Rotimi v. Holder (2d Cir. 08/14/09, no. 06-0202-ag)

Feinberg, Newman, Katzmann (Per Curiam)

The 2d Circuit denied this petition for review, according Chevron deference to the BIA’s interpretation of “lawfully resided continuously” as used in INA § 212(h) and finding reasonable the Board’s finding that the time period during which Petitioner’s applications for asylum (later abandoned) and then AOS (he adjusted) were pending did not constitute lawful residence and that Petitioner’s lawful residence began when he became an LPR.  The Board distinguished between having applied for a privilege and having been lawfully accorded that privilege, stretching for support from legislative history, the dictionary, and case law (In re Lok, 18 I&N Dec. 101 (BIA 1981); Tim Lok v. INS, 681 F.2d 107 (2d Cir. 1982).

Judge Newmann concurred in a separate opinion, agreeing that the judicial branch had no authority to render Petitioner eligible for 212(h) relief but suggesting that the legislative or executive branch act in Petitioner’s favor.  Judges Katzmann and Feinberg issued an additional concurrence in which they stated that on a clean state they would have interpreted “lawfully resided continuously” to include the period during which Petitioner’s applications for asylum and AOS were pending, thus rendering Petitioner eligible for a 212(h) waiver.  Judges Katzmann and Feinberg pointed out that, under the Board’s decision, whether somebody qualified under 212(h) could depend on something as arbitrary as application processing time.  They also pointed out that – unlike the case law cited by the Board – there has not been a time where Petitioner could even be removed from the U.S. given his nonimmigrant status following by his pending applications, a crucial difference from that case.

Atty for Petitioner: Daniel Shabasson, Pollack, Pollack, Isaac & DeCicco, Esqs., New York, NY.

Read opinion here.

Tang v. U.S. Attorney General, No. 08-12212 (11th Cir. Aug. 11, 2009) 

WILSON, Kravitch, and Anderson  

Lin Lin Tang, a native of China, applied for asylum, withholding of removal, and protection under CAT due to persecution on account of her religious beliefs.  She petitioned the Court for review of the BIA’s order dismissing her appeal of the IJ’s denial of her application.  The petition was denied in part because the evidence in support of her due process claim was untimely filed, but granted in part where certain adverse credibility findings by the IJ and BIA were factually incorrect.  The Court vacated and remanded for further proceedings. 

Lanferman v. BIA (2d Cir. 08/05/09, no. 06-3432-ag)

Kearse, Straub, Pooler (Per Curiam)

The 2d Circuit granted this petition for review, finding itself bound by its decision in James v. Mukasey to remand to the BIA to decide whether section 120.14 of New York Penal Law, menacing in the second degree, is divisible under the modified categorical approach such that Petitioner is removable for having been convicted of a firearms offense. The court also referred to the Supreme Court’s decision in Nijhawan but declined to apply it, finding that the Supreme Court’s analysis there did not change the divisibility analysis here or the validity of the categorical approach in general. Circuit Judge Kearse dissented.

Alhaj v. Holder (6th Cir. 7/10/09) (publication order entered 8/7/09)

DAUGHTREY, Rogers, Kethledge

Mr. and Mrs. Alhaj are Yemenis seeking asylum on account of love.  Mrs. Alhaj had been forced by her family to marry a much older man, whose first wife could not bear children.  Mr. Alhaj noticed that she seemed persecuted.  They began an illicit affair, which was detected.  Eventually, she became pregnant, and they fled (separately) to the US.  They called the 1st husband and he granted a divorce; but he would kill them if they returned to Yemen. 

1.  IJ denied VD on grounds that he didn't have a visa to go to any country other than Yemen, and he didn't want to go there.  CtApp upheld the VD denial, because IJ was within his authority to require proof that he could lawfully enter any other country (per the regulations, 8 C.F.R. § 1240.26(c)(2) (2008)).  Note that 1252(a)(2)(D) restored jurisdiction over this legal argument, notwithstanding 1252(a)(2)(B)(i) (stripping jurisdiction over VD denials).

2.  The CtApp found that husband (and wife) weren't being persecuted on account of a Particular Social Group (PSG), but because of the affair.

Alhaj suggests that his wife is a member of such a group – the group of young women forced to marry older men – and that his association with his wife results in his membership in the group as well. Without regard to whether such a grouping would even meet the criteria of “a particular social group” entitled to protection under the Immigration and Nationality Act, see, e.g., Castellano-Chacon v. INS, 341 F.3d 533, 546 (6th Cir. 2003) (defining “the term ‘particular social group’ as composed of individuals who share a ‘common, immutable characteristic’”), or whether Alhaj’s attempted formulation of a transitive property of persecution is valid, the fundamental basis of the petitioner’s argument in this regard is so flawed that it dooms his prospects for success on the issue.

As noted by the government, any persecution suffered by or threatened toward Alhaj is not the result of either Ekhlas’s first marriage or of the petitioner’s opposition to the  practice of older Yemeni men forcing younger women to marry them. Instead, the purported violence displayed toward Alhaj by Ekhlas’s ex-husband is solely in the nature of a personal vendetta against the petitioner for carrying on an affair and conceiving a child with his then-wife.

Isn't this really about love?  This woman was forcibly married to an older man, and held there by fear.  These two fell in love, and face severe repercussions from that, due primarily to Yemeni society's treatment of marriage.  Because she had been married to the older man, society will let him seek to punish the young couple.  But that happened because Yemeni women are forced to marry, and forced to marry older men.  The nexus is not as direct as it might be, but the persecution seems directly linked to that cause. 

3.  The CtApp denied CAT relief on nonsensical grounds. The ex-husband is a powerful man in Yemen, powerful enough to arrange for the detention of his ex-wife's father (though local govt officials secured his release within a few days). But, says the CtApp:

The potential harm that might be visited upon Alhaj upon his return to Yemen does not constitute “torture” under the Convention because it does not originate from pain or suffering either initiated by a public official or inflicted with the consent or acquiescence of such an official. Furthermore, even though Alhaj asserts that his wife’s ex-husband is a powerful man within Yemen, it is also true that when that ex-husband allegedly arranged for the detention of Ekhlas’s father, government officials intervened and released Alhaj’s father-in-law unharmed after two or three days of incarceration. Any such treatment by a nongovernmental entity, rectified by official government actors, does not constitute torture under the Convention Against Torture and, thus, does not entitle the petitioner to the relief he now seeks.

First, if Alhaj were caught and beaten/killed/imprisoned by the ex-husband, with the acquiescence of local authorities, why wouldn't that "originate" from pain inflicted with the consent or acquiescence of public officials?  Second, why does the fact that the ex-wife's father was released unharmed after two days suggest that he would be similarly unharmed?  Wouldn't the spurned lover be likely to be angrier at the man who seduced his wife than at the ex-wife's father?  And why would such action, if "rectified" by official govt actors, not constitute torture? 

Read opinion here: 

Kazemzadeh v. U.S. Attorney General, No. 08-12857 (11th Cir. Aug. 6, 2009) 

Marcus, PRYOR, and Edenfield 

Hani Kazemzadeh is an Iranian who converted from Islam to Christianity while in the U.S.  He applied for asylum, withholding of removal, and CAT because he feared persecution upon returning to Iran, where apostasy is punishable by death.  

In Iran, Kazemzadeh had been actively involved in student demonstrations in favor of freedom of religious expression.  At one point, he was arrested and detained by the authorities and allegedly interrogated, beaten, tortured and denied access to his family and an attorney.  He was summoned by the disciplinary committee of his university and stopped attending for fear of being arrested once more.  After being expelled from the university, Kazemzadeh traveled to Germany to apply for a U.S. visa.  He returned to Iran, but soon thereafter received a subpoena to appear in court.  Hoping that things would cool down, he traveled to the U.S. and was convicted in absentia of being an agitator against Iran.  He was sentenced to six years in prison. 

Herrera-Castillo v. Holder, No. 08-9538 (10th Cir. July 27, 2009)

Lucero, TYMKOVICH, and Holmes

Herrera, a native of Mexico who entered without inspection, claimed eligibility for adjustment of status under INA § 245(i) based on his April 2001 marriage to a U.S. citizen.  The IJ found Herrera inadmissible for 10 years under INA § 212(a)(9)(B)(i)(II) as an alien unlawfully present for more than one year. Even though the court concluded that Herrera was ineligible for adjustment of status under § 245(i), it granted a waiver of inadmissibility due to extreme hardship to Herrera’s wife and child.  The government appealed, and the BIA affirmed the IJ’s determination that Herrera was inadmissible and therefore ineligible for AOS. In addition, the BIA also reversed the IJ’s determination that Herrera qualified for an inadmissibility waiver. 

The interplay between § 245(i) and inadmissibility caused by more than one year of unlawful presence was a matter of first impression before the Court. The Court of Appeals deferred to the BIA’s interpretation that aliens inadmissible due to unlawful presence do not qualify for § 245(i) AOS, absent a waiver, as articulated in Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007).  Noting the ambiguity inherent in § 245(i)—it allows EWIs to apply for AOS, yet permits the AG to adjust the status only of those deemed admissible—the Court found reasonable the BIA’s interpretation that the statute grants an implicit waiver of inadmissibility, but only for those encompassed by the § 212(a) “savings clause.”  The clause states that “[e]xcept as otherwise provided in this chapter, aliens who are inadmissible . . . are ineligible . . . to be admitted to the United States.”  The BIA held that § 245(i) falls within the scope of the savings clause.  However, the BIA concluded that for the more specific sections of § 212(a), including the penalty for accruing more than one year of unlawful presence, § 245(i) does not ordinarily permit AOS.  The BIA justified its disparate treatment of the § 212(a) provisions by noting that the purpose of the unlawful presence provision was to punish those who were more than simply present in the U.S. without being admitted.  The Court found that the BIA’s interpretation was not arbitrary, capricious, or manifestly contrary to the statute. 

Finally, the Court dismissed Herrera’s equal protection claim as waived for failing to comply with FRAP 28(a) and declined to address, for lack of jurisdiction to review, the BIA’s decision to deny Herrera’s request for an extreme hardship waiver.

Read opinion here.

Ovalles v. Holder (5th Cir. 7/27/09)

Garwood, Owen, Haynes (Per Curiam)

The Petitioner in this case was placed in removal proceedings in 2003 on the basis of a single conviction for attempted possession of a controlled substance.  The IJ found him removable, but granted cancellation.  On appeal, the BIA found that the offense was an agg. felony, and ordered the Petitioner removed. No appeal from this decision was filed, and the Petitioner was removed to the Dominican Republic.

Two years later, the Supreme Court decided Lopez v. Gonzales, under which Petitioner’s crime was not an agg. felony.  A few months afterward, Petitioner filed a Motion to Reopen or Reconsider Sua Sponte.  The BIA denied the motion based on the 8 C.F.R. § 1003.2(d), which bars motions to reopen after the alien has left the Unite States.  In this appeal, the Petitioner raised a host of challenges to § 1003.2(d), all of which the Fifth Circuit shot down.

First, the Petitioner argued that the regulation was ultra vires, since INA §§ 240(c)(6)(A) and (7)(A) unambiguously provides an alien with one opportunity to reconsider or reopen a case. The Court engaged in a lengthy summary of the general issue. It then sidestepped the issue by deciding the Petitioner couldn’t invoke §§ 240(c)(6)(A) or (7)(A), since he was over the 30 and 90 day time limits specified in those sections – even if the period had been tolled until Lopez v. Gonzales was decided.

Second, the Petitioner argued that the post-departure bar was trumped by 8 C.F.R. § 1003.2(a), which gives the BIA sua sponte authority to reopen or reconsider cases. This argument was already foreclosed by Navarro-Miranda, 330 F.3d 672 (5th Cir. 2003), in which the Court had upheld the BIA’s interpretation of § 1003.2(a) as not encompassing § 1003.2(d).

Third, the Petitioner argued that the BIA has acted arbitrarily and capriciously in applying § 1003.2(d) to him.  He cited a slew of cases overturning the post-departure appeals bar under 8 U.S.C. § 1105a(c) (repealed 1996), but the Fifth Circuit had already rejected this line of cases in Quezada v. INS, 898 F.2d 474 (5th Cir. 1990).

Fourth, the Petitioner asserted that § 1003.2(d) didn’t apply to his case, since the statute is phrased in the present tense: “…a person who is the subject of deportation proceedings subsequent to his departure.”  Since he no longer “is” subject to removal proceedings, he argued the bar shouldn’t apply to him.  Or at least, the bar should only to apply to people who depart while removal proceedings are pending – an argument which the Ninth Circuit has adopted. Lin v. Gonzalez, 473 F.3d 979 (9th Cir. 2007).  The Court however found the former reading of § 1003.2(d) illogical, since nobody who “is” the subject of removal proceedings can file a motion to reopen or reconsider.  And the latter interpretation is inconsistent with Navarro-Miranda.

Finally, the Petitioner invoked due process – the last refuge of the scoundrel.  The Court acknowledged that aliens in removal proceedings do have due process rights, Landon v. Plasencia, but found these rights did not extend to the Petitioner’s situation, since he had already departed and received a fair hearing on the merits. A change in law does not create a constitutional right to reopen one’s removal proceedings.  The Government’s interest in finality outweighs whatever liberty interest the Petitioner had in returning to the U.S.

Read the Opinion Here

Witjaksono v. Holder, No. 08-9540 (10th Cir. July 23, 2009) 

Baldock, LUCERO, and McConnell 

Humphrey Sarwono Witjaksono and his wife Ligiowati are Indonesian nationals of Chinese descent, and practicing Catholics.  They have three children, including one who is a U.S.C.  After overstaying their visas, Witjaksono applied for asylum, withholding of removal, and CAT (with his wife as a rider on his application).  Witjaksono testified to violence and harassment suffered by his family due to being ethnically Chinese and Catholic, including one incident where an Indonesian soldier blocked Witjaksono’s car and then punched him three times while insulting him for being Chinese.  The Immigration Judge denied all relief. 

Witjaksono appealed to the BIA and argued that the fifty-seven page transcript of the proceedings before the IJ—which contained 189 notations of “(Indiscernible)”—was inadequate, thereby denying him due process.  The BIA denied Witjaksono’s motion for remand and dismissed his appeal because it claimed that Witjaksono had failed to point to any material testimony omitted from the transcript that had adversely affected his application.  It also found that Witjaksono had failed to establish his claims of persecution. 

Upon review, the Court found it “well settled that an alien in an immigration proceeding is entitled to a reasonably complete and accurate record to facilitate appellate review.”  In fact, the Court noted, the government has a statutory (8 U.S.C. § 1229a(b)(4)(C)) and regulatory (8 C.F.R. § 1240.9) duty to completely and accurately record removal proceedings.  However, the Court held that the government’s failure to prepare an adequate transcript—in this case, the one produced was undeniably incomplete and oftentimes incomprehensible—does not rise to the level of a due process violation mandating reversal or remand unless prejudice is shown.  Here, because the omitted portions of the transcript were primarily Witjaksono’s own testimony and he had not attempted to fill the gaps through a sworn statement or affidavit, the Court found that the required showing of prejudice had not been met.  The Court pointed to the BIA’s regulations and Practice Manual, which both provide for supplementing a faulty transcript.  Given the available process, the Court declared that it was not unreasonable to expect that Witjaksono recreate the omissions. 

The Court further found that Witjaksono had not shown he suffered any injuries rising to the level of persecution.  It also deferred to the BIA for lack of jurisdiction to review claims as to a pattern or practice of persecution against Christian Indonesians or Indonesians of Chinese descent because Witjaksono had not challenged the IJ’s finding that this was not the case.  Finally, the Court remained unconvinced by Witjaksono’s CAT claim, finding the evidence not to show that the Indonesian government would torture Witjaksono or acquiesce to his being tortured. 

Read opinion here.

Arambula-Medina v. Holder, No. 08-9589 (10th Cir. July 10, 2009) 

Kelly, BRISCOE, Holmes 

Petitioner Luis Enrique Arambula-Medina sought review of the BIA’s denial of his non-LPR cancellation of removal application.  The Court, lacking jurisdiction, granted the government’s motion to dismiss, but not before reasserting that undocumented migrants have only minimal procedural due process constitutional rights. 

Arambula-Medina, a native of Mexico, entered the U.S. without inspection in 1991, along with his mother and two younger brothers.  While his mother and brothers became LPRs, Arambula-Medina remained without lawful status.  After receiving an NTA, Arambula-Medina requested non-LPR cancellation of removal pursuant to 8 U.S.C. 1229b(b), asserting that his removal would result in exceptional and extremely unusual hardship to his LPR mother, who suffers a heart condition and relies on her son to help care for her youngest children. 

The IJ denied Arambula-Medina’s application, maintaining that Arambula-Medina is actually more dependent on his mother than she is on him, and that she had the support of her husband and other sons.  The IJ also found that Arambula-Medina had family ties in Mexico, possessed “all the requisite skills and knowledge to succeed” in Mexico, and would be able to adequately communicate in Mexico because of his knowledge of Spanish.  The BIA affirmed the IJ’s decision without opinion. 

U.S. v. Gari, No. 08-10014 (11th Cir. June 30, 2009) 

Black, COX, and Tjoflat 

Defendants Gari and Rodriguez were convicted of thirty-four counts of alien smuggling for crewing a go-fast boat carrying Cuban nationals towards North Key Largo, Florida. 

The Court considered whether the Defendant's 6th Amendment confrontation rights were violated by the erroneous admission of I-213 (Record of Deportable/Inadmissible Alien) forms completed by CBP agents.  Also at issue were Defendants’ motions for acquittal on each count of the indictment, the admission of testimony by an ICE agent who previously encountered Gari under similar conditions, and Rodriguez’s request for a separate trial. Defendants were convicted of 34 counts of alien smuggling, and the Court affirmed the Defendant's convictions on all but one count and remanded for resentencing. 

After arresting Gari and Rodriguez, CBP agents interviewed the Cuban nationals they had tracked from the boat and completed I-213 forms for each of them.  Form I-213 is routinely completed by CBP agents whenever they apprehend someone and contains details about the apprehension, along with information about the results of any immigration records check.  Defendants challenged the I-213 forms as testimonial hearsay that could not be cross-examined.  The Government argued for admission of the forms based on the public records exception to the hearsay rule.  The Court held that the district court committed no reversible error in admitting the I-213 forms because any error in their admission was harmless beyond a reasonable doubt.  The Court reasoned that the I-213 forms contained only statements already testified to in court by law enforcement agents.  The Court thereby avoided a decision about whether or not the forms included testimonial hearsay. 

As to the other issues on appeal, the Court found the evidence sufficient to convict Gari and Rodriguez on all but one count.  Because the defense submitted proof of prior authorization for parole for one of the thirty-four migrants, the Court vacated Gari’s and Rodriguez’s sentence and remanded for resentencing.  The Court also found that the ICE agent’s testimony of Gari’s prior bad acts was properly admitted and that the district court’s denial of Rodriguez’s motion for severance of trials was not an abuse of discretion since the judge had provided a limiting instruction instead.

Read opinion here.