An Update: Admission as Solicitor

I have been informed by the Soliticors Regulation Authority that I shall be admitted to the Roll of Solicitors of England and Wales, effective January 4, 2011.

Church Visit

The grave of Alexander Hamilton.


Saints

QLTT Update

So, I have been notified that I have passed all three Heads I, II & III examinations on my first sitting in August! Now, onto the application form . . . .

Conte Iron Brigade Flagbearer Part II

Completing the flag

Conte Iron Brigade Flagbearer

Steps in painting Conte Collectible's Iron Brigade Flagbearer
Part I: Painting the Flag

The flag is not done yet. More pictures will be posted next time.

A Confederate Soldier from Toy Soldiers of San Deigo American Civil War Set #1

This is perhaps the best figure in the set. Just look at that face, full of expression.

This is my interpretation of the figure with it painted up.

A close-up of the face. My paint job does not do it justice. I failed to bring out that old grumpy full-of-contempt look on his face. If you look closely, you can see that he has a cigar stub at the corner of his mouth.

My paint job on the figure looks a bit better from the front. I tried to weather his trousers a bit to give it a worn and torn look.

Instead of a usual tin canteen, I painted it brown to make it looks like a wooden one which was also common, according to my reference book.

The figure was painted with artist acrylic paints and Tamiya modeling paints. The paint job on this figure is not finished yet. It has been fun and the figure was a joy to paint.

Jiang v. Holder, No. 08-73186 (9th Cir. May 24, 2010).

This court has jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, this court’s review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.

This court reviews questions of law de novo and findings of fact for substantial evidence.

In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the Attorney General concluded that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have been physically subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. The Attorney General in J-S- thus overruled the BIA’s earlier decisions in C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997), which held that the spouse of an individual forced to undergo an abortion or sterilization is prima facie eligible for asylum, and Matter of S-L-L-, 4 I. & N. Dec. 1 (BIA 2006), which limited C-Y-Z- to hold that only officially recognized spouses of victims of forced abortion or sterilization benefitted from a per se finding of past persecution.

This court must first decide whether the Attorney General’s most recent interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is legally controlling. When reviewing decisions by an administrative agency, this court applies Chevron deference. Under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), this court first asks whether the statute is silent or ambiguous with respect to the specific issue, and if so, whether the agency’s interpretation is based on a permissible construction of the statute.

The Attorney General’s conclusion in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), is contrary to this court’s precedent in He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), in which it was in agreement with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997). In He, this court affirmed the BIA’s conclusion that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, in
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), the Supreme Court held that a court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.

This court is in agreement with the government’s argument that, under Brand X, deference must be given to the agency’s reinterpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). First, this court concludes that the Attorney General’s interpretation of INA § 101(a)(42) is entitled to Chevron deference. INA § 101(a)(42) is silent as to the provision of refugee status to spouses of victims of coercive population control policies. No language in the statute explicitly denies asylum relief to spouses of victims of coercive population control policies or precludes the Attorney General from construing that statute in a manner that affords them such relief. Moreover, as the agency’s new interpretation of the statute in J-S- indicates, the statutory language of INA § 101(a)(42) is susceptible to more than one interpretation. Although the Attorney General in J-S- noted that INA § 101(a)(42) did not explicitly exclude spouses from its purview, his decision in J-S- reversed the BIA’s earlier conclusion in C-Y-Z-, which held that the spouse of a victim of coercive population control policies is prima facie eligible for asylum under INA § 101(a)(42). This court therefore concludes that INA § 101(a)(42) is silent and ambiguous as to the refugee status of spouses of victims of coercive population control policies.

Proceeding to the second step in the Chevron analysis, this court would typically decide whether the agency’s interpretation is based on a permissible construction of the statute. In the instant case, however, this court defers to the agency’s new interpretation of INA § 101(a)(42), pursuant to National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). Under Brand X, only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. This court has clarified that, under Brand X, while agencies retain discretion to fill ambiguous statutory gaps, it does not follow that an agency may repeatedly put forward an interpretation that this court has already examined under Chevron and found unreasonable at its second step. Here this court has had no occasion to hold unreasonable the agency’s current view as to the presumptive eligibility of a victim’s spouse.

In He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003), this court agreed with the BIA’s prior decision in Matter of C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997) that spouses of victims of coercive population control policies are presumptively eligible for asylum under INA § 101(a)(42). However, this court’s decision in He affirmed the BIA’s prior position in C-Y-Z- without analyzing whether the agency’s answer is based on a permissible construction of the statute under the second prong of the Chevron test. Because our prior decision failed to foreclose the agency’s current interpretation, this court must defer to it. This court notes that our deference to the Attorney General’s new interpretation in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) is in accord with every other circuit to have addressed this issue.

Having concluded that the Attorney General’s interpretation of INA § 101(a)(42) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) controls, this court next examines whether the BIA committed legal error in concluding that the petitioner failed to demonstrate other resistance to a coercive population control program under the statute, and whether the BIA’s conclusion that the petitioner did not suffer persecution on the basis of that resistance is supported by substantial evidence.

In Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the BIA concluded that spouses cannot rely upon the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions. The Attorney General’s interpretation, however, does not prevent the spouse of a person who has physically undergone a forced abortion or sterilization procedure from qualifying for political asylum. Such a person may qualify for asylum under INA § 101(a)(42) if he or she can demonstrate that: (i) he or she qualifies as a refugee on account of persecution for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program; (ii) he or she has a well-founded fear of being forced to undergo an abortion or involuntary sterilization procedure or of being persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program; (iii) the specific facts of his or her case justify asylum on grounds other than those articulated in section 601(a); or (iv) he or she satisfies the requirements for derivative asylum expressly set forth in section 208(b)(3)(A) of the Act.

Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) thus stands only for the limited proposition that INA § 101(a)(42) cannot be read to confer automatic or presumptive refugee status on the spouses of persons who have physically been subjected to a forced abortion or sterilization procedure pursuant to a foreign government’s coercive population program. Indeed, the Attorney General concluded in J-S- that applicants may present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program. This court thus considers a spouse’s forced abortion or sterilization as “proof” that an applicant resisted a coercive population control policy, and in analyzing whether persecution occurred as a result. However, an applicant must provide evidence of resistance in addition to the spouse’s forced abortion or sterilization to avoid what the Attorney General described as the “fatal flaw” in the per se eligibility analysis: Some spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China. Such applicants should not be permitted to use the sole fact of their spouse’s persecution automatically to qualify for political asylum under the statute’s coercive population control ‘resistance’ provisions.

Where (1) the petitioner neither supported nor acquiesced in the forced abortion, (2) family planning officials arrested both the petitioner and his partner after they had applied for a marriage license for cohabiting in violation of China’s prohibition against underage marriage, (3) subjected the petitioner’s partner to a medical examination against her will, (4) held the petitioner in detention while they subjected his partner to an abortion, (5) released him the next day after the abortion had been completed and after he paid a heavy fine, the petitioner’s partner’s forced abortion is proof of his resistance to China’s population control policy. Because the petitioner’s credible testimony amply demonstrates the “other resistance to a coercive population control program” required, the BIA erred as a matter of law in concluding otherwise.

Where the petitioner and his partner (1) cohabited without having been able to marry under Chinese law, (2) attempted to apply for an official marriage license, which was denied them due to their underage status., (3) were determined to marry in a traditional Chinese ceremony despite the government’s denial of an official marriage license even after the forced abortion and fine resulting from their previous violation of the population control law, and (4) on the morning of the wedding, ten police officers and family planning officials arrived to arrest the petitioner and he was forced to flee from his home and his bride was also forced into hiding, the forced abortion took place as part of a series of events that reflect the petitioner’s persistent defiance of the coercive population control policy. This court has established that China’s prohibition on underage marriage “is an integral part” of China’s coercive population control policy. In Li v. Ashcroft, 356 F.3d 1153, this court addressed for the first time the meaning of the phrase “other resistance to a coercive population control program” and held that a petitioner may also be able to demonstrate resistance to a coercive population control policy by deciding to marry, even when denied a license by local authorities. The petitioner’s acts in defiance of the coercive population control policy fit squarely within this court’s precedent as to the meaning of “other resistance.” Pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) and Li v. Ashcroft, 356 F.3d 1153, it is clear that the forced abortion on the petitioner’s partner, of which the petitioner was not a willing participant, and his continued attempts to cohabit and marry in contravention of China’s population control policy, in the face of denial of an official marriage license, constitute “other resistance.”

To establish past persecution, a petitioner must demonstrate (1) an incident, or incidents, that rise to the level of persecution; (2) persecution on account of one or more of the statutorily-protected grounds; and (3) that the persecution was committed either by the government or by forces that the government was unable or unwilling to control. Because the petitioner’s claim falls under persecution on the basis of political opinion, and because the petitioner’s claim of persecution is based on actions by local police and family planning officials’ enforcement of China’s official population control policy, which he resisted, this court addresses only the question of whether the petitioner’s experiences rise to the level of persecution.

Even though the BIA was correct in concluding that pursuant to Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008) the petitioner cannot qualify for refugee status solely on the basis of his partner’s forced abortion, J-S- makes clear that a forced abortion or sterilization imposed on one’s spouse is a factor in establishing that the petitioner was persecuted and the petitioner has offered substantial evidence of additional persecution in support of his claim. This court examines the totality of the circumstances in deciding whether a finding of persecution is compelled. The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment he or she received rises to the level of persecution. Where (1) the petitioner was first expelled from school due to his romantic relationship with his partner, which was legally prohibited, (2) after attempting to obtain a marriage license from the government, local authorities detained him for over a day, (3) family planning authorities required him to pay a heavy fine in order to be released from detention, (4) the petitioner resisted China’s official population control policy of prohibiting underage marriage by organizing and participating in a traditional wedding ceremony, (5) local officials and police officers arrived at his home on the morning of the wedding and attempted to arrest him, and (6) the petitioner was then forced to flee his hometown and hide from authorities out of concern for his safety, an examination of the totality of the circumstances compels a finding that the petitioner was persecuted as a result of his resistance to China’s coercive population control policy.

The BIA also erred in denying the petitioner’s asylum application because he was not a legal spouse of the victim of a forced abortion. In its decision, the BIA failed to account for our precedent in Ma v. Ashcroft, 361 F.3d 533 (9th Cir. 2004) establishing that China’s bar on underage marriage is an integral part of its coercive population control program. Under this holding, whether a persecuting country would recognize a marriage is not the dispositive question in determining whether the petitioner is a “spouse,” particularly where the marriage is barred by a coercive population control program. In Ma, this court held that because the prohibition on underage marriage is an integral part of China’s population control policy, it would contravene the fundamental statute to deny asylum on the basis of that rule. Thus, for couples who do not meet the age requirements to marry under population control policies, the failure to have an official marriage ceremony does not preclude male partners of women who have had forced abortions from obtaining asylum under § 1101(a)(42)(B). The Chinese government, moreover, recognizes a wedding ceremony according to the rural customs as a “de facto” marriage where both spouses have reached the legal age to marry. This court has therefore concluded that the protections of section 101(a)(42)(B) apply to husbands whose marriages would be legally recognized, but for China’s coercive family planning policies, and not only to husbands whose marriages are recognized by Chinese authorities.”

Because the petitioner and his partner would have been married in accordance with their village’s tradition but for this interference by local officials, and would have been married had the state not denied them a marriage license, this court thus concludes that the petitioner is not precluded from the protections of INA § 101(a)(42)(B), and that he may present proof of his partner’s forced abortion as a factor in establishing persecution, along with all the other acts of persecution that he suffered at the hands of Chinese officials. Accordingly, this court finds that any reasonable adjudicator would be compelled to conclude that the petitioner has established past persecution on the basis of “other resistance” to China’s coercive population control policy.

In light of the foregoing, this court needs not reach the petitioner’s religious persecution claim. Nevertheless this court disagrees with the government’s assertion that we lack jurisdiction to review this claim. The government’s contention that the petitioner failed to file a petition for review of the BIA’s December 27, 2006, denial of relief, in which the BIA considered his religious persecution claim is without merit. Where the petitioner timely filed, within the 30-day period required by statute, a motion for reconsideration of the BIA’s December 27, 2006 decision on January 10, 2007, in which he preserved his claim of religious persecution, and where the government subsequently requested that this court to remand his petition for review to the BIA for further reconsideration and this court remanded the petition in full to the BIA, which then neglected to address the petitioner’s religious persecution claim, this court has jurisdiction over his religious persecution claim, particularly when the petitioner properly briefed the issue before our court on this appeal. This court does not, however, determine whether the BIA erred in finding that the petitioner failed to establish persecution on the basis of his religious practice for purposes of his asylum, withholding, and CAT petition.

This court defers to the Attorney General’s interpretation of INA § 101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). Under J-S-, a spouse of an individual who has undergone forcible abortion or sterilization may present proof of such treatment to evidence persecution. This court reaffirms that, for the purposes of INA § 101(a)(42), a spouse includes an individual whose marriage would be recognized but for the enforcement of China’s coercive population control policy, as well as an individual whose marriage is officially recognized by Chinese authorities. Because any reasonable adjudicator would be compelled to conclude that the petitioner established past persecution for “other resistance” to the population control policy, this court concludes that the petitioner is entitled to the protections of INA § 101(a)(42)(B). Accordingly, this court grants the petition for review and remands to the BIA, which shall, on behalf of the Attorney General, exercise discretion regarding whether to grant asylum. This court remands for further proceedings on whether the petitioner is eligible for withholding of removal and CAT relief.

Shabaj v. Holder, 09-0558-ag (2nd Cir. April 12, 2010).

This court reviews the agency’s factual findings under the substantial evidence standard, treating them as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary and this court reviews de novo questions of law and the application of law to undisputed fact.

Aliens admitted under the Visa Waiver Program forfeit any right to challenge their removal, except that they may apply for asylum. Aliens who do not waive the right to review or contest removal other than on the basis of an application for asylum may not be provided a waiver under the program.

There is nothing in the record to establish whether he was “admitted” when his passport was found to be fake, or whether he was paroled into the United States pending asylum-only proceedings (in which latter event, authority for his removal would have been found under subsection (a) of 8 C.F.R. § 217.4). However, the procedural section of the removal order recites that the petitioner has been “admitted” under Section 217. And the only ground on which the petitioner challenges the jurisdiction of the DHS officer who ordered his removal is that the petitioner was not properly considered an applicant under the Visa Waiver
Program--which he assuredly was. Therefore, any other argument on this point is waived.

Because the only remedy the petitioner seeks is to remain in the United States while he appeals before the DHS its denial of his waiver of inadmissibility and status adjustment applications, and because the petitioner did not submit sufficient evidence to support a waiver of inadmissibility in this most recent application, there is no reason to believe his appeal before the DHS will be any more successful than his two previous failed attempts to get a waiver.

The regulation implementing the Visa Waiver Program statute treats someone who applies under the Visa Waiver Program using fraudulent papers as bound by its provisions. As the DHS interprets this regulation, it is applicable to anyone who seeks admission under the Visa Waiver Program using a passport from a nation included in the Visa Waiver Program, whether the passport is valid or bogus. This court therefore holds that the petitioner, a native and citizen of Albania arriving in the United States in November 2000 bearing a false Italian passport, is bound by the terms of the program notwithstanding that he used a fraudulent passport to obtain the benefit of expedited entry for which his waiver was given quid pro quo.

This Court has previously held someone in an analogous factual situation to be properly considered a Visa Waiver Program applicant. In Kanacevic, the petitioner was a citizen and national of a non-Visa Waiver Program nation who arrived and displayed a fraudulent passport purporting to be from a Visa Waiver Program nation. This court held that, because asylum is the only remedy that could be sought by a Visa Waiver Program applicant, the denial of the petitioner’s asylum claim constituted a final order of removal from which the petitioner could appeal. This is an implicit ruling that someone in the position of the petitioner of the instant case--a fraudulent Visa Waiver Program applicant--is a Visa Waiver Program applicant nevertheless. The petitioner was therefore properly adjudicated as a Visa Waiver Program applicant and he has received all the removal process to which he was entitled, and was properly determined to be removable. Accordingly, the petition for review is denied.

Chen v. Holder, 7th Cir. No. 08-2836 (Apr. 28, 2010).

The BIA’s analysis of the respondent’s asylum claim was incomplete. The BIA failed to address the respondent’s claim of past persecution based on imputed political opinion—that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. Even though the respondent’s mother’s forcible sterilization does not automatically entitle him to a finding of past persecution, it may in combination with other evidence show that his family’s resistance to China’s population control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon the respondent and his family—and the future hardships he would face if returned—when evaluating the respondent’s fear of future persecution. This court therefore grants the petition for review and remand to the BIA for further proceedings.

Where the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, this court reviews the BIA’s decision. The BIA’s legal conclusions are reviewed de novo. This court will uphold the BIA’s factual findings so long as they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Under this deferential standard of review, reversal is warranted only if the evidence compels a different result; this court will not overturn the BIA’s findings simply because this court might have decided the case differently. On the other hand, remand may be warranted when the BIA overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record.

The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a refugee. A refugee is a person who is unwilling or unable to return to his native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. This requires the alien to show that his fear of persecution is both subjectively genuine and objectively reasonable. To prevail under this standard, the alien must present specific, detailed facts showing a good reason to fear that he will be singled out for persecution.

The statute at 8 U.S.C. § 1101(a)(42)(B) creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization or for other resistance to a coercive population control program; (3) those who have a well-founded fear that they will be forced to have an abortion or be sterilized; and (4) those who have a well-founded fear that they will be persecuted for failing or refusing such procedures or for resisting a coercive population control program. The Attorney General has concluded in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. In Matter of J-S-, it was held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution.

The Attorney General’s interpretation of 8 U.S.C. § 1101(a)(42)(B) in Matter of J-S-, 24 I. & N. Dec. 520 (AG 2008) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the rationale applies with equal force to the claim of an asylum-seeker like the respondent whose parent has been forced to have an abortion or undergo sterilization.

The respondent does not fall into the first category of refugees created by 8 U.S.C. § 1101(a)(42)(B), therefore, under the rationale of Matter of J-S-, the respondent is not automatically eligible for asylum on the basis that his mother was sterilized against her will. Nor does the respondent fall into the second class of refugees as he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under 8 U.S.C. § 1101(a)(42)(B)—those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue in the instant case as the respondent is a male), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program.

Where the respondent has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one child policy, his claim is based partly on a theory of imputed political opinion. The BIA’s rejection of this argument on the basis of a perceived lack of circuit precedent to support it is an error of law. It is well established in the Seventh Circuit that an alien may base a persecution claim on imputed political opinion. Under this theory the alien is asserting that his persecutors have mistreated or will mistreat him because they attribute someone else’s—often a family member’s—political beliefs to him. To prevail on this sort of claim, the alien must show that (1) his persecutors attributed the political opinion of another to him, and (2) the attributed opinion motivated or will motivate the persecution.

The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under 8 U.S.C. § 1101(a)(42)(B) may be partially based on imputed political opinion—more specifically, such a claim may rely in part on a parent’s persecution for resisting a coercive population-control program. This is a specific application of the more general imputed political-opinion theory—already established in the Seventh Circuit—and this court will therefore follow the lead of these circuits in recognizing it in the instant case.

The respondent has submitted specific and detailed evidence tending to show that he and his family have been uniquely targeted by the population control committee in their village based on their persistent resistance to China’s one-child policy. He submitted evidence that his family spent many years hiding from population-control authorities in their village; his mother lost a child in utero when she fell trying to escape population-control authorities; his mother was forcibly sterilized after his birth; his aunt suffered a forcible abortion and was thereafter involuntarily sterilized; his parents had to give away one of his sisters because they could not afford her; and his family was subjected to significant economic hardship as a result of their extreme resistance to China’s one-child policy.

Where the BIA summarily rejected the imputed political-opinion basis of the respondent’s claim without analysis, having erroneously concluded that “current caselaw” in this circuit did not support it, and where the concept of persecution based on imputed political opinion has actually long been recognized in this circuit, and the respondent’s claim falls comfortably within this theory of relief, remand is in order to give the BIA the first opportunity to pass judgment on a claim it previously ignored. The BIA should consider the totality of the circumstances to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.

There is another reason to return this case to the BIA: the respondent also presented evidence that as a member of the hei haizi—a child ineligible for registration on the hukou because he was born in violation of China’s population control program—he has been and will continue to be deprived of many fundamental rights and governmental benefits. Many of the hardships the respondent suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, the respondent and his family were subjected to severe financial deprivation; this took the form of enormous fines—at his birth and thereafter to allow him to attend school—as well as the denial of the land and food allotment permitted to lawfully born children. His father testified via affidavit that as a result of these fines, the family—already very poor—often went hungry. The respondent submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment. Where the BIA did not evaluate the cumulative significance of these hardships when evaluating Chen’s claim of past persecution (on political-opinion grounds or based on his membership in a particular social group), and where the BIA did not properly account for this evidence in evaluating the reasonableness of his fear of future persecution, its treatment of this claim, too, was incomplete.

It is well established that persecution can take the form of economic deprivation as well as physical mistreatment; a claim of persecution based on economic deprivation generally requires a showing of a deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life. This does not mean, however, that the alien must establish a total deprivation of livelihood on account of his protected status. Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population control policy may, in appropriate cases, constitute persecution.

Beyond economic deprivations, the respondent has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. This court has often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. Where the BIA dismissed the respondent’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence—the fact that the respondent was able to obtain a passport and therefore “was given the right to travel by the Chinese government,” and where the BIA ignored much of the respondent’s evidence and never addressed his argument about the combined effect of the economic and noneconomic deprivations he and his family have suffered and that he contends he will continue to suffer if returned to China, its treatment of the claim is woefully inadequate.

This court does not conclude that the record compels a conclusion that the respondent suffered past persecution or has an objectively reasonable fear of future persecution based on imputed political opinion or membership in his family or the hei haizi, or both. Because the BIA’s analysis flowed from a misapprehension of the state of this circuit’s caselaw and was otherwise incomplete, these are matters for the BIA to address on remand, in light of the principles we have explained here and based on the totality of the evidence. Accordingly, this court grants the petition for review, vacates the decision of the BIA, and remands for further proceedings consistent with this opinion.

Kim v. Holder, No. 06-73415 (9th Cir. May 3, 2010).

The government must prove the respondents’ removability by clear and convincing evidence. Reviewing the BIA’s findings for substantial evidence, this court concludes that the government met its burden.

Even though the government was unable to produce the respondents’ alien files containing their applications for adjustment of status, the government presented a constellation of circumstantial evidence linking the respondents to the scheme perpetrated by a corrupt INS officer in taking bribes for providing fraudulent “Green-Cards.”

Where the respondents’ names and an alien file numbers appeared on a list that the corrupt INS officer submitted to law enforcement authorities identifying the non-citizens who obtained LPR status through the conspiracy, and where the respondents’ mother, in her sworn testimony to ICE, admitted that she procured her LPR status as the spouse of apriority worker—Alien with Extraordinary Ability (such as a Nobel Prize recipient), an Outstanding Professor or Researcher, or a Multinational Executive or Manager---through payment of $30,000 to one of the coconspirators and undergone a sham interview with the corrupt INS officer at a coconspirator’s home, but her husband did not fit any of the descriptions and, in fact, never had LPR status within the United States, this court finds that the government has proved the respondents’ removability by clear and convincing evidence, and the BIA’s removability determination was accordingly supported by substantial evidence.

The respondents’ contention that the BIA’s refusal to consider their green cards as the functional equivalent of an “immigrant visa” for the purposes of INA § 212(k), 8 U.S.C. § 1182(k) violates equal protection because it is based on an irrational distinction between arriving aliens, or applicants for admission and returning resident aliens is without merit. Because the respondents were improperly granted their green cards, their LPR status was void ab initio. Their so-called green cards conferred no rights and the respondents accordingly were not charged with removability as returning LPRs, but rather were charged and found removable as non-citizens lacking a valid entry document at the time of their admission from trips abroad. Because they do not belong to the class of returning LPRs who are allegedly similarly situated to applicants for admission, they cannot show injury from the alleged discrimination, much less any effective redress that this court could afford them, therefore, this court dismisses the respondents’ equal protection challenge for lack of standing.

This court does not need to reach the issue of whether the term “immigrant visa” as used in INA § 212(k), 8 U.S.C. § 1182(k) can be read to encompass green cards because the respondents did not have valid green cards at the time of entry and therefore lack standing to pursue this claim as well.

The government has proved the respondents’ removability, so thepetition for review is denied in part. Because the respondents lack standing to raise their equal protection claim and their claim that their green cards provide a predicate for a § 212(k) waiver of inadmissibility, the petition for review is dismissed in part.

Matter of Koljenovic, 25 I & N Dec. 219 (BIA 2010).

The respondent’s adjustment of status subsequent to his entry to the U.S. without inspection is not an “admission” as that term is literally defined in section 101(a)(13)(A) of the Act. However, the limited definitions of the terms “admission” and “admitted” in section 101(a)(13)(A) do not resolve the meaning of the phrase “admitted . . . as an alien lawfully admitted for permanent residence” in section 212(h) of the Act.

An alien may be admitted as a lawful permanent resident either by inspection and authorization to enter at the border or by adjustment of status if the alien is already in the United States. Adjustment of status is essentially a proxy for inspection and permission to enter at the border, which is given as a matter of administrative grace. As the BIA has repeatedly held, an adjustment of status is merely a procedural mechanism by which an alien is assimilated to the position of one seeking to enter the United States. Sections 245(a) and (i) and section 245A(b)(1) of the Act, plainly authorize the Attorney General to adjust an alien’s status “to that of an alien lawfully admitted for permanent residence” and thus provide that adjustment applicants are to be treated as if they are being “admitted. For these reasons, it is not necessary that section 101(a)(13) of the Act specifically include adjustment of status in the definition of an “admission.”

The BIA has consistently construed an adjustment of status as an “admission.” In Matter of Rosas, 22 I&N Dec. 616, the BIA held that aliens who are lawfully admitted for permanent residence through the adjustment of status process are considered to have effectuated an “admission” to the United States. This rationale was extended to Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in finding that an alien who has been accorded lawful permanent resident status is deemed to have been “admitted” as of the date of the adjustment of status. Applying Matter of Rosas to the facts of the instant case, it is clear that the respondent’s only “admission” into the United States was pursuant to his 2001adjustment of status. The respondent, similar to the alien in Rosas, entered without inspection, so there are no possible alternative dates of admission. If the respondent’s 2001 adjustment of status is not considered an admission, he would be in the absurd position of being a lawful permanent resident without ever having been “admitted” in that status and thus could be subject to inadmissibility under section 212(a)(6)(A)(i) of the Act and ineligible for various forms of relief. Therefore, the respondent’s adjustment of status was an “admission” within the meaning of the Act.

The pertinent legislative history supports this conclusion. The Conference Report accompanying the IIRIRA states, “The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” Section 240A(a)(2) of the Act, sets forth a continuous residence requirement of 7 years for cancellation of removal for lawful permanent residents. The Board considers the Conference Report’s reference to section 240A of the Act to reflect Congress’ intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.

An interpretation of section 212(h) of the Act that does not treat an alien’s adjustment of status as an admission that invokes the 7-year residence requirement would frustrate this legislative purpose. An alien who is removable for a criminal conviction, who obtained lawful permanent residence through adjustment of status, and who has not resided continuously in the United States for 7 years would be ineligible for cancellation of removal under section 240A but would remain eligible for a section 212(h) waiver.
The legislative history of the IIRIRA indicates that Congress did not intend such a result.

Additionally, section 101(a)(13) of the Act was amended by the IIRIRA to define the terms “admission” and “admitted” in order to address complexities in the law resulting from the United States Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963). It was not intended to differentiate an adjustment of status from an admission after inspection at the border. Likewise it was not intended to modify the recognition in Matter of Rainford, 20 I&N Dec. 598, that adjustment of status is the functional equivalent of inspection and authorization to enter at the border.

The respondent’s reliance on Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), to support his claim that he is eligible for a waiver under section 212(h) of the Act is misplaced. Martinez did not consider whether the same rule would apply in a case like the respondent’s where the alien was not previously admitted. Indeed, if the BIA were to literally apply the Fifth Circuit’s holding to the instant case, the respondent would have no admission date at all. Given that the Fifth Circuit in Martinez did not have to confront the factual scenario presented here, the Board is not persuaded by respondent’s contention that Martinez should control.

The Board’s conclusion receives further support from the Fourth Circuit’s decision in Aremu v. Department of Homeland Security, 450 F.3d 578 where it was explicitly noted that finding adjustment of status to be an admission might be justified because of the possible absurdities that would result from a contrary holding in cases where the alien has never been admitted within the meaning of section 101(a)(13)(A) of the Act. The Fourth Circuit made this observation despite its disagreement with the BIA’s holding in Matter of Shanu that the date an alien is lawfully adjusted for permanent residence also constitutes a “new” date of admission when the alien had previously been admitted in another status.

It should be reemphasized that not construing an alien’s adjustment to lawful permanent residence to be an admission would have problematic consequences for other aliens. The Board cannot read the same statutory language one way in the context of section 212(h) relief and another way in the context of cancellation of removal. If adjustment of status under section 245(a) of the Act did not constitute an admission for purposes of section 212(h), it follows that it also would not be an admission for purposes of cancellation of removal. Resolving this interpretative dilemma by considering adjustment of status as an “admission” is far more consistent with the overall structure of the Act regarding the eligibility of aliens for relief under the relevant provisions of section 212(h) and for other analogous relief, in particular, cancellation of removal under section 240A(a).

The critical factor is not whether one acquired lawful permanent resident status through admission as an immigrant or through adjustment of status in the United States but is, instead, the time accrued in such status. A contrary rule would not only allow aliens who have been admitted to lawful permanent resident status through the process of adjustment to avoid the effect of the “stop-time” rule. It would also allow such aliens, who currently comprise a substantial majority of all those admitted to lawful permanent resident status, to forever avoid the effect of the aggravated felony bar in section 212(h). There is no indication that Congress intended the limitations it built into section 212(h) to apply to those aliens whose previous admission to lawful permanent resident status occurred through the overseas consular process, but not to the majority of aliens whose admission occurred through adjustment of status. Therefore, the critical concern is the alien’s length of residence in lawful permanent resident status, rather than the mechanism by which he or she was “admitted” to that status. The respondent is ineligible for section 212(h) relief because he engaged in conduct that rendered him inadmissible within a few years of his adjustment. Another alien who engaged in similar conduct more than 7 years after adjustment would be eligible for a waiver.

The 7-year continuous residence requirement of section 212(h) of the Act applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission, given that he entered without inspection. Because the respondent does not have the requisite 7 years of continuous residence, he is ineligible for a section 212(h) waiver. Accordingly, the appeal is dismissed.

第一次用 iPhone 來在blog 上寫中文字. 不太困難但比起用英文字來寫慢很多。有時筆畫不對會花費很多時間才找到正確字樣。

De La Rosa v. Holder, No. 09-3099-ag (2d Cir. Feb. 25, 2010).

To establish entitlement to relief under the CAT, a petitioner bears the burden of proving that it is more likely than not that removal will cause him to be subject to torture. Torture is defined as the infliction of severe pain or suffering by, at the instigation of, or with the consent or acquiescence of a public official.

The REAL ID Act of 2005 limits this court’s jurisdiction to review final orders of removal against individuals removable for having committed crimes involving a controlled substance to constitutional claims or questions of law. This court has found 8 U.S.C. §§ 1252(a)(2)(C),
(D), to so limit our jurisdiction in withholding of removal cases. This court also previously assumed, without discussion, that 8 U.S.C. § 1252(a)(2)(C) is applicable to deferral of removal claims under the CAT. This court has not, however, expressly held that the section is applicable to deferral claims. It should be noted that the Ninth Circuit draws a distinction between withholding and deferral claims, treating the jurisdictional limits imposed by section 1252(a)(2)(C) as inapplicable if the conviction does not provide the basis of the IJ’s decision on relief under the CAT.

Since September 25, 2002, the BIA has been bound to review the factual findings of IJs only for clear error. The BIA will not engage in de novo review of findings of fact determined by an IJ. Facts determined by an IJ, including findings as to the credibility of testimony, shall be reviewed by the BIA only to determine whether the findings of the IJ are clearly erroneous. Therefore, when the BIA did not comply with this regulatory command in reviewing the IJ’s factual findings, but rather applied a standard that substantially deviated from clear error and may have been de novo, whatever the precise level of review undertaken by the BIA with respect to the IJ’s factual findings in the petitioner’s case constitutes an error.

Where the BIA appears to have made its own factual findings based on “all evidence,” and where the BIA concluded that the IJ erroneously granted the petitioner’s application for deferral without indicating or explaining how the IJ may have committed clear error, this “weight of the evidence” standard of review conducted by the BIA cannot be squared with review for clear error of this circuit. Indeed, “weight of the evidence” is often equated across circuits with a de novo inquiry into the preponderance of the evidence. While this court does not review the factual findings of the IJ and the BIA, it is apparent that, as a matter of law, the BIA’s “weight of the evidence” review of the IJ’s findings does not conform to the dictates of 8 C.F.R. § 1003.1(d)(3)(i).

The improper standard of review used by the BIA is the type of error that requires remand. This court has said that it is precisely because factfinding in both the asylum and withholding contexts is expressly committed to the discretion of the EOIR that, when those findings rely upon legal errors, the appropriate remedy is generally to vacate those finding and remand to the BIA for reconsideration of an applicant’s claim.

Minor errors, however, do not require remand. Remand is unnecessary if it would be pointless or futile, such as where there is an alternative and sufficient basis for the result, the error is tangential to non-erroneous reasoning, or the overwhelming evidence makes the same decision inevitable. The general rule is that the Court must be confident that the agency would reach the same result upon a reconsideration cleansed of errors.

Absent an alternative and sufficient ground for the BIA’s decision, the error in the standard of review requires remand. In view of the IJ’s factual findings which may support a decision in the petitioner’s favor, as well as the new evidence submitted by him to the BIA on appeal, this court finds that the BIA, applying the proper standard of review for clear error, could conclude that it is more likely than not that the petitioner would be tortured upon removal to the Dominican Republic within the meaning of the CAT.

However, where this court’s review of the BIA decisions reveals that the BIA may have an alternative basis for its reversal of the IJ decision and dismissal of the petitioner’s appeal, this court must, accordingly, proceed to review this possible alternative ground, which if sufficient to support the BIA’s decision, would insulate the BIA’s error.

Where the BIA’s opinion implies that the existence of some government actors attempting to prevent torture is sufficient to negate the fact that other government actors would be complicit in that torture, even when evidence strongly indicates that the government as a whole would be unable to prevent the torture from occurring, but where it is not clear to what extent the BIA’s order fully adopts this view or rests its outcome upon it, it is appropriate to remand the case for additional analysis and discussion on this issue.

Article 3 of the CAT prohibits the deportation of any person to a country where it is more likely than not that the individual would be in danger of being subjected to torture. For pain and suffering to be cognizable as torture under the CAT, as set forth in Article 1 of the Convention, it 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. The CAT’s implementing regulations clarify, and the Senate voted for ratification with the understanding that, acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity. Thus, this court has held that torture requires only that government officials know of or remain willfully blind to an act and thereafter breach their legal responsibility to prevent it. Given this background, this court is concerned with the BIA’s legal conclusion that the evidence submitted by the petitioner showing some police investigations and arrests relating to his complaint precludes the possibility of government acquiescence to his torture.

Where the IJ made a series of factual findings bearing on the actual involvement of Dominican government actors in the possible killing of the petitioner including findings that (1) a Dominican national named “Brito” has contacts in the Dominican government, (2) Brito’s brother is an official in that government, and (3) this brother had met the petitioner and is able to recognize him, (4) that Brito told a co-defendant of the petitioner that he has brothers in the Dominican army, and where the IJ received the most recent United States State Department Report on the Dominican Republic documenting widespread corruption within the government and police force, including infiltration by criminals and involvement in drug trafficking, this court has significant doubts of the BIA’s conclusion that the evidence fails to show that the Dominican government would acquiesce in the torture of the petitioner on the basis that the petitioner introduced evidence that some persons within the government had taken steps to prevent his torture. This is particularly when the petitioner also submitted evidence to the BIA indicating that Brito is present in the Dominican Republic with the intent to kill him and that the Dominican government lacks the resources to prevent his murder upon his removal to the country.

In short, it is not clear to this court why the preventative efforts of some government actors should foreclose the possibility of government acquiescence, as a matter of law, under the
CAT. Where a government contains officials that would be complicit in torture, and that government, on the whole, is admittedly incapable of actually preventing that torture, the fact that some officials take action to prevent the torture would seem neither inconsistent with a finding of government acquiescence nor necessarily responsive to the question of whether torture would 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. In light of this court’s concern with the BIA’s application of the “government acquiescence” legal standard, it is appropriate to remand the instant case for additional analysis and discussion of that question. The Supreme Court has stated that generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.

At this juncture, the proper course is for the BIA to make a considered judgment on the application of the government acquiescence standard in the category of circumstances at issue. The agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides. Accordingly, this court asks that the BIA issue a precedential opinion on whether, as a matter of law, a government may acquiesce to a person’s torture where (1) some officials attempt to prevent that torture (2) while other officials are complicit, and (3) the government is admittedly unable to actually prevent the torture from taking place.

The law is not clear as to whether the BIA’s implication or assumption that the petitioner’s evidence precludes a finding of government acquiescence would provide an alternative and sufficient basis on which to uphold the BIA’s orders. Therefore, the BIA’s misapplication of the standard of review with respect to the IJ’s factual findings requires that this court vacates the BIA’s orders denying the petitioner’s deferral of removal and dismissing his appeal, and that this court remands the petitioner’s record back to the BIA. This panel retains jurisdiction over any post-remand appeal that the parties may make.

Singh v. Holder, No. 05-74021 (Unpublished) (9th Cir. Feb. 22, 2010).

This court has jurisdiction pursuant to 8 U.S.C. § 1252 to review an order of the BIA denying the petitioner’s motion to reopen for abuse of discretion. Questions of law and claims of due process violations in immigration proceedings are reviewed de novo.

Equitable tolling is available when a petitioner is prevented from filing a motion to reopen because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.

The BIA’s denial of equitable tolling based on a finding that the petitioner failed to act with due diligence in discovering his counsel’s ineffectiveness was an error. Where the petitioner is a layperson and non-native English speaker, his failure to comprehend the legal significance of his prior counsel’s errors does not indicate a lack of due diligence. Where each time the petitioner became suspicious of his counsel’s performance, he immediately sought new counsel and informed his new counsel of the facts of his case to the extent that he understood them, the petitioner’s actions constitute due diligence, and the BIA’s finding to the contrary is an abuse of discretion. Accordingly, the petitioner is entitled to equitable tolling of the time limitations, as well as the number limitations, on his motion to reopen.

A non-citizen’s right to due process is violated when counsel’s ineffective assistance renders the proceeding so fundamentally unfair that the alien was prevented from reasonably presenting his case. In order to establish a due process violation, the petitioner must also demonstrate prejudice.

This court has authority to address the merits of a motion to reopen despite the BIA’s failure to do so, particularly where the merits rest on “purely legal claims.”

The petitioner’s was prevented from reasonably presenting his case and thus denied due process because of the ineffectiveness of his former counsels, where the petitioner’s former counsels (1) erroneously advised him to submit his I-130 application but not its approval during the pendency of his asylum appeal before the BIA, (2) caused the petitioner to missed the opportunity to file a motion to reopen within the ninety-day deadline by advising him to instead write a “letter of reconsideration to the EOIR, and (3) filed an untimely motion to reopen and failed to make any equitable tolling argument. These failures prevented the petitioner from effectively presenting to the BIA his approved I-130, the crux of his claim for adjustment of status. The errors of the petitioner’s former counsels therefore denied him due process.

Where the petitioner’s former counsels gave erroneous advice on the proper documents to submit to the BIA, and where the petitioner’s former counsel failed to request equitable tolling of the statute of limitation affecting the outcome of the motion to reopen, their errors were prejudicial. Because the petitioner needs only show that former counsel’s deficient performance may have affected the outcome of the proceedings, this court finds that he has met his burden.

The government’s argument that the petitioner’s failure to depart pursuant to a voluntary departure order rendering him ineligible for adjustment of status for ten years is without merit. This argument is foreclosed by the BIA’s decision In re Diaz-Ruach, 24 I&N Dec. 47 (BIA 2006). Where the petitioner failed to post a departure bond, the departure order is vacated and the petitioner is not barred from seeking adjustment of status. Based on his I-130 approval, the petitioner can show plausible grounds for relief, fulfilling the prejudice requirement.

Where the BIA found that the petitioner has substantially complied with the procedural requirements for making ineffective assistance of counsel claims set forth in Matter of Lozada, 19 I & N Dec 637 (BIA 1988), this court concludes that the petitioner has satisfied the elements necessary to establish a due process violation based on ineffective assistance of counsel. Therefore, petition for review is granted and the case is remanded to the BIA with directions to grant the petitioner’s motion to reopen.

Swe v. Holder, No. 05-74208 (Unpublished) (9th Cir. Feb. 22, 2010).

This court has jurisdiction to review of a decision of the BIA affirming the decision of an IJ finding the petitioner not credible and denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Because the BIA adopted the IJ’s decision as the final agency determination, this court reviews the IJ’s decision directly.

Where the IJ failed to take into account the context of individual statements, to confront the petitioner concerning some alleged inconsistencies and to respond to explanations of alleged inconsistencies, and where the IJ found inconsistencies between the petitioner’s testimony and his own mere speculation and conjecture, the IJ’s finding of the petitioner as incredible based on seven purported inconsistencies in her testimony was not based on substantial evidence.

When substantial evidence does not support an adverse credibility determination, the petitioner is deemed credible. Where the government has conceded that if the petitioner’s testimony was credible, she has established past persecution on account of political opinion, the burden then shifts to the government to demonstrate that there has been a fundamental change in circumstances such that the petitioner no longer has a well-founded fear of persecution. This court therefore grants the petition for review with regard to the asylum claim and remands this matter to the BIA. The petitioner’s claim for withholding of removal and CAT relief are also remanded for reconsideration in light of her credible testimony.

Simonyan v. Holder, No. 07-72713 (Unpublished) (9th Cir. Feb. 22, 2010).

This court has jurisdiction under 8 U.S.C. § 1252 to review the BIA’s order dismissing the petitioner’s appeal from an IJ’s decision denying her application for asylum and withholding of removal. This court reviews for substantial evidence and grants the petition for review and remand.

Substantial evidence does not support the agency’s adverse credibility findings that the petitioner’s testimony was inconsistent with her witness’s testimony with respect to her October 1998 arrest and discrepancies regarding the date she claimed the police arrested her, if the petitioner was not given an opportunity to explain these discrepancies.

Substantial evidence also does not support the BIA’s alternate conclusion that a presumption of a well-founded fear was rebutted solely based on the remarks of one witness that the Pentecostal church is now officially recognized by the Armenian government. Accordingly, this court remands the petitioner’s asylum and withholding of removal claims on an open record. Petition for review is therefore granted and the case is remanded.

Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA 2010).

The BIA reviews de novo the IJ’s determination on a question of law.

The term “crime of domestic violence” means “any crime of violence (as defined in 18 U.S.C. § 16) against a person” committed by, inter alia, a current or former spouse of the person. The term “crime of violence” is defined in 18 U.S.C. § 16 (2006) as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Thus, an offense cannot qualify as a “crime of domestic violence” unless it is also a “crime of violence” as defined by 18 U.S.C. § 16.

Section 243(e)(1) of the California Penal Code punishes a battery committed “against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant’s child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship.” “Battery” is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence upon the person of another.” Under the case law of the United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, battery under section 242 requires neither a force capable of hurting or causing injury nor violence in the usual sense of the term, so it does not qualify categorically as a crime of violence under 18 U.S.C. § 16. Thus, the respondent’s offense is not categorically a crime of domestic violence. This court must therefore employ the modified categorical approach described in Taylor v. United States, 495 U.S. 575 (1990), to determine whether the respondent’s conviction is for a crime of domestic violence.

In the Ninth Circuit, the modified categorical approach only applies when the particular elements of the crime of conviction are broader than the generic crime, and it cannot be applied when the crime of conviction is missing an element of the generic crime altogether. Since “battery” is an element of section 243(e)(1) of the California Penal

Code, the statute under which the respondent was convicted, and it is defined by section 242 of the California Penal Code as “any willful and unlawful use of force or violence,” it is encompassed within the generic crime of domestic violence and is therefore not missing any element of the generic offense.

In applying the modified categorical approach to assess an alien’s conviction, the Immigration Judge and the BIA may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings. It is also proper to consider a comparable judicial record, including the clerk’s minute order prepared by a neutral officer of the court, provided the defendant had the right to examine and challenge its accuracy during the criminal proceedings. The use of such judicially noticeable documents is permitted because they are considered sufficiently conclusive and reliable to establish the facts to which the alien actually pleaded guilty.

While a police report, standing alone, is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement in which the factual basis for the plea was confirmed by the respondent.

The respondent’s argument that the police report should not be considered because it was never admitted into the record of his criminal proceedings or incorporated into the criminal complaint is without merit. Where the plea agreement references the police report as the “factual basis” for the respondent’s plea, and where the plea form contains the handwritten statement “stip to police report as factual basis” and the respondent initialed the statement, it serves as the findings of fact adopted by the defendant upon entering the plea, which is part of the judicial record on which the courts may rely. It was not necessary for the respondent to acknowledge the truth of every statement in the police report or for the judge in the criminal case to have specifically reviewed or referenced the report during the plea proceedings. Also, contrary to the respondent’s argument, it is not necessary that the copy of the police report relied on in the immigration proceedings be obtained from the files of the criminal case. The only requirement is that the police report or reports relied on in the immigration proceedings be incorporated by reference as at least part of the factual basis for the guilty plea. Thus, the Immigration Judge erred in failing to view the police report as part of the record of conviction and to consider its contents in applying the modified categorical analysis. Accordingly, the BIA finds it necessary to remand the record to the IJ for further proceedings. On remand, the IJ should consult the police report to determine whether the DHS has demonstrated that the respondent’s offense is a crime of domestic violence that renders him removable as charged. The DHS’s appeal will be sustained, and the record will be remanded.

Nguyen v. Holder, No. 07-3889 (Unpublished) (8th Cir. Feb. 17, 2010).

Although this court may not review the BIA’s ultimate determination as to whether to grant a good faith marriage waiver, we have jurisdiction to consider what the legal standard is to show a good faith marriage, and to determine whether the alien’s credited evidence meets that standard.

To determine whether the petitioner entered into her marriage in good faith, the central question is whether she intended to establish a life with her former U.S. citizen spouse at the time they were married. This court concludes the credited evidence submitted meets the legal standard for good faith when it includes the following: (1) Testimony from the petitioner that her former U.S. citizen spouse wooed her and she fell in love with him; that their parents had met to discuss marriage; and that after the wedding and honeymoon in Vietnam, she went to live with her mother-in-law, and her former U.S. citizen spouse returned to the United States; that after she came to the United States, she and her former U.S. citizen spouse lived together at her brother’s home, and that her former U.S. citizen spouse left her for another woman; (2) testimony from the petitioner’s brother that he and others had attended the petitioner’s wedding in Vietnam, that he allowed her and her former U.S. citizen spouse to live at his home rent-free because his former brother-in law did not make much money, and that the former brother-in-law had abandoned the petitioner; (3) testimony from the former wife of the uncle who had introduced the petitioner to her former U.S. citizen spouse regarding the couple’s courtship and marriage; (4) documentary evidence included photographs and videos of the couple’s wedding ceremony and wedding banquet in Vietnam, a marriage document from a Catholic church in Vietnam, a marriage certificate issued by the state of Minnesota, a joint tax return, statements from a joint bank account, and a health insurance statement showing joint coverage.

Because the petitioner demonstrated that she entered into her marriage in good faith, she is eligible to be considered for a discretionary good faith marriage waiver under 8 U.S.C. Section 1186a(c)(4). This court therefore remands to the BIA to determine whether to grant the petitioner a waiver under section 1186a(c)(4) and to address the IJ’s findings as to the fraud-based grounds. Accordingly, the petition for review is granted.

Marynenka v. Holder, No. 07-1792 (4th Cir. Jan. 25, 2010).

To establish eligibility for the discretionary grant of asylum under the Immigration and Nationality Act, the applicant has the burden of showing either that she was subjected to past persecution or that she has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Fear of future persecution contains a subjective and an objective component. The subjective component is satisfied by presenting candid, credible, and sincere testimony demonstrating a genuine fear of persecution. The objective element requires the asylum applicant to show, with specific, concrete facts, that a reasonable person in like circumstances would fear persecution. If the applicant establishes past persecution, a rebuttable presumption of a well-founded fear of persecution is also established.

To qualify for withholding of removal, the applicant must establish that if she is removed, there is a clear probability that her life or freedom would be threatened because of her race, religion, nationality, membership in a particular social group, or political opinion. An applicant who has failed to establish the less stringent well-founded fear standard of proof required for asylum relief is necessarily also unable to establish an entitlement to withholding of removal.

To be eligible for protection under CAT, the applicant must show that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The likelihood of torture, however, need not be tied to a protected ground under CAT.

This court reviews the BIA’s administrative findings of fact under the substantial evidence rule, and this court is obliged to treat them as conclusive unless the evidence before the BIA was such that any reasonable adjudicator would have been compelled to conclude to the contrary. This court reviews legal issues de novo. The agency decision that an alien is not eligible for asylum is conclusive unless manifestly contrary to the law and an abuse of discretion. When the BIA adopts the IJ’s decision and includes its own reasons for affirming, this court reviews both decisions.

In considering the petition for review, this court presume that the petitioner testified credibly because neither the IJ nor the BIA made an express adverse credibility determination, and because both the IJ and the BIA rested their decisions on the lack of persuasive corroborating evidence.

An applicant’s credible testimony, standing alone, may be sufficient to sustain her burden of proof without corroboration. However, even for credible testimony, corroboration may be required when it is reasonable to expect such proof and there is no reasonable explanation for its absence. An IJ may not rely on speculation, conjecture, or an otherwise unsupported personal opinion to discredit an applicant’s testimony or her corroborating evidence.

Where the document bears a rectangular seal or stamp that reads "Gomel City Clinic No.
10," and where the document describes in detail the results of a physician’s examination that confirm a brutal rape and notes the date and time of the examination, the IJ had no basis, other than conjecture, for rejecting the document on the ground that it was not written on printed letterhead, particularly when the government offered no reason for the IJ to doubt the legitimacy of the document. The IJ therefore committed legal error in discrediting the medical record showing that on November 4, 2002, the petitioner was treated for sexual assault at a clinic in Gomel.

With respect to the chain of custody, the rules of evidence do not apply strictly in administrative adjudications of immigration cases, and where the IJ offered no other valid reason to doubt the authenticity of the document, the IJ’s rejection of the medical record on the basis that the petitioner failed to establish a chain of custody is therefore a legal error.

Waiting overnight to seek medical attention after a traumatic sexual assault is not implausible; if anything, it is understandable. Even in the United States, when the perpetrator of a rape is a stranger, the crime is not reported to police 54 percent of the time. In addition, of the victims who do not report their rapes to police, only 17 percent seek medical attention. The IJ’s conclusion that the petitioner would not have waited a few hours to seek medical care appears to be based on conjecture or unsupported personal opinion. Therefore, the IJ committed legal error and his offered reasons for discrediting the petitioner’s corroborating evidence are unsupportable as a matter of law.

There is no general rule that evidence offered in corroboration requires independent corroboration. The IJ committed legal error when she discounted the corroborating evidence from a member of the Gomel branch of Zubr since 2001. Where the witness’s statement established that the petitioner was an active Zubr member, and where it confirmed that the witness participated with the petitioner in the July 27, 2002, demonstration in Minsk and saw her being arrested by police officers and taken to their vehicle, the IJ’s rejection of the statement on the basis that there is absolutely no way for her to corroborate the information is a legal error.
The Zubr member’s statement therefore could not be discredited on the ground that it automatically required corroboration.

When the petitioner’s testimony is taken as credible, this court cannot uphold the IJ’s decision based on the stated rationale that she failed to provide persuasive corroborating evidence, where the IJ used legally unsupportable reasons to reject the corroborating medical record that confirms the petitioner’s rape. The IJ also committed legal error in rejecting the Zubr member’s statement under what the IJ appeared to regard as a general rule that corroborating evidence requires further corroboration. In short, the IJ’s reasoning renders her decision manifestly contrary to the law and an abuse of discretion. This court recognizes, of course, that this court’s role is not to weigh the evidence and determine which of the competing views is more compelling. The better course is to vacate the BIA decision and remand the case to that body with instructions that the case be returned to the IJ. The IJ will reconsider the petitioner’s application in light of this opinion. The petition for review is granted. This court vacates the BIA’s decision denying the petitioner’s application for asylum, withholding of removal, and relief under CAT. The case is remanded to the BIA, which will, in turn, remand it to the IJ for reconsideration of the petitioner’s application in light of this opinion.