CA7 remands Mexican deferral of removal under CAT

Posted on January 8, 2016 by Mike Baker

Ct. of Appeals remanded case back of Bd. of Immigration Appeals upon govt.’s motion for said remand for purpose of allowing Bd. to reconsider its denial of alien’s eligibility for deferral of removal under CAT, where alien alleged that removal to Mexico would result in his death by members of La Linea drug cartel. Alien had presented evidence that while he was in U.S. prison on drug charges he had been attacked by member of La Linea cartel and had been told that other members of said cartel had believed that alien had snitched on them. Moreover, alien presented strong case for CAT relief, where Bd. did not reject IJ’s finding that alien was generally credible, and where record contained evidence that Mexican police officers routinely collaborated with and protected members of La Linea.

Download Mendoza-Sanchez v. Lynch, 2015 WL 9310586 (7th Cir. 2015)

In Mendoza-Sanchez v. Lynch, 2015 WL 9310586 (7th Cir. 2015), the U.S. Court of Appeals for the Seventh Circuit granted the government’s request to remand removal proceedings in which the petitioner’s application for deferral of removal under the CAT was denied by the BIA. Although the petitioner objected to a remand, the court deemed it provident to send the case back to the Board to provide it with an opportunity to reconsider the standard for “acquiescence” on the part of the applicant’s country and, more broadly, to reconsider the agency’s approach to requests for deferral of removal on the basis of the CAT and its implementing regulations.

The petitioner, Mr. Mendoza, is a citizen of Mexico who came to the U.S. at the age of 18, in 1983, and became a lawful permanent resident (LPR) of this country. In 2010, he was convicted in an Indiana court of trafficking in cocaine and sentenced to 12 years in prison. Some of the cocaine that he sold was purchased from members of the La Linea cartel, which is known to be violent and to work with corrupt Mexican police officers. While in prison, Mendoza was attacked by a member of La Linea. The attacker broke two of Mendoza’s teeth and told him that several members of the cartel who had been arrested believed that Mendoza had snitched on him. As he later testified before the IJ in removal proceedings, “I was facing a lot more time than I actually got and this gave them another reason to believe that I snitched on them to get less time.” As it turned out, he was eventually released from prison after five years despite the 12-year sentence. After his prison term, removal proceedings ensued based on the drug conviction. Mendoza did not contest the removal charge and only sought deferral of removal under the CAT on account of his fear of retaliation at the hands of La Linea. Asked whether there was any place in Mexico where he would not be menaced by this cartel, he responded that, although La Linea’s name (“The Line”) was derived from its control of the Mexican border, cartel members are “all over Mexico” and “work everywhere.” Mendoza submitted a State Department Human Rights report that detailed the widespread corruption of Mexican police and their routine participation in the activities of drug organizations. The IJ’s decision described Mendoza as a “credible witness” but concluded that the evidence did not establish eligibility for deferral of removal. The BIA affirmed the IJ’s decision without either rejecting the IJ’s positive credibility finding or Mendoza’s contention that he would more likely than not be killed by La Linea if he returned to Mexico, reasoning that Mendoza did not present sufficient evidence to establish that a Mexican public official would acquiesce (or be willfully blind) to such harm.

Judge Richard Posner, writing for the court’s three-judge panel, pointed out that “death,” as feared by the petitioner, is a form of torture within the meaning of the CAT. He observed that after counsel was recruited for Mr. Mendoza, who had filed his petition for review pro se, the petitioner’s opening brief was filed, and, rather than filing its own brief, the government asked for a remand back to the Board. Judge Posner highlighted the relevant evidence, emphasizing the reality that police officers routinely collaborate with and protect drug cartels in Mexico and La Linea specifically and that, according to the U.S. State Department’s 2011 Human Rights Report on Mexico, “despite some arrests for corruption, widespread impunity for human rights abuses by officials remained a problem in both civilian and military jurisdictions.” He noted that, in the case of Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015), the Seventh Circuit recently discussed the “acquiescence” element necessary to establish a CAT claim. He suggested that this decision can provide some useful guidance for the IJ and the BIA on remand of the present case. He explained that, in Rodriguez-Molinero, the court found that the IJ erred in saying that, in order to be a ground for deferral of removal, the infliction, instigation, consent, or acquiescence in torture, within the meaning of 8 CFR § 1208.18, must be by the Mexican government itself rather than just by Mexican police officers or other government employees. He cited to 8 CFR § 1208.18(a)(1), which provides that acquiescence of a public official requires that the official, prior to the activity constituting torture, have awareness of such activity and thereafter breech his or her legal responsibility to intervene to prevent such activity. He emphasized that it does not matter if the police officers who will torture Mendoza if he is forced to return to Mexico are “rogue officers individually compensated by a gang member to engage in isolated incidents of retaliatory brutality, rather than evidence of a broader pattern of governmental acquiescence in torture,” quoting from Rodriguez-Molinero, 2015 WL 9239398 at 5. The court further declared, “It’s simply not enough to bar [deferral of] removal if the [petitioner’s] government may be trying, but without much success, to prevent police from torturing citizens at the behest of drug gangs,” citing to N.L.A. v. Holder, 744 F.3d 425, 440-442 (7th Cir. 2014), and Madrigal v. Holder, 716 F.3d 499, 509-510 (9th Cir. 2013).

The Seventh Circuit also referred to a more recent Ninth Circuit decision, Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015), in which that petitioner provided credible testimony that she was severely assaulted by Mexican officials on at least two separate occasions and where the appellate court rejected the U.S. government’s attempt to characterize the Mexican police officers as merely rogue or corrupt officials for purposes of the CAT and accordingly found that the BIA erred by finding that Avendano-Hernandez was not subject to past torture.

In closing, Judge Posner suggested that petitioner Mendoza appears to have a strong case for deferral of removal based on his assessment that no evidence was presented to show that the Mexican government can protect its citizens from torture at the hands of local public officials. He expressed his trust that the BIA would “pay careful heed to the analysis in this [court’s] opinion and in Rodriguez-Molinero.”

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, deferral of removal, La Linea drug cartel | Leave a comment

DHS and DOJ Issue Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits

Posted on January 6, 2016 by Mike Baker

Office of Special Counsel for Immigration-Related Unfair Employment Practices
Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits (PDF)

The Department of Homeland Security’s (DHS’) U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s (DOJ’s) Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced the issuance of a joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits. Under the INA, employers are required to verify the work authorization of their employees using the Form I-9 and are prohibited from knowingly hiring unauthorized workers. ICE is responsible for enforcing the employer sanctions provision, INA § 274A [8 USCA § 1324a], and OSC enforces the anti-discrimination provision, INA § 274B [8 USCA § 1324b].

Employers seeking to ensure their Form I-9 practices comply with federal law are increasingly conducting internal audits of their Forms I-9. To ensure that these audits are conducted properly, ICE and OSC have collaborated to issue formal guidance on the topic. The joint guidance was developed by the two agencies with significant input from the DHS’ Office of Civil Rights and Civil Liberties, U.S. Citizenship and Immigration Services (USCIS), the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country.

Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.

The guidance is intended to help employers structure and implement internal audits in a manner consistent with these statutory provisions, but does not insulate employers from liability under either provision.

What is the appropriate purpose and scope of an internal audit of Form I-9?

While not required by law, an employer may conduct an internal audit of Forms I-9 to ensure ongoing compliance with the employer sanctions provision of the INA. An employer may choose to review all Forms I- 9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. If a subset of Forms I-9 is audited, the employer should consider carefully how it chooses Forms I-9 to be audited to avoid discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits. An employer should note that penalties for violations of the employer sanctions provision and the anti-discrimination provision of the INA may be imposed even if an internal audit has been performed.

What should an employer consider before conducting an internal Form I-9 audit?

Before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. An employer should consider the process it will have for fielding questions or concerns about the audit and how it will inform the employees of that process. The employer should consider how it will document its communications with employees and how it will ensure consistent standards when addressing any Form I-9 deficiencies revealed by the audit.

What can an employer do to avoid conducting internal audits that are discriminatory or retaliatory?

Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason. An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope, or selective nature.

What information should an employer communicate to its employees before and during an internal audit?

It is recommended that an employer develop a transparent process for interacting with employees during any internal audit. This includes informing the employees in writing that the employer will conduct an internal audit of Forms I-9, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. When a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. The employer should provide the employee with copies of his or her Form I-9, any accompanying Form I-9 documents, and any other documentation showing the alleged deficiency. If the employee is not proficient in English, the employer should communicate in the appropriate language where possible. An employer should also provide clear instructions for employees with questions or concerns related to the internal audit on how to seek additional information from the employer to resolve their questions or concerns.

What is the procedure for correcting errors or omissions found on a Form I-9?

An employer may not correct errors or omissions in Section 1. If an employer discovers an error or omission in Section 1 of an employee’s Form I-9, the employer should ask the employee to correct the error. The best way to correct the error is to have the employee:

  • draw a line through the incorrect information;‌
  • enter the correct or omitted information; and
  • initial and date the correction or omitted information.

Employees needing assistance to correct or enter omitted information in Section 1 can have a preparer and/or translator help with the correction or omitted information. The employee, preparer, or translator should:

  • draw a line through the incorrect information and enter the correct information or note the omitted information;‌
  • have the employee initial and date the correction or omitted information if able; and
  • initial and date the correction or omitted information next to the employee’s initials.

If the preparer and/or translator who helped with a correction or noted omitted information completed the preparer and/or translator certification block when the employee initially completed the Form I-9, he or she should not complete the certification block again. If the preparer and/or translator did not previously complete the preparer and/or translator certification block, he or she should:

complete the certification block; or‌

if the certification block was previously completed by a different preparer and/or translator:

  • draw a line through the previous preparer and/or translator information; and
  • enter the new preparer and/or translator information (and indicate “for corrections”).

If the employee is no longer working for the employer, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explain why corrections could not be made (e.g., because the employee no longer works for the employer).

An employer may only correct errors made in Section 2 or Section 3 of the Form I-9. The best way to correct the form is to:‌

  • draw a line through the incorrect information;
  • enter the correct or omitted information; and
  • initial and date the correction or omitted information.

An employer should not conceal any changes made on the Form I-9—for example, by erasing text or using correction fluid, nor should the employer backdate the Form I-9.

An employer that made multiple errors in Section 2 or 3 of the form may redo the section(s) containing the errors on a new Form I-9, and attach it to the previously completed form. An employer should attach an explanation of the changes made to an existing Form I-9 or the reason a new Form I-9 was completed, and sign and date the explanation.

What should an employer do if an internal audit reveals that the wrong version of the Form I-9 was completed?

As long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version noting why the current blank version is attached (e.g., wrong edition was used at time of hire). As an alternative, the employer may draft an explanation and attach it to the outdated completed Form I-9 explaining that the wrong form was filled out correctly and in good faith.

How should an employer determine during an internal audit whether documentation presented for Section 2 of the Form I-9 met employment eligibility verification requirements?

Documentation presented for Section 2 of the Form I-9 is sufficient as long as the documentation was acceptable under the requirements of the Form I-9 in effect at the time the Form I-9 was completed. As the lists of acceptable documents have changed over the years, employers should not assume documentation in Section 2 of the Form I-9 is insufficient simply because it does not satisfy current Form I-9 rules or appear on the lists of acceptable documents currently in effect.

What should an employer do when it discovers during an internal audit that (1) a Form I-9 for an employee was not completed or is missing, or (2) an entire section on the Form I-9 was left blank?

If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. If an original Form I-9 exists but either Section 1 or Section 2 was never completed, the employee (for Section 1) or the employer (for Section 2) should complete the section as soon as possible. In both scenarios, the employer should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. The employer should attach a signed and dated explanation of the corrective action taken.

May an employer complete new Forms I-9 for existing employees whose Forms I-9 do not contain sufficient documentation to meet employment eligibility verification requirements?

Yes. When a Form I-9 does not reflect that the employee provided sufficient documentation upon hire or reverification under Form I-9 rules current at the time of hire or reverification, an employer should ask the employee to present documentation sufficient to meet the requirements of the current version of the Form I-9. The employer should staple the completed and signed Section 2 or 3 of the current version of the Form I-9 to the employee’s previous Form I-9, together with a signed and dated explanation of the corrective action taken. The employer should not backdate the Form I-9. An employer must give an employee the option to present acceptable documentation of the employee’s choice to bring the Form I-9 into compliance with the INA.

What should an employer do if an internal audit uncovers photocopies of Form I-9 documents that do not appear to be genuine or to relate to the individual who presented them?

The standard for reviewing Form I-9 documentation during an internal audit does not change from the standard applied during the initial employment eligibility verification process. An employer is required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation. If an employer subsequently concludes that a document does not appear to be genuine or to relate to the person who presented it, the employer should address its concern with the employee and provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents. An employer may not conclude without foundation that a photocopy of an employee’s Form I-9 documentation is not genuine or does not relate to the individual. In the context of an internal audit, for an employer that has photocopied Form I-9 documentation, it should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear. Furthermore, an employer cannot use I-9 audits to discriminate against, retaliate against, and/or intimidate employees and should not terminate employees, unless the employee cannot demonstrate identity and/or work authorization.

May an employer request specific documents when correcting a Form I-9 as a result of an internal audit?

No. While an employer may specify that the particular document called into question by the internal audit may not be used again for Form I-9 purposes, the employer should not request specific documents. The employee should be permitted to present his or her choice of other documents, as long as they are acceptable for employment eligibility verification purposes.

What should an employer participating in E-Verify do if it discovers through an internal audit that it did not create E-Verify cases for all employees hired after the employer enrolled in E-Verify?

Unless an employer is a federal contractor with a federal contract that contains an E-Verify clause, it generally cannot use E-Verify for existing employees. Thus, where the employer was enrolled in E-Verify but did not use the system as a business practice, it should not go back and create cases for any employees hired during the time there was deliberate non-use of E-Verify. However, if an employer learns that it inadvertently failed to create a case in E-Verify, the employer should bring itself into compliance immediately by creating a case for the employee. An employer should consult U.S. Citizenship and Immigration Services for further information at 1- 888-464-4218, or by e-mail at E-Verify@dhs.gov.

What should an employer participating in E-Verify do if it discovers during the internal audit that it terminated an employee based on the receipt of a tentative nonconfirmation (TNC)?

E-Verify requires employers to provide employees with an opportunity to contest their TNCs and to allow employees to work-without any delay or adverse action-while they are contesting their TNCs. An employer that discovers that it took adverse action against an employee who contested his or her TNC should consider taking corrective action, such as extending an offer of re-employment to the affected individual, or if corrective action is not possible, documenting why the employer was unable to take corrective action. The failure to provide employees with an opportunity to contest their TNCs and to work while contesting their TNCs violates the E-Verify memorandum of understanding and may also constitute discrimination based on citizenship status or national origin in violation of the anti-discrimination provision of the INA, depending on the facts of the case.‌

May an employer require its existing employees to complete a new Form I-9 instead of conducting an internal audit because many existing Forms I-9 appear to be deficient?

An employer is cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient or without reason to believe that systematic deficiencies in the employer’s employment eligibility verification process call the integrity of all previously completed Forms I-9 into question. Without sufficient justification, requiring an existing employee to complete a new Form I-9 may raise discrimination concerns. Where new Forms I-9 are completed for existing employees, however, they should be stapled to the original Forms I-9, and not backdated. Finally, the same discrimination, retaliation, and intimidation concerns implicated by conducting internal audits also apply to obtaining new Forms I-9 from existing employees.

What should an employer do if, when consulted about the results of the internal audit, an employee admits that he or she is not work-authorized?

The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien knowing that the alien is, or has become, unauthorized for employment. By regulation, “knowing” includes not only actual knowledge, but also knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status.

Must an employer always provide employees with a minimum of 90 days to provide Form I-9 documentation where alternative documentation is requested?

No. The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an alien for employment, to continue to employ the alien knowing that the alien is, or has become, unauthorized for employment. The employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy. The 90-day period set forth in

U.S. Department of Homeland Security Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007), was rescinded; the 90-day period is not a legally binding regulatory requirement. An employer should recognize that some documents may take up to or more than 120 days to obtain. The reasonableness of a timeframe should be determined on a case-by-case basis. Factors to consider include, for example, the specific nature of the deficiency and the time required for alternative Form I-9 documentation to be obtained under the circumstances. In addition, all employees who are asked to present alternative documentation should be given the choice of acceptable documents to present (they do not have to use the same document used previously) and should not be treated differently based on perceived or actual citizenship status or national origin. Some employees may not have the same document(s) in their possession that they originally presented for the Form I-9, either because they have misplaced the document(s), their immigration status has changed, the document has since expired, or for other reasons.

U.S. Immigration and Customs Enforcement (ICE) presumes that an employer has acted reasonably if it takes appropriate actions to resolve the apparent employment of unauthorized employees within 10 days of receiving a Notice of Suspect Documents letter. In the context of an internal audit, should an employer also provide employees only 10 days to present acceptable alternative documentation?

No. The 10-day period is an ICE policy that applies solely when ICE has issued a Notice of Suspect Documents letter. In these cases, ICE has already determined the employee at issue does not appear to be presently work-authorized. This time period has no bearing on the amount of time an employer may provide its employees to address discrepancies discovered through an internal audit. It is important to remember that the employer sanctions provision of the INA states that it is unlawful to continue to employ an individual once the employer has actual or constructive knowledge of the employee’s unauthorized employment status.

What should an employer do if the employee is unable to present acceptable documents within what the employer has determined to be a reasonable amount of time?

An employer should consider the reasons for an employee’s inability to present acceptable documentation and determine whether an extended period of time would be appropriate based on the particular circumstances on a case-by-case basis. An employer should be sure to allow or disallow additional time based on objective non- discriminatory and non-retaliatory criteria and without regard to an individual employee’s citizenship status or national origin. The employer should document the basis for its decision and continue to document the efforts of the employee to obtain acceptable Form I-9 documentation.

Is an employer required to terminate employees who, as a result of the employer’s internal Form I-9 audit, disclose that they were previously not employment-authorized, even though they are currently employment-authorized?

No. This is not required by law. In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s) and is currently employment-authorized, the employment eligibility verification provisions do not require termination of employment. An employer may continue to employ the employee upon completion of a new Form I-9 noting the authorizing document(s), and should attach the new Form I-9 to the previously completed Form I-9 together with a signed and dated explanation.

Should an employer use a third party auditor when conducting an internal Form I-9 audit?

An employer may delegate a third party to conduct an internal Form I-9 audit. However, an employer that relies on third party auditors is not immune from penalties imposed for violating the employer sanctions provision or the anti-discrimination provision of the INA. An employer remains liable for any violations committed by the third party.‌

May an employer audit a particular employee’s Form I-9 in response to a tip that the employee is not work-authorized?

An employer violates the employer sanctions provision of the INA if it continues to employ an employee with actual or constructive knowledge that the employee is unauthorized to work. While tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based upon retaliation, the employee’s national origin, or perceived citizenship status.

Should an employer use the Social Security Number Verification Service (SSNVS) during an internal audit?

No. According to the SSNVS Handbook, “SSA will verify [Social Security numbers] and names solely to ensure that the records of current or former employees are correct for the purpose of completing Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement),” handbook, page 4. Additionally, the SSNVS handbook states that any notification about a mismatch makes no statement about an employee’s immigration status. Rather, it simply indicates an error in either the employer’s records or SSA’s records and should not be used as a basis to take adverse action against an employee. In other words, SSNVS is not intended to be used to verify employment authorization in connection with the Form I-9 process. For further information about the proper use of SSNVS, please see the SSNVS Handbook.
SSNVS Handbook (PDF)

Posted in Employment Eligibility Verification, Form I-9 Audits | Leave a comment

CA7 and CAT relief for Mexican national “deadbeat and informer,” tortured at behest of Zetas cartel

Posted on January 5, 2016 by Mike Baker

In Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review in favor of a citizen of Mexico who was denied protection under the Convention Against Torture (CAT) by an IJ and the BIA, based on the agency’s determination that the petitioner did not substantiate his claim that he would likely be tortured by the Zetas drug cartel or that the Mexican government would participate in or acquiesce in any such torture. The court concluded that the agency erred in assessing the petitioner’s evidence, and also emphasized that it was irrelevant whether the police officers, who previously abused the petitioner, were rogue, as it was unnecessary for him to show that the entire Mexican government is complicit in the misconduct of individual police officers.

Record failed to support IJ’s denial of alien’s Convention Against Torture application for deferral of removal, even though IJ found that alien had failed to show likelihood that he would be tortured by Mexican drug cartel if forced to go back to Mexico. Record showed that alien had participated in drug trade involving Zeta drug cartel, and alien argued that he would be tortured by said cartel, since he owed it $30,000 for prior meth purchase, and since he had reported his experiences with cartel to U.S. drug authorities. Moreover, govt. offered no testimony to counter expert’s claim that instant cartel had pattern of torturing and killing individuals who owed it large sums of money, and who had worked with U.S. drug authorities. Alien also asserted that Mexican police had beaten and stabbed him at behest of cartel member as means to test alien’s loyalty to cartel, and that cartel members had kidnapped and killed his great-uncle during time frame when cartel was seeking alien’s whereabouts. Ct. rejected IJ’s belief that alien could not prevail on his application where alien had failed to show that entire Mexican gov’t. would likely acquiesce to cartel’s torture of alien.

Download Rodriguez-Molinero v. Lynch, 2015 WL 9239398 (7th Cir. 2015)

The petitioner, Mr. Rodriguez, had lived in the U.S. for many years as an LPR. After his conviction for trafficking in methamphetamine (meth) and service of his resulting prison sentence, he was detained by DHS and charged in removal proceedings under the “aggravated felony” ground of deportation-INA § 237(a)(2)(A)(iii) [8 USCA § 1227(a)(2)(A)(iii)]-based on his drug trafficking offense, included under the “aggravated felony” definition-INA § 101(a)(43)(B) [8 USCA § 1101(a)(43)(B)]. According to his testimony, which the IJ deemed to be credible, Rodriguez took several trips to Mexico between 2005 and 2007, during which he bought meth from the Zetas for resale in the U.S. In 2006, he was tortured by Mexican police, who entered his hotel room, burned him with cigarettes, and stabbed him with an ice pick. He indicated that this was done at the behest of a member of the Zetas cartel, known to the petitioner only as Jose. Rodriguez explained that the “torture” by the police was intended to test his loyalty to the cartel. The IJ concluded that Rodriguez had indeed been tortured by the police and the Seventh Circuit agreed with that finding. When Rodriguez returned to the U.S. after his last trip to Mexico, he owed the gang an estimated $30,000 for the meth he had purchased from Jose on credit and he was not able to repay this debt. When arrested in the U.S. and charged with intended sale of the meth, he reported his experiences with the Zetas to both the FBI and the DEA. Rodriguez also testified that, after he returned to the U.S., members of the Zetas cartel kidnapped and murdered his great-uncle, after visiting the great-uncle’s house several times asking for information about petitioner Rodriguez. His expert witness, Sylvia Longmire, who testified before the IJ, opined that as a “deadbeat and informer,” Rodriguez was “marked for death.” Ms. Longmire elaborated that the Mexican drug cartels “have long memories and do not easily let transgressions go without some sort of punishment or retribution, even years after they’re committed.” She added that the cartels have networks of employees and paid police and government officials throughout Mexico, and that it was difficult for her to envision a scenario where Rodriguez would not be tortured and killed for both owing Jose a drug debt and working with the DEA against “Los Zetas.” She detailed hundreds of deaths attributable to the Zetas between 2010 and 2012, and opined that, due to corruption-induced shortcomings and a general unwillingness to assist, neither the Mexican government nor Mexican law enforcement would be able to adequately protect the petitioner. The Seventh Circuit noted that the government waived cross-examination of Longmire, thus leaving unchallenged her testimony concerning the brutality of the Mexican drug gangs and the complicity, corruption, and incompetence of the Mexican police.

The court observed that the cartel’s ferocity and the helplessness of the Mexican government to curb it is legendary, as corroborated by reports and articles, including the U.S. State Department’s Country Reports on Human Rights Practices for Mexico, submitted by the petitioner. The IJ ruled that the petitioner failed to show that he faced a substantial risk of torture were he to be removed to Mexico, or, if that happened and he was tortured, that the Mexican government would acquiesce to the torture. After a single member of the BIA affirmed the IJ’s negative decision, Rodriguez took his case to the Seventh Circuit, which introduced its opinion by discoursing on the international Convention Against Torture, to which the U.S. is a party, and which forbids the return of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It then referred to federal regulation 8 CFR § 1208.17(a), which indicates that deferral of removal under the CAT shall be granted with respect to a country where the applicant is more likely than not to be tortured. Judge Richard Posner, writing for the court, suggested that this italicized phrase, though repeated in numerous opinions, cannot and is not to be taken literally, as it would contradict the CAT, which speaks in terms of “substantial grounds” and being “in danger.” He viewed the concept of “more likely than not” as a “puzzler,” and suggested that maybe some strong suspicion that the alien is at risk of being tortured if he is removed would persuade the immigration authorities to let him stay. In addition, he noted that “torture,” as defined in the CAT as well as in regulation 8 CFR § 1208.18(a)(4)(iii), includes killing whether or not accompanied by other torture. Besides finding that the IJ’s assessment on the likelihood of future torture by Jose or the Zetas in general was flawed, the court took cognizance of the fact that Mexican police had already tortured the petitioner as an indication of the widespread understanding that many Mexican police are allied with the big drug cartels, such as the Zetas. The court declared that the fact that the Mexican government may be trying, apparently without much success, to prevent police from torturing its citizens at the behest of drug gangs is irrelevant, citing to N.L.A. v. Holder, 744 F.3d 425 (7th Cir. 2014),13 and Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013),14 a case involving the Zetas cartel in which the Ninth Circuit concluded that if public officials at the state and local level in Mexico would acquiesce in torture, this satisfies CAT’s acquiescence requirement, even if the federal government would not similarly acquiesce. The Seventh Circuit also referred to a more recent Ninth Circuit decision, Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015),15 which held that the BIA erred by requiring that petitioner to show acquiescence of the Mexican government when her torture was inflicted by public officials themselves (emphasis by the court). Besides identifying the above-outlined errors in the agency’s assessment of the petitioner’s CAT claim, the court noted that the government made no effort to refute the expert’s testimony that petitioner Rodriguez could not relocate to a safer part of Mexico, a proposition that neither the IJ nor the BIA questioned. Accordingly, the matter was remanded to the BIA for further proceedings.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture | Leave a comment

Guide for New Lawful Permanent Residents of the United States

Posted on December 9, 2015 by Mike Baker

Welcome to the United States: Guide for New Lawful Permanent Residents

Congratulations on becoming a permanent resident of the United States of America. The United States has a long history of welcoming immigrants from all parts of the world. America values the contributions of immigrants, who continue to enrich this country and preserve its legacy as a land of freedom and opportunity.

As a permanent resident of the United States, you have made a decision to call this country your home. As you work to achieve your goals, take some time to get to know this country, its history, and its people. It is now both your right and your responsibility to shape the future of this country and ensure its continued success.

The U.S. government has resources to help you prepare for your new life in the United States and improve your English.

This comprehensive guide for newly arrived immigrants contains practical information to help you settle into everyday life in the United States. It also contains basic civics information that introduces you to the U.S. system of government. You can download free copies in 14 languages. You can purchase printed copies in English, Spanish, and Chinese through the U.S. Government Bookstore.

WelcometoUSA.gov
This Web portal for new immigrants provides basic information from various government agencies on settling in the United States.

USA.gov and GobiernoUSA.gov
As the U.S. government’s official portals, USA.gov and the Spanish version GobiernoUSA.gov help the public find information and services on the Web.

Posted in Guide for New Lawful Permanent Residents of the United States | Leave a comment

CA7 finds resistance to China’s coercive population-control policy credible-Wang v. Lynch, Court of Appeals, 7th Circuit 2015

Posted on November 1, 2015 by Mike Baker

Lishou Wang, a 51-year-old Chinese citizen, petitioned for review of the denial of his applications for asylum and withholding of removal based on his resistance to China’s coercive population-control policy. An immigration judge found that Wang did not testify credibly about the crux of his claim, which involves a beating he suffered while struggling to prevent his wife from being forced to receive what he believed to be a sterilization procedure. But the IJ misunderstood Wang’s testimony about the nature of the procedure his wife ultimately received—the implantation into her arm of a contraceptive device. Further the IJ erred by concluding, alternatively, that Wang could not show past persecution because he resisted only his wife’s forced contraceptive implant as opposed to a forced abortion or sterilization. CA7 granted the petition and remanded for further proceedings. Wang v. Lynch, Court of Appeals, 7th Circuit 2015

IJ erred in denying alien’s asylum and withholding of removal petitions, where alien alleged that he was persecuted due to his resistance to China’s coercive population-control policy. While IJ found that alien was not credible regarding crux of his claim where alien gave conflicting testimony with respect to whether Chinese officials had implanted contraceptive device or had performed tubal ligation on his wife, Ct. of Appeals found that IJ could not use said contradiction to discount alien’s credibility, where record contained no indication that alien grasped difference between both procedures. Moreover, alien could prevail upon showing that he engaged in “other resistance” to coercive population-control program, and remand was required to determine whether alien’s physical altercation with Chinese officials that resulted in broken foot at time said officials seized alien’s wife for purposes of implanting contraceptive device qualified either as “other resistance” to population-control program or as “persecution.”

Chinese farmworker Wang married in 1988. His wife gave birth to a daughter. Government officials required his wife to have an intrauterine device implanted. Five years later the IUD “fell off,” and she got pregnant. Officials forced her to abort the pregnancy. In 2000, they had another child, a son. Months later, officials went to their house and threatened to sterilize either Wang or his wife. Wang protested; the officials pushed him to the floor, kicked him, and beat him with batons. They forced his wife to have a contraceptive, “Norplant,” surgically inserted into her arm. His wife became ill and they had no more children. Nine years later Wang entered the U.S. on a business visitor’s visa, procured from a snakehead. More than a year after his entry, he sought asylum and withholding of removal, contending that he had been persecuted for resisting official demands to sterilize him or his wife. An IJ found that Wang did not testify credibly. The Seventh Circuit reversed and remanded the denial of relief; the IJ misunderstood Wang’s testimony about the procedure his wife received and erred by concluding that Wang could not show past persecution because he resisted only his wife’s forced contraceptive implant as opposed to forced abortion or sterilization.

______________________________________

LISHOU WANG, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1261.

United States Court of Appeals, Seventh Circuit.
Argued August 4, 2015.
Decided October 26, 2015.

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

Lishou Wang, a 51-year-old Chinese citizen, petitions for review of the denial of his applications for asylum and withholding of removal based on his resistance to China’s coercive population-control policy. An immigration judge found that Wang did not testify credibly about the crux of his claim, which involves a beating he suffered while struggling to prevent his wife from being forced to receive what he believed to be a sterilization procedure. But the IJ misunderstood Wang’s testimony about the nature of the procedure his wife ultimately received—the implantation into her arm of a contraceptive device. Further the IJ erred by concluding, alternatively, that Wang could not show past persecution because he resisted only his wife’s forced contraceptive implant as opposed to a forced abortion or sterilization. We grant the petition and remand for further proceedings.

I. BACKGROUND

We recount the facts primarily from Wang’s testimony during his final removal hearing. In China Wang worked as a farmer in a village in the eastern province of Shandong. He married in 1988, and the following year his wife gave birth to a daughter. Three months later government officials required his wife to have an intrauterine device (“IUD”) implanted. But five years later the IUD “fell off,” and she again got pregnant. Under government policy, though, too little time had passed since having their first child, so officials forced her to abort the pregnancy. (Wang does not rely on this abortion for his asylum claim.) By 2000, Wang and his wife were able to have another child, a son.

The events at the heart of these proceedings occurred three months after their son’s birth, when government officials went to their house and threatened to sterilize either Wang or his wife. Wang protested and fought against the officials, who pushed him to the floor, kicked him, and beat him with batons until he passed out from “severe, excruciating pain” in his leg. At some point he heard a neighbor telling the officials to stop before they killed him. Wang was taken to a hospital, where he learned that his foot was broken. In the meantime officials had returned to his house and forced his wife to undergo a procedure in which a contraceptive called “Norplant” was surgically inserted into her arm.[1] (This procedure engendered considerable confusion at the hearing, as Wang first labeled it “tubal ligation” before clarifying that he meant the “birth control implant on my wife’s upper arm” or “skin implant.”) His wife became ill from the implant, and the couple had no further children.

Nine years later Wang entered the United States on a three-month business visitor’s visa that he had procured from a snakehead. More than a year after his entry, he applied for asylum and withholding of removal, contending that he had been persecuted for resisting the government officials’ demands to sterilize him or his wife. The Department of Homeland Security referred his application to an IJ and charged him with removability for overstaying his visa, see 8 U.S.C. § 1227(a)(1)(B). Wang conceded the charge and renewed his requests for relief.[2]

Wang supported his testimony with documents about the ordeal. He included an affidavit in which he described how family-planning officials beat him, broke his foot, and then sterilized his wife while he was in the hospital. He also submitted medical records noting that he had suffered a “bone fracture” and that his wife had undergone “surgery by Norplant device implantation.” Finally he added letters from his wife and mother-in-law describing the procedure as “[s]ubcutaneous ligation.”

The IJ denied all relief. The IJ credited Wang’s testimony about his background, his family, and the circumstances of his departure from China, and acknowledged that Wang “could qualify for asylum based on past persecution if he showed that he resisted a coercive population program.” But the IJ did not credit Wang’s testimony about the incident with family-planning officials. Instead, the IJ found “clear inconsistency” in Wang’s alternative characterizations of his wife’s procedure as both a forced tubal ligation and a forced implantation of a birth-control device. These two procedures were so “markedly different,” explained the IJ, that there was “no reason to think” they “could be confused in any way.” And even if Wang were telling the truth about his wife forcibly receiving a contraceptive, the IJ continued in the alternative, he could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization. Finally, the IJ added, Wang did not present sufficient corroboration to clarify his inconsistent testimony.

The Board upheld the IJ’s decision, finding the adverse credibility determination not clearly erroneous. It explained that the IJ was not required to accept Wang’s explanation for confusing tubal ligation with a Norplant implantation, especially since the two procedures were “vastly different.” Without credible testimony, the Board concluded, Wang’s documentary evidence was insufficient to meet his burden of proof for asylum or withholding of removal. The Board declined to address the IJ’s alternative conclusion that Wang could not qualify for asylum because he had not resisted a forced abortion or sterilization.

II. ANALYSIS

Because the Board affirmed the decision of the IJ and added its own reasoning, we review both decisions, see Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Georgieva v. Holder, 751 F.3d 514, 519 (7th Cir. 2014), bearing in mind that factual and credibility determinations must be supported by substantial evidence, see Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015); Liu v. Lynch, 788 F.3d 737, 741 (7th Cir. 2015), while legal conclusions are reviewed de novo, see Antia-Perea v. Holder, 768 F.3d 647, 658-59 (7th Cir. 2014).

A. Credibility

Wang persuasively argues that the IJ’s credibility finding is flawed because the IJ mistook Wang’s innocent confusion over the name of his wife’s medical procedure for a conclusion that it never occurred. The IJ improperly discredited Wang’s testimony by relying solely on his mistaken labeling of the procedure as “tubal ligation” even though he consistently described it as involving a “skin implant” and “birth control implant on my wife’s upper arm.”[3] Throughout his testimony Wang explained that he understood the consequence of his wife’s procedure—whether labeled a “tubal ligation” or a Norplant implantation—to be her inability to conceive another child. Wang emphasized that he thought of Norplant as the same as a “sterilization procedure” or “tubal ligation” because “in China, without certain identification, you cannot remove this implant from your body.” Although tubal ligation is in fact different from a contraceptive implant, Wang said nothing at the hearing to suggest that he grasped the difference between the two procedures. Consequently the IJ lacked substantial evidence to use Wang’s misunderstanding of the term “tubal ligation” to discredit his uncontradicted testimony that family-planning officials implanted a contraceptive device into his wife’s arm.

B. Past Persecution

Next Wang challenges the IJ’s alternative conclusion— which the Board did not disturb—that even if he credibly had testified about his wife’s forced Norplant implantation, he could not demonstrate past persecution as described in 8 U.S.C. § 1101(a)(42) because he did not resist a forced abortion or sterilization. The IJ misconstrued this statute.

Under § 1101(a)(42), if Wang’s wife were forcibly sterilized or forced to have an abortion, she could establish per se persecution on account of political opinion. See Chen v. Holder, 604 F.3d 324, 331 (7th Cir. 2010). And in that case Wang could seek relief for himself if he had been harmed for resisting her sterilization or abortion. See id.; Jin v. Holder, 572 F.3d 392, 397 (7th Cir. 2009). But Wang also may seek relief if he suffered persecution for engaging in “other resistance to a coercive population control program,” 8 U.S.C. § 1101(a)(42). Under this provision, the precise procedure that Wang’s wife underwent as part of that program is beside the point. China’s “coercive population control program” is not limited to only forced abortions and sterilizations; it also forces couples to use birth-control measures such as condoms, pills, and IUDs. See Population and Family Planning Law (P.R.C.) (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 29, 2001, effective Sept. 1, 2000), reprinted in U.S. Dep’t of State, 2007 China Profile of Asylum Claims & Country Conditions; see also Chen v. Holder, 737 F.3d 1084, 1089 (7th Cir. 2013). Wang’s claim that he was punished for opposing the efforts of family-planning officials to enforce the population-control program, either by sterilizing him or his wife or by implanting a contraceptive device into his wife’s arm, thus falls within the protection of the statute.

On remand the Board must assess two matters in the first instance. See Kone v. Holder, 620 F.3d 760, 763-64 (7th Cir. 2010). First it must decide whether Wang’s attempted interference with the family-planning officials, when they came to his house threatening to implement population-control measures, qualifies as “other resistance.” See, e.g., Cheng v. Att’y Gen. of U.S., 623 F.3d 175, 190 (3d Cir. 2010) (“other resistance” includes refusing to comply with demands to abort pregnancy, fleeing town to escape family-planning officials, defying orders to undergo sterilization, frustrating officials’ attempts to have IUD inserted, and missing multiple gynecological appointments); Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 638 (B.I.A. 2008) (resistance “must be assessed against the failures or refusals to comply with official demands to adhere to birth planning policies” and includes acts such as “removing an IUD or failing to attend a mandatory gynecological appointment”); cf. He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (marrying underage, having children earlier than allowed, and paying partial fine for violating policy do not constitute the “overt” and “persistent defiance” required to qualify as “other resistance”). Second it must determine whether the harm Wang alleges to have suffered—a beating that led to hospitalization and a broken foot—amounts to persecution. See, e.g., Chen v. Holder, 705 F.3d 624, 629 (7th Cir. 2013) (persecution encompasses harm such as beatings, detention, arrest, interrogation, and imprisonment).

III. CONCLUSION

We GRANT the petition for review and REMAND this case to the Board for further proceedings.

[1] According to an uncredited pamphlet in the record entitled “Facts About Norplant,” Norplant is the brand name of a contraceptive consisting of 6 small capsules that are implanted under the skin of a woman’s upper arm and is 99% effective at preventing pregnancy for up to 5 years. The pamphlet warns that possible side effects of the drug include weight gain, headaches, heavy vaginal bleeding, missed periods, stomach pain, chest pain, leg pain, trouble breathing, and pus or bleeding at the insertion area.

[2] The IJ excused Wang’s failure to meet the one-year deadline for filing his asylum application, see 8 U.S.C. § 1158(a)(2)(B), (D), and the government has never challenged that determination.

[3] This confusion apparently was exacerbated by interpretation glitches. For example, Wang first testified (through an interpreter) that the family-planning officials had tried to force his wife to have a “vasectomy.” When the IJ pressed Wang to clarify, the interpreter interjected and acknowledged that she had erred and meant to say “tubal ligation.”

Posted in China one-child policy, China’s family planning policy, credibility determination, past persecution, political asylum, withholding of removal | Tagged | Leave a comment