Faye v Holder, No. 09-1229 (1^st Cir. Sept. 2, 2009)

Marguette Faye is a Senegalese woman who overstayed a six-month tourist visa grantedin 2000. A Notice to Appear was issued on July 10, 2003, and an Immigration Judge found her removable. In January 2005, Faye filed for asylum, one year after her deadline for filing, claiming membership of a persecuted social group: “women who had a child out of wedlock/are considered adulterers because they gave birth to a child allegedly not their husband’s/have been abused by their husbands.”

Though Faye offered a psychological report to explain her delay in filing for asylum, the Immigration Judge found that her mental illness did not amount to extraordinary circumstances excusing the delay.  In rejecting Faye’s withholding of removal, the Judge found Faye to be a credible witness, but found no “persuasive evidence” that Faye would face persecution if returned to Senegal. Faye’s Convention Against Torture claim was also denied, with the Judge finding there was no evidence she would be tortured if returned.

The Board of Immigration Appeals reversed the Immigration Judge’s ruling that the asylum claim was barred, but also found the error to be harmless, as Faye did not prove persecution based on membership of a protected group. The BIA affirmed the remainder of the Immigration Judge’s decision. Faye petitioned to review and the 1^st Circuit remanded the case to further consider whether petitioner was a member of a protected social group. The BIA issued a new opinion, holding that the proposed group was too “amorphous” and the proposed protected group’s boundaries were too ill-defined to determine the group’s membership.

On appeal, the 1^st Circuit deferred to the BIA’s definition of a “social group” for the purposes of asylum claims: groups “must share a common, immutable characteristic, wither innate or based on past experiences.” Whether this characteristic exists depends on two elements: if the group is socially visible and if it is sufficiently particular.  The Court determined that substantial evidence supported the conclusion of the BIA, that Faye had failed to present sufficient evidence to prove either element. In particular, it pointed out that Faye only testified regarding how her family, not Senegalese society, would view her, and did not present evidence on how similarly situated women are viewed.  The Court similarly rejected Faye’s claim of asylum based on religious beliefs, holding that Faye failed to present evidence showing persecution based her beliefs.

Zhang v. Holder (2d Cir. 10/30/09, no. 07-0327-ag)

Petitioner appealed the denial of her Chinese family planning asylum claim, arguing that the IJ and BIA had erred in finding her testimony incredible and in basing this determination on inconsistencies between her testimony in front of the IJ, her airport interview, and her credible fear interview.  The 2d Circuit held that the records of Petitioner's airport and credible fear interviews were sufficiently reliable to be considered by the agency and that taking these records into account.  The court further found that substantial evidence supported the agency's determination that petitioner did not testify credibly.

The court first found that the agency had correctly relied on the record of her airport interview, citing the 2d Circuit's decisions in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) and Guan v. Gonzales, 432 F.3d 391 (2d Cir. 2005).  Despite Petitioner's subsequent assertions that she was "nervous" and "afraid" during the interview, the court found that the record of the airport interview was sufficiently reliable. The court took into account that Petitioner was informed about the purpose of the interview and the importance of providing full and accurate testimony, asked about her ability to comprehend the questions asked, and given the opportunity to be interviewed in a private area.  As the interview was conducted in a non-coercive qand careful manner and appropraitely documented by the interviewing authorities, it was "sufficiently reliable" to merit consideration.

The court then turned to Petitioner's credible fear interview, a matter of first impression.  The court started off by noting that all of the concerns relevant to airport interviews - e.g., it takes place directly after arrival in the U.S. after travel and may be perceived as coercive or threatening, do not apply to the same degree in credible fear interviews. But the court noted that credible fear interviews fall somewhere in the middle of the spectrum between airport interviews and asylum interviews.  The applicant has, after several days in detention, had the opportunity to consult with a person of his choosing (HM note: REALLY?) and has been notified prior to the interview that it is very important to tell the officer all the reasons they have concerns about being removed.   On the other hand the court noted, "an alien appearing at a credible fear interview has ordinarily been detained since his or her arrival in the United States and is therefore likely to be more unprepared, more vulnerable, and more wary of government officials than an asylum applicant who appears for an interview before immigration authorities well after arrival."

Taking these considerations into mind, the 2d Circuit concluded that credible fear interviews are more like airport interviews than asylum interviews and thus warrant the close examination called for by Ramsameachire.  The court noted the distinction between a defensive path to asylum and an affirmative path to asylum.   It found it not surprising that, in some cases, "insignificant details" might not be mentioned during the credible fear interview.

The court found however that where the record of a credible fear interview displays the "hallmarks of reliability," it can appropriately be considered in assessing credibility.  It noted that although it is unclear whether a credible  fear interview report purports to be a verbatim account of the interview, the proceeding was memorialized in a typewritten document setting forth the questions as well as her responses, with the aid of a Mandarin interpreter.  The court also noted that the interviewing officer explained the purpose of the interview, the importance of providing full and accurate testimony, and the fact that Petitioner could ask for clarification at any point.  It noted moreover that Petitioner was asked questions that were clearly designed to elicit a potential basis for an asylum claim, such as whether she or her family had been mistreated or threatened in the past.  The court rejected the notion that a petitioner's claim that she was nervous and distracted during the credible fear interview automatically undermines or negates its reliability as a soure of her statements.

Based on Petitioner's omission of two forced abortions and attempted suicide in her airport and credible fear interviews, which she later testified to in front of the IJ, the 2d Circuit found that substantial evidence supported an adverse credibility finding.

Atty for Petitioner: Vlad Kuzmin, Kuzmin & Associates, P.C., New York, NY.

Read opinion here.

Ghazali v. Holder, No. 08-4220 (6th Cir. 10/29/2009)
Before: Daughtrey, Sutton and McKeague

Ghazali  is a citizen of Lebanon  who entered on a non-immigrant visa. Mr. Ghazali overstayed his visa and removal proceedings against him. Mr. Ghazali applied for asylum, withholding and CAT, all of which were denied by the IJ and later affirmed by the BIA. The IJ denied withholding and CAT on the merits and made a finding that his asylum application was barred because Mr. Ghazali did not apply for asylum within one year of entry.  The IJ also made findings that had the asylum application not been statutorily barred, it would have been denied on the merits. The IJ found Mr. Ghazali’s testimony not credible and that Mr. Ghazali deliberately fabricated some of the facts that supported his claim.

It is worth mentioning that the Sixth Circuit mentioned and actually considered the holding in Kucana v. Holder, 533 F.3d 534, 539 (7th Cir. 2008), 120 S. Ct. 2075 (2009) (No. 08-911), and said that although they have reviewed motions for reconsideration in the past and although Kucana seemed to extend to motions for reconsideration, they were not barred as Mr. Ghazali’s petition raised a question of law.

The Sixth Circuit agreed with the Board of Immigration Appeals that an IJ may determine an application is frivolous even after the IJ made a finding that the application was time barred.

You can read the decision at:
http://www.ca6.uscourts.gov/opinions.pdf/09a0377p-06.pdf

Nken v. Holder, 08-1813 (4th Cir. Oct. 30, 2009)

MOTZ King Davis (dct)

This case was at the Supreme Court on the stay request.  It turns out to be a good thing the SupCt reverse the 4th cir's stay denial, because the 4th cir granted the Petition for Review. 

The Fourth Circuit, applying the Chenery Doctrine to the BIA, found the Board's decision devoid of enough reasoning to uphold it.  The Board had previously upheld the adverse credibility finding against Nken, but in this decision, didn't explain why that would mean that his brother isn't credible.  And his brother's letter was evidence suggesting that the situation had gotten worse for Nken.  It's possible that BIA didn't believe the brother; but the BIA has to say and explain that.  Remanded to BIA.

This is consistent with a raft of decisions from other circuits. See, e.g., Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) ("When an applicant moves to reopen his case based on worsened country conditions, and introduces previously unavailable reports that materially support his original application, the BIA has a duty to consider these reports and issue a reasoned decision based thereon, whether or not these reports are clearly determinative." (emphasis omitted)); Vente v. Gonzales, 415 F.3d 296, 302 (3d Cir. 2005) ("When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning." (internal quotation marks omitted)); Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) ("We think it goes without saying that IJs and the BIA are not free to ignore arguments raised by a petitioner."); Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir. 2004) ("[A]s we tirelessly repeat, an agency opinion that fails to build a rational bridge between the record and the agency’s legal conclusion cannot survive judicial review." (citation omitted)).

Read decision here: 

Potdar v. Holder, 06-2441 (7th Cir. Oct. 21, 2009)

RIPPLE Manion Kanne

The Petitioner was lucky enough to win remand to the BIA where the Board refused to reopen while Adjustment of Status is pending with USCIS, and despite the fact that USCIS has apparently already denied Adjustment.  But Petitioner just couldn't resist asking for EAJA fees.  The CtApp said no in a published decision. 

The CtApp said that the BIA's and IJ's misunderstanding and mishandling of the case was precipitated by (prior) counsel's mischaracterization of the relief sought.  The Govt made one argument which the CtApp rejected, but it was only one brief argument among many, so didn't show that Govt's position wasn't justified in the main.  Finally, while the Govt's mootness arguments were rejected, they were rejected only because that evidence wasn't in the record, not because they were wrong. 

[I know it's tempting to seek fees - but why, in this case...? Sigh.  - CR]

Read decision here: 

Patel v. Mukasey, 08-3067 (7th Cir. 9/16/09)

WOOD Rovner Kanne

The Petitioner was an asylum-seeker from India. First, the Court rejected his argument that the IJ should have continued the case. Even if the Kucana decision results in a finding that the CtApp has abuse-of-discretion review over continuance denials, there was no abuse here – he knew about the hearing for months. The asylum argument was waived by his failure to argue for an exception to the one-year filing rule below, and there is no jurisdiction anyway. Khan v. Filip, 554 F.3d 681, 687 (7th Cir. 2009). His withholding theory was doomed by his admission that he was attacked for business reasons, not for politics. Finally, he sought reopening on grounds of IAC, under Lozada; but didn’t separately petition for review from the denial of reopening. Thus, the CtApp lacks jurisdiction to address the argument.

Read opinion here: 

Nzeve v. Holder, 08-3455 (7th Cir 9/17/09)

BAUER Tinder Sykes

The applicant was an asylum-seeker from Zimbabwe, whose asylum claim was denied because his past mistreatment was held not to rise to the level of past persecution.

1. The BIA erred in applying 8th cir law to the case. Under VTC, the law of the place where the IJ sits is binding.

2. The CtApp found that a single incident of beating with batons, etc., did not compel a finding of past persecution. Moreover, the threat against him wasn’t particularly serious, and thus didn’t add much to the totality of the case.

3. The record didn’t compel the conclusion that his fear of future persecution was objectively reasonable, where he couldn’t amass objective facts supporting his fears. The mistreatment of asylum-seekers returned from the UK – who are interrogated at the airport – did not suffice. Being harassed isn’t persecuted.

Read decision here: 

Krasyiltch v. Holder, 09-1026 (7th Cir 9/29/09)

PER CURIAM Flaum Evans Sykes

The Petitioner obtained LPR status through "Operation Durango," a sting operation in which a corrupt INS official was selling green cards. In removal proceedings, Petitioner argued that the Govt hadn’t adhered to its internal policies regarding undercover stings. Based on Pieniazek v. Gonzales, 449 F.3d 792 (7th Cir. 2006), they sought to force the Govt to introduce more evidence regarding approval for the sting.

1. The CtApp clarified the holding in Pieniazek – that case found a continuance to be appropriate to get information, but didn’t actually hold that suppression would be required if the Govt didn’t adhere to internal procedural rules.

2. The AG guidelines would not bind the Agency, so even if ICE violated them, suppression wouldn’t result.

The Attorney General’s guidelines are internal rules that have no legal force. Unlike regulations, which are adopted after notice and comment, internal rules do not bind an agency: "if all the Attorney General has done is to tell his staff how he wants to exercise his discretion— language that brings his subordinates’ acts in line with his wishes but does not reduce his discretion to do otherwise—then there is no substantive rule enforceable in any forum." Miller v. Henman, 804 F.2d 421, 424 (7th Cir. 1986); cf. Fano v. O’Neill, 806 F.2d 1262, 1264 (5th Cir. 1987) (explaining that INS Operations Instructions are nonbinding because they "do not purport to be anything other than internal house-keeping measures"); Kwon v. INS, 646 F.2d 909, 918-19 (5th Cir. 1981) (concluding that internal INS procedures "furnish only general guidance for service employees" and do not have the force of law).

3. Even if the guidelines were enforceable and weren’t followed, there still wouldn’t be an egregious violation of the constitution, and under Lopez-Mendoza, the exclusionary rule wouldn’t apply absent such a showing.

But even assuming that the guidelines are enforceable and were not followed in Operation Durango, the BIA was still correct in approving the IJ’s decision to deny Krasilych’s request to exclude evidence because the exclusionary rule generally does not apply in removal proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Mireles v. Gonzales, 433 F.3d 965, 967 (7th Cir. 2006); Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). In Lopez-Mendoza, the Court left open the possibility that the exclusionary rule may apply where there have been "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." 468 U.S. at 1050-51; see also Martinez-Camargo, 282 F.3d at 492. Hoping to fit into this exception, Krasilych blithely asserts that "Fourth Amendment violations" in Operation Durango were "widespread and egregious." What the Fourth Amendment, which prohibits unreasonable searches and seizures, has to do with Krasilych’s involvement in Operation Durango escapes us, and he has not even come close to identifying an "egregious violation" of any other liberty.

4. Finally, the CtApp found that the valid LPR stamp placed in his passport hadn’t in fact given him LPR status. It was just a ruse. Because his LPR application hadn’t in fact been adjudicated, the stamp didn’t show anything.

Read decision here: 

Barradas v. Holder, 08-3440 (7th Cir. 9/23/09)

TINDER Posner Evans

Barradas had pled guilty to attempting to smuggle in some children who weren’t his own; but the Govt failed to introduce evidence of the conviction in the Immigration Court (though it’s easily available on PACER). The only evidence they had was in the I-213 and in his own testimony. While the ground of inadmissibility (INA 212(a)(6)(E)) doesn’t actually require a conviction, ICE alleged in the NTA that he had been convicted, and Petitioner attempted to hold them to that factual question. Assuming arguendo that the NTA is formally binding, the Court considered whether the Govt had met its burden.

1. The CtApp found the I-213 etc. to be admissible to prove the existence of the conviction deferring to the regs, 8 C.F.R. § 1003.41(d), which permit "[a]ny . . . evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof."

2. It found the introduction of the I-213 not to be barred by the statutory right to cross-examine adverse witnesses – no "automatic" right to cross-examine document preparers.

In the immigration context, " ‘fundamentally fair’ should simply be read to mean ‘in accordance with the reasonable opportunity guaranteed by [8 U.S.C.] § 1229a(b)(4).’ " Doumbia, 472 F.3d at 962. Aliens in removal proceedings have the right to a reasonable opportunity to "cross-examine witnesses presented by the Government," 8 U.S.C. § 1229a(b)(4)(B), but when the evidence introduced is that "recorded by a[] [DHS] agent in a public record," the absent agent "cannot be presumed to be an unfriendly witness or other than an accurate recorder," Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1994). "Establishing an automatic right to cross-examine the preparers of such documents would place an unwarranted burden on the [DHS]." Id. Absent any indication that a Form I-213 contains information that is manifestly incorrect or was obtained by duress, the BIA has found the Form to be inherently trustworthy and admissible as evidence. In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999). We have agreed with that position. See Guerrero-Perez v. INS, 242 F.3d 727, 729 n.2 (7th Cir. 2001).

* * * * We. might doubt the reliability of the notation—and require an opportunity for cross-examination—if it mischaracterized or misstated any material information about Barradas’s conviction or seemed suspicious in any other way. No such factors are present here. Nor does Barradas allege that the remainder of the Form I-213 was carelessly drafted or clouded by bias.

3. Turning to sufficiency of the evidence, the CtApp found that the evidence clearly satisfied the first prong of the definition of conviction – i.e., that he pled guilty. He testified to that. But as to the sentence, his testimony was unclear. He said he hadn’t had to pay a fine, but didn’t say precisely what he did have to do (time served, one imagines). The CtApp found - !!? – that the fact that he would have been detained at PISPC by ICE was a sufficient restraint on his liberty as to qualify under the second prong of the conviction definition. In a FN, they point out that remand would be pretty pointless, since it’s easily established via PACER that he received some sentence.

[CR: of course it makes no sense to say that he was sentenced to civil immigration detention as a result of his conviction. If immigration detention *were* a punishment resulting from a conviction, there would be all sorts of issues – ex post facto, double jeopardy, etc. Rehearing would be a pointless exercise, in a way, but this is an egregious misstatement. One wonders if the Govt argued it in their briefs. Oh, btw – why couldn’t the Court of Appeals have taken judicial notice of the conviction documents?]

4. Petitioner argued that threatening to make an "adverse inference" against the Petitioner if he didn’t testify was an improper burden shifting activity, and thus violated his rights under Due Process. The CtApp assumed that burden-shifting argument, and found that sufficient evidence supported the finding that the Govt had met its prima facie burden before his testimony.

5. Finally, Petitioner argued that the IJ had become an interrogator – the CtApp found that his questions hadn’t been irrelevant or abusive. Also, it saw an inconsistency in arguing that the IJ should have forced DHS to produce the conviction documents with the argument that the IJ was acting like a prosecutor. But if the IJ had told DHS what it needed to produce, that would have been more like co-counsel than in ruling on the evidence presented to the Court.

[CR: my goodness, what a big deal Judge Tinder made of this case! It certainly would have been easier to take judicial notice of the conviction – or to remand – rather than undertake such a convoluted analysis.]

Read decision here: 

Marquez Garcia v.  Holder, No. 08-9579 (10^th Cir., October 27, 2009)

The focus of this case is on an ambiguous record and the burden on an alien to prove that he has not committed a crime of moral turpitude. In the instant case, the petitioner, a native of El Salvador who entered the U.S. illegally in 1997, had pled guilty to third-degree assault in Colorado in 2003.

An alien who commits a “crime of moral turpitude” is ineligible for discretionary relief such as cancellation of removal or temporary protected status. Marquez, as he was referred to in the opinion, entered his plea on a poorly translated Spanish form, and as a result, the record was unclear on whether he was pleading guilty to knowingly or recklessly causing bodily injury. This component is critical in determining whether a crime of moral turpitude has been committed.

Both the government and petitioner conceded that the record was inconclusive regarding intent, and both parties claimed that this ambiguity favored them. The court addressed the shifting burden in a removal case. Where a lawfully admitted alien is charged with removability as a result of a conviction, the government must prove, by clear and convincing evidence, that the alien is removable. In the instant case, though, removability is conceded by the petitioner, and the burden therefore shifts to him “to prove the absence of any impediment to discretionary relief.” The Court held that, despite the record’s ambiguity, Marquez-Garcia had not proven he was eligible for discretionary relief. Despite the fact that the record was ambiguous through no fault of his own, Marquez had failed to meet his burden, and the court denied his petition.

Read opinion here.