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.
Thursday, February 25, 2010
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.
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.
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.
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.
Friday, February 19, 2010
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.
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.
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.
Thursday, February 18, 2010
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.
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.
Kellermann v. Holder, No. 08-3927 (6th Cir. Jan. 25, 2010).
This court’s review is limited to the decision of the BIA because it did not adopt the decision and order of the IJ. If, as the BIA held, the petitioner is removable for having committed a CIMT, then this court generally lacks jurisdiction to review his deportation order.
An alien is inadmissible if he has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime. This court generally accords Chevron deference to the BIA’s decisions construing ambiguous statutory terms in the INA, and this court must uphold the BIA’s construction unless it is arbitrary, capricious, or manifestly contrary to the statute.
The exact definition of “moral turpitude” has never been fully settled, but it refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. “Moral turpitude” has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. Any crime which involves intent to defraud as one of its elements is a CIMT. In ascertaining whether a crime is a CIMT, this court must first examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and this court’s analysis ends. However, if the statute contains some offenses which involves moral turpitude and others which do not, it is to be treated as a “divisible” statute, and this court looks to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.
The statutory provision at 18 U.S.C. §1001 criminalizes making a false statement to a government agency, and 18 U.S.C. § 371 criminalizes conspiracy to make a false statement.
As the BIA noted, this court has previously determined that a conviction under 18 U.S.C. § 1001 is a CIMT. In Kabongo v. I.N.S., 837 F.2d 753 (6th Cir. 1988), this court held that convictions for making false statements in violation of § 1001 and obtaining student loan funds by fraud and false statements in violation of 20 U.S.C. § 1097(a) involved moral turpitude. Furthermore, this court has held in Zaitona v. I.N.S., 9 F.3d 432 (6th Cir. 1993), that making a false statement is a CIMT where materiality and knowledge are shown.
Under the “categorical approach,” first articulated by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990), this court must first look to the inherent nature of the crimes as defined by statute and interpreted by the courts and as limited and described by the record of conviction to determine whether the offenses are ones involving moral turpitude for the purposes of the deportation statute. If there is no categorical match, and the court finds that the statute of conviction criminalizes both conduct that does and does not qualify as a CIMT, then the court should apply a more modified approach. Under this analysis, deemed the “modified categorical approach” by some courts, the court conducts a limited examination of documents in the record to determine whether the particular offense for which the alien was convicted constitutes a CIMT.
Where the indictment states that the petitioner “did unlawfully, willfully, and knowingly conspire . . . to knowingly and willfully make false, fictitious, and fraudulent statements or representations concerning a material fact within the jurisdiction of a department or an agency of the United States, and in particular to [the United States Agency for International Development] for the purpose of obtaining grant funds, in violation of Title 18, United States Code, Section 1001,” and “to defraud the United States . . . in violation of Title 18, United States Code, section 371, it is clear from these charges, set forth in the conjunctive, that the petitioner was convicted of conspiring to act fraudulently.
Furthermore, where the indictment states that the petitioner “knowingly and willfully made and caused to be made a false, fictitious, and fraudulent material statement and representation . . . in violation of Title 18, United States Code, Section 1001”, this charge, similarly listed in conjunctive language, also proves the fraudulent aspect of the petitioner’s actions. Thus, this court holds that the BIA correctly dismissed the appeal because the petitioner was removable for having been convicted of a CIMT. This court holds that the BIA properly determined that petitioner’s convictions for making a false, fictitious, or fraudulent statement to a governmental agency and for conspiracy to defraud the United States or commit the offense of making a false, fictitious, or fraudulent statement to a governmental agency constitute CIMT under INA
§ 212(a)(2)(A)(i)(I).
Section 212(c) of the Immigration and Nationality Act, before it was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996), allowed the Attorney General to readmit to the United States an otherwise inadmissible permanent resident alien under certain conditions, but did not allow the Attorney General to admit such an alien if he had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least 5 years.
In place of § 212(c) relief, Congress enacted INA § 240A, which consolidates the relief formerly known as “suspension of deportation,” with provisions of the former § 212(c) to create a new form of relief called “cancellation of removal.” Cancellation of removal allows the Attorney General to cancel removal proceedings for certain resident aliens. Cancellation, like former § 212(c) relief both before and after the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (“AEDPA”) amendments, is not available to aliens whose criminal convictions qualify as aggravated felonies.
In I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that INA § 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The Supreme Court reasoned that because plea agreements involve a quid pro quo between a criminal defendant and the government.
In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous “tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. In Atkinson v. Att’y Gen., 479 F.3d 222 (3d Cir. 2007), the Third Circuit extended the holding of St. Cyr to aliens who, prior to the repeal of § 212(c), were convicted (after trial) of an aggravated felony that would not have rendered them ineligible for § 212(c) relief. The Second, Fifth, Eighth, and Tenth Circuits have also concluded that the repeal of § 212(c) cannot be applied retroactively to aliens whose convictions resulted from a jury trial and not from a plea of guilty. However, the Respondent counters that seven circuit courts (First, Second, Fourth, Fifth, Seventh, Ninth, and Eleventh) have held that aliens who proceeded to trial are not entitled to apply for relief under former § 212(c) after its repeal.
In Ferguson v. Att’y Gen., 563 F.3d 1254 (11th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3107 (Aug. 28, 2009) (No. 09-263), the Eleventh Circuit addressed the question whether IIRIRA’s repeal of the INA’s § 212(c) waiver provision has an impermissible retroactive effect on aliens, like Sandra Ferguson, who were convicted of deportable criminal offenses before IIRIRA’s effective date? The court denied the petition for relief and held that reliance is a component of the retroactivity analysis as it applies to aliens, deportable for criminal offenses, who wish to show that IIRIRA’s repeal of § 212(c) has an impermissible retroactive effect. The court held that where the petitioner did not plead guilty but was convicted by a jury, and where aside from her decision to go to trial, the petitioner pointed to no other “transactions” or “considerations already past” on which she relied, the Eleventh Circuit, joining the majority of circuits, declined to extend St. Cyr to aliens who were convicted after a trial because such aliens’ decisions to go to trial do not satisfy St. Cyr’s reliance requirement. Therefore, § 212(c) relief is not available to such aliens.
Applying the reasoning in Ferguson, this court concludes that IIRIRA’s repeal of § 212(c) does not have an impermissible retroactive effect on the petitioner because, in choosing to proceed to trial, he did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. This court declines to adopt the Third Circuit’s approach. Rather, this court finds the reasoning of the majority of circuits persuasive and now joins them in declining to extend
St. Cyr, to aliens, like the petitioner, who, prior to the repeal of § 212(c), were convicted after a trial. Therefore, this court finds that the petitioner is ineligible to seek a waiver of inadmissibility under former INA § 212(c) because he was convicted by a jury.
An “aggravated felony” includes an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000. The petitioner’s argument that his conviction is not an aggravated felony because the amount of loss was not an element of the crime and, as a result, the jury did not make a finding on the amount of loss is without merit given the Supreme Court’s decision in Nijhawan v. Holder, 129 S.Ct. 2294 (2009). In Nijhawan, the Supreme Court held the $10,000 threshold in 8 U.S.C. § 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime. This court holds that the petitioner’s convictions under 18 U.S.C. §§ 371 and 1001 constituted aggravated felonies as defined at INA § 101(a)(43)(M)(i), rendering the petitioner ineligible for cancellation of removal. The petition for review is therefore denied.
An alien is inadmissible if he has been convicted of a CIMT, or an attempt or conspiracy to commit such a crime. This court generally accords Chevron deference to the BIA’s decisions construing ambiguous statutory terms in the INA, and this court must uphold the BIA’s construction unless it is arbitrary, capricious, or manifestly contrary to the statute.
The exact definition of “moral turpitude” has never been fully settled, but it refers generally to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. “Moral turpitude” has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. Any crime which involves intent to defraud as one of its elements is a CIMT. In ascertaining whether a crime is a CIMT, this court must first examine the statute itself to determine whether the inherent nature of the crime involves moral turpitude. If the statute defines a crime in which moral turpitude necessarily inheres, then the conviction is for a crime involving moral turpitude for immigration purposes, and this court’s analysis ends. However, if the statute contains some offenses which involves moral turpitude and others which do not, it is to be treated as a “divisible” statute, and this court looks to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense of which the respondent was convicted.
The statutory provision at 18 U.S.C. §1001 criminalizes making a false statement to a government agency, and 18 U.S.C. § 371 criminalizes conspiracy to make a false statement.
As the BIA noted, this court has previously determined that a conviction under 18 U.S.C. § 1001 is a CIMT. In Kabongo v. I.N.S., 837 F.2d 753 (6th Cir. 1988), this court held that convictions for making false statements in violation of § 1001 and obtaining student loan funds by fraud and false statements in violation of 20 U.S.C. § 1097(a) involved moral turpitude. Furthermore, this court has held in Zaitona v. I.N.S., 9 F.3d 432 (6th Cir. 1993), that making a false statement is a CIMT where materiality and knowledge are shown.
Under the “categorical approach,” first articulated by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990), this court must first look to the inherent nature of the crimes as defined by statute and interpreted by the courts and as limited and described by the record of conviction to determine whether the offenses are ones involving moral turpitude for the purposes of the deportation statute. If there is no categorical match, and the court finds that the statute of conviction criminalizes both conduct that does and does not qualify as a CIMT, then the court should apply a more modified approach. Under this analysis, deemed the “modified categorical approach” by some courts, the court conducts a limited examination of documents in the record to determine whether the particular offense for which the alien was convicted constitutes a CIMT.
Where the indictment states that the petitioner “did unlawfully, willfully, and knowingly conspire . . . to knowingly and willfully make false, fictitious, and fraudulent statements or representations concerning a material fact within the jurisdiction of a department or an agency of the United States, and in particular to [the United States Agency for International Development] for the purpose of obtaining grant funds, in violation of Title 18, United States Code, Section 1001,” and “to defraud the United States . . . in violation of Title 18, United States Code, section 371, it is clear from these charges, set forth in the conjunctive, that the petitioner was convicted of conspiring to act fraudulently.
Furthermore, where the indictment states that the petitioner “knowingly and willfully made and caused to be made a false, fictitious, and fraudulent material statement and representation . . . in violation of Title 18, United States Code, Section 1001”, this charge, similarly listed in conjunctive language, also proves the fraudulent aspect of the petitioner’s actions. Thus, this court holds that the BIA correctly dismissed the appeal because the petitioner was removable for having been convicted of a CIMT. This court holds that the BIA properly determined that petitioner’s convictions for making a false, fictitious, or fraudulent statement to a governmental agency and for conspiracy to defraud the United States or commit the offense of making a false, fictitious, or fraudulent statement to a governmental agency constitute CIMT under INA
§ 212(a)(2)(A)(i)(I).
Section 212(c) of the Immigration and Nationality Act, before it was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996), allowed the Attorney General to readmit to the United States an otherwise inadmissible permanent resident alien under certain conditions, but did not allow the Attorney General to admit such an alien if he had been convicted of one or more aggravated felonies and had served a term of imprisonment of at least 5 years.
In place of § 212(c) relief, Congress enacted INA § 240A, which consolidates the relief formerly known as “suspension of deportation,” with provisions of the former § 212(c) to create a new form of relief called “cancellation of removal.” Cancellation of removal allows the Attorney General to cancel removal proceedings for certain resident aliens. Cancellation, like former § 212(c) relief both before and after the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996) (“AEDPA”) amendments, is not available to aliens whose criminal convictions qualify as aggravated felonies.
In I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that INA § 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The Supreme Court reasoned that because plea agreements involve a quid pro quo between a criminal defendant and the government.
In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous “tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. In Atkinson v. Att’y Gen., 479 F.3d 222 (3d Cir. 2007), the Third Circuit extended the holding of St. Cyr to aliens who, prior to the repeal of § 212(c), were convicted (after trial) of an aggravated felony that would not have rendered them ineligible for § 212(c) relief. The Second, Fifth, Eighth, and Tenth Circuits have also concluded that the repeal of § 212(c) cannot be applied retroactively to aliens whose convictions resulted from a jury trial and not from a plea of guilty. However, the Respondent counters that seven circuit courts (First, Second, Fourth, Fifth, Seventh, Ninth, and Eleventh) have held that aliens who proceeded to trial are not entitled to apply for relief under former § 212(c) after its repeal.
In Ferguson v. Att’y Gen., 563 F.3d 1254 (11th Cir. 2009), petition for cert. filed, 78 U.S.L.W. 3107 (Aug. 28, 2009) (No. 09-263), the Eleventh Circuit addressed the question whether IIRIRA’s repeal of the INA’s § 212(c) waiver provision has an impermissible retroactive effect on aliens, like Sandra Ferguson, who were convicted of deportable criminal offenses before IIRIRA’s effective date? The court denied the petition for relief and held that reliance is a component of the retroactivity analysis as it applies to aliens, deportable for criminal offenses, who wish to show that IIRIRA’s repeal of § 212(c) has an impermissible retroactive effect. The court held that where the petitioner did not plead guilty but was convicted by a jury, and where aside from her decision to go to trial, the petitioner pointed to no other “transactions” or “considerations already past” on which she relied, the Eleventh Circuit, joining the majority of circuits, declined to extend St. Cyr to aliens who were convicted after a trial because such aliens’ decisions to go to trial do not satisfy St. Cyr’s reliance requirement. Therefore, § 212(c) relief is not available to such aliens.
Applying the reasoning in Ferguson, this court concludes that IIRIRA’s repeal of § 212(c) does not have an impermissible retroactive effect on the petitioner because, in choosing to proceed to trial, he did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. This court declines to adopt the Third Circuit’s approach. Rather, this court finds the reasoning of the majority of circuits persuasive and now joins them in declining to extend
St. Cyr, to aliens, like the petitioner, who, prior to the repeal of § 212(c), were convicted after a trial. Therefore, this court finds that the petitioner is ineligible to seek a waiver of inadmissibility under former INA § 212(c) because he was convicted by a jury.
An “aggravated felony” includes an offense that involves fraud or deceit in which the loss to the victims exceeds $10,000. The petitioner’s argument that his conviction is not an aggravated felony because the amount of loss was not an element of the crime and, as a result, the jury did not make a finding on the amount of loss is without merit given the Supreme Court’s decision in Nijhawan v. Holder, 129 S.Ct. 2294 (2009). In Nijhawan, the Supreme Court held the $10,000 threshold in 8 U.S.C. § 1101(a)(43)(M)(i) refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion, rather than to an element of the fraud or deceit crime. This court holds that the petitioner’s convictions under 18 U.S.C. §§ 371 and 1001 constituted aggravated felonies as defined at INA § 101(a)(43)(M)(i), rendering the petitioner ineligible for cancellation of removal. The petition for review is therefore denied.
Huang v. Holder, 08-5785-ag (2d Cir. Jan. 12, 2010).
This court has jurisdiction to review final orders of removal. When the BIA does not adopt the decision of the IJ to any extent, this court reviews only the decision of the BIA.
Where the BIA issued a brief opinion addressing only the issue of whether the insertion of an IUD constitutes persecution, and where the BIA left intact the remainder of its conclusions in its original decision, this court reviews the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. Further, this court reviews the agency’s factual findings under the substantial evidence standard, but reviews de novo questions of law and the application of law to undisputed fact.
The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as one who has suffered persecution, or has a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added to the definition of a “refugee” a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program (such a person is deemed to have been persecuted on account of political opinion and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance is deemed to have a well founded fear of persecution on account of political opinion).
In re M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008), the BIA held that the amendment to the INA creates two categories of aliens who are deemed refugees per se, in that their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof: (1) those who have been forced to abort a pregnancy, and (2) those who have been forced to undergo involuntary sterilization. The BIA concluded that neither category applies to a forced IUD insertion, as being forced to use an IUD does not amount to being forced to abort a pregnancy or being sterilized. According to the BIA, IUD use should not be treated as the equivalent of sterilization because “to sterilize” means “to make sterile” and “sterile” means “incapable of sexual reproduction.” This definition implies that sterilization is permanent and leaves one permanently incapable of having children. Unlike sterilization, IUD use is a temporary measure meant to provide for birth planning and not to remove all possibility of future birth opportunities.
The BIA also held that, beyond the two categories of those who are deemed refugees per se, the amendment includes in the definition of a refugee one who establishes that (1) she otherwise resisted China’s family planning policy, (2) she was persecuted or has a well-founded fear of future persecution, and (3) the persecution was or would be because of her resistance to the family planning policy. In terms of “other resistance to a coercive population control program,” the BIA held that removing an IUD or failing to attend a mandatory gynecological appointment constitutes such resistance because it thwarts the goals of the family planning policy. As to persecution, the BIA held that a forced IUD insertion, without aggravating circumstances, does not constitute persecution. Neither does reinsertion of an IUD after the removal of an IUD (without aggravating circumstances), or regularly required gynecological exams. Finally, even if a forced IUD insertion is accompanied by aggravating circumstances sufficient to rise to the level of persecution, under the third prong of the analysis a petitioner must still establish that the persecution is because of her resistance to China’s family planning policy. In terms of the required nexus, the BIA held that an IUD that is reinserted not to punish the alien’s resistance to the family planning policy, but merely because reinsertion is standard procedure in China, even if an IUD falls out on its own, is not sufficient to establish the required nexus.
When reviewing the BIA’s interpretation of the INA, this court employs the familiar two-step inquiry set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under this analysis, this court first asks whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. To uphold the agency’s construction, this court needs not conclude that the agency construction was the only one it permissibly could have adopted or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Instead, this court will defer to the agency’s interpretation as long as that interpretation is reasonable. In other words, even where this court thinks that an alternative version is preferable, binding precedent dictates that this court is without authority to impose it if the agency’s ruling is permissible. This court thus rules within narrow parameters.
Congress has not determined whether a person who has been forced to have an IUD inserted is a refugee, whether an IUD insertion constitutes sterilization, or whether a forced IUD insertion constitutes persecution. Therefore, this court proceeds to step two of the Chevron analysis. Under step two, this court concludes that the BIA’s conclusion that an involuntary IUD insertion is not an involuntary sterilization is permissible. The BIA’s reasoning that sterilization makes one permanently incapable of having children, whereas an IUD is a temporary measure, is reasonable. This court therefore concludes that the BIA’s interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference.
This court needs not consider the petitioner’s challenge to the BIA’s determination that involuntary IUD insertion, or involuntary IUD insertion plus mandatory gynecological check-ups, does not constitute persecution because the petitioner did not challenge the BIA’s conclusion that she failed to establish that the insertion of the IUD was or would be on account of her resistance to China’s family planning policy. The petitioner also did not challenge the BIA’s determination that the persecution at issue must be the result of resistance to the family planning policy in order to fall under the terms of statute. Therefore, any such challenge is deemed waived.
Where the BIA issued a brief opinion addressing only the issue of whether the insertion of an IUD constitutes persecution, and where the BIA left intact the remainder of its conclusions in its original decision, this court reviews the BIA’s original opinion as modified by its subsequent decision, which constitutes the agency’s final order of removal. Further, this court reviews the agency’s factual findings under the substantial evidence standard, but reviews de novo questions of law and the application of law to undisputed fact.
The Attorney General may grant asylum to an alien if he determines that the alien is a “refugee.” Section 101(a)(42) of the Immigration and Nationality Act defines a refugee as one who has suffered persecution, or has a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added to the definition of a “refugee” a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program (such a person is deemed to have been persecuted on account of political opinion and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance is deemed to have a well founded fear of persecution on account of political opinion).
In re M-F-W & L-G, 24 I. & N. Dec. 633 (BIA 2008), the BIA held that the amendment to the INA creates two categories of aliens who are deemed refugees per se, in that their political opinion exists de jure rather than as a matter of fact on which the applicant bears the burden of proof: (1) those who have been forced to abort a pregnancy, and (2) those who have been forced to undergo involuntary sterilization. The BIA concluded that neither category applies to a forced IUD insertion, as being forced to use an IUD does not amount to being forced to abort a pregnancy or being sterilized. According to the BIA, IUD use should not be treated as the equivalent of sterilization because “to sterilize” means “to make sterile” and “sterile” means “incapable of sexual reproduction.” This definition implies that sterilization is permanent and leaves one permanently incapable of having children. Unlike sterilization, IUD use is a temporary measure meant to provide for birth planning and not to remove all possibility of future birth opportunities.
The BIA also held that, beyond the two categories of those who are deemed refugees per se, the amendment includes in the definition of a refugee one who establishes that (1) she otherwise resisted China’s family planning policy, (2) she was persecuted or has a well-founded fear of future persecution, and (3) the persecution was or would be because of her resistance to the family planning policy. In terms of “other resistance to a coercive population control program,” the BIA held that removing an IUD or failing to attend a mandatory gynecological appointment constitutes such resistance because it thwarts the goals of the family planning policy. As to persecution, the BIA held that a forced IUD insertion, without aggravating circumstances, does not constitute persecution. Neither does reinsertion of an IUD after the removal of an IUD (without aggravating circumstances), or regularly required gynecological exams. Finally, even if a forced IUD insertion is accompanied by aggravating circumstances sufficient to rise to the level of persecution, under the third prong of the analysis a petitioner must still establish that the persecution is because of her resistance to China’s family planning policy. In terms of the required nexus, the BIA held that an IUD that is reinserted not to punish the alien’s resistance to the family planning policy, but merely because reinsertion is standard procedure in China, even if an IUD falls out on its own, is not sufficient to establish the required nexus.
When reviewing the BIA’s interpretation of the INA, this court employs the familiar two-step inquiry set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under this analysis, this court first asks whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. To uphold the agency’s construction, this court needs not conclude that the agency construction was the only one it permissibly could have adopted or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Instead, this court will defer to the agency’s interpretation as long as that interpretation is reasonable. In other words, even where this court thinks that an alternative version is preferable, binding precedent dictates that this court is without authority to impose it if the agency’s ruling is permissible. This court thus rules within narrow parameters.
Congress has not determined whether a person who has been forced to have an IUD inserted is a refugee, whether an IUD insertion constitutes sterilization, or whether a forced IUD insertion constitutes persecution. Therefore, this court proceeds to step two of the Chevron analysis. Under step two, this court concludes that the BIA’s conclusion that an involuntary IUD insertion is not an involuntary sterilization is permissible. The BIA’s reasoning that sterilization makes one permanently incapable of having children, whereas an IUD is a temporary measure, is reasonable. This court therefore concludes that the BIA’s interpretation that a forced IUD insertion is not a per se ground for granting asylum is entitled to deference.
This court needs not consider the petitioner’s challenge to the BIA’s determination that involuntary IUD insertion, or involuntary IUD insertion plus mandatory gynecological check-ups, does not constitute persecution because the petitioner did not challenge the BIA’s conclusion that she failed to establish that the insertion of the IUD was or would be on account of her resistance to China’s family planning policy. The petitioner also did not challenge the BIA’s determination that the persecution at issue must be the result of resistance to the family planning policy in order to fall under the terms of statute. Therefore, any such challenge is deemed waived.
Wednesday, February 3, 2010
Matter of Morales, 25 I&N Dec. 186 (BIA 2010).
A stepparent who qualifies as a “parent” under INA Section 101(b)(2), 8 U.S.C. § 1101(b)(2) (2006), at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under INA Section 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D) (2006).
Under INA Section 101(b)(2), the term “parent” means a parent “only where the relationship exists by reason of any of the circumstances” set forth in INA Section
101(b)(1). Section 101(b)(1) of the Act defines a “child” as “an unmarried person under twenty-one years of age.” This definition includes a stepchild, “provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” In the context of adjudicating visa petitions, the BIA has long held that once the required steprelationship has been established, a stepparent remains a parent, even if the “child” has married or is over 21 years of age, provided the marriage creating the steprelationship continues to exist. Furthermore, the BIA has followed this reasoning for purposes of determining hardship to family members in the context of considering eligibility for discretionary relief. Therefore, in accord with the BIA’s prior precedents, this Board concludes that a stepfather who qualifies as a “parent” under section 101(b)(2) of the Act at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act.
Where at the time of the respondent’s hearing on July 14, 2008 his stepfather had been married to his mother for over 20 years, and where the respondent was born on November 7, 1972, the respondent would have been, at most, 15 years old when his stepfather became his parent. Consequently, the required steprelationship was validly created pursuant to law because it was established prior to the time the respondent reached the age of 18 years. Accordingly, the respondent’s stepfather should have been given full consideration as a qualifying relative in evaluating the hardship in this case. This Board therefore finds it appropriate to remand the record for the IJ to reevaluate his findings concerning the hardship required for cancellation of the respondent’s removal under section 240A(b)(1)(D) of the Act. Accordingly, the appeal is sustained.
Under INA Section 101(b)(2), the term “parent” means a parent “only where the relationship exists by reason of any of the circumstances” set forth in INA Section
101(b)(1). Section 101(b)(1) of the Act defines a “child” as “an unmarried person under twenty-one years of age.” This definition includes a stepchild, “provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” In the context of adjudicating visa petitions, the BIA has long held that once the required steprelationship has been established, a stepparent remains a parent, even if the “child” has married or is over 21 years of age, provided the marriage creating the steprelationship continues to exist. Furthermore, the BIA has followed this reasoning for purposes of determining hardship to family members in the context of considering eligibility for discretionary relief. Therefore, in accord with the BIA’s prior precedents, this Board concludes that a stepfather who qualifies as a “parent” under section 101(b)(2) of the Act at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(1)(D) of the Act.
Where at the time of the respondent’s hearing on July 14, 2008 his stepfather had been married to his mother for over 20 years, and where the respondent was born on November 7, 1972, the respondent would have been, at most, 15 years old when his stepfather became his parent. Consequently, the required steprelationship was validly created pursuant to law because it was established prior to the time the respondent reached the age of 18 years. Accordingly, the respondent’s stepfather should have been given full consideration as a qualifying relative in evaluating the hardship in this case. This Board therefore finds it appropriate to remand the record for the IJ to reevaluate his findings concerning the hardship required for cancellation of the respondent’s removal under section 240A(b)(1)(D) of the Act. Accordingly, the appeal is sustained.
Azize v. BCIS, et al., 05-4315-ag (2d Cir. Feb. 1, 2010).
Where an INS officer terminated the petitioner’s naturalization proceeding because he did not surrender his green card, termination on that basis is improper. A failure to surrender a green card is not a basis to terminate a naturalization proceeding, much less to deny the applicant the opportunity to take the oath of citizenship and thereby become a citizen, but is at most only a bar to receiving from a court clerk the formal certificate of naturalization. And even this bar is not absolute, since the District Director may waive the surrender requirement.
The INS officer should not have terminated the naturalization proceeding for failure to surrender the green card, but should have completed all the steps in the process, except for notifying the court clerk after naturalization had occurred that the card had been surrendered. These steps include: the applicant swears to or affirms the application, the INS officer signs the application, the applicant files a petition for naturalization (Form N-405) with a district court, and an INS employee recommends for or against granting the petition and notifies the applicant of the date and place of the final hearing, see id. § 335.13.
Where the naturalization applicant stated in his first application in 1986 that he had filed his last (1986) tax return, and where an INS officer on the applicant’s second and subsequent naturalization application put in the curious notation of “87-87” after the words “never filed taxes,” this court remands to the District Court to make the factual determinations of whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether the petitioner would have proceeded to the point in the process where he would have become eligible to take the oath of allegiance. On remand, the District Court should also address the legal issues, including the nature of the relief to which the petitioner might now be entitled, both with respect to his quest for naturalization and his effort to resist removal. Since only this Court has jurisdiction to consider the merits of the challenge to the removal order, the District Court is requested to conduct appropriate fact-finding, resolve whatever legal issues appear to be within its jurisdiction, and, if it believes any relief from removal is warranted, recommend, in the capacity of a special master, such relief to this Court. This Court appreciates that the Government has presented substantial procedural and substantive arguments against any relief for the petitioner. Nevertheless, this court accepts the Government’s invitation to determine whether a remand is “appropriate,” a characterization this court believes it may make without adjudicating at this point any of the Government’s legal arguments. The equities that the petitioner has asserted persuade this court to exercise the broad authority set forth in 18 U.S.C. § 2106, and, in light of the Government’s decision not to oppose a remand, to determine that such a remand is “appropriate” under the circumstances of this case. Accordingly, this case is remanded to the District Court for further proceedings not inconsistent with this opinion. From any final order of the District Court, either party may restore our jurisdiction by prompt notice to the Clerk of this Court, in which event the case will be returned to this panel.
The INS officer should not have terminated the naturalization proceeding for failure to surrender the green card, but should have completed all the steps in the process, except for notifying the court clerk after naturalization had occurred that the card had been surrendered. These steps include: the applicant swears to or affirms the application, the INS officer signs the application, the applicant files a petition for naturalization (Form N-405) with a district court, and an INS employee recommends for or against granting the petition and notifies the applicant of the date and place of the final hearing, see id. § 335.13.
Where the naturalization applicant stated in his first application in 1986 that he had filed his last (1986) tax return, and where an INS officer on the applicant’s second and subsequent naturalization application put in the curious notation of “87-87” after the words “never filed taxes,” this court remands to the District Court to make the factual determinations of whether his first naturalization proceeding was terminated for failure to surrender his green card, and if a premature termination occurred, whether the petitioner would have proceeded to the point in the process where he would have become eligible to take the oath of allegiance. On remand, the District Court should also address the legal issues, including the nature of the relief to which the petitioner might now be entitled, both with respect to his quest for naturalization and his effort to resist removal. Since only this Court has jurisdiction to consider the merits of the challenge to the removal order, the District Court is requested to conduct appropriate fact-finding, resolve whatever legal issues appear to be within its jurisdiction, and, if it believes any relief from removal is warranted, recommend, in the capacity of a special master, such relief to this Court. This Court appreciates that the Government has presented substantial procedural and substantive arguments against any relief for the petitioner. Nevertheless, this court accepts the Government’s invitation to determine whether a remand is “appropriate,” a characterization this court believes it may make without adjudicating at this point any of the Government’s legal arguments. The equities that the petitioner has asserted persuade this court to exercise the broad authority set forth in 18 U.S.C. § 2106, and, in light of the Government’s decision not to oppose a remand, to determine that such a remand is “appropriate” under the circumstances of this case. Accordingly, this case is remanded to the District Court for further proceedings not inconsistent with this opinion. From any final order of the District Court, either party may restore our jurisdiction by prompt notice to the Clerk of this Court, in which event the case will be returned to this panel.
Monday, February 1, 2010
In Memoriam: Benjamin Gim
On Monday I attended the memorial service of Mr. Benjamin Gim. I met Mr. Gim when I was placed as an Intern at his law office in Spring 1996. He was tall for a Chinese and carried himself with the manner of an elegant gentleman. He used a dicta phone to compose his legal briefs and letters, and the staff who he affectionately called "his girls" would typed it up for him. Mr. Gim was a well-known and well-respected figure in the New York Chinese community and he was a father figure to many.
During my internship at his office, Mr. Gim was very kind, patient and generous to me. He allowed me to participate in strategy sessions, draft appellate briefs and attend interviews and hearings. He spoke to me about his days as a law student and young attorney, and inspired me to enter into the practice of immigration law. After I graduated from law school, I went back to see him a couple of times. Soon, I was busy with my work and, a few years later, I learned that he retired.
It is with tremendous sadness that I received the news of his passing. Good-bye Mr. Gim.
The following is the announcement by the American Immigration Lawyers Association (AILA) posted on January 26, 2010: http://www.aila.org/content/default.aspx?docid=31090
Benjamin Gim: A Great Life Remembered
The accomplished and remarkable life of noted immigration lawyer and human rights advocate, Benjamin Gim, ended serenely on January 16, 2010. He was 87. Ben passed in his home with his loving wife, Cindy, at his bedside. Ben was a generous friend, a passionate advocate, a world traveler, and a sophisticated, yet understated gentleman.
Born to Chinese immigrant parents, Y. Henry and Louise Gim, on September 22,1922. Ben spent his early childhood in Mackay, Idaho. The family moved to Salt Lake City at the onset of the Depression in 1929. Both of Ben's parents died before Ben reached teen age. Ben's older sister, Helen, kept the family of four siblings together through the Depression years.
Ben graduated from West High School in Salt Lake City in 1940 and attended the University of Utah, where he was a star debater. He left college to serve for three years in the United States Army in the European theater during World War II.
After the War, Ben enrolled in the University of Utah Law School. Whether apocryphal or not, Ben loved to tell the story of Dean of the University of Utah Law School advising Ben, after he had completed his first year with high marks, that Ben "did not have a Chinaman's chance" of practicing law successfully in Utah. Heeding this advice, Ben transferred to Columbia Law School in New York, graduating in 1949, with support of the GI Bill. Ben was always grateful to Eleanor Roosevelt.
During his studies at Columbia, he was one of only two Asian students. When Ben graduated from law school, there were virtually no job opportunities for Asians in New York law firms. He only knew of two other Asian lawyers practicing in New York City at that time.
After several interviews, a partner in a "white shoe" Wall Street firm told Ben that no firm would hire a Chinese lawyer. Thus, Ben took a job with the Treasury Department in the Bureau of Narcotics. He began his legal career as the first Assistant Attorney General for the State of New York of Asian ancestry. He then set up his own firm, Gim & Wong and practiced immigration law on Park Row in Chinatown, New York, for nearly 50 years. He did not set out to be an immigration lawyer, but that was the kind of lawyer the residents of Chinatown needed.
In 1957, Ben was the first Asian American to argue a case before the United States Supreme Court. In 1990, the New York Law Journal published a profile of Ben and that case, which involved three Chinese kids claiming to be the children of a Chinese American man, who were kept on Ellis Island and threatened with deportation on the basis of discriminatory and technically flawed blood tests. During his career Ben argued a number of important immigration cases before the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit.
He was an immigration law lecturer at Columbia University Law School, the Practicing Law Institute, the Federal Bar Association and the State Bar Association of New York. He served as president of the American Immigration Lawyers Association in the mid-1970s, the first Asian American to do so. Throughout his career, Ben gave generously of his time as pro bono advocate for struggling immigrants and as a mentor for other immigration lawyers.
Ben was frequently quoted on immigration law issues in major news and legal publications, including the New York Times and Time Magazine.
Aside from his law practice, Ben made many contributions to the Asian American community, serving as a founding board member of the Asian American Legal Defense & Education Fund and Chair of the American Council for Nationalities Services.
Appointed by Mayor David Dinkins, Ben served for on the Conflicts of Interest Board of New York City between 1990 and 1994.
In recognition of his many legal achievements, Ben was identified by the National Law Journal as one of the 20 best immigration lawyers in the United States. He was honored by numerous organizations, including the American Immigration Lawyers Association, the Asian American Legal Defense & Education Fund, the National Law Association, the Organization of Chinese Americans, the American College of Trial Lawyers and the Asian Pacific American Bar Association. The State of Texas made Ben and Honorary Texas Citizen.
In honoring Ben, the American Immigration Law Foundation, said he was "a pioneer in his field, … a true role model. Ben's devotion to the cause has brought honor and respect to the immigrant experience in American. He will forever be an inspiration to us all." In awarding him the Wiley A. Branton Civil Rights Award, the National Bar Association, said that Ben was "on the cutting edge" of social and civil justice.
Ben married Alberta Quan in 1952. They had one daughter, Karen Gim. Ben and Alberta divorced. In 1986, Ben married Cindy Fukui Gim.
Although Ben left Utah for New York in late 1940s, he frequently returned to Utah to visit and ski. He was avid and elegant skier.
Ben is survived by his wife Cindy, his daughter Karen, his daughter Jennifer Fukui, his brother Wever, his sister Betty, his brother-in-law Jun Kurumada, and numerous nephews and nieces. His parents, his sister Helen, and his first wife Alberta, preceded Ben in death.
Ben will be interned in Utah this spring. A memorial service to celebrate Ben's accomplished life will be held at 2:00 pm on Monday, February 1st at MOCA, the Museum of Chinese in America at 215 Centre Street, New York NY 10013. In lieu of flowers, contributions should be made to the museum.
During my internship at his office, Mr. Gim was very kind, patient and generous to me. He allowed me to participate in strategy sessions, draft appellate briefs and attend interviews and hearings. He spoke to me about his days as a law student and young attorney, and inspired me to enter into the practice of immigration law. After I graduated from law school, I went back to see him a couple of times. Soon, I was busy with my work and, a few years later, I learned that he retired.
It is with tremendous sadness that I received the news of his passing. Good-bye Mr. Gim.
The following is the announcement by the American Immigration Lawyers Association (AILA) posted on January 26, 2010: http://www.aila.org/content/default.aspx?docid=31090
Benjamin Gim: A Great Life Remembered
The accomplished and remarkable life of noted immigration lawyer and human rights advocate, Benjamin Gim, ended serenely on January 16, 2010. He was 87. Ben passed in his home with his loving wife, Cindy, at his bedside. Ben was a generous friend, a passionate advocate, a world traveler, and a sophisticated, yet understated gentleman.
Born to Chinese immigrant parents, Y. Henry and Louise Gim, on September 22,1922. Ben spent his early childhood in Mackay, Idaho. The family moved to Salt Lake City at the onset of the Depression in 1929. Both of Ben's parents died before Ben reached teen age. Ben's older sister, Helen, kept the family of four siblings together through the Depression years.
Ben graduated from West High School in Salt Lake City in 1940 and attended the University of Utah, where he was a star debater. He left college to serve for three years in the United States Army in the European theater during World War II.
After the War, Ben enrolled in the University of Utah Law School. Whether apocryphal or not, Ben loved to tell the story of Dean of the University of Utah Law School advising Ben, after he had completed his first year with high marks, that Ben "did not have a Chinaman's chance" of practicing law successfully in Utah. Heeding this advice, Ben transferred to Columbia Law School in New York, graduating in 1949, with support of the GI Bill. Ben was always grateful to Eleanor Roosevelt.
During his studies at Columbia, he was one of only two Asian students. When Ben graduated from law school, there were virtually no job opportunities for Asians in New York law firms. He only knew of two other Asian lawyers practicing in New York City at that time.
After several interviews, a partner in a "white shoe" Wall Street firm told Ben that no firm would hire a Chinese lawyer. Thus, Ben took a job with the Treasury Department in the Bureau of Narcotics. He began his legal career as the first Assistant Attorney General for the State of New York of Asian ancestry. He then set up his own firm, Gim & Wong and practiced immigration law on Park Row in Chinatown, New York, for nearly 50 years. He did not set out to be an immigration lawyer, but that was the kind of lawyer the residents of Chinatown needed.
In 1957, Ben was the first Asian American to argue a case before the United States Supreme Court. In 1990, the New York Law Journal published a profile of Ben and that case, which involved three Chinese kids claiming to be the children of a Chinese American man, who were kept on Ellis Island and threatened with deportation on the basis of discriminatory and technically flawed blood tests. During his career Ben argued a number of important immigration cases before the U.S. Supreme Court and the U.S. Court of Appeals for the Second Circuit.
He was an immigration law lecturer at Columbia University Law School, the Practicing Law Institute, the Federal Bar Association and the State Bar Association of New York. He served as president of the American Immigration Lawyers Association in the mid-1970s, the first Asian American to do so. Throughout his career, Ben gave generously of his time as pro bono advocate for struggling immigrants and as a mentor for other immigration lawyers.
Ben was frequently quoted on immigration law issues in major news and legal publications, including the New York Times and Time Magazine.
Aside from his law practice, Ben made many contributions to the Asian American community, serving as a founding board member of the Asian American Legal Defense & Education Fund and Chair of the American Council for Nationalities Services.
Appointed by Mayor David Dinkins, Ben served for on the Conflicts of Interest Board of New York City between 1990 and 1994.
In recognition of his many legal achievements, Ben was identified by the National Law Journal as one of the 20 best immigration lawyers in the United States. He was honored by numerous organizations, including the American Immigration Lawyers Association, the Asian American Legal Defense & Education Fund, the National Law Association, the Organization of Chinese Americans, the American College of Trial Lawyers and the Asian Pacific American Bar Association. The State of Texas made Ben and Honorary Texas Citizen.
In honoring Ben, the American Immigration Law Foundation, said he was "a pioneer in his field, … a true role model. Ben's devotion to the cause has brought honor and respect to the immigrant experience in American. He will forever be an inspiration to us all." In awarding him the Wiley A. Branton Civil Rights Award, the National Bar Association, said that Ben was "on the cutting edge" of social and civil justice.
Ben married Alberta Quan in 1952. They had one daughter, Karen Gim. Ben and Alberta divorced. In 1986, Ben married Cindy Fukui Gim.
Although Ben left Utah for New York in late 1940s, he frequently returned to Utah to visit and ski. He was avid and elegant skier.
Ben is survived by his wife Cindy, his daughter Karen, his daughter Jennifer Fukui, his brother Wever, his sister Betty, his brother-in-law Jun Kurumada, and numerous nephews and nieces. His parents, his sister Helen, and his first wife Alberta, preceded Ben in death.
Ben will be interned in Utah this spring. A memorial service to celebrate Ben's accomplished life will be held at 2:00 pm on Monday, February 1st at MOCA, the Museum of Chinese in America at 215 Centre Street, New York NY 10013. In lieu of flowers, contributions should be made to the museum.
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