3rd Cir agreed with the IJ and BIA that petitioner from Colombia had not established past persecution on account of a protected ground, but found that petitioner had a well-founded fear of future persecution as a member of a particular social group - women who escaped FARC. The court remanded to the BIA to address whether petitioner could reasonably relocate, and also to address her withholding and CAT claims.
Petitioner was convicted of both a state felony and a federal felony in 1990. He was placed into removal proceedings and ordered removed in 1994 based on the federal aggravated felony conviction. When the federal conviction was vacated in 1998, the gvt reopened the case and vacated the removal order but a few months later issued a new NTA charging petitioner with removability as an ag fel based on his 1990 state felony conviction. The 2nd Cir. held that res judicata did not bar DHS from this, rejecting petitioner's argument that DHS was barred from charging him twice with removability as an ag fel, since each removal claim was predicated on a separate conviction for a distinct offense prosecuted in a different jurisdiction.
Also, claim preclusion did not apply, nor did 8 CFR 1003.30 (stating that DHS may lodge additional charges and allegations during removal proceedings) require that DHS lodge all deportation charges in a single proceeding.
In this unpublished opinion, the 10th Cir. found that the BIA had not abused its discretion in omitting a detailed discussion of 42B relief when it denied petitioner's motion to reopen based on ineffective assistance and where petitioner had only referred to 42B relief but did not provide evidentiary support for this claim.
The 8th Cir. denied this PoR of a withholding claim by 2 Hungarian citizens of the Romani ethnicity, finding that substantial evidence supported the BIA's finding that the prejudice and discrimination petitioners had faced did not rise to the level of past persecution and that, likewise, petitioners did not face a clear probability of future persecution.
Also, because petitioners did not apply for asylum w/in one year of arrival and failed to show extraordinary circumstances, the court lacked jurisdiction over this claim.
Arca-Pineda v. Attorney General, 3rd Circuit 5/28/08
Rodriguez, McKee, Garth
Where petitioner was served with an order to show cause the same day she entered without inspection, and the IJ later admin closed her case, the stop-time rule applied and thus petitioner acquired zero physical presence and was not eligible for suspension of deportation, despite the admin closure. The court rejected petitioner's equal protection argument.
Mai Yang v. Mukasey, 8th Cir. 5/27/08 (unpublished)
BYE, Smith, Benton
In unpublished opinion, 8th Circuit affirmed BIA's denial of petitioner's motion to reopen to apply for asylum based on Hmong ethnicity and Christian faith. Petitioner did not present evidence that country conditions had changed since her removal hearing such that she now had, but did not previously have, a fear of persecution in Laos. Furthermore, the court lacked jurisdiction over petitioner's newly raised argument for reopening to apply for withholding/CAT based on extra-marital pregnancy, since she did not raise this argument below.
The Petitioner filed a late Petition for Review, after his previous atty failed to check his mailbox in time for a Petition for Review to be filed - Petitioner also filed a Lozada mtn to reopen, but the Board refused to reopen and reissue, finding post-BIA decision atty malfeasance beyond its realm. The CtApp found (a) that the late-filed PfR was untimely, (b) that there was no harm in the address the Board used, (c) that the Board had no obligation to reissue an opinion where it hadn't made a mistake, and (d) that police visit to house in Cameroon did not create reasonable fear. The CtApp also agreed with Board that it had no authority to consider atty incompetence post-BIA decision. However, based on the "zipper clause" of 1252(b)(9), it found that it (the CtApp) had jurisdiction to consider the ineffective assistance. But it held that there is no constitutional right to an administrative remedy for ineffective assistance:
It is a basic principle of American constitutional law that * * * the Constitution applies only to the federal government which it creates and, via the Fourteenth Amendment and certain other clauses, to the governments of the several states. The Supreme Court long ago held that the rights guaranteed by the Constitution "cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings." It follows that an alien’s counsel cannot violate his client’s Fifth Amendment rights unless he can be said to be engaging in state action. * * *
Simply put, Afanwi’s counsel was not a state actor, nor is there a sufficient nexus between the federal government and counsel’s ineffectiveness such that the latter may fairly be treated as a governmental action. To the contrary, Afanwi’s counsel was privately retained pursuant to 8 U.S.C. § 1362, and his alleged ineffectiveness — namely his failure to check his mailbox regularly and to file a timely appeal — was a purely private act. The federal government was under no obligation to provide Afanwi with legal representation,46 and there was no connection between the federal government and counsel’s failure to check his mail. Thus, Afanwi’s counsel’s actions do not implicate the Fifth Amendment, and accordingly counsel’s alleged ineffectiveness did not deprive Afanwi of due process.
The 8th Cir held that the birth of a child in the US is not a change in the country conditions so as to justify an untimely motion to reopen. The CtApp also addressed the documents found persuasive in Shou Yung Gou, 463 F.3d 109, 114-15 (2d Cir. 2006) - but found that the Board's decision in Matter of J-W-S-, 24 I&N Dec. 185, 192 (BIA 2007), was a reasonable one. In dicta, the CtApp said that it wasn't the BIA which had issued a boilerplate finding, "It is Lin who has submitted a “boilerplate,” untimely motion to reopen and a carelessly argued petition for judicial review, no doubt for the reasons of delay that have caused these motions to be viewed with disfavor, by Congress as well as by the courts." Ouch!
The 7th Cir rejected Govt's attempts to apply "modified" categorical approach to CoV under 16(a) - however, on the merits, it found that "knowingly... caus[ing] bodily harm" involves the use of physical force. Re the CAT claim, the CtApp found that its jurisdiction was limited to questions of law and constitutional questions, and the argument that the BIA applied the wrong standard of proof was basically a factual claim.
The Govt sought rehearing of the 2d cir's earlier decision remanding a case to the Board for consideration of whether the person might be a citizen. Govt argued that CtApp needed to transfer case to DistCt, instead of remanding to BIA. CtApp disagreed: "We believe the power to decide the merits of a claim for citizenship, initially presented to an administrative agency, necessarily encompasses the power to remand to that agency." Though the Court conceded that mom's failure to naturalize before child turned 18 might doom claim, it remanded to Board to get its views. Noted that Govt usually wants the CtApp to defer to the Board's views, found it appropriate in this case.
The 9th Cir agreed that it had jurisdiction to review continuance denials: "Most circuits have held that 8 U.S.C. § 1252(a)(2)(B)(ii) does not strip jurisdiction over petitions challenging an IJ’s discretionary denial of a continuance, even absent constitutional claims. See Alsamhouri v. Gonzales, 484 F.3d 117, 121-22 (1st Cir. 2007) (citing cases from other circuit courts addressing the same issue)." The CtApp found no abuse of discretion, however. Further, it found no Due Process violation in the continuance denial, "because Sandoval-Luna does not have a cognizable liberty interest in discretionary relief from removal. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004) (citing Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003))." Finally, it upheld under rational basis review the requirement that Cancellation applicants have a qualifying family member.
Immigration Litigation Update 
