Petitioner's former counsel threatened to withdraw 2 hours before a hearing (for personal reasons), unless he gave up his asylum claim and took VD. He did, but then sought reopening and complied with Lozada. The CtApp found that (1) where personal circumstances make it difficult to continue as counsel, an atty has a duty to withdraw in a way that won't harm the client; and (2) only the client, not atty, can settle the case; attys may not coerce settlement or withdraw because settlement is declined. CtApp found prejudice, noting potential asylum claim as to Afghanistan, and as to whether the state court had permitted him to withdraw his guilty plea only for immigration reasons, or whether his insanity had something to do with it.
Chinese woman was raped by factory manager, who also held a political position and had political connections. She wrote a letter denouncing it, and complaining that govt was corrupt. IJ disbelieved her because ("inherently implausible") she didn't go to a doctor; 9th cir found it eminently believable that she wouldn't go to a doctor. IJ found difference with airport interview (where she didn't mention visits by police); but interviewing officer immediately moved onto a different topic, so CtApp found it wasn't good impeachment evidence. IJ also found that persecution was personal, not political; but CtApp found the corruption angle was at least one cause for persecution.
The First Circuit held that it lacked jurisdiction to review Ms. Lutaaya’s denial of asylum as the Court held there was no due process violation in the IJ and BIA finding that her asylum application was untimely and was unexcused by circumstances. The Court further held that the IJ and BIA properly denied Ms. Lutaaya’s withholding claim due to material discrepancies between documents she provide to the Court and her statements to the immigration court and those she previously made to the asylum officer. Included in the list of discrepancies outlined by the Court was that “Lutaaya had also reportedly told the asylum officer that five soldiers, not four, were involved in the attack and rape.” The Court also found that it lacked jurisdiction to review Ms. Lutaaya’s CAT claim as this 9sue was not raised before the BIA
The 9th Cir found that a woman who loaned her kids' birth certificates to her father and sat there while he tried to use them to smuggle other kids into the country had not been shown to have engaged herself in smuggling. The CtApp held that "mere presence and acquiescence" do not constitute smuggling, as a matter of law.
Dissent - result is unfair and unfortunate, but the law says she's not eligible. Acquiescence is indeed not an affirmative act, and so does not constitute smuggling - but what happened here was not merely acquiescence. An oral statement (in this case, permission for her father to use the birth certificates) can be an affirmative act: "in my view, Modesta’s agreement that her father could use her son’s birth certificate was “an affirmative act of assistance” sufficient to constitute alien smuggling under INA § 212(a)(6)(E)(i) and Altamirano. The fact that she was “reluctant” to do so and agreed only to avoid disappointing her father does not change this result."
Redd v. Mukasey, No. 07-3263 (8th Cir.) July 29, 2008
Smith, Gruender, Rosenbaum
In Redd v. Mukasey, the petitioner sought asylum from Liberia, claiming he had been forced to spy on members of his own ethnic group, the Krahn, by an official of the Charles Taylor regime named Gbollie, after being held prisoner for three to four days. Although he provided no useful information to the official, Redd claimed nonetheless to be targeted on account of his membership in the Krahn when members of the Taylor regime broke into his home and raped his wife. Thereafter, Redd testified that he sought help from the chief of security at the US Embassy in Liberia, who provided him with a letter written by Gbollie to a colonel, confirming Redd was targeted for death. Redd traveled throughout Liberia en route to escape with this letter and eventually fled Liberia using his Liberian passport.
The Eighth Circuit found that substantial evidence supported the IJ’s finding that Redd’s testimony was both incredible and implausible and his corroborating evidence insufficient. The court found significant inconsistencies based on Redd’s testimony that both he and his wife’s parents were present at home on the night she was raped, while his wife testified that they were not; and that the affidavit submitted by the chief of security for the US Embassy in Liberia claimed Redd had been beaten during his detention while Redd testified he had not. Further, the court agreed with the IJ in finding implausible Redd’s testimony that he traveled through various military checkpoints when escaping Liberia with the letter targeting him for death and that he was eventually allowed to leave Liberia despite the death sentence.
In an alternate holding, the Eighth Circuit stated that even if Redd had been found credible, any presumption of future persecution was overcome by the fact that the Taylor regime is no longer in power in Liberia, that Charles Taylor himself is being tried at the Hague for war crimes, and that there was no evidence that the current Liberian regime persecutes the Krahn.
Hayrapetyan v. Mukasey, No. 06-9538 (10th Cir. 2008) July 28, 2008
Tymkovich, McKay, Seymour
Tenth Circuit Grants Petition for Review, Reverses IJ’s Findings As to Persecution on Account of Political Opinion and Reiterates its Definition of What Constitutes Persecution
In Hayrapetyan, the Tenth Circuit reversed the Immigration Judge’s denial of asylum to an Armenian journalist. Ms. Hayrapetyan had worked as a television reporter for a private television station in Armenia on stories that exposed the corruption and human rights abuses of the Armenian government under President Korcharian. On various occasions, officials of the Korcharian government had threatened or harmed Ms. Hayrapetyan and her family. The IJ denied asylum and the BIA summarily affirmed.
The Tenth Circuit found that 1) the IJ applied the wrong legal standard in finding that Ms. Hayrapetyan was not persecuted by government actors on account of her political opinion and that 2) the IJ erred in finding that the Ms. Hayrapetyan had not suffered past persecution. The Court noted that the IJ had overlooked crucial evidence that Ms. Hayrapetyan had been harmed by the Armenian government and groups within its control because of her investigative work, and not merely by “individuals whose corruption was aberrational.” (citing Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)). The Court stated its concurrence with other circuits “…that official retaliation against one who threatens to expose governmental corruption may, in certain circumstances, amount to political persecution.” The Court also found that, when considered in its totality, the record evidence that Ms. Hayrapetan had been jailed on two occasions, once overnight; beaten; nearly run over by a car; lost her job; that her husband had been beaten twice, resulting in his hospitalization for 15 days after attempting to visit her in jail; and that government actors had attempted to kidnap her daughter did indeed amount to persecution. Kapcia v. INS, 944 F.2d 702 (10th Cir. 1991), distinguished.
In a non-LPR Cancellation case, the Petitioner argued that the Board failed to apply its own precedent - Matter of Recinas - which would have led to a finding of extraordinary hardship. The CtApp found that Board failure to follow precedent is not a discretionary decision, so 1252(a)(2)(B) didn't bar review - thus, no need to reach whether failure to file precedent is a question of law under 1252(a)(2)(D). (Note that the 6th Cir treats 1252(a)(2)(B) as barring only review over discretionary questions.) However, the CtApp found that such review must be deferential, and limited to whether the Board made a reasonable application of its precedent to this particular case.
The Petitioner sought to remove the conditions on her LPR status (married to USC), but they lived apart much more than they lived together, and seemed possibly involved with other people (though both deny it). Govt had BoP that it was a sham marriage. CtApp found that facts didn't compel a contrary finding, even if the alternate explanations were not impossible: "Hassen and Ali acknowledge that the marriage has been rocky since Ali moved to Wisconsin, but they argue that it was entered into in good faith. Hassen contends that they are trying to establish themselves financially before establishing a home together and that in their culture, similar arrangements are not uncommon. Although not beyond the realm of the possible, Hassen’s explanations are not so strong that any reasonable fact-finder would be compelled to accept them."
She also sought asylum - denied on credibility grounds, based on alleged inconsistencies with visa app (where she didn't say that she was hiding for 2 years). Again, evidence didn't compel alternate conclusion.
Under 2006 regulations, IJs don't have jurisdiction to consider AOS applications by arriving aliens - but USCIS has concurrent jurisdiction to do so. The IJ and BIA denied a continuance here, because the Petitioner is an arriving alien, and so the application is outside their jurisdiction - but didn't consider the reg comment that “it will ordinarily be appropriate for an immigration judge to exercise his or her discretion favorably to grant a continuance . . . in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation hearing.” See Interim Rule Notice, 71 Fed. Reg. at 27,589-90. Ct app held that:
1. Jurisdiction not stripped by Ali v. Gonzalez, 502 F.3d 659, 663 (7th Cir. 2007), because would have the “effect of nullifying the statutory opportunity to adjust status.” Id. at 665 (citing Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004)).
2. Found that denial of continuance to let USCIS decide Adjustment had effect of denying AOS, because (a) removals usually have to be effectuated within 90 days, (b) you cannot adjust status from abroad.
3. Noted that ability for arriving aliens to adjust in proceedings would be illusory, unless agencies coordinate: "under the new regulatory regime, unless these subagencies engage in some minimal coordination of their respective proceedings—for example, by the immigration courts favorably exercising discretion, in the appropriate case, to continue proceedings to allow the other subagency to act—the statutory opportunity to seek adjustment of status will prove to be a mere illusion."
4. Disagreed with 11th Cir in Scheerer v. U.S. Attorney Gen., 513 F.3d 1244 (11th Cir. 2008): "In our view, the fact that Mr. Ceta’s application, in accordance with the amended regulation, will not be adjudicated by the immigration courts is not a sound or responsive reason for denying his continuance request. See Sheng Gao Ni, 520 F.3d at 129-30; Kalilu, 516 F.3d at 780; see also Benslimane, 430 F.3d at 832; Subhan, 383 F.3d at 595 * * * * Indeed, granting a continuance in appropriate cases, as contemplated in the Interim Rule Notice, will ensure that the immigration courts do not intrude into the USCIS’ new role, under the amended regulations, as the sole adjudicator of adjustment applications. Furthermore, any difficulty in coordinating the proceedings—for example, after the USCIS adjudicates the adjustment application—may be resolved by counsel notifying the IJ of the ultimate outcome of the adjustment application." [Note pending cert petition in Scheerer. - CR]
5. Found that Board gave no good reason for denying continuance. Failure to file AOS with USCIS until appeal was not unreasonable under these odd circumstances (where regs enacted while case at BIA). CtApp noted that it would take 12 months to adjudicate the I-485, by which time he would have been long-removed.
6. Because it ruled for Petitioner on other grounds, did not address argument that Board's denial of the continuance was contrary to the purpose and intent of the regulation.
Rodriguez-Echeverria v. Mukasey (9th Cir. 7/25/08)
FISHER Paez Robart (dct)
The Petitioner was detained at the border, and later charged to have tried to smuggle her nephew into the US. She moved for suppression for lack of Miranda warnings - the regs, 8 C.F.R. § 287.3(c), require Miranda warnings for some warrantless arrests, and describe non-arrests as follows: “as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.” 8 C.F.R. § 287.8(b)(1). The CtApp found that where she wasn't free to leave, she was under arrest - so granted Petition and remanded to BIA and IJ for analysis of whether any advisals re counsel were required (and if so, since they weren't given, whether suppression is appropriate). Separately, the CtApp strongly suggested that the case shouldn't have been decided by a single-member BIA opinion, since there is no current caselaw analyzing the applicable regulation.
The petitioner won an appeal before the 9th cir, case remanded to BIA - has been in detention for almost 7 years. Based on the same-day decision in Prieto-Romero, the CtApp found that 1226(a), not 1226(c) or 1231(a) applied to his future detention.
We reject the government’s suggestion that § 1226(c) mandates Casas’ detention for the duration of his now seven-year confinement. As we explained in Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005), § 1226(c)’s mandatory detention provision applies only to “expedited removal of criminal aliens.” The Supreme Court similarly recognized in Demore v. Kim, 538 U.S. 510 (2003), that § 1226(c) was intended only to “govern[] detention of deportable criminal aliens pending their removal proceedings,” which the Court emphasized typically “lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal” his removal order to the BIA. Id. at 527-28, 530 (emphasis in original). The Department of Homeland Security (“DHS”) has similarly interpreted § 1226(c) to apply only “during removal proceedings.” See 8 C.F.R. § 236.1(c)(1)(i). The “conclusion of proceedings” occurs upon the dismissal of the alien’s appeal by the BIA. See id. § 1241.1(a).
* * * An alien whose case is being adjudicated before the agency for a second time – after having fought his case in this court and won, a process which often takes more than a year – has not received expeditious process. See Tijani, 430 F.3d at 1242. We therefore conclude that the mandatory, bureaucratic detention of aliens under § 1226(c) was intended to apply for only a limited time and ended in this case when the BIA affirmed Casas’ order of removal in July 2002. Thereafter, the Attorney General’s detention authority rests with § 1226(a) until the alien enters his “removal period,” which occurs only after we have rejected his final petition for review or his time to seek such review expires. See Prieto-Romero, slip op. at 9295.
CtApp found that 1226(a) does authorize continued detention (since removal to Colombia is possible), but that statute / procedural due process requires an individualized bond hearing: "There is a difference between detention being authorized and being necessary as to any particular person. We hold that the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention."
CtApp found that POCR review (w/ no admin appeal and no in-person hearing) fell far short of procedural DP requirements. Remanded to DistCt with orders to grant habeas unless ImmCt grants him a bond hearing or shows that one already occurred.
Immigration Litigation Update 
