King v. Holder (6th Cir. 7/10/09)

GRIFFIN Sutton Lioi (Dct)

The 6th Cir upheld as supported by substantial evidence the finding of an IJ that Ms King engaged in marriage fraud. Apparently, Mr. King was homosexual and married her as a favor.  The 6th cir found that either he was lying, or she was lying.  And they found it odd that she didn't notice that Mr. and Mr. King were living together and had adopted an infant child while she was supposedly living in the house.  Mrs. King said her credibility had to be presumed, because the IJ didn't make any express adverse credibility finding; but in fact, the IJ had found her not credible, and the 6th cir said she'd lose even if she hadn't been found non-credible.

[CR: Is this a close case? Why publish?  (Note that this disposition was originally unpublished.) Easy cases make bad law, and that offhand comment at the end, that substantive evidence would support this holding even if there were no adverse credibility finding is a perfect example.]

Read opinion here: 

 

Mambwe v. Holder, No. 08-1224 (8th Cir. July 16, 2009)

 

Bye, Gibson, and GRUENDER

 

The IJ and BIA determined that the attack on Mambwe’s village in Angola in 1984 constituted past persecution. Her village was known to be “aligned” with the Popular Movement for the Liberation of Angola (“MPLA”) when it was attacked by forces from the National Union for Total Independence of Angola (“UNITA”).  However, the IJ concluded, and both the BIA and Court affirmed, that the 2002 peace agreement between the MPLA and UNITA which ended Angola’s civil war constituted “fundamental change in circumstances” rebutting Mambwe’s well-founded fear of future persecution.  The Court affirmed the finding that the 1984 attack was not severe enough to warrant a grant of humanitarian asylum: although Mambwe suspected her father and brothers were conscripted or killed “she apparently did not witness their deaths” and she was not physically harmed during the attack.

 

Mambwe’s encounters with UNITA did not end in 1984.  She and her mother fled to Zambia after the 1984 attack.  In 1997, UNITA forces kidnapped her from a refugee camp, and subsequently detained, raped and beat her.  The Court affirmed the IJ and BIA finding that the Petitioner failed to show that the events of 1997 constituted past persecution on account of her membership in the Mbundu ethnic group or imputed political opinion.  The Court surmised that “there is no shortage of alternative explanations for why rebel soldiers might carry out a village-wide attack in foreign territory without engaging in persecution on account of a protected ground, including simple lawlessness and base criminality.”  The Court noted that Mambwe could not rely on this 1997 attack to support her claim for humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A), because before one can be considered for humanitarian asylum, she must have been found to have suffered past persecution on account of a protected ground.

 

Because Mambwe did not specifically appeal the denial of her withholding and CAT claims to the BIA, the Court did not reach the merits of those claims.  The Court rejected her claims that her right to Due Process was violated during proceedings before the IJ and BIA. 

 

Read opinion here....

Carachuri v. Holder (09-60) 

The law firm of O'Melveny & Myers and the University of Houston Law Clinic filed a petition for writ of certiorari with the Supreme Court, asking the Court to resolve the 4-2 circuit split. 

Decisions finding second possession offense is not an Aggravated Felony:

Alsol v. Muksaey, 548 F.3d 207 (2d Cir. 2008)

Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008)

Berhe v. Gonzalez, 464 F.3d 74 (1st Cir. 2006)

Steele v. Blackman, 236 F.3d 130 (3rd Cir. 2001)

Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 391 (BIA 2007)

Decisions finding second possession offense is an Aggravated Felony:

Fernandez v. Mukasey, 544 F.3d 862, 866 (7th Cir. 2008), reh’g and reh’g en banc denied, unpublished order, Nos. 06-3476, 06-3987, 06-3994 (Apr. 16, 2009)

United States v. Pacheco-Diaz, 506 F.3d 545, 548-49 (7th Cir. 2007) (sentencing context), reh’g denied, 513 F.3d 776 (2008).

Carachuri-Rosendo v. Holder, ---. F.3d ----, 2009 WL 1492821 (5th Cir. May 29, 2009)

United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005)

 

Carachuri cert petition

N.b.: NIJC has filed a separate cert petition in Fernandez v. Holder (09-__) (filed July 15, 2009). 

Kulhawik v. Holder (2d Cir. 7/6/09)

Cabranes, Hall, Stein (per curiam)

 

Petitioner was ordered removed in abstentia after being personally served at second to last hearing with a hearing notice. He moved to reopen under the "exceptional circumstances" excuse and submitted a sworn affirmation from his attorney stating that petitioner did not understand the IJ's instructions at his hearing and that he expected to receive additional notice in the mail. The IJ denied the MTR, and the BIA affirmed. The BIA stated that the atty's sworn affirmation was not evidence.  The 2d Circuit denied the PFR. The court noted that, although the BIA  had erred in stating that the attorney's sworn affirmation was not evidence (it was a sworn statement, under penalty of perjury, turning it into evidence), consideration of this evidence would not lead to a different outcome as petitioner's reasons for not appearing were not exceptional circumstances - they were not akin to "battery or extreme cruelty" or "serious illness or death." 

 

PFR denied.

 

Atty for Petitioner: Richard A. Vrhovc, Clifton, NJ.

 

Read opinion here.

Kucana v. Holder (08-911)

In Kucana, the Supreme Court granted cert to consider the 7th cir's holding (unique among the circuits) that 1252(a)(2)(B)(ii) strips the Courts of Appeals of jurisdiction to consider motion to reopen denials.  Today, the "top-side" briefs were due.  Kucana argued, of course, that the 7th cir erred in finding no jurisdiction.

The news is that the Govt now agrees.  It filed its brief today, along with Kucana, arguing that 1252(a)(2)(B)(ii) only applies where discretionary authority is "specified" within the text of the statute.  Because it is the regulations, not the statute, which make reopening discretionary with the IJ or BIA, the jurisdiction-stripping statute does not apply. The Govt also argues that other statutory provisions favor this interpretation, as well as the fact that the 7th cir's interpretation would have left 1252(b)(6) (which mandates the consolidation of motion to reopen appeals with any appeal from the removal order itself) without any function from its enactment in 1996 until the REAL ID Act in 2005. 

The Govt did suggest that it will win at the Court of Appeals on remand; but that, it said, was a question for the Seventh Circuit on remand.

Read Govt brief here:

Kucana Petitioner's Brief

Hassan v. Holder (7th Cir. 7/2/09)

TINDER

The 7th cir upheld an adverse credibility finding against an Ethiopian asylum-seeker based on very minor "discrepancies," which were "neither critical nor trivial to Hassan’s claim of persecution." More troublingly, the CtApp found that his slow travel from Ethiopia to the US somehow supported an adverse credibility finding:

We also credit the agency’s reliance on Hassan’s travel through several countries prior to arriving in the United States. In two of these countries, Yemen and Italy, Hassan remained for at least two months without seeking asylum. As stated by the IJ, after living in Djibouti for eighteen years without harm from the Ethiopian government, Hassan’s departure and passage through several countries was more consistent with a desire to settle in the United States than a fear for his life. Although we do not say that failure to seek asylum in intermediate countries is always inconsistent with a fear of persecution, in this case, it was one of several “relevant factors” that the agency could consider in finding Hassan’s testimony incredible. See 8 U.S.C. § 1158(b)(1)(B)(iii); cf. Tarraf, 495 F.3d at 534 (recognizing that return travel to the country of persecution may be a factor weighing against an applicant’s credible fear of persecution); Balogun v. Ashcroft, 374 F.3d 492, 500-01 (7th Cir. 2004) (upholding an adverse credibility determination based in part on the applicant’s multiple prior trips to the United States and the United Kingdom without seeking asylum).

The CtApp found that the IJ's mischaracterization of the Petitioner's testimony did not taint his adverse credibility finding.

Because the discrepancies were minor and there was an undoubted mischaracterization of his explanation, the 7th Cir "thought it best" to review the alternate holding.  The CtApp found that the record did not compel his interpretation events, i.e., that an informer reported his presence to the police; it might also have been that they shot at him because he fled.  Likewise, shooting at unidentified individuals isn't like detaining, arresting, or beating someone - since the soldiers might have shot without knowing who he was, it might not have been intentional persecution. As to future persecution, Oromos are 40% of the population, so his mere membership can't be enough. And the evidence didn't compel the conclusion that the Ethiopian govt knew of his views or of his father's OLF membership. 

[NB: NIJC was co-counsel on this case]

Read opinion here  

Cendrawasih v. Holder (7/2/09)BOUDIN, Tashima, Howard Petitioner, an Indonesian Christian and ethnic Chinese, was denied asylum, withholding and CAT because the IJ and BIA found she failed to establish a well founded fear of future persecution.  The Court rejected Petitioner’s argument that the IJ and BIA should have considered her brother’s and husband’s successful protection based claims.  The Court held in Ticoalu v. Gonzales, 472 F.3d 8 (1st Cir. 2006), that the BIA needed to consider whether the order granting Ticoalu’s brother asylum was material to Ticoalu’s claim.  However, in the present case, the Court found that after Cendrawasih filed her PFR, the BIA reviewed the grant of asylum to her brother so Ticoalu’s reasoning was not applicable.  Interesting to note is that Ticoalu is actually the case of Cendrawasih’s husband who now has withholding of removal.  Unfortunately, the Court concluded that the IJ and BIA findings that her husband’s case was distinguishable from her case and that a well founded fear of future persecution had not been established, were supported by substantial evidence. 

However, the Court then stated “It is not easy to sustain an order expelling Cendrawasih-the parent of a young son- while her husband is entitled to remain in the county.  But the problem is not that there exists proof of a well founded threat to Cendrawasih’s safety: it is that Congress does not allow for derivative states to the spouse of one who himself is entitled to withholding of removal (citations omitted), even though this could result in the break-up of a family.  Congress can alter this policy; we cannot.”

 

Read opinion here...

Kedjouti v. Holder (7th Cir. 7/9/09)

FLAUM Easterbrook Bauer

Algerian man feared persecution by Islamicists for past military service.  But failed to apply within one year, so it was just a withholding claim.  Said the Court: "The evidence in this case is grave. Islamic terrorists’ practice of creating fake roadblocks to target and brutally murder members of the Algerian military is appalling. However, the standard of review provides us no leeway here.... There is no evidence that compels the conclusion that it is more likely than not that Kedjouti will face persecution if returned to Algeria, as is required for us to grant a petition of review of a BIA order denying withholding of removal."

Read opinion here: 

Gomis v. Holder (4th Cir. 7/6/09)

NIEMEYER, Siler (6th), Gregory (dissenting)

The Petitioner is a woman from Senegal who fears FGM from her family, which subjected her sister to forced FGM as an adult, before marriage. FGM is illegal but tolerated in Senegal.

1.  The 4th Cir joined the majority of circuits in finding no jurisdiction over her arguments for extraordinary circumstances and changed country conditions.  She argued that when her sister was forcibly subjected to FGM, that (a) it was a change arising in Senegal, (b) it told her that the change in law in Senegal didn't make her safe, and (c) that it was a significant and extraordinary event.  The IJ said that she left Senegal because of fear of FGM.  The 4th cir found no jurisdiction, holding that "the question whether the changed or extraordinary circumstances exception applies to excuse an alien’s delay in filing her asylum application is a discretionary determination based on factual circumstances."

2.  The CtApp upheld the IJ's denial of withholding - the IJ said she couldn't meet the 50.1% standard, the CtApp agreed:

The record shows that the incidence of FGM in Senegal is low and that the practice hardly occurs in urban areas, such as Dakar. Further, most women have not been forced to undergo FGM, and the incidence of FGM is decreasing. Gomis, as an adult, is even less likely to be forced to undergo FGM because 90% of the women who undergo the procedure are between two and five years old at the time of the procedure. In addition, both practicing FGM and ordering FGM to be carried out on a third party are crimes, and prosecutors now bring criminal charges against perpetrators. Gomis was 29 years old when the BIA dismissed her appeal, and her family lives in Dakar. She is relatively well educated, especially in a country where the adult illiteracy rate approaches 40%, having had 12 years of schooling. The weight of the record evidence, including her age, her education, and the decreased incidence of FGM in Senegal, specifically in Dakar, supports the immigration judge and BIA’s finding that it is not more likely than not that Gomis will face persecution.

The CtApp distinguished its earlier decision in Haoua v. Gonzales, 472 F.3d 227 (4th Cir. 2007) because that case involved asylum, not withholding.

Gregory, concurring and dissenting - would find a near-100% chance that she will be subjected to FGM, because in her ethnic group it is very common.  Did the math, 20% of women in Senegal are subject to FGM, and 90% are under age 5, but that still means 120,000 adult women are subject to FGM.  Majority fails to note her ethnicity and her father's intention that she be circumcised.  [Judge Gregory did not note the jurisdictional issue, so presumable he concurred in the lack of jurisdiction.]

Read opinion here: 

Zhao v. Holder (6th Cir 6/16/09)

DOWD (dct) Martin Gillman

The 6th Cir amended its earlier decision to take note of the AG's decision in In re J-S-, 24 I&N Dec. 520, 536-38 (A.G. 2008), but that seems mostly irrelevant to the case.  The 6th Cir upheld the IJ's adverse credibility finding against a Chinese asylum seeker, because of various discrepancies between his testimony and his asylum application, and because he didn't offer corroboration from his family (which he could have obtained).

Read opinion here: