The 1st Cir first overturned the IJ's adverse credibility finding - holding that the IJ improperly lept from an immaterial contradiction that didn't really exist anyway, to an adverse credibility finding. The Court found that substantial evidence didn't support that finding.
However, the CtApp affirmed on an alternate ground. CtApp acknowledged that the alternate ground had to be decided by the agency, per Chenery. However, it found an "implicit" alternate ground in the IJ's decision, that past mistreatment didn't rise to the level of persecution. It found most mistreatment was mere harassment; and that incidents were isolated. Also, evidence tended to undercut his fears, i.e., his parents still reside in Indonesia and he returned there after departing.
The 1st Cir held that conclusional statements, without details, that the Petitioner tried to locate his former lawyer were insufficient to satisfy Lozada - also noting that he didn't detail his arrangements with former counsel, or send the ARDC notice to the right place. Rejects argument that it was "substantial compliance," finding that it wasn't substantial, and that argument wasn't presented to BIA. No equitable tolling, since no due diligence.
The Petitioner had an outstanding removal order - he was in prison when the CAT was implemented, and did not discover the federal regulations giving him an opportunity to reopen his case for CAT relief. He argued that Due Process / Mullane required that the Govt give him actual notice. The CtApp published to "clarify that the general rules concerning adequacy of notice through publication in the Federal Register apply in the immigration context." CtApp did distinguish other cases where there was an allegation of a lack of a law library or legal materials, or an argument for equitable tolling.
The 9th cir held that it had jurisdiction - notwithstanding the doctrine of consular nonreviewability - to review a consulate's action for alleged constitutional violations. Accord, Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir. 1990); Burrafato v. United States Dep’t. of State, 523 F.2d 554, 556-57 (2d Cir. 1975); Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999).
The standard in such review is whether the agency gave a "facially legitimate and bona fide reason."
On the facts of the case - where the consulate said it had info from the DEA that the beneficiary was a drug dealer, and would only admit him if he became an informant for the DEA - the CtApp said that even if he wasn't a drug dealer, the consulate reasonably believed that he was. He would have had to allege that they didn't really believe that, or that the condition urged was illegal, before he could prevail.
The Court held that a Petition for Review did not render the Board's decision non-final, so as to toll the period for filing a timely Motion to Reopen. Accord, Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir. 2007) (per curiam); Randhawa v. Gonzales, 474 F.3d 918, 922 (6th Cir. 2007); accord In re Susma, 22 I. & N. Dec. 947, 948 (B.I.A. 1999) (en banc) (per curiam).
The 3 judges on the panel all concurred specially, suggesting that this would be an appropriate case for the Board to reopen sua sponte.
The 9th Cir held that conviction for failing to appear in court - under a Taylor analysis - did not constitute failure to appear before a court, because the federal offense was broader (including misdemeanors and material witnesses). Judicially noticeable documents did not show crime fell within 101(a)(43)(T). Granting Chevron deference to the Board's understanding of 101(a)(43)(U), the CtApp found that bail jumping was an obstruction of justice crime, however, and denied the petition.
Tallman, dissenting, would have found that it satisfied both 101(a)(43)(T) and (U).
Reviewing an L-1 denial for abuse of discretion, the 9th cir upheld USCIS's refusal to extend an L-1 visa where a company was 99% owned by the individual using it as a means to enter on the L-1. The CtApp agreed that someone managing an "essential business function" can qualify for an L-1, but found that he did not establish that his job was "primarily" to do so. Agreed with AAU that because company was small and he needed to oversee operations, as opposed to managing, that he didn't qualify for an L-1.
The 2nd cir held that it had jurisdiction to review the quesiton of whether a particular crime is a particularly serious crime, notwithstanding 1252(a)(2)(B)(ii):
we hold that, when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., “in the discretion of the Attorney General,” “to the satisfaction of the Attorney General,” etc.), the decision is not one that is “specified . . . to be in the discretion of the Attorney General” for purposes of § 1252(a)(2)(B)(ii).
Accord Alaka v.Att’y Gen., 456 F.3d 88, 98, 101-02 (3d Cir. 2006); contra Ali v. Achim, 468 F.3d 462, 468-69 (7th Cir. 2006). However, it upheld the Board's application of the Frentescu factors.
Then, the 2d cir rejected the argument that only aggravated felonies can be "particularly serious crimes" for withholding and asylum. It found the statute ambiguous, finding that the text could either help define PSCs, or could simply clarify the authoriy of the Board - as such, it deferred under Chevron to the Board's decision in In re N-A-M, 24 I. & N. Dec. 336, 337-41 (B.I.A. 2007). Contra Alaka v.Att’y Gen., 456 F.3d 88, 104-05 (3d Cir. 2006); accord Ali v. Achim, 468 F.3d 462 (7th Cir. 2006).
The 7th cir reversed the Board's denial of reopening where the reasons given were that heavy fines for population control laws were not persecution, and no physical force was to be used to force sterilization - this is so, said the Govt, even if she couldn't pay and got sterilized. The Court said no:
The implication is that if a government tells a religious heretic we are going to fine you $1 million for your heresy and if you cannot pay we are going to burn you at the stake, and the heretic cannot pay and therefore is executed, the burning of the heretic would not, in the Board’s view, amount to persecution. We cannot imagine that this is really the Board’s view, since in cases like In re T-Z-, 24 I. & N. Dec. 163, 173-75 (BIA 2007), the Board has said that “a particularly onerous fine” can amount to persecution even if nonpayment does not subject the victim of the persecution to physical violence.
The CtApp did suggest potential internal relocation, but since the Govt didn't argue that point, CtApp did not pursue it.
[An interesting side issue is whether this case conflicts with the Kucana case, decided the day earlier. Judge Posner didn't specify whether the Board's error was of law or of discretion... CR]
The 2d Cir upheld the reinstatement of removal regulations (which permit a deportations officer to decide reinstatement, rather than an IJ) against a challenge that they were ultra vires to the statute, under step 2 of Chevron. The CtApp also upheld the regulations against facial and as-applied due process challenges, and (pursuant to its earlier decision in Tenesaca Delgado v. Mukasey, 516 F.3d 65 (2d Cir. 2008)), found no ability to obtain adjudication of I-485 and waiver before reinstatement order was executed.
The Court further refused to permit a collateral attack on the underlying removal order:
This outcome does not offend due process because, “regardless of the process afforded in the underlying order,” reinstatement of the prior deportation order does not alter petitioner’s legal condition. Morales-Izquierdo, 486 F.3d at 497. The statute “does not penalize an alien for the reentry (criminal and civil penalties do that).” Fernandez-Vargas, 548 U.S. at 44. It merely gives effect to a final order issued after a formal hearing before an immigration judge. The purpose is to “stop an indefinitely continuing violation that the alien himself could end . . . by voluntarily leaving the country.” Id. As the Ninth Circuit put it, “[w]hile aliens have a right to fair procedures, they have no constitutional right to force the government to re-adjudicate a final removal order by unlawfully reentering the country.” Morales-Izquierdo, 486 F.3d at 498.
Accord: Lorenzo v. Mukasey, 508 F.3d 1278, 1283-84 (10th Cir. 2007); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489-95 (9th Cir. 2007) (en banc); De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1280-83 (11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842, 846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 17-20 (1st Cir. 2004); see also Tilley v. Chertoff, 144 F. App’x 536, 539-40 (6th Cir. Aug. 15, 2005) (unpublished).
[Analysis: The decision contains several unfortunate pieces of dicta. In passing, the Court suggested that 240(a)(3) requires a formal hearing "only [for] aliens already admitted to the U.S."; which seems at odds with the text, which says that 240 is the exclusive means ot determining "whether an alien may be admitted to the United States." The Court's decision that it could not employ constitutional doubt pre-Chevron seems at odds with St. Cyr. The due process analysis seems to require that the alien be in unlawful status before and after the reinstatement; but that is an assumption not always true. And most fundamentally, this applicant simply could not show any prejudice, having admitted an unlawful reentry - the rest of the analysis was really just unnecessary. - CR]
The IJ refused to continue the case for I-130 adjudication, based on the case completition goals (I-130 not adjudicated due to investigation of divorce decree). BIA affirmed, finding questions raised as to authenticity of divorce decree.
The 3d cir found the IJ's use of case completition goals was error:
This one-size-fits-all approach runs contrary to our statement in Ponce-Leiva that what “constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis according to the facts and circumstances of each case.” 331 F.3d at 377 (citation omitted) (emphasis added). Case-completion goals are ordinarily implemented as guidelines to promote reasonable uniformity and to help judges schedule and effectively manage their caseloads. As guidelines, they should not be read as an end in themselves but as a means to prompt and fair dispositions, giving due regard to the unique facts and circumstances of the case.
It also disagreed with OIL's argument that Petitioner should have filed a mandamus vs USCIS, and found that BIA's suggestion that the fault for the delay may have been Petitioner's - because of the alleged fraud - was a finding of fact, which the BIA is prohibited from making.
Immigration Litigation Update 
