Bromfield v. Mukasey (9th Cir., 9/15/08, No. 05-75844)
FLETCHER, Paez, Schwarzer
Petitioner was a LPR from Jamaica charged as being removable due to the conviction of an aggravated felony. Petitioner appeared before the IJ pro se and admitted removability. The IJ determined that petitioner was not eligible for asylum but was not convicted of a particularly serious crime and allowed petitioner to apply for withholding of removal and CAT relief. Petitioner testified that as a gay man he would be subjected to torture and persecution in Jamaica, citing the criminalization of homosexual acts in Jamaica and reports of violence against gays in Jamaica.
The 9th Cir. rejected the government's argument that it had no jurisdiction to review this case by stating that § 1252(a)(2)(c) applies only to removal decisions, not asylum/withholding/CAT denials. Since the IJ here denied petitioner's withholding and CAT claims on their merits the 9th Cir. had jurisdiction to review those denials.
The 9th Cir. found that the Jamaican government's prosecution of homosexual activity was a form of persecution against a particular social group - gay men - and that the prosecution of activity rather than status was still persecution of a particular social group. The Country Conditions report supported a finding that there was a pattern or practice of such persecution. The 9th Cir. also found that the Jamaican government not only acquiesces to the torture of gay men but participates in it.
The 9th Cir. remanded for a determination as to whether petitioner was more likely than not to suffer persecution or torture.
Cosa v. Mukasey (9th Cir., 09/15/08, No. 04-75643)
McKEOWN, Gould, Schiavelli
The 9th Cir. found that the IJ's decision was not supported by substantial evidence, granted the petition, vacated the adverse credibility decision, and remanded to the BIA. Petitioner, a member of the Millenist faith in Romania, applied for asylum after persecution, beatings, and rape in Romania based on her religion. She testified at her IJ hearing and submitted written statements from fellow Millenists supporting her claim and medical evidence of the rape.
The 9th Circuit repeatedly found fault with the IJ's decision-making process stating:
"Ultimately, in example after example, the IJ doubted
Cosa’s credibility, not because of a true demeanor finding and
not because her testimony was incredible or at odds with the
evidence or widely-held facts about Millenism, but simply
because Cosa’s description did not comport with the IJ’s
Figueroa v. Mukasey (9th Cir., 9/10/08, No. 05-75157)
TASIMA, McKeown, Gould
The BIA adopted the IJ's decision holding that the petitioner parents were ineligible for non-LPR cancellation of removal. The parents argued that the 9th Cir. could review the decisions because they were based on errors of law or, in the alternative, that an indiscernible decision by the IJ was grounds for remand. (The tape of the hearing was so bad that the transcript read "indiscernible" in key parts.)
Petitioners argued that the IJ held they were ineligible for non-LPR cancellation because their removals would not be "unconscionable" and that the IJ further erred in failing to consider future harm to their two U.S. citizen children. The 9th Cir. held that it was not precluded from reviewing the IJ's decisions because they were not discretionary decisions under 8 U.S.C. § 1252(a)(2)(B)(i) which bars judicial review, but rather questions of law under 8 U.S.C. § 1252(a)(2)(D) that are reviewable. The IJ's use of improper legal standards, an "unconscionable" standard and not considering future harm to the U.S. citizen children, was reviewable. The 9th Cir. held that errors of law were made and remanded the case; it did not reach the argument that the IJ's indiscernible opinion was grounds for a remand.
EN BANC Schroeder NRSmith, Walker (2d cir by designation)
Hassan was an Adjustment applicant, who filed a mandamus when his case wasn't approved. He also obtained Advance Parole. While outside the US (in Saudi Arabia), they denied his Adjustment application and revoked his advance parole - so when he returned, they put him into expedited removal, and removed him.
1. No jurisdiction over his argument that the regulations (8 C.F.R. § 103.2(b)(16)(i)) required that he be given a hearing (notice and opportunity to be heard) on his adjustment application - because 1252(a)(2)(B)(i) strips jurisdiction over Adjustment denials, and this was denied at least in part based on discretion. CtApp found 1252(a)(2)(D) inapplicable, because case was filed in DistCt, and 1252(a)(2)(D) applies, on its face, only to Petitions for Review.
[No discussion of the general presumption of reviewability of constitutional claims or pure statutory claims - despite the fact that Hassan apparently argued constitutional error - it is unclear whether Hassan sought habeas relief, but there'd also be a presumption against elimination of all habeas jurisdiction... - CR]
2. No jurisdiction over revocation of Advance Parole. Hassan argued that USCIS didn't have discretion to revoke advance parole grant, but CtApp found that statute and regs governing parole - which permit termination of parole - also served to permit the termination of advance parole.
[No discussion of 8 CFR 1245.2(a)(1), which would seem to have given him the right to renew the application for Adjustment in removal proceedings - or for that matter, 8 CFR 1.1(q), which would seem to preclude the use of expedited removal against someone granted advance parole - but it's not clear whether this argument was presented to the District Court or to the CtApp. - CR]
Santos-Lemus v. Mukasey (9th Cir., 9/8/08, No. 07-70604)
WALLACE, Graber, Timlin
The 9th Cir. upheld the denial of asylum, withholding and CAT to a young man from El Salvador. He had claimed fear of persecution by MS-13 based on membership in two social groups: (1) his family; and, (2) “the class of young men in El Salvador who resist the violence and intimidation of gang rule.” He also claimed persecution based on anti-gang political opinion and raised for the first time on appeal a claim of past persecution based on imputed political opinion based on his and his brothers' refusals of gang membership. One of his brothers had been murdered and the other attacked by MS-13; both he and his brother also received threats and left El Salvador.
1. The 9th Cir. said that his mother's continued safety in El Salvador constituted substantial evidence to support the BIA's determination regarding his family membership claim. His attempts to distinguish his situation as a younger male as compared to his mother as an older female undermined his claim that his family was a particular social group facing persecution.
2. The court found that the group that petitioner described, young men resisting gang violence, was "too loosely defined to meet the requirement of particularity" based on the BIA's decision in Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008), and 9th Cir. caselaw.
3. The court found that petitioner presented no evidence that his oppositiion to gang criminal activity was based on political opinion.
4. The court found no evidence of political opinion or motive in the gang's or petitioner's actions and petitioner's imputed political opinion argument failed.
5. Finally, the court rejected petioner's CAT claim.
Ninth Circuit 
