Zorig, et. al. v. Holder, No. 08-9576 (10^th Cir. Oct. 15, 2009)

Petition was filed by a family of four, Mongolian citizens, who filed for asylum based on a fear of persecution based on political opinion.

Despite transitioning to a democratic society in 1990, corruption is rampant in Mongolia, according to a State Department Report published in 2007 and cited by the 10^th Circuit. Petitioner Khatanbaatar Zorig was an active member of a component of the Democratic Coalition Party since 1992, serving as a volunteer board member for his district. When the opposition party took control in 2000, many members of the Democratic Coalition Party, including Zorig, lost land rights acquired between 1996 and 2000.

Zorig was a aeronautical and land engineer employed by MIAT, the government-controlled airline. He also ran a restaurant on property that his grandfather had lived on and that Zorig was leasing, with an eye towards ownership. After the opposition party took power, he found his work hours reduced. In 2003, he was scheduled to go on a 2-month training session, but his boss cancelled his training. Zorig still went, paying his own way; when he returned, he was fired. A few months after being fired, the police began questioning him about the restaurant land and, after, referring to his political membership, accused him of obtaining the land illegally. In July 2003, at police headquarters, Zorig was asked to sign a document giving up his right to the land; when he refused, he was beaten, and ended up in the hospital for two weeks. Zorig abandoned his claim to the land and fled to the U.S. along with his family in September 2003, applying for asylum.

The Immigration Judge denied the petition, characterizing Zorig’s claim of harm inflicted as being based property rights, which is not a protected grounds. The Judge attributed the harm not to the political affiliation, but simply to the fact that people wanted his land and attributed his firing to downsizing by the company. On appeal, the Board of Immigration Appeals affirmed.

The Court of Appeals decision addressed the contention that an incorrect standard was applied to the evidence. Zorig presented a “mixed motive” case, where “the applicant need not show persecution solely on account of a protected ground, but must demonstrate that at least one of the persecutor’s motives falls within a statutorily protected ground.” The burden is on the petitioner to provide sufficient evidence to show a connection between the harm and the protected ground. The Court found that the Board of Immigration Appeals applied the proper standard; it never required Zorig to show mistreatment was for political reasons only. Rather, Zorig failed to demonstrate that his mistreatment was even partially motivated by political opinion.

The Court found that substantial evidence supported the Board of Immigration Appeals’ finding that absent his land claim, Zorig would not have suffered his mistreatment.

Read the full opinion here.

Chen, et. al. v. Holder., No. 08-2398 (1^st Cir. Aug. 27, 2009)

Ru Xiu Chen and Xiu Jin Zheng are a married couple who fled China after twice violating that country’s one-child policy. Zheng claimed that in 1991, when she was pregnant with her second child, she was visited by government officials who demanded she abort the 8-month-old fetus. After Chen and Zheng protested, Zheng was forcibly removed from her mother-in-law’s house, taken to the hospital, and given an injection that caused her to deliver her child stillborn. Zheng became pregnant for a third time soon after this incident, and delivered a daughter in secret in April 1992. After Chinese officials learned of this second birth, they came looking for the couple, apparently intending to have them sterilized.

Chen fled China, arriving in the U.S. in July, 1992. He applied for asylum, withholding, and CAT protection; he later applied for and received advanced parole in 1994 to go back to China for approximately two weeks to visit his cancer-stricken father. Zheng entered the U.S. without inspection on July 20, 1995. Zheng filed for asylum in 2004.

On September 6, 2005, Chen and Zheng testified at hearing. The Immigration Judge noted that she was troubled by “the changing testimony” and Zheng’s hesitancy on the stand. The judge went so far as to continue the hearing several times to allow Zheng and Chen to submit evidence and offer witness testimony to support their claims and possibly clear up the discrepancies. Zheng’s sister testified, and medical records from Zheng’s U.S. doctor we offered, but despite the multiple continuances, the doctor never ended up testifying.  On May 30, 2007, the judge denied both petitions, saying neither offered the necessary credible, consistent, and detailed testimony needed to meet their burden. The Board of Immigration Appeals adopted the findings and affirmed the decision.

Reviewing the Immigration Judge and Board of Immigration Appeals’ determination under the deferential substantial evidence standard, the court assessed the discrepancies found in Chen and Zheng’s testimony. While  that several discrepancies were unsupported by the record (a fact the government conceded), the court found that so many other discrepancies remained that the adverse credibility determination was supported by substantial evidence.

The court identified multiple inconsistencies in the testimony and the fact that Zheng’s demeanor in testifying made the Immigration Judge skeptical. First, the court noted inconsistencies in Zheng’s testimony regarding where she hid after Chen fled, including omitting the addresses at which she stayed and later never offering an explanation for the omission or easily obtainable evidence to clear it up. Also, Zheng’s testimony varied regarding the number times family planning officials visited her at home. The court also found it troubling that Zheng delayed reporting her abortion to both her sister and a doctor in the U.S. As for Chen, the Court labeled as “inherently implausible” his  account of officials hiding in wait for him at the hospital where his father was receiving treatment for cancer. This is compounded by the fact that he travelled using a passport in his own name stayed at a hotel under his own name, adding doubt to the claim that he was blacklisted.

Alvarado de Rodriguez  v. Holder, No. 08-60585 (5th Cir. 10/9/2009)
Davis, Owen and Haynes

Ms. Alvarado was a conditional resident based on her marriage to a USC. Alvarado and USC husband separated and he was unwilling to file a joint petition to remove the conditions.  USC husband completed an affidavit requesting that the petition be revoked.  Ms. Alvarado filed a hardship waiver for the joint filing requirement and had to show that she “intended to establish a life together at the time they were married.”  Ms. Alvarado presented evidence and testimony to support her request. The government introduced an affidavit, for rebuttal purposes, executed by Ms. Alvarado’s USC husband stating that “she did not love him.”

The IJ found Ms. Alvarado credible and found that the evidence was “candid, specific, plausible, consistent with supporting documentation, internally consistent, and unembellished.” DHS appealed the decision and the BIA upheld the appeal and found that Ms. Alvarado had not met her burden to establish eligibility for the waiver requested. Ms. Alvarado appealed to the Fifth Circuit. The Government filed a Motion to Remand to the BIA conceding that the BIA improperly weighed the evidence. The BIA again sustained DHS’s appeal stating that Ms. Alvarado had not met her burden.

The Court reiterated that they have jurisdiction to review questions of law pursuant to 8 USC Section 1252(a)(2)(D) in that they can review whether the IJ properly applied the law to the facts to determine eligibility to determine eligibility for a discretionary form of relief.

The Court found that neither the IJ nor the BIA made discretionary decision to deny the waiver. The BIA held that she was statutory ineligible as a matter of law.  The Court found that the BIA is limited to consider the IJ’s findings of fact when there is a clear error. The BIA under 8 CFR Section 1003.1(d)(3)(I) cannot engage in de novo review of findings of fact unless they are “clearly erroneous.”

The Court found that the BIA did not apply the “clearly erroneous” standard of review to the IJ’s decision and remanded the case to the BIA. In a footnote the Fifth Circuit noted that once the right standard was applied, it seemed that Ms. Alvarado was eligible for the waiver.

Read the decision here:
http://www.ca5.uscourts.gov/opinions/pub/08/08-60585-CV0.wpd.pdf

Sihombing v. Holder, No. 08-2119 (1^st Cir. Sept. 22, 2009)

Arnold Sihombing, a citizen of Indonesia, left Indonesia fearing persecution from the Democratic Party of Indonesia. Leaving his wife and daughter behind, he first travelled to Singapore and the Philippines for about one week each, before returning to Indonesia to obtain a U.S. visa. He arrived in New York on March 10, 2001 as a non-immigrant visitor authorized to remain through September 9, 2001. Mr. Sihombing overstayed this date and on June 3, 2004, was ordered removed in absentia when he did not appear at his hearing. He filed to reopen the case and after his motion was granted, filed a motion for political asylum.

Mr. Sihombing appeared before the Immigration Judge on November 1, 2006 and offered testimony to support his application.  The Judge found that his application was pretermitted because it was filed more than 4 years after he entered the country and did not show changed or extraordinary circumstances that would allow such an untimely filing. On appeal, the BIA adopted the Immigration Judge’s reasoning. Mr. Sihombing appealed to the 1^st Circuit, seeking review of the denial of withholding and arguing that the record is insufficient for review due to omissions.

The Immigration Judge and Board of Immigration Appeals found that the most serious example of past persecution was one non-violent visit by Democratic Party guards to Mr. Sihombing’s home, and this incident would not make him eligible for withholding. The Court of Appeals agreed, noting that this was far less severe than in other cases where claims of past persecution had been rejected. With the opportunity for withholding based on past persecution closed, the Court allowed that withholding could be granted if there is a clear probability of future persecution, but that the petitioner failed to establish that such persecution was a clear probability. According to the Court, the Immigration Judge took into account that Sihombing left his wife and child behind and that no one in his family had been harmed in the 6 years since he fled. Most importantly, the judge pointed out that the petitioner had voluntarily returned to Indonesia to obtain a visa, and a voluntary return undercut's an applicant's claim that he will more likely than not be subject to persecution. Applying the substantial evidence standard, the court refused to reverse the Immigration Judge's findings, holding that the record would not compel a reasonable factfinder to reach a contrary conclusion.

The Court also addressed Mr. Sihombing’s claim that the record is insufficient to provide adequate review, saying that the indecipherable or indiscernible passages could be discerned from context and petitioner had failed to show that the missing information has caused him prejudice.

Seng v. Holder, No. 08-2485 (1st Cir. Oct. 8, 2009)

Sovannary Seng entered the U.S. from Cambodia on June 1, 2002, on a four-month visitor’s visa. After overstaying, Seng submitted an application for asylum, citing a fear of persecution based on political affiliation. The application was rejected by the Department of Homeland Security, which served her with a notice to appear, charging that she was subject to removal.

In Immigration Court, Seng conceded removability and testified on behalf of her cross-application for asylum. She testified that her and her husband, members of the Sam Rainsy Party, were both arrested for their political beliefs; her husband once returned home beaten and bruised. The record shows that Seng’s testimony before the judge was riddled with inconsistencies, including the year she joined the party and when her husband fled Cambodia. The judge found the testimony was not credible and denied Seng’s claims for relief. Seng appealed, and the Board of Immigration Appeals affirmed the Immigration Judge’s decision.

The 1^st Circuit Court of Appeals applied the “heart of the manner” rule, which says that where there is an adverse credibility finding, “the determination must rest on discrepancies or inconsistencies that are central to the claim.” The Court found that the discrepancies in Seng’s testimony were substantial and cut to the heart of her claim. For example, Seng testified that she joined the Sam Rainsy Party in 1993, which was five years before the party was formed. To the court, a discrepancy such as this fundamentally undercut her claim that she was politically involved and was persecuted for this involvement. Terming her account "confused," the court found it lacked the specificity and directness required to carry an alien’s burden of proof.

The Court also found that Seng could not meet the substantial evidence rule to support a grant of asylum or relief under the Convention Against Torture. The substantial evidence rule requires that the alien show that the evidence on the record would “compel a reasonable factfinder to make a contrary determination.” Seng’s reliance on country conditions reports did not create a record that rises to this standard.

Shkambi v. U.S. Attorney General, No. 09-10493 (11th Cir. October 7, 2009)

Emilian Shkambi is an Albanian who attempted to enter the U.S. through Miami on May 30, 2002. In his airport interview, he explained that he came to the U.S. to find work, and that Albanian police “make their own rules.” Shkambi was served with a notice to appear, as he did not possess any valid entry document at the time of his entry. At a credible fear interview on June 5, 2002, Shkambi reported one incident of persecution – when two police officers beat him as they broke up a Democratic Party meeting attended by Shkambi. He also reported that his uncle was twice incarcerated for being a Catholic priest.

In a March 2003 asylum application, Shkambi claimed three seperate incidents of persecution based on his political affiliation, and claimed his father and uncles also suffered. Shkambi also said that, after arriving in the U.S., his uncle told him that the police were looking for him. A medical record and country reports on Albania were submitted to support the application. Shkambi testified before an Immigration Judge at his removal hearing.

The Immigration Judge denied him asylum and withholding, finding Shkambi was not credible citing discrepancies in his claim and noting that the incidents of persecution increased with each telling. Shkambi challenged the Immigration Judge’s finding, but the Board of Immigration Appeals said that Shkambi failed to provide a plausible reason for omitting the incidents in his airport and credible fear interviews. Shkambi petitioned the Court of Appeals for review, arguing that the BIA did not provide a reasonable basis for review and that the adverse credibility finding was not supported by substantial evidence.

The Court of Appeals found that the IJ and BIA both found specific, cogent reasons to support a meaningful appellate review and the credibility finding – namely, the recitation of incidents unmentioned in earlier interviews. The “reasoned discussion” of these omissions and inconsistencies by both the IJ and BIA allowed for meaningful review.

The court found that these specific, cogent reasons were supported by the record. Mr. Shkambi argued that his airport and credible fear interviews should not be used to discredit him. The court discussed Tang v. U.S. Atty Gen., a recent case that addressed the use of airport interviews in assessing credibility. In Tang, the 11^th Circuit  reversed an adverse credibility finding based solely on omissions between the airport interview and later testimony. The Court distinguished Tang’s later testimony, which elaborated on his airport interview, from Shkambi’s testimony, which they found to include entire incidents and significant facts that were not mentioned prior.

Read opinion here.

Cantu –Delgadillo v. Holder, No. 08-60122 (5th Cir. Oct. 1, 2009)

Mr. Cantu-Delgadillo is a citizen of Mexico who became an LPR in 1978. In 1996 he was convicted of possession of a controlled substance and was given deferred adjudication in Texas and 10 years probation.

He has a complex procedural history. He was placed in deportation proceedings and charged with a controlled substance violation and aggravated felony. Subsequently, the IJ found deportability on all charges, ordered deportation and found him ineligible for relief. The BIA affirmed but found he was deportable for the controlled substance violation, but not as an aggravated felon. 

In 1998, the BIA administrative closed his case for “repapering” a procedure available to certain lawful permanent residents. In 2001 an NTA was issued and he was ordered removed and the BIA affirmed on grounds that he had a controlled substance violation and that he was an aggravated felon. He was found ineligible for relief, including §212(c) relief. Mr. Cantu-Delgadillo filed a federal habeas corpus petition which was consolidated with other habeas petitions challenging the BIA’s findings. The Fifth Circuit dismissed the petitions and affirmed the BIA’s findings. Subsequently, the U.S. Supreme Court vacated the habeas and remanded in light of Lopez v. Gonzalez. The Fifth Circuit then remanded to the BIA in consideration of the findings in Lopez. 

On remand, DHS withdrew its aggravated felony charge. Mr. Cantu-Delgadillo asked that his case be administrative closure to wait for “repapering” regulations. DHS opposed administrative closure. The BIA found that it could not administratively close the case unless there was agreement by both parties.

The Fifth Circuit found that Mr. Cantu Delgadillo did not meet his burden tot establish a substantive due process violation. The Court reaffirmed broad Congressional powers over immigration and found that Mr. Cantu Delgadillo did not have a fundamental liberty interest to remain in the United States with his family. The Court also found that his Equal Protection argument failed because Cantu-Delgadillo has failed to show that the BIA’s decision regarding administrative closure in his case was different from the
BIA’s decisions in other cases involving lawful permanent residents in which the
DHS opposed administrative closure.

Mr. Cantu Delgadillo challenged the retroactive applicability of the stop time rule, as well as the fact that time did not begin to re-accrue after the date it initially stopped. The Fifth Circuit found that the BIA had properly held that time did not re-accrue and that the stop time rule could be applied retroactively.

Cantu –Delgadillo v. Holder, No. 08-60122 (5th Cir. Oct. 1, 2009)

Mr. Cantu-Delgadillo is a citizen of Mexico who became an LPR in 1978. In 1996 he was convicted of possession of a controlled substance and was given deferred adjudication in Texas and 10 years probation.

He has a complex procedural history. He was placed in deportation proceedings and charged with a controlled substance violation and aggravated felony. Subsequently, the IJ found deportability on all charges, ordered deportation and found him ineligible for relief. The BIA affirmed but found he was deportable for the controlled substance violation, but not as an aggravated felon. 

In 1998, the BIA administrative closed his case for “repapering” a procedure available to certain lawful permanent residents. In 2001 an NTA was issued and he was ordered removed and the BIA affirmed on grounds that he had a controlled substance violation and that he was an aggravated felon. He was found ineligible for relief, including §212(c) relief. Mr. Cantu-Delgadillo filed a federal habeas corpus petition which was consolidated with other habeas petitions challenging the BIA’s findings. The Fifth Circuit dismissed the petitions and affirmed the BIA’s findings. Subsequently, the U.S. Supreme Court vacated the habeas and remanded in light of Lopez v. Gonzalez. The Fifth Circuit then remanded to the BIA in consideration of the findings in Lopez. 

On remand, DHS withdrew its aggravated felony charge. Mr. Cantu-Delgadillo asked that his case be administrative closure to wait for “repapering” regulations. DHS opposed administrative closure. The BIA found that it could not administratively close the case unless there was agreement by both parties.

The Fifth Circuit found that Mr. Cantu Delgadillo did not meet his burden tot establish a substantive due process violation. The Court reaffirmed broad Congressional powers over immigration and found that Mr. Cantu Delgadillo did not have a fundamental liberty interest to remain in the United States with his family. The Court also found that his Equal Protection argument failed because Cantu-Delgadillo has failed to show that the BIA’s decision regarding administrative closure in his case was different from the
BIA’s decisions in other cases involving lawful permanent residents in which the
DHS opposed administrative closure.

Mr. Cantu Delgadillo challenged the retroactive applicability of the stop time rule, as well as the fact that time did not begin to re-accrue after the date it initially stopped. The Fifth Circuit found that the BIA had properly held that time did not re-accrue and that the stop time rule could be applied retroactively.

Wang v. Holder (2d Cir. 10/2/09, no. 07-5369-ag)

Walker, Katzmann, Roth (per curiam)

Petitioner sought asylum, withholding, and deferral under the CAT, as he feared torture by Chinese officials based on the fact that he revealed the Chinese government's secret practice of harvesting the organs and tissue of executed prisoners for profit and publicly humiliated the Chinese Government.  Petitioner had himself participated in this scheme and had extracted organs and tissue from executed prisoners himself at least one hundred times (from 1988 to 1995, at which point he began refusing to participate), and possibly was involved in the extraction of organs from live prisoners, though he asserted that he was not.  Thus, the IJ found serious reason to believe that he had committed a serious nonpolitical crime - namely torture - and found him ineligible for asylum and withholding.  However, the IJ granted deferral of removal under the CAT to Petitioner. Petitioner appealed the serious nonpolitical crime finding; the gvt appealed the CAT grant. The Board dismissed the appeal, adopting and affirming the IJ's decision.  The Board agreed that the organ extraction program would be considered criminal in the United States and under international law and found that even if Petitioner was not involved in organ extraction from live prisoners (i.e., torture), the serious nonpolitical crime bar would still be applicable due to his involvement in the government's scheme to remove organs for profit.   The Board found that even if Petitioner were eligible for asylum, they would not grant for discretionary reasons.

The 2d Circuit first looked at the standard of proof, citing its 2004 decision in Khouzam v. Ashcroft as holding that the "serious reason to believe" standard is equivalent to probable cause.  The court then looked at the treatment of for-profit organ harvesting under U.S. federal law and agreed that participation in the organ harvesting scheme was a serious crime, and nonpolitical.  It also noted in a footnote that, though not dispositive, this determination is further supported by the general condemnation of this type of behavior by the world community, including China.  The court did not address the agency's conclusion that Petitioner committed torture or the Board's statement that it would deny asylum in the exercise of discretion.  Finally, as the government did not appeal the CAT grant to the 2d Circuit, the court left this in place.

PFR denied.

Atty for Petitioner: John F. Clark, Holland & Hart LLP, Washington, D.C.

Read opinion here.

Barradas v. Holder, No. 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 opinion here: