Kante v. Holder

Posted on February 7, 2011 by Af

Kante v. Holder, No. 08-4043 (6th Cir. Feb. 2, 2010) MERRITT, Rogers, Ketheledge

Petition for Review DENIED.

Ed. Note 1: This decision was originally released as an unpublished opinion on January 7, 2011.

Kante filed two asylum applications — one pro se (with help from a non-lawyer) in 2002 and one represented by counsel in 2005 — in which she described essentially the same violent victimization that led her to flee her native Guinea for the U.S. in 2002. She described a brutal attack on her family compound. She and every member of her family were raped and tortured, and her parents were kidnapped, according to these applications.

From the very start, the problem with her asylum applications was linking this unspeakable violence to a ground for asylum — showing a nexus. On one hand, Kante’s father and brothers had been involved in opposition politics, so she claimed in her second asylum application that government forces were behind the attack. On the other hand, she had originally characterized the perpetrators as “rebels” in her 2002 application, and she checked “no” when asked if she or her family had ever been threatened or mistreated by the government.  In addition, she admitted during her 2007 hearing before the immigration judge that she’d used the term “rebel” to include rebels from Guinea, rebels from Sierra Leone, and forces loyal to the government. Consequently, Kante was ultimately unable to show a nexus between her victimization and her father’s political activities.

Kante also proposed as a second particular social group “women subjected to rape as a method of government control.” The IJ and the BIA rejected this ground as well. Despite the fact that it held Kante could not show she actually belonged to this group (because she couldn’t link her rape to government retribution for her father’s political activities), the Sixth Circuit panel offered some very useful guidance about a recurring them in asylum/withholding decisional law: the circularly-defined particular social group.

The phrase “membership in a particular social group” is not statutorily defined, but several Board decisions have refined and articulated the requirements to include: (1) a shared “immutable” or “fundamental” characteristic; (2) “social visibility;” (3) “particularity;” and (4) the group “cannot be defined exclusively” by the fact that its members have been subject to harm.  Matter of A-M-E & J-G-U, 24 I.&N. Dec. 69, 74(BIA 2007),  aff’d sub nom. Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007); accord Castellano-Chacon v. INS, 341 F.3d 533, 546-50 (6th Cir. 2003), modified on other grounds, Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).  Due to the generalized and far-reaching nature of  Kante’s submitted classification, it has not previously served as a definable limitation.  See Castellano-Chacon, 341 F.3d at 548. In addition, the group posited by Kante is circularly defined by the fact that it suffers persecution, and the group does not share any narrowing characteristic other than the risk of being persecuted.  We have held that a social group may not be circularly defined by the fact that it suffers persecution.  In other words, the individuals in the group must share a narrowing characteristic other than their risk of being persecuted.  See Castro Paz v. Holder, 375 F. App’x 586, 590-91 (6th Cir. 2010).

Attorney for the Petitioner: Brian C. DiFranco, Columbus, OH

OIL Attorney: Theodore C. Hirt



Filed under: Gilbert S. Merritt | Tagged: , , , , , , , , , , , , | Leave a Comment »

Pruidze v. Holder

Posted on February 3, 2011 by Af

Pruidze v. Holder, No. 09-3836 (6th Cir. Feb. 3, 2011) SUTTON, Moore, Boggs

Order of the BIA VACATED and REMANDED.

Ed. Note 1: In a landmark decision, the Sixth Circuit has invalidated the regulatory post-departure bar.

In practical terms, this puts an end to the government’s fifteen-year practice of wrongfully deporting a person and then refusing to exercise jurisdiction over the person’s  appeal of that wrongful deportation because, well, they’ve already been deported.

Congratulations and profound thanks are in order to Russ Albrutyn, Marshall Hyman, and Herman Dhade (counsel for the Petitioner), Trina Realmuto (counsel for amicus National Immigration Project of the National Lawyers Guild), and Beth Werlin (counsel for amicus American Immigration Council)!

I’ve got a full plate today at work — including a post-departure bar case with some great new precedent– so I’m posting the decision and some rough quotes with the intent of offering further, detailed analysis once I get some time. In the meantime, here are some choice nuggets from Judge Sutton’s opinion:

The Board of Immigration Appeals interprets a regulation promulgated by the Attorney General to provide that the Board lacks jurisdiction to review a motion to reopen once an alien leaves the United States, whether voluntarily or involuntarily.  Yet the statute that empowers the Board to consider motions to reopen says nothing about jurisdictional limitations of any kind, let alone this kind.  Because this regulatory interpretation has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress, the Board’s order disclaiming power to consider the motion to reopen filed by Vakhtang Pruidze must be vacated.

Slip Op. at 1-2.

Ed. Note 2: The Sixth Circuit did not decide whether Chevron or Union Pacific applies here because “Pruidze wins either way for two basic reasons” Slip. Op at 6.

First, no statute gives the Board purchase for disclaiming jurisdiction to entertain a motion to reopen filed by aliens who have left the country.  The most relevant statute, adopted in the 1996 Immigration Act, offers nothing to support such an interpretation of the regulation.  “An alien,” it says, “may file one motion to reopen proceedings under this section, except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv).”  8 U.S.C. § 1229a(c)(7)(A).  This is an empowering, not a divesting, provision, as it grants the Board authority to entertain a motion to reopen.  Even the limitations contained in the provision—permitting the alien to file just one motion and excepting alien victims of domestic violence from this limitation,  id. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(iv)—do not purport to be jurisdictional.  The definition of “alien”—“any person not a citizen or national of theUnited States,” 8 U.S.C. § 1101(a)(3)—also provides no basis for saying that the Board lacks jurisdiction over certain types of motions to reopen.

The only other clue provided by the 1996 Immigration Act is that Congress repealed the one statutory departure bar then in existence, the one applicable to judicial review.  Pub. L. No. 104-208, div. C, § 306(b), 110 Stat. 3009, 3009-612.  Even if an alien’s departure from the United States had legal significance at one point in time under the statutory scheme, the repeal of this departure bar in 1996 eliminates that potential handhold for the Board’s interpretation.  Not one of the relevant statutory provisions, then, gives the Board authority “to decline the exercise of jurisdiction which is given.” Union Pac., 130 S. Ct. at 590 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404(1821)).

Slip Op. at 6-7

Second, even if doubt lingered about the Board’s authority to interpret the regulation as jurisdictional, a recent line of Supreme Court decisions removes it.  Over the last decade or so, the Court has been vigilant in clarifying the distinction between jurisdictional requirements on the one hand and claim-processing and other mandatory rules on the other.  See, e.g., Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S. Ct.1237 (2010); Union Pac., 130 S. Ct. 584; Bowles v. Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006); Kontrick v. Ryan, 540 U.S. 443(2004); Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 90 (1998).  Not all mandatory requirements, these decisions make clear, establish jurisdictional prerequisites.

More to come later . . .

Filed under: Jeffrey Sutton | Leave a Comment »

United States v. Sanchez-Mercado

Posted on February 3, 2011 by Af

United States v. Sanchez-Mercado, No. 09-4505 (6th Cir. Feb. 2, 2011) (unpublished) KENNEDY, Martin, Murhpy (E.D. Mich.)

37-month sentence for illegal reentry AFFIRMED.

Background:

According to the Probation Office’s Presentence Investigation Report (“PSR”), in April 2009 Immigration and Customs Enforcement (“ICE”) found Sanchez-Mercado, a citizen of Mexico, at the Hamilton County Justice Center in Cincinnati, Ohio. Local authorities had arrested Sanchez-Mercado on a warrant, issued in Hamilton County, for a probation violation.  ICE agents determined that Sanchez-Mercado was an alien who previously had been removed from the United States: once on January 3, 2002 and again on November 25, 2008.  During his time in the United States, Sanchez-Mercado had been convicted of crimes on three occasions: first for possession of cocaine; second for driving without a license and driving under the influence of alcohol; and third for possession and trafficking in marijuana.  Sanchez-Mercado failed to obtain permission from the government before reentering the United States at the time of his arrest.

On June 8, 2009, Sanchez-Mercado pleaded guilty to illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2).

Slip Op. at 1-2

Ed. Note 1: Several interesting arguments came out at the sentencing hearing, producing some very interesting language from the district court:

Sanchez-Mercado suggested that the district court construe his illegal reentry as a mitigating factor because he illegally reentered the United States to see his family. . . In declining to grant a variance from the Guidelines, the district court stated:

This is not just a gentleman who twice reentered the United States illegally.  He twice reentered the United States illegally and he’s got two felony convictions and a conviction for drunk driving.  I see a distinction between someone who just came back to see their family and someone who comes back and commits other crimes in the United States. And for that reason, I think that he’s a perfect candidate for the guidelines.

Slip Op. at 2. Then Sanchez-Mercado asked whether he was getting a higher sentence because he had family in the U.S.

the district judge explained that this fact “gives him an incentive to try to reenter illegally again as he already has done previously”:

  • I certainly wouldn’t penalize him for having a family here.  I would just give him an ordinary guideline sentence if I feel that the guidelines are appropriate. And here he’s getting the bottom of the guidelines—because this is his third illegal reentry, because he’s been convicted of two significant felonies, and he has been convicted of driving drunk with a[n] alcohol content in his system that is huge and I think he’s a danger to the public.  And I’d like to persuade and prevent him from, as best the Court can possibly do, from coming back here.

Slip Op. at 3

Ed. Note 2: The court rejected Sanchez-Mercado’s two challenges to the 37-month sentence.

First, he claimed the district court improperly considered the presence of family in the United States as an aggravating factor. But the 6th Circuit panel found this argument to be unsupported by the record. Slip Op. at 4-5.

Second, he claimed the district court failed to consider several mitigating factors, including S-M’s newborn [U.S. citizen] son and four other children he’d promised to take back to Mexico and raise, a good employment record, and a speedy guilty plea. The panel rejected these arguments as well. Slip. Op. at 5.

Attorney for the Appellant: Mr. Kevin M. Schad, Lebanon, Ohio.

Attorney for the United States: Ms. Ms. Deborah D. Grimes

Ed. Note 3: We’ll probably see a lot more of these cases over the coming months and years. According to a TRAC report released the same day as this decision, federal prosecutions and convictions for non-immigration felonies have dropped under the Obama Administration, despite increases in staffing at the FBI, ATF, DEA, and other non-immigration federal law enforcement agencies. At the same time, felony prosecutions for immigration-related offenses have increased by42% nationwide under Obama.

The Southern District of Ohio, where Sanchez-Mercado was prosecuted, experienced a 188% increase in federal immigration prosecutions during the first two years of the present administration (as compared to the last two years of the previous administration. That increase was the fourth largest in the nation.

Here’s how districts within the 6th Circuit compared, with the percentage change representing Bush’s last two fiscal years of Immigration-Related (IR) prosecutions and Non-Immigration-Related  (N-IR) prosecutions versus Obama’s first two fiscal years:

  • E.D. Ky: – 41.9% IR, – 11.7% N-IR
  • W.D. Ky: + 59.4% IR, + 5.5% N-IR
  • E.D. Mich.: + 37.5% IR, + 1% N-IR
  • W.D. Mich.: + 127.4% IR (7th largest increase in the nation — 146 prosecutions to 332), – 8.5% N-IR.
  • N.D. Ohio: 0 % IR, – 19.1% N-IR.
  • S.D. Ohio: + 188.7% IR, (4th largest increase in the nation — 62 prosecutions to 179), – 9.9% N-IR.
  • E.D. Tenn.: + 37.5% IR, + 22.9% N-IR.
  • M.D. Tenn.: – 31.9 % IR, – 21.5% N-IR.
  • W.D. Tenn.:  + 258.8% IR (3rd largest increase in the nation — 34 prosecutions to 122), -5.4% N-IR.

Filed under: Cornelia G. Kennedy | Tagged: , , , , , , , , , | Leave a Comment »

EOIR’S FY10 Statistical Yearbook & Immigration Courts In the Sixth Circuit

Posted on February 2, 2011 by Af

The Executive Office for Immigration Review announced the release of its Statistical Yearbook for FY10.

1. A few quick notes about these statistics and immigration courts located within the 6th Circuit:

  • Asylum Grant Rates: Two Immigration Courts within the Sixth Circuit, (Cleveland: 28%; Detroit: 37%) had grant rates lower than the national average, which was 51% in FY10. The Memphis Court nearly matched the national average, with a 52% grant rate. (See p. K6).
  • Matters Received: The Cleveland Court experienced a 24% drop from FY09 to FY10 in matters received (7,503 to 5,704). Detroit held steady, with a 1% drop (5,945 to 5,903). Memphis saw a 3% increase (3,877 to 4,000). Nationally, there was 0% change (393,185 to 392,888). (See p. B3).
  • Matters Completed: The Cleveland court dropped 28% in matters completed from FY09 to FY10. Detroit dropped 4%, and Memphis increased by 19%. (See p. B5).
  • Matters Completed With Applications for Relief: The national average for completions of removal proceedings with applications for relief was 25% in FY10. All immigration courts within the Sixth Circuit were in that neighborhood. Cleveland completed 22%, Detroit 18%, and Memphis 24%. (See p. N2).
  • Access to Counsel: 57% of respondents went unrepresented in FY10. EOIR does not break down representation rates by immigration court, a statistic that could be useful to advocates and government actors concerned about identifying need for pro bono support. EOIR on Representation (from p. G1):

Many individuals in removal proceedings are indigent and cannot afford a private attorney. Some seek free or pro bono representation, while others proceed without counsel on their own, or pro se.  Of great concern to EOIR is the large number of individuals appearing pro se. Immigration judges, in order to ensure that such individuals understand the nature of the proceedings, as well as their rights and responsibilities, must take extra care and spend additional time explaining this information.  An individual may ask for a continuance of a proceeding to obtain counsel.

  • Crimmigration: The nationwide percentage of proceedings for detained respondents remained high in FY10,  at 44% (125,580). This number was down from FY09 (50%, 144,970), but still way up from 2006 (30%, 95,783). (See p. O1).
  • Ed. Note: Semantics are important in this last statistic because the government is depriving the subject of removal proceedings of his or her liberty. EOIR would do well to abandon to term “Detained Aliens” in future versions of the Yearbook. Here’s why: For those in removal proceedings who are alleged to have entered without inspection, the government bears the burden of proving alienage. 8 C.F.R. 1240.8(c). Unless the government carries that burden, it cannot move forward with removal. When the Executive Office of Immigration Review — the body that administers Immigration Courts — categorizes every detained respondent as an “alien,” it jeopardizes the appearance of independence. One agency, DHS, is telling another agency, EOIR, that this respondent is an alien. DHS is also detaining that respondent until the conclusion of the proceeding, even though it is DHS’s burden in immigration court to prove alienage. Using the “detained alien” terminology in immigration proceedings is thus akin to a criminal court using the term “detained felons” to describe those in jail awaiting adjudication of their criminal charges.

2. Some notes about EOIR’s BIA statistics:

  • Access to Counsel: 79% of appeals to the BIA involved representation by counsel in FY10. (See V1).
  • Reversal Rate: Though it provides receipt and completion statistics (See S1), EOIR does not offer statistics on the numbers or percentage of reversals by the BIA of IJ decisions.

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Touray v. Holder

Posted on February 1, 2011 by Af

Touray v. Holder, No. 09-3473 (6th Cir. Feb. 1, 2011) (unpublished) GILMAN, Siler, Griffin

Petition for review DENIED.

The court upheld the decision of the BIA affirming the IJ’s finding that violence Touray suffered during the civil war in Sierra Leone lacked a nexus to a protected ground. Consequently, Touray could not demonstrate past persecution, and was therefore not entitled to the statutory presumption in favor of future persecution. As a result, his claim for withholding of removal failed.

Attorney for the Petitioner: Mr. E. Dennis Muchnicki, Dublin, OH

OIL Attorneys: Ms. Kristen A. Giuffreda Chapman, Julia J. Tyler

Filed under: Ronald Lee Gilman, Unpublished, Withholding/CAT | Tagged: , , , , , , , , | Leave a Comment »

United States v. Batista

Posted on January 28, 2011 by Af

United States v. Batista, No. 10-3021 (6th Cir. Jan. 27, 2011) (unpublished) BOGGS, Guy, Gibbons

The court VACATED Defendant’s 78-month criminal sentence for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2) as procedurally unreasonable and REMANDED for resentencing.

Ed. Note 1: Batista is a Panamanian citizen. But he is also the son of a U.S. citizen who moved to the United States at age 11, and he lived at various U.S. military bases around the country during his childhood. He also amassed an extensive criminal history, which ultimately prompted the U.S. to deport him in 2003 after he completed an 11-month sentence for Gross Sexual Imposition:

In 2001, Batista began seeing his current wife, Amanda Dixon.  He soon moved in with Dixon and helped raise her child, who was less than a year old at the time.  Late that year, Batista committed a sexual crime against a different woman. In October 2002, Batista was convicted of Gross Sexual Imposition for his conduct and was sentenced to 11 months in prison.  Batista was released from prison in July 2003, and, on December 29 of that year, he was deported back to Panama.  Dixon followed Batista to Panama, arriving with their infant son whom Batista had not yet seen, and the two were married in February 2004. Shortly thereafter, Batista returned—illegally—to the Columbus area with his family.  See 8 U.S.C § 1326(a), (b)(2).

Ed. Note 2: In addition to his prior history, Batista apparently gave ICE plenty of more personal reasons to seek criminal prosecution for his illegal reentry:

Upon his return to the United States in early 2004, Batista paid to have false identification documents produced in the name of Carlos Acevedo.  Under his false name, Batista worked as a cable installer until 2008.  During this four-year period, Batista kept a clean record, worked without incident six days per week, spent time with his family, and, according to his wife, was a good father and no longer went out drinking with his friends, as he had done prior to his deportation.

Despite his best efforts, Batista was unable to live as family-man Carlos Acevedo forever. In early 2008, Batista’s wife argued at work with one of her coworkers, and the coworker was fired. The coworker, who knew about Batista’s past, called police and alerted them to his false identity and illegal status.

Ed. Note 3: Ouch.

The coworker also accused Batista of threatening to harm her, and a summons was issued to Batista for a misdemeanor charge of Menacing.  That charge was ultimately dismissed.  On May 29, 2008, Immigration and Customs Enforcement (“ICE”) agents located Batista at his home and confronted him about his true identity.  When the agents notified Batista that he was under arrest, he pushed them away and fled the scene.

Ed. Note 4: Wait, what?

The following day, an arrest warrant was issued for Batista, who had fled to Georgia, where he resided with a friend until January 2009. At that time, he returned to Ohio to be with his family, and, to avoid detection, he paid for new false identification documents, this time in the name of Adlai Steve Ferrell.  Ferrell was short-lived.  On February 20,2009, an Ohio State Highway Patrol trooper stopped a vehicle for a traffic violation and identified Batista as a passenger.  The trooper arrested Batista on the outstanding warrant and turned over the false identification documents to ICE.

Ed. Note 5: Lesson: avoid variations on failed presidential candidates‘ names when picking your aliases. So with that colorful factual history on the table, let’s figure out why the court vacated Batista’s sentence.

Batista’s sole procedural argument is that the district court did not use the correctly calculated Guidelines range.  Batista did not raise this argument at the sentencing hearing and, as he concedes, this court must therefore apply plain-error review.

…

Batista’s argument is an unusual one.  He does not allege that the district judge miscalculated the Guidelines range. Cf. Barahona-Montenegro, 565 F.3d at 981.  Nor does he allege that the district judge correctly calculated but misstated the Guidelines range.  Cf. Story, 503 F.3d at 438. Rather, Batista alleges that, although  the district judge correctly calculated and stated the Guidelines range, the judge actually used the incorrect Guidelines range.  Appellant’s Br. at 10–11.  For that reason, the cases that Batista cites for support are not controlling because they involve situations where the district judge stated an incorrect Guidelines range.

…

Although claims such as Batista’s that depend entirely on what went on in the sentencing judge’s head are likely to suffer from a dearth of evidence, in this case, Batista’s claim is compelling. Here, the original Guidelines range was 77–96 months and the adjusted range was 70–87 months. Although the judge correctly stated the adjusted Guidelines range, he imposed a sentence of 78 months, which he referred to as “at the—toward the lower end” of the Guidelines range.  Because the midpoint in the adjusted Guidelines range is 78.5 months, a sentence of 78 months—as close to the middle of the range as one can get without splitting years—cannot reasonably be considered “at” or even “toward” the lower end of the range.  On the other hand, 78 months is inarguably “toward the lower end” of the unadjusted range of 77–96 months, which Batista argues that the judge improperly relied on when determining his sentence.

Ed. Note 6: Batista convinced the court to review the sentencing judge’s sealed statement of reasons supporting the 78-month sentence to confirm that the judge was referring to the wrong guidelines range.

The judge’s comments in the sealed statement of reasons confirms this conclusion.  In the statement of reasons, the  judge referred to a sentence of 70 months, “at the low end” of the Guidelines range.  Although, as the government notes in its brief, the judge’s oral sentence of 78 months controls over the 70 months referenced in the  statement of reasons, the question is not whether Batista was actually sentenced to 70 months in prison, but whether the district judge relied upon an incorrect Guidelines range when sentencing him to 78 months in prison. Cf. United Statesv. Penson, 526 F.3d 331, 334 (6th Cir. 2008) (holding that an unambiguous oral sentence controls in the event of an inconsistent written sentence).  A 70-month sentence cannot be at or towards the low end of the incorrect 77–96 range, but obviously is at the low end of the correct 70–87 range. The statement of reasons thus confirms the view that the district judge desired to sentence Batista at the bottom of the Guidelines range, and by sentencing him to 78 months in prison, relied upon the incorrect range.

Ed. Note 7: So the panel concluded the sentence was procedurally infirm, vacated, and remanded for resentencing.

Here, however, the judge’s statements at  the sentencing hearing were contradictory and suggested that Batista’s sentence was procedurally infirm.  To disallow consideration of the statement of reasons to confirm that procedural infirmity would be to turn the reasoning for the rule on its head. Rather than ensuring that the judge gives an adequate explanation at the sentencing hearing, refusing to consider the statement of reasons in this case would serve only to protect an inadequate explanation.  Notably, this is not a case where the oral hearing unveiled no irregularities and the defendant mounts a procedural attack premised only upon a conflicting statement of reasons. Rather, the transcript of Batista’s oral sentencing hearing manifests a strong likelihood that the sentencing judge committed a procedural error and Batista relies on the statement of reasons only to confirm that error.  Under these circumstances, we hold that it is appropriate to consider the statement of reasons, which is consistent with the judge’s comments at the sentencing hearing and indicates that he intended to sentence Batista at the bottom of the Guidelines range.  The statement strongly suggests that the judge, by sentencing Batista to a term of 78 months in prison, plainly relied on the incorrect Guidelines range.

Attorney for Defendant-Appellant: Mr. Kevin Michael Schad

Attorney for the United States: Mr. Dale Edward Williams, Jr.

Filed under: illegal reentry, Ralph B. Guy Jr. | Tagged: , , , , , , , , , | Leave a Comment »

Nue v. Holder

Posted on January 27, 2011 by Af

Nue v. Holder, No. 09-3407 (6th Cir. Jan. 27, 2011) (unpublished) LUDINGTON (E.D. Mich.), McKeague, Martin

Petition for review DENIED.

Background:

Nue originally left Kosovo in 1998 because of the war between Kosovo and the former Yugoslavia, during which Serbians sought to cleanse Kosovo of ethnic Kosovar-Albanians.  A native and citizen of the former Yugoslavia, Nue considers herself a Kosovar-Albanian. Nue’s second husband, Pjeter Preqaj,  an ethnic Albanian, disappeared during the crisis in Kosovo while traveling between Nue’s village and the neighboring town of Gramaqel in May 1998. Following her husband’s disappearance, Nue searched the road to Gramaqel but found no trace of him or his traveling companion.  Nue inquired into the whereabouts of her husband for approximately two months, but was unable to locate him.  Nue believes that the Serbian army abducted and killed her husband despite a lack of witnesses to Pjeter’s disappearance.

When the main Serbian offensive began in June 1998, Nue and her family were forced to hide from the Serbian forces in a garage.  After many days, Serbian forces attacked and set fire to the garage.  This forced Nue to flee first to her house and then to her mother’s house in Gjakova. The Serbian troops soon attacked that city as well.  Nue alleges she was constantly harassed and threatened by Serbian troops while they occupied Gjakova.  It was during this time that Nue also alleges that Serbian troops entered her mother’s home, threatened them at gunpoint to leave the area, and then raped Nue in front of her mother.

After the North Atlantic Treaty Organization (“NATO”) bombings of Serbian positions, the violence between the Serbian troops and the Kosovar-Albanians, who the Serbian troops blamed for the bombings, escalated.  Nue alleges that after the NATO bombings, Serbian troops threw knives at her and her mother without cause.  Despite the threat of violence, Nue was secretly supporting the Kosovo Liberation Army (“KLA”) forces around Gjakova, and at one point was confronted by Serbian forces on her return from a KLA base.  Nue was held at gunpoint while her mother, an ethnic Serbian, pled with the troops to spare Nue’s life. When the war ended, Nue returned to her home only to find it destroyed.  At this time, Nue also alleges she faced persecution by the KLA who accused her of being a Serbian sympathizer basedon her partial Serbian ethnicity.  On one occasion, KLA soldiers came heavily armed to her mother’s home, where Nue was residing, and lined up her family, holding them at gunpoint and accusing them of hiding Serbians.  This detention lasted approximately fifteen minutes while the KLA troops searched Nue’s mother’s home.

Nue subsequently obtained a tourist visa, entered the United States in March 2002, and sought asylum in September of the same year.  In her asylum application, Nue alleged that she feared persecution in Kosovo and Serbia by Albanian zealots on account of her mixed Serbian-Albanian ethnicity and Catholic religion.  Nue alleged that members of the KLA repeatedly accused her andher family of being terrorists, confronted her at her home regarding the accusations, and that her brother had been detained and interrogated by KLA members in August 2002.  Her brother, who remained in Kosovo, informed her that he had been harassed and verbally threatened by KLA members and Albanian extremists who were allegedly aware of their family’s mixed ethnicity.  Nue stated her fear of persecution as a non-Muslim was justified because Catholic churches had been damaged in the war and discrimination against non-Muslims persisted.

Ed. Note 1: DHS placed Nue in removal proceedings. The IJ denied her claims or asylum and withholding of removal, and single-member panel of the BIA affirmed. Nue filed a petition for review.

Nue raises three arguments regarding the BIA’s error in affirming the immigration judge. First, that the BIA erred in determining that Nue does not have a credible and well-founded fear of persecution or faced past persecution based on her status as a non-pure Kosovar-Albanian in order to be eligible for asylum.  Second, and within the context of the asylum request, that the BIA erred in determining that country conditions within Kosovo had changed to the point that Nue could not have a credible fear of return, rebutting any presumption of future persecution.  Third, that the immigration judge erred in determining that she did not qualify for withholding of removal

Ed. Note 2: The panel affirmed the decision of the BIA that Nue had shown sufficient evidence of past persecution.

Based  on her own testimony and the past  occurrences with the KLA, Nue has not demonstrated past persecution with regard to the KLA or Albanian extremists.

Accordingly, she is not entitled to a presumption that there is a reasonable possibility of future  persecution upon her return to Kosovo.

Ed. Note 3: As we saw recently in the Shvedko case, the BIA and the panel gave significant weight to the fact that the petitioner’s family members had lived safely in the area where the petitioner claimed to fear future persecution:

Nue’s mother and brothers have safely returned to Kosovo and lived there unharmed for years, which directly rebuts her fear of persecution.  See Gumbol v.I.N.S., 815 F.2d 406, 413 (6th Cir. 1987) (finding the continued and unharmed residence of similarlysituated family members in the country of removal a factor weighing against a finding of a wellfounded fear of future persecution)[.]

Ed. Note 4: Finally, the State Department’s report indicating changed country conditions provided DHS with the last bit of dispositive weight against Nue’s fear of future persecution:

Second, the 2006 State Department Country Reports indicate that there have been no reports of arbitrary or unlawful killings by the government or its agents, and that many displaced Serbians and Albanians have returned to Kosovo.  . . . The international police have also made efforts to curb and investigate violence against ethnic Serbians.   The discrimination and harassment that Nue experienced does not demonstrate that she has a well-founded fear of persecution by rogue Albanian extremists or persons who the government is unable or unwilling to control.

Attorney for Petitioner: Ms. Svetlana J. Schreiber, Cleveland, OH

OIL Attorney: Ms. Lynda Anh Do

Case Processing Information

BIA Decision: 3/12/2009

Petitioner’s Brief filed: 12/9/2009

Briefing Completed: 12/30/2009

Oral Argument: Scheduled for 10/20/10 but cancelled & submitted on the briefs 9/30/10

Decision Date: 1/27/11

Filed under: Case Type, Judge, Thomas L. Ludington, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , , , , | Leave a Comment »

Simwaka v. Holder

Posted on January 25, 2011 by Af

Simwaka v. Holder, No. 09-3795 (6th Cir. Jan. 25, 2011) (unpublished) Per Curiam, Siler, Moore, Griffin

Petition for review is DENIED.

Ed. Note 1: The panel found that an attorney appointed by the government through the BIA’s Pro Bono Appeal Project is not subject to 8 C.F.R. § 208.6‘s prohibition on disclosure by the government that an asylum application has been filed for a particular applicant.

Attorney for the Petitioner: Mr. George A. Katchmer, Jr., Yellow Springs, OH

OIL Attorneys: Mr. Joseph A. O’Connell, Ms. Cindy S. Ferrier, Ms. Nairi Mary Simonian Gruzenski

Case Processing Information

PFR Filed: 1/26/10

Briefing Complete: 3/11/10

Submitted to panel: 11/16/10

Oral Argument: Scheduled, then cancelled (1/12/11).

Decision: 1/25/11

Filed under: ineffective assistance of counsel, motion to reopen, Per Curiam, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Quezada-Andino v. Holder

Posted on January 24, 2011 by Af

Quezada-Andino v. Holder, 09-4393 (6th Cir. Jan. 18, 2011) (unpublished) KENNEDY, Clay, Ketheledge

Petition for review DENIED.

Background:

Petitioners filed their motion to reopen on September 8, 2009, more than three years after the June 30, 2006 order of removal and well outside of the 90-day time limit.  Petitioners do not contest that their motion to reopen was untimely and could be entertained only pursuant to the BIA’s discretion to reopen proceedings sua sponte.  Instead, Petitioners’ arguments before this Court—that the BIA failed to consider their recently-acquired eligibility for an adjustment of status; that the BIA failed to articulate a rational basis for rejecting their motion; and that the BIA erroneously characterized their motion as an attempt to cure filing defects or circumvent regulations—amount to assertions that the BIA abused its discretion by declining to reopen their removal proceedings sua sponte.

BIA Authority to reopen sua sponte is committed to unfettered discretion of the agency:

We have previously held that “[t]he decision whether to invoke  sua sponte authority is committed to the unfettered discretion of the BIA” and is not subject to judicial review.  Harchenko v. INS, 379 F.3d 405, 410–11 (6th Cir. 2004) (citing 8 C.F.R. § 1003.2 and Luis v. INS, 196 F.3d 36,40 (1st Cir. 1999)). “Therefore, irrespective of whether [the BIA’s] decision was proper, Sixth Circuit law is clear that the BIA’s determination to forgo the exercise of its sua sponte authority is a decision that we are without jurisdiction to review.”  Barry, 524 F.3d at 724.

Slip Op. at 3.

Ed. Note 1: The threshold question in this case was whether the court had jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen after the 90-day limit had passed.

An IIRAIRA provision strips courts of jurisdiction to review any “decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]” 8 U.S.C. § 1252(a)(2)(B)(ii).

The 90-day limit for filing motions to reopen is provided by statute. See 8 U.S.C. § 1229a(c)(7)(C)(I). This rule is, according to 6th Circuit precedent, “crystal clear.”  See Randhawa v. Gonzales, 474 F.3d 918, 920 (6th Cir. 2007).  The BIA’s regs allow for reopening, however, if one of four narrow regulatory exceptions applies.  See Barry, 524 F.3d at 723.

“The 90-day period for filing a motion to reopen is subject to narrow exceptions: (1) where the BIA reopens the proceedings sua sponte; (2) where the parties agree to reopen the proceedings; (3) changed circumstances in the country of nationality of which there is new, material evidence that could not have been discovered or presented at the time of the original proceeding; and (4) certain in absentia decisions.”) (citing Qeraxhiu v. Gonzales, 206 Fed.Appx. 476, 480 (6th Cir.2006) and 8 C.F.R. § 1003.2(a), (c)(3)).

Last year, the Supreme Court considered whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of jurisdiction to review the BIA’s denial of a motion to reopen the 2002 in absentia removal order of an Albania petitioner who’d overslept his hearing. See Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827 (2010).

Kucana filed a motion to reopen in 2002, which the IJ denied and the Board affirmed.  Then he petitioned again in 2006, arguing changed country conditions in Albania. The Board disagreed, saying conditions had actually gotten better, and denied the second motion to reopen. Kucana petitioned for review in the Seventh Circuit, and a divided Seventh Circuit panel held the court lacked jurisdiction as a result of section 1252(a)(2)(B)(ii). The Supreme Court appointed former Stevens clerk and current law professor Amanda Cohen Leiter to argue Kucana’s case.

In a 9-0 decision, Justice Ginsburg, writing for the Court, noted the importance of the motion to reopen to the process of administrative adjudication in immigration cases:

The motion to reopen is an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings. Dada v. Mukasey, 554 U.S. 1, ___, 128 S.Ct. 2307, 2317-19, 171 L.Ed.2d 178 (2008); cf. Stone v. INS, 514 U.S. 386, 401, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (analogizing motions to reconsider immigration decisions to motions for relief from a judgment under Federal Rule of Civil Procedure 60(b)). Federal-court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916. See Dada, 554 U.S., at ___, 128 S.Ct., at 2314-15 (citing cases). This Court has ultimately reviewed reopening decisions on numerous occasions. See, e.g., INS v. Doherty,502 U.S. 314, 322-324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); INS v. Abudu, 485 U.S. 94, 104-111, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449-452, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985); INS v. Jong Ha Wang, 450 U.S. 139, 141-146, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam). Mindful of the Board’s “broad discretion” in such matters, however, courts have employed a deferential, abuse-of-discretion standard of review. See Doherty, 502 U.S., at 323,112 S.Ct. 719 (internal quotation marks omitted).

Kucana, 127 S.Ct. at 834. Justice Ginsburg then methodically and completely dismantled the argument that an agency can strip a federal court of jurisdiction over its discretionary decisions by committing to itself that discretion via regulation. Here’s the gist of it:

The Seventh Circuit held that Congress removed the authority long exercised by federal courts to review denials of an alien’s reopening request. Congress did so, the Court of Appeals said, in § 1252(a)(2)(B)(ii), which removes jurisdiction to review a decision of the Attorney General “the authority for which is specified under this subchapter to be in the discretion of the Attorney General.” All agree that the Attorney General’s regulation, 8 CFR § 1003.2(a), places “[t]he decision to grant or deny a motion to reopen… within the discretion of the Board.” But the statute does not codify that prescription, and does not otherwise “specif[y]” that reopening decisions are “in the discretion of the Attorney General.“

Kucana, 127 S.Ct. at 834.

Of particular relevance to this case is footnote 18 of Justice Ginsburg’s opinion, which states:

We express no opinion on whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte. Courts of Appeals have held that such decisions are unreviewable because sua sponte reopening is committed to agency discretion by law, see 5 U.S.C. § 701(a)(2). See, e.g., Tamenut v. Mukasey,521 F.3d 1000, 1003-1004 (C.A.8 2008) (en banc) (per curiam) (agreeing with ten other Courts of Appeals).

Kucana, 127 S.C.t. at 839. And so, with Kucana as a necessary background, let’s bring the Sixth Circuit’s decision in Quezada-Andino back to the foreground. The panel’s decision implies that there’s something different about a denial of a motion to reopen sua sponte than a denial of a motion to reopen based on changed country conditions or an in absentia removal order (the other two regulatory exceptions to the 90-day rule at play in Kucana). That something different may well be Section 701(a)(2) of the APA.

How’d the Sixth Circuit deal with this?

The Supreme Court’s rationale in Kucana v. Holder, 130 S. Ct. 827 (2010)—which held that the jurisdiction-stripping provision of the Illegal Immigration Reform and Immigrant ResponsibilityAct of 1996, 8 U.S.C. § 1252(a)(2)(B)(ii), does not insulate from federal-court review those decisions committed to the Attorney General’s discretion by regulation— “casts considerable doubt on” our decisions in Harcenko and Barry.  Gor v. Holder, 607 F.3d 180, 182 (6th Cir. 2010), reh’gand reh’g en banc denied, (6th Cir. Oct. 5, 2010).  Nevertheless, this Court has already determined that these precedents survive Kucana and, absent their overruling by the en banc court, remain binding in the circuit.  Id. at 188; accord Ozeiry v. Att’y Gen. of the United States, No. 09–3828,2010 WL 3920522, at *2 (3d Cir. Oct. 7, 2010) (unpublished decision); Gashi v. Holder, 382 F.App’x 21, 23 (2d Cir. 2010) (unpublished decision); Ochoa v. Holder, 604 F.3d 546, 549–50 & n.3(8th Cir. 2010).  But see Munoz de Real v. Holder, 595 F.3d 747, 749–50 (7th Cir. 2010) (assuming,in a post-Kucana decision, that the court had authority to review an immigration judge’s refusal to exercise her discretion to reopen a removal proceeding sua sponte).  Thus, we lack jurisdiction to review Petitioners’ claims.

Slip Op. at 4.

Ed. Note 3: Chief Judge Batchelder writes separately in Gor to disagree with District Judge Lawson (the author of the lead opinion) in inviting review of the continuing validity of Barry and Harchenko at the en banc stage, given the Supreme Court’s decision in Kucana.

It looks like Phillip A. Eichorn, Gor’s counsel, after being denied en banc, intends to file a petition for cert. Gor had amicus support from Beth Werlin at the American Immigration Council during the 6th Circuit phase. We can be fairly sure this support will be there at the cert. phase, too.

Perhaps consolidation of Quezada-Andino with Gor might be appropriate. If so, it looks like the Court will be invited to consider what effect, if any, Section 701(a)(2) of the APA has on Kucana and courts’ jurisdiction to consider BIA denials of motions to reopen sua sponte.

Attorney for the Petitioners: Mr. Barry J. McWhirter, Memphis, TN

OIL Attorneys:  Ms. Jane Tracey Schaffner, Ms. Virginia N. Lum

Filed under: Cornelia G. Kennedy, motion to reopen, Unpublished | Tagged: , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Seydy v. Holder

Posted on January 14, 2011 by Af

Seydy v. Holder, No. 09-3822 (6th Cir. Jan 13, 2011) SUTTON, Rogers, McKeague

Petition for review is DENIED

Attorney for the Petitioner: Ms. Jessica Rodriguez Bell, Columbus, OH

OIL Attorneys: Emily A. Radford, David Schor

Filed under: Jeffrey Sutton, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , | Leave a Comment »

Giron-Trujillo v. Holder

Posted on January 14, 2011 by Af

Giron-Trujillo v. Holder, No. 09-3834 (6th Cir. Jan 13, 2011) (unpublished) SILER, Gilman and Griffin

Petition for review is DENIED.

“Merely having a rich uncle  is insufficient to establish a clear probability of persecution. Giron produces no evidence to show that individuals attempting to extort his uncle are aware of Giron’s relationship.  Further, even if the same individuals were aware of Giron’s connection and would attempt to harm Giron to get to his uncle, this would not qualify. Harm for financial gain is not persecution within the meaning of the INA. See, e.g., Lopez-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009).” Slip Op. at 3-4.

Attorney for Petitioner: Ms. Margaret W. Wong, Columbus, OH

OIL Attorney: Ms. Wendy Benner-Leon

Filed under: Eugene E. Siler, Judge, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , | 1 Comment »

Kande v. Holder

Posted on January 13, 2011 by Af

Kande v. Holder, No. 09-3825 (6th Cir. Jan. 13, 2011)  MERRITT, Cook, White

Petition for Review is DISMISSED in part (for lack of jurisdiction as to the asylum claim) and DENIED (as to the withholding claim).

Factual Background:

“The substance of all of Kande’s claims for relief from removal is that he is an ethnic Mende whose ethnicity generally and whose family specifically was closely associated with the Sierra Leone People’s Party (“the Party”), a political party whose adherents have been the victims of political persecution in Sierra Leone.  He identifies two specific incidents supporting his claim of a fear of persecution, both occurring during a time of great upheaval in Sierra Leone:  the killing of his brother, a soldier in the Sierra Leone army, during a battle with a rebel army seeking the overthrow of the Sierra Leone government, and the kidnapping and murder of his father, a determined supporter of the Party, by the same rebel group, which vehemently opposed the Party.”  Slip Op. at 2.

“Every aspect of Kande’s claims was supported only by his own testimony, which was uncorroborated by any other evidence whatsoever.  The Immigration Judge found, and the Board agreed, that this testimony was not credible.  Both based this adverse credibility determination primarily on two inconsistencies.  In his asylum application, Kande indicated that the rebels killed his brother in August of 1996, and his father in May 1997.  However, in his testimony, he testified that his brother was killed in June of 1996, and his father in September of 1997.  When confronted with both inconsistencies, Kande changed his testimony, and indicated that the dates in the asylum application were the correct dates.”  Slip Op. at 2-3

Ed. Note 1: Kande filed his asylum application just four months after he claims he arrived at JFK using a fake passport (which, in turn, led the panel to affirm dismissal of the asylum claim for lack of jurisdiction because Kande couldn’t prove he filed it within the one-year deadline).

I wonder if he was represented by counsel a) when he filed the initial asylum application; and b) during the immigration court hearing several years later (and possibly 8-9 years after the deaths of his father and brother) in which Kande stated, and later recanted, different dates from those in the initial asylum application.

Ed. Note 2: The panel noted in a footnote that the IJ misapprehended the history of the immigration court proceedings when making the adverse credibility determination.  Slip Op. at 4.  The IJ incorrectly surmised that Kande asked for three continuances in order to obtain a Mende-speaking interpreter, and after one was located, opted to proceed in English.  In point of fact, there was only one continuance, Kande had always stated he’d been willing to proceed in English.  Because the IJ said this was merely a “minor factor” in the adverse credibility determination, and because the BIA never mentioned it, this mistake didn’t factor into the 6th Circuit panel’s analysis.

Although this mistake was not outcome-determinative, it adds weight to Immigration Judge Dana Leigh Marks’s observation: “For some people, these are the equivalent of death penalty cases, and we are conducting these cases in a traffic court setting.”

Attorney for the Petitioner: Ms. Fatin Saleh Askar, Columbus, OH

OIL Attorney: Lynda Anh Do

Filed under: Gilbert S. Merritt, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , , | 2 Comments »

Shvedko v. Holder

Posted on January 13, 2011 by Af

Shvedko v. Holder, No. 09-3980 (6th Cir. Jan 12, 2011) MARTIN, Batchelder, Sutton

Petition for Review is DENIED.

Ed. Note 1: This case presents another window into the “persecution v. harassment” distinction in asylum/withholding/CAT claims.  Nikolay Shvedko is a former KGB agent who claimed he and his wife, Marika Svedko, will be persecuted and/or tortured if they are forced to return.

“Nikolay and Marika cite evidence of inscribed crosses [with the letters "KGB"] attached to their apartment, Marika’s belief that she was followed, Nikolay’s belief that their apartment was under surveillance, phone calls from the Estonian secret police looking for Nikolay, [former secret police colleague] Reinhardt’s assertion that he would know when Nikolay was in Estonia and would be in touch with him then, and a daycare’s refusal to admit their son.  To be sure, it would be undesirable and unfortunate for  Nikolay and Marika to  return  to  Estonia and experience similar events.  However, assuming those types of events would continue, they would more closely resemble harassment than persecution.  Cf. Haider v. Holder, 595 F.3d 276, 289 (6th Cir. 2010) (quoting Mikhailevitch v. I.N.S., 146 F.3d 384, 390 (6th Cir. 1998)) (“Persecution ‘requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.’”). Furthermore, the nature of these events does not indicate that any future events would escalate to persecution. What is more, Nikolay’s and Marika’s children have continued to reside in the family apartment without being harmed since their parents came to the United States.  This fact undercuts Nikolay’s and Marika’s fear of persecution.  See In re A-E-M, 21 I. & N. Dec. 1157, 1160 (BIA 1998) (noting that  the applicant’s fear of persecution was undercut by the fact that his family members remained in Peru unharmed for four years after he left).”  Slip Op. at 6-7

Ed. Note 2: This case stokes my continuing fascination with the varying approaches to birthright citizenship around the world.  Particularly interesting to me are the ways U.S. immigration authorities navigate these divergent approaches in removal proceedings.

According to the panel, Marika is an Estonian citizen, as are the couple’s two children.  ”Nikolay, however, did not automatically qualify for citizenship because he was born in Russia, and never achieved full citizenship. Instead, he received multiple temporary permits allowing him to reside in Estonia, but not to work there, and he obtained a passport from the new Russian Federation.”  Slip Op. at 2.

By affirming the denial of this couple’s applications for affirmative relief from removal, has the panel effectively separated their family?  It would seem that Nikolay’s ability to return to Estonia to be with his wife and children now depends on the Estonian government, despite the fact that Estonia was part of the same Soviet Union in which Nikolay was born.   Will try following up with Margaret Wong soon to figure this out, or if any readers have input, feel free to email and I’ll post it.

Attorney for Petitioners: Margaret W. Wong, Cleveland, OH (Wong also argued Haider, supra)

OIL Attorneys: Julia J. Tyler, Jennifer Parker Levings, Kelly J. Walls

Filed under: Boyce F. Martin, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , | Leave a Comment »

United States v. Ashraf

Posted on January 12, 2011 by Af

United States v. Ashraf, No. 09-4002 (6th Cir. Jan. 12, 2011) GILMAN, Griffin, Collier* (C.D.J. E.D.Tenn.)

Government’s Motion to Dismiss is DENIED, but

Conviction for two counts of willful failure to sign travel documents is AFFIRMED.

Note: This case presents some really fascinating immigration issues in the context of a criminal appeal.

First, Defendant claimed he refused to sign the travel documents necessary for his removal because he wanted to contest that removal.  This refusal landed him in federal prison for twelve months.

Second, the government claimed Defendant’s appeal was moot because he’d already been removed.  The panel distinguished cases in which defendants challenge the length of their sentences from those where they challenge their actual liability for the criminal offense.  It ultimately held that the appeal was not moot, and denied the government’s motion to dismiss.

Third, it appears that all of the actions by the Defendant occurred in the context of interviews and interactions with ICE Agents.  It does not appear that Defendant was ever offered access to an attorney during this interactions.   The case thus highlights the dual hats ICE agents wear.  Consequently, it teases out the impossibility of classifying them as purely civil or purely criminal law enforcement officials.  Perhaps, given this impossibility, courts will begin rethinking the sorts of procedural protections that should apply whenever ICE agents have contact with suspects.

Attorney for the Defendant: Edward G. Bryan, Federal Public Defender’s Office, Cleveland, OH

Attorney for the United States: Laura McMullen Ford, Asst United States Attorney, Cleveland OH

Filed under: Ronald Lee Gilman | Tagged: , , , , , , , , , , , , | Leave a Comment »

Kante v. Holder

Posted on January 10, 2011 by Af

Kante v. Holder, No. 08-4043 (6th Cir. Jan. 7, 2011) MERRITT, Rogers, Ketheledge

Petition for review DENIED.

Nature of the Case: asylum, withholding of removal, CAT

Attorney for Petitioner: Brian DiFranco

Attorney for OIL: Theodore Charles Hirt

Filed under: Gilbert S. Merritt, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , | 1 Comment »

Chieh v. Holder

Posted on January 10, 2011 by Af

Chieh v. Holder, No. 09-4183 (6th Cir. Jan 4, 2011) (unpublished) COLE, Surheinrich, Cook

Petition for review DENIED.

Nature of the Case: asylum, withholding, CAT, due process.

Substantive Issues:

1. Adverse Credibility

The panel did not address IJ’s credibility finding because Petitioner’s claims, even if credible, would fail.

2. Changed Country Conditions in Liberia & Future Persecution

“To be sure, [Charles] Taylor’s overthrow does not mean that no petitioner can credibly fear persecution in Liberia.  But for those like Chieh, whose fears are anchored in a power structure that no longer exists, the regime change does mean that theories of future persecution that fail to account for this new reality will not suffice.” Slip Op. at 6.

3. Humanitarian Asylum Relief Based on Severity of Past Persecution
“While the attorney general has discretion to grant asylum to petitioners who have suffered under atrocious forms of persecution, even where there is little likelihood of future persecution,  Ben Hamida v. Gonzales,478 F.3d 734, 740 (6th Cir. 2007) (quoting Matter of Chen, 20 I. & N. Dec. 16, 19 (1989)), it is the rare case that presents facts ghastly enough to qualify.”

4. Withholding of Removal and Relief under the CAT

“Absent any evidence of how likely it is that Chieh will be tortured upon return to Liberia,we cannot find that this eventuality will “more likely than not”  occur.   Id. (citing 8 C.F.R. §208.16(c)(2)).”

5. Violation of Due Process Rights

“Chieh also claims that the IJ’s mischaracterization of his testimony and the BIA’s affirmance of that finding violated his right to due process of law under the Fifth Amendment to the U.S.Constitution.  A petitioner’s right to due process is abrogated only where “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”  Hassan v.Gonzales, 403 F.3d 429, 436 (6th Cir. 2005)

“Because Chieh has not attempted to show prejudice—and cannot do so—we need not decide whether the IJ and the BIA erred in characterizing his testimony, or whether the alleged error rises to the level of a constitutional deprivation” Slip Op. at 10.

 

Note: Chieh’s petition for a stay of removal was previously denied by a separate panel (Boggs, Moore, Cook).

Attorney for the Petitioner: Robert M. Birach

Attorney for OIL: Kathryn M. McKinney

Filed under: R. Guy Cole Jr., Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , , , | Leave a Comment »

Zheng v. Holder

Posted on December 29, 2010 by Af

Zheng v. Holder, No. 09-3232 (6th Cir. Dec. 28, 2010) (unpublished) COLE, Martin, Clay

BIA opinion VACATED and REMANDED

Substantive Issues:

A. Adverse Credibility – (1) Inconsistent Statements  (2) Demeanor and (3) Corroboration.  On all three grounds, the court held Zheng could not satisfy her burden, and therefore upheld the BIA’s affirmance of the IJ’s adverse credibility findings.  ”We find, therefore, that the BIA committed no error in upholding the IJ’s denial of Zheng’s claim for asylum, withholding of removal, or relief under the Convention Against Torture.”

B. Ineffective Assistance of Counsel

“We cannot determine from the BIA’s opinion whether it believed that the quoted paragraphs from Zheng’s affidavit insuf iciently identified ‘additional evidence demonstrating that further hearings are warranted,’ (R. at 3) or whether the BIA erroneously believed that Zheng had not pointed to any evidence at all in support of her motion for remand—a straightforward failure to comply ‘with  the  statutory and  regulatory requirements  for  reopening.’  (Id.)  This ambiguity requires us to remand Zheng’s motion to the BIA for clarification.  See, e.g., Bi Xia Qu v. Holder,618 F.3d 602, 609 (6th Cir. 2010) (“When the BIA does not fully consider an issue . . . a reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed . . . the proper course, except in rare circumstances, is to remand to the [BIA] for additional investigationor explanation.”) (citations and internal quotation marks omitted).  Even were we to assume that theBIA had noticed those paragraphs and decided that they were insufficient to demonstrate that further hearings were warranted, we cannot know on this record why the BIA believed them insufficient or evaluate whether those reasons were adequate under the very deferential standard we apply to petitions for review. As we recently opined, the deference that we show to the BIA is substantial, but it is not without limits.

Deference . . . does not require upholding a Board decision without regard to whether there  is a reasoned basis for it, and it does not require us to envision a rationalexplanation ourselves.  Board decisions are upheld when the agency has exercised reasoned discretion, not as a matter of grace, and the Board must offer sufficient reasons for allowing us to distinguish between the two.

Berhane v. Holder, 606 F.3d 819, 825 (6th Cir. 2010)

Attorney for Petitioner: Gary J. Yerman, New York, NY

OIL Attorney: Emily A. Radford, Lori Warlick

Filed under: ineffective assistance of counsel, motion to reopen, R. Guy Cole Jr., Withholding/CAT | Tagged: , , , , , , , , , , , , , , | Leave a Comment »

Khan v. Holder

Posted on December 26, 2010 by Af

Khan v. Holder, No. 09-3627 (6th Cir. Nov. 15, 2010) (unpublished) MARTIN, McKeague, Ludington* (*E.D.Mich.)

Petition for Review DENIED.

Attorney for Petitioner: Ms. Margaret W. Wong, Cleveland, OH

OIL Attorneys: Christopher L. McGreal, Paul F. Stone

Filed under: Boyce F. Martin, Withholding/CAT | Tagged: , , , , , , , , , , | Leave a Comment »

Patel v. Holder

Posted on December 26, 2010 by Af

Patel v. Holder, No. 09-4306 (6th Cir. Nov. 18, 2010) (unpublished) MOORE, Sutton, McKeague

Petition for review DENIED.

“Patel’s claim of ineffective assistance of counsel fails because she has not established that her former attorney’s performance prejudiced her case.  In order to show prejudice, Patel must demonstrate prima facie eligibility for the underlying relief sought. . . Patel was required to include her application for relief in her motion to reopen with the Board, but she did not do so. In fact, Patel has not demonstrated that she has ever properly filed an application for withholding of removal or protection under the CAT, even after learning of the denial of her appeal and retaining new counsel.  Given that Patel cannot make a prima facie showing of entitlement to relief, Patel fails to show prejudice.  See Scorteanu v. INS, 339 F.3d 407, 414 (6th Cir. 2003) (denying relief on ineffective assistance groundswhen petitioner failed to make a prima facie showing of entitlement to equitable tolling).” Slip Op. at 5-6

Note: A different panel previously denied the petitioner’s motion for a stay of removal.  See Patel v. Holder, No. 09-4306 (6th Cir. Jan. 4, 2010) Keith, Daughtrey, Gibbons

Attorney for the Petitioner: Ms. Bhavya Chaudhary, Atlanta, GA

OIL Attorney: Ms. Jessica R.C. Malloy

Filed under: ineffective assistance of counsel, Karen Nelson Moore, motion to reopen, Withholding/CAT | Tagged: , , , , , , , , , , , , , , , , , , | Leave a Comment »

Ba-Alawi v. Holder

Posted on December 26, 2010 by Af

Ba-Alawi v. Holder, No. 09-4140 (6th Cir. Nov. 29, 2010) (unpublished) CLAY, Boggs, Cole

Petition for review DENIED.

Background:

“At his immigration hearing, Ba-Alawi testified that, sometime between 1998 and 2001, he became involved in events stemming from an overture of marriage made by his brother-in-law to his sister.  Ba-Alawi testified that his brother-in-law, Labeeb, attempted to ‘force’ a marriage upon his sister, which she resisted with Ba-Alawi’s full support.  This rejection was perceived as an offense against the ‘honor’ of Labeeb’s family.  In order to restore honor, Labeeb then demanded that BaAlawi divorce his own wife; Ba-Alawi refused, and Labeeb threatened to kill both him and his wife.

“Ba-Alawi testified that he believed that the government of Yemen would be unwilling or unable to protect him from the threat posed by Labeeb, both because Labeeb is a rich and powerful man, and also because Ba-Alawi is a military deserter and has already fallen afoul of the Yemeni government.” Slip Op at 2-3

Substantive Issues:

I. Withholding of Removal

Re: Particularity & social visibility of the proposed social group: Persons must share more than persecution to constitute members of a particular social group.

“In this case, Ba-Alawi contends that he is a member of a particular social group that he defines as ‘persons targeted for ‘honor based violence’ by a family group in Yemen in retribution for perceived dishonor inflicted upon the family by the petitioner or members of the petitioner’s family.’  Petitioner argues that ‘persons targeted for honor based violence’ can be analogized topersons at risk of female genital mutilation (“FGM”), a social group that meets the standard forrecognition under the INA.  See Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). But unlike victims of FGM, ‘persons targeted for honor based violence” share no immutable characteristics—gender, tribal/regional origin, belief system, age or anything else—other than their persecution.  This is not sufficient to be recognized as a social group under the INA.”  Slip Op. at 5

Re: Likelihood of Future Persecution

“The lion’s share of the evidence suggests that it is unlikely that Ba-Alawi will suffer persecution if returned to Yemen.  As the BIA noted, Ba-Alawi’s sister has continued to live in Yemen unharmed and has married and borne three children since the time of the threats.  In addition, there is no evidence to demonstrate that the threats were recurrent or ongoing, or that Ba-Alawi had been threatened at any time other than the single incident more than a decade ago.” Slip Op. at 6-7

II. Voluntary Departure

“Ba-Alawi also appeals the BIA’s denial of his application for voluntary departure.  He argues that the BIA erred as a matter of law when it denied him voluntary departure because he is excused from the requirement to present a valid travel document when ‘the document is already in possessionof the Service.’  8 C.F.R. 1240.26(b)(3)(1)(B).

“The provision that Ba-Alawi relies upon, however, provides an exception from inspection and photocopying only.  It does not provide an exception from possessing a travel document that issufficient for entry into Yemen.  See Atmadja v. United States Att’y Gen., 322 F. App’x 889, 890(11th Cir. 2009) (interpreting the INA to require that “an alien must possess a valid, unexpired passport even if the passport is in the possession of the DHS, absent evidence that it is unnecessary in order to return to the country of removal, is consistent with the language of  the regulation”). Regardless of the location of Ba-Alawi’s expired passport, it is clear that Ba-Alawi does not currently possess a valid passport or other document sufficient for travel. Therefore, Ba-Alawi is not eligible for voluntary departure.  8 C.F.R. § 1240.36(c)(2).” Slip Op. at 7.

Attorneys for the Petitioner: Mr. Charles S. Owen, Southfield, MI & Ms. Bridgette Sparkman Borg, Southfield, MI (both also argued Farraj v. Holder, 316 Fed. App’x 398 (6th Cir. 2009) (unpublished)).

OIL Attorneys: Ms. Anna Nelson & Ms. Jessica Segall

Filed under: Eric L. Clay, Unpublished, Withholding/CAT | Tagged: , , , , , , , , , , , , , | Leave a Comment »

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