CA7 lacks jurisdiction to review Mexican cancellation as grounds for relief sought are discretionary

Petitioner, a citizen and native of Mexico, appealed the BIA’s affirmance of the IJ’s denial of his application for cancellation of removal. The court held that the courts of appeal lack jurisdiction to review the denial of discretionary relief in immigration proceedings. The court adhered to the rule that 8 U.S.C. 1252(a)(2)(B) excludes from the court’s jurisdiction challenges to an IJ’s application of the law to the facts of a case when the grounds for relief sought are discretionary, and that in such a case the subpart (B) exclusion is unaffected by section 1252(a)(2)(D). In this case, the court dismissed the petition for review to the extent that the court lacked jurisdiction and the court denied the remaining arguments.

Adame is a citizen and native of Mexico. The exact date of his entry to the United States is not clear. At the latest it was in 2001, as demonstrated by a traffic ticket he received in Kansas that year. Adame testified before the IJ that he entered the country in 1997, but he had no other evidentiary support for that statement. Either way, he entered the country without inspection and lived in the United States without incident (at least from an immigration perspective) until 2009, when the Department of Homeland Security issued him a Notice to Appear. The Department had discovered him because of an arrest, which is the subject of a baffling but ultimately inconsequential uncertainty: though he apparently was arrested for the manufacture and delivery of cocaine, his record shows that he pleaded guilty to “drinking in a park.” Adame conceded removability as a noncitizen present without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). With the help of counsel, however, he prepared an application for cancellation of removal. After two continuances, the IJ denied his application on October 6, 2011, and ordered him removed to Mexico.

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__________

ALVARO ADAME, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-2405.

United States Court of Appeals, Seventh Circuit.
Argued April 14, 2014.
Decided August 12, 2014.

Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.

WOOD, Chief Judge.

Petitioner Alvaro Adame was placed in removal proceedings in 2009. He applied for cancellation of removal, but an immigration judge (IJ) rejected his application in 2011 and ordered him removed. The Board of Immigration Appeals (Board) affirmed. Adame now petitions for review of the Board’s decision, asserting that we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). The central issue before us is whether that is true.

Adame is a citizen and native of Mexico. The exact date of his entry to the United States is not clear. At the latest it was in 2001, as demonstrated by a traffic ticket he received in Kansas that year. Adame testified before the IJ that he entered the country in 1997, but he had no other evidentiary support for that statement. Either way, he entered the country without inspection and lived in the United States without incident (at least from an immigration perspective) until 2009, when the Department of Homeland Security issued him a Notice to Appear. The Department had discovered him because of an arrest, which is the subject of a baffling but ultimately inconsequential uncertainty: though he apparently was arrested for the manufacture and delivery of cocaine, his record shows that he pleaded guilty to “drinking in a park.”

Adame conceded removability as a noncitizen present without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). With the help of counsel, however, he prepared an application for cancellation of removal. After two continuances, the IJ denied his application on October 6, 2011, and ordered him removed to Mexico.

Cancellation of removal is a form of discretionary relief available to certain nonpermanent residents. In order to be eligible, the applicant must meet three statutory criteria. First, she must have been physically present in the United States for at least ten consecutive years immediately preceding the date of her application. Second, she must have been a person of “good moral character” during that period. Finally, she must show that her removal would cause “exceptional and extremely unusual hardship” to a U.S.-citizen or permanent-resident spouse, parent, or child. 8 U.S.C. § 1229b(b). The petitioner bears the burden of establishing each of these criteria.

The IJ found that Adame had struck out on all three. He could not show the necessary ten years’ continuous residence, the IJ reasoned, because the earliest documentary evidence of his presence in the United States was the 2001 traffic ticket, issued only eight years before he submitted his application in 2009. In so ruling, the IJ chose not to credit Adame’s testimony that he entered in 1997. He found the testimony unreliable because of inconsistencies in Adame’s testimony on other matters such as his arrest record.

The IJ added that Adame could not establish the required good moral character because his criminal record reflected multiple minor offenses, most related to drinking (e.g., driving while intoxicated, loitering in a bar, public intoxication). Finally, Adame failed to prove that his U.S.-citizen children would suffer “exceptional and extremely unusual hardship” beyond that experienced by all children whose parent is removed from the country, because there was no evidence that he would be unable to support the children in Mexico or to obtain certain necessary medications for them.

The Board affirmed the order of removal and the denial of cancellation of removal. Because a failure to show any one of the three requirements was enough to deny relief, the Board opted to restrict its discussion to the continuousresidence issue. On that point, it observed that “the testimonial evidence alone was insufficient,” and it rejected Adame’s argument that the IJ should have warned him earlier that he would need to present documentary evidence to support his contention that he entered in 1997. The Board also noted that the IJ told Adame at his first hearing that he would have to “present proof” of his residence and that “just saying you’ve been here” would not suffice. Accordingly, the Board dismissed Adame’s appeal, and Adame filed a timely petition for review in this court.

As a general matter, the courts of appeals lack jurisdiction to review the denial of discretionary relief in immigration proceedings. Under 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review … any judgment regarding the granting of relief under [§ 1229b] … [or] any other decision or action of the Attorney General … the authority for which is specified under this subchapter to be in the discretion of the Attorney General….” The only (but important) exception to this rule is if the petition for review presents a constitutional claim or question of law. See id. § 1252(a)(2)(D). Cognizant of this limitation, Adame styles his petition as raising a due process claim: he argues that the IJ and then the Board violated his Fifth Amendment right to due process by determining that his testimony lacked credibility and by requiring him to submit extra documentation to prove his ten years of continuous residence. Alternatively, Adame argues that the IJ should have granted a continuance to allow him to collect this documentation.

Like any party raising a due process claim, an immigration petitioner must have a constitutionally protected liberty (or property) interest in order for some process to be “due” under the Fifth Amendment. See Brock v. Roadway Express, Inc., 481 U.S. 252, 260 (1987). While a noncitizen has a protected liberty interest in remaining in the United States, that interest does not encompass a right to favorable decisions that would allow the petitioner to seek discretionary relief. Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). Even if the IJ were flat-out wrong and Adame had resided in the United States for ten continuous years before he received his Notice to Appear, the question remains whether a court of appeals would be authorized to correct that error. The statute, after all, does not say that jurisdiction exists over constitutional questions, legal issues, and egregious mistakes of fact. Moreover, even if there were some legal hook that would permit a petitioner like Adame to obtain review of the residence determination, correction of any error in that finding would not be enough to guarantee that cancellation of removal would be granted. It would merely allow him to move to steps two and three—that is, to present evidence on good moral character and extremely unusual hardship to a U.S.-citizen relative.

Even a successful showing of those points would not be enough on its own. It would simply authorize the IJ to use his discretion over cancellation of removal in Adame’s favor. As the statute puts it, after the three criteria are established, the IJ “may cancel removal”; it does not say that the judge must do so. 8 U.S.C. § 1229b(b)(1) (emphasis added). A noncitizen’s “right to due process does not extend to proceedings that provide only … discretionary relief.” Cevilla, 446 F.3d at 662 (quoting Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir. 2005)) (internal quotation mark omitted). As cancellation proceedings provide only discretionary relief, it follows that the IJ’s decision to deny cancellation of removal did not violate any rights protected by the Fifth Amendment’s Due Process clause. We may resolve the legal issue presented by this part of the petition, because Adame’s argument is not so insubstantial that it fails to engage our jurisdiction under § 1252(a)(2)(D).

In the alternative, Adame argues that the IJ incorrectly applied the law to the facts by requiring additional evidence that he had been in the United States for ten years of continuous residence when that evidence was not reasonably available. Adame urges that the IJ erred by calling for documentary evidence to supplement his testimony without considering whether that evidence could reasonably be obtained. This, he says, is another question of law over which we may take jurisdiction, and he points to the Eighth Circuit’s decision in Sanchez-Velasco v. Holder, 593 F.3d 733 (8th Cir. 2010), as one case that adopts the approach he describes.

We acknowledge that not only the Eighth Circuit, but also the Fifth, Sixth, and Ninth Circuits have taken the position that the jurisdiction to review questions of law referred to in 8 U.S.C. § 1252(a)(2)(D) extends to “questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.” Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); see also Morales-Flores v. Holder, 328 F. App’x 987, 989 (6th Cir. 2009) (citing Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005)); Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003). These courts evaluate such claims using the standard of review provided by the Administrative Procedure Act, 5 U.S.C. § 706. See, e.g., Santana-Albarran, 393 F.3d at 705 (reviewing continuous-presence determination under substantial-evidence test).

We might add the Second Circuit to that list. Though it declined to determine the “precise outer limits” of what constitutes a “question of law” in Chen v. United States Department of Justice, the Second Circuit too allows some consideration of “mixed” questions of law and fact, at least to the extent that similar challenges may be brought on habeas corpus review of executive detentions. 471 F.3d 315, 326-27 (2d Cir. 2006). This allows a court to consider claims concerning errors in both the interpretation and application of statutes. Id. at 327 (citing I.N.S. v. St. Cyr, 533 U.S. 289, 302 (2001)). The Second Circuit arrived at this position after vacating its earlier opinion in Chen, in which it had held that only constitutional and statutory construction questions fell within the court’s jurisdiction. See Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 153-54 (2d Cir. 2006) vacated by Chen, 471 F.3d 315 (2d Cir. 2006). That said, the Second Circuit has made an effort not to allow the “mixed-question” exception overwhelm the statutory rule. It thus holds that disputes about the IJ’s factfinding dressed up as legal questions and general challenges about an IJ’s alleged failure to take certain evidence into account fall outside what a court may consider. See Liu v. I.N.S., 508 F.3d 716, 720-21 (2d Cir. 2007). The First, Third, and Fourth Circuits have followed Chen, permitting review of the threshold question whether the correct legal standard was used, but finding no jurisdiction when the so-called legal question is simply a means of challenging factual conclusions. See Vargas v. Attorney General, 543 F. App’x 162, 163-64 (3d Cir. 2013) (per curiam); Amedome v. Holder, 524 F. App’x 936, 937-38 (4th Cir. 2013); Ayeni v. Holder, 617 F.3d 67, 72-73 (1st Cir. 2010).

This court’s position has been a strict one. We have adhered for years to the rule that § 1252(a)(2)(B) excludes from our jurisdiction challenges to an IJ’s application of the law to the facts of a case when the grounds for relief sought are discretionary, and that in such a case the subpart (B) exclusion is unaffected by § 1252(a)(2)(D). Cevilla, 446 F.3d at 661. We have understood the review of the application of law to facts as something different from review of so-called “pure” questions of law. Even though Cevilla relied heavily on the Second Circuit’s now-vacated initial opinion in Chen for its reasoning, we have reconsidered and reaffirmed our position on this point. See Viracacha v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008). We thus limit our review to constitutional claims and questions of statutory construction. See id.; Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005) (explaining that interpretation of term “continuous physical presence” can be reviewed because it presents a legal question of statutory construction). Under this court’s understanding of the statutory scheme, Adame’s challenge to the IJ’s demand for additional evidence falls outside of our authority. The conflict in the circuits on this point is a serious one, but it has stood for some time. Indeed, the government candidly informed us at oral argument that it would not press the same jurisdictional defense in other circuits.

This disposes of most of Adame’s petition. We comment briefly on a few additional arguments he raises. First, he faults the Board for offering no new or additional analysis in its order affirming the IJ’s conclusion. But the Board is under no obligation to provide “extra” analysis; if the IJ’s analysis is sufficient to sustain its conclusion, the Board is entitled to affirm on that basis.

Second, Adame challenges the IJ’s decisions about his moral character and his family’s potential hardship. We do not have jurisdiction to review those decisions for the same reasons we cannot review the sufficiency of the evidence on the duration of his residence: they lead only to discretionary relief, and they involve only applications of law to facts.

Third, Adame contends that the IJ failed to follow the procedural requirements for considering an application for cancellation of removal. While no particular statute sets out explicitly what those procedures are, a noncitizen “applying for cancellation of removal has the same statutory process protections as an alien involved in removal proceedings….” Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012); cf. Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (explaining that statutorily required procedures assure compliance with constitutional due process requirements, and that a petitioner may have a legal claim when she can show statutory procedural shortfalls). But he has not told us enough about his complaint to allow us to address this point. Instead, he merely refers to 8 U.S.C. § 1229a without explaining how its requirements were violated. It is true that 8 U.S.C. § 1229a(c)(4)(B) directs the IJ to weigh credible testimony along with other evidence in the record, but we do not see where that gets Adame, since the IJ found his testimony not credible. Section 1229a(c)(4)(C) directs the IJ to base his decision on the totality of the circumstances, and that is what he did.

Last, Adame argues that the IJ erred by refusing to grant him a continuance to seek additional documentary evidence rather than ordering him removed. We may review an allegation that the immigration courts failed to follow their own precedent faithfully, because this presents a question of law. Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011). The Board’s rule on when continuances should be granted comes from Matter of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009), in which the Board laid out what must be shown before a continuance may be granted. Two of the most salient requirements for our purposes are that the petitioner must be unable to procure the necessary evidence despite a diligent effort, and that the evidence would be significantly favorable to him. Id. at 788. Under this standard, we conclude that the IJ’s denial of a continuance was within his discretion. Adame and his counsel knew for two years that he would have to prove ten years’ residence. Adame’s complaint that it was difficult to obtain evidence from his alleged employer or the relatives he says he lived with at the time rings hollow. First, two years is a substantial period of time to gather the evidence, and second, there is nothing in the record to show that Adame made a diligent effort (or any effort) to pursue these leads.

The petition for review is DISMISSED to the extent we lack jurisdiction and DENIED as to the remainder.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Cancellation of Removal, court lacked jurisdiction, DIscretionary relief | Leave a comment

BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON AND ERANDIO, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



Posted in BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 remands for reasoned analysis of evidence of past persection in Belarus

Sobaleva entered the U.S. on a student visa and applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Potorac, a citizen of Moldova. An immigration judge denied Sobaleva’s application and ordered that she and Potorac be removed. The Board of Immigration Appeals affirmed, stating that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution. The Seventh Circuit remanded, finding two significant flaws in the decisions: the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus and misconstrued and disregarded important evidence.

In Belarus, Sobaleva belonged to a group called Malady Front (Young Front), a large youth organization opposed to the country’s longtime authoritarian leader, Alexander Lukashenko. Malady Front and affiliated organizations like Young Belarus have been frequent targets of government crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3–8 (April 8, 2011) (describing the arrests and detentions of group members for their political activity); Amnesty International, 2007 Report 1on Belarus (April 3, 2007) (ascribing the five-year prison sentence of Malady Front leader Alyaksandr Kazulin to a “systematic campaign of harassment, intimidation, and obstruction by the Belarusian authorities”). Conditions in Belarus have not improved since Sobaleva’s departure in May 2010. See Boika v. Holder, 727 F.3d 735, 739 (7th Cir.2013) (summarizing evidence that, since Lukashenko’s disputed election in December 2010, the Belarusian government has been particularly aggressive toward opponents)

Sobaleva filed a timely application for asylum roughly nine months after her arrival in the United States. Her application described her participation in anti-government protests and her mistreatment by police in connection with two of them. The judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus. Second, both the judge and the Board misconstrued and disregarded important evidence, so that the decision to deny Sobaleva’s application is not supported by a reasoned analysis. Sobaleva did not receive a reasoned analysis of her evidence. She must be provided with one on remand. If the Board then concludes that the police officers were motivated by Sobaleva’s political opinion during the May 2010 incident, it must consider whether the combination of that incident and her October 2009 arrest and detention amounts to past persecution.

The first major flaw is that both the immigration judge and the Board apparently applied the appellate court’s standard for assessing persecution claims on judicial review rather than the standard that applies to their own judgments in the first instance. CA7 held in a similar case, Sirbu, 718 F.3d at 658-60, that this is a legal error that requires remand. The two standards for assessing evidence of persecution are distinct. On judicial review of a denial of asylum, CA7 asks whether the petitioner’s evidence compels a finding of persecution. By contrast, the “proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution,” which is a less demanding standard that calls for the agency to apply its expert judgment.

The second major flaw in the immigration judge’s and Board’s decisions is that neither gave due consideration to the evidence Sobaleva presented. Both disregarded some evidence, improperly isolated or mischaracterized other evidence, and took logical leaps that do not withstand scrutiny. “An asylum applicant is entitled to a reasoned analysis of her case supported by relevant, probative evidence.” Where such analysis is lacking, remand for further consideration is required. See id.; Qiu Yun Chen v. Holder, 715 F.3d 207, 214 (7th Cir. 2013) (remanding because Board’s mischaracterization of some evidence and disregard of other evidence “depriv[ed] the Board’s order denying asylum of a rational foundation”); Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005) (“We do not decide that [the petitioner] is entitled to asylum; that is a decision for the immigration authorities to make. But she is entitled to a rational analysis of the evidence by them.”).

___________________________________
KATSIARYNA SOBALEVA and ALEXANDRU POTORAC, Petitioners,
v.
ERIC HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-3651

United States Court of Appeals, Seventh Circuit.
Argued April 1, 2014.
Decided July 24, 2014.

Before TINDER and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]

HAMILTON, Circuit Judge.

Petitioner Katsiaryna Sobaleva, a citizen of Belarus, entered the United States on a valid student visa. She applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Alexandru Potorac, a citizen of Moldova. (Because Potorac’s eligibility for asylum derives entirely from Sobaleva’s, it does not require separate consideration.) An immigration judge denied Sobaleva’s application and ordered that she and Potorac be removed to their respective countries. The Board of Immigration Appeals affirmed, explaining that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution.

Sobaleva and Potorac petition this court for review of the orders of removal. We conclude that two significant flaws in the decisions of both the immigration judge and the Board require that the petition be granted and the case remanded for further consideration. First, the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus. Second, both the judge and the Board misconstrued and disregarded important evidence, so that the decision to deny Sobaleva’s application is not supported by a reasoned analysis.

I. Factual and Procedural Background

In Belarus, Sobaleva belonged to a group called Malady Front (Young Front), a large youth organization opposed to the country’s longtime authoritarian leader, Alexander Lukashenko. Malady Front and affiliated organizations like Young Belarus have been frequent targets of government crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3-8 (April 8, 2011) (describing the arrests and detentions of group members for their political activity); Amnesty International, 2007 Report on Belarus (April 3, 2007) (ascribing the five-year prison sentence of Malady Front leader Alyaksandr Kazulin to a “systematic campaign of harassment, intimidation, and obstruction by the Belarusian authorities”). Conditions in Belarus have not improved since Sobaleva’s departure in May 2010. See Boika v. Holder, 727 F.3d 735, 739 (7th Cir. 2013) (summarizing evidence that, since Lukashenko’s disputed election in December 2010, the Belarusian government has been particularly aggressive toward opponents).

Sobaleva filed a timely application for asylum roughly nine months after her arrival in the United States. Her application described her participation in anti-government protests and her mistreatment by police in connection with two of them. A hearing on her application was held before an immigration judge.

In her testimony at the hearing and in an affidavit, Sobaleva recounted that police officers arrived at an October 2009 protest and began beating protesters indiscriminately. One officer hit Sobaleva hard in the face, knocking off her glasses and causing her nose to bleed. While she was bent over to retrieve the glasses, an officer grabbed her by the neck and shoved her into a police bus, where another officer hit her in the arm. Upon arriving at the police station, she was pushed out of the bus onto the ground.

Officers questioned Sobaleva inside the station about her political activities. She and five other arrestees were then placed in a cold cell designed to accommodate only two people. The detention lasted overnight for a total of about 15 hours. After her release, her mother tried to file a complaint about the incident but was turned away from the police station.

Sobaleva also testified that, on May 16, 2010, she had another experience with politically motivated violence by police. While she and two fellow protesters were walking together after a demonstration, they were stopped by officers who demanded identification. Although Sobaleva and her companions had left the protest site, they were wearing pictures of political prisoners on their shirts. Sobaleva testified that it is not unusual in Belarus for police officers to request identification but that, in this instance, after radioing in their names for a check, an officer began copying information from their passports into a report.

At that point, Sobaleva reached for her passport and asked if she was under arrest. An officer responded by shoving her against a building, knocking her unconscious. When she regained consciousness, her friends told her that the officer had kicked her while she was on the ground. Nauseated and in pain, Sobaleva went to a medical clinic and was diagnosed with a concussion, as documented by a doctor’s report in the record. The doctor recommended hospitalization, but Sobaleva chose instead to go home, where she stayed in bed for a week.

Soon after the incident, both of Sobaleva’s companions from the May 16 protest received notices to pay a fine. Sobaleva, however, received a summons to come to court on June 10 “in the role of the accused.” The summons identified the case as “criminal” but did not indicate why Sobaleva was being summoned or with what crime she had been charged.

Having left for the United States on May 31, Sobaleva did not attend court on June 10. She could provide no direct evidence at her asylum hearing that the summons concerned the events of May 16, but she testified that she believes it did because her companions from that day were fined and because she knows of no other reason she would have been summoned. She believes that she received a summons instead of being fined because she had previously been arrested for protesting—something the officers would have learned when they radioed in the information from her passport—and because she challenged them during the encounter.

According to Sobaleva’s mother, whose detailed written statement is also in the record, police officers came to her house looking for Sobaleva on June 10 after she did not show up in court. They have returned repeatedly since then and have threatened that Sobaleva’s absence could cost her mother her job.

The immigration judge denied Sobaleva’s application, finding that her evidence, when compared with other cases this court has decided, did not establish that she had been persecuted for her political opinion or that she has a wellfounded fear of future persecution. Regarding her arrest in October 2009, the judge observed that Sobaleva was held for no more than 16 hours and “was not mistreated” during that time. Additionally, Sobaleva herself did not “consider [the 2009] incident to be significant,” which the judge inferred from her continued political activity and her failure to mention the incident when she applied for her visa at the U.S. Embassy. Regarding the confrontation with police in May 2010, the judge said that Sobaleva did not “contend that she was detained or seriously abused by the police in the incident.” And the judge concluded that the summons she received “standing alone” did not suggest that she would be persecuted in the future.

The Board of Immigration Appeals affirmed. The Board accepted the judge’s assessment that Sobaleva gave credible testimony, and we do the same. See Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir. 2008). The Board found, though, that the events she described and her supporting evidence were not enough to meet her burden of proof. Her treatment by police in and after the October 2009 protest was “condemnable” but “did not rise to the level of persecution” as shown by a comparison with the treatment of other asylum applicants in cases decided by this court. Regarding the May 2010 incident, which resulted in a concussion, the Board found that Sobaleva “did not meet her burden of showing that her political opinion was a central reason for the mistreatment she suffered.” The Board also found that Sobaleva had failed to establish a connection between the court summons she received and her political activity.

II. Analysis

To be eligible for asylum, Sobaleva needed to establish either that she has suffered past persecution on account of her political opinion (or another protected ground) or that she has a well-founded fear of future persecution on a protected ground. See 8 U.S.C. § 1101(a)(42)(A); N.L.A. v. Holder, 744 F.3d 425, 431 (7th Cir. 2014). Past persecution raises a rebuttable presumption that the petitioner has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1); N.L.A., 744 F.3d at 431. Sobaleva argues that the Board of Immigration Appeals and immigration judge misconstrued her evidence in numerous ways and failed to consider it in context. If properly considered, she contends, the evidence establishes that she was persecuted for her political opinion and has a well-founded fear of future persecution, entitling her to asylum.

Because the Board provided its own analysis and also affirmed the immigration judge’s decision, we review both decisions. See Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013). Our review of legal conclusions is de novo, and we review factual conclusions to determine whether they are supported by “substantial evidence.” Id. at 897-98. We must ask whether the agency applied the proper legal standard in evaluating Sobaleva’s application, see Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir. 2013), and also whether the agency’s conclusions are supported by a reasoned analysis of the evidence, see Cece v. Holder, 733 F.3d 662, 678 (7th Cir. 2013) (en banc). Only if the record “compels” a finding of past persecution or a well-founded fear of future persecution will we conclude on judicial review that the applicant is eligible for asylum. Nzeve v. Holder, 582 F.3d 678, 684 (7th Cir. 2009).

For two reasons, the decisions of the immigration judge and Board in this case cannot stand. We do not decide at this time whether the record actually compels a finding of persecution; rather, we conclude that the flaws we have identified require remand to the Board for further consideration of Sobaleva’s application.

The first major flaw is that both the immigration judge and the Board apparently applied this court’s standard for assessing persecution claims on judicial review rather than the standard that applies to their own judgments in the first instance. We held in a similar case, Sirbu, 718 F.3d at 658-60, that this is a legal error that requires remand.

The two standards for assessing evidence of persecution are distinct. As explained above, on judicial review of a denial of asylum, we ask whether the petitioner’s evidence compels a finding of persecution. By contrast, the “proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution,” which is a less demanding standard that calls for the agency to apply its expert judgment. Id. at 659.

In Sirbu, the immigration judge concluded that the asylum applicant’s evidence did not “compel” a finding of persecution, and the Board, without using the word compel, “distinguished on factual grounds” our decision in Asani v. INS, 154 F.3d 719 (7th Cir. 1998), in which we “held that the facts were indeed so powerful as to `compel’ a finding of past persecution.” 718 F.3d at 658. “The Board then found guidance from our decision in Dandan [v. Ashcroft, 339 F.3d 567 (7th Cir. 2003)] in which we held that the abuse of the petitioner in police custody was not so severe as to `compel’ a finding of past persecution.” Id.; see Asani, 154 F.3d at 722-24 (7th Cir. 1998) (explaining that Board erred in concluding that petitioner was not seriously harmed by being detained for a week, being deprived of food, and having two of his teeth knocked out); Dandan, 339 F.3d at 574 (“A three-day interrogation resulting in a `swollen’ face does not compel us to conclude that the BIA was incorrect [in not finding past persecution].”). We concluded in Sirbu that the judge and the Board both had applied the appellate court standard for judicial review rather than making an independent determination. 718 F.3d at 658. We granted the petition for review for that reason and remanded the case for further consideration. Id. at 660.

As in Sirbu, the immigration judge and the Board in this case seem to have considered whether Sobaleva’s evidence would compel a finding of persecution on judicial review rather than considering whether she was in fact persecuted. The immigration judge did not use the word compel, but in concluding that Sobaleva’s treatment did not equal persecution, he said that her case “closely resembles the facts in Dandan and not the facts in Asani.” This reliance on a simple comparison to our cases disregarded the fact that when we apply deferential judicial review, we “expect the immigration judge and the Board to exercise their independent judgment and expertise in deciding whether the abuse of an applicant for asylum rose to the level of persecution.” Sirbu, 718 F.3d at 658. Facts that may not have compelled a finding of persecution in one case may nevertheless support such a finding in another case. The Board and immigration judges must keep in mind the difference between our standard and theirs when they assess evidence of persecution.

Rather than correcting the immigration judge’s Sirbu error, the Board actually exacerbated the problem. It supported its conclusion that Sobaleva’s “arrest and detention did not rise to the level of persecution” with a citation to Nzeve v. Holder, 582 F.3d 678 (7th Cir. 2009), followed by this parenthetical: “being beaten with batons, kicked, struck with the butt of a gun, and threatened does not compel holding that such harm rises to the level of persecution.” This citation referring to compulsion suggests that the Board asked itself only whether the evidence compelled, rather than warranted, a finding of persecution. And an additional citation to Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011), in which we held that a family’s account of abuse by police compelled a finding of past persecution, does nothing to remove that impression. In short, when citing this court’s cases, the Board must not assess an asylum applicant’s evidence as this court would on judicial review. Remand is necessary so that Sobaleva’s evidence of persecution can be reassessed under the proper standard. (Moreover, the mistreatment at issue in Nzeve is distinguishable from Sobaleva’s. The petitioner in that case, who suffered some “blisters and bruises,” was not arrested after the assault. Nzeve, 582 F.3d at 683-84.)

The second major flaw in the immigration judge’s and Board’s decisions is that neither gave due consideration to the evidence Sobaleva presented. Both disregarded some evidence, improperly isolated or mischaracterized other evidence, and took logical leaps that do not withstand scrutiny. “An asylum applicant is entitled to a reasoned analysis of her case supported by relevant, probative evidence.” Cece, 733 F.3d at 678. Where such analysis is lacking, remand for further consideration is required. See id.; Qiu Yun Chen v. Holder, 715 F.3d 207, 214 (7th Cir. 2013) (remanding because Board’s mischaracterization of some evidence and disregard of other evidence “depriv[ed] the Board’s order denying asylum of a rational foundation”); Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005) (“We do not decide that [the petitioner] is entitled to asylum; that is a decision for the immigration authorities to make. But she is entitled to a rational analysis of the evidence by them.”).

Again, our review for substantial evidence requires us to ask whether the agency complied with its duty to provide a reasoned analysis of that evidence. We conclude that it did not. Our focus is primarily on the Board’s decision, but a few aspects of the immigration judge’s decision bear mentioning first.

In his description of Sobaleva’s 2009 arrest and detention, the judge inexplicably ignored that she was hit twice and pushed to the ground. He also observed that Sobaleva did not think the 2009 incident was “significant,” which is an observation unsupported by evidence. That she continued her political activities surely suggests commitment to the cause rather than the absence of persecution. The fact that she did not mention the incident to the U.S. Embassy seems a poor reason to conclude that she thought it was insignificant.

In then discussing the court summons Sobaleva received after the 2010 incident, the immigration judge observed that “standing alone” it did not establish a well-founded fear of future persecution. But of course it should not be considered standing alone. Standing alone, the unexplained court summons to answer an unspecified charge said little. In the context of Sobaleva’s testimony, which was found credible, the summons takes on greater significance. And under the law, that evidence must be considered along with all the other evidence, including Sobaleva’s past experience with the authorities and her mother’s account of events since her departure. See Chen v. Holder, 604 F.3d 324, 334-35 (7th Cir. 2010) (“totality of evidence” must be considered in deciding persecution questions); Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006) (explaining that “it is axiomatic that the evidence of persecution must be considered as a whole, rather than piecemeal”).

The Board’s decision includes the same type of errors. Most problematic is the Board’s treatment of Sobaleva’s May 2010 stop by police and her subsequent summons to court. In concluding that Sobaleva failed to meet her burden under 8 U.S.C. § 1158(b)(1)(B)(i) of showing that her political opinion was “at least one central reason” for the May 2010 incident, the Board observed that she had left the protest site before the stop and that the police officers did not arrest her, did not mention her politics or tell her to cease her activities, and did not harm her friends. The officers behaved this way, the Board pointed out, despite the group’s “apparent political activism” and known history of protesting. From this the Board concluded that the officers most likely mistreated Sobaleva simply because she reached for her passport.

The Board’s characterization of the situation improperly discounted the context in which the stop took place as well as key facts suggesting that Sobaleva’s political activity was a primary reason for her mistreatment. In Ndonyi v. Mukasey, 541 F.3d 702, 711 (7th Cir. 2008), we found error in the Board’s conclusion that the petitioner was mistreated during a political protest not on account of her political opinion but “for disturbing the peace or for attempting to break into an administrative office.” As the Board acknowledged here, Sobaleva’s political activity was “apparent” and her arrest record was known to the officers. The Board should have considered the possibility that the officers “were partially motivated by politics.” Ndonyi, 541 F.3d at 710-11.

The Board, however, concluded that the officers’ more lenient treatment of Sobaleva’s companions negated the possibility that her politics played a role in motivating the attack. We do not follow that reasoning. Sobaleva became the most vocal and resistant member of the group when her passport was not returned as it would have been during a routine stop. She also had been arrested and detained fairly recently. Both facts are consistent with the officers being motivated by her political opposition to the regime. The fact that the officers were content to give her a concussion without arresting her at the time does not suggest, as the Board reasoned, a non-political motive.

Further undermining the Board’s assessment of the May 2010 incident is that Sobaleva received the court summons shortly thereafter. The Board conceded that the summons was likely connected to the May 2010 incident and that in Belarus “the judiciary succumbs to political interference.” But the Board then found that Sobaleva had not shown “any improper basis for the summons,” apparently reasoning that summoning her to court on mystery criminal charges after she was severely injured by an officer in response to having reached for her passport would be proper. Again, we do not understand the Board’s reasoning. The fact that Sobaleva was quickly summoned to answer unknown charges only supports the idea that the unknown charges were based at least in part on her political activity.

The Board went on to explain that the “fact that the respondent’s friends received only fines undermines her claim that the summons is politically motivated.” The conclusion does not follow. If Sobaleva’s mistreatment was solely the result of her own behavior during the stop and not her political opinion, why were her companions fined? They did not misbehave. The Board did not attempt to answer that question.

Finally, the Board mentioned only in passing Sobaleva’s mother’s account of events since her daughter’s departure, giving that account no apparent weight. But her mother’s account is additional support for the idea that Sobaleva was not summoned to court simply because she reached for her passport. According to Sobaleva’s mother, the police have been diligent in seeking her daughter since the missed court date and have even threatened her with the loss of her job. This diligence and intensity surely seem greater than would be expected if the authorities viewed Sobaleva as merely a common disturber of the peace. Sobaleva’s mother’s account is relevant not only to whether the police had a political motive for Sobaleva’s treatment in May 2010, but also to the critical question of how she would likely be treated if she were returned to Belarus. Ignoring evidence that relates to key issues is error. See Qiu Yun Chen, 715 F.3d at 212-13.

Taking all of this into account, we must conclude that Sobaleva did not receive a reasoned analysis of her evidence. She must be provided with one on remand. If the Board then concludes that the police officers were motivated by Sobaleva’s political opinion during the May 2010 incident, it must consider whether the combination of that incident and her October 2009 arrest and detention amounts to past persecution. The Board must also take care on remand to reassess Sobaleva’s eligibility for asylum independently, as directed by Sirbu.

The petition for review is GRANTED and the case is REMANDED to the Board of Immigration Appeals for further proceedings consistent with this opinion.

[*] Of the Northern District of Illinois, sitting by designation.

Posted in 7th Circuit Cases- Aliens, Asylum, past persecution, political asylum, political opinion, reasoned analysis of evidence, well-founded fear of future persecution | Leave a comment

CA7 finds abuse of discretion in denial of Continuance pending adjudication of I-130

Denial of a continuance on the basis of a non-reason is an abuse of discretion. Yang v. Holder, Court of Appeals, 7th Circuit 2014

Yang, a citizen of China, entered the U.S. in 1998, as a tourist. In 2000, he married a U.S. citizen, who filed an I-130 visa petition and application for adjustment of status on Yang’s behalf, but withdrew her petition in 2003. , Yang’s application was denied after an investigation led USCIS to conclude that his marriage was fraudulent. In 2007 he divorced. Yang then filed an application for asylum and associated relief based on his practice of Falun Gong. Although Falun Gong was not officially banned in China until 1999, in 1998 the police arrested Yang and placed him in a cell overnight. Yang continued practicing Falun Gong in the U.S. and believed that Chinese officials knew of his practice. In 2008, Yang married Li, who immediately filed an I-130 petition on his behalf. USCIS sent notice of intent to deny, because it believed that Yang’s prior marriage had been a sham. Li submitted rebuttal materials, but USCIS lost them and denied the petition for lack of support. The IJ denied a continuance pending adjudication of the I-130. Yang also sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. The Seventh Circuit remanded the BIA’s decision to uphold the IJ’s denial of a continuance pending adjudication of Yang’s I- 130.

_________________________________________
AIMIN YANG, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-3849.

United States Court of Appeals, Seventh Circuit.
Argued June 4, 2014.
Decided July 25, 2014.

Before WOOD, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.

WOOD, Chief Judge.

Aimin Yang, the petitioner in this case, is in a difficult position. After Feng Li, who is a U.S. citizen, married Yang, Li submitted a Petition for Alien Relative form (Form I-130) to the U.S. Citizenship and Immigration Services (USCIS) on Yang’s behalf. If approved, this form permits the alien relative to file a Form I-485 for adjustment of status to that of a lawful permanent resident; he or she may do so, however, only once a visa number becomes available. USCIS sent Li a notice of intent to deny, not because there was anything wrong with the marriage (which was Yang’s third), but because it believed that Yang’s second marriage had been a sham. Yang and Li submitted materials to rebut this allegation, but USCIS lost them and then denied the I-130 petition for lack of support. Li appealed that decision to the Board of Immigration Appeals (Board). On a separate track, Yang sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. He has now brought before us a petition for review of the Board’s decision denying all relief. Although we are satisfied that the Board did not abuse its discretion in denying Yang’s request for asylum and associated relief, the same cannot be said for its decision to uphold the IJ’s denial of a continuance pending adjudication of Yang’s I-130; we grant the petition for review only on that basis.

I

Yang is a native and citizen of China who entered the United States on April 9, 1998, as a tourist. On October 6, 2000, he married a U.S. citizen, Deirdre Prestin. Prestin filed an I-130 visa petition and application for adjustment of status on Yang’s behalf on November 16, 2000, but in the wake of marital problems, she withdrew her petition on January 10, 2003. In August of 2003, Yang’s application for adjustment of status was denied after an investigation led USCIS to conclude that his marriage to Prestin was for immigration purposes only and thus fraudulent. In November 2007, he and Prestin were divorced.

In August 2003, the Department of Homeland Security (DHS) initiated removal proceedings against Yang. He conceded removability, but shortly after his divorce from Prestin he filed an application for asylum and associated relief based on his practice of Falun Gong. He asserted that he began practicing Falun Gong in China in 1997 after doctors were unable to cure his pneumonia. Two months of Falun Gong exercises, he reported, restored his health and persuaded him to become a more serious practitioner. Matters took a turn for the worse, however, when his work supervisors discovered his practice of Falun Gong and told him that he would be fired if he did not stop. He did not heed their warnings. Although Falun Gong was not officially banned in China until July 1999, in March 1998 the police arrested Yang and placed him in a cell overnight. During that encounter, they told him that he should stop practicing Falun Gong and slapped him twice on the face, causing his gums to bleed. These encounters prompted Yang’s first wife to divorce him, and not long afterward he came to the United States.

In this country, Yang continued practicing Falun Gong. Though he generally did so alone, he attended some group meetings and a number of protests in New York outside the Chinese consulate, where he was photographed. Yang testified that his father (still in China) was visited by Chinese officials around January 2012; the officials questioned his father about Yang’s whereabouts. They also asked why Yang had not yet returned from the United States and whether Yang had participated in any anti-government activities. Upon learning of this conversation, Yang became afraid that Chinese officials were aware of his practice of Falun Gong in the United States.

The first merits hearing in Yang’s removal case took place in September 2008. About a month later, Yang married Li. As we noted, Li immediately filed an I-130 petition on Yang’s behalf, but USCIS tentatively decided to deny it on the grounds that Yang’s marriage to Prestin had been a sham.

When Yang and Li received the Notice of Intent to Deny Li’s I-130 petition, they assembled a comprehensive response to demonstrate the bona fides of the Prestin marriage and sent it to USCIS using an overnight express delivery service. The package included an affidavit from Prestin swearing that the marriage was bona fide; an affidavit from Prestin’s daughter confirming Yang’s good character; an affidavit that the marriage was genuine from one of Yang’s friends; a statement from one of Prestin’s colleagues to the same effect; and Yang’s own affidavit explaining both the romance and the break-up of the marriage. Yang also explained that he had lived apart from Prestin solely because of the demands of his job. The delivery service’s tracking receipt showed that the package arrived at USCIS at 11:30 a.m. on July 24, 2011, three days before the deadline, and that the receipt was signed by an employee. Nonetheless, USCIS issued a final order denying Li’s I-130 application on the mistaken ground that she had failed to file a response to the Notice of Intent to Deny. Li appealed the denial to the BIA, pointing out the mistake of fact, and she included the receipt showing that USCIS had indeed received the responsive materials. The Board recognized the error and on April 30, 2013, it remanded the I-130 denial to the District Director. As far as we know, that is where it still is.

While the I-130 issues were percolating, Yang’s removal proceedings continued to progress. On July 30, 2012, Yang had his final merits hearing. At that time his attorney informed the IJ that Yang had not updated his fingerprints since September 23, 2010, even though he was required to do so for his asylum application. The attorney explained that Yang had tried to submit fingerprints from New York, but could not because the removal proceedings were out of state. (At oral argument, counsel asserted that the immigration authorities do not accept fingerprints from just anywhere, and so it can be difficult for someone to arrange for this seemingly straightforward task to be done.)

On July 12, 2012, Yang filed a motion to continue his hearing date until a time after the re-adjudication of Li’s I-130 petition (and a renewed petition she filed). But on July 30, 2012, the IJ issued a decision from the bench finding Yang removable, denying asylum and related relief, denying the requested continuance, and granting voluntary departure. Addressing the continuance, the IJ said that “the respondent has the right to appeal [USCIS's mistaken denial of Li's I-130 for lack of response but] [h]e has no right to delay his removal hearing until the appeal is adjudicated, which could last a number of years.” On November 27, 2013, the Board dismissed Yang’s appeal of the IJ’s decision and denied his motion for a remand to USCIS. The Board agreed with the IJ that Yang was barred from asylum for failing to file within a year of his arrival and failing to demonstrate extraordinary or changed circumstances warranting an exception. Yang was not entitled to withholding of removal, the Board confirmed, because the relatively mild events Yang had recounted were not enough to show that he had been persecuted in the past or that it was more likely than not that his life or freedom would be threatened in China upon his return. The Board also affirmed the IJ’s alternative ground for denying withholding, which was based on Yang’s failure to present updated “biometric requirements” (the fingerprints). The Board also rejected Yang’s CAT application. Finally, it found that the IJ acted within his discretion when he declined to grant the continuance, and it denied Yang’s request to remand the case to the IJ for further proceedings on the I-130 and I-485 forms that Yang had refiled. Despite the fact that the Board already had remanded the District Director’s denial of the I-130 petition to consider the evidence that Yang had properly submitted, it wrote that “such decision did not reverse the director’s denial of his visa petition.” In a footnote, the Board went out of its way to say that its decision was not one “on the merits of the [USCIS's] denial of the underlying I-130 visa petition.” The net result for Yang was an order of removal.

II

Yang has brought this bureaucratically messy case before us through his petition for review. In it, he challenges the denial of his asylum, withholding of removal, and CAT applications as well as the denial of his request for a continuance pending a final determination of the I-130 petition. We quickly dispose of the former arguments so that we can focus on the continuance.

Asylum Application

Asylum applications must be filed within one year after the date the seeker arrives in the United States. 8 U.S.C. § 1158(a)(2)(B). Yang filed for asylum in 2007, either eight or nine years after he arrived here from China. His application must be denied as untimely unless he demonstrates either the existence of changed circumstances that materially affect his eligibility for asylum or extraordinary circumstances relating to the delay in filing the petition, 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). The IJ and Board found that he had not shown that he qualified for either exception to the one-year rule and thus denied his petition. Yang argues that they erred in so concluding.

Whether they were right or wrong is not, however, the immediate question before us. We can reach that issue only if we have jurisdiction to address it. Courts generally lack jurisdiction to review a determination that an asylum application is barred on the ground of noncompliance with the statutory time limit or the denial of one of the statutorily allowed excuses, 8 U.S.C. § 1158(a)(3). It is true that the REAL ID Act of 2005 supplies jurisdiction for review of constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D), added by the REAL ID Act of 2005, § 106(a)(1)(ii), Pub.L. No. 109-13, 119 Stat. 231, 310-11 (2005); see also Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006). But there’s the rub. We have held that the issues of changed or extraordinary circumstances are questions of fact that lie outside the realm of § 1252(a)(2)(D). See, e.g., Viracacha v. Mukasey, 518 F.3d 511, 514-15 (7th Cir. 2008). We are aware that some circuits have concluded that these issues are reviewable mixed questions of law and fact, see, e.g., Mandebvu v. Holder, No. 11-3969, 2014 WL 2743608 at *6 (6th Cir. June 18, 2014); Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011). But others agree with us, e.g., Goromou v. Holder, 721 F.3d 569, 579-80 (8th Cir. 2013); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 331-32 (2d Cir. 2006). We are not inclined to change our approach and thus conclude that we have no jurisdiction to address Yang’s arguments based on changed or extraordinary circumstances.

Denial of Yang’s withholding of removal application

Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), the Attorney General must grant withholding of removal to an alien who shows that his “life or freedom would be threatened in that country of removal because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” To establish eligibility for withholding of removal, the applicant must show that it is more likely than not that he will face persecution in the country to which the government plans to remove him. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). The Act does not define “persecution,” but we have described it as “`punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.’” Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995) (quoting De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir. 1993)); see also Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (internal quotation marks and citations omitted) (persecution “includes detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, … torture, behavior that threatens the same, and non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe.”).

The IJ rejected Yang’s application for withholding of removal on two independent grounds, which the Board affirmed. First, the IJ found that Yang failed to establish that the Chinese authorities were aware or likely to become aware of his Falun Gong-related activities in the United States. Furthermore, the IJ found the contact between Yang’s father and Chinese police in 2012 was not enough to permit the inference that the Chinese authorities were “specifically aware” of his Falun Gong practices. The IJ also doubted that the Chinese government would punish its citizens for engaging in Falun Gong outside of China. In the alternative, the IJ found that Yang’s failure to comply with the biometrics requirement was an independent ground to reject his application. See 8 C.F.R. §§ 1003.47(c), (d), & 1208.10; see also Umezurike v. Holder, 610 F.3d 997, 1002 (7th Cir. 2010). We review the decision of the IJ as supplemented by the additional reasoning of the Board. Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010). We must deny the petition if the IJ’s decision is supported by reasonable, substantial, and probative evidence on the record as a whole; we may reject the ruling only if the record compels a contrary result. See Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007).

The IJ was not on solid ground when he found that there was no indication that the Chinese government was specifically aware of Yang’s practice of Falun Gong. According to Yang, whose account the IJ was willing to credit, police held him overnight and hit him in the face because of his Falun Gong activities before he left China. The Chinese police also went back to Yang’s father’s house in 2012 inquiring about whether Yang was involved in “anti-government” activities while in the United States. Nevertheless, we need not decide whether the IJ abused his discretion when he found to the contrary, because Yang has no satisfactory answer to his failure to comply with the biometrics requirement.

The applicable regulations do not make the submission of current fingerprints optional. They provide that “[f]ailure to comply with processing requirements for biometrics and other biographical information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause.” 8 C.F.R. § 1208.10 (emphasis added). The IJ required Yang to submit several sets of fingerprints: one within two weeks of the master calendar hearing, and another within one year of any continued hearing. Yang did not do so. Even though we wonder why USCIS requires applicants continually to refingerprint and the government’s counsel had no explanation for this practice when asked at oral argument, we are not responsible for the wisdom or efficiency of the agency’s rules. The IJ expressly ordered multiple rounds of fingerprinting; Yang did not comply; and the regulations say such a failure will result in dismissal.

Although in theory someone might show good cause for a failure to submit required biometric data, Yang did not do so. He asserts only that he made “diligent efforts” and told the Trial Attorney Unit that USCIS had an earlier set of fingerprints. But simply stating that one made “diligent efforts” without further details is not enough, and we find it hard to see how Yang could prove diligence when he had at least two years to arrange for the new fingerprints. As Umezurike held, when counsel offers only “vague excuses for delay but no concrete explanations,” we will not find an abuse of discretion. See Umezurike, 610 F.3d at 1003.

Even if we were to reach the merits, Yang’s applications for withholding of removal and relief under the CAT cannot succeed. Neither of those is untimely, but the IJ and the Board did not abuse their discretion when they concluded that Yang’s one night in the police station and slaps were not sufficiently severe to warrant relief. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A) (withholding of removal); 8 C.F.R. § 1208.16 (CAT).

Motion for continuance

We review the denial of a continuance for abuse of discretion. See Calma v. Holder, 663 F.3d 868, 876 (7th Cir. 2011). This is a deferential standard, under which we uphold the Board’s decision unless it “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878.

In Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009), a precedential opinion, the Board discussed the factors an IJ should consider when deciding whether to grant a continuance. See also Calma, 663 F.3d at 872. “[D]iscretion should be favorably exercised,” it held, “where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing. This presumption is reasonable given the significant interest at stake—the chance to acquire lawful permanent resident status through a family-based visa petition.” Hashmi, 23 I. & N. Dec. at 790. It offered the following non-exclusive checklist for continuance requests:

• The likelihood that the adjustment will be granted;

• USCIS’s response to the motion, though “unsupported opposition does not carry much weight,” id. at 791;

• Whether the underlying visa petition is prima facie approvable;

• The alien’s statutory eligibility for adjustment of status;

• Whether other aspects of the alien’s background (such as family ties in the United States, length of residence in the country, hardship of travel, and immigration history) merit a favorable exercise of discretion; and

• The reason for the continuance and which party is more responsible for the delay.

Most of the points on that list either favor Yang or are neutral. The final point is especially important in his case: the reason the continuance was needed was directly related to USCIS’s carelessness in losing the critical package of supporting materials that Yang and Li sent—materials that would have responded to the agency’s qualms about the Prestin marriage. The IJ elided the agency’s misstep entirely. He gave two reasons for denying the continuance: (1) the supposed fact that the second marriage had been shown to be a sham, and thus gave rise to a statutory bar to adjustment, and (2) the fact “that the [third] marriage occurred after the first merits hearing.” The Board said only that Yang’s visa petition “remains denied”—a point Yang obviously knew—without explaining why the removal proceeding could not, in these unusual circumstances, be coordinated with the measures taken to cure USCIS’s negligence.

The IJ’s second “reason” is actually just a statement of fact; he did not explain why the timing of the Li marriage required the denial of a continuance. No one has ever suggested that the Li marriage is a sham, and so that ground is not available to support the IJ’s decision. In fact, there is ample evidence in the record to support the genuineness of the Li marriage: Yang and Li had a five-year relationship before they married, and so this was not a last-minute liaison hatched after immigration proceedings began. The reason their marriage happened when it did was because it took Li a long time to extricate herself from her own prior marriage. On this record, the timing of Yang’s marriage to Li offers no support to the decision to deny the continuance. The IJ merely stated a fact without explaining why that fact was a reason for his ruling. Denial of a continuance on the basis of a non-reason is an abuse of discretion. See Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004).

This leads us to the IJ’s other reason for his ruling: the purportedly sham nature of Yang’s second marriage. But that was the issue that USCIS’s carelessness had prevented Yang from contesting. Yang and Li strenuously deny that allegation. Since the cause for the delay is attributable to the government and not Yang, it “augurs in favor of a continuance.” Hashmi, 23 I. & N. Dec. at 793.

Had the IJ taken the Board’s advice and moved through the Hashmi checklist, the ultimate decision on the continuance would have been better informed. In particular, the Board’s list effectively instructs the IJs to take a peek at the merits of the pending application before ruling. In this case, in assessing Yang’s likelihood of success (the first factor) the judge should have looked at Yang and Li’s response to USCIS’s sham-marriage allegation. See id. Had he done so, he would have found significant and credible evidence of the legitimacy of Yang’s second marriage. He would have seen, for example, the crucial role Yang played and plays as a stepfather to Prestin’s daughter, as explained by his step-daughter in sworn statements, and he would have found significant third-party confirmation that the marriage was real. Other aspects of Yang’s background, such as the role he plays in his family with Li, would also have illuminated the decision. See id.

Since neither of the reasons the Board relied on for the denial of the continuance withstands scrutiny, we are compelled to conclude that the decision stands unsupported by any reason. It thus represents an abuse of discretion, and Yang is entitled to one more chance to pursue this line of relief.

The IJ’s denials of Yang’s request for asylum, withholding of removal, and relief under the CAT were not an abuse of discretion and so we DENY his petition for review from those aspects of the Board’s decision. We conclude, however, that the IJ’s reasons for denying the continuance Yang requested, as supplemented by the Board, fail to confront the facts of this case and do not meet the standards the Board set for itself in Hashmi. We therefore GRANT the petition for review on that point only and REMAND the case to the Board for further proceedings consistent with this opinion.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, adjudication of I-130, Continuance, Motion for Continuance, withholding of removal | Leave a comment

CA7 Upholds Denial of Continuance for Petitioner with Multiple Traffic Violations

The court held that there was enough evidence before the IJ and BIA to conclude that petitioner lacked the good moral character necessary for cancellation, and that the outcome of the latest criminal proceeding was immaterial.

Bd. did not err in denying request by alien (citizen of Mexico) for cancellation of removal, where alien failed to satisfy good moral character requirement for seeking such relief. Record showed that alien had been found guilty of series of traffic offenses that included multiple driving under influence of alcohol convictions and driving without either valid or revoked license. Moreover, at time of instant removal proceeding, alien had been charged with four counts of aggravated driving under influence charges, and although IJ denied instant application during pendency of said charges, alien incurred no prejudice since he eventually pleaded guilty to said offenses. Ct. also rejected alien’s argument that IJ could not rule on request for cancellation of removal as long as alien had pending criminal charge.

Estrada, a Mexican citizen, entered the U.S. in 1996, at age 20, and has not left; he is married and has five children, all U.S. citizens. He was denied cancellation of removal, 8 U.S.C. 1229b(b), for failure to demonstrate “good moral character.” He had several traffic citations, including for driving in an “aggravated manner” after his license had been revoked; driving without a valid license, driving three times under the influence of alcohol, twice lacking required proof of financial responsibility; running a traffic light; disregarding a stop sign; failing to fasten his seat belt, and other violations. During removal proceedings, he was arrested and charged with eight traffic offenses, four of which involved “aggravated” driving under the influence. Despite continuances, those charges had not been resolved when the immigration judge ruled. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. The Board had enough evidence to make the latest criminal proceeding immaterial. The court characterized a defense argument as “a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed.“

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__________________

JOSE LUIS ORTIZ-ESTRADA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 13-2536

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2014 U.S. App. LEXIS 12710
June 11, 2014, Argued
July 3, 2014, Decided

OPINION BY: POSNER Click for Enhanced Coverage Linking Searches

The petitioner, a Mexican citizen, entered the United States in 1996, when he was 20 years old, and has lived in this country ever since; he is married and has five children, all of whom are U.S. citizens. He admits that he is an illegal immigrant and can avoid removal only if he is granted cancellation of removal, 8 U.S.C. § 1229b(b), for which he applied in 2011 after being placed in removal proceedings. One of the requirements for cancellation of removal applicable to our petitioner is that he have lived continuously in the United States for at least 10 years prior to the filing of his petition for cancellation of removal, and another is that during that period he have been of “good moral character.” §§ 1229b(b)(1)(A), (B). In 2012 the immigration judge, seconded the following year by the Board of Immigration Appeals, ruled that the petitioner had flunked the second requirement.

By the time he was placed in removal proceedings in 2010 he had accumulated an impressive string of sanctions for a variety of traffic offenses committed in the previous decade. He had received a citation for violating traffic laws and driving in an “aggravated manner” after his license had been revoked. He had received citations for driving without a valid license, driving on three occasions under the influence of alcohol, driving with a revoked driver’s license and on another occasion with a revoked or suspended license, violating a license-revocation order, twice lacking required proof of financial responsibility, and running a traffic light. He had also received suspensions for disregarding a stop/yield sign, for failing to fasten his seat belt, and for his previous violations.

In 2011, with the removal proceeding still underway, he had again been arrested, and this time he was charged with eight traffic offenses, four of which involved “aggravated” driving under the influence. The immigration judge decided to continue (meaning, suspend) the removal proceeding until the new traffic charges were resolved. The petitioner’s lawyer hoped that critical prosecutorial evidence in the DUI case would be suppressed, compelling dismissal of the case.

Months passed. The continuance kept getting renewed in expectation of a resolution of the DUI case. But the immigration judge’s patience eventually ran out and he both refused a further continuance, even though the latest charges against the petitioner had still not been resolved, and, proceeding to the merits, denied cancellation of removal on the ground that the petitioner’s multiple traffic offenses demonstrated that he was not of good moral character; and so ordered him removed.

The immigration judge explained in his decision that “given the respondent’s lengthy record, not including a final disposition on the last driving under the influence case and the last court hearing, which is still pending in the criminal court in Chicago, this Judge believes that given the intervening precedent decisions by the Seventh Circuit in [Portillo-Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011), and Banuelos-Torres v. Holder, 461 F. App'x 509 (7th Cir. 2012) (per curiam)] … the respondent lacks good moral character necessary to qualify for cancellation of removal.” At the oral hearing that preceded the issuance of his decision the immigration judge had said with reference to those two cases that “the Seventh Circuit Court of Appeals has affirmed the notion that an individual with a record like yours lacks good moral character to qualify for residence through cancellation of removal.”

That’s not correct, though both cases did involve aliens who were seeking cancellation of removal after having accumulated impressive records of violating this country’s traffic laws. But in Banuelos-Torres the only issue was whether the immigration judge had acted unreasonably in denying a continuance, and we held that he had not; the alien’s record of traffic violations was so bad that the immigration judge was rightly afraid of what further violations the alien might commit if left at large because of the continuance: “[he] poses a threat to the safety of the community.” 461 F. App’x at 512. And in Portillo-Rendon we held that because the Immigration and Nationality Act does not define “good moral character,” the decision whether an alien has such a character is an exercise of administration discretion that a court cannot review. 662 F.3d at 817.

But the immigration judge’s error was without consequence. The Board of Immigration Appeals “affirm[ed] [his] determination” that Ortiz-Estrada had not proved good moral character. It based the affirmance on “the extent and recidivist nature of [his] dangerous driving violations,” the fact that the immigration judge had “discussed [his] undisputed record of driving violations and criminal conduct spanning 10 years which also includes multiple DUI related charges,” and the absence of any “clear error in the Immigration Judge’s findings of fact.” The Board did not correct the immigration judge’s mistaken interpretations of our Portillo-Rendon and Banuelos-Torres decisions, but it didn’t have to; it said “we need not reach the other reasons identified in the Immigration Judge’s decision for his determination that [Ortiz-Estrada] lacked the requisite good moral character for relief.” By saying this, the Board implicitly disclaimed reliance on our two decisions.

It remains to consider the petitioner’s argument that the immigration judge’s abrupt refusal to grant a further continuance of the removal proceeding (to await the conclusion of the latest criminal prosecution) violated the petitioner’s procedural rights. Although a determination that the alien lacks “good moral character” is not subject to judicial review, 8 U.S.C. § 1252(a)(2)(B)(i), the Board and the immigration judge must, on pain of reversal if they don’t, respect the alien’s right to “a reasonable opportunity … to present evidence on [his] own behalf,” 8 U.S.C. § 1229a(b)(4)(B), though “in order to succeed in challenging the legality of such a hearing, the alien must show not only that [his or] her ‘reasonable opportunity’ was denied, but also that [he or] she was prejudiced.” Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007); see also Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012).

The petitioner argues that the immigration judge “failed to take into proper consideration all relevant factors in the instant case, including the differences [between] the Petitioner’s driving history [and that of the alien in Portillo-Rendon v. Holder, supra], Petitioner’s lack of a felony conviction [which Portillo-Rendon had had], Petitioner’s good faith efforts at rehabilitation which have not been refuted, and the fact that Petitioner’s latest pending charge against him may still be dismissed.” The first two points are irrelevant, given the Board’s decision not to give any weight to the immigration judge’s reliance on the Portillo-Rendon and Banuelos-Torres cases. The third point is immaterial, because it was argued to the immigration judge before he denied the further continuance sought by the petitioner. The fourth point could not have been material, for even if the petitioner had been acquitted of the 2011 traffic offenses, the immigration judge would have found him deficient in moral character, because the judge based that finding on the petitioner’s 2000-2010 offense record. Anyway he wasn’t acquitted. He pleaded guilty last November (five months after the Board’s decision) to “aggravated DUI” and driving with a suspended or revoked license. No. 13-2536

His lawyer argues that the immigration judge’s abrupt refusal to continue the removal proceeding prevented the lawyer from presenting evidence that would have cast his client’s moral character in a more favorable light. But his brief does not particularize the evidence, its emphasis being on the judge’s ruling on cancellation of removal before he outcome of the petitioner’s latest criminal proceeding could be known. The ruling was justified. The judge had enough evidence before him when he denied the further continuance to conclude that the petitioner lacked good moral character. And the Board when it affirmed the denial had enough evidence before it to come to the same conclusion, thus making the outcome of that latest criminal proceeding immaterial—and now that we know the outcome we know that the petitioner was not prejudiced by the immigration judge’s refusal to delay ruling on moral character.

The lawyer’s procedural argument amounts to a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed. Not a good argument.

The petition for review is Denied.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Cancellation of Removal, Continuance, Good Moral Character, Good Moral Character (GMC), Motion for Continuance | Leave a comment