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.
This case considered prolonged detention pending a CtApp appeal, where a stay of removal was entered. The CtApp found that it couldn't be mandatory, but that continued detention was in fact authorized - and CtApp couldn't review the amt of IJ bond.
(a) that prolonged detention is not authorized by 1231(a) or 1226(c), so that 1226(a) is the appropriate statute for analysis;
(b) that where removal is possible to the person's country (in this case, Mexico), that prolonged detention is not unauthorized by the statute, as in Zadvydas or Ly v. Hansen (distinguishing Nadarajah, which involved a possible AG certification, as unique)
(c) declined to address whether Govt has burden of proof as to flight risk and dangerousness, because here the IJ set a bond (implicitly finding him not to be a flight risk);
(d) found no jurisdiction over the claim that the bond amt was excessive - jurisdiction stripped by 1226(e).
Where petitioner had filed a motion to reopen and remand with the BIA, in order for him to be able to apply for an extreme hardship waiver under INA 216A, the court held that it had jurisdiction to review the Board's denial of this motion for abuse of discretion and that this appeal was not insulated from appellate review simply by being labeled "discretionary."
However, in reviewing the Board's denial of the motion to remand, the court concluded that the Board had not abused its discretion. The Board's interpretation of the regulation - that the extreme hardship period was only the period that the alien was admitted for permanent residence on a conditional basis - was permissible, and the Board was therefore not required to consider evidence following the end of this period (including his second wife's naturalization and children's birth certificates). Absent this evidence, the Board did not abuse its discretion in determining that petitioner had failed to present previously unavailable material evidence such that a motion to remand was warranted.
The First Circuit found that the BIA did not err as a matter of law or abuse its discretion in holding that Kechichian was not a member of a particular social group and denying a motion to reopen as new evidence presented by Kerchichian would not have entitled her to relief. The new evidence consisted of proof that Kerchichian’s son is not recognized as a citizen of Armenia as his father is not Armenian. The Court declined to recognize that potential persecution to Kerchichian’s son is not a sufficient ground through which Kerchichian herself could claim asylum or withholding of removal. While the Court recognized that the Sixth Circuit, in Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), had found that a mother would feared her daughter would be subject to genital mutilation was eligible for asylum, the Court considered Kerchichian’s case distinguishable and noted that the Sixth Circuit is not binding case law
The 2nd Cir. granted this PFR where petitioner from the Democratic Republic of Congo was denied asylum by the IJ, and the Board affirmed, stating that conditions in the DRC had changed to the extent that there was no evidence that petitioner would face persecution. The court found that the Board had improperly inferred that the general improvements of conditions in Congo rebutted the presumption of a well-founded fear of future persecution and that the Board ought to have conducted an individualized analysis of whether the changes in Congo were so fundamental that they were sufficient to rebut this presumption.
The 9th Cir. found that the Real ID Act overturned its prior asylum case law, requiring that a persecutor be motivated "at least in part" by one of the five protected grounds. The new standard is higher:
A “central” reason is a reason of primary importance to the persecutors, one that is essential to their decision to act. See supra at 9243. In other words, a motive is a “central reason” if the persecutor would not have harmed the applicant if such motive did not exist. As noted above, persecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was “at least one central reason” for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.
The Court found that the utterance of a racial slur, standing alone, was not enough to show that her race was a cause of the attempted rape.
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