The 9th Cir held that an asylee's return to their country of origin can be a grounds for making an adverse credibility finding in their case. The return home "inherently undermines her testimony that she experienced past suffering or that she feared returning home." [this seems a bit overboard, no? - CR]
Accord, Tarraf v. Gonzales, 495 F.3d 525, 530, 534 (7th Cir. 2007); Jean v. Gonzales, 461 F.3d 87, 89, 91 (1st Cir. 2006).
The 7th Cir found that it lacked jurisdiction to review motions to reopen, except for "questions of law" or constitutional questions. The 7th cir distinguished its prior decision in Singh (which held that to apply 1252(a)(2)(B)(ii) to reopening would make the consolidation rule nonsensical), finding that 1252(a)(2)(D) eliminates that problem.
Overturned, Singh v. Gonzales, 404 F.3d 1024, 1026–27 (7th Cir. 2005). Followed, Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).
The 8th cir held that "competing family business owners" is not an acceptable definition of a particular social group. Analyzing the case under Matter of A-M-E & J-G-U, 24 I&N Dec. 69 (BIA 2007), the CtApp found no evidence that the purported group have "social visibility," or a heightened risk of harm; and that it is too "amorphous" to be accepted.
The 8th Cir upheld a denial of asylum to Palestinian Christians, finding that while evidence could have supported an asylum grant, it was not strong enough to compel reversal. Sultani v. Gonzales, 455 F.3d 878, 881 (8th Cir. 2006).
The 7th Cir. issued a 24 page decision which upheld VTC hearings against a facial due process challenge, and found no evidence in this case of interference with lawyer-client relationship (because no attempt to consult during the trial); but found that VTC violated the right to examine evidence because Petitioner couldn't examine a document admitted by the Govt into evidence.
In other holdings, the CtApp found the Gontcharova standard for corroboration had been statutorily overturned, but found that because Real ID says that a credible asylum applicant may be granted asylum without corroboration, that it was incumbent on Board to address credibility. It rejected the argument that she couldn't reasonably produce corroborating documents, stating that she would at least have to explain what she tried before her explanation could be accepted (but noted that since the case is being remanded, that she can produce any new evidence on remand).
The 10th Cir looked behind the BIA's stated review standard (using de novo review) to determine whether the Board had erroneously reversed the IJ by applying a lower standard than the "clear error" standard required by the regs. The 10th Cir found that where there are two permissible readings of the evidence, there cannot be clear error - and found that the IJ's finding of credibility was permissible.
A Canadian/Syrian citizen was deported to Syria with (allegedly) the express intention that Syria torture him; he brought suit arguing that various individuals had personal and official liability under the TVPA and under a Bivens theory.
Holdings: (1) The Court held that US Govt officials were not acting "under color of foreign law" because they were not subject to the jurisdiction of Syria. (2) The CtApp held that the INA's administrative appeal and judicial appeal routes counseled against permitting a Bivens claim, notwithstanding the claim that the Govt acted to obstruct his filing of an appeal. (3) The states secret privilege, as well as national security considerations, counsel strongly against permitting a Bivens claim here. (4) That his Due Process claim re treatment inside US - that he was deprived of his right to counsel - fails because he had no right to counsel since that is only triggered by asylum or removal proceedings, and the Govt excluded him under 235(c) where you get no hearing before an IJ. (5) Argument that he should have been able to seek a court order to protect him from torture wasn't raised with specificity in the complaint. (6) Conditions claim was rejected because no "gross physical abuse," and he didn't allege a punitive intent where they deprived him of food and sleep and interrogated him for hours at a time (!?) [no discussion of whether this was a "legitimate" use of the detention]. (7) Declaratory Judgment rejected because a declaration that the exclusion was illegal wouldn't undo it, he'd still be inadmissible. The Court raised - but did not decide - whether the "zipper clause" of 1252(b)(9) would bar these claims, particularly where he alleged that US Govt officials prevented him from appealing his case.
Sack, dissenting: Majority treats this as if it were an immigration case, whereas it's really about Govt tactics. Did not disagree re TVPA dismissal, but argued that Due Process analysis was unduly narrow, Bivens approach incorrect.
PER CURIAM Leavy, O'Scannlain, Callahan - O'Scannlain and Callahan concurring specially.
In a tax evasion case, the 9th cir held that:
(a) The $10,000 loss prong is an element of the offense, pursuant to prior 9th cir caselaw (Kharana, 487 F.3d at 1284; Ferreira, 390 F.3d at 1098; Li, 389 F.3d at 897; Chang, 307 F.3d at 1189-90) - contra Singh v. Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 177-79 (5th Cir. 2008)).
(b) Under Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), the CtApp cannot even consider the record of conviction in determining whether it's an aggravated felony, because the amount of loss is not an element of the offense.
CtApp found it troubling, noting that even federal offenses don't fall into this definition - but found it compelled by prior case law.
O'Scannlain and Callahan, specially concurring:
Urging that the CtApps reject a strict application of Taylor's categorical test to immigration law, and particularly regarding 101(a)(43)(M).
The 1st Cir found a due process claim that the IJ failed to make an individualized analysis re the one-year asylum filing deadline "frivolous." On withholding claim, refused to disturb IJ's finding that beating by Pakistani police was an isolated incident that did not rise to level of past persecution; and found that instability in Pakistan was not enough (absent an individualized threat or a pattern of persecution) to meet future fear threshhold.
The 7th Cir criticized ICE's repeated refusal to release an individual granted a $15,000 (then $60,000) bond, despite an FBI letter alleging that he might be a security risk - but ultimately upheld the habeas denial because in the meantime he was granted Voluntary Departure under safeguards (i.e., without bond).
The 9th Cir rejected the adverse credibility determination against an Iraqi Chaldean rape victim who didn't disclose that fact initially: "A woman who has suffered sexual abuse by government officials in her home country may be especially reluctant to reveal that abuse to government officials in this country, even when such a revelation could help her asylum application. See id. at 1053. This is especially true when the woman is fleeing a country where reported rapes often go uninvestigated, and where rape victims are sometimes murdered by members of their own families because they have “dishonored” their families by being raped." The CtApp further held that the Govt didn't meet its burden to prove changed country conditions (assuming arguendo the past persecution), because (a) the Govt didn't submit the state dept report, the Petitioner did, and (b) the State Dept report suggests that abuses are ongoing against Chaldeans in Iraq.
Immigration Litigation Update 
