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.
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 The court accorded the BIA decision here Skidmore rather than Chevron deference since it was an unpublished opinion and the BIA offered little explanation for its decision that 245(d) required the petitioner and K visaholder to still be married at the time of the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.
The parties agreed to let the State Department investigate a Cameroonian asylum claim; the investigator wasn't told it was an asylum case, and there was no evidence that he acted to protect the confidentiality of the applicant. The IJ admitted the State Dept's summary of the findings. The 6th Cir reversed, finding:
(A) The disclosure of information violated 8 CFR 208.6 because (1) the oral agreement in court was not an "agreement in writing" to waive the confidentiality provisions, (2) though the summary didn't clearly say that confidentiality was violated, the questions asked, the answers given, and the lack of confidentiality instructions to the investigator, give rise to the reasonable inference that it was violated; and (3) there was no need for consulate to specifically state that she was an asylum applicant, since Govt could have concluded that from the information. Therefore, CtApp remanded to permit a new application based on the violation of the confidentiality provisions.
(B) The admission of the document violated due process and was fundamentally unfair, because it was multiple hearsay, it gives no evidence of how the information was gathered (so as to be able to assess the probity of the information), and the IJ appeared to rely on the State Dept's reputation in deferring to those findings.
(C) Error was prejudicial, because the rest of the credibility analysis wasn't supported by substantial evidence, the IJ would probably have reached a different conclusion if he didn't think the docs were false, and if past persecution had been established, would have given rise to presumption of future persecution.
Ezeagwu v. Mukasey, No. 07-1668, (8th Cir.) August 8, 2008
COLLOTON, Bye, Smith
The petitioner in Ezeagwu asked the Court to review the denial of his asylum, withholding and CAT claims as well as his claim of ineffective assistance of counsel by the courts below, and additionally, asked the court to remand his case back to the BIA for the taking of new evidence pursuant to 28 § USC 2347(c).
The Eight Circuit held that substantial evidence supported the lower courts’ findings of adverse credibility where there were inconsistencies between Ezeagwu’s written and in-court statements, including his testimony that he “forgot” about one episode of detention and abuse at the hands of the Nigerian State Security Services (SSS) as well as confusing dates of detention. Given these inconsistencies, the Court found it permissible for the BIA to find the lack of corroborating evidence without explanations as to why it was not obtainable to further defeat Ezeagwu’s claim.
The Court also rejected Ezeagwu’s contention that the BIA violated his right to due process in summarily dismissing his ineffective assistance of counsel claim, as it found that the BIA adequately addressed the claim to conclude that Ezeagwu failed to meet the requirements under Matter of Lozada.
Last, the Court declined to remand the case back to the BIA for it to take new evidence submitted by Ezeagwu pursuant to 28 § USC 2347(c), holding that 8 USC § 1252(a)(1) precludes the federal courts of appeals from taking new evidence under the former section.
Quinchia v. U.S. Att’y General, No 07-12248, (11th Cir.)
August 7, 2008
SILER, Anderson,
Hull
In Quinchia, the
petitioner sought review of the BIA’s finding that he did not meet the seven
years’ continuous lawful residence requirement for a discretionary waiver under
INA § 212(h); 8 USC § 1182(h). Quinchia had become a lawful permanent resident
in January of 1998 and was subsequently convicted of robbery in June of
2002. Thereafter, he traveled and was
paroled into the United States
after traveling in January of 2004. A Notice to Appear (NTA) was issued in May
of 2004.
Quinchia argued that his lawful residence began as of the
time he applied for adjustment of status, in April of 1997, rather than on
January of 1998 when he was actually granted lawful permanent resident status.
The BIA disagreed and his appeal was dismissed by a single board member in an
unpublished decision.
The Eleventh Circuit first examined whether it would apply Chevron deference to a non-precedential BIA
decision decided by a single member that did not rely on existing BIA or
federal court precedent. Joining the Second
and Ninth Circuits, the Eleventh Circuit found that such decisions do not indeed
merit Chevron deference. Rotimi
v. Gonzales, 473 F.3d 55 (2d Cir. 2007); Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006). The Court
distinguished cases in which it applied Chevron deference to non-binding BIA
decision decided by a sole member, stating that in those cases, the single
board member had relied on existing BIA or federal court precedent. Silva v. United States Att’y General, 448 F3d 1229 (11th Cir. 2006).
But that was not the case here.
Next, the Eleventh Circuit turned to the merits of Quinchia’s
appeal – whether he had met the seven years’ continuous lawful residence. The Court gave itself two options: decide the
issue itself, applying the lesser standard of deference under Skidmore v. Swift & Co., 323 US 134
(1944), or remand the case to the BIA for a three-member panel to decide the
case. The Eleventh Circuit agreed with the conslusion reached by the Second Circuit in Rotimi and chose the latter option, declining to consider
the merits of Quinchia’s appeal without first allowing the BIA to do so.
The First Circuit found that Sinurat failed to establish both past persecution and an objectively reasonable fear of future persecution on account of his religious views and practices. While Sinurat tried to argue that since the IJ stated it was “unclear” if in 1992 when Sinurat was in high school, an attack by Muslim high school students was because Sinurat was Christian or because of school rivalries, the de novo standard is required. However, the Court concluded that since the IJ and BIA both conclude that regardless of the students’ motive, this one time incident did not amount to past persecution, there was no merit in Sinurat’s argument. Finally the Court concluded that IJ and BIA “reasonably found no connection between the Indonesian government’s treatment of Christians generally and the isolated attack on Sinurat.”
The Court found that Alexandrescu had not suffered economic deprivation in being demoted and eventually asked to leave his military position as he “lost his job, not his ability to make a living”. In rejecting Alexandrescu’s argument that he had established a fear of future persecution based on his fear of being imprisoned for failing to inform the military of his whereabouts as required by Romanian law, the Court stated that generally, “a sovereign nation’s normal penalties for avoiding military service are not considered persecution.” Finally, the Court held that Alexandrescu provided no proof of who specifically would seek to persecute him on account of any protected ground.
Aslam v. Mukasey (2d Cir. 08/08/08, Docket no. 05-1044-ag)
Pooler, Hall, Trager
The 2d Cir denied this petition for review of the IJ's decision finding petitioner removable and ineligible to adjust based on petitioner's inadmissibility due to previous marriage fraud. At his merits, petitioner's ex-wife testified via videoconferencing regarding her fraudulent marriage to petitioner. While agreeing that the admission of VTC testimony of witnesses must comply with due process, the court rejected petitioner's arguments that his due process rights were violated as the admission of the evidence was clearly probative and there was no evidence in the record that its use was not fundamentally fair. Moreover, petitioner was not prejudiced through the VTC testimony. The court next found that the IJ did not err in finding petitioner removable and ineligible for adjustment based on inadmissibility due to the marriage visa fraud. Finally, the court found that the BIA had not abused its discretion in summarily affirming without opinion the IJ's decision.
Finding both that Aronov was the prevailing party, that the government was not substantially justified in the delay and that the government was not entitled to Chevron deference, the First Circuit upheld the district court’s order granting Aronov’s EAJA application. The Court found that the District Court was correct in holding that there was “a material alteration of the legal relationship of the parties” since Aronov went from being an LPR to a USC and that there was a “judicial imprimatur on the change” as it was the order of the court remanding Aronov’s case back to USCIS so that it could grant his naturalization by a set date.
Furthermore, the Court rejected the government’s argument that the delay was substantially justified. The government attended to argue that under 8 U.S.C. § 1446(a) and the 1998 Appropriations Act require USCIS to wait for the FBI background check to clear before taking action on deciding a naturalization case. The Court found that there was no such requirement in either of the above statutes. The Court concluded that “In light of the120-day statutory directive, the agency’s long delay (over four times the statutory period), and the absence of any evidence that the government tried to expedite Aronov’s application to comply with the statute, the government’s conduct toward Aronov can only be classified as unreasonable and not substantially justified.” Therefore, the Court upheld the District Court’s EAJA finding and remanded back so that the fee award may be recalculated to reflect the costs of the appeal.
Immigration Litigation Update 
