Abdelwahab v. Frazier, No. 08-1078 (8th Cir. Aug. 26, 2009) 

LOKEN, Ebel, and Clevenger 

Walid El-Baz Abdelwahab, a native of Egypt, entered the U.S. in mid-1997 and was married to Alice, a U.S.C., six months later.  Alice submitted an I-130 petition for Abdelwahab in 1998, which was subsequently denied by the St. Paul District Office of USCIS based on its finding that the couple married in order to evade immigration laws.  Shortly after Abdelwahab received a NTA, a Minnesota restaurant filed an I-140 employment-based petition with USCIS’s Nebraska Service Center, which approved the petition without knowing that the I-130 had been denied.  Abdelwahab filed for AOS in his removal proceeding based on the I-140. 

Later, the St. Paul District Office notified Abdelwahab’s employer that it intended to revoke the I-140 approval based on marriage fraud.  But the IJ granted AOS after denying DHS’s motion to continue.  DHS revoked the I-140 and appealed the IJ’s decision to the BIA.  The BIA had already dismissed Abdelwahab’s administrative appeal of the I-130 denial and later vacated the AOS based on the I-140 revocation.  The BIA also denied a motion to reopen the I-130 appeal and remanded. 

In 2006, Abdelwahab challenged DHS’s denial of the I-130 petition and I-140 revocation in district court.  In 2007, the BIA vacated its order dismissing the I-130 appeal and remanded for de novo consideration of the I-130 petition.  At this point, the St. Paul District Office approved the I-130.  Meanwhile, Abdelwahab argued that USCIS had incorrectly denied his I-130 petition and that the St. Paul District Office had acted ultra vires in revoking the I-140 approval.  The government argued that the I-130 issue was moot and that the I-140 claim was beyond the court’s jurisdiction.  Abdelwahab appealed to the Eighth Circuit.  In the meantime, USCIS reinstated its I-140 approval and the IJ granted adjustment. 

The Court, setting aside the mootness issue in regards to the I-140, ruled that revocation of the I-140 was discretionary and therefore not subject to the judicial review.  The Court pointed out that judicial review of non-discretionary constitutional claims or questions of law was appropriate only in the courts of appeals.  However, whether the Secretary of Homeland Security had properly delegated the authority to revoke the I-140 approval to the St. Paul District Office or to the Nebraska Service Center was not a “predicate legal question that amounts to a nondiscretionary determination underlying the denial or relief,” to be reviewed by the Court. 

Even if the Court could review the issue, it noted that Abdelwahab had failed to establish that the St. Paul District Office “had no authority to exercise the Secretary’s discretion under the DHS regulation then in effect.”  According to the Court, even though the regulations “requir[ed] that petitions be filed in one office” this was “not a directive that only that office may take final action in a petition.”  Moreover, the BIA’s remand of the I-130 issue and USCIS’s granting of the I-130 petition caused there to be new administrative remedies yet to be exhausted in regards to the I-140 revocation, which was based upon the I-130 denial. 

Finally, the Court held that even if the I-140 revocation issue was not moot, the judicial remedy of reinstating the I-140 approval nunc pro tunc (which would allow Abdelwahab to apply for naturalization immediately, rather than waiting four more years) would be improper.  Abdelwahab would have to raise the issue with the agency, as an administrative remedy.  The district court would have no jurisdiction over the issue before the agency considered it.

Read the opinion here.

Tian v. Holder, No. 08-3391 (8th Cir. Aug. 19, 2009) 

Murphy, Arnold and GRUENDER 

Tim Tian, a native of China, worked for Parametric Technology Corporation as a software engineer.  In 2005, Tian pretended to return to China due to a family emergency, but instead began to work for Medtronic Corporation, all the while collecting paychecks from Parametric.  In 2005, Tian was fired from Parametric and shortly thereafter he entered Parametric’s offices and downloaded and e-mailed source code for a software product on which he had worked.  Tian was later arrested and charged with unauthorized access to a computer and five counts of wire fraud.  He pled to the first charge in exchange for dismissal of wire fraud charges.  Tian was sentenced to eleven months in prison and ordered to pay $47,015 in restitution to Parametric (including $29,800 that Parametric spent on an internal investigation to assess the damage caused by Tian) and $96, 099 in restitution to Medtronic.  Tian was later served with an NTA charging him removable as an aggravated felon convicted of “an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 

Tian applied for asylum/withholding/CAT and argued that his crime, while involving fraud or deceit, did not result in any loss to the victim.  The IJ found Tian statutorily ineligible for asylum because the amount of restitution exceeded $10,000.  The IJ also ruled that Tian was statutorily ineligible for withholding because the conviction qualified as a “particularly serious crime.”  Finally, the IJ denied Tian’s application under CAT based on the merits.  The BIA reversed in part and remanded, holding that the IJ had mistakenly relied on the restitution order rather than on the charge to which Tian pleaded guilty, in calculating the amount of loss. 

The IJ found Tian removable as an aggravated felon, ruling that the investigative costs incurred by Parametric were to be considered a loss to the victim, and exceeded $10,000.  The IJ also reconsidered its finding that the conviction qualified as a particularly serious crime, holding that unauthorized access to a computer did not meet the BIA standard set out in In re N-A-M-, 24 I. & N. Dec. 336 (B.I.A. 2007), and found that Tian had met his burden for withholding. 

The BIA affirmed the IJ’s ruling on ineligibility for asylum, but remanded once again, holding that the IJ had misinterpreted its ruling in In re N-A-M-.  On remand, the IJ found that Tian’s conviction for unauthorized access to a computer, given the circumstances, is in fact a particularly serious crime, and therefore Tian was statutorily ineligible for withholding.  Tian petitioned the Eighth Circuit in regards to whether his conviction qualified as an aggravated felony and whether the IJ and BIA failed to apply the appropriate legal standard in determining that his conviction qualifies as a “particularly serious crime.” 

The courts have been split about “whether the $10,000 threshold . . . refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion.”  The Court followed the Supreme Court’s recent ruling in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), which held that the statute “calls for a ‘circumstance-specific,’ not a ‘categorical,’ interpretation.”  Thus, “the ‘loss’ must ‘be tied to the specific counts covered by the conviction.’”  Because Tian’s counsel had conceded that Parametric’s investigative costs were directly related to his unauthorized access to their computers, and both the IJ and BIA had premised their decisions on the fact that the costs exceeded $10,000, the Court concluded that Tian’s conviction qualified as an aggravated felony. 

On the issue of whether the correct legal standard for “particularly serious crime” was applied, the Court held that In re N-A-M- had removed the need to make a separate determination about whether the alien is a danger to the community if other factors—such as the nature, circumstances and underlying facts of the conviction, as well as the sentence imposed—pointed to a particularly serious crime.  In other words, the nature of the crime, and not the likelihood of future serious misconduct, was the proper focus for determining whether or not something counted as a particularly serious crime.  Because the Court has jurisdiction only constitutional issues and questions of law, it did not consider whether the IJ and BIA had properly weighed the relevant factors, instead holding that the IJ and BIA applied the correct legal standard. 

Read the opinion here.

Ishitiaq v. Holder (7th Cir. Aug. 25, 2009)

WILLIAMS Kanne Wood

Petitioner was a Pakistani youth whom a terrorist group wished to recruit.  He applied for asylum, withholding, and CAT. 

1.  Petitioner was denied asylum due to the one-year filing deadline.  The IJ refused to excuse the one-year filing deadline because of changed country conditions, noting that the changes were not material to the claim and happened long after the one year deadline passed - Ishitiaq argued that this showed that the IJ made a legal mistake by looking only to the one-year period.  The CtApp found no legal error.  It found that his claims were indeed not related to the changes he identified (e.g., the assassination of Bhutto and the declaration of martial law).  It interpreted the discussion of the timing as relating to "extraordinary circumstances" (though no one had mentioned extraordinary circumstances, and it seems hard to see how the timing relates to those circumstances).  Thus, while it had jurisdiction to review legal error, it found no legal error.

2.  It found that his argument that the IJ erred by equating past persecution with past torture had not been exhausted administratively, and was therefore waived. 

Ishitiaq’s claim was procedurally defaulted when he failed to raise the issue before the BIA. 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”); Ghaffar, 551 F.3d at 655 (“The duty to exhaust includes the obligation to first present to the BIA any argument against the removal order as to which the Board is empowered to grant the alien meaningful relief.”). The failure to exhaust may be overlooked only when the alien raises constitutional claims because “the final say on constitutional matters rests with the courts.” Ghaffar, 551 F.3d at 655 (quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999)). In his appeal to the BIA, Ishitiaq’s argument regarding his past persecution focused solely on distinguishing his situation from that of the two cases on which the IJ relied.2 Although it is clear that Ishitiaq did not waive his past persecution argument, he certainly did not challenge the IJ’s alleged misapprehension that past persecution must equate to torture.

Read opinion here: 

De la Rosa v. U.S. Attorney General, No. 08-13861 (11th Cir. Aug. 20, 2009) 

Dubina, Birch, and Wilson (per curiam) 

In a matter of first impression with the Eleventh Circuit, the Court adopted the categorical approach for determining whether a criminal conviction qualifies as a CIMT for purposes of establishing eligibility for a § 212(c) waiver.  The decision puts the Court in line with the First, Third, Fifth, Sixth, Seventh and Eighth Circuits, and explicitly rejects the Second Circuit’s offense-based approach. 

Jose Erasmo De la Rosa, a national of the Dominican Republic, was found deportable for having been convicted of committing a lewd act upon a child under the age of sixteen in Florida—an aggravated felony.  De la Rosa conceded deportability and sought a § 212(c) waiver, arguing that his conviction constituted a CIMT.  The BIA affirmed the IJ’s determination that De la Rosa’s conviction made him statutorily ineligible for a waiver. 

Before declaring its decision, the Court traced the history of § 212(c) and surveyed how its sister circuits have approached § 212(c) relief.  Particularly important to the Court’s analysis was the BIA’s decision in In re Blake, 23 I. & N. Dec. 722 (BIA 2005), in which the BIA applied the statutory counterpart test and concluded that an alien deportable based on an aggravated felony conviction for sexual abuse of a minor was ineligible for a § 212(c) waiver.  The Second Circuit has rejected this categorical approach, in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), in favor of an offense-based approach that turns instead on the particular criminal offense rather than any categorization of deportation grounds.  The Court also noted that the Ninth Circuit has rejected both the categorical and offense-based approaches, instead finding that Congress conceivably had a legitimate reason (i.e. encouraging self-deportation) for denying § 212(c) relief to deportable aliens who have not left the country.  Having examined its options, the Eleventh Circuit was ready to weigh in on the three-way circuit split. 

Ultimately, the Court accorded Chevron deference to the BIA’s decision in In re Blake and sided with the majority of its sister circuits in adopting the categorical approach.  The Court reasoned that its own precedent had parted ways with both the Second Circuit’s offense-based approach and the Ninth Circuit’s abandonment of the statutory counterpart test.  Instead, the Court ruled, the categorical approach best preserved the congruity between an alien in deportation proceedings and an alien in exclusion proceedings, thereby implicating the equal protection concerns that motivated the courts to provide § 212(c) relief to deportable aliens in the first place.  Loathe to further “the judicial extension of a statute absent sufficient constitutional justification,” the Court deferred instead to the BIA’s determination that sexual abuse of a minor does not have a statutory counterpart in the CIMT provision in the grounds of inadmissibility.

Read opinion here.

Benyamin v. Holder (9^th Cir. August 24, 2009)

MCKEOWN, Fletcher, Smith

Petitioner Benyamin, a native and citizen of Indonesia, is married to Rodriguez, a native and citizen of Venezuela.  They have a daughter named Anissa, born in Indonesia, and daughter named Anakarina, born in Venezuela.  Anissa suffered FGM when the family lived in Indonesia but Anakarina was spared, as she has never lived there.

 Benyamin initially applied for asylum, citing the following fears or past harms in Indonesia: (1) that he and his wife had been persecuted and would be persecuted because they are a Muslim-Catholic couple, (2) that Anissa had suffered past persecution by undergoing FGM and (3) that Anakarina would suffer FGM if removed with her parents to Indonesia. 

The IJ and BIA denied asylum, reasoning that (1) the couple had suffered, and fears, mere harassment on account of religion, (2) that Anissa’s FGM procedure was not as serious as that practiced in, e.g., Ethiopia, as it involves only “minimal short-term pain, suffering, and complications” and (3) that FGM committed against the couple’s daughters, even if persecution, did not make petitioners eligible for asylum.

The CtApp found:

1.  Analogizing to cases involving “constructive deportation” of USC children of asylum applicants establishes that Anissa’s past FGM, and Anakarina’s fear of future FGM, are relevant to Benyamin’s asylum claim.

2. Anissa’s procedure “undoubtedly constitutes persecution.”  The CtApp reaffirmed that even the least invasive FGM procedures constitute persecution.  Because FGM is “particularly severe form of persecution,” it remanded to the agency to determine whether a humanitarian grant of asylum was appropriate. 

3.   The BIA must consider Anakarina’s fear of future FGM in adjudicating Benyamin’s asylum claim.

4.  The agency correctly found no well-founded fear of persecution on account of membership in social group of Muslim men married to Christian women.

5.  The BIA can consider whether the family can find “safe haven” in Venezuela as an alternative to granting asylum w/r/t Indonesia.

Read decision here. 

Castellano v. Clinton (CA M-0805) (S.D.Tex.)

The parties have reached a proposed class settlement regarding passport applications from individuals born to midwives.  The ACLU, Hogan & Hartson, and Lisa Brodyaga pursued a class action for individuals whose passport applications were delayed or effectively denied because they had been born to midwives.  Some midwives have engaged in fraud (some have pled guilty), which has apparently led DHS and DOS to suspect midwives as a class.  The DOS wasn't actually denying applications; it was more commonly "filing" the applications without action, declaring them abandoned, or simply asking for more and more information.  The most basic result of this lawsuit is that DOS will approve or deny applications (where applications are denied, the applicant can seek judicial review in District Court, under 8 USC 1503).  A rough outline of the Settlement Agreement is this:

1.  A SBA is a "Suspected Birth Attendant"; DOS maintains a SBA list, which it keeps secret (and isn't sharing with class counsel in this lawsuit). The SBA list includes:

the names of midwives and/or birth attendants ... who have been convicted of birth certificate fraud and/or who the Department has a reasonable suspicion of having engaged in birth certificate fraud, based on: a) a conviction or plea agreement involving a crime of document fraud; b) an admission, confession, or statement of implication made by the birth attendant, a client, or a witness pertaining to birth certificate fraud by the birth attendant; c) information received from a law enforcement agency regarding the birth attendant and his/her involvement in birth certificate fraud; d) documents or other information supporting a reasonable suspicion that the birth attendant has engaged in birth certificate fraud; or e) disciplinary action taken by the Texas Midwifery Board or other state licensing agency for falsely registering births or falsely filing birth records. The Department will continuously review, revise, and maintain the SBA list. The SBA list will not be disseminated in any form to Class Counsel. For purposes of this paragraph, reasonable suspicion shall mean that there is an articulable and reasonable basis for the belief that an individual has engaged in birth certificate fraud. Mere guesses or hunches are insufficient.

While the DOS isn't providing any actual info to class counsel or the public, it does undertake to review its list and tell us how many many names are on it, whether any are removed, etc. (Para 53)

An authorized official shall certify on behalf of the Department: (1) the number of midwives or birth attendants on the SBA List as of the Effective Date of Settlement; (2) the number of midwives or birth attendants added, if any, to the SBA List during that period of the Stipulation; (3) the number of midwives or birth attendants removed, if any from the SBA List during that period of the Stipulation; and (4) that this information is true, correct, and complete as of the date of certification. The certification shall also attest that the Department has maintained, reviewed, and, if applicable, modified the list according to the standards set forth in the Definition section.

While the DOS hasn't provided any list, class counsel filed an old INS list as an exhibit in the lawsuit, which is reproduced below.

2.  The class definition is:

[A]ll persons who filed an application, domestically, for a U.S. passport between April 8, 2003 and the Effective Date of Settlement, and who: (1) submitted a birth certificate indicating a domestic, non-institutional birth; (2) that was certified, filed, or registered by a midwife or other birth attendant within the state of Texas; and (3)(a) were issued a letter stating that their application was filed without further action, abandoned, or closed or (b) were not sent a decision on their application and filed such application prior to September 15, 2008. Persons shall be excluded from the Class (i) who were issued a passport; (ii) who were sent a passport denial letter; (iii) who have a pending application which was filed on or after September 15, 2008; (iv) who re-file passport applications overseas; (v) who previously dismissed lawsuits, with prejudice, brought under 8 U.S.C. § 1503, or had judgment entered against them in § 1503 proceedings; or (vi) who had applications filed without further action based on one of the following reasons: Insufficient/no photograph; Insufficient/no signature; Insufficient/no fees; Insufficient/no identification; Incomplete application form; Failure to apply in person at a passport agency/center or acceptance facility; Delayed birth certificate; 22 C.F.R. § 51.60; or 22 C.F.R. § 51.61.

3.  The DOS acknowledged that where the applicant shows by a preponderance that they're a citizen, that a passport should issue. (Para 20)

The Department will issue a passport when the applicant has demonstrated U.S. citizenship or nationality by a preponderance of the evidence, the applicant’s identity is not reasonably in question, the applicant has complied with all requirements, procedures, and instructions for filing a passport application, and there are no statutory, regulatory, or other legally sufficient reasons not to issue.

4.  The DOS will grant or deny, unless the applicant withdraws the application in writing (Para 25).

The Department no longer issues “filed-without-further-action” letters and shall no longer designate any passport application as abandoned. The final disposition of all fee-paid passport applications, as of September 15, 2008, is: (a) issuance of a passport; (b) denial in writing; or (c) withdrawal of the application in writing by the applicant.

5.  The DOS will readjudicate all class members, without fee, so long as they request a fee-free adjudication before 11:59PM on 6/1/10.  Once DOS agrees to adjudicate without fee, then the class member can resubmit the passport application. 

6.  DOS agrees not to deny simply because of the SBA, but the parties acknowledge that individuals with birth certificates signed by SBAs may be required to supply additional information regarding the birth. (Para 34)

A Class Member who submits a birth certificate that otherwise complies with 22 C.F.R. § 51.42(a) will not be denied a passport solely on the basis that the birth certificate was executed by a birth attendant whose name appears on the SBA List. However, the Class Member will be required to provide additional evidence of birth in the United States. The Parties acknowledge that such requests for evidence, as set forth herein, are reasonable and not unduly burdensome.

7.  Under the Settlement Agreement, para 50, there is a new procedure created for both class members and non-class members (i.e., future applicants).  The DOS will have an "SBA Panel" to review denials of passports due to SBAs.  The panel is only brought in where the SBA adjudicator cannot approve the application; the SBA panel will permit more evidence to be introduced, including after the passport is denied (if more evidence is received, the panel will reopen the case). (Paras 43-46)  Applicants abroad will not have the benefit of the SBA panel, but will have a senior adjudicator and some other consular officer. 

8.  The DOS agrees to provide reports to class counsel regarding a variety of things. 

Read Settlement Agreement here:

Read Complaint here: 

Read Midwife List:

Rodriguez v. Hayes (9^th Cir. August 20, 2009)

FLETCHER, Fisher, Gould

This is an appeal of a habeas action requesting certification of the class of aliens detained without bond hearings pursuant to “general immigration statutes.”  The District Court denied certification of the class without analysis, and this appeal followed. 

Procedural history:

The lead petitioner of the putative class, Rodriguez, was detained in April, 2004. 

The BIA found Rodriguez removable due to an aggravated felony theft offense. (The IJ also ruled that an aggravated felony drug offense rendered him removable, but the BIA reversed this ruling and remanded, thus prolonging detention).  Rodriguez contests the theft offense AggFel ruling at the Ninth Circuit, which is holding the petition in abeyance on that issue pending Supreme Court review.  Rodriguez filed his habeas in May 2007, and moved for certification of the class in June.  In July, ICE released him on an OSC.

The government attacked class certification on the following grounds:  1) the proposed class is undefined; 2) the claim of Petitioner is moot; 3) the claims of the proposed class are unripe; 4) class relief is barred by 8 U.S.C. § 1252(f); 5) the court lacks jurisdiction

over the claims of the proposed class in light of the holding in Rumsfeld v. Padilla; and 6) the proposed class does not meet the requirements of Federal Rule of Civil Procedure 23.

1. Rodriguez’s citation to aliens held pursuant to “general immigration statutes” in defining the class does not render the class indeterminate, as the CtApp surmised that he refers to 8 U.S.C. §§ 1226, 1225(b) and 1231.  These statutes, taken together, adequately define a group of individuals subject to detention without bond hearings under them.
2. Release on an Order of Supervision does not moot a habeas challenge to immigration detention:  ICE has authority to re-detain at any time after release on an OSC, so Rodriguez has a personal stake in the litigation.  In addition, the conditions of his release (ankle bracelet, curfew) continue to impose restrictions on his liberty.
3. The gov argued that, because there is no showing that the government is not complying with Court’s orders in Casas-Castrillon, which would apply to class members detained under 1226(a), the class is not ripe.  The CtApp ruled that the prospective issuance of “Casas bonds” will only cause some members of the class to drop out, but does not mean that these individuals were not once members of the class.
4. 8 U.S.C. § 1252(f)(prohibiting injunctions against the operation of the INA) does not bar relief to the class: (A) the respondent’s seek declaratory relief for individual members of the class, not an injunction writ large and (B) the class claims that the complained of conduct is not authorized by the statute, so the claim is outside of1252(f)’s bar on enjoining the operation of statutes.
5. Rumsfeld v. Padilla, 542 U.S. 426 (2004), which states that the default respondent in “core” habeas proceedings is the physical custodian, does not bar class certification.  The government argued that all members of the class therefore are required to have the same physical custodian but:  (A) Rumsfeld specifically reserved addressing immigration detention challenges and (B) courts often certify classes of habeas petitioners who have multiple physical custodians.
6. The class meets the requirements of Federal Rule of Civil Procedure 23: 
   1. Commonality: Although more than one statute is at play here, the constitutional issue – when is prolonged detention without a bond hearing authorized – is common to all members of the class. 
   2. Typicality – Rodriguez is sufficiently typical.  His release on OSC does not moot his claim and his AggFel status, while relevant to his ultimate removal and the merits of his bond hearing, does not vitiate his claim that he is entitled to a bond hearing.
   3. Counsel (ACLU, Stanford, Sidley Austin) is adequate to represent the interests of the class.
   4. Rule 23(b)(2)(whether the opposing party has acted or refused to act on grounds that generally apply to the class).  The gov basically repeated its argument that different statutory authorities govern the detention decisions and that, therefore, the reasons for action are not generally applicable to the class.  The CtApp ruled that it is sufficient “that the class members complain of a pattern or practice that is generally applicable to the class as a whole.”  The class challenges detention without a bond a hearing, which applies to each member.

Given the different statutory regimes governing detention of class members, the CtApp instructed the DistCt to consider requests for forming subclasses within the class.

Read opinion here. 

Gatimi v. Holder No. 08-3197 (7th Cir. 8/20/09)

POSNER Wood Ripple

The petitioners were a family from Kenya which fears persecution at the hands of the Mungiki sect, because the husband was a member of the sect, but then dropped out.  The BIA found that the Particularly Social Group ("PSG") of former Mungiki was not cognizable under the INA, because it was not socially visible.  The 7th Cir criticized the Board's social visibility analysis.

[T]he Board cited cases which hold that a group must have “social visibility” to be a “particular social group,” meaning that “members of a society perceive those with the characteristic in question as members of a social group.” The Board said there was no evidence that Gatimi “possesses any characteristics that would cause others in Kenyan society to recognize him as a former member of Mungiki . . . . There is no showing that membership in a larger body of persons resistant to Mungiki is of concern to anyone in Kenya or that such individuals are seen as a segment of the population in any meaningful respect.”

This formula cannot be squared with Sepulveda. More important, it makes no sense; nor has the Board attempted, in this or any other case, to explain the reasoning behind the criterion of social visibility. Women who have not yet undergone female genital mutilation in tribes that practice it do not look different from anyone else. A homosexual in a homophobic society will pass as heterosexual. If you are a member of a group that has been targeted for assassination or torture or some other mode of persecution, you will take pains to avoid being socially visible; and to the extent that the members of the target group are successful in remaining invisible, they will not be “seen” by other people in the society “as a segment of the population.” Those former employees of the Colombian attorney general tried hard, one can be sure, to become invisible and, so far as appears, were unknown to Colombian society as a whole.

* * *

The only way, on the Board’s view, that the Mungiki defectors can qualify as members of a particular social group is by pinning a target to their backs with the legend “I am a Mungiki defector.” The government’s brief states flatly that secrecy disqualifies a group from being deemed a particular social group.

The Board has a legitimate interest in resisting efforts to classify people who are targets of persecution as members of a particular social group when they have little or nothing in common beyond being targets. *** But like the lawyers in the Sepulveda case, the defectors from the Mungiki constitute a group with as much coherence as children of the bourgeoisie, or of the aristocracy, had in the Soviet Union: breakaway factions that were relentlessly persecuted.

The Court of Appeals found that a Gonzales remand was inappropriate, because the BIA had been inconsistent, rather than silent.  Because the Board has created two inconsistent lines of cases (one applying the social visibility test, the other not), the CtApp would not simply defer to one of the lines of cases. 

We are mindful of the Supreme Court’s admonition to the courts of appeals, in Gonzales v. Thomas, 547 U.S. 183 (2006) (per curiam), that the Board’s definition of “particular social group” is entitled to deference. The issue in that case was whether a family could be a particular social group, a difficult issue on which the Board had not opined; and the Court held that the Board should have an opportunity to do so. But regarding “social visibility” as a criterion for determining “particular social group,” the Board has been inconsistent rather than silent. It has found groups to be “particular social groups” without reference to social visibility, In re Kasinga, supra, 21 I. & N. Dec. at 365-66 (young women of a tribe that practices female genital mutilation but who have not been subjected to it); In re Toboso-Alfonso, 20 I. & N. Dec. 819, 822-23 (BIA 1990) (homosexuals); In re Fuentes, supra, 19 I. & N. Dec. at 662 (former members of the national police); cf. In re Acosta, supra, 19 I. & N. Dec. at 233-34 (former military leaders or land owners), as well as, in this and other cases, refusing to classify socially invisible groups as particular social groups but without repudiating the other line of cases. When an administrative agency’s decisions are inconsistent, a court cannot pick one of the inconsistent lines and defer to that one, unless only one is within the scope of the agency’s discretion to interpret the statutes it enforces or to make policy as Congress’s delegate. AT & T Inc. v. FCC, 452 F.3d 830, 839 (D.C. Cir. 2006); Idaho Power Co. v. FERC, 312 F.3d 454, 461-62 (D.C. Cir. 2002). Such picking and choosing would condone arbitrariness and usurp the agency’s responsibilities.

[CR: Of course, the problem with the Board's social visibility analysis is that social visibility ought to be one way to show existance of a PSG, rather than the sine qua non for PSG status. Posner rightly points out that the new BIA analysis doesn't make sense.]

The CtApp's decision does not appear to portend that the Board's decisions in S-E-G- and E-A-G- may be rejected in the Seventh Circuit.  To the contrary, Judge Posner suggests that the CtApp would reach the same result, but without the use of the social visibility test to reach that conclusion. 

It is true that our sister circuits have generally approved “social visibility” as a criterion for determining whether an asylum seeker was persecuted for belonging to a particular social group. We have no quarrel with the rejection in those cases of the attempted classification of specific groups as particular social groups. See Ramos-Lopez v. Holder, 563 F.3d 855, 859-61 (9th Cir. 2009) (young Honduran men who resist being recruited into gangs); Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009) (Brazilians who inform on drug smugglers); Davila-Mejia v. Mukasey, 531 F.3d 624, 628-29 (8th Cir. 2008) (competing Guatemalan owners of family businesses); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 72-73 (2d Cir. 2007) (per curiam) (affluent Guatemalans); Castillo-Arias v. United States Attorney General, 446 F.3d 1190, 1194-95, 1197 (11th Cir. 2006) (informants on the Colombian drug cartel). We just don’t see what work “social visibility” does; the candidate groups flunked the basic “social group” test, quoted earlier, declared in cases like Lwin, Kasinga, and Acosta (where the test originated).

Finally, the CtApp decisions contains an interesting, if somewhat opaque, discussion of the interplay of persecution of the wife to get back at the husband.  The wife was a derivative applicant on her husband's petition; and hadn't sought asylum within one year.  OIL argued that only persecution of the husband was relevant; but because the wife was in danger because of the Mungiki's desire to persecute him, that fear could bolster his asylum claim (and if he won asylum, she'd be a derivative asylee as well).  First, Judge Posner noted that the persecution here was directed against her as a means of persecuting him - i.e., "derivative" in a different way than we usually think under the regulations.  That led to an odd suggestion that she might be argue for asylum herself, despite not having applied in her own right:

Although she did not file a primary claim of asylum (that is, a claim for asylum based on persecution of her) within the one-year deadline for filing such claims, there is no basis in statute, regulation, or case law for imposing that deadline on a derivative claimant merely because she seeks to bolster her claim by evidence that she too is faced with a threat of persecution. When Mrs. Gatimi first arrived in the United States, her husband was still in Kenya without, so far as appears, intending to seek asylum in the United States, and so she had no reason to seek asylum; she expected to return to Kenya, and did. The grounds that she would have had for seeking asylum within one year of her arrival in the United States became relevant to her situation only much later, when her husband sought asylum.

[CR: It almost sounds like the CtApp found an error of law in the rejection of her claim on one-year grounds; but then, the Board didn't reject it on one-year grounds (OIL made that argument on appeal), and it doesn't sound like she argued for that, either.  Moreover, it seems barely relevant; having noted that persecution of her to get at him could be the basis of an asylum grant to him, there appears no need to create a new, undefined right for derivative applicants to raise separate claims.  N.b.: the regulations would waive the one-year deadline if she divorced from her husband, 8 CFR 208.4(a)(4)(i)(C), but that wouldn't apply here because they are still married.]

Read decision here:

Pacheco-Fregozo v. Holder (9^th Cir. August 12, 2009)

 BERZON, Smith, Thompson

 Petitioner Pacheco pleaded nolo contendere to misdemeanor child endangerment, Section 237(b) of the California Criminal Code.  The issue before the CtApp was whether a conviction under § 237(b) is categorically a crime of child abuse under the INA and whether remand for application of the modified categorical approach was necessary. 

Categorical analysis:

1. The agency decision here occurred before the BIA precedentially defined “child abuse” under the INA in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008).  Here, the BIA relied on Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999), which the 9th ruled had only defined child abuse in dicta.  The gov argued that remand was necessary to consider the application of Velazquez-Herrera under a categorical analysis.  The gov acknowledged that the latter decision reached broader conduct than the former, however, so the CtApp held that remand was not necessary: if the state conviction is not categorically within Velazquez’s definition of child abuse, it is necessarily not within the narrower definition relied on by the BIA in this case.
2. Velazquez construed a crime of child abuse to require actual injury to a child: “this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight [and] mental or emotional harm, including acts injurious to morals.”[EB – The BIA’s definition is arguably not exhaustive.]  The statute reaches conduct that only presents the possibility (“may have been injured”) of harm to a child – the CtApp highlighted a conviction for leaving a child on a “high bed” without railings.  The misdemeanor statute specifically excludes conduct “likely to produce great bodily harm or death,” unlike the felony statute.  Ergo, a conviction under 237(b) is not categorically a crime of child abuse.

Modified categorical analysis:

The CtApp remanded for application of the modified categorical approach because (1) the criminal complaint originally alleged more serious conduct than the minimum conduct reached by the misdemeanor statute, and Pacheco might have admitted to this more serious conduct and (2)  The BIA did not apply Velazquez in the modified categorical analysis, and should be given the opportunity to do so.  The CtApp provided reasons for why, under California law, Pacheco may not have admitted to the alleged conduct.  

Read opinion here. 

Liang Chen v. Holder (7th Cir. 8/19/09)

WOOD Posner Kanne

Chen is a Chinese asylum-applicant who is married to a woman who (he says) was forced to have an abortion.  He was initially denied asylum because he was found to lack credibility.  But while his case was on appeal, the AG reversed the prior BIA position that husbands are persecuted when their wives are forced to abort. Matter of J–S–, 24 I. & N. Dec. 520, 523-24 (AG 2008). The BIA dismissed Chen's appeal, because even assuming credibility, that holding barred him from relief.

The 7th cir reversed and remanded, because the CtApp's decision didn't afford him a reasonable opportunity to present evidence in his behalf.

[T]he BIA never acknowledged the fact that Chen had no reason to put evidence of other persecution into the record at the time he filed his application, because the law then was clear that he needed only to prove his wife’s forced abortion. The same was true at the time of his hearing and his appeal.... It is therefore more understandable than it ordinarily would be that Chen saw no reason to fill his application with additional facts justifying asylum on alternative grounds.

The case was therefore remanded to the BIA to permit Chen to offer evidence that he was persecuted in his own right in China. 

Read decision here: