Asylum, China, Forced Sterilization: Chen v. Holder CA7

Posted on May 9, 2013 by Mike Baker

The petitioner, a Chinese citizen from Fujian Province, entered the U.S. in 1997 and is the mother of two boys born in the U.S. She sought asylum in 2007 on the ground that she is likely to be forcibly sterilized if returned to China. The immigration judge and the Board of Immigration Appeals denied her application on the ground that she has no well-founded fear of sterilization. The immigration judge also found that she could relocate to a part of China in which the one-child policy is not enforced as enthusiastically as in Fujian. The Seventh Circuit vacated, first noting that the 2007 petition was timely because the birth of a second child resulted in changed circumstances, 8 U.S.C. 1158(a)(2)(D), even if they aren’t changed circumstances in “the country of feared persecution.” They can be the consequence of “activities the applicant becomes involved in outside [that] country.” 8 C.F.R. § 1208.4(a)(4)(i)(B); see Chen v. Gonzales, 498 F.3d 758, 759-60 (7th Cir. 2007). The “activity” in this case was the birth of the petitioner’s second child, and it has changed her circumstances by exposing her to a risk of involuntary sterilization if she is removed from the United States.

The petitioner testified at the hearing before the immigration judge that after the birth of that child, Chinese authorities, who may have learned of the birth from her parents’ customary party to celebrate it, ordered her (via a letter to her father) to report for sterilization and subsequently revoked her village registration. Not being registered, she would if she returned to China be denied various government benefits, such as health care, and she might also face obstacles to employment. The court noted that forced sterilization and forced abortion in Fujian have been documented and stated that the Board has not attempted “to construct an empirical basis … for its skeptical attitude toward these applicants.”

Posner: “We complained in Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012), about the Board’s insouciant attitude toward evidence of forced sterilization in Fujian, an attitude illustrated by the Board’s opinion in this case. … The Justice Department’s brief in this court is even more egregiously selective in its quotations from the May 2007 report, illustrating the frequently obstinate manner in which the Department defends the Board’s rulings in asylum cases, see, e.g., Smykiene v. Holder, 707 F.3d 785, 790 (7th Cir. 2013); Lam v. Holder, 698 F.3d 529, 534-36 (7th Cir. 2012); Pasha v. Gonzales, 433 F.3d 530, 537 (7th Cir. 2005), as by repeatedly flouting the Chenery doctrine; see the following cases cited in Smykiene: Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir. 2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010). … The Board has a pinched conception of “authentication.” … As far as we can tell, the Board ignored the Robert Lin document—and that’s a problem. “We cannot sustain the exclusion of . . . documents without an explanation of the basis for the ruling.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). The Robert Lin document cuts the ground out from under what the Board called the “key aspect of this case”—that because Chen’s children were born abroad, she is in no danger of being forced to undergo sterilization. … We find no indication, either in this case or in previous ones involving asylum applications based on fear of coercive enforcement of the one-child policy (most recently Ni v. Holder, supra), that the Board has attempted to marshal the considerable literature (academic, journalistic, diplomatic, judicial) on the nature and enforcement of the policy—that it has tried in other words to construct an empirical basis, however unavoidably crude rather than precise, for its skeptical attitude toward these applicants. What surely did not meet the Board’s responsibility for the reasoned administration of asylum law in the present case was its brushing aside—with a cropped reference to the State Department report of May 2007—the question whether the petitioner faces a substantial risk (however difficult to quantify) of compulsory sterilization if she is removed to China. The combination of the Board’s inaccurate representation of the report on which it so heavily relied, disregard of other evidence, and erratic treatment of the documents submitted by the petitioner deprives the Board’s order denying asylum of a rational foundation. See also Ni v. Holder, supra. The order is therefore vacated and the case remanded.”

_________________________________________________________________________________
United States Court of Appeals

For the Seventh Circuit

No. 12-2563

QIU YUN CHEN, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General of the United States,

Respondent.

Petition to Review Order of the Board of Immigration Appeals. No. A097-979-909.

ARGUED MARCH 5, 2013—DECIDED MAY 9, 2013

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The petitioner, a Chinese citizen, is the mother of two children (both boys) born to her in the United States. She seeks asylum on the ground that she is likely to be forcibly sterilized if she returns to China. Like most seekers of asylum on that ground she is from Fujian Province and will be returned there if denied asylum. The immigration judge, seconded by the Board of Immigration Appeals, denied her application on the ground that she has no well-founded fear of sterilization. The immigration judge also found that she could relocate to a part of China in which the one-child policy is not enforced as enthusiastically as it appears to be in Fujian, but the Board ignored that issue.

She had entered the United States in 1997 and applied for asylum in 2007, but despite the lapse of time her application was timely. Unlike a motion to reopen a removal proceeding following a final order of removal, an asylum application is still timely after the one-year deadline has passed if the applicant demonstrates “changed circumstances which materially affect the applicant’s eligibility for asylum,” 8 U.S.C. § 1158(a)(2)(D), even if they aren’t changed circumstances in “the country of feared persecution.” They can be the consequence of “activities the applicant becomes involved in outside [that] country.” 8 C.F.R. § 1208.4(a)(4)(i)(B); see Chen v. Gonzales, 498 F.3d 758, 759-60 (7th Cir. 2007). The “activity” in this case was the birth of the petitioner’s second child, and it has changed her circumstances by exposing her to a risk of involuntary sterilization if she is removed from the United States.

She testified at the hearing before the immigration judge that shortly after the birth of this child the local authorities in the Chinese village from which she comes—who may have learned of the birth from her parents’ having, as is customary, thrown a party to celebrate it—ordered her (via a letter to her father) to report within five days for sterilization; and that when she didn’t report, the authorities revoked her village registration. Not being registered, she would if she returned to China be denied various government benefits, such as health care, and she might also face obstacles to employment. See U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2011: China 37 (2012) (hereinafter cited as Country Report: China); Congressional-Executive Commission on China, “China’s Household Registration (Hukou) System: Discrimination and Reform,” 109th Cong., 1st Sess. 11-12, 23 (Sept. 2, 2005). She further testified that the fact that her children, having been born in the United States, were U.S. citizens would not spare her from having to be sterilized for having violated China’s one-child policy, since she and her husband are not U.S. citizens.

Although the Justice Department argues that forcible sterilization is against Chinese law, it’s not clear that there is such a law. See Country Report: China 5051; Immigration and Refugee Board of Canada, “China: Family Planning Laws, Enforcement and Exceptions in the Provinces of Guangdong and Fujian,” Oct. 1, 2012, www.unhcr.org/refworld/country,, IRBC,,CHN,,50a9fb482,0.html (visited May 6, 2013). And if there is such a law, it seems that the authorities in Fujian either don’t know or don’t care about it or “resort to extra-legal means of enforcement [of the one-child policy, which remains national policy] in order to avoid being penalized themselves for not meeting birth planning goals.” Edwin A. Winckler, “Chinese Reproductive Policy at the Turn of the Millennium: Dynamic Stability,” 28 Population & Development Rev. 379, 397 (2002). “[I]ntense pressure to meet birth limitation targets set by government regulations [have] resulted in instances of local family-planning officials using physical coercion to meet government goals . . . . In the case of families that already had two children, one parent was often pressured to undergo sterilization.” Country Report: China 51. In short, “the use of coercive measures in the enforcement of population planning policies remains commonplace.” Congressional-Executive Commission on China, Annual Report 153 (2009).

Article 18 of the Population and Family Planning Regulation of Fujian Province provides that “those who have become pregnant in violation of this Regulation [which includes the one-child policy] should take remedial measure in time.” www.unhcr.org/refworld/country,,, LEGISLATION,CHN,,4242b7394,0.html (visited May 6, 2013). The term “remedial measure in time” is a euphemism for abortion. Congressional-Executive Commission on China, Annual Report 153 (2009). Recent instances of forced abortion in Fujian have been documented. See Edward Wong, “Reports of Forced Abortions Fuel Push to End Chinese Law,” N.Y. Times, July 23, 2012, p. A1; Congressional-Executive Commission on China, Annual Report 92 (2012) and Annual Report 112 (2011). It would be no surprise if a woman who avoided the threat of forced abortion by having a second child in the United States would if she returned to China be subject to compulsory sterilization. For evidence, besides that submitted by the petitioner, that forced sterilization is continuing in Fujian, see, e.g., Country Report: China 50-51; Congressional-Executive Commission on China, Annual Report 90-91 (2012), Annual Report 111 (2011), Annual Report 119 (2010), and Annual Report 154-56 (2009); Immigration and Refugee Board of Canada, supra, §§ 3.3, 4; “Woman Flees Forced Sterilization,” Radio Free Asia, Jan. 12, 2012, www.rfa.org/english/news/china/child01122012145358.html; “Apology for Forced Sterilization,” Shenzhen Daily News, Nov. 2, 2011, www. szdaily.com/content/2011-11/02/content_6196079.htm (both websites were visited on May 6, 2013). We note with disapproval that the Board without explanation systematically ignores the annual reports of the Congressional-Executive Commission on China, several of which we have cited, even though they are pertinent official publications of the federal government. Ni v. Holder, No. 12-2242, 2013 WL 1776501, *5-6 (7th Cir. Apr. 26, 2013).

We complained in Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012), about the Board’s insouciant attitude toward evidence of forced sterilization in Fujian, an attitude illustrated by the Board’s opinion in this case. It relies heavily on a report by the State Department for the proposition that “physical coercion to achieve compliance with population control goals is uncommon” and indeed that no evidence had been found “of forced abortions or sterilization in Fujian in the prior 10 years.” That’s not what the report says. It says that “according to the Fujian Province Birth Planning Committee (FPBPC), there have been no cases of forced abortion or sterilization in Fujian in the last 10 years,” U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Office of Country Reports and Asylum Affairs, China: Profile of Asylum Claims and Country Conditions 26 (May 2007) (emphasis added). Since forced sterilization is against China’s publicly declared policy (though, as we noted, maybe not against Chinese law), one hardly expects local officials to be confessing publicly to engaging in the practice, though we’ll note such a confessional statement shortly. The report’s next sentence—ignored by the Board—is that “it is impossible to confirm this claim [the claim of the Fujian Provincial Birth Planning Committee that there have been no forced abortions or sterilizations in Fujian for the last ten years], and, in 2006, reportedly, there were forced sterilizations in Fujian.” (The Justice Department’s brief in this court is even more egregiously selective in its quotations from the May 2007 report, illustrating the frequently obstinate manner in which the Department defends the Board’s rulings in asylum cases, see, e.g., Smykiene v. Holder, 707 F.3d 785, 790 (7th Cir. 2013); Lam v. Holder, 698 F.3d 529, 534-36 (7th Cir. 2012); Pasha v. Gonzales, 433 F.3d 530, 537 (7th Cir. 2005), as by repeatedly flouting the Chenery doctrine; see the following cases cited in Smykiene: Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir. 2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir. 2010).)

The State Department’s 2007 report distinguishes (at p. 26) “coercion through public and other pressure” to undergo sterilization from coercion through “physical force.” The Board has latched on to the distinction, ignoring the fact that the use of physical force is only one method of coercion, of persecution. Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011). The petitioner argues without contradiction that unless she underwent sterilization upon returning to China she wouldn’t be allowed to register her children, young children whom she would be bringing with her rather than leaving in the United States. Denial of registration could be severe punishment: Chinese “parents must register their children in compliance with the national household registration system within one month of birth. Children not registered cannot access public services.” Country Report: China 56; see also Shi Chen v. Holder, 604 F.3d 324, 328 (7th Cir. 2010); Chen Shi Hai v. Minister for Immigration & Multicultural Affairs, [2000] HCA 19 (Australia: High Court, Apr. 13, 2000), www.unhcr.org/refworld/docid/3ae6b6df4.html (visited May 6, 2013); Congressional-Executive Commission on China, Annual Report 96-97 (2012); Immigration and Refugee Board of Canada, “China: Treatment of ‘Illegal,’ or ‘Black,’ Children Born Outside the One-Child Family Planning Policy” June 26, 2007, www.unhcr.org/ refworld/docid/46c403821f.html (visited May 6, 2013).

It’s been charged that the right to take college entrance exams may be denied to unregistered children. Jiang Xueqing, “Some Still Face Question of Identity,” China Daily, Mar. 26, 2013, www.chinadaily.com.cn/201303/26/content_16344491.htm (visited May 6, 2013). That could be thought a form of coercion. We have held that financial coercion to undergo sterilization is a ground for asylum, Lin v. Mukasey, 532 F.3d 596, 598 (7th Cir. 2008); forbidding kids to attend college because of a parental violation of the one-child policy could be considered a ground for asylum as well. In fairness to Fujian we note that the province, suffering as it does from a shortage of skilled labor, is participating in a pilot program, to be conducted next year, that will relax college eligibility requirements for applicants who are not locally registered because they are the children of migrant workers. Such children will be eligible to sit for the college entrance exam if they have completed three years of high school in Fujian. Han Yuting, “Fujian to Pioneer Gaokao Reform,” The Economic Observer, June 4, 2012, www.eeo.com.cn/ens/2012/0604/227672.shtml (visited May 6, 2013). But the petitioner’s children are not the children of migrant workers but instead the progeny of violators of the one-child policy. We don’t know whether they would be eligible to participate in the pilot program, or whether the program will be made permanent.

The petitioner submitted a number of personal letters, along with communications from the local authorities in the part of Fujian Province where her family lives, in support of her claim to be at risk of forced sterilization if she is returned. The Board gave no weight to communications from the local authorities, on the ground that the communications had not been authenticated and might therefore be forgeries. Yet how realistic is it to expect the petitioner to be able to obtain an authenticated copy of a communication from a local official that states an intention to violate Chinese national policy (whether or not codified in a law) against resorting to sterilization to punish violations of the one-child policy or deter future violations?

The Board has a pinched conception of “authentication.” Obviously a document must be authentic rather than a forgery to be admissible in evidence. But “documents may be authenticated in immigration proceedings through any recognized procedure,” Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir. 2003), quoting approvingly Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. 2006); Gen Lin v. Attorney General, 700 F.3d 683, 687 (3d Cir. 2012); Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007); Yongo v. INS, 355 F.3d 27, 31 (1st Cir. 2004). Some of the recognized procedures are set forth in Article IX of the Federal Rules of Evidence, where we read that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).

The Board disregards these authorities and even imagines that the only method of authenticating a foreign official document is a certification procedure, either the one set forth in Fed. R. Evid 902(3), or the one in the Board’s own regulations, 8 C.F.R. §§ 287.6(b), 1287.6(b) (these are identical regulations, the first applicable to proceedings before the Board, the second to proceedings before immigration judges). It isn’t the only path to admissibility. Vatyan v. Mukasey, 508 F.3d 1179, 1182-84 (9th Cir. 2007). The path laid out in Rule 902(3), which requires certification by U.S. or foreign diplomatic officials, is a form of what is called “self-authentication,” which is an alternative to authentication by evidence, not a form, let alone a mandatory form, of authentication.

(Rule 902 is captioned “Evidence That Is Self-Authenticating.”) The Board’s regulations, though otherwise similar to Rule 902, contain language implying that the method they specify is the only permissible method of establishing the admissibility of a foreign official document. But it’s not, as held in Liu v. Ashcroft, 372 F.3d 529, 532-33 (3d Cir. 2004), in reliance on a government submission to that effect. The government further acknowledged in that case that “asylum applicants can not always reasonably be expected to have an authenticated document from an alleged persecutor.” Id. at 532. “It is obvious that one who escapes persecution in his or her own land will rarely be in a position to bring documentary evidence or other kinds of corroboration to support a subsequent claim for asylum. . . . Common sense establishes that it is escape and flight, not litigation and corroboration, that is foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution.” Senathirajah v. INS, 157 F.3d 210, 215-16 (3d Cir. 1998).

One of the documents that the Board refused to consider had been posted on a Fujian government website. That document (which we’ll call the “Robert Lin” document), captioned “Beautiful Family,” was issued by Fujian’s Population and Procreation Planning Committee, which may be the same organization as the Fujian Provincial Birth Planning Committee, mentioned earlier, or as the Fujian Province Population and Family Planning Committee, author of another “Beautiful Family” posting: “Reply to Inquiry Regarding: ‘Whether or Not [a Person] Must Receive Sterilization Operation,’” July 23, 2007, www.fjjsw.gov.cn:8080/html/1/286/1982_ 2008117845.html (visited May 6, 2013). The Robert Lin document states that sterilization is mandatory for violators of the one-child policy, with exceptions that don’t apply to the petitioner. Population and Procreation Committee of Fujian Province, “Answer to Robert Lin’s Inquiry: ‘Family Planning Policy with Respect to People Returning to China from Overseas,’” May 6, 2008, www.fjjsw.gov.cn:8080/html/5/383/9626_200856322.html. (visited Apr. 19, 2013); cf. Population and Family Planning Regulation of Fujian Province (July 26, 2002), Articles 9-11, 39, 47.

A document posted on a government website is presumptively authentic if government sponsorship can be verified by visiting the website itself; and in this case it can be. See www.fjjsw.gov.cn:8080/html/5/383/9626_ 200856322.html (visited May 6, 2013). (gov.cn is “The Chinese Central Government’s Official Web Portal,” as explained in “The Central People’s Government of the People’s Republic of China,” http://english.gov.cn/ (visited May 6, 2013).) We don’t agree that all the information available on the Internet is “voodoo.” St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 77475 (S.D. Tex. 1999).

As far as we can tell, the Board ignored the Robert Lin document—and that’s a problem. “We cannot sustain the exclusion of . . . documents without an explanation of the basis for the ruling.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005). The Robert Lin document cuts the ground out from under what the Board called the “key aspect of this case”—that because Chen’s children were born abroad, she is in no danger of being forced to undergo sterilization.

As for the letters from members of the petitioner’s family, the Board refused to give any weight to them. They are doubtless authentic (not forgeries)—we have held that authentication is not required for “unsworn statements of facts or letters from family members.” Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir. 2007). But they can hardly be thought neutral, reliable sources. Yet the Board also refused to give any weight to a letter reporting a forced sterilization that was written by a person who not a member of the petitioner’s family. The Board’s ground was that he had written the letter in reference to another immigration case. We can’t see what difference that should make.

The Board further discounted the family letters because the coerced sterilizations they reported were not, so far as appears, of women who had had children in foreign countries. But the Board gave no reason to think that this would make a difference to the Fujian enforcers of the one-child policy. Obviously foreigners who visit China with their foreign-born children aren’t subject to forced sterilization no matter how many children they have. But the petitioner and her husband are not foreigners. They are citizens of China and of no other country, and their children, though U.S. citizens, will upon returning to China with their parents be deemed Chinese citizens.

The Justice Department’s lawyer vehemently denied this at the oral argument, insisting that the children would be considered U.S. rather than Chinese citizens even if they accompanied their mother to China, and so would not count against the one-child policy. The Robert Lin document that the Board unaccountably ignored is only one piece of contrary evidence. Article 5 of the Nationality Law of the People’s Republic of China states that “any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality.” www.china.org.cn/english/LivinginChina/184710.htm (visited May 6, 2013). And the website of the Chinese consulate in New York states that “if one or two of his/her parents are foreign citizens or have foreign permanent residence right (e.g. U.S. permanent resident card), the child shall apply for a Chinese visa before travelling to China. If both of his/her parents are Chinese citizens and have no foreign permanent residence right
(e.g. U.S. permanent resident card), the child shall apply for a Chinese travel document before travelling to China,” www.nyconsulate.prchina.org/eng/lsyw/lszjx/ sbqz/cccbu/ (visited May 6, 2013). The parents in this case are not permanent residents of the United States. All that the children would need in order to return to China are travel documents, which are what Chinese citizens require to enter China; visas are for foreigners.

The State Department’s 2004 “China Consular Information Sheet” says that “if one or both parents of a child are PRC [People’s Republic of China] nationals who have not permanently settled in another country, then China regards their children as PRC nationals and does not recognize any other citizenship they may acquire at birth, including U.S. citizenship. This is true regardless of where the children are born. Such children are required to enter and depart China on PRC travel documents.” http://statelists.state.gov/scripts/wa.exe?A3=ind0501c&L= DOSTRAVEL&E=quoted-printable&P=45392&B=——_ %3D_NextPart_001_01C4FE47.15A53C20&T=text%2Fhtml; %20charset=iso-8859-1 (visited May 6, 2013). And “advice from the [Chinese] Department of Foreign Affairs and Trade (DFAT) . . . indicates that there are two circumstances in which couples returning to China are exempt [from the one-child policy] . . . . The first exemption applies to couples who have permanent residency rights in another country, also known as ‘Overseas Chinese’. The second exemption applies to Chinese nationals who have returned to China with a second child after studying overseas for more than one year.” Australia: Refugee Review Tribunal, Research Response, “China: 1. Please Obtain Updated Information on the Situation of Children Born Outside the PRC in Breach of the Family Planning Regulations,” Oct. 14, 2009, CHN35531 (citations omitted), www.mrt-rrt.gov.au/CMSPages/ GetFile.aspx?guid=cf4bd8ca-6b5f-46db-b525-39837a542362 (visited May 6, 2013); see also Shan Juan, “Babies Born Abroad May Trigger Fines,” China Daily, Sept. 9, 2011, www.chinadaily.com.cn/china/2011-09/09/content_ 13654286.htm (visited May 6, 2013); Kit Gillet, “Hong Kong Crackdowns on Chinese Families Looking to Get Around One-Child Policy,” Toronto Star, May 16, 2012, www.thestar.com/news/world/2012/05/16/ hong_kong_crackdowns_on_chinese_families_looking_ to_get_around_onechild_policy.html (visited Mar. 14, 2013). The petitioner, a waitress, fits neither exception.

All this said, considerable uncertainty about the application of the one-child policy, and about the sanctions for violating it when a second or subsequent Chinese child is born abroad, remains. See, e.g., Australia: Refugee Review Tribunal, Research Response, “China: 1. Are There any More Recent Reports on the Treatment of 2nd or 3rd Children Born Overseas If They Return to China (With Particular Reference to Fujian)?,” Sept. 25, 2006, CHN30673, www.unhcr.org/refworld/docid/ 4b6fe158c.html (visited May 6, 2013); Adam Minter, “China’s ‘Birth Tourism’ Isn’t About the U.S.,” Bloomberg World View, Nov. 3, 2011, www.bloomberg.com/news/201111-03/china-s-birth-tourism-isn-t-about-the-u-s-adamminter.html (Nov. 3, 2011); Rob Gifford, “Born In The U.S.A.? Some Chinese Plan It That Way,” NPR, Nov. 22, 2010, www.npr.org/2010/11/22/131513165/born-in-the-u-sa-some-chinese-plan-it-that-way (both websites visited May 6, 2013). Nor can we find any responsible estimate of the probability that a violator of the one-child policy will be detected and severely punished.

In this fog of uncertainty one is tempted to treat the question whether the petitioner has a well-founded fear of persecution if returned to Fujian as one of discretion, to be left to the Board to answer, in recognition of its greater experience with asylum applications than the federal courts of appeals have. But the right to exercise discretion in particular circumstances is earned rather than blindly bestowed. We find no indication, either in this case or in previous ones involving asylum applications based on fear of coercive enforcement of the one-child policy (most recently Ni v. Holder, supra), that the Board has attempted to marshal the considerable literature (academic, journalistic, diplomatic, judicial) on the nature and enforcement of the policy— that it has tried in other words to construct an empirical basis, however unavoidably crude rather than precise, for its skeptical attitude toward these applicants.

What surely did not meet the Board’s responsibility for the reasoned administration of asylum law in the present case was its brushing aside—with a cropped reference to the State Department report of May 2007—the question whether the petitioner faces a substantial risk (however difficult to quantify) of compulsory sterilization if she is removed to China. The combination of the Board’s inaccurate representation of the report on which it so heavily relied, disregard of other evidence, and erratic treatment of the documents submitted by the petitioner deprives the Board’s order denying asylum of a rational foundation. See also Ni v. Holder, supra.

The order is therefore vacated and the case remanded.

5-9-13
Asylum, China, Forced Sterilization: Chen v. Holder CA7

Posted in 7th Circuit, 7th Circuit Cases- Aliens, China one-child policy, China’s family planning policy, forced sterilization, Fujian Province, one-year deadline | Tagged | Leave a comment

Issuance of Notices to Appear (NTAs) Inadmissible and Removable Aliens

Posted on May 8, 2013 by Mike Baker

Policy Memorandum November 7, 2011 PM-602-0050
NTA PM (Approved as final 11-7-11)

SUBJECT: Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens

Purpose

This Policy Memorandum (PM) establishes new USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of the resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. This PM supersedes Policy Memorandum No. 110, Disposition of Cases Involving Removable Aliens, dated July 11, 2006.

Scope

This PM applies to and is binding on all USCIS employees unless otherwise specifically provided in this PM.

Authority

Immigration and Nationality Act (INA) sections 101(a)(43), 103(a), 239, 240 and 318; Title 8, Code of Federal Regulations (8 CFR) parts/sections 2.1, 103, 204, 207.9, 208, 216.3(a), 216.6(a)(5), 236.14(c), and 239; Adjudicator’s Field Manual Chapter 10.11(a).

Background

U.S. Citizenship and Immigration Services (USCIS) has authority, under the immigration laws, see, e.g., INA §§ 103(a), 239; 8 CFR §§ 2.1, 239.1, to issue Form I-862, Notice to Appear, to initiate removal proceedings. 1 U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) also have authority to issue NTAs. Accordingly, USCIS must ensure that its issuance of NTAs fits within and supports the Government’s overall removal priorities, while also ensuring that its NTA policies promote national security and the integrity of the nation’s immigration system.

To those ends, this PM identifies the circumstances under which USCIS will issue an NTA, or will refer the case to ICE for NTA issuance, in order to effectively handle cases that involve public safety threats, criminals, and aliens engaged in fraud.

Policy

I. National Security Cases

This PM does not affect the handling of cases involving national security concerns. 2 Guidance from the Fraud Detection and National Security Directorate (FDNS) 3 will continue to govern the definition of these cases and the procedures for resolution and NTA issuance.

II. NTA Issuance Required by Statute or Regulation

USCIS will issue an NTA in the following circumstances: 4

A.Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR 216.3, 216.4, 216.5) 5

B. Denials of Form I-829, Petition by Entrepreneur to Remove Conditions (8 CFR 216.6)

C.Termination of refugee status by the District Director (8 CFR 207.9)

D.Denials of NACARA 202 and HRIFA adjustments

1. NACARA 202 adjustment denials (8 CFR 245.13(m));

2. HRIFA adjustment denials (8 CFR 245.15(r)(2)(i)).

E. Asylum 6 , NACARA 203, and Credible Fear cases: 7

1. Asylum referrals (8 CFR 208.14(c)(1));

2.Termination of asylum or termination of withholding of removal or deportation (8 CFR 208.24(e)); 8

3 Positive credible fear findings (8 CFR 208.30(f));

4. NACARA 203 cases where suspension of deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful immigrant or non-immigrant status (8 CFR 240.70(d)).

This PM does not apply to, or change, NTA or notification procedures for Temporary Protected Status cases. 9 Further, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, processed under the Violence Against Women Act (VAWA), should continue to be processed under existing protocols. If the VAWA applicant’s Form I-485 is denied, this memorandum is applicable in terms of NTA issuance. 10

III. Fraud Cases with a Statement of Findings Substantiating Fraud

To protect the integrity of the immigration system and address fraud, USCIS will issue NTAs when a Statement of Findings (SOF) substantiating fraud is part of the record. 11 An NTA will be issued upon final adjudicative action on the petition and/or application or other appropriate eligibility determination. 12 NTAs will be issued even if the petition and/or application is denied for a ground other than fraud, such as lack of prosecution or abandonment, is terminated based on a withdrawal by the petitioner/applicant, or where an approval is revoked, so long as an SOF substantiating fraud is in the record.

The NTA should include the charge of fraud or misrepresentation, if possible. The appropriate charge(s) will be determined on a case-by-case basis. Consultation with local USCIS counsel to determine the appropriate charge(s) is recommended.

IV. Cases to be Referred to ICE for a Decision on NTA Issuance

A. Criminal Cases: Criminal aliens are a top immigration enforcement priority for the government. The following guidance recognizes the prioritization and requires USCIS to refer criminals to ICE for action or issue an NTA in accordance with this PM.

1.Egregious Public Safety (EPS) Cases

USCIS will refer all EPS cases, including cases with pending N-400s, to ICE prior to adjudicating the case even if USCIS can deny the petition and/or application on its merits. An EPS case is defined by USCIS and ICE as a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of, any of the following:

a. Murder, rape, or sexual abuse of a minor as defined in section 101(a)(43)(A) of the INA.

b. Illicit trafficking in firearms or destructive devices as defined in section 101(a)(43)(C) of the INA.

c. Offenses relating to explosive materials or firearms as defined in section 101(a)(43)(E) of the INA.

d. Crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year as defined in section 101(a)(43)(F) of the INA.

e. An offense relating to the demand for, or receipt of, ransom as defined in section 101(a)(43)(H) of the INA.

f. An offense relating to child pornography as defined in section 101(a)(43)(I) of the INA.

g. An offense relating to peonage, slavery, involuntary servitude, and trafficking in persons as defined in section 101(a)(43)(K)(iii) of the INA.

h. An offense relating to alien smuggling as described in section 101(a)(43)(N) of the INA

i. Human Rights Violators, known or suspected street gang members, or Interpol hits.

j. Re-entry after an order of exclusion, deportation or removal subsequent to conviction for a felony where a Form I-212, Application for Permission to Reapply for Admission into the U.S. after Deportation or Removal, has not been approved.

All EPS cases must be referred to ICE using the procedures outlined below. The case will be referred as soon as it is identified. ICE will have an opportunity to decide if, when, and how to issue an NTA and/or detain the alien. USCIS will not issue an NTA in these cases if ICE declines to issue an NTA. If some other basis unrelated to the EPS concern becomes apparent during the course of adjudication, an NTA may be issued in accordance with this memo.

Referral Process

This referral process is utilized in order to give ICE the opportunity to determine the appropriate course of action before USCIS adjudicates the case. A decision to issue an NTA may directly affect the processing of the pending petition and/or application. Upon issuing the Referral to Immigration and Customs Enforcement (RTI), USCIS will suspend adjudication for 60 days, or until ICE provides notification of its action on the case, whichever is earlier.

In response to the RTI –

1. ICE may issue an NTA. ICE’s issuance of an NTA allows USCIS to proceed with adjudication (unless jurisdiction transfers to EOIR or the pending application is an N-400), taking into account the basis for the NTA.

2. If ICE does not issue an NTA or otherwise provide notification of its action on the case within 60 days of the RTI, USCIS may resume its adjudication of the case, taking into account the referral grounds.

a. If the case is approvable, USCIS will consult with ICE prior to adjudication.

b. Once adjudicated, regardless of the decision, USCIS will notify ICE of the result by sending a copy of the original RTI to ICE with a cover memorandum advising of the outcome of the case.

EPS cases referred to ICE prior to adjudication should be called up and reviewed no later than 60 days after referral. Normally, the case should be adjudicated by USCIS. However, USCIS retains discretion to place the case on hold for more than 60 days if ICE requests additional time to conduct an investigation. 13

Office-Specific Processes

1. Cases to be adjudicated by Service Centers and the National Benefits Center. Adjudication will be suspended and the case will immediately be sent to the appropriate Service Center Background Check Unit (BCU). The BCU will refer the case to the ICE Benefit Fraud Unit (BFU) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. The BCU will retain the file unless ICE requests it or the 60 days expire.

2. Cases to be adjudicated by Field Offices. The Immigration Services Officer (ISO) will suspend adjudication and the case will immediately be referred to the local ICE Special Agent in Charge (SAC) via an RTI. A hard copy of the RTI will be placed in the A-file and/or receipt file. A copy of the RTI must also be sent to the ICE BFU. USCIS will retain the file unless ICE requests the file for their review.

An RTI should include any relevant attachments that USCIS has at the time, such as a copy of the RAP sheet and a copy of the petition and/or application.

2. Non-Egregious Public Safety Criminal Cases

If it appears that the alien is inadmissible or removable for a criminal offense not included on the EPS list, USCIS will complete the adjudication and then refer the case to ICE. This section applies to N-400 cases if the N-400 has been denied on good moral character (GMC) grounds based on the criminal offense. 14 ICE will decide if, and how, it will institute removal proceedings and whether or not it will detain the alien. USCIS will not issue an NTA if ICE declines to issue an NTA.

If some other basis unrelated to the criminal offense becomes apparent upon return of the case to USCIS, an NTA may be issued in accordance with this memo.

Referral Process

The referral process is used to allow ICE to make a determination whether to issue an NTA, based on the totality of circumstances and its priorities. ICE will determine the appropriate grounds for removal if an NTA is issued.

Once adjudication is complete, USCIS will send an RTI to ICE. USCIS will concurrently transmit a copy of the RTI to ICE Headquarters (HQ) Enforcement and Removal Operations (ERO) Criminal Alien Division for statistical monitoring purposes. If there is any confusion or uncertainty about classifying a case as egregious versus non-egregious, the USCIS ISO should refer the matter as an EPS case using the process described above.

The accompanying A-file will be referred to ICE with the RTI, if the file is in the possession of the referring USCIS office or center. If the file is not at the referring USCIS office or center, the RTI should include any relevant attachments that USCIS has, such as a copy of the RAP sheet and a copy of the petition and/or application. Where USCIS obtained certified conviction records through normal processing of the case, USCIS will include the records with the RTI, but it will not hold the RTI on a completed case solely to obtain disposition records. Instead ICE will decide whether, and how, it will obtain such records as part of its decision to issue an NTA.

Office-Specific Processes

1. Cases adjudicated by Service Centers and the National Benefits Center. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, the file will be referred to the BCU. The BCU will refer the case, along with the A-file and/or receipt file, to the appropriate ERO Field Office Director (FOD) via an RTI.

2. Cases adjudicated by Field Offices. Once adjudication is completed, if the alien is removable on a criminal charge, regardless of the reason for the denial, USCIS will prepare an RTI and refer the case, along with the A-file and/or receipt file, to the local ERO FOD.

B. National Security Entry Exit Registration System (NSEERS) Violator Cases

USCIS will refer all cases in which an application is denied based on an NSEERS violation to ICE for possible NTA issuance.

V. Cases Involving Form N-400, Application for Naturalization

The following guidance applies to the issuance of NTAs in cases in which applicants for naturalization are removable. There are two primary situations in which NTAs may be issued in connection with a filed Form N-400. If the N-400 case involves fraud (documented in the SOF) the procedures found in this section must be followed, rather than the procedures found in Section III (Fraud Cases with a Statement of Findings Substantiating Fraud). However, the below guidance does not apply to EPS cases. EPS cases must be referred in accordance with Section IV.A.1 (Egregious Public Safety Cases) of this memo. Additionally, the below guidance does not apply to non-EPS criminal cases when the N-400 can be denied on GMC grounds based on the criminal act. These cases must be denied and referred in accordance with Section IV.A.2 (Non-Egregious Public Safety Criminal Cases).

A.The first situation occurs when the applicant may be eligible to naturalize but is also deportable under section 237 of the INA. Examples include applicants convicted of aggravated felonies prior to November 29, 1990, or applicants convicted of deportable offenses after obtaining Lawful Permanent Resident (LPR) status that do not fall within the GMC period. The ISO should:

1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: severity of crime, time since crime committed, other criminal conduct, reformation, immigration history including method of entry, length of presence in the U.S., and prior immigration violations, and contributions to society to include the pursuit of education and military service. 15

2. Once the ISO has made a recommendation on whether or not to issue an NTA, the case should be forwarded to the N-400 NTA Review Panel (Review Panel), along with the written recommendation. A Review Panel must be formed in each Field Office and include a local Supervisory Immigration Services Officer (SISO), a local USCIS Office of Chief Counsel attorney, and a district representative. An attorney from ICE’s local Office of Chief Counsel will be invited to participate and will have an advisory role on the panel. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.

3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once proceedings have concluded, or if the Review Panel declines to issue an NTA, adjudicate the case appropriately.

B. The second situation occurs when it is determined that the applicant was inadmissible at the time of adjustment or admission to the United States, thus deportable under section 237 of the INA and not eligible for naturalization under section 318 of the INA. 16 The ISO should:

1. Make a written recommendation on the issuance of an NTA through a review of the totality of the circumstances to include factors such as: willfulness of actions, fraud factors, length of LPR status, criminal history, and officer error at time of adjustment.

2. Once the ISO has made a recommendation on the issuance of the NTA, the case should be forwarded to the Review Panel (see Section V.A.2), along with the written recommendation. The Review Panel will make the final determination on NTA issuance. If consensus cannot be reached by the Review Panel, the case will be elevated to the District Director, through the district representative, for a final decision.

3. If the Review Panel decides to issue an NTA, place the N-400 on hold until removal proceedings have concluded. Once removal proceedings have concluded, adjudicate the case appropriately. If the Review Panel declines to issue an NTA, deny the case under section 318 of the INA.

VI. Other Cases

A. An alien may request NTA issuance to renew an application for adjustment or in certain cases with a denied N-400. The request must be made in writing. 17

B. An asylum applicant issued an NTA may request NTA issuance for family members not included on the asylum application as dependents for family unification purposes. The request must be made in writing. 18

VII. Exceptions

Exceptions to the guidance in this PM require concurrence from Regional or Center Directors, who will consult with ICE before issuing an NTA.

VIII. Coordination with ICE

According to the June 2011 ICE memo regarding the exercise of prosecutorial discretion consistent with priorities, 19 USCIS will receive notice before an ICE attorney exercises prosecutorial discretion and dismisses, suspends, or closes a case. The local N-400 NTA Review Panel will work with ICE to come to a resolution if USCIS does not agree with ICE’s use of prosecutorial discretion in a particular case. If concurrence cannot be reached, the case should be elevated to the USCIS Office of Chief Counsel in headquarters.

Implementation

Each field office must form an N-400 NTA Review Panel and create a process to complete RTIs and refer EPS and non-EPS criminal cases to ICE. A written list enumerating the members of the Review Panel and a document outlining the process of referral must be sent to the appropriate district office within 30 days of the issuance of this memorandum.

Use

This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law, or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.

_______________________

1 Delegation by the Secretary of the Department of Homeland Security to the Bureau of Citizenship and Immigration Services, Delegation Number 0150.1; Paragraph 2(N). However, international District Directors and officers are not authorized to issue NTAs.

2 National Security Cases include cases involving Terrorist Related Grounds of Inadmissibility (TRIG) pursuant to sections 212(a)(3)(B) and 212(a)(3)(F) of the INA.

3 See, e.g., Policy for Vetting and Adjudicating Cases with National Security Concerns (April 11, 2008).

4 If any Form I-751 or I-829 cases are also Egregious Public Safety cases, they will be referred to ICE in accordance with Section IV.A.1 of this PM.

5 See the October 9, 2009 internal memo, Adjudication of Form I-751, Petition to Remove Conditions on Residence Where the CPR Has a Final Order of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions. See also the April 3, 2009 memo, I-751 Filed Prior to Termination of Marriage.

6 USCIS may issue an NTA when an asylum applicant withdraws his or her asylum application.

7 This memo does not apply to the Asylum Division’s issuance of Form I-863, Notice of Referral to Immigration Judge, to certain stowaways, crewmembers, and VWP individuals who are requesting asylum or withholding of removal; reasonable fear screenings and negative credible fear screenings.

8 See also section 208(c)(3) of the INA describing removal when asylum is terminated.

9 See the September 12, 2003 internal memo, Service Center Issuance of Notice to Appear (Form I-862).

10 When making determinations, employees must keep in mind USCIS’s obligations under 8 USC § 1367, which prohibits the release of any information, outside of DHS, relating to aliens who are seeking or have been approved for immigration benefit(s) under the provisions for battered spouses, children, and parents in the Violence Against Women Act.

11 Alternatively, ICE will determine whether to issue the NTA if a criminal investigation is conducted, fraud is found, and the investigation results in criminal prosecution.

12 This includes, but is not limited to, aliens that were granted asylum status by USCIS, adjusted to Lawful Permanent Resident status, presented fraud indicators, were subject to the Post Adjustment Eligibility Review (PAER) process in an Asylum Office, and met the PAER criteria for NTA issuance.

13 Pursuant to 8 CFR 274a.13(d), USCIS must complete processing of an Employment Authorization Document (EAD) within 90 days or issue an interim EAD card valid up to 240 days. Officers should be mindful of this regulatory timeframe when cases with a pending Form I-765, Application for Employment Authorization, are referred to ICE.

14 See Section V of this memo addressing N-400 cases.

15 Additional factors to be taken under consideration can be found in the June 17, 2011 ICE memo, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens.

16 In the Third Circuit only (Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands), based on the holding in Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009), if the alien has been an LPR for at least five years, the alien cannot be placed in removal proceedings for fraud or willful misrepresentation of a material fact at time of adjustment, if USCIS could have learned of the fraud or misrepresentation through reasonable diligence before the five year rescission period expired. Please consult with USCIS counsel if there are questions regarding the applicability of this precedent.

17 USCIS retains discretion to deny a request. USCIS should consider ICE actions and determinations when making an NTA issuance decision under this section.

18 USCIS retains discretion to deny a request.

19 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, signed June 17, 2011.

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USCIS Policy Manual-Citizenship and Naturalization policies and procedures

Posted on May 8, 2013 by Mike Baker


About the Policy Manual
Home | Table of Contents | Updates | INA | 8 CFR | Glossary / Acronyms

USCIS has undertaken a comprehensive review of our adjudication and customer service policies to improve quality, transparency, and efficiency. As a result of this extensive and ongoing review, USCIS has created the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’s immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories. The manual is structured to house several volumes pertaining to different areas of immigration benefits administered by the agency such as citizenship and naturalization, adjustment of status, admissibility, protection and parole, nonimmigrants, refugees, asylees, immigrants, waivers, and travel and employment.

The USCIS Policy Manual is organized into different volumes, parts, and chapters that present policies in a logical and sequential manner. The USCIS Policy Manual provides several user-friendly features and enhancements. These features include up-to-the-minute comprehensive policy updates, an expanded table of contents, and links to related Immigration and Nationality Act (INA) sections, Code of Federal Regulations (CFR), and public use forms. The manual is also equipped with a keyword search function, which will make locating policy and related information faster, easier, and less time consuming. Citations of statutes, regulations, case law, authoritative sources, and other explanatory references appear in footnotes rather than the body of the text. Tables and charts supplement and simplify policy information to facilitate understanding of complex topics and instructions.

The USCIS Policy Manual contains the official policies of USCIS and must be followed by all USCIS officers in the performance of their duties. The Policy Manual does not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.

Table of Contents

Posted in 8 CFR, Citizenship and Naturalization policies and procedures, INA, Naturalization, Naturalization Interview Process, Naturalization N-400, Naturalization N-400 applicant, Naturalization N-400 application, naturalization test., USCIS Policy Manual | Tagged | Leave a comment

CA7 Upholds Denial of Good-Faith Marriage Waiver

Posted on April 30, 2013 by Mike Baker

CA7 Upholds Denial of Good-Faith Marriage Waiver. The court upheld the denial of the petitioner’s request for a good-faith marriage waiver, finding the removal proceedings were not unfair and that the IJ’s adverse credibility determination was reasonable. (Boadi v. Holder, 2/7/13)

Record contained sufficient evidence to support termination of alien’s lawful permanent resident status and his ultimate removal based on finding that: (1) alien’s marriage to U.S. citizen was sham under circumstances where alien was not living with spouse, and where spouse could not name alien’s biological children or name street where alien lived; and (2) alien was not entitled to good-faith marriage waiver to removal after alien and his U.S. spouse had divorced. Moreover, Ct. rejected alien’s claim that IJ’s brief, 20-day continuance of removability hearing to allow him to obtain counsel deprived him of fair opportunity to present favorable evidence on issue as to whether marriage was sham, and alien’s challenge to IJ’s adverse credibility finding was factual matter that could not be challenged on appeal.

Boadi legally entered the U.S. in 2000 but overstayed and married Bonds, a U.S. citizen, in 2001. He adjusted his status to conditional lawful permanent resident in 2003, 8 U.S.C. 1186a(a)(1). In 2007, Boadi and Bonds sought removal of the “condition” to his permanent resident status, with documentation supporting the authenticity of their marriage. DHS’s interview with the couple revealed that Boadi lived in Ohio and Bonds in Illinois and that Boadi may have lived with his ex-wife, another Ghanian national. Bonds could neither name Boadi’s three children nor the street on which Boadi lived. They gave conflicting answers regarding their respective children’s relationships and who paid the bills. Boadi failed to respond to a letter and DHS terminated his legal status in 2009 and issued a notice to appear. Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status, 8 U.S.C. 1186a(b)(1)(A)(ii), distinct from DHS’s existing allegation of fraud. Boadi unsuccessfully requested a good-faith marriage waiver. Removal proceedings began. The immigration judge made an adverse credibility determination and found Boadi removable under 8 U.S.C. 1227(a)(1)(D)(i). The Board of Immigration Appeals affirmed. The Seventh Circuit denied review.

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BOADI v. HOLDER

John K. Asare BOADI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2742.

Argued Jan. 9, 2013. — February 07, 2013 Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

Charley L. Yaniko, Attorney, Zeidan & Associates, LLC, Columbus, OH, for Petitioner.Timothy G. Hayes, Attorney, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.

In 2001, John Asare Boadi, a Ghanian national that remained in the United States past his visa’s authorization, obtained conditional permanent resident status by marrying a U.S. citizen. Two years later, he petitioned the Department of Homeland Security (“DHS”) to remove the condition on his status, but the subsequent DHS interview revealed Boadi’s marriage appeared to be a ploy to obtain permanent resident status. DHS initiated removal proceedings, and an immigration judge eventually denied Boadi’s request for a good-faith marriage waiver through which Boadi could have avoided removal if he proved he entered his marriage (which had now ended through divorce) in good faith. Boadi now challenges the nature of that proceeding as well as the immigration judge’s substantive conclusions. For the reasons set forth below, we deny Boadi’s petition for review.

I. Background

A. Factual Background

Boadi legally entered the United States in 2000 but overstayed his thirty-day authorization. He subsequently married Veronica Bonds, a U.S. citizen, in 2001. As a result, he adjusted his status to conditional lawful permanent resident in 2003 pursuant to 8 U.S.C. § 1186a(a)(1) (“an alien spouse ․ shall be considered, at the time of obtaining the status of an alien lawfully admitted for permanent residence, to have obtained such status on a conditional basis”). In 2007, Boadi and Bonds filed a joint petition on U.S. Custom and Immigration Services form I–751 seeking removal of the “condition” to his permanent resident status, and they attached documentation supporting the authenticity of their marriage. See 8 C.F.R. § 216.4(a)(5). DHS’s interview with the couple, however, revealed a number of deficiencies in their application. For instance, they lived apart, Boadi in Ohio and Bonds in Illinois. In fact, DHS discovered that Boadi may have lived with his ex-wife, another Ghanian national that acquired legal status by marrying a U.S. citizen, during his marriage to Bonds. Additionally, Bonds could neither name Boadi’s three biological children nor the street on which Boadi lived. They also gave conflicting answers to the same questions regarding their respective children’s relationships, who paid the bills at Bonds’s home, and the day Boadi arrived for his interview.

After the interview, DHS sent a letter to Boadi expressing its intent to deny the petition. Boadi failed to respond, and DHS terminated his legal status in 2009. DHS subsequently issued a notice to appear on three grounds: (1) obtaining an immigration benefit by fraud or willful misrepresentation, (2) remaining in the United States for a period longer than permitted, and (3) having his conditional lawful permanent resident status terminated.

Boadi and Bonds divorced only weeks after the notice to appear, which automatically terminates an alien’s conditional legal status. 8 U.S.C. § 1186a(b)(1)(A)(ii). This ground was distinct from DHS’s existing allegation of fraud, but either way, Boadi was now removable under 8 U.S.C. § 1227(a)(1)(D)(i). Facing deportation, Boadi requested a good-faith marriage waiver through which the Attorney General or DHS may discretionarily remove the conditional status (i.e., grant full permanent resident status) to an alien who entered into a qualifying marriage in good faith even though it was later terminated. 8 U.S.C. § 1186a(c)(4)(B). DHS eventually denied this request.

B. Procedural Background

Removal proceedings began, and Boadi brought counsel with him to his March 2010 “master calendar” hearing. Boadi conceded removability based on the termination of his conditional lawful resident status, but he opposed the first two grounds. He also requested a transfer to the Cleveland Immigration Court because he still resided in Ohio. DHS opposed this request, and the immigration judge decided to keep the case in Chicago to decide only the issue of removability, reasoning that the evidence of fraud would come from the Chicago DHS agent that interviewed Boadi and Bonds. He continued the case and stated after the next hearing he would “transfer the case to Cleveland.”

A few weeks before Boadi’s next hearing, his counsel withdrew, and Boadi appeared pro se on March 11, 2011. Despite the immigration judge’s previous assurances, he told Boadi this would be his “final” hearing, meaning the court would decide every issue that day, not just removability. In fact, the immigration judge incorrectly asserted that he originally scheduled the hearing “to complete [Boadi's] case.” Nevertheless, the immigration judge was willing to continue the case for twenty additional days so Boadi, who expressed a desire to obtain new counsel, could consult an attorney. This compromise did not satisfy DHS. Because the agent that investigated Boadi’s marriage was present, DHS requested that the court take her testimony. The immigration judge acceded. Boadi was permitted to cross-examine the witness, but he abandoned his attempt after one question.

Before adjourning, the immigration judge recognized the difficult situation Boadi faced without counsel. He further explained that he asked the government to submit the I–751 application (for the good-faith marriage waiver, not the original joint submission with Bonds), which contained various documents, and he twice asked Boadi whether there was any evidence he wanted the immigration judge to consider, reminding him he could bring additional material to the next hearing.

On March 31, Boadi had what would turn out to be his final hearing. He again appeared pro se. The immigration judge examined Boadi, who attempted to account for the discrepancies in the DHS investigation. He stated he moved to Chicago in November 2001 to marry Bonds before he started at an Ohio nursing school in 2003. He visited Bonds, who later moved to Decatur, Illinois, on the weekends. Boadi also denied living with his ex-wife. The confusion stemmed, Boadi testified, from his children’s use of his first wife’s address. Boadi said the children received letters with his name on them; that is why it appears that he received mail there. Boadi did admit he used his ex-wife’s address for his driver’s license but only because he could not use the friend’s address where he actually lived. As for the conflicts between his and Bonds’s answers, Boadi explained Bonds forgot his children’s names because it had been a while since she saw them. Finally, Boadi provided letters from friends supporting the bona fides of his marriage, but the immigration judge noted that some of this information conflicted with Boadi’s testimony; namely, that the friends stated Boadi and Bonds were happily married during a period that Boadi testified they were separated.

Ultimately, the immigration judge did not believe Boadi’s account. He made an adverse credibility determination and issued an oral decision finding Boadi was removable under 8 U.S.C. § 1227(a)(1)(D)(i) because the government terminated his conditional status.1 The immigration judge also found Boadi failed to meet his burden for the good-faith marriage waiver under 8 U.S.C. § 1186a(c)(4)(B), his only application for relief. The immigration judge found the discrepancies produced by the DHS investigation damaging, and Boadi’s efforts to compensate for them unpersuasive. Boadi appealed through counsel to the Board of Immigration Appeals, raising the same claims he now raises to this Court and also challenging the immigration judge’s decision as clearly erroneous. The Board affirmed, and Boadi now petitions this Court for review.

II. Discussion

Congress limits our ability to review “any ․ decision ․ of the Attorney General or Secretary of Homeland Security the authority for which is specified ․ to be in the[ir] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). The good-faith marriage waiver, through which Boadi seeks relief, is such a section. 8 U.S.C. § 1186a(c)(4) (“The Secretary of Homeland Security, in the Attorney General’s discretion, may remove the conditional basis of the permanent resident status”). Section 1252(a)(2)(D) restores jurisdiction for colorable legal and constitutional claims, which we review de novo.

Boadi raises four issues on appeal, two of which are legal and two of which are largely factual despite Boadi’s efforts to couch them otherwise. We examine the legal claims first: that the manner in which the immigration judge conducted his proceedings was “fundamentally unfair” and that the judge “failed to identify” the evidence admitted into the record. We then turn to Boadi’s claims that the immigration judge erred in making an adverse credibility determination and inappropriately weighed the evidence.

A. Manner of Proceedings

Boadi primarily takes issue with the manner in which the immigration judge conducted the proceedings. Specifically, Boadi argues that when the immigration judge continued the case after Boadi’s initial master calendar hearing, he indicated he would decide the issue of removability, then transfer the case to Cleveland to determine applications for relief. At the second hearing, however, the immigration judge told Boadi it was his “final hearing.” He did continue the case for twenty days so Boadi could secure counsel, but he also granted DHS’s request to take testimony from its witness. In essence, Boadi argues that he was willing to contest removability pro se but not applications for relief. The immigration judge’s switch, Boadi argues, had two consequences: (1) he did not have a meaningful opportunity to cross-examine the DHS witness or present other evidence, and (2) the immigration judge deprived him of an opportunity to set forth “any and all applications for relief.”2 He contends these consequences violated his rights under 8 U.S.C. § 1229a(b)(4)(B),3 which provides the “alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.”

Preliminarily, even if Boadi believed that the hearing would only concern removability, it is difficult to see how the proceeding surprised him. One contested ground of removability was 8 U.S.C. § 1227(a)(1)(A) (permitting deportation of inadmissible aliens) because he violated 8 U.S.C. § 1182(a)(6)(C)(i), which applies to any “alien who, by fraud or willfully misrepresenting a material fact, ․ has procured[ ] a visa, other documentation, or admission into the United States or other benefit provided under this chapter.” Thus, in proving removability, DHS had to prove Boadi made a misrepresentation in securing his conditional permanent resident status. It did so through the live testimony of the DHS agent that investigated Boadi’s marriage to Bonds. Notwithstanding, Boadi was still not deprived of an opportunity to crossexamine the witness. For one, the immigration judge offered him the opportunity to do so at the hearing, which Boadi declined. But more importantly, if Boadi thought this proved inadequate, he could have recalled the witness (or presented new evidence) at the continued hearing twenty days later, either personally or through counsel. He chose not to.

Next, Boadi’s conclusory assertion that the immigration judge deprived him of an opportunity to “set forth any and all applications for relief” lacks merit. First, Boadi does not explain why he could not do so during the twenty-day continuance he did receive from the immigration judge nor does he explain why he could not ask for an additional continuance at that hearing to do so. In fact, at no point during the entire proceeding has Boadi suggested there is another application for relief.

This all leads to the glaring absence of prejudice in Boadi’s case. See Delgado v. Holder, 674 F.3d 759, 769 (7th Cir.2012) (“Even if Daisy’s testimony was inappropriately excluded, Delgado has not shown that he was prejudiced by this exclusion.”); Alimi v. Gonzales, 489 F.3d 829, 834 (7th Cir.2007) (“To warrant a new immigration hearing ․ an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings.”). Boadi might have preferred the chance to present a case in Cleveland with more time, but even with counsel representing him on appeal he fails to offer a single way in which the manner of the proceeding altered the outcome. It is not enough to suggest that cross-examination might have gone differently or that an attorney (assuming Ohio counsel was available) would have presented different evidence. Maybe a better cross-examination or different evidence would have exposed a weakness in the DHS investigation. But to succeed on appeal, Boadi must point to that alleged weakness and explain how it affected his case. When asked at oral argument what evidence a lawyer would have produced, Boadi’s counsel cryptically alluded to documents in the “government’s files” without explaining what this evidence was or why it remains unavailable to him. The most specific thing he offered was the evidence submitted with his original joint I–751 petition (not the good-faith marriage petition) through which he originally received conditional permanent resident status. But despite being the person that submitted this information, Boadi does not explain what evidence was in the petition, how it supports his claim, or why he no longer has it.

This flaw in Boadi’s argument has more applicability to the application-for-relief claim. To the extent that twenty days was insufficient to discover additional grounds, the immigration judge issued his decision eighteen months ago and Boadi still has not suggested that an actual alternative application for relief exists. We require a showing of prejudice because we want to avoid remanding a case that will inevitably reach the same result. Boadi provides no suggestion that a new hearing would end differently. In short, it is not enough that the immigration judge’s alleged errors had the potential to prejudice Boadi. Before granting his petition for review, he must show that the procedural irregularities actually prejudiced him. Otherwise, the error is harmless.

B. The Immigration Judge’s Consideration of the Evidence

In his next claim, Boadi essentially argues that the immigration judge “must at least identify” all of the evidence submitted to him “for the purposes of building a record on appeal.” This argument relates to the government’s submission of evidence at his second hearing. Boadi does not contend that this information is not part of the administrative record so we do not see how the immigration judge failed to “build a record on appeal.” Instead, he argues that because the immigration judge did not cite to this material in his oral decision, Boadi does not know how much weight the immigration judge attached to each piece of evidence. Boadi seems to suggest that several of the government’s submissions contained multiple documents, and in discussing these submissions the immigration judge should have indicated precisely what portions were considered and how much weight he attached to each portion. No such requirement exists, however. Boadi even recognizes that the immigration judge does not need to discuss all of the evidence; he need only consider it. And Boadi does not contend that the immigration judge failed to meet this requirement. In light of this concession, we do not see how the immigration judge committed legal error.

Importantly, Boadi once again fails to explain how this alleged error prejudiced him, and we do not see how it could have. Because we lack jurisdiction to review factual claims, a clear articulation of the relative weight of the evidence would make no difference to Boadi’s appeal. The same is true in typical cases that we review for substantial evidence, upholding an immigration judge’s findings “if they are supported by reasonable, substantial, and probative evidence.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). The relative weight does not matter so long as adequate evidence supports the immigration judge’s ultimate conclusion. Accordingly, we find this claim lacks merit.

C. Credibility Determination

Boadi’s challenge to the immigration judge’s credibility finding is a factual challenge, which we cannot review under 8 U.S.C. § 1252(a). This sort of claim challenges the immigration judge’s assessment of the evidence and presents no claim of law. Moreover, section 1186a further limits our review by granting the immigration judge the exclusive power to determine “what evidence is credible.” Boadi, however, tries to frame the issue as legal in two distinct ways.

First, he argues that the immigration judge conflated his determination of whether Boadi was credible with his determination of whether Boadi met his burden of proof. However, Boadi’s characterization of the immigration judge’s opinion is incorrect. The immigration judge merely determined Boadi failed to meet his burden of proof because he was not credible. Boadi’s evidence predominantly consisted of his own testimony and explanations regarding DHS’s investigation; without credibility, there was no evidence in favor of Boadi. And in making this credibility determination, the immigration judge reviewed the entire record and explained his reasoning for the determination. He examined the discrepancies uncovered by the DHS witness and explained how Boadi’s clarifications were unpersuasive.

Second, Boadi argues the immigration judge did not consider the factors in 8 U.S.C. § 1229a(c)(4)(C) in making the credibility determination. This section is permissive—the “immigration judge may base a credibility determination [on various factors].” Thus, the immigration judge was under no obligation, contrary to Boadi’s assertion, to, for instance, consider Boadi’s demeanor, evasiveness, or internal inconsistency. See also id. (noting “there is no presumption of credibility” and permitting the immigration judge to consider “the totality of the circumstances” and the “inherent plausibility of the applicant’s or witness’s account”). Thus, the immigration judge correctly followed the law in determining Boadi was not believable.

D. Weight of the Evidence

Finally, Boadi’s assertion that the immigration judge’s decision was against the manifest weight of the evidence, as the name suggests, requests that we reweigh the immigration judge’s assessment of the evidence—something we cannot do when the application for relief is in the Attorney General’s discretion. 8 U .S.C. § 1252(a). However, Boadi again tries to couch this claim as legal. First, Boadi argues that 8 C.F.R. § 216.5(e)(2)(i)-(iv) required the immigration judge to place more weight on the bills and bank account statements that bore both his and Bonds’s name. That regulation, however, merely lists evidence an applicant “may” submit. It does not require the immigration judge to attach a certain weight to it.

Boadi also argues that the immigration judge focused exclusively on Boadi and Bonds’s conduct after the marriage. Boadi essentially argues that too much emphasis on after-the-marriage conduct runs afoul of the statute’s requirement that the marriage be “entered into” in good faith—i.e., the couple’s intention at the time of marriage. However, conduct after the marriage is certainly relevant to determining Boadi’s intention at the time of his marriage. A bona fide couple’s decision to have children, buy a house together, or introduce one another to the other’s children suggests that they intend to begin a life together. These considerations are not dispositive—a fraudulent marriage could exhibit similar tendencies just like bona fide couples could live apart or speak infrequently. But they are relevant, and an immigration judge is charged with placing the appropriate weight on them, which 8 U.S.C. § 1252(a) prevents us from second guessing.

III. Conclusion

For the foregoing reasons, we Deny Boadi’s petition.

FOOTNOTES

1. Because Boadi was removable under this section, the immigration judge did not reach the issue of removability under sections 1227(a)(1)(A) (obtaining immigration benefit by fraud) or 1227(a)(1)(B) (exceeding the authorization of his visa).

2. Boadi also argues the immigration judge’s conduct violated his rights in a third way—that the Board failed to consider the “implications” of this procedural posture. Boadi does not explain what these implications are beyond having to proceed pro se when the government examined its witness and having twenty days to secure Chicago counsel instead of more time to secure Cleveland counsel, both of which we consider.

3. Boadi initially asserted that these procedural irregularities deprived him of due process under the Fifth Amendment. However, as Boadi recognizes in his reply brief, the good-faith marriage waiver is discretionary. Discretionary waivers (i.e., the waiver of inadmissibility) are not liberty interests and do not implicate the Constitution. See Lagunas–Salgado v. Holder, 584 F.3d 707, 712–13 (7th Cir.2009); Kahn v. Mukasey, 517 F.3d 513, 518 (7th Cir.2008).

FLAUM, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Good-Faith Marriage Waiver | Tagged | Leave a comment

CA7 on In Absentia Orders of Removal

Posted on April 30, 2013 by Mike Baker

CA7 on In Absentia Orders of Removal: The court set aside the in absentia order of removal, finding that the petitioner was not given an opportunity to present evidence that her case should be reopened because she never received notice of the hearing.

A Lithuanian national, Smykiene entered the U.S. in 1995 on a visitor’s visa. Six months after it expired, she was arrested by Border Patrol officers in New York. The officers gave her an order to show cause why she should not be deported and also told her to provide an address. The Immigration Court sent certified mail to the address that Smykiene with her hearing notice. The Postal Service returned the mail with the notation “Attempted—Not Known.” There was no follow-up. Smykiene did not appear and the immigration judge ordered her deported. A year later she married a man who, two years after that, became a naturalized U.S. citizen. In 2010, when authorities located her, Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The Board of Immigration Appeals affirmed an order of removal. The Seventh Circuit remanded, stating that: “The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer … from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia.”

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SMYKIENE v. HOLDER

Elena SMYKIENE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 12–1800, 12–2877.

Argued Jan. 18, 2013. — February 13, 2013 Before POSNER, FLAUM, and SYKES, Circuit Judges.

Y. Judd Azulay, Shannon M. Shepherd, Immigration Attorneys, LLP, Chicago, IL, for Petitioner. Melissa K. Lott, Leslie M. McKay, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Elena Smykiene asks us to set aside the order of the Board of Immigration Appeals affirming an immigration judge’s order that she be removed to Lithuania, and the Board’s subsequent order denying her petition to reconsider its previous one. (We won’t have to discuss the second petition, which challenges the denial of reconsideration and which we hereby dismiss as moot.) Her petition for review presents questions concerning orders of removal in absentia.

A Lithuanian national, Smykiene entered the United States in 1995 on a visitor’s visa. It expired in six months but she remained. Six months after it expired, in April 1996, she was arrested by U.S. Border Patrol officers in upstate New York. She was not jailed, but the arresting officers gave her an order to show cause why she should not be deported and also told her to provide them with her address. She gave them the following address: “4711 St. Joseph Creek Rd., Lisle, IL 60532 (‘Lisle Condo’).” She says this was an apartment house owned or leased by her employer and that she lived there with five other Eastern European women, all of whom, like her, worked as maids. The immigration judge conducted no evidentiary hearing, so the validity of these contentions has not been determined.

On July 22, 1996, the Immigration Court sent by certified mail to the address that Smykiene had given the Border Patrol a notice (called “notice to appear”) that her hearing before the court would be held on December 11. The Postal Service returned the mail to the sender with the notation “Attempted—Not Known,” which means that delivery was attempted but that the addressee was not known at the address to which the letter was delivered. There was no follow-up. December 11 came, Smykiene did not appear, and the immigration judge ordered her deported. (What is now called “removing” was then called “deporting”; in the rest of this opinion we’ll use the current term.)

She says that a year later she married a man who, two years after that, became a naturalized U.S. citizen. So matters stood until November 23, 2010, when immigration officers showed up at her home (she was still living in DuPage County, where Lisle is located, but no longer in Lisle) and told her about the 14–year–old order of removal. A lawyer hired by her filed a motion to reopen the removal proceeding and rescind the removal order on the ground that his client had never received the notice of the removal hearing. The lawyer attached an affidavit in which Smykiene swore that she had not received the notice and that at the time she was handed the order to show cause she couldn’t understand English. The affidavit, together with the notice that the Postal Service returned, is the only actual evidence in the case; we print the affidavit as an appendix to this opinion.

We set to one side issues of prosecutorial discretion—they are not our business, though we can’t forbear to express our puzzlement that the government should be trying to remove a woman who for all they know is married to an American citizen and has lived in this country for 17 years without incident.

An alien cannot be ordered removed from the United States without notice and an opportunity to be heard. Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (“the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). The alien can waive his right to a removal hearing; he does so if having received notice of the hearing he decides to skip it; and in that case he can be ordered removed without a hearing—that is, ordered “in absentia ” to be removed. Sabir v. Gonzales, 421 F.3d 456, 458 (7th Cir.2005). But if he never received the notice, there is no waiver and so he is entitled to reopen the removal proceeding to enable him to contest removal. Id. at 458–59. That is, an order of removal in absentia “may be rescinded ․ upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) ․ of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229(a)(1) provides that “written notice ․ shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien).”

As explained in Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004), “the fact that the intended recipient did not actually receive notice does not contradict evidence that delivery was attempted and the notice requirement thus satisfied. But when as in this case the issue is not notice but receipt, because the statute allows an alien ordered removed in an absentia proceeding to reopen the proceeding if he did not receive notice even if the notice that was sent, whether or not it was received, satisfied statutory and constitutional requirements, the intended recipient’s affidavit of nonreceipt is evidence.”

In denying Smykiene’s motion to reopen, the immigration judge confused notice with receipt, as well as overlooking our statement in Joshi that an affidavit of nonreceipt is evidence of nonreceipt. He said that Smykiene had been “properly ․ notified of her hearing,” since the address on the letter returned to sender was the address she’d given the arresting officer, and that instead of showing up at the hearing she had “waited over 14 years before filing a motion to reopen, and did so only after she was arrested ․ and notified she would have to report for deportation.” A person is not “notified” if though notice was sent, it was not received. If Smykiene did not receive the notice she wouldn’t have realized that she’d been ordered removed and so had better move to reopen. In this court the government acknowledges that she didn’t receive the notice.

The immigration judge, in support of his rebuke to her for “wait[ing] over 14 years before filing a motion to reopen,” added that she’d “presumptively received” if not the notice then the actual order of removal, because it had been mailed to her. But if she didn’t receive the notice of the hearing, why would she be expected to have received a subsequent mailing to the same address? (We don’t know what happened to that second letter.)

The immigration judge pointed out that an alien “cannot avoid notice by refusing to accept the notice or by providing an address at which she does not reside.” And that is true; the alien who evades notice can’t reopen the removal hearing. Peralta–Cabrera v. Gonzales, 501 F.3d 837, 843–44 (7th Cir.2007); Sabir v. Gonzales, supra, 421 F.3d at 459; Sanchez v. Holder, 627 F.3d 226, 233–34 (6th Cir.2010). But there is no evidence that Smykiene refused to accept the certified letter notifying her of the removal hearing; had she refused, the Postal Service would if it followed its customary procedures have stamped “Refused” on it rather than “Attempted—Not Known.” Nor is there evidence that she hadn’t given the arresting officers her actual address (though later we’ll see there’s a question of the accuracy of the address she gave) or had otherwise attempted to evade the notice of hearing. Indeed no evidence concerning receipt was presented besides the returned letter and her affidavit, as there was no evidentiary hearing on her motion to reopen.

Smykiene concedes that proper notice was sent; the government agrees that it was not received; so the only question is whether she evaded receipt. Once nonreceipt is attested in an affidavit and there is no conclusive evidence of evasion, the alien is entitled to an evidentiary hearing. Dakaj v. Holder, 580 F.3d 479, 482–83 (7th Cir.2009) (per curiam); Joshi v. Ashcroft, supra, 389 F.3d at 735; Kozak v. Gonzales, 502 F.3d 34, 37–38 (1st Cir.2007); Nibagwire v. Gonzales, 450 F.3d 153, 157–58 (4th Cir.2006); Ghounem v. Ashcroft, 378 F.3d 740, 744–45 (8th Cir.2004); Salta v. INS, 314 F.3d 1076, 1079–80 (9th Cir.2002). We needn’t decide who has the burden of persuasion if an issue of evasion is raised in the evidentiary hearing. The Board said in In re Grijalva, 21 I & N Dec. 27, 37 (BIA 1995), that given the “presumption of effective service” (that is, that mail is usually delivered), the alien “must present substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.” But this standard, which substitutes a failure, even if completely innocent, to provide a correct address for evasion (in the sense of an intentional or reckless avoidance of receipt) as a ground for waiver of the right to a hearing, is not alluded to in the Board’s or immigration judge’s opinions in the present case; and anyway Smykiene hasn’t been given a hearing at which to present evidence that might meet the standard of the Grijalva case.

The confusion evident in the immigration judge’s opinion carried over to the Board’s decision affirming him. The Board said that “in light of the documentary evidence in the record that the NOH [Notice of Hearing] was sent by certified mail through the U.S. Postal Service and there is proof of attempted delivery and notification of certified mail to the respondent, we agree with the Immigration Judge that the respondent received proper notice of the hearing. Therefore, the respondent has failed to overcome the strong presumption of effective service.” In saying this the Board repeated the immigration judge’s elementary mistake of confusing notice with receipt. Mail is sometimes misdelivered. Nothing is known for certain about the living arrangements in the condo in Lisle, although Smykiene asserts, thus far without contradiction, that several Eastern European maids were living there, she among them. Their English may have been atrocious. They may have been illiterate in English. They may all have been living in the same apartment and Smykiene’s name may not have been on the list of residents posted (one assumes) at the condo’s entrance. It wouldn’t be surprising in these circumstances that she hadn’t received a letter addressed to her.

In parentheses the Board states that an immigration judge “may rescind an order of removal entered in absentia if the alien demonstrates that without her own fault she did not receive notice of her removal hearing” (emphasis in original). This is offered as a paraphrase of our holding in the Sabir case, which we cited earlier. It is an inaccurate paraphrase. The opinion in Sabir, after noting that “it is undisputed that Sabir did not receive the notice of his hearing—the record shows that it was returned to the immigration court marked ‘AttemptedNot Known,’ ” asks: “what if, as the IJ speculated, it was Sabir’s own fault that the notice was not delivered?” Sabir v. Gonzales, supra, 421 F.3d at 459. The speculation was “that Sabir thwarted delivery of the notice by changing the name on his mailbox.” Id. We noted that the change had not been described and that anyway the Postal Service considers the name on a customer’s mailbox irrelevant to delivery. And so the immigration judge had “erred in denying Sabir’s motion to reopen in the face of conclusive proof that Sabir did not receive the notice.” Id. The opinion does not place the burden of negating evasion on the alien, as the Board in the present case interpreted it to do.

The Board also faulted Smykiene for having failed to notify the Immigration Court of her change or changes of address, as required to do so by the order to show cause. But there is no evidence that she changed addresses during the relevant time.

We note one more garble in the Board’s opinion—another misleading parenthetical description of a holding, this one a holding in its Grijalva decision cited earlier. The parenthetical states: “a hearing notice which is sent by certified mail to the alien’s last known address is sufficient to establish by clear, unequivocal, and convincing evidence that the alien received notice of the deportation hearing.” (emphasis added). That is not what the Board said in Grijalva. It said that mailing notice to the alien’s last known address meets the statutory requirement of providing notice; it clearly and correctly distinguished between notice and receipt of notice. In re Grijalva, supra, 21 I & N Dec. at 34, 36. We don’t understand how the Board could have missed this fundamental distinction in the present case.

Compounding confusion gratuitously, Smykiene’s opening brief asserts that she accidentally failed to give the Border Patrol officers her full address. She left out the last four digits of the nine-digit zip code and the number of her apartment. The first error would have been inconsequential, but the second would have increased the probability that she would not receive the notice. It is odd that her lawyer would assert that his client had given the Border Patrol an incomplete address, for that would suggest that the misdelivery of the notice of hearing was her fault after all; and indeed the Justice Department’s lawyer pounced on the assertion to support the argument that it was indeed her fault. But this is to use “fault” in a lay rather than legal sense. The government cites no authority for the proposition that an innocent mistake, especially of the kind likely to be made by a newcomer to the United States from a non-English-speaking country, forfeits the right to reopen an order of removal in absentia. Suppose Smykiene didn’t understand the order to show cause, and knew only that she had to give the officers her address. Suppose in doing so she didn’t realize that her apartment number was part of the address, or that in her anxiety she simply forgot to include it. Suppose when she didn’t receive any communication from the government after her arrest she assumed that the government had decided not to bother with her; arrests often don’t lead to prosecutions. If these are the circumstances—they are consistent with and to a degree supported by her affidavit—we doubt that the Board would enforce the in absentia removal order, for it is a grave matter to eject a person from the United States without giving her an opportunity to show that she should be allowed to remain, for example because she has married an American citizen. Anyway an appellate brief is not the place to allege new adjudicative facts, as Smykiene’s lawyer pointlessly did.

Whatever standard Smykiene must meet to reopen her case, she has been given no opportunity to meet it, and so the Board’s order must be set aside.

In closing we note our dissatisfaction with the Justice Department’s advocacy in this case. Its brief states that Smykiene “needed to at least minimally try to explain the unsuccessful delivery of her hearing notice, perhaps by providing some direct or circumstantial evidence that the address she gave to INS agents in April 1996 was correct and was still the address at which she could be reached in July 1996 when the hearing notice was mailed to her.” We’ll forgive the cumbrously split infinitive but not that when we pointed out at the oral argument that Smykiene was given no opportunity to explain anything, the Justice Department’s lawyer switched gears and argued that to contest an in absentia order of removal the alien must plead that she did not receive the notice to appear, that she was still at the address to which the notice was mailed, and that she was not trying to thwart delivery, as by giving a false address or simply not opening mail that she knew to be from the Immigration Court (which she might not know, if indeed she was illiterate in English). But failure to plead these things was not the ground of the Board’s decision and has, so far as we have been told, no basis in the Board’s case law. So once again the Justice Department in defending the Board of Immigration Appeals in a court of appeals has violated the Chenery doctrine. See, e.g., Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir.2011); Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.2008); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir.2004); Carpio v. Holder, 592 F.3d 1091, 1096 (10th Cir.2010).

The petition for review is granted and the matter returned to the Board for further proceedings.

Appendix: Elena Smykiene’s Affidavit

I, Elena Smykiene, do hereby swear and affirm the following:

1. On April 20, 1996, I was sleeping in a room in the Budgetel Hotel, in Plattsburgh, New York.

2. At about 6:00 in the morning, I was awakened by a terrible knock on the door. I didn’t know what was happening. I thought maybe it there was a fire.

3. When I opened the door, I saw a tall, white blue eyed man standing there. He said something, but I could not understand him. I do remember him saying “Immigration”. I did not speak or understand English at that time. I spoke only Lithuanian, Polish, Russian, and Ukrainian. It turned out that he was an immigration officer. He spoke very angrily. I understood that something was wrong. He said something else which I did not understand. Finally, he gestured with his hand, and I realized he wanted me to go with him.

4. We took the elevator to the lobby. There I saw several other Lithuanians, and two other immigration officers.

5. The immigration officers were saying something, but I did not understand them. Finally one of the Lithuanians who understood some English said that we had to show our documents, and if we did not we would go to jail.

6. I went to my room escorted by the angry man. I gave him my passport and social security card. He said something else, which I did not understand. We went back to the lobby, and the officers said something else. The Lithuanian man who knew a little English, explained that we had to go the Immigration office.

7. I was driven to the Immigration office. There, they put us all in a separate room.

8. An officer came and starting taking our pictures and fingerprints, like we were criminals. When my turn came, the same angry man called my name. He told me to take a seat next to him. He copied something down from my passport. He asked me something very angrily, but I did not understand him. I was very afraid. He showed me the place where I had to sign. I signed but did not know or understand what I was signing. There were two other officers that I saw. None of the officers spoke to me in a language that I could understand.

9. That same day I called an acquaintance in Chicago. A Lithuanian man helped me buy a bus ticket to Chicago. My acquaintance met me at the bus station in Chicago.

10. I did not receive a notice from the Immigration Court telling me to court to court. I was not told what would happen if I did not go to Court.

11. When I came to Chicago, I got sick and depressed, because the incident frightened me very much. Even now after so many years passing, I cannot forget what happened to me that day in 1996. I was so very frightened.

12. Immigration officers recently came to my home, and told me that I have to report to their office on January 11, 2011.

POSNER, Circuit Judge.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, In Absentia Orders of Removal | Tagged | Leave a comment