Malkandi v. Mukasey (9th Cir., 9/19/08, No. 06-73491)

McKEOWN, Reinhardt, Tashima

     Petitioner Iraqi Kurd came to the U.S. as a refugee from Iraq after a successful application while in Pakistan.  He adjusted to LPR status and applied for citizenship.  During the pendency of his citizenship application the FBI started an investigation of him.  He was placed in removal, admitted he had lied to the UNHCR and U.S. re his history in Iraq and Iran, had his LPR status revoked due to material false representations to obtain an immigration status, and applied for asylum, withholding of removal and Convention Against Torture relief.  The IJ made an adverse credibility finding and denied all relief to petitioner.  His wife and children were granted asylum and petitioner was denied potential derivative status under those grants.

     The 9th Cir. here upheld the denial of such discretionary relief to petitioner due to his credibility problems and the determination that there were "reasonable grounds for regarding (petitioner) as a danger to the security of the U.S."  INA §§ 208(b)(2)(A)(iv) (asylum), 241(b)(3)(B)(iv)(withholding), and 8 CFR § 1208.16(1)(2)(CAT withholding).  This danger was based on petitioner's alleged relationship to al Qaeda and individuals linked to attacks on the U.S.

     The 9th Cir. adopted the 3rd Cir.'s definition of "reasonable grounds" in Yusupov v. Ashcroft, 518 F.3d 185, 200 (3d Cir. 2008), i.e., probable cause.  Further, the 9th Cir. believed that the BIA correctly applied this standard to petitioner's case.

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M. SMITH, Farris, Fisher

     The 9th Cir. granted the government's consolidated appeals of the district court's granting a habeas corpus petition and an injunction requiring the IJ to hold a bond hearing. 

     The 9th Cir. held that the district court erred in granting the writ because petitioner's detention wasn't indefinite and the preliminary injunction was an abuse of discretion since petitioner was detained under § 236 rather than §241.  It therefore reversed the grant of habeas relief and vacated and remanded as to the injunction.

     Petitioner originally entered on a student visa, overstayed and was convicted of a controlled substance offense.  In removal proceedings he was granted VD by 6/24/03.  He did not depart to Senegal and did not later report for removal.  He was subsequently arrested at his home and detained.  A series of pro se motions to reopen, allegations of IAC, petitions for review, an untimely appeal of the original VD order, motions for stays of removal (some of the stays being granted by the 9th Cir.) and the concurrent habeas petition/injunction request followed.  His potential relief is AOS based on marriage to a U.S. citizen.

     The 9th Cir. held: 

     1.  Because the administrative removal order was final the 9th Cir. found that petitioner was detained under INA 241(a)(6) as being inadmissible under 212. 

     2.  The removal period began June 25, 2003, the day after his VD period ended, because that is the day his removal became "administratively final" under 241(a)(1)(B)(i).

     3.  Petitioner conspired or acted to prevent his removal during the 90 day removal period under 241(a)(1)(C).  This did not include times during which stays from the 9th Cir. had been granted.

     4.  Petitioner failed to cooperate in his removal until July 20, 2005.  It may be that he failed to cooperate after that date assuming reasonable inferences but the burden of proof is on the government to affirmatively show lack of cooperation and this can't be done by inference.

     5.  Tolling or restart of removal period?  9th Cir. says the 90 day removal period restarted after the latest date of documented obstruction of his removal by petitioner.  To toll the removal period during a one-time 90 day period would have allowed the government only 17 days here to effectuate petitioner's removal and this would have entailed ICE restarting the whole process with a truncated period of time; this would defeat the purpose of the statute.  Therefore, no tolling for (a)(6) cases but 9th Cir. notes that this may not be true of other (a) subsections.

     6.  Time during the "alien’s good faith attempt to make use of legally available judicial review and remedies" does not constitute a suspension of the removal period under 241(a)(1)(C).

     7.  The 9th Cir. found that petitioner's detention was not indefinite because his removal had previously been arranged to Senegal on two occasions and was not accomplished solely because of petitioner's refusal to cooperate.  It thus appeared likely that the government would be able to arrange his removal again. 

     8.  The 9th Cir. remanded to the district court whether petitioner was entitled to an individualized determination before a neutral fact finder of the necessity of his detention under 241(a)(6).  The court declined to decide this issue since it was not before the district court earlier since the district court determined, incorrectly, that petitioner was detained under 236(a); thus the issue as to his rights to a bond hearing under 241(a)(6) were not factually developed nor briefed.

     9.  Finally, the 9th Cir. noted its ruling in Casas-Castillon that a LPR appealing a final order of removal had DP rights to a bond hearing when detained under 241(a) and had a timely PFR pending.  For the petitioner here, a non-LPR with no timely PFR pending the DP issues need to be developed at the district court.   

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Karapetyan v. Mukasey (9th Cir., 9/16/08, No. 05-75865)

PREGERSON, Wardlaw, Archer

     The 9th Cir. reviewed petitioner's two petitions for review - one appealing the denial of asylum/withholding/CAT and one denying petitioner's motion to reconsider to the BIA. 

1.  The IJ found that petitioner's testimony was credible but lacked corroborating evidence.  The 9th Cir. held that petitioner's credible testimony of past persecution and fear of future persecution, if credited, was enough without corroborating evidence.  The 9th Cir. did find corroborating evidence in the record that was submitted by petitioner.  The 9th Cir. held petitioner eligible for asylum based on past persecution because of ethnicity (Armenian) and political opinion (membership in 21st Century Party). 

2.  Petitioner's motion to the IJ for a continuance to do a fingerprint check had also been denied.  The 9th Cir. held that the IJ abused her discretion in denying the continuance.

3.  The 9th Cir. held there was not substantial evidence to support the IJ's denial of withholding and CAT and remanded on these issues.

4.  The 9th Cir. found the BIA abused its discretion in denying petitioner's motion to reconsider, finding that petitioner did raise new arguments.

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Mota v. Mukasey (9th Cir., 9/17/08, No. 07-71880)

THOMPSON, Wardlaw, Moskowitz

     The 9th Cir. granted the petition for review and found that the petitioner's application for non-LPR cancellation was not precluded by a 1990 conviction for injury of a child. 

     The NTA charged petitioner as removable due to a conviction of domestic violence.  After the agency's decision the BIA held that a conviction for domestic violence prior to IIRAIRA's effective date of September 30, 1996, does not make one ineligible for cancellation.  Matter of Gonzales-Silva, 24 I & N Dec. 218, 220 (BIA 2007).  Therefore, the 9th Cir. granted the PTR and retained jur during mediation of this case and did not issue a mandate.

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