Zhao and Duan v. Mukasey (9th Cir., 8/26/08, No. 07-75041)
REINHARDT, Berzon, Miner
This married couple from the People's Republic of China applied for asylum/withholding/CAT based on membership in Falun Gong and their treatment by Chinese officials. After denials at the IJ and BIA the couple appealed only the asylum denial. The 9th Cir. found they had proven a well-founded fear of future persecution and that the IJ's denial of asylum was not supported by substantial evidence.
Interestingly here the 9th Circuit said it did not need to determine whether the arrest, detention, battery, and threats of the police against petitioners, coupled with their paying a fine, being required to report to police, and travel restrictions was past persecution. Earlier 9th Circuit cases had found there was an established pattern or practice of persecution by the People's Republic of China against Falun Gong members and therefore these petitioners had a reasonable fear of future persecution. The 9th Circuit found petitioners eligible for asylum and remanded for a decision as to the exercise of the AG's discretion.
Dzyuba v. Mukasey (9th Cir., 8/25/08, No. 06-74372)
Wardlaw, Clifton, N.R. Smith (Per Curiam)
Petitioner was born in Georgia in 1965 and therefore a native and citizen of the U.S.S.R. He emigrated from Ukraine to the U.S. as a refugee in July 1991; at the time of petitioner's emigration the Ukraine was still part of the U.S.S.R. (the U.S.S.R. was dissolved in December 1991). Petitioner adjusted to LPR status; when he applied to naturalize he was instead placed in removal proceedings due to convictions for two CMT, an agg felony, and a DV conviction. Petitioner conceded removability, but applied for withholding and CAT relief. The BIA on review determined that petitioner could be removed to Ukraine since he'd last entered the U.S. on a Ukrainian passport and therefore could be removed to the Ukraine under 1231(b)(2)(E)(i).
The 9th Cir. stated that the BIA was incorrect - the passport in the record was issued by the U.S.S.R., not the Ukraine. The 9th Cir. noted that the BIA's error led it to avoid the key legal question here - was the Ukraine a "country" when petitioner left from there to emigrate to the U.S. as a refugee. The 9th Cir. held it owed the BIA Chevron deference to make an initial determination whether the Ukraine was a "country" within the meaning of the INA's removal sections and therefore remanded to the BIA. The 9th Cir. had earlier noted that the term "country" was used throughout the INA and that it must mean the same thing throughout the INA.
De Rincon v. DHS and De Rincon v. Mukasey (9th Cir. 8/21/08)
N.R. SMITH, Walker, Schroeder
The 9th Cir. here consolidated for decision petitioner's habeas petition and petition for review and dismissed the appeal due to lack of jurisdiction.
Petitioner had been issued an expedited removal order at the port of entry for a false claim to U.S. citizenship. When she later sought to adjust her status based on marriage to a U.S. citizen she was arrested at the interview and issued a reinstatement of removal order. She appealed and filed a habeas corpus petition; these two actions were consolidated.
The 9th Cir. held it had no jurisdiction over the petition for review, stating:
This court does retain some limited jurisdiction to adjudicate a collateral attack on an underlying expedited removal order that has been reinstated; but §§ 1252(a)(2)(A) and 1252(e) expressly limit the scope of such review to habeas petitions alleging that the petitioner is not an alien or was never subject to an expedited removal order. See §§ 1252(a)(2)(A), 1252(e). De Rincon’s direct challenge to the reinstated removal order is not a habeas petition and it does not contest her expedited removal order on any of the enumerated permissible grounds in § 1252(e)—this court therefore has no jurisdiction to hear it.
The 9th Cir. also dismissed the habeas petition:
this court lacks jurisdiction over de Rincon’s habeas petition collaterally attacking her expedited removal order, because de Rincon does not raise any of the three permissible bases for habeas review in this court allowed under 8 U.S.C. § 1252(e)(2). Id. (limiting this court’s habeas jurisdiction to review whether petitioner is an alien, whether she was subject to an expedited removal order, and whether petitioner is a lawful permanent resident or has been granted asylum). De Rincon does not challenge her expedited removal order on any of the approved grounds; consequently, this court does not have jurisdiction over the particular collateral attack presented in de Rincon’s habeas petition.
Finally, the 9th Cir. rejected petitioner's request to transfer the habeas petition back to the district court, saying that although her request was in the nature of a Suspension Clause argument, case law precedents mandated the dismissal of her habeas petition.
Consolidated appeals of Mexican husband and wife who applied for non-LPR cancellation in proceedings and were denied by the IJ and BIA for failure to prove their removals "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child" who is a citizen or LPR.
The 9th Cir. determined that it had no jurisdiction to review the discretionary decisions because of the jurisdiction stripping provisions of INA § 242(a)(2)(B)(i), 8 U.S.C. §1252(a)(2)(B)(i). Further, petitioners' facts were not within the limited exceptions to the provisions of (B)(i) - i.e., questions of law and constitutional claims. The 9th Cir. here rejected petitioners' argument that the IJ made an error of law regarding the weighing of financial support obligations. The court also rejected petitioners' arguments that: (1) the IJ violated due process by abusing his discretion by misapplying the facts to the hardship standards; and, (2) their removal would result in a loss of their "fundamental right" to "family unity" if they left with their U.S. citizen children but left the legalized parents of one of petitioners' in the U.S.
The 9th Circuit held the IJ abused his discretion in denying a continuance and pretermitting petitioner's claims for withholding and CAT relief based on petitioner's failure to timely resubmit new fingerprints for the required background security check.
The court stated:
"The factors we consider — the importance of the evidence excluded, the reasonableness of the immigrant’s conduct, the inconveniance to the immigration court, and the prior continuances — strongly militate in favor of Cui. After considering the extent of the harm that would befall Cui, along with these factors, we are required to conclude that the denial of a continuance was arbitrary and unreasonable. Although there are no bright-line rules for deciding when an IJ’s denial of a continuance warrants reversal, it is clearly an abuse of discretion for an IJ to deny a request from an otherwise diligent applicant for a short continuance to submit fingerprints, particularly where the applicant was faced with an unclear fingerprint requirement and where the applicant was disserved by an IJ’s inadequate guidance on the requirement. "
The 9th Cir. noted that past continuances had been granted at the government's request and because of the court's busy docket. The case was remanded for testimony on the merits of petitioner's claims.
Ninth Circuit 
