Figueras v. Holder (7th Cir. July 27, 2009)

SYKES, Bauer, Kanne

The IJ denied a continuance motion, thinking that it had been filed by an attorney who hadn't filed an appearance, and found the adjustment application abandoned; the Board recognized the mistake, but found it harmless because evidence of eligibility hadn't been produced (but it had, it was just produced to the Board on appeal) (the evidence of eligibility was that she had been grandfathered into 245(i) eligibility though a visa petition filed for her husband).  The 7th cir found this a violation of 8 USC 1229a(b)(4)(B), which guarantees the right to present evidence in a case. 

1.  The CtApp found that since the BIA had found the continuance denial an error, that it wasn't reviewing the continuance, but rather, adjustment eligibility.  Ergo, the Subhan line of cases were irrelevant.

2.  It noted that Petitioner framed the issue as a Due Process issue, which it criticized.  It should have been framed according to the statutory guarantee of rights.

3.  The Board found the IJ error harmless because evidence hadn't been produced to show eligibility before the IJ, but that made no sense. 

Having assumed that the IJ had wrongfully refused to give Figueras more time to collect this documentation, the BIA could not then fault Figueras for failing to submit all her evidence to the IJ in the first place. Rather than simply dismissing the appeal, the BIA should have either remanded the case to allow the IJ to consider the additional evidence or addressed her alternative ground for eligibility as a matter of law.

4.  The Govt argued that the error had been waived by cursory briefing to the BIA and 7th cir, but since the Board had dismissed based on the failure to present evidence to the Board, the CtApp thought the Board ought to address the matter in the first instance: "the BIA dismissed Figueras’s appeal not because she had failed to develop this argument on appeal but because she had not produced evidence to support it before the IJ.... Accordingly, we think the decision to accept or reject Figueras’s alternative theory that she and her family are eligible for adjustment of status should be made by the agency in the first instance, on an appropriate record."  The CtApp found that the Board ought to look at eligibility for adjustment. 

5.  The Govt argued that they should have expressly sought remand or reopening; but the CtApp thought the appeal arguments were sufficient.

Read opinion here: 

 

Soriano v. Holder (9th Cir. June 26, 2009)

 

GRABER, Bea, Rymer

 

Soriano was a witness in the U.S. in a criminal investigation of a Filipino drug ring in which he was a participant.  He applied for asylum, withholding and CAT on this basis.  The CtApp found that whatever harm he feared, he could not establish that a political opinion or particular social group would be its cause. 

 

On political opinion, the CtApp upheld the BIA’s finding that harm to Soriano would be motivated by retaliation for informing and not by any political opinion – he failed to express any.

 

 On PSG:  The CtApp held that Matter of C-A-’s determination that noncriminal informants do not comprise a social group should be accorded Chevron deference.  However, Soriano is a criminal informant, so it proceeded to further analysis.  [EB – the fact that C-A- claimed civic duty and morality as a motivation and as the fundamental trait underlying the PSG should have been used to differentiate this case.  Soriano’s motives were more cynical, as he cooperated only once arrested, so the C-A- arguments should not have been fully before the CtApp].  Analogizing Soriano’s claim to the insufficiently particular social groups addressed in gang and other cases, the CtApp found that criminal government informants are not sufficiently “cohesive and homogenous” to constitute a PSG.       

 

Read opinion here.    

 

Ayala-Villanueva v. Holder (9th Cir. July 14, 2009)

 

HUG, Fletcher, Hawkins

 

Undisputed facts: (1) petitioner was born out of wedlock in El Salvador in 1973, (2) was admitted as an LPR in 1982 (age 9), (3) mother naturalized in 1987, (4) mother married father (Humberto) in El Salvador, and always told Petitioner that Humberto was his father.

 

Issue: Under former INA § 321, an LPR child born out wedlock, whose paternity is not legitimized, acquires citizenship upon the naturalization of the custodial mother.  If Humberto is, in fact, petitioner’s father, then the marriage constituted legitimation. 

 

Disputed facts:  Petitioner asserts that his mother only told him that Humberto was his father.  In fact, he contends, his actual father is another man.  Both petitioner and the government produced birth certificates from the hospital of petitioner’s birth, purporting to corroborate their versions of the story.  Petitioner presented testimony from an official at the hospital that the government’s birth certificate does not appear at the page of the hospital registry claimed on its face.  The government responded that the original birth certificate supporting its contentions had been destroyed in a fire, but provided no evidentiary support for this assertion.

 

The Ninth Circuit found that transfer to the District Court for a determination on the alienage issue was necessary, as the case presented a “genuine issue of material fact.”

 

Read decision here.

 

Popa v. Holder (9th Cir. July 6, 2009)

 

BEA, Schroeder, Tashima

 

The issue in this case is whether an NTA that lacks a date and time for a hearing, but states that a date and time will be subsequently mailed to the alien at his/her current address, is statutorily defective and whether an in absentia order following service of such an NTA violates due process. 

 

Like many aliens, Popa was served with an NTA stating that the date and time of the hearing would be mailed in the future.  The NTA included the usual language requiring notification of a change of address via Form EIOR-33 or some other means.  After receiving the NTA, Popa moved and stopped checking the address at which the NTA was served.  She did not file a change of address form or otherwise notify the court of her change of address.

 

Popa argued that 8 U.S.C. § 1229(a)(1)(G)(i) requires that the NTA contain the date and time of the hearing on initial service.  The CtApp noted that it had “silently” adopted the rule that the practice of mailing an NTA and providing notice of the hearing's date and time later complied with the statute and due process.  The CtApp reasoned that DHS often serves NTA’s where it does not have ready access to docket information, and that it would be an unreasonable interpretation of the statute to hold service ineffective in these circumstances.

 

Popa also argued that the NTA failed to comply with § 1229(a)(1)(F)(ii), which requires notice to the alien of the change of address requirements.  Popa argued that the NTA was “confusing” and caused her to believe that (1) she could only give notice of a change of address via Form EOIR-33 and (2) that such a form could only be obtained at a future hearing.  The CtApp easily rejected the latter argument that the NTA promised the E-33 only at a future hearing, as it lacked any textual support and would lead to absurd results.  Furthermore, the NTA allowed the respondent to “otherwise notify the court of a change of address” and provided the address of the immigration court, so Popa could have submitted a change of address notice in some form other than an E-33. 

 

Finally, the CtApp rejected Popa’s procedural due process claim, finding that service was constitutionally sufficient on the reasoning above.

  

Read opinion here. 

Park v. Holder (9th Cir. July 9, 2009)

 

SMITH, Paez, Schroeder

 

Park sought to adjust status through her marriage to Higa, a U.S. citizen.  Higa filed an I-130 with the I-864 Affidavit of Support.  USCIS denied the petition, finding that Higa was not domiciled in the U.S. and therefore could not file the necessary Affidavit of Support.

 

Park and Higa married in February 2002.  Higa worked in Japan from shortly after the marriage until June 2002, and then returned to Hawaii until summer 2003.  Higa then returned to Japan for the next three years, visiting Park in Hawaii twice for a total of a week and a half before hearings in immigration court in 2006.  Higa owned no property in Hawaii, paid taxes in Japan and had a bank account there.  He also had a joint bank account with Higa in Hawaii.  He testified that he intended to return to Hawaii “in the future” to open a school there, after he gained experience teaching English in Japan.

 

8 C.F.R. § 213a.1 defines “domicile” in this context as:

 

[T]he place where a sponsor has his or her principal

residence, as defined in section 101(a)(33) of the

Act, with the intention to maintain that residence for

the foreseeable future.

 

An individual who is residing abroad can still be domiciled in the U.S., and can therefore be a qualifying I-864 sponsor, if the individual demonstrates that he/she will establish a U.S. residence before the admission of the beneficiary.  8 C.F.R. § 213a.2(c)(1)(ii)(B).

 

Holdings:

1.  Park argued that the § 213a.1 was unreasonable because the INA defines residence as a place of abode without regard to intent.  Applying Chevron, the CtApp upheld the regulation, noting that intent was always relevant to domicile at common law and in the immigration context.  Intent might be irrelevant to residence, but not to domicile.

2.  Higa could not demonstrate sufficient intent to establish residence in Hawaii, as his statements that he would return there “in the future” were indefinite and lacked the support of any objective indicators of intent to relocate.

3.  Park did not have standing to assert claims that the BIA infringed Higa’s constitutional rights.

 

Petition denied and dismissed.

 

Read opinion here.

Nevarez v. Holder (9th Cir. July 8, 2009)

 

REINHARDT, Noonan, McKeown

 

The BIA denied cancellation of removal to petitioners, husband and wife, in 2005 and granted voluntary departure.  They then filed a PFR and later filed an untimely Motion to Reopen, which the BIA denied and did not consider on the merits (they petitioned for review of the denied MTR also, and the CtApp consolidated the PFR’s).  The CtApp remanded this first PFR for reconsideration of the time given for voluntary departure.  On remand, the BIA affirmed the denial of relief and again granted VD.  Petitioners filed another PFR and another MTR, the latter of which was timely.  The BIA denied the second MTR as numerically barred, and petitioners again sought CtApp review of both the order and the MTR.

 

Issues: (1) whether the BIA properly denied the second MTR as numerically barred, where it did not consider the first MTR on the merits and (2) whether the second MTR was properly denied on the ground that petitioners were ineligible for immigration relief because they overstayed their VD grant.

 

On issue (1), the CtApp found that the BIA failed to address petitioners arguments that the second MTR was not subject to the numerical bar because it had not been addressed on its merits.  Applying the ordinary remand rule, the CtApp remanded to the agency for an initial determination on this issue.

 

On issue (2):  When petitioners sought CtApp review in 2007, applicable 9th Circuit precedent automatically stayed their VD period.  In 2008, Dada came down, which repudiated the Ninth Circuit’s automatic stay provision, but required that aliens granted VD be given an opportunity to relinquish this benefit and file a Motion to Reopen.  Dada did not, however, address its retroactive applicability to aliens who did not have such an opportunity and who relied on appellate precedent in filing PFR’s while under VD orders. 

Regulations promulgated after Dada also do not address such a factual scenario.  The government argued that the BIA had no authority to construe petitioners’ MTR as revoking their acceptance of VD, and argued that the overstay penalties must apply.  The CtApp noted that this would contravene the spirit and intent of Dada by depriving petitioners by depriving petitioners the opportunity to file an MTR and by penalizing their reliance on binding precedent.  Applying the ordinary remand rule, the CtApp remanded to the agency for an initial determination on this issue.

  

Read opinion here. : http://www.ca9.uscourts.gov/datastore/opinions/2009/07/08/07-74271.pdf

U.S. v. Garcia-Quintanilla (7/7/09)

PRADO, Higginbotham, Garza

The Defendant was order removed to El Salvador. Declaring that “he would rather spend his life in a United States prison than return to El Salvador,” he refused to be interviewed by El Salvador’s consulate.  The Government prosecuted him under 8 U.S.C. § 1253 for failure to cooperate in his removal.  Though the Sentencing Guidelines yielded a maximum sentence of six months, the District Court imposed a sentence of four years, reserving itself the power to suspend the sentence if the Defendant ever decided to cooperate.  In effect, the Defendant would hold the keys to his own cell.  Instead of using the keys, the Defendant appealed.

Despite the practicality of “incentivizing” compliance with § 1253(a), the Fifth Circuit found that the statute’s suspension provision, § 1253(c), did not permit this approach.  Though the language of § 1253(c) generally allows suspended sentences, neither its plain language nor its legislative history specifically address whether a court can suspend a sentence after it has commenced.  The federal courts have no inherent power to suspend sentences. See The Killits Case.  And the Supreme Court has interpreted the Probation Act only to authorize suspension before a sentence starts, despite its language generally allowing suspended sentences.  Thus, the traditional interpretive presumption only permits suspension before the sentence commences, absent clear legislative indications to the contrary.  The Court noted a few aspects of § 1326’s language and structure that reinforced its reading.  It also noted that 18 U.S.C. § 2583(c)(1) did not reverse its interpretive presumption. § 2583(c)(1) only permits courts to modify a previously imposed term of imprisonment when “expressly permitted by statute,” and 8 U.S.C. § 1253(c) doesn’t expressly permit it.

The Defendant had failed to object specifically to this problem during setencing, so the Fifth Circuit reviewed for plain error only.  Nonetheless, it reversed the District Court. The error was clear. It affected the Defendant’s substantial rights, since his sentence was eight times longer than the guidelines’ maximum. And finally, the error seriously affected “the integrity and fundamental fairness of judicial proceedings.”

 

Read the Opinion Here

Chedid v. Holder (7/17/09)

Lynch, Torruella, LIPEZ

 In 2006 the BIA upheld the IJ decision denying Petitioner withholding of removal and CAT.  Petitioner, through former counsel, submitted a motion to reopen that same year.  This was also denied by the BIA.  In 2007, Petitioner, represented by new counsel, submitted a second motion to reopen to the BIA and argued that time and number limitations on motions to reopen should be equitably tolled and proceedings should be reopened due to ineffective assistance of counsel.

Along with his second motion to reopen, Petitioner included a copy of the bar complaint submitted against his former counsel.  The cover letter with the bar complaint stated that Petitioner was only filing the complaint to comply with Lozada requirements.  The BIA found that as Petitioner had waited over year to file a second motion he had not acted with due diligence.  Additionally, the BIA found that Petitioner had not substantially comply with the Lozada requirements since “pro forma” compliance with Lozada was insufficient to make out a case for ineffective assistance of counsel.  The Court found the BIA decision that Petitioner failed to exercise due diligence was not arbitrary or capricious and denied the PFR.

“In a recent decision, we once again reserved the question of whether "the statutory provision limiting motions to reopen is subject to equitable tolling." Da Silva Neves v. Holder, 568 F.3d 41, 42 (1st Cir. 2009); see also Beltre-Veloz v. Mukasey, 533 F.3d 7, 11 (1st Cir. 2008) (reserving the question); Guerrero-Santana v. Gonzalez, 499 F.3d 90, 93 (1st Cir. 2007) (same). We have also said that, even if equitable tolling were available to avoid the limitations on motions to reopen, the doctrine should be "sparingly invoked," Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc) (quotation marks omitted), and is "unavailable to a party who has failed to exercise due diligence, as the BIA found here." Da Silva Neves, 568 F.3d at 42 (citing Boakai v. Gonzales, 447 F.3d 1, 3 (1st Cir. 2006)). Thus, even assuming equitable tolling were available, we could only reach the merits of Chedid's ineffective assistance of counsel claim if the Board abused its discretion in finding that he had not exercised the "due diligence" required by our case law. It did not.”

“Given Chedid's failure to demonstrate due diligence, there is no reason for us to consider whether to invoke equitable tolling based on Chedid's claim of ineffective assistance of counsel, or the merits of that ineffective assistance claim. See, e.g., id. at 93 ("The petitioner has failed to explain how his previous counsels' shortcomings caused this failure to comply with the temporal deadline. The merits of his ineffective assistance of counsel claim are, therefore, immaterial." (footnote omitted)). Therefore, we need not review the Board's determination that Chedid failed to substantially comply with the Lozada requirements. His dilatory pursuit of the second motion to reopen defeats his claim for relief.”

 

Read Opinion Here...

Amouri v. Holder (7/14/09)Boudin, SELYA, Lipez Petitioner, a native of Algeria, entered the United States without inspection in 2001.  On 2005 he won a one-year visa in the Diversity Visa Lottery Program but not eligible for adjustment of status.  He was placed in removal proceedings and granted an initial continuance to determine if he would be able top apply for adjustment of status with a waiver.  Subsequently Petitioner applied for asylum, withholding and CAT.  At the next hearing with the IJ in 2006, the Immigration Judge announced that he would hold the asylum merits hearing that same day.  While Petitioner’s attorney initially objected, he did not request a continuance and proceeded with the asylum merits hearing.  The Immigration Judge excused the one-year filing deadline, found the Petitioner credible but found that he failed to demonstrated prosecution on a statutorily protected ground. The Court found that substantial evidence supported the IJ and BIA finding a lack of nexus.   Petitioner also argued that the IJ’s refusal to grant a further continuance was a violation of procedural due process.  The Court found that it was possible that Petitioner’s counsel waived this argument by agreeing to move forward on the merits hearing but concluded that the Court did not need to resolve the waiver question because even if there was an error made, there was no prejudice so due process was not violated. 

As stated by Judge Selya:

 

"We need not tarry. The grant or denial of a continuance rests largely in the discretion of the trial judge. See, e.g., United States v. Flecha-Maldonado, 373 F.3d 170, 175 (1st Cir. 2004); Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003). While that authority must be exercised judiciously and with an eye toward fundamental fairness, even the arbitrary denial of a continuance cannot sink to the level of a due process violation unless it results in actual prejudice. See Pulisir, 524 F.3d at 311; United States v. Saccoccia, 58 F.3d 754, 770-71 (1st Cir. 1995); United States v. Lussier, 929 F.2d 25, 28-29 (1st Cir. 1991).

*** It is not enough for a party to claim conclusorily that, had he been granted a continuance, he could have presented additional evidence; rather, he must give a reviewing court some indication of what that evidence would have comprised and how additional time would have allowed him to gather it. See United States v. Rodriguez-Duran, 507 F.3d 749, 765 (1st Cir. 2007). He also must show that the new evidence would likely have altered the outcome of the proceeding. See Shmyhelskyy v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007).

Here, the petitioner was the lone witness in his own behalf. He *** did not identify below and has not identified here any such witnesses or documents. Instead, he relies exclusively on vague assertions about additional (unnamed) witnesses and additional (unspecified) documents that might have bolstered his testimony. Without some more concrete demonstration that such witnesses and documents existed, were not available at the hearing, and would have supported his story, we can make no finding of prejudice. Consequently, the petitioner's due process claim founders.”

Read Opinion Here...

Makieh v. Holder (7/14/09)Lynch, EBEL, Lipez 

The Court found no jurisdiction to review the IJ and BIA determination that Petitioner failed to meet the exceptions to the one year filing deadline and found that the withholding and CAT denials were based on “reasonable, substantial and probative evidence on the record considered as a whole.”

 

Read Opinion Here...