent as to when he entered the U.S.
The 9th Circuit held:
1. 8 U.S.C. § 1158(a)(2)(B) requires an alien to demonstrate “by clear and convincing vidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States,” not necessarily the alien’s exact date of arrival.
2. "(W)e have jurisdiction to review the BIA’s timeliness determination because any view of the historical facts necessarily establishes that Khunaverdiants filed his asylum application within one year of his arrival. Accordingly,Khunaverdiants’ challenge to the BIA’s determination that his application is time barred is a mixed question of law and fact."
3. The BIA erred in concluding that proof of an exact departure date was necessary when other clear and convincing evidence established that Khunaverdiants necessarily filed his asylum application less than one year after arriving in the United States.
4. Since petitioner met the higher standard for withholding he is eligible for asylum.
5. Remand to the BIA regarding the AG's exercise of discretion as to whether to grant asylum.
Flores-Torres v. Mukasey (9th Cir., 11/10/08, No. 08-16484)
REINARDT, Schroeder, Nelson
Petitioner was born out of wedlock in 1978, joined his mother in the U.S. in 1986, and became a LPR in 1993. He was 17 when his mother naturalized in 1995. After two felony convictions in 2002 he was granted cancellation of removal. In 2005 he was convicted of possession of a firearm by a felon with 2 priors; ICE issued an NTA alleging he was removable as an aggravated felon.
Petitioner filed a motion to terminate arguing he derived U.S. citizenship from his mother when she naturalized. The IJ denied the motion, the BIA dismissed his appeal, but reopened the case at petitioner’s request, vacated its decision, and remanded to the IJ. The IJ again denied the citizenship claim.
Petitioner filed a writ of habeas corpus after 16 months in custody. The district court dismissed in part, saying it lacked jurisdiction to determine the citizenship claim, and rejected petitioner’s challenge to lengthy detention without an individualized custody hearing.
The 9th Cir. held:
1. Petitioner’s challenge to detention without an individualized hearing under Casas-Castrillon was moot as the IJ held such a hearing and denied petitioner release from custody as a flight risk and danger to the community.
2. INA §242, 8 U.S.C. § 1252, does not preclude the district court from exercising jurisdiction over petitioner’s habeas corpus petition.
a. 242(b)(5) governs challenging nationality claims in final orders of removal, not in all circumstances.
b. The habeas here is challenging detention prior to any final order of removal and under Nadrajah the jurisdiction-stripping provision of REAL ID does not apply to habeas petitions that don’t involve final orders of removal.
c. Under Casas-Castrillon aliens “may continue to bring collateral legal challenge to . . . detention . . . through . . . habeas . . .”.
3. Petitioner is not required to exhaust administrative remedies under the INA since only “aliens” are required to do so.
4. The Non-Detention Act, 18 U.S.C. § 4001, prohibits detention of U.S. citizens by the federal government except pursuant to an Act of Congress.
5. There are “serious questions concerning the government’s position that an individual who asserts a non-frivolous claim of citizenship can be detained during immigration proceedings . . . without habeas review.” Salerno, Zadvydas, Boumediene cited.
The 9th Circuit remanded to the district court for a prompt hearing on the merits and denied petitioner’s request for immediate release.
Martinez v. Mukasey (9th Cir., 10/6/08, No. 04-72975)
TROTT, Noonan (C), Pregerson (D)
Petitioner had filed affirmatively for asylum based on political opinion as a member of a persecuted student group in Guatemala; in removal proceedings before the IJ he changed his ground for asylum to persecution because he was gay and admitted he'd lied earlier about his student activities in both his initial app and to the Asylum Officer. This case had been remanded by the 9th Cir. in 2003 to the BIA because the BIA failed to state cogent reasons for rejecting petitioner's testimony; while the BIA agreed with with the IJ's adverse credibility finding it did not adopt that finding. Petitioner also had filed a MTR to consider his CAT claim. The 9th Cir. denied both grounds of the PFR.
The 9th Cir. stated that its earlier opinion was not the law of the case since it had remanded to the BIA as to the reasons the BIA had upheld the IJ's denials of asylum/withholding/VD. The BIA on remand had stated petitioner's testimony was not credible due to his earlier lying and his admissions of those lies. The court here then said its misunderstanding of the initial BIA decision shouldn't benefit petitioner.
The concurrence notes that to adopt its earlier decision, which would have led to a favorable decision for petitioner, was manifestly unjust and thus within an exception to the law of the case doctrine.
The dissent points out that the question of whether the false statements were a sufficient reason to deny petitioner's asylum app had already been decided earlier by the 9th Cir. (No, they weren't sufficient reason). Also, there was not manifest injustice since petitioner's failure to allege persecution based on sexual orientation was not illogical given the state of the law at the time he came to the U.S. and applied for asylum.
The 9th Cir. determined that Hawaii's "hit and run" traffic statute was not a crime involving moral turpitude. Hawaii Revised Statute § 291C-12.5, requires a driver involved in an accident resulting in substantial injury to remain at the scene of the accident, provide certain information, and render assistance. The IJ and BIA held the petitioner removable to Tonga because of his conviction under 291C-12.5 within 5 years of his entry into the U.S. 8 U.S.C. § 1227(a)(2)(A)(i).
The 9th Cir. reviewed de novo whether this state statutory provision was a crime involving moral turpitude. It determined that under neither the categorical approach nor a fraud analysis was the first prong of the statute a crime involving moral turpitude. The court also refused to remand the case to the BIA to determine whether under the modified categorical approach the crime was a crime of violence.
The dissent notes that the first prong of the Hawaiian statute involves moral turpitude, either because the Hawaiian courts have narrowed the interpretation of the statute to make the offense one that involves moral turpitude or because the clause inherently involves fraud. The dissent also believes that the second prong of the Hawaiian statute involves moral turpitude because "wilful disregard of a risk of harm is sufficiently “base and depraved” as to involve moral turpitude."
Balam-Chuc v. Mukasey (9th Cir., 10/24/08, No. 06-72887)
BYBEE, Nelson, Hawkins
Petitioner, a Mexican citizen, married a U.S. citizen in May 2000 and his wife hired a law firm in March 2001 to file an IR petition before the expiration of 245(i) on April 30, 2001. Mindful of the deadline she provided the law firm everything needed, including the signed forms and filing fees, by the end of March and followed up with a phone call on March 30th; she was assured that the IR petition would be timely filed. The date of the filing of the petition was disputed, the law firm arguing it was filed on or before the April 30th deadline, but the INS receipt date was June 13, 2001.
Petitioner was placed in proceedings. Petitioner conceded removability in proceedings, but argued that the petition was timely filed or, alternatively, that the April 30th deadline should be tolled due to ineffective assistance of counsel. The IJ ruled the petition was not timely filed and that the 245(i) deadline was a statute of repose and not a statute of limitations and thus not subject to equitable tolling for IAC. Petitioner appealed to the BIA requesting the BIA adjudicate the IR petition nunc pro tunc or find 245(i) a statute of limitations subject to equitable tolling. The BIA held that the deadline was a statute of repose not subject to tolling and that neither the IJ nor the BIA had authority to adjudicate the IR petition.
The 9th Cir. held:
1. 245(i) is a statute of repose and not a statute of limitations and thus not subject to equitable tolling. The court explained the difference:
“Statutes of limitation are primarily designed to assure fairness to defendants and to promote the theory that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Albillo-De Leon, 410 F.3d at 1095 (internal quotations and citations omitted). In essence, “such limitations relieve courts of the burden of adjudicating stale claims when a plaintiff has slept on his rights.” Id. On the other hand, a statute of repose is a “fixed, statutory cutoff date, usually independent of any variable, such as claimant’s awareness of a violation.” Munoz, 339 F.3d at 957.
“A statute of repose cuts off a cause of action at a certain time irrespective of the time of accrual of the cause of action.” Weddel v. Sec’y of Health & Human Servs., 100 F.3d 929, 931 (9th Cir. 1996). Perhaps the most distinguishing characteristic of a statute of repose is that it establishes “an outer date for bringing an action” instead of a variable period of time during which a plaintiff must assert her claim. Id. Thus, we have noted that statutes of repose act “ ‘as the endpoint of the definite time period in which Congress would permit a specific class of potential annuitants to file applications,’ ” which function “ ‘as a condition defining and closing the class.’ ” Id. (quoting Iacono v. Office of Pers. Mgmt., 974 F.2d 1326, 1328 (Fed. Cir. 1992))."
2. The alleged ineffective assistance of counsel in not timely filing the IR petition did not violate 5th Amendement Due Process because "due process rights to assistance of counsel do not extend beyond the fairness of the hearing itself. Lara-Torres v. Ashcroft, 383 F.3d 968, 973-76 (9th Cir. 2004)." In this case the alleged IAC occurred well before any IJ hearing and thus no due process right was involved.
(MH - The 9th Cir. ended its decision with a plea to the government to reach a principled, rational decision noting that requiring petitioner to leave the U.S. for consular processing would serve no useful purpose, and was contradictory to the intent of the statute's goal of family unity, but would be extremely hard on petitioner, his wife, and their two small U.S. citizen children. The court urged the government to find a way to allow the IR petition to be adjudicated within the U.S.).
Ninth Circuit 
