Where the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, this court has authority to review the decisions of both the IJ and the BIA.
Adverse credibility determinations are factual findings that this court reviews under the substantial evidence standard, this court must uphold a credibility determination unless any reasonable adjudicator would be compelled to conclude to the contrary. However, the IJ must provide “specific, cogent reasons” for his or her findings, and adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record, are reversible.
Under the REAL ID Act of 2005, credibility determinations may be made without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. However, an adverse credibility determination may only be made after considering the totality of the circumstances, and all relevant factors, which may include the consistency between the applicant’s written and oral statements and the circumstances under which the statements were made.
The BIA’s own rule requires a credibility determination to be independent of an analysis of the sufficiency of an applicant’s evidence. A failure of proof is not a proper ground per se for an adverse credibility determination. The latter finding is more appropriately based upon inconsistent statements, contradictory evidence, and inherently improbable testimony.
An adverse credibility finding is improper where an IJ fails to address a petitioner’s explanation for a discrepancy or inconsistency. Where the IJ appeared to have found the petitioner credible during the hearing, noting that she had been “candid and honest” during her testimony, and had “readily admitted” that she had lied to Canadian border officials, but nonetheless determined that he had to make a negative credibility finding in light of the petitioner’s admission that she had not been truthful with Canadian authorities, the IJ failed to consider whether the totality of the circumstances and all relevant factors supported the adverse credibility determination, particularly when the IJ did not address (much less discredit) the petitioner’s explanation for her false statements during the airport interview, or explain why that explanation was inadequate.
The IJ’s adverse credibility determination is particularly problematic because he relied solely on inconsistent statements made during the petitioner’s airport interview. It is established in this Circuit that inconsistencies between an airport statement and an asylum seeker’s testimony before an IJ is not sufficient, standing alone, to support a BIA finding that the petitioner was not credible. This court has disfavored reliance on statements made during an airport interview because such an interview is likely to be hurried; language difficulties arise; the results may be inaccurately recorded; and an arriving alien who has suffered abuse in his home country may be reluctant to reveal full information in his or her first meeting with the government.
Where the petitioner, who was only 17 years old at the time, testified that (1) she was disoriented during the airport interview and could not understand all the questions; (2) she did not have counsel during the airport interview, and, although an interpreter was present, he or she apparently participated over the phone; (3) the airport interview lasted approximately two hours, but the record is only one-and-a-half pages long, and lists only 22 total questions and answers; (4) the entire interview was not recorded, it is impossible to know from this incomplete record whether the petitioner mentioned her fear of being forced into prostitution during the airport interview. Accordingly, to the extent the IJ and the BIA relied on the fact that the petitioner had not told Canadian authorities about her fear of being forced into prostitution, that finding is not supported by the record.
Even assuming that the petitioner omitted to mention her fear of being forced into prostitution during her airport interview, this court does not believe that omission, by itself, required the IJ to find the petitioner incredible. In this context, it is quite possible that a 17-year old female might be hesitant to disclose to border officials in a foreign country her fears of being forced into prostitution. Because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview. Accordingly, the inconsistency between the petitioner’s statements to Canadian officials and her testimony before the IJ, which included her honest and candid admission that she had not been truthful during her airport interview, hardly required a finding that the petitioner was not credible. In sum, this court concludes that the IJ’s and BIA’s adverse credibility determination is not supported by substantial evidence. In so holding, this court is not finding the petitioner credible. Rather, this court concludes that because of the lack of substantial evidence to support the adverse credibility determination, this court must remand in order for the BIA to further explain or supplement the record. Accordingly, this court grants the petition for review, vacates the BIA’s decision, and remand for further proceedings consistent with this opinion on the petitioner’s claims for asylum, withholding of removal, and relief under the CAT.
Monday, December 28, 2009
Wednesday, December 23, 2009
Saysana v. Gillen, No. 09-1179 (1st Cir. Dec. 22, 2009).
The issue presented in the instant case is whether the mandatory detention provision at 8 U.S.C. § 1226 applies only when an alien is released from a criminal custody the basis for which is one of the offenses listed in § 1226(c)(1)(A)- (D); or, alternatively, whether it applies whenever an alien, previously convicted of an offense that falls within (c)(1)(A)-(D), is released from any criminal custody regardless of the reason for that detention.
Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) requires this court to conduct a two-part inquiry. First, whether Congress has directly spoken to the precise question at issue. If so, courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress. The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. In determining whether a statute exhibits Chevron-type ambiguity, and hence warrants deference to the Attorney General’s interpretation of the statute, courts look at both the most natural reading of the language and the consistency of the “interpretive clues” Congress provided. In determining the meaning of a statute, this court’s analysis begins with the language of the statute. This court construes language in its context and in light of the terms surrounding it. Another regular interpretive method is reference to statutory history to see if any serious question even about purely textual ambiguity is left. If, after applying these interpretive tools, this court concludes that the statute is ambiguous, it turns to the second question, specifically, whether the agency’s answer is based on a permissible construction of the statute. In applying the second step, this court must defer to an agency’s interpretive regulation unless it is arbitrary, capricious, or manifestly contrary to the statute.
The first step of Chevron requires that this court to focus on the statutory language. This court gives the words of the statute their ordinary meaning unless the context of the statute suggests otherwise. When the plain wording of the statute is clear, that is the end of the matter. This court must remember, however, that the “plain meaning” of a statutory provision is often made clear not only by the words of the statute but by its structure as well. In this court’s view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses. The statutory language embodies the judgment of Congress that such an individual should not be returned to the community pending disposition of his removal proceedings. Both the language and the structure of the statutory provision state this mandate in a clear and straightforward manner.
The “when released” provision immediately follows the list of enumerated offenses, indicating that the former modifies the latter. Additionally, § 1226(c) provides that the alien shall be detained upon release regardless of whether he is subsequently arrested for the “same offense,” reinforcing the notion that the entire clause applies to the list of enumerated offenses immediately preceding it.
The Government’s contention that the “released” language must embrace a broader meaning than a release from custody for an enumerated offense because the statute requires mandatory detention for individuals who are removable or inadmissible based on the commission of certain offenses, whether or not they were convicted of those offenses is without merit. While it is true that a conviction is not always a necessary predicate to inadmissibility or removability, the plain language of the statute does not render the term “when released” meaningless as applied to these subsections. Individuals may be “released” in connection with the offenses listed without any resulting conviction and be subject, therefore, to mandatory detention, consistent with the statute. For example, an alien could be arrested and released without charges. That an alien might have committed a listed offense but never come into any form of custody from which “release” triggers mandatory detention does not justify a reading that attaches the serious consequences of the statute to a subsequent, otherwise wholly inconsequential, incident of criminal custody. A far more natural reading is that the “when released” language applies to an alien who has been detained criminally for one of the listed activities. This reading not only relates the “when released” to the prior language in the subsection, but it also explains the later use of terms related to criminal detention and the use of the term “same offense” at the end of subsection (c)(1).
Indeed, if the reference to “when the alien is released” is read to encompass any release from any non-DHS custodial setting after the expiration of the TPCR, that phrase is completely disjointed from the text that precedes and follows it. As this court has noted, the preceding text specifically enumerates offenses relating to removability; the subsequent reference to the “same offense” is only sensibly read to relate back to the aforementioned statutorily listed “offense.” Absent a clear direction in the text to read multiple uses of the same term to carry different meanings, this court will not do so. Rather, this court will read the term uniformly throughout the provision.
The Government’s proposed reading that the term ‘for the same offense’ refers simply to the ‘offense’ from whose custody the criminal alien is ‘released’ untethers not only the “when released” language itself, but also the entire “when released” clause, including its reference to the “same offense,” from the remainder of the subsection. First, the term “offense,” used in this way, does not appear in the statute. Second, the Government must read a separate, intervening event--post-TPCR non-DHS custody unrelated to the enumerated offenses--into the statute without any direct language to support such a reading. This reading transforms an otherwise straightforward statutory command, relating to specific offenses that Congress itself has identified as warranting special attention, into a mere temporal triggering mechanism. This court sees no justification in the language or structure of the statute for such a transformation. In sum, this court cannot conclude that the Government’s reading is “equally plausible.” The structure of the section at 8 U.S.C. § 1226(c) makes the natural reading of this term refer to the offenses set forth in detail in subsection (c)(1)(A)-(D).
The Government argued that while there is no legislative history that speaks directly to the issue of whether ‘when released’ means only release from criminal incarceration for the underlying removable offense, there was one prior version of the mandatory detention provision that required the Attorney General to take the alien into custody “upon completion of the alien’s sentence for such conviction,” suggesting that, because Congress replaced this language, it meant to divorce the custody from the specific conviction. This argument is without merit. This court approaches all arguments based on legislative history with significant caution. This court examines the legislative history in search of an unmistakable expression of congressional intent. Without citation to any relevant explanation for the change in the legislative language, this court is reluctant to presume that Congress had such a singular purpose, particularly when other, perhaps more plausible, explanations for the change are also evident. In explaining the various passages of IIRIRA, the legislature stated that mandatory detention was meant to apply whenever such an alien is released from imprisonment, regardless of the circumstances of the release. House Conf. Rpt. No. 104-828 at 210-11 (Sept. 24, 1996). Presumably, with that comment, the legislature was seeking to thwart arguments by aliens that because they were subject to parole or other community supervision they could not be taken into immediate immigration detention because that would result in a violation of their imposed conditions. The Court is not persuaded that the legislature was seeking to justify mandatory immigration custody many months or even years after an alien had been released from state custody. In short, the speculative argument based on legislative history pales in the face of a very strong argument based on text and structure. In sum, the Government’s effort to make 8 U.S.C. § 1226(c)(1) “ambiguous” is strained. Reading the provision as a whole, this court thinks it is clear that the “when released” language relates to the listed offenses in subsection (c)(1)(A)-(D).
If this court was to conclude that the statute is ambiguous,
Chevron would direct us to defer to the agency’s interpretation, provided that it is based on a permissible construction of the statute. This court has concluded that the text of the statute is clear. Consequently, because the “when released” language is unambiguous, there is nothing for the agency to interpret--no gap for it to fill--and there is no justification for resorting to agency interpretation to address an ambiguity. However, even if this court was to conclude that the statute were ambiguous, this court could not agree that the BIA’s interpretation is a reasonable one. In addition to the grammatical and logical lapses that this court has pointed out, there are additional difficulties with the agency position. First, the agency’s interpretation would treat similarly situated individuals differently on the basis of a factor not logically connected to the mandatory detention provision. An alien with a conviction identical to the petitioner’s who has not experienced a post-TPCR release from custody would not, the Government admits, be subject to mandatory detention. The Government’s defense of this anomalous result that it is consistent with Congress’s longstanding intent to detain certain criminal aliens paints with far too broad a brush. The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply. The non-retroactivity of the provision hardly undercuts the purposes of mandatory detention; instead, it serves important practical governmental interests in the administration of the enforcement program. More importantly, finding that the “when released” language serves this more limited but focused purpose of preventing the return to the community of those released in connection with the enumerated offenses, as opposed to the amorphous purpose the Government advances, avoids attributing to Congress the sanctioning of the arbitrary and inconsequential factor of any post-TPCR custodial release becoming the controlling factor for mandatory detention.
The Board cites no authority that Congress’s finely tuned legislative product was premised on unsupported assumptions and speculative conclusions that Congress views criminals and terrorist aliens are threats to persons and property in the United States who should be segregated pending a decision on removal, and that they are poor bail risks and they have little likelihood of relief from removal and therefore have little incentive to appear for their hearings, regardless of family and community ties. Indeed, aliens with criminal histories that predate the passage of IIRIRA remain eligible for forms of relief not available to aliens with more recent criminal convictions. In addition, it is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. The affected aliens are individuals who committed an offense, and were released from custody for that offense, more than a decade ago. They have continued to live in the United States. By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.
This court does not dispute that Congress has determined that the specified offenses in the mandatory detention provision are of a particularly serious nature warranting greater restrictions on liberty pending removal proceedings. However, this purpose is not sensibly advanced by the Government’s position, which, as this court has noted, draws an arbitrary distinction between individuals who, with respect to the serious crime with which the statute concerns itself, are identical. In view of the logical leaps the Government’s position entails, this court must conclude that, even if the statute were ambiguous, the Government’s interpretation is not reasonable. This court concludes that the meaning of the statute is clear on the issue before the bar; the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody. This court further concludes that, even if the statute were ambiguous, the interpretation of the Board is not reasonable. Accordingly, this court must affirm the judgment of the district court.
Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) requires this court to conduct a two-part inquiry. First, whether Congress has directly spoken to the precise question at issue. If so, courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress. The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. In determining whether a statute exhibits Chevron-type ambiguity, and hence warrants deference to the Attorney General’s interpretation of the statute, courts look at both the most natural reading of the language and the consistency of the “interpretive clues” Congress provided. In determining the meaning of a statute, this court’s analysis begins with the language of the statute. This court construes language in its context and in light of the terms surrounding it. Another regular interpretive method is reference to statutory history to see if any serious question even about purely textual ambiguity is left. If, after applying these interpretive tools, this court concludes that the statute is ambiguous, it turns to the second question, specifically, whether the agency’s answer is based on a permissible construction of the statute. In applying the second step, this court must defer to an agency’s interpretive regulation unless it is arbitrary, capricious, or manifestly contrary to the statute.
The first step of Chevron requires that this court to focus on the statutory language. This court gives the words of the statute their ordinary meaning unless the context of the statute suggests otherwise. When the plain wording of the statute is clear, that is the end of the matter. This court must remember, however, that the “plain meaning” of a statutory provision is often made clear not only by the words of the statute but by its structure as well. In this court’s view, a natural reading of the statutory provision from top to bottom makes clear that the congressional requirement of mandatory detention is addressed to the situation of an alien who is released from custody for one of the enumerated offenses. The statutory language embodies the judgment of Congress that such an individual should not be returned to the community pending disposition of his removal proceedings. Both the language and the structure of the statutory provision state this mandate in a clear and straightforward manner.
The “when released” provision immediately follows the list of enumerated offenses, indicating that the former modifies the latter. Additionally, § 1226(c) provides that the alien shall be detained upon release regardless of whether he is subsequently arrested for the “same offense,” reinforcing the notion that the entire clause applies to the list of enumerated offenses immediately preceding it.
The Government’s contention that the “released” language must embrace a broader meaning than a release from custody for an enumerated offense because the statute requires mandatory detention for individuals who are removable or inadmissible based on the commission of certain offenses, whether or not they were convicted of those offenses is without merit. While it is true that a conviction is not always a necessary predicate to inadmissibility or removability, the plain language of the statute does not render the term “when released” meaningless as applied to these subsections. Individuals may be “released” in connection with the offenses listed without any resulting conviction and be subject, therefore, to mandatory detention, consistent with the statute. For example, an alien could be arrested and released without charges. That an alien might have committed a listed offense but never come into any form of custody from which “release” triggers mandatory detention does not justify a reading that attaches the serious consequences of the statute to a subsequent, otherwise wholly inconsequential, incident of criminal custody. A far more natural reading is that the “when released” language applies to an alien who has been detained criminally for one of the listed activities. This reading not only relates the “when released” to the prior language in the subsection, but it also explains the later use of terms related to criminal detention and the use of the term “same offense” at the end of subsection (c)(1).
Indeed, if the reference to “when the alien is released” is read to encompass any release from any non-DHS custodial setting after the expiration of the TPCR, that phrase is completely disjointed from the text that precedes and follows it. As this court has noted, the preceding text specifically enumerates offenses relating to removability; the subsequent reference to the “same offense” is only sensibly read to relate back to the aforementioned statutorily listed “offense.” Absent a clear direction in the text to read multiple uses of the same term to carry different meanings, this court will not do so. Rather, this court will read the term uniformly throughout the provision.
The Government’s proposed reading that the term ‘for the same offense’ refers simply to the ‘offense’ from whose custody the criminal alien is ‘released’ untethers not only the “when released” language itself, but also the entire “when released” clause, including its reference to the “same offense,” from the remainder of the subsection. First, the term “offense,” used in this way, does not appear in the statute. Second, the Government must read a separate, intervening event--post-TPCR non-DHS custody unrelated to the enumerated offenses--into the statute without any direct language to support such a reading. This reading transforms an otherwise straightforward statutory command, relating to specific offenses that Congress itself has identified as warranting special attention, into a mere temporal triggering mechanism. This court sees no justification in the language or structure of the statute for such a transformation. In sum, this court cannot conclude that the Government’s reading is “equally plausible.” The structure of the section at 8 U.S.C. § 1226(c) makes the natural reading of this term refer to the offenses set forth in detail in subsection (c)(1)(A)-(D).
The Government argued that while there is no legislative history that speaks directly to the issue of whether ‘when released’ means only release from criminal incarceration for the underlying removable offense, there was one prior version of the mandatory detention provision that required the Attorney General to take the alien into custody “upon completion of the alien’s sentence for such conviction,” suggesting that, because Congress replaced this language, it meant to divorce the custody from the specific conviction. This argument is without merit. This court approaches all arguments based on legislative history with significant caution. This court examines the legislative history in search of an unmistakable expression of congressional intent. Without citation to any relevant explanation for the change in the legislative language, this court is reluctant to presume that Congress had such a singular purpose, particularly when other, perhaps more plausible, explanations for the change are also evident. In explaining the various passages of IIRIRA, the legislature stated that mandatory detention was meant to apply whenever such an alien is released from imprisonment, regardless of the circumstances of the release. House Conf. Rpt. No. 104-828 at 210-11 (Sept. 24, 1996). Presumably, with that comment, the legislature was seeking to thwart arguments by aliens that because they were subject to parole or other community supervision they could not be taken into immediate immigration detention because that would result in a violation of their imposed conditions. The Court is not persuaded that the legislature was seeking to justify mandatory immigration custody many months or even years after an alien had been released from state custody. In short, the speculative argument based on legislative history pales in the face of a very strong argument based on text and structure. In sum, the Government’s effort to make 8 U.S.C. § 1226(c)(1) “ambiguous” is strained. Reading the provision as a whole, this court thinks it is clear that the “when released” language relates to the listed offenses in subsection (c)(1)(A)-(D).
If this court was to conclude that the statute is ambiguous,
Chevron would direct us to defer to the agency’s interpretation, provided that it is based on a permissible construction of the statute. This court has concluded that the text of the statute is clear. Consequently, because the “when released” language is unambiguous, there is nothing for the agency to interpret--no gap for it to fill--and there is no justification for resorting to agency interpretation to address an ambiguity. However, even if this court was to conclude that the statute were ambiguous, this court could not agree that the BIA’s interpretation is a reasonable one. In addition to the grammatical and logical lapses that this court has pointed out, there are additional difficulties with the agency position. First, the agency’s interpretation would treat similarly situated individuals differently on the basis of a factor not logically connected to the mandatory detention provision. An alien with a conviction identical to the petitioner’s who has not experienced a post-TPCR release from custody would not, the Government admits, be subject to mandatory detention. The Government’s defense of this anomalous result that it is consistent with Congress’s longstanding intent to detain certain criminal aliens paints with far too broad a brush. The mandatory detention provision does not reflect a general policy in favor of detention; instead, it outlines specific, serious circumstances under which the ordinary procedures for release on bond at the discretion of the immigration judge should not apply. The non-retroactivity of the provision hardly undercuts the purposes of mandatory detention; instead, it serves important practical governmental interests in the administration of the enforcement program. More importantly, finding that the “when released” language serves this more limited but focused purpose of preventing the return to the community of those released in connection with the enumerated offenses, as opposed to the amorphous purpose the Government advances, avoids attributing to Congress the sanctioning of the arbitrary and inconsequential factor of any post-TPCR custodial release becoming the controlling factor for mandatory detention.
The Board cites no authority that Congress’s finely tuned legislative product was premised on unsupported assumptions and speculative conclusions that Congress views criminals and terrorist aliens are threats to persons and property in the United States who should be segregated pending a decision on removal, and that they are poor bail risks and they have little likelihood of relief from removal and therefore have little incentive to appear for their hearings, regardless of family and community ties. Indeed, aliens with criminal histories that predate the passage of IIRIRA remain eligible for forms of relief not available to aliens with more recent criminal convictions. In addition, it is counter-intuitive to say that aliens with potentially longstanding community ties are, as a class, poor bail risks. The affected aliens are individuals who committed an offense, and were released from custody for that offense, more than a decade ago. They have continued to live in the United States. By any logic, it stands to reason that the more remote in time a conviction becomes and the more time after a conviction an individual spends in a community, the lower his bail risk is likely to be.
This court does not dispute that Congress has determined that the specified offenses in the mandatory detention provision are of a particularly serious nature warranting greater restrictions on liberty pending removal proceedings. However, this purpose is not sensibly advanced by the Government’s position, which, as this court has noted, draws an arbitrary distinction between individuals who, with respect to the serious crime with which the statute concerns itself, are identical. In view of the logical leaps the Government’s position entails, this court must conclude that, even if the statute were ambiguous, the Government’s interpretation is not reasonable. This court concludes that the meaning of the statute is clear on the issue before the bar; the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody. This court further concludes that, even if the statute were ambiguous, the interpretation of the Board is not reasonable. Accordingly, this court must affirm the judgment of the district court.
Monday, December 21, 2009
Hamazaspyan v. Holder, No. 05-72267 (9th Cir. Dec. 21, 2009).
The petitioner’s removal order is a final order over which this court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). This court’s review of a removal order entered in absentia is limited to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien’s absence from the proceeding, and (iii) whether or not the alien is removable. This court reviews the BIA’s denial of motions to reopen for abuse of discretion. The BIA’s determination of purely legal questions is reviewed de novo. Whether an immigration proceeding violates an alien’s due process rights is a purely legal issue and is reviewed de novo. Factual findings are reviewed for substantial evidence.
This court now holds that serving a hearing notice on an alien, but not on the alien’s counsel of record, is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the counsel of record.
An IJ is required to enter an in absentia removal order if the government establishes by clear, unequivocal, and convincing evidence that (1) the alien was provided statutory notice and (2) the alien is removable. An IJ may rescind his order if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or (2) of Section 1229(a) of Title 8.
Notice in accordance with paragraph (1) or (2) of section 1229(a) of Title 8 requires written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). The BIA has decided that personal service is practical for the immigration court only when the respondent is physically present before the immigration judge. Such personal service did not occur in the instant case.
The next statutory means of service is service by mail. The text of 8 U.S.C. § 1229(a)(1) and (2) is through service of mail to the alien or to the alien’s counsel of record, if any. Where possible, this court is required to give each word of a statute meaning. Does “if any” have any meaning as to whether counsel must be served? “If” means “1. in case that; granting that; supposing that . . .” Webster’s New Twentieth Century Dictionary Unabridged (2d ed. 1983). “Any” means “1. one (no matter which) of more than two . . .” Put together: in case that the alien has counsel, one of the counsels must be served. In other words, although the word “or” is disjunctive, the phrase “if any” creates a condition in the choice between serving the alien or serving his counsel. If the case is that the alien is represented by counsel of record, then the government must serve one of his counsels of record. If, however, the alien is not represented by counsel of record, then the government must serve the alien. The purpose of the word “or” in the statute is to clarify that the immigration court is not required to send notice to both the alien and the alien’s counsel of record. Therefore, this court holds that, once the alien’s counsel files an appearance before the immigration court, 8 U.S.C. § 1229 requires the government to serve an alien’s counsel of record with any document related to the alien’s removal proceedings.
If Congress had wanted to make 8 U.S.C. § 1229(a) truly disjunctive, to allow service of notice of a Notice to Appear or hearing notice on either the alien or the alien’s counsel of record,
Congress could simply have eliminated “if any.” Of course, if there is no counsel of record, one cannot be served.
There are provisions of 8 U.S.C. §§ 1229 and 1229a that might, on first glance, appear contrary to this court’s holding. Section 1229a(b)(5)(A) and § 1229(c) state written notice shall be sufficient if served on the most recent address the alien provided under § 1229(a)(1)(F). One interpretation of these provisions could be that they supersede the requirement in § 1229(a)(1) or (2) that an alien’s counsel of record must receive service. Both provisions more likely regulate only where service can be effected upon the alien, and do not eliminate the requirement of service upon the alien’s counsel of record, if the alien has such counsel, and counsel has duly filed an appearance before the immigration court on the court’s record. Nothing in either provision suggests an alien who updates his residential address with DHS or the immigration court thus loses the statutory right to have DHS or the immigration court send notice to the address of his counsel of record.
This court’s interpretation of 8 U.S.C. § 1229 is supported by 8 C.F.R. § 1292.5, which requires the immigration court to serve an exhaustive list of papers on aliens’ attorneys. This provision applies equally to notices to appear and hearing notices under 8 U.S.C. § 1229.
It was “procedurally irregular” for the immigration court in the instant case not to send notice to the petitioner’s counsel of record. The hearing notice itself included check-boxes to indicate who should receive the notice, including a box for the alien and the alien’s attorney. On the hearing notice in question, both boxes were checked, which at least suggests the immigration court intended to send the notice to the petitioner’s counsel of record. Nevertheless, the government does not contest that the immigration court failed to send the hearing notice to the petitioner’s counsel of record.
In holding 8 C.F.R. § 1292.5 controls the notice requirement under 8 U.S.C. § 1229a(b)(5), this court disagrees with Giday v. INS, 113 F.3d 230 (D.C. Cir. 1997). Giday provides no compelling rationale for this court to follow. The decision simply omits the key phrase “if any” of 8 U.S.C. § 1229(a)(1) and (2), when discussing the relevant statutes and regulations and gives no reason for such abstinence. Giday has not been followed on this point of law by any subsequent court.
Further, this court rejects the government’s contention that 8 C.F.R. § 1003.23 controls in lieu of 8 C.F.R. § 1292.5 because § 1003.23 is the more specific statute. It is not. Although § 1003.23 may include specific provisions regarding in absentia removal orders, the pertinent text of that regulation is not specific to statutory notice requirements. Instead, the pertinent text addresses exceptions to filing deadlines. Therefore, it is § 1292.5 that is more specific—with respect to notice requirements—than § 1003.23.
In short, this court holds that an in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record. Furthermore, this court holds that the BIA erred when it adopted and affirmed the IJ’s decision. As a result, this court grants the petition for review, reverse the BIA’s decision that adopted the IJ’s order to deny the petitioner’s motion to reopen, and remand for further proceedings.
This court now holds that serving a hearing notice on an alien, but not on the alien’s counsel of record, is insufficient when an alien’s counsel of record has filed a notice of appearance with the immigration court. When such an appearance has been filed, the government must serve all notices to appear and all hearing notices on the counsel of record.
An IJ is required to enter an in absentia removal order if the government establishes by clear, unequivocal, and convincing evidence that (1) the alien was provided statutory notice and (2) the alien is removable. An IJ may rescind his order if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or (2) of Section 1229(a) of Title 8.
Notice in accordance with paragraph (1) or (2) of section 1229(a) of Title 8 requires written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any). The BIA has decided that personal service is practical for the immigration court only when the respondent is physically present before the immigration judge. Such personal service did not occur in the instant case.
The next statutory means of service is service by mail. The text of 8 U.S.C. § 1229(a)(1) and (2) is through service of mail to the alien or to the alien’s counsel of record, if any. Where possible, this court is required to give each word of a statute meaning. Does “if any” have any meaning as to whether counsel must be served? “If” means “1. in case that; granting that; supposing that . . .” Webster’s New Twentieth Century Dictionary Unabridged (2d ed. 1983). “Any” means “1. one (no matter which) of more than two . . .” Put together: in case that the alien has counsel, one of the counsels must be served. In other words, although the word “or” is disjunctive, the phrase “if any” creates a condition in the choice between serving the alien or serving his counsel. If the case is that the alien is represented by counsel of record, then the government must serve one of his counsels of record. If, however, the alien is not represented by counsel of record, then the government must serve the alien. The purpose of the word “or” in the statute is to clarify that the immigration court is not required to send notice to both the alien and the alien’s counsel of record. Therefore, this court holds that, once the alien’s counsel files an appearance before the immigration court, 8 U.S.C. § 1229 requires the government to serve an alien’s counsel of record with any document related to the alien’s removal proceedings.
If Congress had wanted to make 8 U.S.C. § 1229(a) truly disjunctive, to allow service of notice of a Notice to Appear or hearing notice on either the alien or the alien’s counsel of record,
Congress could simply have eliminated “if any.” Of course, if there is no counsel of record, one cannot be served.
There are provisions of 8 U.S.C. §§ 1229 and 1229a that might, on first glance, appear contrary to this court’s holding. Section 1229a(b)(5)(A) and § 1229(c) state written notice shall be sufficient if served on the most recent address the alien provided under § 1229(a)(1)(F). One interpretation of these provisions could be that they supersede the requirement in § 1229(a)(1) or (2) that an alien’s counsel of record must receive service. Both provisions more likely regulate only where service can be effected upon the alien, and do not eliminate the requirement of service upon the alien’s counsel of record, if the alien has such counsel, and counsel has duly filed an appearance before the immigration court on the court’s record. Nothing in either provision suggests an alien who updates his residential address with DHS or the immigration court thus loses the statutory right to have DHS or the immigration court send notice to the address of his counsel of record.
This court’s interpretation of 8 U.S.C. § 1229 is supported by 8 C.F.R. § 1292.5, which requires the immigration court to serve an exhaustive list of papers on aliens’ attorneys. This provision applies equally to notices to appear and hearing notices under 8 U.S.C. § 1229.
It was “procedurally irregular” for the immigration court in the instant case not to send notice to the petitioner’s counsel of record. The hearing notice itself included check-boxes to indicate who should receive the notice, including a box for the alien and the alien’s attorney. On the hearing notice in question, both boxes were checked, which at least suggests the immigration court intended to send the notice to the petitioner’s counsel of record. Nevertheless, the government does not contest that the immigration court failed to send the hearing notice to the petitioner’s counsel of record.
In holding 8 C.F.R. § 1292.5 controls the notice requirement under 8 U.S.C. § 1229a(b)(5), this court disagrees with Giday v. INS, 113 F.3d 230 (D.C. Cir. 1997). Giday provides no compelling rationale for this court to follow. The decision simply omits the key phrase “if any” of 8 U.S.C. § 1229(a)(1) and (2), when discussing the relevant statutes and regulations and gives no reason for such abstinence. Giday has not been followed on this point of law by any subsequent court.
Further, this court rejects the government’s contention that 8 C.F.R. § 1003.23 controls in lieu of 8 C.F.R. § 1292.5 because § 1003.23 is the more specific statute. It is not. Although § 1003.23 may include specific provisions regarding in absentia removal orders, the pertinent text of that regulation is not specific to statutory notice requirements. Instead, the pertinent text addresses exceptions to filing deadlines. Therefore, it is § 1292.5 that is more specific—with respect to notice requirements—than § 1003.23.
In short, this court holds that an in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by the alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who had filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien’s counsel of record. Furthermore, this court holds that the BIA erred when it adopted and affirmed the IJ’s decision. As a result, this court grants the petition for review, reverse the BIA’s decision that adopted the IJ’s order to deny the petitioner’s motion to reopen, and remand for further proceedings.
Saturday, December 19, 2009
Acquaah v. Holder, No. 08-3836 (6th Cir. Dec. 18, 2009).
Because the BIA adopted the IJ’s decision with additional commentary, this court reviews the decision of the IJ, as supplemented by the BIA, as the final administrative order. Further, this court reviews the denial of a motion to reopen under the abuse-of-discretion standard. An abuse of discretion exists where the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. On the other hand, legal determinations made by the BIA are reviewed de novo.
Failure to appear at a removal proceeding carries the severe consequence of deportation. An order of removal due to an alien’s failure to appear may be rescinded, however, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances. Such exceptional circumstances include battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances, and they must be beyond the control of the alien. An IJ considers the totality of the circumstances when making a determination that exceptional circumstances exist.
The petitioner’s argument that that his two motions to reopen which were both filed well outside the 180-day time limit should nonetheless be equitably tolled because of former counsel’s ineffective assistance is without merit. This court has indeed applied the doctrine of equitable tolling to motions to reopen removal proceedings. However, even if the petitioner’s motions were found to be timely, he would still not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances, the motions must be denied.
Where the petitioner asserts that had his former counsel timely filed the motion to reopen his removal proceedings in which he was ordered removed in absentia by the IJ for failure to appear for his telephonic master calendar hearing the motion would have been granted, the key issue on appeal is thus whether the petitioner’s good faith but mistaken belief as to the correct date of the master calendar hearing qualifies as an exceptional circumstance. Although this court has not yet determined what constitutes an exceptional circumstance where an alien has received proper notice of a removal hearing, other circuit courts have set a high threshold and are disinclined to view misunderstandings and communication errors as being sufficient. Notwithstanding this general trend, the United States Court of Appeals for the First Circuit found “exceptional circumstances” to exist in a situation with certain similarities to the petitioner’s. Where an alien representing herself pro se “inadvertently mistook” her May 13, 1999 hearing date for May 17, 1999, and where the petitioner promptly contacted the court on May 17 regarding her error and then filed a motion to reopen two days later, the court held that she had demonstrated the existence of an exceptional circumstance and that the IJ had committed an error of law by denying her motion to reopen, particularly in light of her effort and the severe consequences that she allegedly faced if deported.
This court finds that the scenario presented to the First Circuit is sufficiently distinguishable from the present case to call for a different outcome. To begin with, the First Circuit emphasized the need to conduct a totality-of-the-circumstances analysis, and it highlighted the petitioner’s claim under the Convention Against Torture in which she alleged that she would face rape and torture if deported to Uganda. The Petitioner in the instant case, in contrast, has not made any claim that he would be subject to persecution if removed to Ghana. Moreover, the First Circuit noted that the petitioner in that case took immediate and affirmative action following her court date by contacting the court directly and promptly filing a motion to reopen. There is no evidence that the petitioner in the instant case tried to contact the court directly regarding the status of his case at any point during the two-and-one-half years following the missed hearing. Further, the petitioner in the instant case, unlike the petitioner in the First Circuit case, had an attorney, but other than intermittently checking in with his former counsel, the petitioner was disengaged from his removal proceedings for the two-and-one half years prior to his being taken into custody. Exemplifying this disengagement is the fact that the petitioner never even requested a copy of the motion that his former counsel supposedly filed with the immigration court shortly after the missed hearing. At some point during this long period of time, this court finds that the petitioner’s blind reliance upon his former counsel’s representations became unreasonable.
In addition, the weight of authority generally, as noted above, holds that a mistaken belief as to the correct hearing date does not rise to the level of being an exceptional circumstance. The petitioner has not shown that his mistake as to the correct date for the hearing was in any way beyond his control or of an extraordinary nature comparable to the exceptional circumstances specified by statute. This point is further supported by the Supreme Court’s recognition that there is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The petitioner’s mistake as to the correct date of his hearing had severe consequences, but it was a less compelling circumstance than that required for relief under 8 U.S.C. § 1229a(e)(1). Because the petitioner cannot make this requisite showing, this court need not address the petitioner’s arguments regarding his former counsel’s alleged ineffective assistance of counsel that occurred after the fact, nor do this court has to consider whether the filing period for the motions to reopen should have been equitably tolled. The IJ, in other words, would not have abused his discretion in denying a motion to reopen even if the petitioner’s former counsel had promptly filed such a motion several days after July 5, 2005. This court therefore denies the petition for review.
Failure to appear at a removal proceeding carries the severe consequence of deportation. An order of removal due to an alien’s failure to appear may be rescinded, however, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances. Such exceptional circumstances include battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances, and they must be beyond the control of the alien. An IJ considers the totality of the circumstances when making a determination that exceptional circumstances exist.
The petitioner’s argument that that his two motions to reopen which were both filed well outside the 180-day time limit should nonetheless be equitably tolled because of former counsel’s ineffective assistance is without merit. This court has indeed applied the doctrine of equitable tolling to motions to reopen removal proceedings. However, even if the petitioner’s motions were found to be timely, he would still not be entitled to relief because he has not shown that he missed his hearing due to exceptional circumstances, the motions must be denied.
Where the petitioner asserts that had his former counsel timely filed the motion to reopen his removal proceedings in which he was ordered removed in absentia by the IJ for failure to appear for his telephonic master calendar hearing the motion would have been granted, the key issue on appeal is thus whether the petitioner’s good faith but mistaken belief as to the correct date of the master calendar hearing qualifies as an exceptional circumstance. Although this court has not yet determined what constitutes an exceptional circumstance where an alien has received proper notice of a removal hearing, other circuit courts have set a high threshold and are disinclined to view misunderstandings and communication errors as being sufficient. Notwithstanding this general trend, the United States Court of Appeals for the First Circuit found “exceptional circumstances” to exist in a situation with certain similarities to the petitioner’s. Where an alien representing herself pro se “inadvertently mistook” her May 13, 1999 hearing date for May 17, 1999, and where the petitioner promptly contacted the court on May 17 regarding her error and then filed a motion to reopen two days later, the court held that she had demonstrated the existence of an exceptional circumstance and that the IJ had committed an error of law by denying her motion to reopen, particularly in light of her effort and the severe consequences that she allegedly faced if deported.
This court finds that the scenario presented to the First Circuit is sufficiently distinguishable from the present case to call for a different outcome. To begin with, the First Circuit emphasized the need to conduct a totality-of-the-circumstances analysis, and it highlighted the petitioner’s claim under the Convention Against Torture in which she alleged that she would face rape and torture if deported to Uganda. The Petitioner in the instant case, in contrast, has not made any claim that he would be subject to persecution if removed to Ghana. Moreover, the First Circuit noted that the petitioner in that case took immediate and affirmative action following her court date by contacting the court directly and promptly filing a motion to reopen. There is no evidence that the petitioner in the instant case tried to contact the court directly regarding the status of his case at any point during the two-and-one-half years following the missed hearing. Further, the petitioner in the instant case, unlike the petitioner in the First Circuit case, had an attorney, but other than intermittently checking in with his former counsel, the petitioner was disengaged from his removal proceedings for the two-and-one half years prior to his being taken into custody. Exemplifying this disengagement is the fact that the petitioner never even requested a copy of the motion that his former counsel supposedly filed with the immigration court shortly after the missed hearing. At some point during this long period of time, this court finds that the petitioner’s blind reliance upon his former counsel’s representations became unreasonable.
In addition, the weight of authority generally, as noted above, holds that a mistaken belief as to the correct hearing date does not rise to the level of being an exceptional circumstance. The petitioner has not shown that his mistake as to the correct date for the hearing was in any way beyond his control or of an extraordinary nature comparable to the exceptional circumstances specified by statute. This point is further supported by the Supreme Court’s recognition that there is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases. The petitioner’s mistake as to the correct date of his hearing had severe consequences, but it was a less compelling circumstance than that required for relief under 8 U.S.C. § 1229a(e)(1). Because the petitioner cannot make this requisite showing, this court need not address the petitioner’s arguments regarding his former counsel’s alleged ineffective assistance of counsel that occurred after the fact, nor do this court has to consider whether the filing period for the motions to reopen should have been equitably tolled. The IJ, in other words, would not have abused his discretion in denying a motion to reopen even if the petitioner’s former counsel had promptly filed such a motion several days after July 5, 2005. This court therefore denies the petition for review.
Pelayo-Garcia v. Holden, No. 05-70929 (9th Cir. Dec. 14, 2009).
This court analyzes the issue of whether the offense of “unlawful sexual intercourse with a minor” under Section 261.5(d) of the California Penal Code meets the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(A), which includes “sexual abuse of a minor” using the categorical and modified categorical approach set forth in Taylor v. United States, 495 U.S. 575, (1990) and Shepard v. United States, 544 U.S. 13 (2005).
Under the categorical approach, this court compares the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.
This court must first identify the elements of the generic federal crime of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). This court has set out two different generic federal definitions of “sexual abuse of a minor.” For purposes of 8 U.S.C. § 1101(a)(43)(A), Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C.§ 2243. Section 2243 states, in pertinent part: Whoever . . . knowingly engages in a sexual act with another person who—(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. The mens rea of “knowingly” in § 2243(a) is limited by 18 U.S.C. § 2243(d), which states: “In a prosecution under § 2243(a), the Government need not prove that the defendant knew—(1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging.” Because the mens rea requirement of “knowingly” does not apply to knowledge of the victim’s age, or the age difference between the defendant and the victim, it can apply only to the defendant’s act of engaging in a sexual act. Although § 2243(a) does not spell out the situations in which a person might fail to meet this mens rea requirement, presumably a jury could find that a defendant who was extremely intoxicated or otherwise incapacitated did not knowingly engage in a sexual act. Accordingly, a statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of “knowingly” (as to engaging in the act); (2) a sexual act (3) with a minor who is at least 12 but not yet 16 years of age; and (4) an age difference of at least four years between the defendant and the minor.
It was previously held in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), which distinguished Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), that § 2243 of Title 18 encompassed statutory rape crimes only, and therefore was not the only federal generic definition of “sexual abuse of a minor. Statutory rape crimes are sexual offenses involving older as well as younger adolescents, not crimes prohibiting conduct harmful to younger children specifically. This category of sexual offenses does not include “physical or psychological harm” to a child.
Under United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), a crime may also qualify as the federal generic offense of “sexual abuse of a minor” if it meets the definition set forth in United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) and other cases. Specifically, a crime that is not a statutory rape crime may qualify as the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive.
After determining the elements of the generic federal crime of sexual abuse of a minor, the next step in the categorical approach is to identify the elements of the specific crime of conviction, which in the instant case is Section 261.5(d) of the California Penal Code. This section provides: “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. The statute defines the term “unlawful sexual intercourse” as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.
On its face, Section 261.5(d) of the California Penal Code contains the following elements: (1) sexual intercourse with another person; (2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person was under the age of 16 years at the time of intercourse. It does not include a scienter requirement. Where the Section 261.5(d) of the California Penal Code does not expressly include a scienter requirement, this court concludes that it is a strict liability crime.
This court next considers whether Section 261.5(d) of the California Penal Code criminalizes the same conduct as the federal generic crime. Comparing the elements of 261.5(d) of the California Penal Code with the elements of 18 U.S.C. § 2243, this court concludes that Section 261.5(d) criminalizes a broader range of conduct than § 2243 because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant “knowingly” engaged in a sexual act. If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Accordingly, this court concludes that Section 261.5(d) of the California Penal Code is not categorically an aggravated felony.
This court disagrees with the government’s contention that Section 261.5(d) of the California Penal Code contains a scienter element that is equivalent to the scienter element in 18 U.S.C. § 2243. Even though this court has previously noted that a defendant may raise a limited mistake-of-age defense to a conviction under Section 261.5(d), the availability of a mistake-of-age defense is not equivalent to the requirement that the government proves that the defendant had the requisite state of mind. Therefore, the existence of this defense does not add a scienter element to Section 261.5(d). But even if it did so, the scienter required for a mistake-of-age defense is not the same as the scienter element in 8 U.S.C. § 2243. The government might rebut a mistake-of-age defense by proving that the defendant knew or should have known the age of the minor involved in the offense; this is not the same as proving (under § 2243) that the defendant knowingly engaged in the act of sexual intercourse. Therefore, Section 261.5(d) of the California Penal Code does not require proof of the scienter element in 8 U.S.C. § 2243.
This court next compares the elements of Section 261.5(d) of the California Penal Code with the elements of the federal generic crime of “sexual abuse of a minor” as defined in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009). Section 261.5(d) contains two of the three elements of the federal generic crime of “sexual abuse of a minor” identified in Medina-Villa, in that it (1) prohibits sexual intercourse with (2) a minor. But Section 261.5(d) criminalizes a broader range of conduct than the crime delineated in Medina-Villa because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant’s conduct constituted “abuse.” A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive. Section 261.5(d) does not expressly include physical or psychological abuse of a minor as an element of the crime. Nor can this court hold that Section 261.5(d) criminalizes only conduct that is per se abusive, because it is not limited to conduct targeting younger children. Accordingly, this court concludes that section 261.5(d) is not categorically “sexual abuse of a minor” as defined in Medina-Villa.
The government’s argument that Section 261.5(d) of the California Penal Code does meet the definition of sexual abuse of a minor in Medina-Villa because it applies to minors under the age of 16 is a misreading of the Medina-Villa statement that there is “a significant difference” between a victim “under 16” and a victim “between the ages of 16 and 18.” The court in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc) acknowledged that there is a significant difference between sexual relations with someone under 16 and sexual relations with someone between the ages of 16 and 18, to support its determination that sexual conduct with older minors is not necessarily abusive. The court in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) then used the same statement to support the complementary insight that sexual relations with younger children are significantly different than sexual relations with teenagers. But neither Medina-Villa nor Estrada-Espinoza enunciated a rule that sexual conduct with a minor a day shy of 16 is per se abusive, and indeed such a holding would be contrary to the conclusion in Medina-Villa that the conduct criminalized by § 2243 includes non-abusive conduct. Because Section 261.5(d) of the California Penal Code does not include the relevant scienter requirement of 18 U.S.C. § 2243, and criminalizes sexual conduct that is not necessarily abusive, this court concludes that Section 261.5(d) does not qualify as the generic federal crime of “sexual abuse of a minor,” and therefore is not categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
If the specific crime of conviction does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis. Under the modified categorical approach, this court examines specified judicial records to determine whether a defendant was necessarily convicted of the elements of the federal generic crime.
Where the government has not asked this court to undertake a modified categorical analysis, and where the government could not have done so as the record contains only two documents of conviction (a felony complaint and the clerk’s order of probation) neither of which indicates the age of the victim or establishes that the petitioner was convicted of a crime involving sexual conduct with a younger child, a modified categorical analysis cannot be conducted by this court.
Because the petitioner’s conviction for unlawful sexual intercourse in violation of Section 261.5(d) of the California Penal Code does not qualify as the federal generic crime of “sexual abuse of a minor,” it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Therefore, the IJ and BIA erred in concluding that the petitioner was deportable due to his prior conviction. The petition for review is therefore granted.
Under the categorical approach, this court compares the elements of the statute of conviction with a federal definition of the crime to determine whether conduct proscribed by the statute is broader than the generic federal definition.
This court must first identify the elements of the generic federal crime of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A). This court has set out two different generic federal definitions of “sexual abuse of a minor.” For purposes of 8 U.S.C. § 1101(a)(43)(A), Congress has enumerated the elements of the offense of ‘sexual abuse of a minor’ at 18 U.S.C.§ 2243. Section 2243 states, in pertinent part: Whoever . . . knowingly engages in a sexual act with another person who—(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. The mens rea of “knowingly” in § 2243(a) is limited by 18 U.S.C. § 2243(d), which states: “In a prosecution under § 2243(a), the Government need not prove that the defendant knew—(1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging.” Because the mens rea requirement of “knowingly” does not apply to knowledge of the victim’s age, or the age difference between the defendant and the victim, it can apply only to the defendant’s act of engaging in a sexual act. Although § 2243(a) does not spell out the situations in which a person might fail to meet this mens rea requirement, presumably a jury could find that a defendant who was extremely intoxicated or otherwise incapacitated did not knowingly engage in a sexual act. Accordingly, a statute of conviction qualifies as the generic offense of “sexual abuse of a minor” if it includes the following elements: (1) a mens rea of “knowingly” (as to engaging in the act); (2) a sexual act (3) with a minor who is at least 12 but not yet 16 years of age; and (4) an age difference of at least four years between the defendant and the minor.
It was previously held in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), which distinguished Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), that § 2243 of Title 18 encompassed statutory rape crimes only, and therefore was not the only federal generic definition of “sexual abuse of a minor. Statutory rape crimes are sexual offenses involving older as well as younger adolescents, not crimes prohibiting conduct harmful to younger children specifically. This category of sexual offenses does not include “physical or psychological harm” to a child.
Under United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009), a crime may also qualify as the federal generic offense of “sexual abuse of a minor” if it meets the definition set forth in United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999) and other cases. Specifically, a crime that is not a statutory rape crime may qualify as the federal generic offense of “sexual abuse of a minor” if: (1) the conduct prohibited by the criminal statute is sexual, (2) the statute protects a minor, and (3) the statute requires abuse. A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive.
After determining the elements of the generic federal crime of sexual abuse of a minor, the next step in the categorical approach is to identify the elements of the specific crime of conviction, which in the instant case is Section 261.5(d) of the California Penal Code. This section provides: “Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years. The statute defines the term “unlawful sexual intercourse” as an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor.
On its face, Section 261.5(d) of the California Penal Code contains the following elements: (1) sexual intercourse with another person; (2) the defendant was at least 21 years of age at the time of intercourse; and (3) the other person was under the age of 16 years at the time of intercourse. It does not include a scienter requirement. Where the Section 261.5(d) of the California Penal Code does not expressly include a scienter requirement, this court concludes that it is a strict liability crime.
This court next considers whether Section 261.5(d) of the California Penal Code criminalizes the same conduct as the federal generic crime. Comparing the elements of 261.5(d) of the California Penal Code with the elements of 18 U.S.C. § 2243, this court concludes that Section 261.5(d) criminalizes a broader range of conduct than § 2243 because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant “knowingly” engaged in a sexual act. If the statute of conviction criminalizes conduct that would not satisfy the federal definition of the crime at issue, then the conviction does not qualify as a predicate offense under the categorical approach. Accordingly, this court concludes that Section 261.5(d) of the California Penal Code is not categorically an aggravated felony.
This court disagrees with the government’s contention that Section 261.5(d) of the California Penal Code contains a scienter element that is equivalent to the scienter element in 18 U.S.C. § 2243. Even though this court has previously noted that a defendant may raise a limited mistake-of-age defense to a conviction under Section 261.5(d), the availability of a mistake-of-age defense is not equivalent to the requirement that the government proves that the defendant had the requisite state of mind. Therefore, the existence of this defense does not add a scienter element to Section 261.5(d). But even if it did so, the scienter required for a mistake-of-age defense is not the same as the scienter element in 8 U.S.C. § 2243. The government might rebut a mistake-of-age defense by proving that the defendant knew or should have known the age of the minor involved in the offense; this is not the same as proving (under § 2243) that the defendant knowingly engaged in the act of sexual intercourse. Therefore, Section 261.5(d) of the California Penal Code does not require proof of the scienter element in 8 U.S.C. § 2243.
This court next compares the elements of Section 261.5(d) of the California Penal Code with the elements of the federal generic crime of “sexual abuse of a minor” as defined in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009). Section 261.5(d) contains two of the three elements of the federal generic crime of “sexual abuse of a minor” identified in Medina-Villa, in that it (1) prohibits sexual intercourse with (2) a minor. But Section 261.5(d) criminalizes a broader range of conduct than the crime delineated in Medina-Villa because a defendant could be convicted under Section 261.5(d) even if the government failed to prove beyond a reasonable doubt that the defendant’s conduct constituted “abuse.” A criminal statute includes the element of “abuse” if it expressly prohibits conduct that causes physical or psychological harm in light of the age of the victim in question. Sexual conduct involving younger children is per se abusive. Section 261.5(d) does not expressly include physical or psychological abuse of a minor as an element of the crime. Nor can this court hold that Section 261.5(d) criminalizes only conduct that is per se abusive, because it is not limited to conduct targeting younger children. Accordingly, this court concludes that section 261.5(d) is not categorically “sexual abuse of a minor” as defined in Medina-Villa.
The government’s argument that Section 261.5(d) of the California Penal Code does meet the definition of sexual abuse of a minor in Medina-Villa because it applies to minors under the age of 16 is a misreading of the Medina-Villa statement that there is “a significant difference” between a victim “under 16” and a victim “between the ages of 16 and 18.” The court in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc) acknowledged that there is a significant difference between sexual relations with someone under 16 and sexual relations with someone between the ages of 16 and 18, to support its determination that sexual conduct with older minors is not necessarily abusive. The court in United States v. Medina-Villa, 567 F.3d 507 (9th Cir. 2009) then used the same statement to support the complementary insight that sexual relations with younger children are significantly different than sexual relations with teenagers. But neither Medina-Villa nor Estrada-Espinoza enunciated a rule that sexual conduct with a minor a day shy of 16 is per se abusive, and indeed such a holding would be contrary to the conclusion in Medina-Villa that the conduct criminalized by § 2243 includes non-abusive conduct. Because Section 261.5(d) of the California Penal Code does not include the relevant scienter requirement of 18 U.S.C. § 2243, and criminalizes sexual conduct that is not necessarily abusive, this court concludes that Section 261.5(d) does not qualify as the generic federal crime of “sexual abuse of a minor,” and therefore is not categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(A).
If the specific crime of conviction does not categorically qualify as a predicate offense under a federal statute, it still may qualify under a modified categorical analysis. Under the modified categorical approach, this court examines specified judicial records to determine whether a defendant was necessarily convicted of the elements of the federal generic crime.
Where the government has not asked this court to undertake a modified categorical analysis, and where the government could not have done so as the record contains only two documents of conviction (a felony complaint and the clerk’s order of probation) neither of which indicates the age of the victim or establishes that the petitioner was convicted of a crime involving sexual conduct with a younger child, a modified categorical analysis cannot be conducted by this court.
Because the petitioner’s conviction for unlawful sexual intercourse in violation of Section 261.5(d) of the California Penal Code does not qualify as the federal generic crime of “sexual abuse of a minor,” it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Therefore, the IJ and BIA erred in concluding that the petitioner was deportable due to his prior conviction. The petition for review is therefore granted.
Friday, December 18, 2009
Aden v. Holder, No. 08-71168 (9th Cir. Dec. 18, 2009).
Because the BIA wrote its own decision and did not adopt the IJ’s decision, this court reviews the BIA decision only, not the IJ’s decision.
This court has a line of circuit authority for the proposition that corroboration cannot be required from an applicant who testifies credibly. In Ladha v. INS, this court reaffirmed that an alien’s testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration. Kataria v. INS relied on Ladha in stating that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application. Kataria stated that this court must accept an applicant’s testimony as true in the absence of an explicit adverse credibility finding. However, Congress abrogated these holdings in the REAL ID Act of 2005. The statute says that the applicant’s credible testimony “may” be sufficient without corroboration, but the trier of fact may require corroboration (unless not reasonably obtainable) even for otherwise credible testimony.
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231 (2005), codified at 8 U.S.C. § 1158(b)(1)(B)(ii), states that the testimony of an applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
The statutory phrase “may be sufficient to sustain the applicant’s burden without corroboration” implies that the testimony also may not be sufficient. The phrase “but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” means that there are three prerequisites before uncorroborated testimony may be considered sufficient: (1) the applicant’s testimony is credible; (2) the applicant’s testimony is persuasive; and (3) the applicant’s testimony refers to facts sufficient to demonstrate refugee status. Credible testimony is not by itself enough. Otherwise the other two requirements would be mere surplusage.
The statute additionally restricts the effect of apparently credible testimony by specifying that the IJ need not accept such testimony as true. The statute provides that the IJ may, in determining whether it satisfies the applicant’s burden of proof, weigh the credible testimony along with other evidence of record.
The last sentence of the provision deals with inherent difficulty in providing corroborating evidence from a foreign country, especially if, as is often the case, the country is in turmoil and the applicant is from a disfavored group or the corroboration would have to be from his persecutors. Corroborating evidence “must” be provided where the trier of fact determines that it should be, unless the applicant does not have the evidence and cannot reasonably obtain the evidence. This means that an applicant cannot be turned down solely because he fails to provide evidence corroborating his testimony, where he does not have and cannot reasonably obtain the corroboration. But it also means that he can be turned down for failing to provide corroboration where he does have it or could reasonably obtain it.
Congress has thus swept away our doctrine that when an alien credibly testifies to certain facts, those facts are deemed true. Apparently honest people may not always be telling the truth, apparently dishonest people may be telling the absolute truth, and truthful people may be honestly mistaken or relying on unreliable evidence or inference themselves.
Congress has installed a bias toward corroboration in the statute to provide greater reliability. This is not very different from other litigation.
The petitioner’s argument that the BIA merely assumes that there may be scholarly sources that mention the Wardey clan and the Bilisyar subclan if they exist is correct, but a little slippery. If there were such scholarly materials, then they would corroborate the petitioner, but if there are not, then it would be impossible to prove that the clan and subclan exist. The BIA’s statement invites the objection that the half day hearings by impecunious petitioners typical of asylum cases should not be burdened with expensive expert witnesses testifying about their searches of the academic literature and their opinions about it. Fortunately the BIA did not require such academic or expert testimony or documentation. It merely suggested it as a possibility, along with “witnesses.”
The three unsworn letters were given “little weight” by the BIA because the letters were “inconsistent” and the writers did not know the petitioner. The BIA’s explanation is vulnerable to criticism. After all, someone from the Lower Juba region may know very well that the clan and subclan exist, which was the point, without having any acquaintance with the petitioner or his family. But one of the letters does indeed say that the petitioner is a member of the “Wardaa” clan, something the writer could not know without some foundation in knowledge of petitioner, a knowledge neither claimed nor consistent with misspelling two of petitioner’s three names.
Considering that the country report, and not only petitioner’s testimony, establishes that Somalia is a violently disorderly place with no established state, inability to obtain documentation from Somalia might be quite credible, had the petitioner testified (he did not) that he wrote or emailed his family but the system of communication did not work and he had no idea whether his communications or theirs got through. A reasonable finder of fact might deem sufficient for corroboration the two identical letters saying that the writers had resided in the Lower Juba region, and the Wardey-Ali clan and Bilisyar subclan were minorities who lived there. Our standard of review, though, does not enable us to substitute our judgment about the persuasiveness of this corroboration for the BIA’s. This court is required to accept administrative findings of fact unless any reasonable administrator would be compelled to conclude to the contrary. This standard also applies to the IJ’s determinations with respect to the availability of corroborating evidence. Even if this court might conclude to the contrary regarding sufficiency of corroboration, this court cannot say that any reasonable adjudicator would be compelled to conclude to the contrary. The highly deferential standard of review compels this court to let stand the BIA’s determination that the petitioner’s corroboration was insufficient. Though the three letters support the conclusion that the petitioner’s claimed clan and subclan exist, the law is that to reverse the BIA finding this court must find that the evidence not only supports that conclusion, but compels it. The question is close, but in light of the other evidence in the record casting doubt on the petitioner’s story, this court cannot say that the letters “compel” that conclusion.
The petitioner’s contention that that he was denied due process of law because his credibility was thrown into doubt by erroneous translation is without merits. To establish a due process violation, a petitioner must show that defects in translation prejudiced the outcome of the hearing. Even if the translator said “jungle” but the petitioner did not describe his area as “jungle,” there was no prejudice if it was irrelevant. Where the petitioner said he had never attended school but the translator presented it as though he had said he had no education, and where the discrepancy was cleared up by further questioning, the petitioner has not demonstrated any prejudice from the claimed translation errors. Difficulties arise in communication between people who do not speak each others’ languages, but where the IJ noted that the petitioner responded to several questions before they were translated indicating that he was not entirely reliant on the translator, the petitioner has not demonstrated any prejudice from the claimed translation errors.
Where a petitioner merely mentioned in his brief to the BIA that he was requesting reversal of the IJ’s denial of relief under the Convention Against Torture (CAT), but failed to brief that topic at any length, this court held that this mention in the brief was sufficient to put the BIA on notice that the petitioner was challenging the IJ’s CAT determination, and gave the agency an opportunity to pass on this issue. Accordingly, the petitioner adequately exhausted his claim before the BIA, and this court has jurisdiction to address that claim on appeal.
To be eligible for withholding of removal based on the Convention Against Torture, the petitioner must prove that he is more likely than not going to be tortured if sent back to Somalia. Torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. This court cannot say on the record before us that a reasonable adjudicator would be compelled to find, contrary to that of the IJ below, that the petitioner established these facts. This court thus affirms the denial of relief under the Convention Against Torture. The petition for review is therefore denied.
This court has a line of circuit authority for the proposition that corroboration cannot be required from an applicant who testifies credibly. In Ladha v. INS, this court reaffirmed that an alien’s testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration. Kataria v. INS relied on Ladha in stating that the BIA may not require independent corroborative evidence from an asylum applicant who testifies credibly in support of his application. Kataria stated that this court must accept an applicant’s testimony as true in the absence of an explicit adverse credibility finding. However, Congress abrogated these holdings in the REAL ID Act of 2005. The statute says that the applicant’s credible testimony “may” be sufficient without corroboration, but the trier of fact may require corroboration (unless not reasonably obtainable) even for otherwise credible testimony.
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231 (2005), codified at 8 U.S.C. § 1158(b)(1)(B)(ii), states that the testimony of an applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
The statutory phrase “may be sufficient to sustain the applicant’s burden without corroboration” implies that the testimony also may not be sufficient. The phrase “but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee” means that there are three prerequisites before uncorroborated testimony may be considered sufficient: (1) the applicant’s testimony is credible; (2) the applicant’s testimony is persuasive; and (3) the applicant’s testimony refers to facts sufficient to demonstrate refugee status. Credible testimony is not by itself enough. Otherwise the other two requirements would be mere surplusage.
The statute additionally restricts the effect of apparently credible testimony by specifying that the IJ need not accept such testimony as true. The statute provides that the IJ may, in determining whether it satisfies the applicant’s burden of proof, weigh the credible testimony along with other evidence of record.
The last sentence of the provision deals with inherent difficulty in providing corroborating evidence from a foreign country, especially if, as is often the case, the country is in turmoil and the applicant is from a disfavored group or the corroboration would have to be from his persecutors. Corroborating evidence “must” be provided where the trier of fact determines that it should be, unless the applicant does not have the evidence and cannot reasonably obtain the evidence. This means that an applicant cannot be turned down solely because he fails to provide evidence corroborating his testimony, where he does not have and cannot reasonably obtain the corroboration. But it also means that he can be turned down for failing to provide corroboration where he does have it or could reasonably obtain it.
Congress has thus swept away our doctrine that when an alien credibly testifies to certain facts, those facts are deemed true. Apparently honest people may not always be telling the truth, apparently dishonest people may be telling the absolute truth, and truthful people may be honestly mistaken or relying on unreliable evidence or inference themselves.
Congress has installed a bias toward corroboration in the statute to provide greater reliability. This is not very different from other litigation.
The petitioner’s argument that the BIA merely assumes that there may be scholarly sources that mention the Wardey clan and the Bilisyar subclan if they exist is correct, but a little slippery. If there were such scholarly materials, then they would corroborate the petitioner, but if there are not, then it would be impossible to prove that the clan and subclan exist. The BIA’s statement invites the objection that the half day hearings by impecunious petitioners typical of asylum cases should not be burdened with expensive expert witnesses testifying about their searches of the academic literature and their opinions about it. Fortunately the BIA did not require such academic or expert testimony or documentation. It merely suggested it as a possibility, along with “witnesses.”
The three unsworn letters were given “little weight” by the BIA because the letters were “inconsistent” and the writers did not know the petitioner. The BIA’s explanation is vulnerable to criticism. After all, someone from the Lower Juba region may know very well that the clan and subclan exist, which was the point, without having any acquaintance with the petitioner or his family. But one of the letters does indeed say that the petitioner is a member of the “Wardaa” clan, something the writer could not know without some foundation in knowledge of petitioner, a knowledge neither claimed nor consistent with misspelling two of petitioner’s three names.
Considering that the country report, and not only petitioner’s testimony, establishes that Somalia is a violently disorderly place with no established state, inability to obtain documentation from Somalia might be quite credible, had the petitioner testified (he did not) that he wrote or emailed his family but the system of communication did not work and he had no idea whether his communications or theirs got through. A reasonable finder of fact might deem sufficient for corroboration the two identical letters saying that the writers had resided in the Lower Juba region, and the Wardey-Ali clan and Bilisyar subclan were minorities who lived there. Our standard of review, though, does not enable us to substitute our judgment about the persuasiveness of this corroboration for the BIA’s. This court is required to accept administrative findings of fact unless any reasonable administrator would be compelled to conclude to the contrary. This standard also applies to the IJ’s determinations with respect to the availability of corroborating evidence. Even if this court might conclude to the contrary regarding sufficiency of corroboration, this court cannot say that any reasonable adjudicator would be compelled to conclude to the contrary. The highly deferential standard of review compels this court to let stand the BIA’s determination that the petitioner’s corroboration was insufficient. Though the three letters support the conclusion that the petitioner’s claimed clan and subclan exist, the law is that to reverse the BIA finding this court must find that the evidence not only supports that conclusion, but compels it. The question is close, but in light of the other evidence in the record casting doubt on the petitioner’s story, this court cannot say that the letters “compel” that conclusion.
The petitioner’s contention that that he was denied due process of law because his credibility was thrown into doubt by erroneous translation is without merits. To establish a due process violation, a petitioner must show that defects in translation prejudiced the outcome of the hearing. Even if the translator said “jungle” but the petitioner did not describe his area as “jungle,” there was no prejudice if it was irrelevant. Where the petitioner said he had never attended school but the translator presented it as though he had said he had no education, and where the discrepancy was cleared up by further questioning, the petitioner has not demonstrated any prejudice from the claimed translation errors. Difficulties arise in communication between people who do not speak each others’ languages, but where the IJ noted that the petitioner responded to several questions before they were translated indicating that he was not entirely reliant on the translator, the petitioner has not demonstrated any prejudice from the claimed translation errors.
Where a petitioner merely mentioned in his brief to the BIA that he was requesting reversal of the IJ’s denial of relief under the Convention Against Torture (CAT), but failed to brief that topic at any length, this court held that this mention in the brief was sufficient to put the BIA on notice that the petitioner was challenging the IJ’s CAT determination, and gave the agency an opportunity to pass on this issue. Accordingly, the petitioner adequately exhausted his claim before the BIA, and this court has jurisdiction to address that claim on appeal.
To be eligible for withholding of removal based on the Convention Against Torture, the petitioner must prove that he is more likely than not going to be tortured if sent back to Somalia. Torture must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. This court cannot say on the record before us that a reasonable adjudicator would be compelled to find, contrary to that of the IJ below, that the petitioner established these facts. This court thus affirms the denial of relief under the Convention Against Torture. The petition for review is therefore denied.
Wednesday, December 16, 2009
Ramos v. Holder, No. 09-1932 (7th Cir. Dec. 15, 2009).
Persecution on the basis of membership in a particular group is, along with persecution on the basis of race, religion, nationality, or political opinion, a ground for granting asylum or withholding of removal. There is no statutory definition of “particular social group,” but the BIA has sensibly defined it as a group whose members share common characteristics that members of the group either cannot change, or should not be required to change because such characteristics are fundamental to their individual identities.
If the ‘members’ of an alleged particular social group have no common characteristics they can’t constitute a group, and if they can change those characteristics—that is, cease to belong to the group—without significant hardship, they should be required to do so rather than be allowed to resettle in America if they do not meet the ordinary criteria for immigration to this country.
In general, membership in a criminal gang cannot constitute membership in a particular social group. This court stated in Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992),that whatever its precise scope, the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other. Being a member of a gang is not a characteristic that a person cannot change, or should not be required to change, provided that he can resign without facing persecution for doing so. But if he can’t resign, his situation is the same as that of a former gang member who faces persecution for having quit. A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group. On this ground this court previously held that a former member of a violent criminal Kenyan faction called the Mungiki was a member of a “particular social group,” namely former members of Mungiki. This court relied on Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), which holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation constituted a particular social group. One could resign from the attorney general’s office but not from a group defined as former employees of the office.
Arteaga v. Mukasey, 511 F.3d 940, (9th Cir. 2007) states that participation in gang activity is not fundamental to gang members’ individual identities or consciences, and they are therefore ineligible for protection as members of a social group. But this was said in reference not to Arteaga’s status as a former gang member but to his possible status as a current member, for he had testified that he was still a member of the gang, though an inactive one. There are hints in the Arteaga opinion that being persecuted for being a former member of a gang should not be a basis for asylum or withholding of removal either. However, that is not Congress’s view. It has barred from seeking asylum or withholding of removal any person who faces persecution for having himself been a persecutor (a Nazi war criminal, for example) or who has committed a “serious nonpolitical crime. But it has said nothing about barring former gang members, perhaps because of ambiguity about what constitutes a “gang”; or because of the variety of activities, not all criminal, that some “gangs” engage in; or because of the different levels of participation, some innocuous, of members of some gangs.
Furthermore, the government’s contention, which violates the Chenery doctrine for arguing that the BIA’s decision should be affirmed on a ground not mentioned by the BIA, that a person can be a member of a particular social group only if a complete stranger could identify him or her as a member if the stranger encountered him or her in the street, because of his or her appearance, gait, speech pattern, behavior or other discernible characteristic is without merit. Even though this “social visibility” position has some judicial support, this court has rejected it as a misunderstanding of the use of “external” criteria to identify a social group. If society recognizes a set of people having certain common characteristics as a group, this is an indication that being in the set might expose one to special treatment, whether friendly or unfriendly. In our society, for example, redheads are not a group, but veterans are, even though a redhead can be spotted at a glance and a veteran can’t be. “Visibility” in the literal sense in which the BIA has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the BIA is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.
The alternative argument that the category of nonassociated or disaffiliated persons in this context is far too unspecific and amorphous to be called a social group in support of why former gang members should not be considered members of a particular social group is without merit. There may be categories so ill-defined that they cannot be regarded as groups—the “middle class,” for example. But this problem is taken care of by the external criterion—if a Stalin or a Pol Pot decides to exterminate the bourgeoisie of their country, this makes the bourgeoisie “a particular social group,” which it would not be in a society that didn’t think of middleclass people as having distinctive characteristics; it would be odd to describe the American middle class as “a particular social group.” However, the petitioner in the instant case was a member of a specific, well-recognized, indeed notorious gang, the former members of which do not constitute a category far too unspecific and amorphous to be called a social group. It is neither unspecific nor amorphous. On the other hand, an “inactive” member of a gang is a status that could be thought to lend it a certain amorphousness.
The BIA has never given a reasoned explanation for why the statutory bars should be extended by administrative interpretation to former members of gangs. This court can imagine the BIA’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum. The BIA has discretion to deny asylum to eligible persons subject to judicial review for abuse of discretion. But that was not the BIA’s ground in the instant case, and it could not have been. The petitioner is seeking not asylum but withholding of removal, and withholding of removal is mandatory if the applicant (unless he falls within the statutory exceptions establishes that if expelled from the United States he is more likely than not to be persecuted for a reason recognized in the immigration law as a proper ground for asylum or for withholding of removal. The reason for the difference is that an asylum seeker need prove only a well-founded fear of persecution. The applicant for withholding of removal must prove that he will (more likely than not) be persecuted. His danger is greater, and the BIA may not subject him to it if he meets the other criteria for withholding of removal.
Where the petitioner was a member of a violent criminal group for nine years, and where he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime. The BIA must also determine whether the petitioner is more likely than not to be persecuted if he is returned to El Salvador. In this connection, this court notes with disapproval the immigration judge’s mention of a letter from the U.S. embassy in El Salvador stating implausibly that MS does not punish defectors whose defection was motivated by Christian beliefs. The letter had not been seen by the parties, just by the judge; and while he said that he wasn’t relying on it, this makes us wonder why he mentioned it. Should he wish to consider it on remand, he must give the petitioner an opportunity to respond to it. The petition is granted, the BIA’s decision vacated, and the case remanded.
If the ‘members’ of an alleged particular social group have no common characteristics they can’t constitute a group, and if they can change those characteristics—that is, cease to belong to the group—without significant hardship, they should be required to do so rather than be allowed to resettle in America if they do not meet the ordinary criteria for immigration to this country.
In general, membership in a criminal gang cannot constitute membership in a particular social group. This court stated in Bastanipour v. INS, 980 F.2d 1129, 1132 (7th Cir. 1992),that whatever its precise scope, the term ‘particular social groups’ surely was not intended for the protection of members of the criminal class in this country, merely upon a showing that a foreign country deals with them even more harshly than we do. A contrary conclusion would collapse the fundamental distinction between persecution on the one hand and the prosecution of nonpolitical crimes on the other. Being a member of a gang is not a characteristic that a person cannot change, or should not be required to change, provided that he can resign without facing persecution for doing so. But if he can’t resign, his situation is the same as that of a former gang member who faces persecution for having quit. A gang is a group, and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group. On this ground this court previously held that a former member of a violent criminal Kenyan faction called the Mungiki was a member of a “particular social group,” namely former members of Mungiki. This court relied on Sepulveda v. Gonzales, 464 F.3d 770, 771-72 (7th Cir. 2006), which holds that former subordinates of the attorney general of Colombia who had information about the insurgents plaguing that nation constituted a particular social group. One could resign from the attorney general’s office but not from a group defined as former employees of the office.
Arteaga v. Mukasey, 511 F.3d 940, (9th Cir. 2007) states that participation in gang activity is not fundamental to gang members’ individual identities or consciences, and they are therefore ineligible for protection as members of a social group. But this was said in reference not to Arteaga’s status as a former gang member but to his possible status as a current member, for he had testified that he was still a member of the gang, though an inactive one. There are hints in the Arteaga opinion that being persecuted for being a former member of a gang should not be a basis for asylum or withholding of removal either. However, that is not Congress’s view. It has barred from seeking asylum or withholding of removal any person who faces persecution for having himself been a persecutor (a Nazi war criminal, for example) or who has committed a “serious nonpolitical crime. But it has said nothing about barring former gang members, perhaps because of ambiguity about what constitutes a “gang”; or because of the variety of activities, not all criminal, that some “gangs” engage in; or because of the different levels of participation, some innocuous, of members of some gangs.
Furthermore, the government’s contention, which violates the Chenery doctrine for arguing that the BIA’s decision should be affirmed on a ground not mentioned by the BIA, that a person can be a member of a particular social group only if a complete stranger could identify him or her as a member if the stranger encountered him or her in the street, because of his or her appearance, gait, speech pattern, behavior or other discernible characteristic is without merit. Even though this “social visibility” position has some judicial support, this court has rejected it as a misunderstanding of the use of “external” criteria to identify a social group. If society recognizes a set of people having certain common characteristics as a group, this is an indication that being in the set might expose one to special treatment, whether friendly or unfriendly. In our society, for example, redheads are not a group, but veterans are, even though a redhead can be spotted at a glance and a veteran can’t be. “Visibility” in the literal sense in which the BIA has sometimes used the term might be relevant to the likelihood of persecution, but it is irrelevant to whether if there is persecution it will be on the ground of group membership. Often it is unclear whether the BIA is using the term “social visibility” in the literal sense or in the “external criterion” sense, or even whether it understands the difference.
The alternative argument that the category of nonassociated or disaffiliated persons in this context is far too unspecific and amorphous to be called a social group in support of why former gang members should not be considered members of a particular social group is without merit. There may be categories so ill-defined that they cannot be regarded as groups—the “middle class,” for example. But this problem is taken care of by the external criterion—if a Stalin or a Pol Pot decides to exterminate the bourgeoisie of their country, this makes the bourgeoisie “a particular social group,” which it would not be in a society that didn’t think of middleclass people as having distinctive characteristics; it would be odd to describe the American middle class as “a particular social group.” However, the petitioner in the instant case was a member of a specific, well-recognized, indeed notorious gang, the former members of which do not constitute a category far too unspecific and amorphous to be called a social group. It is neither unspecific nor amorphous. On the other hand, an “inactive” member of a gang is a status that could be thought to lend it a certain amorphousness.
The BIA has never given a reasoned explanation for why the statutory bars should be extended by administrative interpretation to former members of gangs. This court can imagine the BIA’s exercising its discretion to decide that a “refugee” (that is, a person eligible for asylum) whose claim for asylum is based on former membership in a criminal gang should not be granted asylum. The BIA has discretion to deny asylum to eligible persons subject to judicial review for abuse of discretion. But that was not the BIA’s ground in the instant case, and it could not have been. The petitioner is seeking not asylum but withholding of removal, and withholding of removal is mandatory if the applicant (unless he falls within the statutory exceptions establishes that if expelled from the United States he is more likely than not to be persecuted for a reason recognized in the immigration law as a proper ground for asylum or for withholding of removal. The reason for the difference is that an asylum seeker need prove only a well-founded fear of persecution. The applicant for withholding of removal must prove that he will (more likely than not) be persecuted. His danger is greater, and the BIA may not subject him to it if he meets the other criteria for withholding of removal.
Where the petitioner was a member of a violent criminal group for nine years, and where he is found to have committed violent acts while a member of the gang (as apparently he did, although the evidence is not entirely clear), he may be barred from the relief he seeks for reasons unrelated to whether he is a member of a “particular social group”; for remember the bar for aliens who commit a serious nonpolitical crime. The BIA must also determine whether the petitioner is more likely than not to be persecuted if he is returned to El Salvador. In this connection, this court notes with disapproval the immigration judge’s mention of a letter from the U.S. embassy in El Salvador stating implausibly that MS does not punish defectors whose defection was motivated by Christian beliefs. The letter had not been seen by the parties, just by the judge; and while he said that he wasn’t relying on it, this makes us wonder why he mentioned it. Should he wish to consider it on remand, he must give the petitioner an opportunity to respond to it. The petition is granted, the BIA’s decision vacated, and the case remanded.
Castillo v. Skwarski, No. C08-5683BHS, 2009 U.S. Dist. Lexis 11516 (W.D. WASH. Dec. 10, 2009).
If, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. Fed. R. Civ. P. 12(d). In compliance with this rule of procedure, the Court will first consider Defendants' motion to dismiss and arguments regarding Plaintiff's failure to state a claim.
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege a short and plain statement of the claim showing that the pleader is entitled to relief. This rule requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Plaintiffs must allege enough facts to state a claim to relief that is plausible on its face.
Determining whether the allegations in a complaint are "plausible" is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint should be dismissed for failing to show that the pleader is entitled to relief as required by Rule 8(a)(2).
Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) was the first Supreme Court decision authorizing plaintiffs to bring claims for money damages against individual federal officials based on constitutional violations where no federal statute authorized such a suit; courts have subsequently referred to these as "Bivens claims."
In Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court stated that because vicarious liability is inapplicable to Bivens suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. Although this holding seems to have limited the liability of supervisors, the Court disagrees with Defendants' proposition that supervisor liability has been "eliminated."
In an opinion issued post-Iqbal, the Ninth Circuit identified four general situations in which supervisory liability may be imposed: (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a reckless or callous indifference to the rights of others.
Where the plaintiff alleges only that the defendant "was responsible for training and supervision" and that he failed to provide "proper and adequate training," the pleaded facts against the defendant are no more than labels and conclusions. Based on these assertions, the Court is left to simply infer the mere possibility of culpable conduct by the defendant. Therefore, this court grants the defendants' motion on this issue and the plaintiff's claims against the defendant are dismissed without prejudice.
Where the plaintiff has alleged that (1) the defendant unlawfully approved the Form I-213 and issued an invalid Notice to Appear when he knew, or recklessly or callously disregarded evidence that the plaintiff was a United
States citizen, and (2) the defendant's failure to conduct any investigation into the I-213, despite inconsistencies, demonstrates deliberate indifference to the plaintiff's constitutional rights, this court finds that the plaintiff has pled sufficient facts to state a claim that is plausible on its face. Therefore, this court denies the defendants' motion to dismiss the plaintiff's claim against the defendant.
The seizure of an individual violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Where the complaint alleges that both the arrest warrant and the supporting documents (Form I-213 and Form I-862) plainly were replete with material omissions -- including the omission of the plaintiff’s detailed statements that he is a U.S. Citizen – and they are replete with false statements -- including inaccurate reports of the plaintiff’s immigration history rendering those documents invalid, this court agrees that the complaint contains sufficient factual allegations to create a plausible claim for a violation of an individual's Fourth Amendment rights. Therefore, the defendants' motion is denied on this issue.
With respect to the Fifth Amendment, the Ninth Circuit has recently held that, when a court is dealing with the detention of an individual who claims to be a United States citizen, if the individual's claim is true, his detention under the Immigration and Nationality Act violates the Non-Detention Act as well as the Due Process Clause of the Constitution. Where it is undisputed that the plaintiff was a United States citizen and that he was detained by ICE, this court finds that the plaintiff has alleged facts that create a plausible claim for a violation of the plaintiff's due process rights. Therefore, the defendants' motion is denied on this issue.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth.
The determination of the existence of a material fact is often a close question. This court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -- e.g., a preponderance of the evidence in most civil cases. This court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed.
Government officials enjoy qualified immunity from civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, if a constitutional violation occurred, officials are entitled to qualified immunity if they acted reasonably under the circumstances. Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably and protects all but the plainly incompetent or those who knowingly violate the law. In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to a plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established. While often beneficial to address in that order, courts have discretion to address the two-step inquiry in the order they deem most suitable under the circumstances.
The Supreme Court has recognized that limited discovery, tailored to the issue of qualified immunity, will sometimes be necessary before a district court can resolve a motion for summary judgment. This court agrees with the plaintiff to the extent that limited discovery is appropriate to develop the record as to the facts regarding qualified immunity issues. Therefore, this court will deny the defendants' motion for summary judgment without prejudice pursuant to Fed. R. Civ. P. 56 (f)(1). The parties are ordered to confer and submit (1) a proposed limited discovery schedule and (2) a deadline for either a dispositive motion re: qualified immunity or a full joint status report as previously ordered by this court.
The adequacy of pleadings is governed by Fed. R. Civ. P. 8(a)(2), which requires that a complaint allege a short and plain statement of the claim showing that the pleader is entitled to relief. This rule requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Plaintiffs must allege enough facts to state a claim to relief that is plausible on its face.
Determining whether the allegations in a complaint are "plausible" is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. If the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint should be dismissed for failing to show that the pleader is entitled to relief as required by Rule 8(a)(2).
Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) was the first Supreme Court decision authorizing plaintiffs to bring claims for money damages against individual federal officials based on constitutional violations where no federal statute authorized such a suit; courts have subsequently referred to these as "Bivens claims."
In Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court stated that because vicarious liability is inapplicable to Bivens suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution. Although this holding seems to have limited the liability of supervisors, the Court disagrees with Defendants' proposition that supervisor liability has been "eliminated."
In an opinion issued post-Iqbal, the Ninth Circuit identified four general situations in which supervisory liability may be imposed: (1) for setting in motion a series of acts by others, or knowingly refusing to terminate a series of acts by others, which they knew or reasonably should have known would cause others to inflict constitutional injury; (2) for culpable action or inaction in training, supervision, or control of subordinates; (3) for acquiescence in the constitutional deprivation by subordinates; or (4) for conduct that shows a reckless or callous indifference to the rights of others.
Where the plaintiff alleges only that the defendant "was responsible for training and supervision" and that he failed to provide "proper and adequate training," the pleaded facts against the defendant are no more than labels and conclusions. Based on these assertions, the Court is left to simply infer the mere possibility of culpable conduct by the defendant. Therefore, this court grants the defendants' motion on this issue and the plaintiff's claims against the defendant are dismissed without prejudice.
Where the plaintiff has alleged that (1) the defendant unlawfully approved the Form I-213 and issued an invalid Notice to Appear when he knew, or recklessly or callously disregarded evidence that the plaintiff was a United
States citizen, and (2) the defendant's failure to conduct any investigation into the I-213, despite inconsistencies, demonstrates deliberate indifference to the plaintiff's constitutional rights, this court finds that the plaintiff has pled sufficient facts to state a claim that is plausible on its face. Therefore, this court denies the defendants' motion to dismiss the plaintiff's claim against the defendant.
The seizure of an individual violates the Fourth Amendment if it is objectively unreasonable under the circumstances. Where the complaint alleges that both the arrest warrant and the supporting documents (Form I-213 and Form I-862) plainly were replete with material omissions -- including the omission of the plaintiff’s detailed statements that he is a U.S. Citizen – and they are replete with false statements -- including inaccurate reports of the plaintiff’s immigration history rendering those documents invalid, this court agrees that the complaint contains sufficient factual allegations to create a plausible claim for a violation of an individual's Fourth Amendment rights. Therefore, the defendants' motion is denied on this issue.
With respect to the Fifth Amendment, the Ninth Circuit has recently held that, when a court is dealing with the detention of an individual who claims to be a United States citizen, if the individual's claim is true, his detention under the Immigration and Nationality Act violates the Non-Detention Act as well as the Due Process Clause of the Constitution. Where it is undisputed that the plaintiff was a United States citizen and that he was detained by ICE, this court finds that the plaintiff has alleged facts that create a plausible claim for a violation of the plaintiff's due process rights. Therefore, the defendants' motion is denied on this issue.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth.
The determination of the existence of a material fact is often a close question. This court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -- e.g., a preponderance of the evidence in most civil cases. This court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed.
Government officials enjoy qualified immunity from civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, if a constitutional violation occurred, officials are entitled to qualified immunity if they acted reasonably under the circumstances. Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably and protects all but the plainly incompetent or those who knowingly violate the law. In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to a plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established. While often beneficial to address in that order, courts have discretion to address the two-step inquiry in the order they deem most suitable under the circumstances.
The Supreme Court has recognized that limited discovery, tailored to the issue of qualified immunity, will sometimes be necessary before a district court can resolve a motion for summary judgment. This court agrees with the plaintiff to the extent that limited discovery is appropriate to develop the record as to the facts regarding qualified immunity issues. Therefore, this court will deny the defendants' motion for summary judgment without prejudice pursuant to Fed. R. Civ. P. 56 (f)(1). The parties are ordered to confer and submit (1) a proposed limited discovery schedule and (2) a deadline for either a dispositive motion re: qualified immunity or a full joint status report as previously ordered by this court.
Tuesday, December 15, 2009
Silva-Trevino v. Waktins, No. 1:09-cv-00001 (TXSD Dec. 10, 2009).
Section 1226(c)(I) of Title 8 provides that aliens who have committed certain crimes must be detained during their removal proceedings. In Demore v. Kim, 538 U.S. 510, (2003), the Supreme Court upheld the constitutionality of mandatory detention under § 1226(c), reasoning that detention during deportation proceedings is "a constitutionally valid aspect of the deportation process" because it facilitates the effective removal of deportable aliens. A corollary of this principle is that when detention has lasted so long that its "justification - preventing flight - is weak or nonexistent where removal seems a remote possibility at best, then it can no longer bear a reasonable relation to the purpose for which the individual was committed. Thus, the Supreme Court distinguished the Demore case from that of Zadvydas because detention during removal proceedings necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. In contrast, the Court noted that the Zadvydas petitioners were aliens for whom removal was no longer practically attainable. Hence, in Zadvydas, the Supreme Court held that detention after an alien has been ordered removed cannot be indefinite and must be limited by principles of due process, even though the statute governing post-removal detention does not specify a particular time limit. Based on its reading of Congressional intent, the Supreme Court determined that detention beyond six months would be presumptively unreasonable.
The Supreme Court has also distinguished detention under § 1226(c) from the potentially "indefinite" or "potentially permanent" detention under § 1231 (a) that it found required limits in Zadvydas v. Davis. Because detention under § 1226(c) has a definite termination point, which in the majority of cases lasts for less than the 90 days the Court considered presumptively valid in Zadvydas, and only about five months in the minority of cases in which the alien chooses to appeal, the Supreme Court rejected the habeas petition challenging § 1226(c) mandatory detention. Notably, throughout the Demore opinion, the Court explicitly stated that the detention anticipated under § 1226(c) would be for a brief period of time. The concurrence and fifth vote in favor of the judgment in Demore also hinted that the Due Process Clause limits the reach of § 1226(c) detention, concluding that were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary to then inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.
Where DHS claims that the petitioner is dangerous, yet it will not deport him, one therefore concludes that either the petitioner is not dangerous or he is being held for some other reason. Either way, DHS cannot apprehend someone, imprison him, and then throwaway the key.
Where DHS, more than four years ago, took the then sixty-six-year-old petitioner who pleaded no contest to indecency with a minor under the age of 17 into custody pending the resolution of his removal case, and where the now seventy-year-old petitioner is still without an administratively final order of removal and is still in detention, this court must grant the habeas corpus petition, particularly when it has given the Government many months to rectify the situation. This court's holding is the direct result of the unconscionable action or, more accurately, the unconscionable inaction, of the Government. To take more than four years to deport an alien who voluntarily pleaded guilty to a serious offense--indecency with a minor--not only offends any notion of prompt justice, it breaches any semblance of constitutional propriety. This is especially true given that this court made it clear to the Government's counsel months ago that immediate action was imperative.
Even though the petitioner on occasion has exercised his rights which has at times delayed the final resolution of this matter, the total delay caused by the petitioner's actions, which amounts to no more than one year, is a mere fraction of the four years that he has been in custody. This means the Government has held the petitioner through delays unrelated to the exercise of his rights for at least three years without any resolution, well exceeding the finding by the Supreme Court in Demore v. Kim, 538 U.S. 510, (2003), that the average time for proceedings of this type was less than ninety (90) days or even that Court's conclusion that the proceedings take five months in the vast minority of circumstances where the alien appeals the IJ's decision. Thus, this Court is left with no other course of action, particularly when the Government ignored this court’s warnings on several occasions over a ten-month period against inaction. No one should be imprisoned for four years without a proper adjudication. The Government has failed in this instance to comply with the Constitution and in doing so may arguably be putting the public at risk. Nevertheless, this Court has been given no reason, much less a credible reason, for this delay.
While sympathetic to the rationales underlying the mandatory detention scheme of 8 U.S.C. § 1226(c), this Court finds that the petitioner's detention pending his removal proceedings has crossed the line of reasonableness and no longer relates to the goal of the statute. Given the past inaction, it is not reasonable to expect that actual removal will be accomplished; in fact, it is not reasonably foreseeable that it will even be ordered.
In the instant case, the petitioner’s detention cannot continue consistent with the rights guaranteed by the Fifth Amendment's Due Process Clause. His detention has lasted seven to eight times longer than six-month limit that the Supreme Court considered presumptively reasonable. Moreover, the likelihood of removal in the reasonably foreseeable future, based upon the record in this case, is virtually nil. The Government has had four-plus years to remove the petitioner, but has accomplished nothing. This Court gave the immigration officials more than a generous amount of time to reach a decision before it would even reconsider the petitioner's request for relief, yet the petitioner still awaits a final decision on his removal case. This court then gave the Government another sixty days-still nothing. Nor has the BIA ruled on the appeal since. The Government has offered not a shred of evidence to show that a final decision is likely to be reached soon or will ever be reached. Given that the goal of detention is to ensure removal, this Court finds that it is not reasonably related here because after four years, there is still no final order of removal. For the foregoing reasons, this Court grants the petitioner's Renewed Petition for Writ of Habeas Corpus.
The Supreme Court has also distinguished detention under § 1226(c) from the potentially "indefinite" or "potentially permanent" detention under § 1231 (a) that it found required limits in Zadvydas v. Davis. Because detention under § 1226(c) has a definite termination point, which in the majority of cases lasts for less than the 90 days the Court considered presumptively valid in Zadvydas, and only about five months in the minority of cases in which the alien chooses to appeal, the Supreme Court rejected the habeas petition challenging § 1226(c) mandatory detention. Notably, throughout the Demore opinion, the Court explicitly stated that the detention anticipated under § 1226(c) would be for a brief period of time. The concurrence and fifth vote in favor of the judgment in Demore also hinted that the Due Process Clause limits the reach of § 1226(c) detention, concluding that were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary to then inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.
Where DHS claims that the petitioner is dangerous, yet it will not deport him, one therefore concludes that either the petitioner is not dangerous or he is being held for some other reason. Either way, DHS cannot apprehend someone, imprison him, and then throwaway the key.
Where DHS, more than four years ago, took the then sixty-six-year-old petitioner who pleaded no contest to indecency with a minor under the age of 17 into custody pending the resolution of his removal case, and where the now seventy-year-old petitioner is still without an administratively final order of removal and is still in detention, this court must grant the habeas corpus petition, particularly when it has given the Government many months to rectify the situation. This court's holding is the direct result of the unconscionable action or, more accurately, the unconscionable inaction, of the Government. To take more than four years to deport an alien who voluntarily pleaded guilty to a serious offense--indecency with a minor--not only offends any notion of prompt justice, it breaches any semblance of constitutional propriety. This is especially true given that this court made it clear to the Government's counsel months ago that immediate action was imperative.
Even though the petitioner on occasion has exercised his rights which has at times delayed the final resolution of this matter, the total delay caused by the petitioner's actions, which amounts to no more than one year, is a mere fraction of the four years that he has been in custody. This means the Government has held the petitioner through delays unrelated to the exercise of his rights for at least three years without any resolution, well exceeding the finding by the Supreme Court in Demore v. Kim, 538 U.S. 510, (2003), that the average time for proceedings of this type was less than ninety (90) days or even that Court's conclusion that the proceedings take five months in the vast minority of circumstances where the alien appeals the IJ's decision. Thus, this Court is left with no other course of action, particularly when the Government ignored this court’s warnings on several occasions over a ten-month period against inaction. No one should be imprisoned for four years without a proper adjudication. The Government has failed in this instance to comply with the Constitution and in doing so may arguably be putting the public at risk. Nevertheless, this Court has been given no reason, much less a credible reason, for this delay.
While sympathetic to the rationales underlying the mandatory detention scheme of 8 U.S.C. § 1226(c), this Court finds that the petitioner's detention pending his removal proceedings has crossed the line of reasonableness and no longer relates to the goal of the statute. Given the past inaction, it is not reasonable to expect that actual removal will be accomplished; in fact, it is not reasonably foreseeable that it will even be ordered.
In the instant case, the petitioner’s detention cannot continue consistent with the rights guaranteed by the Fifth Amendment's Due Process Clause. His detention has lasted seven to eight times longer than six-month limit that the Supreme Court considered presumptively reasonable. Moreover, the likelihood of removal in the reasonably foreseeable future, based upon the record in this case, is virtually nil. The Government has had four-plus years to remove the petitioner, but has accomplished nothing. This Court gave the immigration officials more than a generous amount of time to reach a decision before it would even reconsider the petitioner's request for relief, yet the petitioner still awaits a final decision on his removal case. This court then gave the Government another sixty days-still nothing. Nor has the BIA ruled on the appeal since. The Government has offered not a shred of evidence to show that a final decision is likely to be reached soon or will ever be reached. Given that the goal of detention is to ensure removal, this Court finds that it is not reasonably related here because after four years, there is still no final order of removal. For the foregoing reasons, this Court grants the petitioner's Renewed Petition for Writ of Habeas Corpus.
Matter of Martinez-Serrano, 25 I&N Dec. 151 (BIA 2009).
An alien’s conviction for aiding and abetting other aliens to evade and elude examination and inspection by immigration officers in violation of 18 U.S.C. § 2(a) and 8 U.S.C. § 1325(a)(2) establishes that the convicted alien is removable under Section 237(a)(1)(E)(i) of INA, 8 U.S.C. § 1227(a)(1)(E)(i).
Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under INA Section 237(a)(1)(E)(i).
The BIA reviews the findings of fact made by the Immigration Judge (IJ) to determine whether they are clearly erroneous and reviews de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof.
With certain exceptions that are not applicable in the instant case, an alien who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is removable under INA Section 237(a)(1)(E)(i). By its plain language, the statute does not require the DHS to establish a conviction as the basis for this removal ground.
An ‘entry’ requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Further, the act of an entry may include other related acts that occurred either before, during, or after a border crossing, so long as those acts are in furtherance of, and may be considered to be part of, the act of securing and accomplishing the entry.
The offense of eluding examination or inspection by immigration officers in violation of 8 U.S.C. § 1325(a)(2) is consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations. Under INA Section 237(a)(1)(E)(i), the Government is not required to demonstrate either that the accused individual actually transported the aliens into the United States or that he personally made the arrangements with the smuggler. The statute’s plain language unquestionably applies to a broader array of conduct. An individual may knowingly encourage, induce, assist, abet, or aid with illegal entry, even if he did not personally hire the smuggler and even if he is not present at the point of illegal entry. Thus, the statute was intended to cover a broad range of conduct, and direct participation in the physical border crossing is not required under INA Section 237(a)(1)(E)(i). Therefore, because the respondent was convicted of aiding and abetting another alien to enter or try to enter the United States in violation of law, it necessarily follows that her conviction established, by clear and convincing evidence, that she is removable under INA Section 237(a)(1)(E)(i) as an alien who knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
Alternatively, the Board could reach the same result in the instant case even if a conviction for aiding and abetting a violation of 8 U.S.C. § 1325(a)(2) would not alone establish removability under INA Section 237(a)(1)(E)(i). Where the plea agreement stating the factual basis for the criminal charges brought against the respondent shows that her conduct was tied to the aliens’ manner of entry and her specific intent to harbor them in order to assist them in eluding inspection or examination by immigration officials, and where INA Section 237(a)(1)(E)(i) does not require a conviction, the IJ improperly relied on cases that prohibit looking to the factual basis of a conviction, which are inapposite here. Thus, the IJ erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction.
The Board therefore concludes that the DHS has established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and that she is therefore removable as charged. Accordingly, the DHS’s appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the IJ for consideration of any relief from removal for which the respondent might be eligible.
Where the facts underlying the respondent’s conviction demonstrated that she knowingly assisted other aliens to enter the United States in violation of law, clear and convincing evidence established that she is removable under INA Section 237(a)(1)(E)(i).
The BIA reviews the findings of fact made by the Immigration Judge (IJ) to determine whether they are clearly erroneous and reviews de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof.
With certain exceptions that are not applicable in the instant case, an alien who knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is removable under INA Section 237(a)(1)(E)(i). By its plain language, the statute does not require the DHS to establish a conviction as the basis for this removal ground.
An ‘entry’ requires: (1) a crossing into the territorial limits of the United States, i.e., physical presence; (2) (a) an inspection and admission by an immigration officer, or (b) an actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. Further, the act of an entry may include other related acts that occurred either before, during, or after a border crossing, so long as those acts are in furtherance of, and may be considered to be part of, the act of securing and accomplishing the entry.
The offense of eluding examination or inspection by immigration officers in violation of 8 U.S.C. § 1325(a)(2) is consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations. Under INA Section 237(a)(1)(E)(i), the Government is not required to demonstrate either that the accused individual actually transported the aliens into the United States or that he personally made the arrangements with the smuggler. The statute’s plain language unquestionably applies to a broader array of conduct. An individual may knowingly encourage, induce, assist, abet, or aid with illegal entry, even if he did not personally hire the smuggler and even if he is not present at the point of illegal entry. Thus, the statute was intended to cover a broad range of conduct, and direct participation in the physical border crossing is not required under INA Section 237(a)(1)(E)(i). Therefore, because the respondent was convicted of aiding and abetting another alien to enter or try to enter the United States in violation of law, it necessarily follows that her conviction established, by clear and convincing evidence, that she is removable under INA Section 237(a)(1)(E)(i) as an alien who knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
Alternatively, the Board could reach the same result in the instant case even if a conviction for aiding and abetting a violation of 8 U.S.C. § 1325(a)(2) would not alone establish removability under INA Section 237(a)(1)(E)(i). Where the plea agreement stating the factual basis for the criminal charges brought against the respondent shows that her conduct was tied to the aliens’ manner of entry and her specific intent to harbor them in order to assist them in eluding inspection or examination by immigration officials, and where INA Section 237(a)(1)(E)(i) does not require a conviction, the IJ improperly relied on cases that prohibit looking to the factual basis of a conviction, which are inapposite here. Thus, the IJ erred in refusing to consider the documents in the record stating the factual basis for the respondent’s conviction.
The Board therefore concludes that the DHS has established by clear and convincing evidence that the respondent knowingly assisted aliens to enter the United States in violation of law and that she is therefore removable as charged. Accordingly, the DHS’s appeal will be sustained, the proceedings will be reinstated, and the record will be remanded to the IJ for consideration of any relief from removal for which the respondent might be eligible.
Thursday, December 10, 2009
Namocha v. ICE, No. 08-6151-ag (non-precedent) (2d Cir. Dec. 10, 2009).
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. This court reviews de novo questions of law and the application of law to undisputed fact.
In addition to the general statutory requirement that petitioners exhaust available administrative remedies, petitioners must also raise to the BIA the specific issues they later raise in this Court. While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. However, this court has never held that a petitioner is limited to the “exact contours” of his or her argument to the agency. On the contrary, Title 8, section 1252(d)(1) does not prevent this Court from considering “specific, subsidiary legal arguments, or arguments by extension,” even if those arguments were not presented below.
This court finds that the petitioner’s argument that the IJ failed to make a finding that she knew the documents were altered prior to their submission, despite her testimony to the contrary, is a “subsidiary argument” to the her argument before the BIA that the IJ’s adverse credibility finding was flawed because the documents in question were found only to be altered, not fraudulent, and because the IJ failed to specify why the alterations to the documents were material to the petitioner’s credibility.
The IJ’s adverse credibility determination was not based on substantial evidence. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), this court held that the submission of fraudulent documents is insufficient to hold that an alien lacks credibility where there is no indication or finding that he knew or had reason to know that the documents were fraudulent. This court concluded that when an applicant contests that he knowingly submitted a fraudulent document, the IJ must make an explicit finding that the applicant knew the document to be fraudulent before the IJ can use the fraudulent document as the basis for an adverse credibility determination. Because the petitioner in the instant case testified that she did not know the documents were altered before she submitted them, and because the IJ failed to make any finding regarding her knowledge of the authenticity of the documents, this court remands to the BIA so that the agency may make the necessary finding. The petition for review is granted, and the case remanded for further proceedings consistent with this order.
In addition to the general statutory requirement that petitioners exhaust available administrative remedies, petitioners must also raise to the BIA the specific issues they later raise in this Court. While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. However, this court has never held that a petitioner is limited to the “exact contours” of his or her argument to the agency. On the contrary, Title 8, section 1252(d)(1) does not prevent this Court from considering “specific, subsidiary legal arguments, or arguments by extension,” even if those arguments were not presented below.
This court finds that the petitioner’s argument that the IJ failed to make a finding that she knew the documents were altered prior to their submission, despite her testimony to the contrary, is a “subsidiary argument” to the her argument before the BIA that the IJ’s adverse credibility finding was flawed because the documents in question were found only to be altered, not fraudulent, and because the IJ failed to specify why the alterations to the documents were material to the petitioner’s credibility.
The IJ’s adverse credibility determination was not based on substantial evidence. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), this court held that the submission of fraudulent documents is insufficient to hold that an alien lacks credibility where there is no indication or finding that he knew or had reason to know that the documents were fraudulent. This court concluded that when an applicant contests that he knowingly submitted a fraudulent document, the IJ must make an explicit finding that the applicant knew the document to be fraudulent before the IJ can use the fraudulent document as the basis for an adverse credibility determination. Because the petitioner in the instant case testified that she did not know the documents were altered before she submitted them, and because the IJ failed to make any finding regarding her knowledge of the authenticity of the documents, this court remands to the BIA so that the agency may make the necessary finding. The petition for review is granted, and the case remanded for further proceedings consistent with this order.
Tuesday, December 8, 2009
Pierre v. Holder, No. 08-6217-ag (2d Cir. Dec. 8, 2009).
Because the petitioner was not charged, either explicitly or implicitly, with an aggravated felony as defined by Section 101(a)(43)(U), and because subsection U is not a necessarily included offense under Section 101(a)(43)(M), the petitioner therefore was denied her due process rights of notice and an opportunity to be heard when the BIA sua sponte found her removable on the basis of her conviction for an aggravated felony as defined by subsection U. Accordingly, the petition for review is granted and the decision of the BIA is vacated.
Where the BIA supplements the decision of an IJ with its own reasoning, this court reviews the decision of the IJ as supplemented by the BIA. Although this court normally lacks jurisdiction to review final orders of removal under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1252(a)(2)(C), this court has jurisdiction to review constitutional claims or questions of law, including whether a specific conviction constitutes an aggravated felony, which this court reviews de novo.
Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), this court defers to the BIA’s determination when its jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and when the intent of Congress is unclear and the agency's interpretation is reasonable. However, no such deference is warranted where the challenged BIA decision is unpublished.
This court holds as a matter of first impression that the Government’s charge that an alien is removable on the basis of a conviction for an aggravated felony as defined by INA Section 101(a)(43)(M) does not necessarily include a charge of removability for an aggravated felony as defined by INA
Section 101(a)(43)(U).
Under section 237(a)(2)(A)(iii) of the INA, any alien who is convicted of an aggravated felony at any time after admission is deportable. INA Section 101(a)(43)(M)defines an “aggravated felony” as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. Under INA Section 101(a)(43)(U), an “aggravated felony” also includes an attempt or conspiracy to commit any one of the substantive offenses described in Sections 101(a)(43)(A)-(T).
The offense of bank fraud under 18 U.S.C. § 1344 is an offense which the BIA correctly found entailed an ‘attempt’ to obtain a mortgage for $500,000 using the identification of another person.
Under 18 U.S.C. § 1344, “whoever knowingly executes, or attempts to execute, a scheme or artifice . . . to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses” is punishable for bank fraud. However, section 1344 does not include a specific loss amount as an element of federal bank fraud. Thus, the petitioner’s conviction under section 1344 does not align directly with the INA’s definition of a fraud-based aggravated felony under INA Sections 101(a)(43)(M) and (U), which require an actual or intended loss to the victim in excess of $10,000, respectively.
Under Nijhawan v. Holder, 129 S. Ct. 2294 (2009), when determining whether the monetary threshold is met for purposes of the INA, this court looks not to the formal elements of federal bank fraud but instead “to the specific circumstances surrounding an alien’s commission of a fraud and deceit crime on a specific occasion. Thus, whether an alien is removable under INA Section 237(a)(2)(A)(iii) on the basis of his or her conviction for an aggravated felony as defined under subsection M requires a “circumstance-specific” analysis that examines whether the Government has demonstrated by clear and convincing evidence that the circumstances surrounding the specific counts of conviction involve the requisite amount of loss under the INA.
INA Section 101(a)(43)(M) requires an actual loss to the victim or victims in excess of $10,000. Restitution orders, defendants’ admissions of loss, and other evidence may support a finding of actual loss in excess of $10,000.
However, requiring proof of an actual loss for attempts and conspiracies would defeat the very purpose behind INA Section 101(a)(43)(U) and that this court does not require proof of actual loss where the offense of conviction was an anticipatory offense. Therefore, a failed attempt to obtain more than $10,000 is of no consequence under subsection U.
There is no BIA precedent adopting the position that INA Section 101(a)(43)(U) is a necessarily included lesser offense of INA Section 101(a)(43)(M), and, indeed, the relevant case law supports a contrary conclusion.
This court defers to the BIA’s determination in In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999) that INA Section 101(a)(43)(U) does not use the word ‘attempt’ to mean conviction of an offense formally denominated as an attempt, but instead means conduct that satisfies a generally accepted definition of an attempted offense.
While the BIA properly relied on In re S-I-K-, 24 I. & N. Dec. 324 (B.I.A. 2007), In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999), and Ming Lam Sui v. INS, 250 F.3d 105,(2d Cir. 2001), in support of its statement that INA Sections 101(a)(43)(M) and (U) may be charged and applied together, these cases lend no support to the BIA’s conclusion that a charge solely under subsection M necessarily includes an attempt or conspiracy to commit such an offense under subsection U. This is especially so because, as the BIA recognized in S-I-K-, subsections M and U provide separate definitions of the term “aggravated felony” under Section 101(a)(43), and because the Government usually charges these subsections in combination as a basis for removal under section 237(a)(2)(A)(iii).
This court is similarly unpersuaded by the BIA’s reliance on the Federal Rules of Criminal Procedure. While Fed. R. Crim. P. 31(c) does allow a jury to return a guilty verdict for (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right, Congress issued no comparable rule in the INA. Rather, in INA Section 101(a)(43), Congress set forth twenty-one separate categories of offenses that provide a statutory basis for removal as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA. Moreover, in Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), Congress specified that the alien must be given written notice of, inter alia, the acts or conduct alleged to be in violation of law and the charges against the alien and the statutory provisions alleged to have been violated. Given the statutory scheme as well as the established principle that a removal proceeding is civil, not criminal, in nature, there is no basis for relying on the Federal Rules of Criminal Procedure to conclude that INA Section 101(a)(43)(M) necessarily includes a charge under INA Section 101(a)(43)(U), especially where doing so would relieve the Government of its notice obligations under section 239(a)(1) of the INA.
Statutory construction is a holistic endeavor. In ascertaining the plain meaning of a statute, where a court of appeals’ analysis necessarily begins, this court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.
Because the petitioner’s offense did not cause an actual loss to the bank in excess of $10,000, because INA Section 101(a)(43)(U) is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and because a potential loss cannot satisfy the requirements of INA Section 101(a)(43)(M) alone, this court exercises its jurisdiction and vacate the BIA’s finding that the petitioner is removable as an aggravated felon under section 237(a)(2)(A)(iii), as defined by INA Section 101(a)(43)(M).
This court further concludes that the BIA’s sua sponte invocation of INA Section 101(a)(43)(U) as a basis for finding the petitioner removable as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA violated the petitioner’s due process rights. Under the Fifth Amendment of the United States Constitution, no person shall be deprived of life, liberty, or property without due process of law. It is well-established that a lawful permanent resident is entitled to constitutional due process in removal proceedings. At the core of due process is the right to notice of the nature of the charges and a meaningful opportunity to be heard. This court does not hesitate in holding that the petitioner sustained a due process violation under the facts of this case.
Where the petitioner’s Notice to Appear charged her as removable under INA Section 237(a)(2)(A)(iii) solely on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner had no notice and therefore reason to defend against a charge of removability for an aggravated felony as defined by INA Section 101(a)(43)(U) in front of the IJ.
Moreover, where the IJ issued his oral ruling founding the petitioner removable “as charged” on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner therefore appealed the IJ’s order of removal under INA Section 101(a)(43)(M), and had no basis for raising a due process challenge in connection with a finding of removability under INA Section 101(a)(43)(U).
This court further holds that the BIA’s sua sponte invocation of the uncharged, disavowed subsection U as a basis for finding the petitioner removable under the INA prejudiced her. Fed. R. Crim. P. 31(c) provides statutory notice to a criminal defendant that on the basis of the offense charged, the defendant may be found guilty of a necessarily included offense or an attempt. No such corresponding statutory notice exists for an alien charged with removability under INA Section 237(a)(2)(A)(iii).
Where the record demonstrates that the petitioner’s lack of any statutory notice, any actual notice, and any opportunity to be heard in connection with a charge under INA Section 101(a)(43)(U) precluded her from making any of the arguments she now raises in response to that charge, this court accordingly holds that the petitioner was denied her “core” due process right of notice and an opportunity to be heard, in violation of the Fifth Amendment.
In sum, this court holds that the petitioner was not removable as an aggravated felon as charged under subsection M, because subsection U is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and that Pierre was deprived of due process of law when the BIA sua sponte invoked uncharged INA Section 101(a)(43)(U) as a basis for finding her removable under INA Section 237(a)(2)(A)(iii). This court therefore grants the petition for review and vacates the order of removal.
Where the BIA supplements the decision of an IJ with its own reasoning, this court reviews the decision of the IJ as supplemented by the BIA. Although this court normally lacks jurisdiction to review final orders of removal under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1252(a)(2)(C), this court has jurisdiction to review constitutional claims or questions of law, including whether a specific conviction constitutes an aggravated felony, which this court reviews de novo.
Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), this court defers to the BIA’s determination when its jurisdiction depends on the definition of a phrase used in the INA, a statute that the BIA administers, and when the intent of Congress is unclear and the agency's interpretation is reasonable. However, no such deference is warranted where the challenged BIA decision is unpublished.
This court holds as a matter of first impression that the Government’s charge that an alien is removable on the basis of a conviction for an aggravated felony as defined by INA Section 101(a)(43)(M) does not necessarily include a charge of removability for an aggravated felony as defined by INA
Section 101(a)(43)(U).
Under section 237(a)(2)(A)(iii) of the INA, any alien who is convicted of an aggravated felony at any time after admission is deportable. INA Section 101(a)(43)(M)defines an “aggravated felony” as an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. Under INA Section 101(a)(43)(U), an “aggravated felony” also includes an attempt or conspiracy to commit any one of the substantive offenses described in Sections 101(a)(43)(A)-(T).
The offense of bank fraud under 18 U.S.C. § 1344 is an offense which the BIA correctly found entailed an ‘attempt’ to obtain a mortgage for $500,000 using the identification of another person.
Under 18 U.S.C. § 1344, “whoever knowingly executes, or attempts to execute, a scheme or artifice . . . to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses” is punishable for bank fraud. However, section 1344 does not include a specific loss amount as an element of federal bank fraud. Thus, the petitioner’s conviction under section 1344 does not align directly with the INA’s definition of a fraud-based aggravated felony under INA Sections 101(a)(43)(M) and (U), which require an actual or intended loss to the victim in excess of $10,000, respectively.
Under Nijhawan v. Holder, 129 S. Ct. 2294 (2009), when determining whether the monetary threshold is met for purposes of the INA, this court looks not to the formal elements of federal bank fraud but instead “to the specific circumstances surrounding an alien’s commission of a fraud and deceit crime on a specific occasion. Thus, whether an alien is removable under INA Section 237(a)(2)(A)(iii) on the basis of his or her conviction for an aggravated felony as defined under subsection M requires a “circumstance-specific” analysis that examines whether the Government has demonstrated by clear and convincing evidence that the circumstances surrounding the specific counts of conviction involve the requisite amount of loss under the INA.
INA Section 101(a)(43)(M) requires an actual loss to the victim or victims in excess of $10,000. Restitution orders, defendants’ admissions of loss, and other evidence may support a finding of actual loss in excess of $10,000.
However, requiring proof of an actual loss for attempts and conspiracies would defeat the very purpose behind INA Section 101(a)(43)(U) and that this court does not require proof of actual loss where the offense of conviction was an anticipatory offense. Therefore, a failed attempt to obtain more than $10,000 is of no consequence under subsection U.
There is no BIA precedent adopting the position that INA Section 101(a)(43)(U) is a necessarily included lesser offense of INA Section 101(a)(43)(M), and, indeed, the relevant case law supports a contrary conclusion.
This court defers to the BIA’s determination in In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999) that INA Section 101(a)(43)(U) does not use the word ‘attempt’ to mean conviction of an offense formally denominated as an attempt, but instead means conduct that satisfies a generally accepted definition of an attempted offense.
While the BIA properly relied on In re S-I-K-, 24 I. & N. Dec. 324 (B.I.A. 2007), In re Onyido, 22 I. & N. Dec. 552 (B.I.A. 1999), and Ming Lam Sui v. INS, 250 F.3d 105,(2d Cir. 2001), in support of its statement that INA Sections 101(a)(43)(M) and (U) may be charged and applied together, these cases lend no support to the BIA’s conclusion that a charge solely under subsection M necessarily includes an attempt or conspiracy to commit such an offense under subsection U. This is especially so because, as the BIA recognized in S-I-K-, subsections M and U provide separate definitions of the term “aggravated felony” under Section 101(a)(43), and because the Government usually charges these subsections in combination as a basis for removal under section 237(a)(2)(A)(iii).
This court is similarly unpersuaded by the BIA’s reliance on the Federal Rules of Criminal Procedure. While Fed. R. Crim. P. 31(c) does allow a jury to return a guilty verdict for (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right, Congress issued no comparable rule in the INA. Rather, in INA Section 101(a)(43), Congress set forth twenty-one separate categories of offenses that provide a statutory basis for removal as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA. Moreover, in Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), Congress specified that the alien must be given written notice of, inter alia, the acts or conduct alleged to be in violation of law and the charges against the alien and the statutory provisions alleged to have been violated. Given the statutory scheme as well as the established principle that a removal proceeding is civil, not criminal, in nature, there is no basis for relying on the Federal Rules of Criminal Procedure to conclude that INA Section 101(a)(43)(M) necessarily includes a charge under INA Section 101(a)(43)(U), especially where doing so would relieve the Government of its notice obligations under section 239(a)(1) of the INA.
Statutory construction is a holistic endeavor. In ascertaining the plain meaning of a statute, where a court of appeals’ analysis necessarily begins, this court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.
Because the petitioner’s offense did not cause an actual loss to the bank in excess of $10,000, because INA Section 101(a)(43)(U) is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and because a potential loss cannot satisfy the requirements of INA Section 101(a)(43)(M) alone, this court exercises its jurisdiction and vacate the BIA’s finding that the petitioner is removable as an aggravated felon under section 237(a)(2)(A)(iii), as defined by INA Section 101(a)(43)(M).
This court further concludes that the BIA’s sua sponte invocation of INA Section 101(a)(43)(U) as a basis for finding the petitioner removable as an aggravated felon under Section 237(a)(2)(A)(iii) of the INA violated the petitioner’s due process rights. Under the Fifth Amendment of the United States Constitution, no person shall be deprived of life, liberty, or property without due process of law. It is well-established that a lawful permanent resident is entitled to constitutional due process in removal proceedings. At the core of due process is the right to notice of the nature of the charges and a meaningful opportunity to be heard. This court does not hesitate in holding that the petitioner sustained a due process violation under the facts of this case.
Where the petitioner’s Notice to Appear charged her as removable under INA Section 237(a)(2)(A)(iii) solely on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner had no notice and therefore reason to defend against a charge of removability for an aggravated felony as defined by INA Section 101(a)(43)(U) in front of the IJ.
Moreover, where the IJ issued his oral ruling founding the petitioner removable “as charged” on the basis of her conviction for an aggravated felony as defined by INA Section 101(a)(43)(M), the petitioner therefore appealed the IJ’s order of removal under INA Section 101(a)(43)(M), and had no basis for raising a due process challenge in connection with a finding of removability under INA Section 101(a)(43)(U).
This court further holds that the BIA’s sua sponte invocation of the uncharged, disavowed subsection U as a basis for finding the petitioner removable under the INA prejudiced her. Fed. R. Crim. P. 31(c) provides statutory notice to a criminal defendant that on the basis of the offense charged, the defendant may be found guilty of a necessarily included offense or an attempt. No such corresponding statutory notice exists for an alien charged with removability under INA Section 237(a)(2)(A)(iii).
Where the record demonstrates that the petitioner’s lack of any statutory notice, any actual notice, and any opportunity to be heard in connection with a charge under INA Section 101(a)(43)(U) precluded her from making any of the arguments she now raises in response to that charge, this court accordingly holds that the petitioner was denied her “core” due process right of notice and an opportunity to be heard, in violation of the Fifth Amendment.
In sum, this court holds that the petitioner was not removable as an aggravated felon as charged under subsection M, because subsection U is not a necessarily included lesser offense of INA Section 101(a)(43)(M), and that Pierre was deprived of due process of law when the BIA sua sponte invoked uncharged INA Section 101(a)(43)(U) as a basis for finding her removable under INA Section 237(a)(2)(A)(iii). This court therefore grants the petition for review and vacates the order of removal.
Monday, December 7, 2009
Saturday, December 5, 2009
Ditren v. Holder, Nos. 08-0671-ag(L), 08-2372-ag(Con) (2d Cir. Dec. 3, 2009). [Non-Precedent Decision]
As this court made clear in Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 328-29 (2d Cir. 2007), there are two “prongs” to the INA’s definition of “conviction,” either of which are sufficient to warrant removal.
A prong one conviction occurs when a formal judgment of guilt of the alien has been entered by a court. This, in turn, refers to the date on which judgment is entered on the docket, not the date on which a court accepts a guilty plea. A prong two conviction occurs when: (1) adjudication of guilt has been withheld, (2) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (3) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Where the only relevant documents at issue are a Certificate of Disposition Indictment (“CDI”), a Certificate of Disposition Dismissal (“CDD”), and a letter from a Judge of the New York Supreme Court, this court concludes that the record cannot support a prong one conviction.
Where the BIA relied on information contained in a letter from a Judge of the New York Supreme Court in its prong-two analysis to determine whether there is a conviction for removal purposes, this court is unable to review the BIA’s decision and must remand the matter for the BIA to answer the following questions: (1) Is the NYS Supreme Court judge’s letter admissible? (2) If so, does the combination of the Certificate of Disposition Indictment (CDI), the Certificate of Disposition Dismissal (CDD), and Judge’s letter support a finding of a prong two conviction? (3) If the Judge’s letter is not admissible, do the CDI and the CDD support a finding of a prong two conviction? (4)In either event, was there a prong two conviction? In answering this last question, the BIA will need to decide whether participation in drug treatment under threat of incarceration constitutes the imposition of a judicial order of some form of punishment, penalty, or restraint on the alien’s liberty. This court therefore grants the petition and remands the matter to the BIA for proceedings consistent with this order.
A prong one conviction occurs when a formal judgment of guilt of the alien has been entered by a court. This, in turn, refers to the date on which judgment is entered on the docket, not the date on which a court accepts a guilty plea. A prong two conviction occurs when: (1) adjudication of guilt has been withheld, (2) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (3) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.
Where the only relevant documents at issue are a Certificate of Disposition Indictment (“CDI”), a Certificate of Disposition Dismissal (“CDD”), and a letter from a Judge of the New York Supreme Court, this court concludes that the record cannot support a prong one conviction.
Where the BIA relied on information contained in a letter from a Judge of the New York Supreme Court in its prong-two analysis to determine whether there is a conviction for removal purposes, this court is unable to review the BIA’s decision and must remand the matter for the BIA to answer the following questions: (1) Is the NYS Supreme Court judge’s letter admissible? (2) If so, does the combination of the Certificate of Disposition Indictment (CDI), the Certificate of Disposition Dismissal (CDD), and Judge’s letter support a finding of a prong two conviction? (3) If the Judge’s letter is not admissible, do the CDI and the CDD support a finding of a prong two conviction? (4)In either event, was there a prong two conviction? In answering this last question, the BIA will need to decide whether participation in drug treatment under threat of incarceration constitutes the imposition of a judicial order of some form of punishment, penalty, or restraint on the alien’s liberty. This court therefore grants the petition and remands the matter to the BIA for proceedings consistent with this order.
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