Ndonyi v. Mukasey (7th Cir. 9/2/08)

KANNE Posner Sykes

The IJ and BIA initially denied this Cameroonian asylum for lack of credibility, with an alternate denial based on nexus - but after the Govt moved for remand from the CtApp, the BIA denied only on the basis of nexus. The Board held that she hadn't shown that being arrested at a political rally (and then raped) was on account of her politics; nor that being arrested with her family due to a religious conflict with local authorities was for religious reasons. The CtApp made short shrift of this: "the BIA completely ignored the doctrine of mixed motives—the opinion does not analyze whether Ndonyi’s oppressors were partially motivated by politics or religion, and makes no mention of any of our precedent on the issue." The CtApp called the agency reasoning "radically deficient," and said that it didn't see how a student protest against discrimination against Anglophones could be apolitical. Also, BIA didn't shift burden to Govt to show that internal relocation was possible. Reversed.

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Sicar et al. v. Chertoff et al, No. 07-14072 (11th Cir.) August 27, 2008

BLACK, Marcus, Evans

In Sicar et al, a group of Haitian applicants filed a class action complaint in district court, alleging that DHS had systematically misclassified their parole status for purposes of applying for adjustment of status pursuant to the Haitian Refugee Immigration Fairness Act (HRIFA).  The lower court held that the Haitian nationals lacked standing and that it did not have subject matter jurisdiction over the claim. The 11th circuit disagreed with the lower court on the issue of standing, but agreed that subject matter jurisdiction was lacking pursuant to the jurisdiction-stripping provision of HRIFA at § 902(f).

The Haitian nationals, relying on Moore v. Ahcroft, 251 F.3d 919 (11th Cir. 2001), in which the 11th circuit had found jurisdiction over the threshold requirements at INA § 242(a)(2)(C), argued that the court could review the misclassification of their status as parolees because this was a threshold determination not subject to the limitation on judicial review at § 902(f).  The court disagreed, however because the plain language of INA § 242(a)(2)(C) enumerated the elements that would divest the court of jurisdiction, and the court’s jurisdiction attached in determining whether these requirements were met to begin with.  In contrast, § 902(f) does not contain language specific to parole determinations, rather it precludes review over the question of “whether the status of any alien should be adjusted under this section.”  Based on this language, the court concluded that a parole determination is subsumed into the adjustment of status process and thus, not a reviewable threshold issue.

The court next turned to the allegations of systematic violations raised by the Haitian nationals in their complaint. Relying on the 11th circuit’s opinion in Tefel v. Reno, 180 F.3d 1286 (11th Cir. 1999), the Haitian nationals argued for jurisdiction in that they did not challenge individual decisions, rather, they challenged a systematic pattern of misclassification by the government.  The court rejected this claim, stating that in Tefel (which dealt with a pre-IIRIRA judicial review scheme), the class challenged the retroactive application of the stop-time provision enacted by IIRIRA, which resulted in a systematic application of the provision and not an adjudication of individual claims.  Here, the court found that the applicants’ challenge really amounts to a challenge of the individual decisions on parole classifications and not to a collateral interpretation of the adjustment proceedings, as was the case in Tefel.  For similar reasons, the court likewise dismissed the petitioners’ reliance on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), which involved a collateral attack on the adjustment of status process for SAW applicants and not challenges to individual adjudications.

As to the petitioners’ challenges under the Administrative Procedures Act (APA), again, the court dismissed this claim as another effort by the petitioners to challenge the individual results of their adjustment applications. On this point, the court noted that petitioners’ did not seek to have the policy of misclassifying parole categorizations invalidated, rather that the court declare that release on recognizance constitutes a parole for purposes of § 902(f).

Finally, the court rejected the constitutional challenges under the Equal Protection and Due Process clauses. The court disposed of these challenges by finding that because the petitioners fell under the category of aliens inadmissible to the United States, they have no constitutional rights as to their adjustment of status applications. 

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Castro-Pu v. Mukasey, No. 07-2126 (8th. Cir.) August 28, 2008

LOKEN, Gibson, Melloy

Castro-Pu was a Guatemalan Mayan who had defied army orders to report for duty in the Guatemalan civil patrols and later became a student activist.  He applied for asylum in 1991, and his appeal was decided by the BIA eight years later, in 1999.  The IJ below found no well-founded fear of future persecution; the BIA found that conditions in Guatemala had greatly improved, so Castro-Pu’s claim failed.  A dissenting board member opined that Castro-Pu should have been granted asylum in 1991 but at minimum, that he should have been given an opportunity to rebut the BIA’s finding that conditions in Guatemala had greatly improved since the time of Castro-Pu’s flight from the country.

No federal court appeal followed the BIA’s 1999 decision (Castro-Pu claimed he was never informed of the BIA’s final decision by prior counsel) and in 2000, after Castro-Pu was detained, he filed a habeas petition in district court, arguing that he should have been permitted to present evidence to rebut the BIA findings on country conditions in Guatemala. The district court agreed and remanded his case to the BIA on this issue; the BIA in turn remanded to the IJ for further testimony in the case.

In remanded proceedings, Castro-Pu attempted to introduce the executive director of an immigration legal services agency as an expert witness on Guatemala, the IJ refused to accept the director as an expert witness, because she had lacked “relevant credentials” and had not been to Guatemala since 1989.  The IJ expressly adopted the original IJ and BIA decisions, and found Castro-Pu did not rebut the finding that conditions in Guatemala had improved nor that he was wanted by the authorities.

The 8th circuit disagreed with Castro-Pu’s contention that the remand by the district court in his case constituted a finding that he had suffered past persecution triggering a rebuttable presumption of future persecution, noting that the district court had simply remanded for the taking of evidence on this point. Because he had never raised a past persecution argument previously, the court deemed this argument waived.  Further, the court found that the IJ and BIA decisions were supported by substantial evidence.

The court also found that it did not have jurisdiction over the refusal of DHS to repaper Castro-Pu’s case, finding this to be a discretionary decision not subject to judicial review.

Further, the court also held that Castro-Pu had not suffered any due process wrongs where the IJ had refused to accept his expert witness because no prejudice resulted from the IJ’s denial.  Finally, the court noted its previous holding that it had no jurisdiction to review the IJ’s denial of a continuance in the case to obtain an expert witness. Grass v. Gonzales, 418 F.3d 876 (8th Cir. 2005) cert denied, 547 US 1079 (2006)

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Godinez-Arroyo v. Mukasey, No. 06-4039 (8th. Cir.) August 28, 2008

MELLOY, Riley, Colloton

In Godinez-Arroyo, the 8th Circuit considered the petitioner’s challenge to a BIA finding that second degree assault pursuant to Missouri Revised Statutes § 565.060 constitutes a crime involving moral turpitude.  The BIA had held below that the offense did indeed constitute a crime involving moral turpitude where the offense involved a reckless mens rea coupled with what it found was an aggravating factor: causing “serious physical injury” to another.

The 8th Circuit first considered the petitioner’s argument that, because the BIA’s decision below was unpublished, it should not be accorded the higher deferential standard under Chevron v. USA, Inc. v Natural Res. Def. Council, Inc., 467 US 837 (1984), but rather the lesser standard of deference pursuant to Skidmore v. Swift & Co., 323 US 134 (1944).  The court noted that it had previously applied a high standard of deference to unpublished opinions, but it had never addressed whether there might be a “sliding scale” of deference owed to unpublished BIA opinions, acknowledging that at least the 9th and 2nd circuits had questioned whether Chevron deference is appropriate in these cases. Ultimately, the court declined to announce a rule as to the standard of deference owed to unpublished BIA decisions, finding that in this case, even under the lesser Skidmore deference standard, the BIA decision was persuasive.

The court next moved on to agree with the BIA that the Missouri offense of reckless second degree assault constituted a crime involving moral turpitude.  It found that a reckless mens rea was sufficient and that physical injury was an aggravating factor such that the offense constituted a crime involving moral turpitude where the record reflected that bodily injury had occurred. The court rejected Godinez-Arroyo’s argument that “aggravating factor” should be given a narrow meaning, limited to the use of a weapon, or when the serious injury is inflicted on children, spouses or peace officers.

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Datau v. Mukasey (1st Cir. 8/27/08)

LIPEZ, Lynch, Tashima

Petitioner, a native of Indonesia, sought asylum, withholding, and deferral under CAT based on persecution due to her Christian beliefs and perceived ethnic Chinese appearance (though she was not in fact ethnically Chinese).  The IJ denied her application and the Board affirmed. On appeal, petitioner raised 2 arguments: (1) The Board's decision lacked support b/c it was based, in part, on the IJ's unclear credibility judgments, and (2) She had presented substantial evidence of both past persecution and the likelihood of future persecution.  The court rejected both arguments.  

(more after the jump)

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Bonilla and his wife fled Colombia due to threatening phone calls and letters they received from the FARC on account of their political activities with the Liberal Party in Colombia.  Bonilla did have a fiver year resident stamp from Venezuela which allowed him to enter and exit the country for business but which had an expiation date.  The First Circuit held that the IJ and BIA’s determined that a Venezuelan five-year resident stamp is an offer of permanent residency, lacked support in the record.  The Court summarized the findings of sister circuits and concluded that other courts when faced with the similar situation of “ambiguous immigration documents from third countries” have remanded the case back for further clarification on the record.  See Maharaj v. Gonzales, 450 F.3d 961, 977 (9th Cir. 2006) (en banc); Abdille v. Ashcroft, 242 F.3d 477, 490 (3rd Cir. 2001).  The Court further held that while the BIA had stated that Bonilla had not established past persecution, the BIA had not really addressed if Bonilla had a well founded fear of future persecution. 

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Pinto-Montoya v. Mukasey (8/26/08)

Cabranes, Pooler, Sack (Per Curiam):

Petitioners filed PFR challenging BIA's order affirming IJ's denial of their motion to suppress statements obtained after immigration officials allegedly seized them on the basis of their race and nationality for questioning at the airport.  The court affirmed the Board's order, finding that petitioners had not been seized within the meaning of the 4th Amendment b/c their encounters while disembarking from a plane from Guatemala with the agents had been consensual.  In particular, the court focused on the fact that petitioners had not been physically restrained, ordered to stop, or otherwise coerced to answer questions, and that - as the agents were plainclothes officers who did not identify themselves as immigration officials - petitioners were not compelled to respond to an assertion of authority. This conclusion was bolstered by the fact that petitioners had testified that they did not know the persons approaching them were law enforcement officers.

Petitioners’ testimony before the IJ does not suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions when the agents approached them. Nor can petitioners plausibly argue that they answered the agents’ questions in response to an assertion of authority. Petitioners testified that they were not aware that the persons approaching them were law enforcement officers. Indeed, the agents were not dressed in uniform, did not display their badges, or otherwise identify themselves as immigration officials.

Moreover, the court, relying on the Supreme Court's opinion in INS v. Delgado, 466 U.S. 210 (1984), concluded that the fact that the agents were blocking the ramp while petitioners disembarked from the plane did not make the encounter a stop or seizure meriting 4th Amendment protections.  Just as Delgado had held that INS agents' presence at factory doors, in order to ensure that all persons inside the factories were questioned, was not a seizure, the agents' presence at the ramp here was not a seizure since the agents' conduct "should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Delgado at 218.

Although the court did not find a 4th Amendment violation in the case at hand, it did - citing its decision in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006) - acknowledge that, under Lopez-Mendoza, exclusion of evidence would be appropriate if record evidence established an egregious violation that was fundamentally unfair or a violation that undermined the reliability of the evidence in dispute.  The court also cited its decision earlier this year in Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) for the proposition that a seizure that was not especially severe might nevertheless qualify as an egregious violation if the stop were based on race.  The court left open the question of whether use of the INS Protocol in place - which used criteria including "Mestizo physical appearance" and choice of flight - would constitute an egregious violation warranting exclusion, declining to consider this question since petitioners had not been seized. The court noted:

In addition, although the IJ and IA both concluded that there was nothing unreasonable or egregious about the encounter between
petitioners and the immigration officials, the affidavit of the special agent in charge of the operation indicates that “[i]n determining who would be identified for questioning, the protocol dictated that
Agents look for passengers” who, inter alia, had a “Mestizo physical appearance.”

PFR denied. 

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Atty for petitioners: Jon E. Jessen, Stamford, CT

Bolante v. Mukasey (7th Cir. 8/27/08)

BAUER Kanne Williams

A Filipino asylum applicant was an Undersecretary in the Dept of Agriculture, accused by political opponents of the President of being part of a corruption scandal. The 7th Cir upheld the asylum denial, finding his fears not objectively reasonable, because his fears (and his supporting witnesses) were too vague. CtApp discussed prosecution vs. persecution distinction, and stated that even politically-motivated prosecution wouldn't be persecution if he were guilty of the corruption offense. But the holding of the CtApp is that there is no pending prosecution and no identifiable threat to Bolante - so PfR denied.

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Zhao and Duan v. Mukasey (9th Cir., 8/26/08, No. 07-75041)

REINHARDT, Berzon, Miner

     This married couple from the People's Republic of China applied for asylum/withholding/CAT based on membership in Falun Gong and their treatment by Chinese officials.  After denials at the IJ and BIA the couple appealed only the asylum denial.  The 9th Cir. found they had proven a well-founded fear of future persecution and that the IJ's denial of asylum was not supported by substantial evidence.

     Interestingly here the 9th Circuit said it did not need to determine whether the arrest, detention, battery, and threats of the police against petitioners, coupled with their paying a fine, being required to report to police, and travel restrictions was past persecution.  Earlier 9th Circuit cases had found there was an established pattern or practice of persecution by the People's Republic of China against Falun Gong members and therefore these petitioners had a reasonable fear of future persecution.  The 9th Circuit found petitioners eligible for asylum and remanded for a decision as to the exercise of the AG's discretion.

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Borrego v. Mukasey (7th Cir. 8/24/08)

MANION Ripple Bauer

An individual with an expedited removal order (for a post-97 false claim to USC) obtained a B-1 visa, without noting her prior removal or her prior fraud. She married a USC and applied for adjustment; denied for false claim to USC, reentry without prior permission to reapply. BIA found no nunc pro tunc authority to grant nonimmigrant waiver, per Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989). She only challenged the nunc pro tunc waiver issue.

The 7th Cir found the Board's interpretation of 212(d)(3), barring nunc pro tunc adjudication, "entirely sensible." Distinguished Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008), because that involved someone applying for admission at POE, so the 212(d)(3) waiver wouldn't have been retroactive or nunc pro tunc. Also, Borrego's use of false name at consular interview prevented consulate from discovering her past expedited removal order.

[CR - but why wouldn't the entire case be dismissed as harmless error? A post-96 false claim to USC is a non-waiveable ground of inadmissibility, who cares whether she could get retroactive permission to reapply? It's a purely advisory opinion...]

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