Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072

Friday, February 12, 2010

Presumption of credibility and imputed political opinion

In Haider v. Holder, the court clarified that persecution inflicted on account of a noncitizen's imputed political opinion can serve as a basis for asylum and withholding of removal.  The court joined her sister circuits, including the Second and Ninth Circuits.  In footnote 9, the court suggested that there should be no distinction for persecution inflicted for imputed illegitimate conduct (like being falsely accused of engaging in terrorist activities) or that inflicted ofr imputed political opinion or membership in a political group (like being falsely accused of belonging to a party that engages in terrorist activities). 

The court reminds adjudicators that persecution is considered in the aggregate.  So an adjudicator cannot consider each instance of harm separately and conclude that there was no persecution because there was no one single severe instance of harm.  Nor must the harm be physical, as economic deprivation, expulsion, surveillance, and illegal searches can all constitute persecution.

In this case, there was no explicit credibility determination.  Rather than remand for one, the court assumed the noncitizen was creidble and ruled on the merits of the withholding of removal claim.  If the court finds that the evidence compels reversal of the decision denying relief, as it did in this case, the court will remand to allow the agency to consider which parts of the noncitizen's tersimony were and were not credible.

Also of note in this case is that the BIA did not carefully choose its words when describing its review of the Immigration Judge's decision, leading the noncitizen to argue that the BIA applied the wrong standard of review.  The court looked carefully at the substance of the BIA's decision to conclude that the BIA applied the proper standard even if it was sloppy in its choice of words.

Court rebukes EOIR's factfinding
In Stewart v. Holder, the court reversed and remanded the denial of an in absentia order.  The court criticized the BIA's failure to address all of the relevant evidence.  The court found it "odd" that the Immigration Judge and BIA would make much of two purported "blatant falsehoods" in the noncitizen's affidavit.  The first was the noncitizen's claim that a court employee told him that the record did not contain a hearing notice mailed to his current address.  Rather than being a falsehood, the court found that this could just have plausibly been an error on the part of the employee who talked to the noncitizen.  Second, the noncitizen's affidavit misstated one of the relevant dates, a minor and irrelevant detail that could not be viewed as an attempt to enchance his claim.  The court noted that this error was no different than the erroneous date entered by the court on one of the hearing notices.

Battery is an offensive touching

In People v. Federoff, the Michigan Court of Appeals discusses the elements of Michigan's assault and battery statute, MCL 750.81.  Relevant to immigration practicioners, this statute can be violated through offensive touching that is not forceful or violent.  A domestic violence offense can be committed even if the defendant intended to assault and batter another individual but mistakenly or accidentally assaulted or battered a protected person.