Toufighi v. Mukasey, (9th Cir., August 18, 2008, No. 04-74010)
SINGLETON, Ikuta, Berzon (Dissenting)
The 9th Circuit here upheld the BIA's denial of Petitioner's Motion to Reopen based on marriage to a U.S. citizen and changed circumstances in Iran. Petitioner originally overstayed his NIV; in proceedings applied for asylum, withholding and VD; was denied asylum and withholding when IJ determined petitioner didn't actually convert to Christianity from Islam; appeal at BIA dismissed when Petitioner didn't file brief, but BIA granted 30 days to voluntarily depart. Petitioner did not depart but later filed Motion to Reopen citing marriage to a U.S. citizen and changed circumstances in Iran.
The 9th Cir. upheld the BIA's denial of the Motion to Reopen because it was not filed within the required 90 day period. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.§ 1229a(c)(7)(C)(I). Petitioner had made no argument as to tolling the 90 days within which to file a Motion to Reopen. The 9th Cir. did not reach the issue as to whether petitioner's failure to voluntarily depart made him ineligible for 10 years from relief under INA § 240B(d)(1)(B) since the Motion to Reopen was not filed within 90 days.
Petitioner alternatively argued for reopening based on changed circumstances in Iran arguing he would be perceived as a Christian convert if returned to Iran ("deteriorating conditions in Iran for those associated with United States or pro-Western ideology"). Alternatively petitioner argued that the IJ's decision that he did not convert to Chritianity was incorrect. The 9th Circuit held that the new information based on the former argument did not prove he would experience persecution and that it had no jurisdiction to review the IJ's original finding on the latter religious conversion issue.
The dissent noted that the legitimacy of petitioner's spititual conversion to Christianity, as opposed to his stated conversion to Christianity, was not the issue so much as the religious beliefs imputed to petitioner by the Iranian government. The status of being an "apostate" and renouncing Islam, even if done to gain asylum, is the issue, not the truthfulness of the conversion. The dissent would have remanded the case for proper evaluation of petitioner's imputed religious beliefs.
Choin v. Mukasey, No.s 07-70941 and 06-75823(9th Cir.)(August 12, 2008)
PREGERSON, Goodwin, Nelson
Petitioner came into the U.S. on a K "fiance" visa, married her U.S. citizen fiance, and filed an application to adjust status to lawful permanent residence. Five days short of two years later while still waiting for her adjustment interview she was divorced from her U.S. citizen husband. INS then denied her adjustment application and instituted removal proceedings. The 9th Cir. held that the language in INA § 245(d) that the AG "may not adjust . . . the status of a (K visaholder) except to that of an alien lawfully admitted to the U.S. on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant . . . to the citizen who filed the (K visa petition)" means petitioner here did not still need to be married to the citizen who filed the K visa petition and was eligible for adjustment. The court accorded the BIA decision here Skidmore rather than Chevron deference since it was an unpublished opinion and the BIA offered little explanation for its decision that 245(d) required the petitioner and K visaholder to still be married at the time of the adjustment interview.
Romero-Ruiz v. Mukasey, No. 06-74494 (9th Cir.)(August 13, 2008)
THOMAS, Trott, Hogan
Under former INA § 321, 8 U.S.C. § 1432, a child born outside the United States to alien parents becomes a citizen upon the naturalization of the parent having legal custody (where there has been a legal separation of the parents) or the mother (if the child was born out of wedlock) if (1) “such naturalization takes place while such child is under the age of eighteen years,” and (2) “such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years.” 8 U.S.C. § 1432(a) (repealed 2000).
Petitioner here argued that the meaning of "reside permanently" in the second clause in 1432(2) meant that he did not have to be an LPR - just residing in the U.S. - and that given the facts of his case he derived U.S. citizenship from his mother when she naturalized; petitioner was not a LPR when his mother naturalized although he was under 18. The 9th Circuit held, however, that "reside permanently" meant LPR status and therefore petitioner did not derive U.S. citizenship when his mother naturalized.
The 9th Circuit also determined that petitioner's false claim to U.S. citizenship did not fall within the INA § 212(a)(6)(C)(i)(II) exception since petitioner's father was not a U.S. citizen at the time of the false claim.
U.S. v. Flores-Villar, No. 07-50445(9th Cir.)(August 6, 2008)
RYMER, Hall, Kleinfeld
The Ninth Circuit affirmed the district court’s ruling that former INA §§ 1401(a)(7) and 1409, requiring five years residence after the age of fourteen on U.S. citizen fathers – but not on mothers – before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen, did not violate the Equal Protection provisions of the Fifth Amendment. Petitioner had a substantial criminal history and six previous removal orders. In 2006 he was arrested again and charged with being a deported alien found in the U.S. after deportation in violation of INA §§ 276(a) and (b).
Petitioner attempted to defend on the ground that he obtained U.S. citizenship through his father. On cross motions in limine the district court ruled that Petitioner would not be allowed to present evidence that he believed he was a U.S. citizen. A contemporaneous N-600 application seeking a Certificate of Citizenship was denied since it would have been impossible for Petitioner’s U.S. citizen father to have been present in the U.S. for five years after his fourteenth birthday as required by § 1401(a)(7) since the father was 16 when petitioner was born.
The Ninth Circuit stated that the answer to the constitutionality of this former section of the INA “follows from the Supreme Court’s opinion in Nguyen v. INS, 533 U.S. 53 (2001).” In Nguyen the Supreme Court held that 1409’s legitimation requirements for citizen fathers, but not for citizen mothers, did not offend equal protection principles. The Ninth Circuit assumed, as did the Nguyen court, that the intermediate level of scrutiny applied to this case although they also stated that it would not matter if the law was “analyzed under intermediate scrutiny, a rational basis standard, or some other level of review in between.”
In finding that the former statutory provisions were constitutional the 9th Circuit stated: “(a)voiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests. The means chosen substantially further the objectives. Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”
The court’s reference to statelessness follows from the idea that relaxing the residence requirement for women makes sense “because many countries confer citizenship based on bloodline (jus sanguinis) rather than, as the United States does, on place of birth (jus soli).” If a U.S. citizen mother is not a dual national, and the illegitimate child is born in a country that does not recognize citizenship by jus soli alone, the child can acquire no citizenship other than his mother’s at birth. Although there are countries where the jus sanguinis doctrine runs through the mother and not the father, this was considered the minority view by the court here. Thus the distinction here by the former provisions of the INA had some basis for preventing statelessness.
Lopez-Rodriguez and Gastelum-Lopez v. Mukasey, No. 06-70868 (9th Cir.)(August 8, 2008)
CANBY, Bybee (C), Quackenbush
The 9th circuit reviewed the IJ and BIA’s decisions to deny petitioners’ joint motion to suppress their respective Forms I-213 (Record of Deportable/Inadmissible Alien) and a sworn statement by petitioner Gastelum.Petitioners argued that INS agents who came to their residence in October 2000 without an arrest or search warrant based on a tip of fraudulent use of a U.S. birth certificate committed egregious violations of the 4th Amendment by pushing their way into petitioners’ residence.
The 9th Circuit stated that these facts fit squarely within the basic principle that searches and seizures inside a home without a warrant are presumptively unreasonable, citing Payton v. New York, 445 U.S. 573, 586 (1980), and this presumption may only be overcome by consent or exigent circumstances.Petitioner Gastelum testified she had not consented and the INS agents did not testify.The IJ ruled that although there were “some 4th Amendment problems with the manner of entering and questioning” the problems were not egregious violations.The BIA affirmed the IJ without decision.
The 9th Circuit concluded that “the evidence of alienage contained in these documents was obtained in violation of (petitioners’) Fourth Amendment rights and that the violation was egregious.”The 9th Circuit also said that “the bare fact that Gastelum neither refused to speak to them nor ordered them to leave after they pushed the door open and entered her home is insufficient to establish consent.”Since the INS officers receive extensive training in 4th Amendment law, citing Orhorgaghe, 38 F.3d at 503 n. 23, the INS officers here should have known that their conduct was in violation of the 4th Amendment and therefore egregious.The 9th Circuit noted that the warrant requirement applies with the same force in the administrative process, citing Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 534 (1967).There being no other evidence of petitioners’ alienage the court granted the petition for review, reversed the decision of the BIA, and remanded with instructions to dismiss the removal proceedings against the petitioners.
Judge Bybee’s concurring opinion expressed concerns that 9th Circuit jurisprudence on the issue of what constituted an egregious violation of the 4th Amendment was overinclusive and that other circuits had adopted a more stringent standard for “egregious” violations of the 4th Amendment.Also, he noted that the part of Justice O’Connor’s opinion in INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 – 51, stating in dicta that there might be an exception to the general rule that the 4th Amendment exclusionary rule does not apply in deportation proceedings in the case of egregious 4th Amendment violations was only joined by three other justices.
Ninth Circuit 
