Russell Abrutyn

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Friday, August 27, 2010

Discharged from military for alienage means no naturalization under section 329

Sakarapanee v. DHS,

Having lived in the U.S. since he was one, the LPR enlisted in the Navy in 1990.  Having problems, he eventually sought and obtained a discharge.   It was an honorable discharge, but on the basis of alienage.

He applied for regular naturalization under INA 316, but it was denied because of the bar in INA 315(a).  Later, he reapplied but under INA 329 because he served in the military during a time of conflict.  It was again denied and he appealed to the district court.  On review, the Sixth Circuit affirmed the denial.

Addressing INA 315(a), the Ninth Circuit held that it did not apply to aliens who voluntarily enlisted and were then discharged on the basis of alienage.  Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007).  The Sixth Circuit sidestepped whether Gallarde was good law in this circuit because INA 329 differs from INA 315 in material respects.  Notably, section 329 specifically applies to both enlisted service members and draftees, while section 315 is more ambiguous about its scope.

Particular social group, nexus, and future persecution

Qu v. Holder,
This case, involving a Chinese woman kidnapped and threatened with rape and forcible marriage by a "big thug," addressed several important issues.

First, the Court continued to follow the definition of particular social group formulated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).  Acosta's broad interpretation of psg encompasses any group, not matter how populous, that is persecuted because of shared characteristics that are either immutable or fundamental.

Second, the Court strongly suggested that women in China who have been subjected to forced marriage and involuntary servitude constitute a psg, although it remanded to let the BIA decide this in the first instance.  Ms. Qu shares the common, immutable characteristic of being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized.

Third, this case involved a mixed motive because Ms. Qu was targeted both to secure the repayment of her father's debt and because she was a woman show could be forced into marriage in a place where such marriages are accepted.  If there is a nexus between the persecution and membership in a psg, the simultaneous existence of a personal dispute does not eliminate the nexus.  This case is subject to the REAL Id Act.

The Court remanded because the BIA did not fully consider these issues.  The Court left the BIA with the parting instruction that if the BIA concludes that she belonged to a psg, then substantial evidence does not support its finding that she did not fulfill the requirements for asylum.

Finally, the Court found that Ms. Qu did not abandon her CAT claim by only raising it in a cursory manner before the BIA.  The IJ had granted asylum and ICE appealed, so Ms. Qu may not have been aware of the need to argue CAT in detail before the BIA.  Plus, the Court suggested that she had a viable CAT claim.

Sixth Circuit on who bears the burden of proof when a conviction is vacated

Barakat v. Holder,

The Court reversed the BIA because the BIA improperly placed the burden on the alien to prove that a conviction was vacated for permissible reasons.  The offending conviction in this case was set aside while the alien's appeal was pending with the BIA.  The alien submitted the state court order but not the motion itself.

ICE bears the initial burden of proving, by clear and convincing evidence, that an alien is removable.  If ICE makes out a prima facie case, then the burden shifts to the alien to establish non-removability, which the alien can meet by showing that a court of competent jurisdiction vacated the conviction.  This returns the burden to ICE to prove, again by clear and convincing evidence, that the conviction remains valid for immigration purposes because, for example, it was set aside for immigration or rehabilitative purposes.

The court clarified that Sanusi v. Gonzales, 474 F.3d 341 (6th Cir. 2007) involved a situation in which ICE met its burden, not a case where the alien failed to meet his.  In Sanusi, as in Pickering, the burden was on ICE.

Thursday, August 12, 2010

Amended dissent in Japarkulova

Previous blog:

The court issued an amended opinion to include a forceful and spirited dissent by Judge Martin.  This case raises the interesting question of whether an erroneous determination that an alien did not suffer past persecution can ever be harmless.  A finding of past persecution does two things.  One, it shifts the burden to ICE to prove by a preponderance of evidence that the applicant lacks the presumed well-founded fear or clear probability of persecution.  Two, it makes the applicant eligible for humanitarian asylum in the absence of a well founded fear.  Humanitarian asylum can be granted based on the severity of the harm or the reasonable possibility that the alien will suffer "other serious harm."  These determinations have to be made by the agency in the first instance.

Monday, August 9, 2010

Motion to reopen following rescission of in absentia order not number barred

In re Rabee, A099 235 166, 2010 WL 2390748 (BIA June 2, 2010) (Cleveland).

The alien was removed in absentia.  The IJ granted his motion to rescind that order.  The alien was ordered removed in absentia a second time and filed another motion to reopen, which the IJ denied as being number barred.  The BIA disagreed and remanded.

The rescission of the first in absentia order "annulled" all the determinations made in the in absentia proceedings and returned the alien to the same status he had before the hearing.  Thus, it was as if he never filed the motion and the current motion was treated as if it was his first.

Equitable tolling applies?

Mezo v. Holder,

The court held that equitable tolling applies to ineffective assistance of counsel-based motions to reopen.  The court then remanded to allow the BIA to determine whether the allegations of error are true and whether the alien was prejudiced when her attorney filed the appeal late.  The court had no problems finding ineffective assistance in this case.  The court also found that the alien exercised due diligence when her attorney lied to her and it was reasonable to believe the attorney.

ICE can't defeat jurisdiction by delaying service of order

Villegas de la Paz v. Holder,

The court found that it had jurisdiction over a petition for review from a decision by ICE to reinstate a removal order. The court denied the petition on the merits, finding that ICE established the existence of the prior order and that any regulatory or procedural violations in the underlying order were irrelevant.  The court recognized its authority to review allegations of constitutional or legal error in the underlying order but found that none existed.

Notably, the petition for review was seven months late because ICE delayed in serving the alien or her attorney with the decision.  OIL made the "remarkable" argument that the court lacked jurisdiction over the appeal because it was untimely.  The court was little time in rejecting that argument because it was ICE's own actions that resulted in the late appeal.  The court would not allow that kind of "ball-hiding," which it called "repellent."  Reinstated orders, like other removal orders, are not valid until served.

False claim to citizenship in an I-9 is a false claim under the INA

Ferrans v. Holder,

The alien checked a box on the I-9 form indicating that he was a citizen or national of the U.S. when he actually had no status in the U.S.  He applied for adjustment of status.  The USCIS, the IJ, and the BIA denied his application because he admitted that he falsely claimed to be a U.S. citizen on the I-9 so he could work, making him inadmissible under INA s 212(a)(6)(C)(ii).  There is no waiver for this bar except in very narrow circumstances.

Notably, the alien never claimed that he was claiming to be a U.S. national.

The court affirmed.  The court deferred to the agency's interpretation of the statute and found that the burden was on the alien, an applicant for adjustment of status, to show that he was admissible.  A false claim to citizenship on an I-9 for private employment is for "any purpose or benefit" under the INA.  The court followed decisions from the Fifth, Tenth, and Eighth circuits.

Harmless error in asylum adjudication

Japarkulova v. Holder,

The BIA erred in finding that the alien did not suffer past persecution.  A threat, from a high-placed government official, can constitute past persecution. 

The court would have remanded to allow the agency to determine when a stand-alone threat constitutes persecution but the error was harmless.  Conditions have changed and so the alien did not possess a well-founded fear of future persecution.

The concurrence noted recent events in the Kyrgyz Republic.  Noting the counterintuitiveness of the result, the opinion noted that the alien had to file a motion to reopen so the agency could consider the new evidence, even though the more efficient result would be for the court to remand the case.

Prosecution not persecution

Cruz-Samayoa v. Holder, 607 F.3d 1145 (6th Cir. 2010),

The court held that a legitimate criminal prosecution does not amount to persecution and affirmed the denial of asylum and withholding of removal.  The alien served as a spokesperson for Guatemalan peasants who were occupying disputed farmlands.  When the police entered the lands, violence erupted as it sought to remove the occupiers.  The alien fled and an arrest warrant was issued for him.

There was a sufficient legal basis for the arrest warrant in that there seemed to be little dispute that violence occurred when the police entered the occupied lands.

The court followed its earlier decision in Haider by assuming the alien's credibility when the IJ's credibility determination was ambiguous.

No time to wait for I-140 appeal

Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010),

The court affirmed the denial of a continuance.  The alien requested a continuance to await the outcome of an I-140 appeal to the AAO.  The court found no abuse of discretion because the I-140 petition was still pending and the USCIS had previously denied the alien's petition and it had also denied his affirmative adjustment of status application and I-601 waiver.

The court affirmed its jurisdiction to review denials of continuances because the IJ's authority to continue proceedings derives from 8 C.F.R. s 1003.29, not the INA.  See Kucana v. Holder, 130 S. Ct. 827 (2010).

Serious nonpolitical crime has to be viewed in context

Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010),

In this case, the BIA affirmed a denial of asylum and withholding because, it concluded, the alien committed a serious nonpolitical crime abroad when he engaged in protests against the military dictatorship in Ethiopia.  The Sixth Circuit reversed and remanded.  Throwing rocks at the police during a political demonstration is not per se a serious nonpolitical crime.  Because there was both a criminal and political aspect to the protests, and because the agency was not clear in its decision and it did not consider the alien's claim of self-defense, the court remanded.

Although the court is willing to defer to the agency, the agency must still provide a reasoned explanation.

Sixth Circuit panel recommends that en banc reconsideration of authority to review sua sponte motions

In Gor v Holder, 607 F.3d 180 (6th Cir. 2010),, the court followed its previous decisions that concluded that the court lacked jurisdiction to review the denial of a sua sponte motion to reopen.  Two judges on the panel called into question the continuing validity of this authority in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010).

The alien has filed a petition for en banc rehearing and the American Immigration Court is appearing as amicus.