Mehmeti v. Holder, No. 08-15865 (11th Cir. June 25, 2009) 

Dubina, Kravitch, and Pryor (per curiam) 

Ritvan Mehmeti, a native and citizen of Albania, appealed the IJ’s decision denying his application for asylum, withholding of removal and protection under CAT.  The BIA affirmed. 

In his PFR, Mehmeti argued the following: (1) the IJ erred when it found that Mehmeti did not have a well-founded fear of persecution because the country conditions in Albania had changed, (2) the IJ should not have relied solely on U.S. Department of State reports to make that determination, (3) the BIA should not have denied his asylum request based solely on the severity of his part persecution, and (4) the BIA failed to show that, if returned to Albania, Mehmeti would less likely than not be tortured. 

The Court noted that while “[a]n applicant who has demonstrated past persecution is presumed to have a well-founded fear of future persecution,” this presumption “can be rebutted by a showing that ‘[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution’ or the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality.”  Without citing the record or the BIA’s opinion, the Court concluded that “substantial evidence supports the BIA’s determination that changed country conditions in Albania negated the presumption that Mehmeti had a well-founded fear of persecution in Albania.” 

Next, the Court examined Mehmeti’s claims based on “humanitarian asylum.”  Described in 8 C.F.R. § 1208.13(b)(1)(iii), humanitarian asylum is available to applicants without establishing a well-founded fear of future persecution if “(A) The applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or (B) The applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”  Here, the Court deferred to the BIA’s requirement that applicants for humanitarian asylum show “severe harm” and “long-lasting effects.”  According to the Court, other circuits had reserved humanitarian asylum “for the most extraordinary cases” (giving, as examples, the German Jews, survivors of the Cambodian genocide, and victims of the Chinese “Cultural Revolution”).  The Court concluded that Mehmeti had failed to show sufficiently severe past persecution with long-lasting effects. 

Finally, the Court denied Mehmeti’s CAT claim based on the BIA’s finding that he did not show that it was more likely than not that he would be tortured if returned to Albania.  The Court reasoned that “[i]f an alien cannot establish a well-founded fear of persecution, the alien also cannot establish that it is more likely than not that he will be tortured based on a protected factor.

Read opinion here.

U.S. v. Cruz-Rodriguez, No. 07-4083 (10th Cir. June 24, 2009)  

O’Brien, Tymkovich, and HOLMES

Arturo Cruz-Rodriguez was convicted for illegal reentry in violation of 8 U.S.C. § 1326 and sentenced to seventy-seven months in prison.  He appealed to the Tenth Circuit based on the ground that the district court impermissibly expanded the scope of the indictment through a jury instruction.  The Court affirmed, however, finding that Cruz-Rodriguez had effectively waived this argument though his litigation strategy. 

Cruz-Rodriguez, through legal counsel, objected to a proposed jury instruction which stated in part: “If you find that the defendant was deported from the United States at any time prior to July 10, 2006, the [prior deportation] element [of the offense] is met.”  The district court overruled the objection because the date of the deportation is not an element of the offense.  The government also planned to call an expert witness to testify that Cruz-Rodriguez’s fingerprints matched a warrant of deportation dated May 20, 2002, from his A-file.  The district court rejected Cruz-Rodriguez’s motion in limine arguing irregularities in the warrant of deportation and admitted the warrant under the public records exception to the hearsay rule. 

Cruz-Rodriguez’s counsel conceded during his opening statement that his client had been previously deported, hoping to focus the jury on whether the government had proved that Cruz-Rodriguez was not a citizen of the U.S.  After opening statements, Cruz-Rodriguez and the government entered into a factual stipulation wherein they agreed, among other things, to the fact that: “Defendant was deported on June 10, 1988, March 8, 1993, January 24, 1997, and May 31, 2002.”  Additionally, Cruz-Rodriguez’s counsel agreed that the jury instruction could be amended to state that the jury “must consider [the prior-deportation element] proven.” 

After the jury returned with a conviction, Cruz-Rodriguez appealed, arguing that the jury instructions constructively amended the indictment by requiring only proof of deportation “prior to the time of the offense alleged in the Indictment,” instead of proving the indictment’s specific charge of deportation on May 31, 2002.  The instructions did not require the jury to specify upon which prior deportation it was resting its finding.  Thus, it was possible that the jury had convicted Cruz-Rodriguez of a crime with which he was not charged, in violation of his Fifth and Sixth Amendment rights. 

The Court declined to review the merits of Cruz-Rodriguez’s constructive-amendment argument, concluding instead that Cruz-Rodriguez had waived appellate review by stipulating to the fact of his prior deportations, including the deportation charged in the indictment, and agreeing to the court’s instructions.  The Court pointed out that the amended jury instruction, to which Cruz-Rodriguez had agreed, effectively took away the jury’s obligation of making any finding on the prior deportation element at all, and instead deemed the element proven.  Because Cruz-Rodriguez had waived the challenge by stipulating to the jury instructions, rather than forfeiting the argument through neglect, the Court was without power to review the district courts decision.  Decision affirmed.

Read opinion here.

Yu v. U.S. Attorney General, No. 08-16068 (11th Cir. May 27, 2009) 

Birch, Carnes, Pryor (per curiam) 

Petitioner, De Quan Yu, is a native of China.  Yu applied for asylum, withholding of removal, and protection under CAT on account of the forced abortion and sterilization of his wife.  The IJ denied Yu’s claims and the BIA affirmed. 

After the birth of their first daughter, Yu’s wife was forced to insert an intrauterine device.  Despite the device, she became pregnant again, but was forced to undergo an abortion.  When she had a second daughter the authorities tried to arrest Yu, but the couple fled in order to avoid the sterilization of Yu’s wife.  Yu then fled to the U.S alone.  Shortly thereafter, Yu’s wife gave birth to their third daughter and was arrested, forcibly sterilized, and fined a registration fee.  Yu believed that he would be imprisoned and fined upon his return to China for leaving illegally. 

The BIA reversed the IJ’s adverse credibility finding against Yu and remanded.  The IJ again found Yu not credible and denied his claims once more.  This time, the BIA dismissed the appeal, but based its dismissal on an intervening precedential decision, Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), which requires the spouse to show that he himself suffered persecution or has a well-founded fear of suffering future persecution for failure or refusal to undergo a forced abortion or sterilization, or otherwise resisting a coercive population control program.  The BIA decided that Yu did not meet any of those requirements.  

The Court reviewed Yu’s claim that the BIA’s retroactive application of Matter of J-S- violated his due process rights and that he was entitled to per se refugee status due to his wife’s forced abortion and sterilization according to 8 U.S.C. § 1101(a)(42)(B).  In two previous cases, In re C-Y-Z-, 21 I  & N. Dec. 915 (BIA 1997), and In re S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), the BIA had held that past persecution of one spouse can be established by coerced abortion or sterilization of the other spouse, as long as the spouses were legally married.  These cases were overruled in 2008 by Matter of J-S-, wherein the Attorney General asserted that “spouses are not entitled to the same per se refugee status that [§ 1101(a)(42)(B)] expressly accords persons who have physically undergone forced abortion or sterilization procedures.”  

Following in the steps of the Second and Third Circuits, the Court rejected automatic refugee status for the spouse of a woman who has undergone a forced abortion or sterilization.  The Court reasoned that the plain language of § 1101(a)(42)(B), particularly its use of the word “person,”: 

clearly and unambiguously reflects Congressional intent to protect only the person who: (1) physically underwent the forced abortion or involuntary sterilization, (2) was persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program, or (3) has a well-founded fear of being forced to undergo such a procedure or being persecuted in the future for such failure, refusal, or resistance.

The Court would have also applied Chevron deference to Matter of J-S-, finding that the Attorney General’s interpretation of the statute was not arbitrary, capricious, or clearly contrary to the law. 

Finally, the Court rejected Yu’s claim that Matter of J-S- was improperly applied retroactively.  Instead, the Court said, the BIA was merely applying what the law had always meant, now clarified by the AG, and did not impair any vested right.  Because Yu did not meet the requirements of Matter of J-S- he was not entitled to per se refugee status.

Read opinion here.

Kueviakoe v. U.S. Attorney General, No. 08-11359 (11th Cir. May 12, 2009) 

Marcus, Kravitch, and Anderson (per curiam) 

Petitioner, Messan Amen Kueviakoe, is a native of Togo who arrived in the United States on an F1 student visa.  Just two weeks after the one-year application deadline, Petitioner filed for asylum, withholding of removal and protection under CAT, on account of persecution and torture he suffered because of his political opinion.  At a hearing before the IJ, Petitioner withdrew his asylum application but continued to seek withholding and protection under CAT.  The IJ denied his remaining applications based on an adverse credibility determination and the BIA affirmed.  The Eleventh Circuit found the BIA’s credibility determination unsupported by its rationales and therefore granted Petitioner’s petition and remanded. 

U.S. v. Bautista-Silva, No. 08-13803 (11th Cir. May 11, 2009) 

PRYOR, Farris, and Barkett (dissenting)  

The government appealed from the district court’s decision to grant Defendant-Appellee Juan Bautista-Silva’s motion to suppress all statements and physical evidence obtained as the result of a stop.  The district court determined that the immigration agent lacked reasonable suspicion to stop the vehicle Bautista-Silva was driving along a portion of the interstate in South Florida.  The Court reversed and remanded, concluding that “the agent’s decision to stop the vehicle was based on specific and articulable facts that, viewed cumulatively and in the light of the agent’s extensive experience, created a reasonable suspicion of illegal activity.” 

Alzainati v. Holder, No. 07-9565 (10th Cir. June 17, 2009) 

O’BRIEN, Brorby, and McConnell 

Petitioner, Khaled FM Alzainati, is a native of Jordan and entered the U.S. in 1991 on a B-2 visitor visa with his wife and two sons.  His third son, Jawad, was born in the U.S. that same year.  Alzainati and his family never returned to Jordan. 

When DHS attempted to remove him in 2003, Alzainati filed for non-LPR cancellation of removal under 8 U.S.C. § 1229b(b)(1), asserting “exceptional and extremely unusual hardship” to his U.S.C. son, Jawad.  Alzainati claimed that Jawad would have difficulty adapting to Jordan because he was not sufficiently schooled in Arabic, he would encounter anti-American sentiment, it would be difficult to find eye care for his nearsightedness and medications for his recurrent skin rashes, and Alzainati would have a hard time finding work to pay for such care even if it were available. 

The IJ denied Alzainati’s cancellation application, stating that he had not met his burden of showing exceptional and extremely unusual hardship to Jawad.  The BIA affirmed. 

Lemus-Losa v. Holder (7th Cir. 8/13/09)

WOOD Flaum Williams

Lemus-Losa entered EWI in 1998, and stayed in the US about two years, before departing and then returning EWI in 2003.  His father had filed an I-130 petition for him, and when he was put into removal proceedings, he sought to adjust under 245(i).  His case was continued to let the PRD become current, but then when it delayed, the IJ refused to continue it further.  He found Lemus-Losa ineligible for 245(i) adjustment, because of inadmissibility under INA 212(a)(9)(B).  The BIA agreed in a published decision, Matter of Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007), which was issued on the same day as Matter of Briones, 24 I. & N. Dec. 355 (BIA 2007) (finding that 245(i) does not trump inadmissibility under INA 212(a)(9)(C)(i)). The Board's reasoning was similar in the two cases.

[CR: of course, the real oddity here is that the facts surely indicate that Lemus-Losa was inadmissible under 212(a)(9)(C), not just 212(a)(9)(B). He had reentered EWI after more than a year inside the US.  But the IJ botched it up, the BIA really botched it by issuing a published decision.  One would have thought that the adjustment cases where INA 212(a)(9)(B), but not 212(a)(9)(C), would apply would be where the individual was admitted or paroled upon return to the US after a 1yr+ unlawful sojourn.]

The 7th Cir found that the difference between 212(a)(9)(B) and 212(a)(9)(C) must mean something.  It notes the odd language in 212(a)(9)(B), which might suggest that someone has to have previously sought "admission" to trigger 212(a)(9)(B).  But it principally considered whether the Board's rationale - that 212(a)(9)(B) was "punitive" and thus barred 245(i) - was rational.  The CtApp said that it would find the Briones decision rational, but not Lemus.

If the question before us were the same as the one that our sister circuits have confronted—namely, the relation between § (C)(i)(I) and § 1255(i)—we would agree that there is sufficient ambiguity in these provisions to require Chevron deference, and we would find that the BIA has drawn a rational line. But our issue is not the same. We must decide instead whether the BIA was entitled to equate aliens inadmissible under § (C)(i)(I) and aliens like Lemus-Losa who are inadmissible under § (B)(i)(II).

But 212(a)(9)(B) is pretty much like 212(a)(6)(A), in penalizing only the initial EWI.  And clearly, 245(i) can't literally mean that anyone who is inadmissible is barred from relief, because that would include everyone. 

The word “admissible” in that provision cannot mean something like “not inadmissible for any reason.” If it did, then no one would be eligible for adjustment of status under the LIFE Act, and the absurd situation that Lemus-Losa feared would come to pass. It must instead refer to a subset of the aliens who are inadmissible under the statute. In other words, the effect of the LIFE Act is to permit adjustment of status for a certain group of otherwise inadmissible aliens, and to draw a line between those whose ground of inadmissibility does not preclude a finding that the person is “admissible to the United States for permanent residence” and those whose ground of inadmissibility does preclude such a finding.

Here is where the difference between § (B)(i)(II) and § (C)(i)(I) becomes important. Anyone who is categorically inadmissible at the time he or she files for LIFE Act adjustment cannot receive relief under the Act. That group would include everyone from aggravated felons to those who have attempted on more than one occasion to enter the United States illegally—the recidivists described by § (C)(i)(I). But if someone is “seeking admission” to the United States on that second occasion and has thus demonstrated that he is willing to play by the rules, he is no different from the alien who is physically present in the United States “without inspection” but who is entitled to apply for LIFE Act relief. This interpretation gives deference to the Board’s Briones decision, which construes § (C)(i)(I), while at the same time it takes into account the difference in statutory language that we find in § (B)(i)(II).

[CR: This CtApp decision is sound, but it seems advisory under the facts of this case. If the Board had taken a few minutes, it would have realized that Briones disposed of this case.  The poor quality of the BIA decision (and the IJ decision, but I believe he was a political appointee) is just weird.  One expects poor quality BIA decisions which are unpublished; one is not surprised when the Board reaches a wrong result by overemphasizing one point and underemphasizing another.  But this case just seemed to blow it.  It reminds me of the more recent Almanza decision - where the Board appeared to say that all moral turpitude convictions, even misdemeanors, were covered by INA 237(a)(2)(A)(i), which just made no sense.  In both cases, the Board seems to have decided that it wanted to reach a particular issue, and then looked for a vehicle to issue a decision - and in both cases, it picked an inappropriate vehicle.  Aside from the prejudgment issues that suggests, what does it say about the allegedly increased ability of Board members to analyze published decisions, which was supposed to result from rubberstamping unpublished decisions?]

Read decision here: 

Liu v. Holder (2d Cir. August 5, 2009)

JACOBS, Parker, Wesley

The 2d Circuit denied this petition for review of a Chinese asylum seeker who sought asylum/withholding/CAT (pre-REAL ID) based on his participation in the June Fourth Movement from 1989 to 1991 and on his pro-democracy activities between 2001 and 2003.  Petitioner did not submit any documentary evidence in support of his claim.  As Petitioner did not challenge the pretermittance of his asylum application and did not argue for CAT on appeal, the Court only addressed withholding of removal.  The Court first found that any claim by Petitioner had to be based only on his more recent activities, as there had been a fundamental change in circumstances since his participation in the June Fourth Movement.  The Court then addressed whether it was error for the IJ and BIA to deny Petitioner’s application on the ground that he failed to meet his burden of establishing eligibility for withholding because of his failure to bolster inconsistent testimony with corroborating evidence.  The Court found that it was not.  Moreover, the Court found that the IJ did not err in pointing to missing corroborating evidence during – and not prior to – his decision.

 Ramirez-Peyro v. Holder, No. 08-2657 (8th Cir. August 4, 2009)

 Murphy, MELLOY, and Shepherd

 The BIA has twice reversed the IJ’s CAT grant for Mr. Ramirez-Peyro.  Now, for the second time, the Eighth Circuit has vacated the BIA’s decision and remanded.

 Mr. Ramirez, formerly a member of the Mexican highway police and formerly involved in drug-trafficking, worked as an informant for U.S. Immigration and Customs Enforcement.  He helped arrest approximately 50 people involved in the Mexican drug-trafficking trade.  He also worked with the Mexican government to incriminate members of the cartel.  There have been two attempts on his life since he has worked with the U.S. government.  The U.S. granted him immunity and placed him in protective custody, isolating him from members of the prison population that may wish to harm him based on his informant work.  The IJ did not determine Mr. Ramirez was offered immunity from the Mexican government and the IJ found that there is no effective witness protection for Mr. Ramirez in Mexico.

 The Court first remanded (see Ramirez-Peyro v. Gonzales, 477 F.3d 637 (8th Cir. 2007)) for factual finding about Mr. Ramirez’s ability to relocate in Mexico and the Mexican government’s acquiescence.  After hearing evidence on these issues the IJ granted CAT.  The BIA vacated, holding that if public officials acquiesce in the drug cartel’s use of torture it would not be “under the pretense of law” but would be because they were “following a purely personal pursuit.”   

 The Eighth Circuit unpacked the meaning of torture inflicted with “with the consent or acquiescence of a public official or other person acting in an official capacity” 8 C.F.R. § 1208.18(a)(1).  The Court did not disagree with BIA that “official capacity” is analogous to “under color of law.”  But the “BIA misunderstood and misapplied the parameters of ‘under color of law.’”  “To find whether an official acts under color of law, we look to see whether a sufficient nexus exists between the official’s public position and the official’s harmful conduct.”  The nexus inquiry “includes considerations such as whether the officers are on duty and in uniform, the motivation behind the officers’ actions, and whether the officers had access to the victims because of their positions, among others.”  The Court found the at the BIA applied too narrow a definitions of “under color of law.” 

 Mr. Ramirez fears harm from Mexican officials; he also fears that Mexican officials would turn him over to the cartel.  The Court found that “it is the precise authority with which the Mexican government vests these police officers that provides them with the means and opportunity to harm people such as Ramirez.”  The Court emphasized that even though “the upper echelons” of the Mexican government oppose “corruption and collusion with the drug cartels,” Mexico may still be held “responsible for the acts of its officials, including low-level ones” under CAT.

 In a footnote, the Court explained its denial of the government’s motion to strike Mr. Ramirez’s reply brief.  The Government claimed that Mr. Ramirez waived the issue of the Mexican government’s failure to offer him immunity by not raising it in his initial brief.  The Court found that the opening brief “necessarily  incorporate[d] a challenge to the BIA’s factual finding that he had immunity” and cited Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006) where it had considered a reply brief argument when it “supplemented an argument raised in a party’s initial brief.”

 In conclusion, the Court criticized the BIA’s admonishment of Mr. Ramirez’s previous drug cartel involvement before he became an informant.  The BIA had stated that Mr. Ramirez had “courted the risk through his own actions.”  The Court stated that “the violence Ramirez-Peyro faces, if anything, is an occupational hazard of working on behalf oc the U.S. government.”

 Read the opinion here…

Lovan v. Holder, No. 08-2177 (8th Cir. July 31, 2009)

 LOKEN, Melloy, and Benton

Mr. Lovan was convicted by a jury in 1991 of sexual abuse of a minor.  At the time he was convicted, he was not deportable as an aggravated felon because his crime did not then fall within the statutory definition of an aggravated felony.  In 1996, with the passage of the Illegal Immigration Reform and Responsibility Act (IIRIRA), Congress amended the aggravated felony definition to include “sexual abuse of a minor” and made the definition applicable to convictions prior to its enactment.

Mr. Lovan left the country in 2002 and was re-admitted a month later.  He applied for naturalization later that year.  The Service responded by issuing an NTA charging him as removable as an aggravated felon.  Mr. Lovan applied for a waiver of deportation under former INA § 212(c).  IIRIRA repealed 212(c).  However, the Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 314-26 (2001) that prohibiting aliens who became eligible for 212(c) by pleading guilty prior to the statute’s repeal would have an impermissible retroactive effect.  The Court noted that there is a circuit split on the question of whether St. Cyr also applies to aliens convicted by juries.  The Court agreed with the Third Circuit’s reasoning in Atkinson v. Attorney General, 479 F.3d 200 (3d Cir. 2007) and determined St. Cyr should also apply to Mr. Lovan.

The plain language of 212(c) allowed excludable (today deemed “inadmissible”) to apply for relief.  Equal protection concerns eventually led to the opportunity for deportable (today deemed “removable”) aliens to apply for 212(c) relief if the alien was deportable “on a ground which does not have a statutory counterparty in section 212 of the Act.”  8 C.F.R. § 1212.3(f)(5).  (This is a short version of a long story: the history of 212(c) relief is explained in detail in the Court’s opinion.) 

The major question the Court addressed was whether Mr. Lovan’s case should be determined by the BIA precedent and Circuit adherence to Matter of Blake, 23 I&N Dec. 722 (BIA 2005) or by Matter of G-A-, 7 I&N Dec. 274 (BIA 1956) and Matter of L-, 1 I&N Dec. 1 (A.G. 1940).  The Court found that facts of Mr. Lovan’s case were analogous to the facts underlying the reasoning in Matter of G-A-.  In G-A-, an LPR was admitted after traveling despite being excludable for a prior criminal conviction.  The INS then sought his deportation.  Exercising its 212(c) discretion after the fact, the BIA ordered that the alien be “regarded as having been lawfully admitted to the United States for permanent residence… notwithstanding his inadmissibility at that time.”  Id. at 275. In Blake, the BIA held that Mr. Blake’s deportable charge of “sexual abuse of a minor” does not have a statutory counterpart in the INA’s inadmissibility grounds, therefore rendering Mr. Blake ineligible to apply for 212(c) relief.  The Court distinguished G-A- from Blake because G-A- was intended to provide 212(c) relief to an “excludable LPR who temporarily left the country, reentered while immigration officials overlooked his excludability, but then was placed in deportation proceedings based on the conviction that made him excludable.”  The Court’s opinion invites the BIA on remand to explain why Blake and not G-A- and Matter of L- apply to Mr. Lozan’s case, but the Court held that the G-A- and L- opinions “were never overruled, nor were they expressly made subject to the statutory counterpart doctrine.”

The Court upheld the BIA’s denial of Mr. Lovan’s withholding and CAT claims.