Doissaint v. Mukasey (No.s 06-73218, 06-75390; August 18, 2008)
GRABER, Alarcón, Rawlinson
The 9th Circuit had before it two timely petitions for review from petitioner - one the direct appeal and one based on the BIA's denial of a motion to reopen. The BIA had ruled on the direct appeal that petitioner had abandoned his CAT claim on the appeal. The 9th Circuit held that petitioner had clearly not abandoned the CAT claim as he had briefed it on the direct appeal to the BIA. The 9th Circuit then held that the BIA could not correct this legal error by then mentioning in the denial of the MTR that they found no clear error in the IJ's decision.
The 9th Circuit remanded the direct appeal case to the BIA to examine petitioner's CAT claim in the first instance and dismissed the petition based on the MTR as moot.
US v. Medina-Valencia, No. 07-3642 (8th Cir.) August 13, 2008
BENTON, Melloy, Arnold
In Medina-Valencia, the defendant challenged the 16-level increase to his sentence based on the district court’s finding that his Texas conviction for sexual abuse of a child constituted a crime of violence for sentencing purposes under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The Court framed the question before it as whether the statute – Texas Penal Code § 21.11 - encompassed “abuse.” Finding that the statute was overinclusive, the Eight Circuit applied the modified categorical approach and looked to the indictments and plea agreement in the case. The charges in the indictment to which Medina-Valencia pled guilty reflected that the victim was under 17 years of age and a female, and that Medina-Valencia was at least 25 years at the time. Therefore, the Court found that the conviction indeed constituted “sexual abuse of a minor” to warrant the 16-level enhancement to Medina-Valencia’s sentence.
Ibrahim v. DHS, et al. (No. 06-16727; August 18, 2008)
KOZINSKI, Otero, N.R. Smith (dissent)
Ibrahim, a Malaysian Muslim, was studying at Stanford University on a student visa when she attempted to fly from San Francisco to Malaysia in January 2005. When her name appeared on the federal government's No-Fly list the airline refused to let her board. An airline employee called the San Francisco police. The police in turned called the Transportation Security Intelligence Service ("TSIA"). TSIA is within the Transportation Security Administration ("TSA") which is within the Department of Homeland Security. A TSIA employee told the police to prevent appellant from flying, to detain her, and to call the FBI. The police handcuffed Ibrahim and took her to the police station; two hours later Ibrahim was released on the FBI's instruction. Ibrahim flew out the next day to Malaysia after "enhanced" searches. Ibrahim hasn't returned to the U.S.
Ibrahim brought a lawsuit against multiple parties and the U.S. district court dismissed her claims against the federal government, the United Airlines defendants, and the TSIA employee who instructed she be detained. The district court ruled that 49 U.S.C. § 46110(a) stripped it of jurisdiction of Ibrahim's Administrative Procedure Act claim because the No-Fly list was an 'order' of the TSA. The 9th Cir. found here that the No-Fly List is compiled by an agency within the FBI; the FBI is not within the agencies named in 49 U.S.C. § 46110(a) and therefore the district court should not have dismissed Ibrahim's APA claim. Also, the TSA's involvement in the No-Fly list was not so "inescapably intertwined" with the TSA's orders as to strip the federal district court of jurisdiction under 49 U.S.C. § 46110(a).
The 9th Circuit upheld the dismissal of section 1983 and Bivens claims against federal officials, federal agencies, and the airline and its employee. Also the 9th Circuit upheld the dismissal of Ibrahim's Federal Tort Claims Act claim due to failure to exhaust administrative remedies. Finally, the 9th Circuit reversed the dismissal of Ibrahim's Bivens claims and state law claims against the TSIA employee who caused the police to detain Ibrahim and upheld the dismissal of her 1983 claims against that TSIA employee since he was not acting under color of state law.
The dissent argued that the dismissal of Ibrahim's APA claim against the federal defendants was proper.
Toufighi v. Mukasey, (9th Cir., August 18, 2008, No. 04-74010)
SINGLETON, Ikuta, Berzon (Dissenting)
The 9th Circuit here upheld the BIA's denial of Petitioner's Motion to Reopen based on marriage to a U.S. citizen and changed circumstances in Iran. Petitioner originally overstayed his NIV; in proceedings applied for asylum, withholding and VD; was denied asylum and withholding when IJ determined petitioner didn't actually convert to Christianity from Islam; appeal at BIA dismissed when Petitioner didn't file brief, but BIA granted 30 days to voluntarily depart. Petitioner did not depart but later filed Motion to Reopen citing marriage to a U.S. citizen and changed circumstances in Iran.
The 9th Cir. upheld the BIA's denial of the Motion to Reopen because it was not filed within the required 90 day period. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.§ 1229a(c)(7)(C)(I). Petitioner had made no argument as to tolling the 90 days within which to file a Motion to Reopen. The 9th Cir. did not reach the issue as to whether petitioner's failure to voluntarily depart made him ineligible for 10 years from relief under INA § 240B(d)(1)(B) since the Motion to Reopen was not filed within 90 days.
Petitioner alternatively argued for reopening based on changed circumstances in Iran arguing he would be perceived as a Christian convert if returned to Iran ("deteriorating conditions in Iran for those associated with United States or pro-Western ideology"). Alternatively petitioner argued that the IJ's decision that he did not convert to Chritianity was incorrect. The 9th Circuit held that the new information based on the former argument did not prove he would experience persecution and that it had no jurisdiction to review the IJ's original finding on the latter religious conversion issue.
The dissent noted that the legitimacy of petitioner's spititual conversion to Christianity, as opposed to his stated conversion to Christianity, was not the issue so much as the religious beliefs imputed to petitioner by the Iranian government. The status of being an "apostate" and renouncing Islam, even if done to gain asylum, is the issue, not the truthfulness of the conversion. The dissent would have remanded the case for proper evaluation of petitioner's imputed religious beliefs.
Jin v. Mukasey (2nd Cir. 08/15/08, docket nos. 05-5485-ag, 05-6367-ag,
06-0004-ag, 06-2998-ag)
WALKER,
Cabranes, Sack (concurring)
In this consolidated appeal of 4 cases, the 2d Circuit
joined the 3rd, 7th, 8th, and 9th
Circuits in agreeing with the Board’s published decision in In re C-W-L, 24
I&N Dec. 346 (BIA 2007) that petitioners, who sought to file successive
asylum applications more than 90 days following their final orders of removal,
based on changed personal circumstances alone, could not do so without also
showing changed country conditions, as required under the INA and regs when
filing an untimely motion to reopen in conjunction with an asylum
application.
The court engaged in
statutory interpretation, according Chevron deference to the Board’s decision,
and found the Board’s interpretation of the law - that an untimely motion to
reopen had to accompany a successive asylum application filed more than 90
after the final order to removal – was not arbitrary, capricious, or manifestly
contrary to the statute.
Moreover, the court rejected the petitioners’
constitutional claims, finding that the Board’s interpretation violated neither
due process nor equal protection.
Finally, the court rejected the petitioners’ international law claims
since neither the UN Protocol nor CAT created enforceable individual rights
beyond what had been implemented in statutes and regs, and domestic statutes
superseded any other conflicts with customary international law.
The Court found that as Ms. Chhay, both before the IJ and the BIA, did not raise changes country conditions in Cambodia as an exception to the one-year filing deadline for applying for asylum, the Court did not have jurisdiction to review her asylum claim and any possible exceptions to the one-year deadline. Furthermore, the Court concluded that there was no evidence of past persecution and that Ms. Chhay had not met her burden under the REAL ID Act of providing substantial evidence. The Court relied largely on its prior decision in Sela v. Mukasey, 520 F.ed 44 (1st Cir. 2008) to find that as Ms. Chhay had not presented any evidence other than her own statements about her membership in the San Rainsy party and had not explained why other “seemingly readily available” corroborating evidence had not been provided, she had not met the substantial evidence rule as discussed in Sela. Therefore, the Court found that the IJ and BIA properly denied Ms. Chhay’s request for withholding of removal. Finally, the Court held that CAT relief was also properly denied as she was unable to substantiate membership in the San Rainsy party and provided “her fear of torture is wholly speculative and her reasoning in support of it is amorphous.”
The Court did take the time to note that “The elliptical phraseology employed by the IJ in this case, in which he termed the petitioner’s testimony generally credible wile making it clear that he did not believe a specific portion of it (i.e. her claim of party membership), is confusing. Immigration judges would do well to take pains to use more straightforward language.”
Finally, the Court rejected both due process arguments raised by Ms. Chhay. In the Court’s opinion, there was no prejudice shown by the IJ possible not talking into account all the background evidence submitted as the failure to consider it would have been harmless. In addition, the Court rejected that the IJ gave insufficient weight to evidence of general conditions in Cambodia as the IJ weighing the facts against the interest of Ms. Chhay is not a due process violation.
Although the BIA found that Lordes missed his prior court date due to ineffective assistance of counsel, the BIA and the IJ concluded that this ineffective assistance of counsel “did not effect the respondent’s untimely filing of his asylum application”. The First Circuit found that as no legal or constitutional defect was properly raised by Lordes, the Court of Appeals has no jurisdiction to review the BIA/IJ finding that there was no excuse for the untimely asylum filing. The Court found that under its decision in Hana v. Gonzalez, 503 F.3d 39 (1st Cir. 2007 ), there was no merits to Lordes’s argument that the jurisdictional bar in 1158(a)(3) violates due process. Furthermore, the First Court found that there was no past or future persecution demonstrated, meaning that Lordes was not eligible for withholding of removal. Finally, the court held that there had been no evidence presented that Lordes would suffer harm or torture at the hand of the Brazilian government, therefore, CAT relief was also appropriately denied.
The 3d Cir found that the attempted "question of law" in failing to properly analyze evidence in waiver case was more factual than legal, and found no jurisdiction to consider it under 1252(a)(2)(D).
Petitioner also raised issue of collateral estoppel, because INS had adjudicated adjustment when it knew or should have known of past convictions. CtApp found the issue a question of law, but refused to apply because adjustment interview wasn't an adversarial hearing which could give rise to estoppel. Accord, Andrade v. Gonzales, 459 F.3d 538, 545 (5th Cir. 2006). Also, waiver issue wasn't litigated before INS (since crimes weren't disclosed), and fraud prevented full litigation. Accord Pereira-Barbeira v. INS, 523 F.2d 503, 507 n. 3 (2d Cir. 1975) (“The fraud on the basis of which [a petitioner] was granted ... adjustment of status necessarily vitiated any res judicata effect of those proceedings in the current deportation proceedings.”).
Choin v. Mukasey, No.s 07-70941 and 06-75823(9th Cir.)(August 12, 2008)
PREGERSON, Goodwin, Nelson
Petitioner came into the U.S. on a K "fiance" visa, married her U.S. citizen fiance, and filed an application to adjust status to lawful permanent residence. Five days short of two years later while still waiting for her adjustment interview she was divorced from her U.S. citizen husband. INS then denied her adjustment application and instituted removal proceedings. The 9th Cir. held that the language in INA § 245(d) that the AG "may not adjust . . . the status of a (K visaholder) except to that of an alien lawfully admitted to the U.S. on a conditional basis under section 1186a of this title as a result of the marriage of the nonimmigrant . . . to the citizen who filed the (K visa petition)" means petitioner here did not still need to be married to the citizen who filed the K visa petition and was eligible for adjustment. The court accorded the BIA decision here Skidmore rather than Chevron deference since it was an unpublished opinion and the BIA offered little explanation for its decision that 245(d) required the petitioner and K visaholder to still be married at the time of the adjustment interview.
Romero-Ruiz v. Mukasey, No. 06-74494 (9th Cir.)(August 13, 2008)
THOMAS, Trott, Hogan
Under former INA § 321, 8 U.S.C. § 1432, a child born outside the United States to alien parents becomes a citizen upon the naturalization of the parent having legal custody (where there has been a legal separation of the parents) or the mother (if the child was born out of wedlock) if (1) “such naturalization takes place while such child is under the age of eighteen years,” and (2) “such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent . . . or thereafter begins to reside permanently in the United States while under the age of eighteen years.” 8 U.S.C. § 1432(a) (repealed 2000).
Petitioner here argued that the meaning of "reside permanently" in the second clause in 1432(2) meant that he did not have to be an LPR - just residing in the U.S. - and that given the facts of his case he derived U.S. citizenship from his mother when she naturalized; petitioner was not a LPR when his mother naturalized although he was under 18. The 9th Circuit held, however, that "reside permanently" meant LPR status and therefore petitioner did not derive U.S. citizenship when his mother naturalized.
The 9th Circuit also determined that petitioner's false claim to U.S. citizenship did not fall within the INA § 212(a)(6)(C)(i)(II) exception since petitioner's father was not a U.S. citizen at the time of the false claim.
U.S. v. Flores-Villar, No. 07-50445(9th Cir.)(August 6, 2008)
RYMER, Hall, Kleinfeld
The Ninth Circuit affirmed the district court’s ruling that former INA §§ 1401(a)(7) and 1409, requiring five years residence after the age of fourteen on U.S. citizen fathers – but not on mothers – before they may transmit citizenship to a child born out of wedlock abroad to a non-citizen, did not violate the Equal Protection provisions of the Fifth Amendment. Petitioner had a substantial criminal history and six previous removal orders. In 2006 he was arrested again and charged with being a deported alien found in the U.S. after deportation in violation of INA §§ 276(a) and (b).
Petitioner attempted to defend on the ground that he obtained U.S. citizenship through his father. On cross motions in limine the district court ruled that Petitioner would not be allowed to present evidence that he believed he was a U.S. citizen. A contemporaneous N-600 application seeking a Certificate of Citizenship was denied since it would have been impossible for Petitioner’s U.S. citizen father to have been present in the U.S. for five years after his fourteenth birthday as required by § 1401(a)(7) since the father was 16 when petitioner was born.
The Ninth Circuit stated that the answer to the constitutionality of this former section of the INA “follows from the Supreme Court’s opinion in Nguyen v. INS, 533 U.S. 53 (2001).” In Nguyen the Supreme Court held that 1409’s legitimation requirements for citizen fathers, but not for citizen mothers, did not offend equal protection principles. The Ninth Circuit assumed, as did the Nguyen court, that the intermediate level of scrutiny applied to this case although they also stated that it would not matter if the law was “analyzed under intermediate scrutiny, a rational basis standard, or some other level of review in between.”
In finding that the former statutory provisions were constitutional the 9th Circuit stated: “(a)voiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests. The means chosen substantially further the objectives. Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”
The court’s reference to statelessness follows from the idea that relaxing the residence requirement for women makes sense “because many countries confer citizenship based on bloodline (jus sanguinis) rather than, as the United States does, on place of birth (jus soli).” If a U.S. citizen mother is not a dual national, and the illegitimate child is born in a country that does not recognize citizenship by jus soli alone, the child can acquire no citizenship other than his mother’s at birth. Although there are countries where the jus sanguinis doctrine runs through the mother and not the father, this was considered the minority view by the court here. Thus the distinction here by the former provisions of the INA had some basis for preventing statelessness.
Immigration Litigation Update 
