Miller v. Mukasey (8/21/08)

PER CURIAM Walker, Cabranes, Raggi

The 2nd Circuit considered this PFR in which petitioner argued that the procedure for reinstating a prior order of removal (1) is not authorized by statute, and (2) violated his right to due process.  The court disposed of both claims, relying heavily on its decision earlier this year in Garcia-Villeda v. Mukasey, 531 F.3d 141 (2nd Cir. 2008).  In addition to citing Garcia-Villeda, the court held that petitioner here, who had elected not to contest the predicate facts underlying the reinstatement order before the agency or in his petition (rather than conceding them as had the petitioner in Garcia-Villeda), could not claim that the procedures in place violated his due process rights.  Petition for review denied.

More below the jump.

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De Rincon v. DHS and De Rincon v. Mukasey (9th Cir. 8/21/08)

N.R. SMITH, Walker, Schroeder

     The 9th Cir. here consolidated for decision petitioner's habeas petition and petition for review and dismissed the appeal due to lack of jurisdiction.

     Petitioner had been issued an expedited removal order at the port of entry for a false claim to U.S. citizenship.  When she later sought to adjust her status based on marriage to a U.S. citizen she was arrested at the interview and issued a reinstatement of removal order.  She appealed and filed a habeas corpus petition; these two actions were consolidated.

     The 9th Cir. held it had no jurisdiction over the petition for review, stating:

This court does retain some limited jurisdiction to adjudicate a collateral attack on an underlying expedited removal order that has been reinstated; but §§ 1252(a)(2)(A) and 1252(e) expressly limit the scope of such review to habeas petitions alleging that the petitioner is not an alien or was never subject to an expedited removal order. See §§ 1252(a)(2)(A), 1252(e). De Rincon’s direct challenge to the reinstated removal order is not a habeas petition and it does not contest her expedited removal order on any of the enumerated permissible grounds in § 1252(e)—this court therefore has no jurisdiction to hear it.

     The 9th Cir. also dismissed the habeas petition:

this court lacks jurisdiction over de Rincon’s habeas petition collaterally attacking her expedited removal order, because de Rincon does not raise any of the three permissible bases for habeas review in this court allowed under 8 U.S.C. § 1252(e)(2). Id. (limiting this court’s habeas jurisdiction to review whether petitioner is an alien, whether she was subject to an expedited removal order, and whether petitioner is a lawful permanent resident or has been granted asylum). De Rincon does not challenge her expedited removal order on any of the approved grounds; consequently, this court does not have jurisdiction over the particular collateral attack presented in de Rincon’s habeas petition.

     Finally, the 9th Cir. rejected petitioner's request to transfer the habeas petition back to the district court, saying that although her request was in the nature of a Suspension Clause argument, case law precedents mandated the dismissal of her habeas petition.

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Castro de Mercado v. Mukasey (9th Cir. 8/21/08)

O'SCANNLAIN, Thompson, Tallman

     Consolidated appeals of Mexican husband and wife who applied for non-LPR cancellation in proceedings and were denied by the IJ and BIA for failure to prove their removals "would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child" who is a citizen or LPR.

     The 9th Cir. determined that it had no jurisdiction to review the discretionary decisions because of the jurisdiction stripping provisions of INA § 242(a)(2)(B)(i), 8 U.S.C. §1252(a)(2)(B)(i).  Further, petitioners' facts were not within the limited exceptions to the provisions of (B)(i) - i.e., questions of law and constitutional claims.  The 9th Cir. here rejected petitioners' argument that the IJ made an error of law regarding the weighing of financial support obligations.  The court also rejected petitioners' arguments that: (1) the IJ violated due process by abusing his discretion by misapplying the facts to the hardship standards; and, (2) their removal would result in a loss of their "fundamental right" to "family unity" if they left with their U.S. citizen children but left the legalized parents of one of petitioners' in the U.S.

Ba v. Mukasey (No. 07-4099, August 20, 2008)

Siler, Batchelder, Rogers (Per Curiam)

     The 6th Cir. denied Ba's PFR of the denial of his claims for asylum, withholding and CAT.  The 6th Cir. found that the murder of petitioner's father did not constitute past persecution of petitioner and that petitioner had no claim to a well-founded fear of future persecution because he failed to raise it before the BIA.  The 6th Cir. did not rule on two arguments - membership in a social group and the government's inability to control a non-governmental group, the Ninjas - because, respectively, he did not raise it below and did not raise it with the BIA. 

     Petitioner's family are members of the Lari tribe that lost a civil war to the current government.  The Lari tribe's militant group is known as the Ninjas.  In March 2004 petitioner claimed a group of Ninjas came into his father's store and bound both of them.  Government forces appeared and petitioner escaped and fled the country.  Petitioner fled to Gabon and learned of the death of his father, apparently by the Ninjas.  Petitioner then entered the U.S. with fraudulent documents.

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Wong v. Mukasey (3d Cir. 8/20/08)

CHAGARES Aldisert Fuentes

The CtApp found that the Board's decision, while brief, provided enough detail to permit judicial review. It upheld the Board's analysis in finding a lack of a "pattern and practice" of persecution of Indonesian Christians, finding Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) to be based on outdated country conditions docs. Fact that her husband's asylum claim was approved could have been relevant (citing Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006)), but "Wong has not provided any details as to her husband’s claim and we therefore cannot assess its similarity or relevance to her claim." I-730 pendency was irrelevant to the case. CtApp also suggested that Govt's attempts to protect Christians might be relevant to pattern and practice claim.

Interesting, the CtApp cited recent country conditions reports, but did not take judicial notice of them:

FN4 It is important to note that these recent reports are not part of the record and do not therefore control our decision-making. Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir. 2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”). Although other courts of appeals have taken judicial notice of new country reports released after a final agency determination, see, e.g., Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41 (7th Cir. 2004), we have declined to do so. See Berishaj, 378 F.3d at 330 (explaining that we have followed “the clear command from SEC v. Chenery Corp., 318 U.S. 80 [] (1943), that courts reviewing the determination of an administrative agency must approve or reject the agency’s action purely on the basis of the reasons offered by, and the record compiled before, the agency itself”).

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Cui v. Mukasey, (No. 05-72185; August 19, 2008)

PREGERSON, Wardlaw, Archer

     The 9th Circuit held the IJ abused his discretion in denying a continuance and pretermitting petitioner's claims for withholding and CAT relief based on petitioner's failure to timely resubmit new fingerprints for the required background security check.

     The court stated:

"The factors we consider — the importance of the evidence excluded, the reasonableness of the immigrant’s conduct, the inconveniance to the immigration court, and the prior continuances — strongly militate in favor of Cui. After considering the extent of the harm that would befall Cui, along with these factors, we are required to conclude that the denial of a continuance was arbitrary and unreasonable. Although there are no bright-line rules for deciding when an IJ’s denial of a continuance warrants reversal, it is clearly an abuse of discretion for an IJ to deny a request from an otherwise diligent applicant for a short continuance to submit fingerprints, particularly where the applicant was faced with an unclear fingerprint requirement and where the applicant was disserved by an IJ’s inadequate guidance on the requirement. "

     The 9th Cir. noted that past continuances had been granted at the government's request and because of the court's busy docket.  The case was remanded for testimony on the merits of petitioner's claims.

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Cooke v. Mukasey, No. 07-2939 (8th Cir.) August 14, 2008

BOWMAN, Smith, Gruender

Although finding that Cooke, a former member of the political party Liberian Ministry of Finance (MOF),  and his wife, were persecuted on account of his political beliefs by Charles Taylor supporters, the Court concluded that “substantial evidence supports the IJ’s determination that there are ‘substantially changed country conditions from the time that [the Cookes] left Liberia.’”  Citing Redd v. Mukasey, _F3d_, 2008 WL 2889369 (8th Cir. July 29, 2008), the Court found that as Taylor was no longer in power and is on trail for war crimes and there was no objective evidence that anyone in the current Liberian government poses a threat to Cooke’s safety, there was no well founded fear if future persecution established.

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 Alanwoko v. Mukasey (8/14/08)

WOLLMAN, Murphy, Smith 

Alanwoko was a well-known Nigerian soccer player, also a Christian, who was persecuted on account of his religion.  The Court found that substantial evidence supported the lower courts’ findings that he was not fleeing persecution when he came to the US because he had traveled t and from Gambia, for soccer tournaments, for several years and had never sought asylum.  Additionally, the Court held that the BIA did not err in denying Alanwoko’s motion to reopen as the new evidence that Alanwoko presented, articles regarding the attempted shooting of a popular Christian soccer player, did not show that the soccer player was specifically targeted because he was Christian and thus did not help establish that there was persecution of Christians ins in Nigeria.

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Sowe v. Mukasey, No. 06-72938; August 19, 2008)

ALARCON, Graber, Rawlinson

Petitioner entered U.S. from Sierra Leone and timely filed for asylum/withholding/CAT. He is a Malarka Muslim whose parents were members of the United National People's Party, a group aligned with the government of Sierra Leone, and he and his family had been persecuted by the Revolutionary United Front. This persecution included the murder of his parents, the abduction and rape of his sister, the chopping off of his brother's hand, and his detention and beating.

Due to changed conditions in Sierra Leone the 9th Circuit upheld the denial of asylum based on past persecution or a well-founded fear of future persecution and also upheld the denial of withholding and CAT relief. The 9th Circuit, however, remanded the case for consideration as to whether a discretionary grant of asylum should be granted based on "compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution" under 8 CFR § 1208.13(b)(1)(iii)(A). The 9th Circuit also found he did not meet the CFR § 1208.13(b)(1)(iii)(B) test for a grant of asylum based on "other serious harm upon removal" to Sierra Leone

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Limani v. Mukasey (8/19/08)

LYNCH, Selya, Howard

The First Circuit held that the Limani had failed to establish that the incidents involving potential GIA (Armed Islamic Groups) members in which Limani and his wife were threatened amounted to past persecution.  The Court held that despite the expert testimony corroborating the claims of Limani that individuals affiliated with extremist group such as the GIA were attempting to locate him to obtain his airport security pass and threatened to kill him and the claims of Limani’s wife that as she was a teacher she was specifically targeted for not adhering to a stringent Islamic dress code, these threats did not amount to persecution on account of a protected ground.  Furthermore, the Court found that there was no evidence of a pattern and practice of persecution against individuals with pro-Western view in Algeria.  Finally, the Court found that there was also no evidence that the Algerian government was unwilling to take action against fundamental Islamic extremists, therefore, the Court concluded that the IJ and BIA properly denied CAT relief to Limani and his family.

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