Musollari v. Mukasey (7th Cir. Sept. 19, 2008)

SYKES Evans (Williams - dissenting)

The 7th Cir struck down most of the adverse credibility finding, based on IJ factual and analytical errors, but still found the decision supported by substantive evidence.  Petitioner's description of 1997 elections was different than State Dept reports. "Although we have repeatedly cautioned against overreliance on generalized information in country profiles or State Department country reports, see Oyekunle v. Gonzalez, 498 F. 3d 715, 716 (7th Cir. 2007); Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir. 2005), it is permissible for an IJ to contrast an asylum applicant’s testimony with specific historical facts provided in a country report, see Huang v. Gonzales, 453 F.3d 942, 947 (7th Cir. 2006), and that is what the IJ did here." Therefore, the IJ reasonably required corroboration, and there was no corroboration. Finally, Petitioner also lied in getting a tourist visa to flee Albania - CtApp said that can be one factor among many in rejecting credibility.

Williams, dissenting: The differences in Petitioner's view of 1997 elections aren't necessarily inconsistent with historical facts (there was violence then), and was at most an exaggeration by one party member.  Moreover, they were tangential to the case, so doesn't suffice to support the adverse crediblity finding.

Read opinion here: 

Mukasey v. Diouf (9th Cir., 9/18/08, No.s 07-55337 and 08-55504)

M. SMITH, Farris, Fisher

     The 9th Cir. granted the government's consolidated appeals of the district court's granting a habeas corpus petition and an injunction requiring the IJ to hold a bond hearing. 

     The 9th Cir. held that the district court erred in granting the writ because petitioner's detention wasn't indefinite and the preliminary injunction was an abuse of discretion since petitioner was detained under § 236 rather than §241.  It therefore reversed the grant of habeas relief and vacated and remanded as to the injunction.

     Petitioner originally entered on a student visa, overstayed and was convicted of a controlled substance offense.  In removal proceedings he was granted VD by 6/24/03.  He did not depart to Senegal and did not later report for removal.  He was subsequently arrested at his home and detained.  A series of pro se motions to reopen, allegations of IAC, petitions for review, an untimely appeal of the original VD order, motions for stays of removal (some of the stays being granted by the 9th Cir.) and the concurrent habeas petition/injunction request followed.  His potential relief is AOS based on marriage to a U.S. citizen.

     The 9th Cir. held: 

     1.  Because the administrative removal order was final the 9th Cir. found that petitioner was detained under INA 241(a)(6) as being inadmissible under 212. 

     2.  The removal period began June 25, 2003, the day after his VD period ended, because that is the day his removal became "administratively final" under 241(a)(1)(B)(i).

     3.  Petitioner conspired or acted to prevent his removal during the 90 day removal period under 241(a)(1)(C).  This did not include times during which stays from the 9th Cir. had been granted.

     4.  Petitioner failed to cooperate in his removal until July 20, 2005.  It may be that he failed to cooperate after that date assuming reasonable inferences but the burden of proof is on the government to affirmatively show lack of cooperation and this can't be done by inference.

     5.  Tolling or restart of removal period?  9th Cir. says the 90 day removal period restarted after the latest date of documented obstruction of his removal by petitioner.  To toll the removal period during a one-time 90 day period would have allowed the government only 17 days here to effectuate petitioner's removal and this would have entailed ICE restarting the whole process with a truncated period of time; this would defeat the purpose of the statute.  Therefore, no tolling for (a)(6) cases but 9th Cir. notes that this may not be true of other (a) subsections.

     6.  Time during the "alien’s good faith attempt to make use of legally available judicial review and remedies" does not constitute a suspension of the removal period under 241(a)(1)(C).

     7.  The 9th Cir. found that petitioner's detention was not indefinite because his removal had previously been arranged to Senegal on two occasions and was not accomplished solely because of petitioner's refusal to cooperate.  It thus appeared likely that the government would be able to arrange his removal again. 

     8.  The 9th Cir. remanded to the district court whether petitioner was entitled to an individualized determination before a neutral fact finder of the necessity of his detention under 241(a)(6).  The court declined to decide this issue since it was not before the district court earlier since the district court determined, incorrectly, that petitioner was detained under 236(a); thus the issue as to his rights to a bond hearing under 241(a)(6) were not factually developed nor briefed.

     9.  Finally, the 9th Cir. noted its ruling in Casas-Castillon that a LPR appealing a final order of removal had DP rights to a bond hearing when detained under 241(a) and had a timely PFR pending.  For the petitioner here, a non-LPR with no timely PFR pending the DP issues need to be developed at the district court.   

 

Read opinion here

 

Karapetyan v. Mukasey (9th Cir., 9/16/08, No. 05-75865)

PREGERSON, Wardlaw, Archer

     The 9th Cir. reviewed petitioner's two petitions for review - one appealing the denial of asylum/withholding/CAT and one denying petitioner's motion to reconsider to the BIA. 

1.  The IJ found that petitioner's testimony was credible but lacked corroborating evidence.  The 9th Cir. held that petitioner's credible testimony of past persecution and fear of future persecution, if credited, was enough without corroborating evidence.  The 9th Cir. did find corroborating evidence in the record that was submitted by petitioner.  The 9th Cir. held petitioner eligible for asylum based on past persecution because of ethnicity (Armenian) and political opinion (membership in 21st Century Party). 

2.  Petitioner's motion to the IJ for a continuance to do a fingerprint check had also been denied.  The 9th Cir. held that the IJ abused her discretion in denying the continuance.

3.  The 9th Cir. held there was not substantial evidence to support the IJ's denial of withholding and CAT and remanded on these issues.

4.  The 9th Cir. found the BIA abused its discretion in denying petitioner's motion to reconsider, finding that petitioner did raise new arguments.

  

Read opinion here

Mota v. Mukasey (9th Cir., 9/17/08, No. 07-71880)

THOMPSON, Wardlaw, Moskowitz

     The 9th Cir. granted the petition for review and found that the petitioner's application for non-LPR cancellation was not precluded by a 1990 conviction for injury of a child. 

     The NTA charged petitioner as removable due to a conviction of domestic violence.  After the agency's decision the BIA held that a conviction for domestic violence prior to IIRAIRA's effective date of September 30, 1996, does not make one ineligible for cancellation.  Matter of Gonzales-Silva, 24 I & N Dec. 218, 220 (BIA 2007).  Therefore, the 9th Cir. granted the PTR and retained jur during mediation of this case and did not issue a mandate.

 

Read opinion here

Fernandez v. Mukasey (7th Cir. 9/15/08)

MANION Sykes Rovner (dissenting)

The 7th Cir adhered to its previous holding in U.S. v. Pacheco-Diaz, (Pacheco I) 506 F.3d 545 (7th Cir. 2007), as reaffirmed by U.S. v. Pacheco-Diaz (Pacheco II), 513 F.3d 776 (7th Cir. 2008) (per curiam, with Judge Rovner dissenting from denial of rehearing), that a second or subsequent conviction for drug possession is an aggravated felony.  The CtApp's analysis was:

1.  The AggFel definition must be the same in the criminal and immigration contexts - at least, after Lopez v. Gonzales, 127 S. Ct. 625 (2006), where the SupCt's decision treats them similarly.

2.  BIA decision in Carachuri doesn't require different result, since CtApp had already agreed with the Pauley concurrence.

3.  The "elements" of recidivist and non-recidivist possession are the same - recidivism is just a sentencing element.  So categorical approach doesn't work as well, and is "inconclusive" of whether crimes are AggFels. 

4.  Only federal imm law matters, not state ct labelling.  So the fact that these sentences could have been enhanced per state law recidivism statute was irrelevant.

In order to determine if a state offense is “described” by a federal offense incorporated into § 101(a)(43), we necessarily have to view the state offense through the lens of federal law, since “it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers.” Lopez, 127 S. Ct. at 633.

5.  Approach is consistent with Taylor, because courts don't have to look beyond the conviction docs to see what happened.

because the definition of the Illinois possession offenses under which petitioners were convicted are overbroad—i.e., conduct punishable under those Illinois statutes could constitute either a federal misdemeanor or federal felony, depending on whether those offenses occurred after a previous drug conviction became final— we must look at the records of the petitioners’ prior convictions to determine the federal consequences of the petitioners’ offenses.

6.  Contrary decisions - see Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) - elevate procedural protections re misdemeanor convictions to the status of an element.

7.  Rejects the hypothetical that two federal misdemeanor convictions would be an AggFel under CtApp's hypothetical federal felony theory.  Where conviction is federal, no need to analogize, can look to see what the conviction was for. 

Analogizing makes sense when determining whether a state conviction qualifies as an aggravated felony. * * * * But analogizing makes little sense when dealing with a conviction for a federal offense, like § 844(a), that is specifically incorporated into the aggravated felony definition. Since those federal statutes are specifically referenced in the aggravated felony definition, there is no need to compare anything. A violation of one of those statutes either is, or is not, a felony, and thus is, or is not, an aggravated felony.

 

ROVNER, dissenting:

CtApp was obliged to look only at alleged AggFel conviction, and those docs don't show that crime was AggFel. 

Read decision here: 

Bromfield v. Mukasey (9th Cir., 9/15/08, No. 05-75844)

FLETCHER, Paez, Schwarzer

     Petitioner was a LPR from Jamaica charged as being removable due to the conviction of an aggravated felony.  Petitioner appeared before the IJ pro se and admitted removability.  The IJ determined that petitioner was not eligible for asylum but was not convicted of a particularly serious crime and allowed petitioner to apply for withholding of removal and CAT relief.  Petitioner testified that as a gay man he would be subjected to torture and persecution in Jamaica, citing the criminalization of homosexual acts in Jamaica and reports of violence against gays in Jamaica.

     The 9th Cir. rejected the government's argument that it had no jurisdiction to review this case by stating that § 1252(a)(2)(c) applies only to removal decisions, not asylum/withholding/CAT denials.  Since the IJ here denied petitioner's withholding and CAT claims on their merits the 9th Cir. had jurisdiction to review those denials.

     The 9th Cir. found that the Jamaican government's prosecution of homosexual activity was a form of persecution against a particular social group - gay men - and that the prosecution of activity rather than status was still persecution of a particular social group.  The Country Conditions report supported a finding that there was a pattern or practice of such persecution.  The 9th Cir. also found that the Jamaican government not only acquiesces to the torture of gay men but participates in it.

     The 9th Cir. remanded for a determination as to whether petitioner was more likely than not to suffer persecution or torture.

 

Read opinion here 

Cosa v. Mukasey (9th Cir., 09/15/08, No. 04-75643)

McKEOWN, Gould, Schiavelli

     The 9th Cir. found that the IJ's decision was not supported by substantial evidence, granted the petition, vacated the adverse credibility decision, and remanded to the BIA.  Petitioner, a member of the Millenist faith in Romania, applied for asylum after persecution, beatings, and rape in Romania based on her religion.  She testified at her IJ hearing and submitted written statements from fellow Millenists supporting her claim and medical evidence of the rape.

     The 9th Circuit repeatedly found fault with the IJ's decision-making process stating:

"Ultimately, in example after example, the IJ doubted

Cosa’s credibility, not because of a true demeanor finding and

not because her testimony was incredible or at odds with the

evidence or widely-held facts about Millenism, but simply

because Cosa’s description did not comport with the IJ’s

newly-acquired notion of Millenism."

 

Read opinion here

Pina v. Mukasey (9/12/08)

 Boudin, Selya, DYK Pina was born to unmarried parents in the Republic of Cape Verde in 1983.  His father signed his birth certificate thereby, legitimizing Pina under the Civil Code of Cape Verde.  Subsequently, Pina’s father moved to the United States and became a lawful permanent resident.  He continued to stay involve din Pina’s life by financially supporting him and visiting regularly.  In 1994, Pina and his mother also came to the Unites States as Lawful Permanent Residents and moved close by to Pina’s father.  As stated by the IJ, his parents had an informal agreement “arrangement similar to that of shared custody” and “akin to shared custody” under Massachusetts law.  As Pina’s father naturalized in 1996 when Pina was 13 years old, the IJ found that Pina had derived citizenship under the CCA, 8 U.S.C. § 1431(a), and terminated proceedings. The BIA determined that Pina had not shown that his father had “legal custody” as required by the CCA and remanded the case to the IJ who then entered an order of removal.

The Court disagreed with the BIA, finding that as CCA does not define “legal custody” and the INS regulation defines the terms as “responsibility for and authority over a child”, 8 C.F.R. § 320.1, the appropriate authority to look to is state law. In looking at the Massachusetts General Laws and relevant cases, the Court concluded that the government was incorrect in stating that a court order or a filing of a joint parenting agreement was required under Massachusetts law to show joint legal custody.  The arrangement between Pina’s parents demonstrated shared legal custody under Massachusetts law, therefore the Court vacated the removal order and remanded the case back to the IJ “for further proceedings not inconsistent with this opinion.”

Read Opinion Here

 

Figueroa v. Mukasey (9th Cir., 9/10/08, No. 05-75157)

TASIMA, McKeown, Gould

     The BIA adopted the IJ's decision holding that the petitioner parents were ineligible for non-LPR cancellation of removal.  The parents argued that the 9th Cir. could review the decisions because they were based on errors of law or, in the alternative, that an indiscernible decision by the IJ was grounds for remand.  (The tape of the hearing was so bad that the transcript read "indiscernible" in key parts.) 

     Petitioners argued that the IJ held they were ineligible for non-LPR cancellation because their removals would not be "unconscionable" and that the IJ further erred in failing to consider future harm to their two U.S. citizen children.  The 9th Cir. held that it was not precluded from reviewing the IJ's decisions because they were not discretionary decisions under 8 U.S.C. § 1252(a)(2)(B)(i) which bars judicial review, but rather questions of law under 8 U.S.C. § 1252(a)(2)(D) that are reviewable.  The IJ's use of improper legal standards, an "unconscionable" standard and not considering future harm to the U.S. citizen children, was reviewable.  The 9th Cir. held that errors of law were made and remanded the case; it did not reach the argument that the IJ's indiscernible opinion was grounds for a remand.

 

Read opinion here

Tieng v. Mukasey (9/10/08)

LYNCH, Selya, Howard 

 

Tieng Sok is a Cambodian national who fled persecution she suffered on account of her political activities against the Cambodian People’s Party (CPP).  After her husband was killed by the CPP, Sok was approached by the police who warned her not to file a report blaming the CPP.  However, the Court concluded that the IJ and BIA properly found no past persecution and a lack of objectively reasonable evidence of future persecution.  In addition, the Court denied Sok’s due process violation which was based on a claim of poor translation during the IJ hearing.  The Court, as did the BIA, stated that since Sok had failed to object to the translation during the IJ hearing, it was not a meaningful complaint before the Court.  Furthermore, the Court found that since the IJ considered the evidence “in the best possible light for [Sok]”...”it is not clear how the alleged deficiency could have affected the outcome of the proceedings.”

 

Read Opinion Here...