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(May 5, 2010) Judge
Colloton dissents in favor of finding jurisdiction over Lozada motion to reopen,
would find abuse of discretion in Board's denial.
Ochoa v. Holder,
No. 07-3715, 2010 U.S. App. LEXIS 9199 (8th Cir. May 5, 2010)
Read opinion here.
[ILCM NOTE: An
interesting and unusual opinion since Judge Colloton has often taken a narrow
view of the court's jurisdiction over BIA decisions. His dissent here is persuasive,
particularly since the BIA appears to have treated the motion as other than a
motion to reopen sua sponte. With Judge Colloton's dissent, and the significance
of the underlying question he would have sent back to the BIA (again), this opinion
may warrant a petition for rehearing/rehearing en banc.]
(April 29, 2010)
Asylum claim remanded to BIA where mistreatment applicant suffered, considered
cumulatively, compels finding of harm amounting to past persecution. BIA commits
"fundamental procedural error" that could support DP claim when it remands
to IJ solely for entry of missing removal order, but then dismisses second appeal
with comment that asylum applicant did not provide any new evidence to IJ.
Bracic v. Holder,
No. 08-2843, 2010 U.S. App. LEXIS 8877 (8th Cir. Apr. 29, 2010)
Read opinion here.
Bracic, an Albanian
Muslim in Montenegro, was targeted by Serbians. He was expelled from high school
and stopped by police in the street and harassed. He refused conscription into
army. Later he was on bus with other Albanian Muslims and was stopped by a group
of men who threatened that this "was the last time for Albanians to be in
the area." Six months later five men dressed in black came to Bracic's house,
called him a traitor, and beat him until he lost consciousness. He spent three
days in a hospital. When a group including some of the same men later returned
to his home one was in a police uniform. Bracic fled out the back window and left
the country. Police went to his sisters' homes after Bracic fled, threatened them,
and hit one in the stomach with a rifle.
The IJ denied asylum
finding Bracic failed to demonstrate past persecution. The BIA adopted and affirmed
the IJ decision but remanded because the IJ had not entered a removal order. On
remand the IJ and parties assumed the sole purpose of the hearing was for the
IJ to enter the removal order, though the IJ did ask Bracic if he had anything
further to present after entering the removal order, and he did not. Bracic filed
a second appeal to the BIA, which it dismissed in a brief decision noting both
that his arguments were substantially the same as presented in the first appeal,
and that Bracic had not offered any new evidence to the IJ on remand.
Bracic challenged
the second BIA decision on DP grounds since the Board had supposedly remanded
his case only for entry of a removal order, while its final decision noted he
had not filed any new evidence. The court ruled that the Board's schizophrenic
second decision amounted to a fundamental procedural error sufficient to raise
a DP claim, citing, among other precedents, Al Khouri v. Ashcroft, 362
F.3d 461, 462 (8th Cir. 2004) ("curtailing [petitioner's] testimony and circumscribing
his ability to elaborate on the details of his claim by instructing him only to
answer the questions asked and then concluding that [petitioner's] limited responses
undermined his credibility violates notions of fundamental fairness."). The
court found no DP violation for lack of prejudice, however, as Bracic identified
no new evidence and advanced no new issues that might have changed outcome of
his case.
The court did not
reach Bracic's claim of persecution based on forced military recruitment, finding
that changed country conditions rebutted it in any event. The 8th agreed with
Bracic, however, that his evidence of past mistreatment, considered cumulatively,
compelled a finding of harm amounting to past persecution on account of his Albanian
Muslim status, and that the government had not rebutted the presumption that he
had a well founded fear of future persecution. The court remanded with instructions
that the IJ consider whether Bracic merited asylum as a matter of discretion,
and also whether the record as a whole supported his withholding claim.
[ILCM NOTE: How
does this decision square with the Eighth Circuit's recent unpublished decison
Widarjono v. Holder?
Judge Wollman was on both panels. Why wasn't Bracic's petition for review dismissed
as untimely? And how do Bracic and Widarjono square with the BIA's
own decision, Matter of M-D-, 24 I. & N. Dec. 138, 141 (B.I.A. 2007),
regarding the proper scope of remands to an IJ? For more, read
this petition for rehearing that ILCM filed in Widarjono. The petition was
denied but the confusion persists…]
(April 21, 2010) No reversible error in adverse credibility finding where asylum
claimant failed raise incompetency as issue before IJ. No IJ duty to order cognitive
evaluation sua sponte on this record, if ever.
Azie v. Holder,
No. 09-1346, 2010 U.S. App. LEXIS 8207 (8th Cir. Apr. 21, 2010)
Read opinion here.
Azie claimed past
persecution in Cameroon due in part to a severe beating that left a noticeable
scar on her jaw and that she claimed had resulted in headaches, anxiety, depression,
trouble concentrating and processing information, and poor memory. Azie's evidence
and testimony presented inconsistencies going to the date of her beating. Notably,
a political membership card she submitted contained a photo, under a seal, which
showed the scar on her jaw but predated the time she claimed she was beaten. Azie
offered explanations for the inconsistencies and claimed the inconsistencies arising
from her own testimony were attributable to the effects of her beating. The IJ
found Azie not credible. The BIA affirmed.
The Eighth Circuit
rejected Azie's argument that the IJ and BIA failed to give proper weight to her
brain injuries because Azie never argued to the IJ that she was incompetent to
comprehend and respond to questions, though she could have. The Court rejected
the argument that on this record the IJ had any duty order a competency evaluation
of Azie sua sponte, but did note the First Circuit's decision, Munoz-Monsalve
v. Mukasey, 551 F.3d 1, 6 (1st Cir. 2008), which acknowledged that exceptional
circumstances might possibly give rise to such a duty in light of the competency
regulations 8 CFR 1240.4 and 1240.10(c).
The court thus
found the credibility determination supported by specific, cogent reasons amounting
to substantial evidence and denied the petition for review.
(April 6, 2010) Improper BIA fact-finding does not require remand where IJ
and BIA decisions are supported on separate grounds. DP claim waived for failure
to exhaust.
Chak Yiu Lui
v. Holder, No. 08-3651, 2010 U.S. App. LEXIS 7115 (8th Cir. Apr. 6, 2010)
Read opinion here.
(March 30, 2010) Adverse credibility determination upheld where: (1) the asylum
applicant failed to obtain certified translations, (2) State Department investigation
found records that contradicted information report and arrest warrant offered
by applicant, (3) two letters submitted from attorneys in Pakistan had similar
language, grammar, and spelling errors, and (4) testimony about the timing of
kidnapping inconsistent.
Nadeem v. Holder,
No 08-3829, 2010 U.S. App. LEXIS 6485 (8th Cir. Mar. 30, 2010)
Read opinion here.
(March 25, 2010)
8th circuit confirms it will review IJ decisions to deny a continuance in light
of Supreme Court's recent ruling in Kucana:
Thimran v. Holder,
2010 U.S. App. LEXIS 6180 (8th Cir. Mar. 25, 2010)
Read opinion here.
The Eighth Circuit
has acknowledged that the Supreme Court's recent decision in Kucana v. Holder,
130 S.Ct. 827, 831 , which holds that 8 U.S.C. §1252(a)(2)(B) does not bar
circuit courts from reviewing the denial of a motion to reopen for abuse of discretion,
also effectively overrules prior Eighth Circuit decisions, beginning with Onyinkwa
v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004), that had held the same statue
precludes judicial review of the denial of a continuance.
(March 22, 2010)
BIA abused discretion in denying motion to reopen brought by "arriving
alien" who sought continuance of removal proceedings while USCIS adjudicated
her adjustment of status application.
Clifton v. Holder,
598 F.3d 486 (8th Cir. 2010)
Read opinion here.
Clifton was an
arriving alien in removal proceeding who first sought to adjust status through
her USC husband in 2005, at time when 8 C.F.R. §1245.1(c)(8) still prohibited
any arriving alien in removal proceedings from applying for such relief. The IJ
held she had no jurisdiction to consider the adjustment application at all. Clifton
asked the IJ to continue the proceedings in light of Succar v. Ashcroft,
394 F.3d 8 (1st Cir. 2005)(holding 8 C.F.R. § 1245.1(c)(8) in conflict with
the adjustment of status statute), so that she could apply for adjustment before
DHS. The IJ denied a continuance, as well as voluntary departure, and Clifton
appealed to the BIA. While the BIA appeal was pending DHS and DOJ amended their
regulations to allow arriving aliens in removal proceedings to apply for adjustment,
but placing adjudication of such applications in the jurisdiction of DHS and not
the IJ or BIA. The BIA remanded only for the IJ to reconsider voluntary departure
and did not address Clifton's continuance motion. On remand, the IJ granted voluntary
departure but did not address Clifton's continuance request further. A month later,
before the voluntary departure had expired, Clifton's USC husband died. Clifton
filed an I-360 widow petition with DHS and moved the IJ to both stay the voluntary
departure and reopen. The IJ stayed voluntary departure to conduct a hearing on
the reopening motion, and at that hearing Clifton gave the IJ a copy of the amended
regulations and argued the case should be reopened and continued while DHS adjudicated
her I-360. The IJ denied reopening and Clifton appealed to the BIA again. DHS
approved the I-360 while the second BIA appeal was pending and Clifton moved for
a remand so she could pursue her continuance before the IJ while DHS ruled on
her I-485. This time the BIA dismissed Clifton's appeal for the sole reason that
under the amended regulation neither the IJ nor the BIA had jurisdiction to rule
on the I-485.
The Eighth Circuit
explained that "[t]he BIA abuses its discretion if its decision is without
rational explanation, departs from established policies, invidiously discriminates
against a particular race or group, or where the agency fails to consider all
factors presented by the alien or distorts important aspects of the claim. "
Then, quoting Ni v. BIA, 520 F.3d 125, 129-30 (2d Cir. 2008), the court
stated the "rote recital of a jurisdictional statement-even if technically
accurate-does not adequately discharge the BIA's duty." The court rejected
OIL's argument that Clifton was seeking an indefinite "stay of removal"
by having her case reopened and continued since reopening would eliminate any
removal order of removal. It also found that "to the extent that the BIA
interpreted Clifton's motion to remand as an attempt to have the IJ decide her
adjustment of status application, the BIA distorted an important aspect of Clifton's
claim." Clifton sought reopening not so that the IJ could decide the application,
but so that she could consider whether her pending application before the DHS
was good cause for a continuance, taking the amended regulations into account.
Finally, the Eighth Circuit made clear that in remanding it was not taking up
the question that some other circuits have of whether the adjustment statute and
amended regulations require IJs to continue removal proceedings while an arriving
alien pursues an I-485 before the DHS. The Eighth determined this was a question
best left to BIA in the first instance, but that however it resolved the matter,
"it must provide adequate reasons for doing so, thereby furnishing this Court
with a meaningful opportunity to review."
(March 8, 2010) Bar to judicial review for "criminal aliens"is not
overcome by grant of INA §209(c) refugee waiver, where refugee did not also
adjust status.
Freeman v. Holder,
596 F.3d 952 (8th Cir. 2010)
Read opinion here.
In this convoluted
case, Freeman, a refugee, had been convicted of credit card fraud (which he admitted
on appeal was a CIMT). He failed to appear at a continued IJ hearing following
his release from ICE detention. The IJ ordered Freeman removed in absentia. Freeman,
who had intended to pursue adjustment and a 209(c) waiver at his hearing, moved
to reopen and rescind the in absentia order. The IJ denied Freeman's motion, finding
his claims of insufficient notice not credible. During the evidentiary hearing
on the notice question, Freeman gave the IJ proof that DHS had granted him the
209(c) waiver he needed to adjust status. Freeman also asked the IJ to consider,
inter alia, testimony of an ISAP officer that Freeman claimed was relevant to
the credibility of his claims that he had in fact supplied a new residence address
upon his release from ICE detention and had not otherwise violated his ISAP conditions.
The IJ refused the testimony and upheld the in absentia order. On appeal to the
8th circuit Freeman argued (for the first time) that he was not "removable"
for his conviction because he was granted the 209(c) waiver, and that his conviction
therefore could not trigger the "criminal alien" bar to judicial review
at 8 USC 1252(a)(2)(C). The 8th circuit disagreed, holding the plain language
of INA 209(c) limits that waiver to "the purpose of seeking adjustment
of status" so does not itself cure removability. Notably, Freeman had
not adjusted status pursuant to the waiver (because he did not show up for his
hearing). The court thus found its review limited to legal and constitutional
questions under the REAL ID provision 8 USC 1252(a)(2)(D), it rejected Freeman's
legal/constitutional claims, and then dismissed the rest of his claims regarding
the in absentia order for lack of jurisdiction under 8 USC 1252(a)(2)(C).
(February 17, 2010) 8th circuit reconfirms mixed questions of law and fact
are "question of law" under 8 USC 1252(a)(2)(D), finds evidence met
"good faith marriage" standard, grants remand for agency to exercise
discretion.
Nguyen v. Holder,
2010 U.S. App. LEXIS 3075 (8th Cir. Feb. 17, 2010)(unpublished)
Nguyen v. Mukasey, 522 F.3d 853, 854 -55 (8th Cir. 2008)
Read Ngyuen II
here.
Read Ngyuen I here.
In the first Nguyen
opinion (2008), the 8th circuit denied a government motion to dismiss, which alleged
the court lacked jurisdiction to consider whether Nguyen had proven a "good
faith marriage" for purposes of her I-751 petition. The court held that while
8 USC 1252(a)(2)(B)(ii) deprives the court of jurisdiction over the ultimate discretionary
determination as to whether to grant an I-751 waiver, the REAL ID provision 8
USC 1252(a)(2)(D) restores jurisdiction over constitutional claims and questions
of law, with "questions of law" encompassing mixed questions of law
and fact. In other words, the court found jurisdiction to (1) identify what the
legal standard for a good faith marriage is, and (2) determine whether the undisputed
facts meet that standard. In the second Nyguen decision the court reached
the merits:
We conclude the
credited evidence here meets the legal standard for good faith. Nguyen testified
that Ly had wooed her and she fell in love with him; that their parents had met
to discuss marriage; and that after the wedding and honeymoon in Vietnam, she
went to live with Ly's mother, and he returned to the United States. She also
testified that after she came to the United States, she and Ly lived together
at her brother's home, and that Ly left her for another woman. Nguyen's brother
Ky testified that he and others had attended Nguyen's wedding in Vietnam, that
he allowed her and Ly to live at his home rent-free because Ly did not make much
money, and that Ly had abandoned Nguyen. The former wife of the uncle who had
introduced Nguyen to Ly testified regarding the couple's courtship and marriage.
Documentary evidence included photographs and videos of the couple's wedding ceremony
and wedding banquet in Vietnam, a marriage document from a Catholic church in
Vietnam, a marriage certificate issued by the state of Minnesota, a joint tax
return, statements from a joint bank account, and a health insurance statement
showing joint coverage. Because Nguyen demonstrated that she entered into her
marriage in good faith, she is eligible to be considered for a discretionary good
faith marriage waiver under section 1186a(c)(4).
2010 U.S. App.
LEXIS 3075 at 6 - 7. The second Ngyuen decision is the Court's clearest example
of mixed law and fact analysis in the context of an application for discretionary
immigration relief, and, though unpublished, it may prove useful to others seeking
circuit court review of mixed questions in cases involving separate forms of discretionary
relief, such as cancellation of removal.
[ILCM NOTE: Why
didn't Eighth Circuit publish Ngyuen II?]
(January 14, 2010) 8th circuit sides with 5th and 6th and against 9th in split
over whether certain convictions for use of an unlawfully obtained SSN involve
moral turpitude, where the use of the SSN was for an otherwise lawful purpose
Sohaib Bin Lateef
v. D.H.S., 592 F.3d 926 (8th Cir. 2010)
Read opinion here.
Lateef was convicted
of unlawfully obtaining a social security number under 42 USC §408(a)(7)(A)
a crime whose elements include intent to deceive for the purpose of wrongfully
obtaining a benefit, which Lateef agreed would normally be a CIMT. Lateef argued
that the crime did not involve moral turpitude based on a 1990 amendment to the
INA contained at 42 USC § 408(d), which exempted from prosecution for this
crime certain persons granted amnesty or registry and who violated the law prior
to January 4, 1991. Specifically, Lateef highlighted language in a House Conference
Report that explained the amendment:
The Conferees intend
that this exemption apply only to those individuals who use a false social security
number to engage in otherwise lawful conduct. . . . The Conferees believe that
individuals who are provided exemption from prosecution under this proposal should
not be considered to have exhibited moral turpitude with respect to the exempted
acts for purposes of determinations made by the Immigration and Naturalization
Service.
Lateef argued that
this legislative history demonstrated a general congressional intent that crimes
like his own lack moral turpitude-even if his case did not fall within the specific
terms of the exception at §408(d)-since he had used the SSN for the otherwise
lawful purpose of obtaining a state ID card. Lateef urged the 8th circuit to follow
the 9th circuit's broad application of the same legislative history in Beltran-Tirado
v. INS, 213 F.3d 1179, 1183 (9th Cir. 2000), to find his conviction was not a
CIMT. The 8th circuit refused, however, siding with Hyder v. Keisler, 506
F.3d 388, 391 - 92 (5th Cir. 2007), and Serrato-Soto v. Holder, 570 F.3d
686, 692 (6th Cir. 2009), both of which rejected Beltran as contrary to
statutory text.
(January 28, 2010) 8th circuit clarifies it has jurisdiction to review a motion
to reconsider the BIA's unreviewable denial of motion to reopen sua sponte.
Averianova v.
Holder, 592 F.3d 931, 935 (8th Cir. 2010)
Read opinion here.
Averinova, whose
asylum appeal the BIA had been dismissed years earlier, filed a motion to reopen
sua sponte with the BIA , seeking an opportunity to apply for adjustment
of status through her recently naturalized U.S. citizen husband. The BIA declined
and Averinova filed a motion to reconsider (coupled with a motion for reopening
due to changed circumstances in Uzbekistan, not discussed here). The BIA denied
reconsideration and Averinova petitioned for review at the 8th Circuit. The court
clarified it had jurisdiction over the motion to reconsider despite Tamenut
v. Mukasey, 521 F.3d 1000 (8th Cir. 2008)(en banc), which holds there is no
circuit jurisdiction over the BIA's underlying denial of a motion to reopen sua
sponte. The 8th circuit noted it had previously reviewed the denial of motions
to reconsider for abuse of discretion in similar situations where it lacked jurisdiction
to review the agency order that was the subject of a reconsideration motion, and
that such review does not mean the court has exercised jurisdiction over the BIA's
underlying order because the two orders remain separate and distinct. In footnote
5 of the opinion, the court noted the 7th circuit's contrary position in Martinez-Maldonado
v. Gonzales, 437 F.3d 679 (7th Cir. 2006), but also several decisions consistent
with the 8th's result in the 1st, 2nd, 9th, 10th and 11th circuits.
Litigation Project
and Robbins Kaplan Miller & Ciresi file new appeal with Eighth Circuit asserting
rights of "unaccompanied alien children"
November 20, 2009- ILCM's litigation project has
teamed with pro bono counsel Anna Petosky and Randall Tietjen of Robbins Kaplan
Miller & Ciresi LLP in a new appeal to the Eighth Circuit that will address
the legal capacity and rights of "unaccompanied alien children." The
case, Sandoval v. Holder, File No. 09-3600, presents the question whether
an unaccompanied alien child (a non-citizen child under 18 present in the United
States without a parent or legal guardian) may be banned for life from immigrating
to the United States under a harsh provision of immigration law applicable to
individuals who have made a false claim of U.S. citizenship. Our appeal will ask
the Eighth Circuit to hold, in part, that unaccompanied children should be presumed
to lack the legal capacity necessary to make such false claims.
ILCM files petition
for rehearing with Eighth Circuit on issue of "repapering"; Court asks
government to respond
November 20, 2009-
The litigation project has filed a petition for rehearing with the Eighth Circuit
Court in the case of Guatemalan asylum seeker, Rolando Hernandez. Although we
succeded in winning Mr. Hernandez further consideration of his application for
humanitarian asylum (see Hernandez
v. Holder,
579 F.3d 864 (8th Cir. 2009)), the circuit court ruled that it lacked jurisdiction
to consider Mr. Hernandez's alternative claim that the immigration court and Board
of Immigration Appeals had improperly denied a continuance of his deportation
proceedings to allow him the opportunity to seek "repapering" and pursue
a separate application for humanitarian relief based on hardship that deportation
would cause his three U.S. citizen children. Our
petition is here.The Court has asked the government to respond to our petition
by November 16th. [UPDATE - November 17, 2009. The
government response to our petition for rehearing is now available here.]
ILCM scores
victory at Eighth Circuit in long-running asylum case
September 2, 2009 - Yesterday the U.S. Court of Appeals
for the Eighth Circuit issued a published opinion in Hernandez
v. Holder,
579 F.3d 864 (8th Cir. 2009), granting in part the appeal filed by ILCM's
litigation project on behalf of asylum-seeker Rolando Hernandez. The circuit court
agreed that the immigration judge and Board of Immigration Appeals (BIA) failed
to consider Mr. Hernandez's claim to humanitarian asylum and remanded the case
to the BIA for further consideration. Mr. Hernandez's extraordinary asylum case
is now in its 16th year. He was first granted asylum by an immigration judge in
1994, a decision the BIA reversed nearly seven years later, in 2000, holding that
Mr. Hernandez's forced recruitment into a Guatemalan guerrilla organization for
a period of 21 days rendered him ineligible for asylum as an individual who has
"assisted or otherwise participated" in the persecution of others --
this despite the facts that Hernandez was threatened with death for opposing the
guerillas and was shot in the leg as he escaped the group. In 2001, Mr. Hernandez
won his first appeal to the Eighth Circuit Court in an
influential opinion addressing the concept of assistance to persecution. The
Eighth Circuit reversed the BIA's 2000 decision and sent the case back for further
consideration. In 2007, the BIA ruled that Hernandez, while not an assistant to
persecution, should nonetheless be deported because conditions in Guatemala had
changed for the better during the many years of delay the government had caused
in his case. Since the original immigration judge granted him asylum in 1994,
Mr. Hernandez has become the father of three U.S. citizen children, ages 8 - 16.
ILCM will continue to represent Mr. Hernandez as his case returns to the BIA for
a third time.
ILCM clients
appeal to top Administration officials for stay of removal
Thursday, July 16, 2009 - On July 6th, 2009, three
ILCM clients from El Salvador were
seized by Immigration and Customs Enforcement (ICE) agents for deportation
proceedings despite
a current appeal before the Eighth Circuit of a Board of Immigration Appeals
ruling. The BIA had previously ruled that the three were not eligible for asylum
despite what even ICE concedes is a credible threat to the three siblings lives
if they are returned to El Salvadore. Attorneys for the trio are asking Secretary
of Homeland Security Janet Napolitano and Attorney General Eric Holder to stay
the deportation pending the appeals process. The attorneys are also requesting
that a Supreme Court justice grant a stay of removal, which both the Eighth Circuit
and Justice Samuel Alito refused to do. The request for a stay of removal to Justice
Alito, including a full accounting of the dangers faced by these three young people
should they be deported, can be found here.
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