Certificate of Translation

Posted on August 24, 2014 by Mike Baker

Certificate of Translation

Under both Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR) regulations, all documents written originally in another language must be translated into English. 8 C.F.R. § 103.2(b)(3); 8 C.F.R. § 1003.33. A certificate guaranteeing the accuracy of the translation must accompany all documents translated into English and submitted to either DHS or EOIR. The certificate does not have to be notarized but it must include the name signature of the translator.8 C.F.R. § 103.2(b)(3); 8 C.F.R. § 1003.33; Immigration Court Practice Manual, Chapter 3.3(a), App. H. (June 10, 2013); BIA Practice Manual, Chapter 3.3(a), App. H. (June 10, 2013). Immigration Courts require as well that the certificate include the translator’s address and telephone number.

In some cases, DHS or EOIR, may require a certificate of authenticity from the U.S. consulate in the home country of the client. This is called an apostille. An apostille makes a document legal for international use under the terms of the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. For example, when requesting immigration status for an adopted child, DHS may request an apostille for some documentation.

Relevant Regulations

• 8 C.F.R. § 1003.33 (translation of documents)

• 8 C.F.R. § 103.2(b)(3) (translations)

Selected Policy Memoranda and Guidelines

• BIA Practice Manual, Chapter 3.3 (Documents)

• Immigration Court Practice Manual, Chapter 3.3(a) (Documents)

Selected Administrative Case Law

• Ok Ran You Yoo Jin Chung Jae Woo Chung, 2007 WL 1724857 (BIA 2007)

• Martin Alonso Cota-Barron, 2005 WL 1104217 (BIA 2005) (in denying government’s motion for summary affirmance and granting remand Board noted that the IJ failed to inform respondent of requirement that documentary evidence be translated into English)

• Reyna Lourdes De Jesus, Beneficiary of a Visa Petition Filed by Santiago De Jesus, Petitioner, 2004 WL 2418650 (BIA 2004) (Spanish language affidavit rejected because not accompanied by translation or translator’s certificate)

• Matter of Nevarez, 15 I&N Dec. 550, 1976 WL 32303 (BIA 1976) (record remanded to district director for proper translation of beneficiary’s affidavit prepared by U.S. consul in Mexico)

CERTIFICATE OF TRANSLATION

I, (name of translator), am competent to translate from (language) into English, and certify that the translation of (name of document(s)) is true and accurate to the best of my abilities.

(signature of translator)
(date)
(typed/printed name of translator)
(address of translator)
(telephone number of translator)

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Nebraska Service Center Filing Tips

Posted on August 24, 2014 by Mike Baker

NSC Offers Filing and Best Practice Tips

U.S. Citizenship and Immigration Services’ (USCIS’) Nebraska Service Center (NSC) strives to adjudicate each and every petition within posted processing times and, in reviewing ways to improve its efficiency, has identified the following filing tips:

• Fill out the Form I-130 completely and correctly, including an A-number for Naturalized citizens.

• When an item is non-applicable, indicate “N/A” versus leaving it blank.

• Ensure that all foreign language documents are accompanied by complete, English translations, which the translator certifies are correct. Also, ensure that all English translations are accompanied by the foreign language document.

• For spousal petitions, be sure to include Form G-325A and photos for both the petitioner and the beneficiary.

• When filing multiple petitions, provide a copy of documents for each file. While the NSC makes every effort to adjudicate family petitions together, these petitions may be worked separately. Including copies with each filing will reduce delays and possibly an unnecessary request for evidence (RFE).

NSC also points out these additional best practices:
• Respond to an RFE completely and in one response by the due date in the letter
• When requesting priority date retention, humanitarian reinstatements, or surviving relative consideration under INA § 204(l) [8 USCA § 1154(l)], clearly indicate what is being requested and provide a copy of the previously approved petition that the request is based on.

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CA7 remands 212(c) case to BIA due to legal error of reliance on uncorroborated arrest reports absent a conviction or corroborating evidence

Posted on August 21, 2014 by Mike Baker

Avila-Ramirez, an LPR since 1977, does not contest the BIA’s determination that his 1990 conviction for committing a lewd and lascivious act with a child under the age of fourteen was for an aggravated felony. Avila-Ramirez’s guilty plea occurred in 1990, at a time when he would have been eligible for § 212(c) relief. So he is statutorily eligible for § 212(c) relief. The BIA’s reliance on only uncorroborated arrest reports for which he denies any wrongdoing to determine whether he was “rehabilitated” ignored the BIA’s precedential decision in In re Catalina Arreguin De Rodriguez, 21 I. & N. Dec. 38 (BIA 1995), and misread Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995). This is a question of law that CA7 has jurisdiction to review. CA7 retains jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Legal questions include ‘challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that the BIA failed to exercise discretion at all.’”

An immigration judge found Carlos Avila-Ramirez “credible” and gave “full weight to his testimony” at a hearing requesting discretionary relief from removal. That testimony included Avila-Ramirez’s denial that he had committed any underlying wrongdoing during the times he had been arrested or questioned since 1990. He was never convicted of any crimes resulting from those arrests, and the police reports the government introduced at the hearing were uncorroborated. Yet the immigration judge and Board of Immigration Appeals relied on these uncorroborated arrest reports to find that Avila-Ramirez had failed to show “rehabilitation” after a 1990 conviction, and this failure was a significant factor in the decision to deny him discretionary relief from removal under former § 212(c) of the Immigration and Nationality Act. CA7 concluded that in these circumstances, the BIA committed legal error by failing to follow its own binding precedent and giving substantial weight to an arrest report absent a conviction or corroborating evidence of the allegations contained therein. So we grant the petition for review.

______________

CARLOS AVILA-RAMIREZ, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-3300.

United States Court of Appeals, Seventh Circuit.
Argued April 22, 2014.
Decided August 21, 2014.

Before POSNER, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

An immigration judge found Carlos Avila-Ramirez “credible” and gave “full weight to his testimony” at a hearing requesting discretionary relief from removal. That testimony included Avila-Ramirez’s denial that he had committed any underlying wrongdoing during the times he had been arrested or questioned since 1990. He was never convicted of any crimes resulting from those arrests, and the police reports the government introduced at the hearing were uncorroborated. Yet the immigration judge and Board of Immigration Appeals relied on these uncorroborated arrest reports to find that Avila-Ramirez had failed to show “rehabilitation” after a 1990 conviction, and this failure was a significant factor in the decision to deny him discretionary relief from removal under former § 212(c) of the Immigration and Nationality Act. We conclude that in these circumstances, the BIA committed legal error by failing to follow its own binding precedent and giving substantial weight to an arrest report absent a conviction or corroborating evidence of the allegations contained therein. So we grant the petition for review.

I. BACKGROUND.

Carlos Avila-Ramirez, a citizen of Guatemala, was law-fully admitted to the United States as a permanent resident in 1977 when he was about seven years old. He has remained in the United States ever since. After three years of high school, he joined the United States Marine Corps. He later obtained his GED, then attended Solano Community College in California and received a certification to become an optical technician. Avila-Ramirez has been consistently employed as an adult. Most recently, he worked for a cable company in Chicago, earning $77,000 in the year preceding his immigration hearing.

At the time of the June 2012 removal hearing, Avila-Ramirez had been engaged to his fiancée, Gloria Espinosa, for about ten years. They live together in Chicago and also live with their son, who was born in 2003. Espinosa suffers from lupus and Sjögren’s syndrome, both autoimmune disorders, as well as fibromyalgia. Although only thirty-three years old at the time of Avila-Ramirez’s hearing, these diseases had already rendered her unable to work. She receives $1,296 in Social Security disability benefits for herself and her son, as well as $150 in food stamps for her son.

Avila-Ramirez’s income helps support Espinosa and their son. In addition, because one of Espinosa’s main symptoms is fatigue, Avila-Ramirez usually cleans the house and cooks. Avila-Ramirez and Espinosa both expressed their intent to marry. Avila-Ramirez also testified that if he were deported, Espinosa and their son would probably remain in the United States because of Espinosa’s medical needs.

Avila-Ramirez’s mother, brother, sister, grandmother, and uncles also live in the United States. Avila-Ramirez’s mother receives Supplemental Security Income and lives with her mother in Chicago, and his sister lives about an hour away. His brother is in the United States Army and is stationed in Central America. Although his mother earns some income working at a drug store, Avila-Ramirez helps support her financially. He also takes her places because she does not drive. Since Avila-Ramirez lives the closest of the children to his mother, he is also the one who would, for example, take her to the emergency room when she is ill. (His mother suffers from high blood pressure and hypertension.)

But Avila-Ramirez’s time in the United States was certainly not unblemished. He was convicted in California in 1990 of inflicting corporal injury upon a spouse or cohabitant and sentenced to seventy-nine days in jail. A short while later, he received a bad conduct discharge from the military for writing bad checks and was sentenced to ninety days’ incarceration. He testified before the immigration judge regarding the latter that he had written a check that hit the bank before his pay did, and that he paid the money owed after money was deposited into his account.

Most significantly, later in 1990, Avila-Ramirez pled guilty in California state court to committing a lewd and lascivious act with a child under the age of fourteen. The victim was the daughter of his then-girlfriend. He received a sentence of six years’ imprisonment for this crime. He also relinquished parental rights to his daughter, the victim’s halfsister, as a result of the charge. He was paroled after three-and-a-half years in prison and moved to Chicago in 1993.

That 1990 conviction is the last time Avila-Ramirez was convicted of a crime. He has, however, been questioned or arrested multiple times since then. In 1995, Avila-Ramirez was arrested for aggravated stalking and violation of a restraining order. He denied any misconduct at the removal hearing, testifying that his then-girlfriend’s mother had filed for the restraining order because she did not want the two of them to date, and that he was arrested for stalking after he knocked on the door. Later that year, Avila-Ramirez was questioned regarding theft of labor services and use of a stolen credit card. Avila-Ramirez testified before the immigration judge that the charges were dropped because “[he] didn’t have anything to do with it.”

In 2006, Avila-Ramirez was arrested for predatory criminal assault of a child. He was never charged, never required to appear in court after the arrest, and he denied any wrongdoing at the immigration hearing. Avila-Ramirez’s mother testified that her sister was the one who had made the accusation, and that her sister falsely accuses people because she drinks. The next year, Avila-Ramirez was arrested for unlawful possession of a firearm. He testified to the immigration judge that he was pulled over for a traffic violation while giving a ride to Espinosa’s brother, who is in a gang. Avila-Ramirez testified that he gave the police consent to search his car thinking he had nothing to hide, the police found a gun underneath the seat, and that the gun belonged to Espinosa’s brother but Avila-Ramirez was charged because the car was registered in his name. The prosecutor did not proceed with a case. The immigration judge noted that the police report states that Avila-Ramirez told the police he was carrying the gun for protection. The government introduced no evidence corroborating any of the allegations or arrest reports.

After hearing all the testimony, the immigration judge found Avila-Ramirez credible and stated he gave Avila-Ramirez’s testimony “full weight.” Nonetheless, the immigration judge concluded that Avila-Ramirez’s repeated arrests meant he had not shown rehabilitation and denied Avila-Ramirez’s request for § 212(c) relief. While calling it a “very close” case, the BIA affirmed, stating in part that “the Immigration Judge found that [Avila-Ramirez’s] recent subsequent arrests show a lack of rehabilitation. We discern no clear error in that finding.”

II. ANALYSIS.

Avila-Ramirez petitions our court for review. Because the BIA relied on the findings of the immigration judge and added its own analysis, we review the immigration judge’s decision as supplemented by the BIA. See Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010).

Avila-Ramirez concedes that he is eligible for removal and seeks discretionary relief from removal under former § 212(c) of the Immigration and Nationality Act. Through the 1996 passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress repealed § 212(c) and replaced it with a narrower form of discretionary relief known as “cancellation of removal.” See United States v. Zambrano-Reyes, 724 F.3d 761, 762 (7th Cir. 2013). A lawful permanent resident cannot receive cancellation of removal if he has an aggravated felony conviction, 8 U.S.C. § 1229b; Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir. 2006), and Avila-Ramirez does not contest the BIA’s determination that his 1990 conviction for committing a lewd and lascivious act with a child under the age of fourteen was for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(A) (including sexual abuse of a minor in aggravated felony definition).

But Avila-Ramirez is still statutorily eligible for § 212(c) relief. The Supreme Court held that, despite AEDPA and IIRIRA, § 212(c) relief is still available for persons “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001). Avila-Ramirez’s guilty plea occurred in 1990, at a time when he would have been eligible for § 212(c) relief. So he is statutorily eligible for § 212(c) relief.

The next potential barrier to our review comes in the form of the REAL ID Act, which limits our review of certain BIA decisions. Invoking this statute, the government maintains that we lack jurisdiction to consider Avila-Ramirez’s petition because it contends he is seeking review of a purely discretionary decision barred from our consideration by 8 U.S.C. § 1252(a)(2)(B). It is true that whether to grant § 212(c) relief is a matter of discretion. Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978). In deciding whether to grant such relief, the immigration judge is to “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf” to determine whether granting relief is in the best interests of the United States. Id. Favorable consideration include family ties within the United States, residence of long duration in the United States (especially when the residence began while the non-citizen was of young age), evidence of hardship to the applicant and family if deported, service in the United States Armed Forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to good character. Id. at 584-85. Adverse factors include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent’s bad character or undesirability. Id. at 584.

But despite the bar in § 1252(a)(2)(B) on purely discretionary determinations, we retain jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Legal questions include `challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that the BIA failed to exercise discretion at all.'” Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir. 2012) (citations omitted). By regulation, the BIA is required when issuing a non-precedential decision to follow its own binding precedent. 8 C.F.R. § 1003.1(g) (“Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board … shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States.”). An argument that the BIA has exceeded the scope of review permissible under this regulation is a legal question for purposes of 8 U.S.C. § 1252(a)(2)(D) and therefore subject to our review. Rosiles-Camarena v. Holder, 735 F.3d 534, 536 (7th Cir. 2013). Avila-Ramirez asserts in his brief: “The Board ignored its own binding precedent in violation of federal law when it denied [his] petition for relief.” More specifically, he maintains that the BIA’s reliance on only uncorroborated arrest reports for which he denies any wrongdoing to determine whether he was “rehabilitated” ignored the BIA’s precedential decision in In re Catalina Arreguin De Rodriguez, 21 I. & N. Dec. 38 (BIA 1995), and misread Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995). This is a question of law that we have jurisdiction to review. See Rosiles-Camarena, 735 F.3d at 536.

Rehabilitation can be an important factor in the § 212(c) analysis, as it was in this case. The Supreme Court has stated that a grant of relief will depend, in part, on `”evidence of either rehabilitation or recidivism,'” Judalang v. Holder, 132 S. Ct. 476, 481 (2011) (quoting St. Cyr, 533 U.S. at 296 n.5), and the immigration judge repeated that quotation in his decision here. In making his § 212(c) determination, the immigration judge found “significant favorable factors” in Avila-Ramirez’s case. He also recognized that Avila-Ramirez and his family, including his fiancée and son, would “face considerable hardships” if Avila-Ramirez were forced to leave. But the immigration judge found that Avila-Ramirez had a “lengthy arrest history” and convictions for serious crimes and had “not shown meaningful rehabilitation since his release from incarceration.”

Yet the immigration judge also found Avila-Ramirez credible. And he did so in strong language, stating:

Having reviewed [Avila-Ramirez’s] testimony and documentary submissions, the Court finds his testimony to have been internally consistent and consistent with the documentary evidence in the record. Thus, the Court finds the respondent credible and will give full weight to his testimony.

Avila-Ramirez testified at the hearing that he did not commit any unlawful conduct before each of the arrests. In particular, Avila-Ramirez testified that his 1995 arrest for stalking and violating a restraining order occurred after his then-girlfriend’s mother did not want her daughter to date him after learning about his 1990 conviction. He testified that his girlfriend’s mother obtained a restraining order after he disclosed the conviction, and the mother called the police and alleged he was stalking her daughter when he came to knock on the door one day. The stalking charge and restraining order were dropped, and the government did not introduce any evidence at the removal hearing that corroborated the allegations in the police report.

Avila-Ramirez was also questioned in 1995 regarding credit card theft and “theft of labor services.” Avila-Ramirez testified that he “didn’t have anything to do with [the charges].” These charges were also dropped, and the government offered no evidence in support of the claims. Avila-Ramirez was arrested in 2006 after his aunt accused him of having inappropriate contact with her granddaughter. He testified that his aunt, who was aware of Avila-Ramirez’s 1990 conviction, had been drinking and made the accusation, but he stated that he had done nothing wrong. His mother also testified that her sister falsely accuses people when she drinks. No charges were ever brought.

Avila-Ramirez also denied that he had unlawfully possessed a firearm in 2007. He testified that he was driving Espinosa’s brother when he was pulled over for a minor traffic infraction. Avila-Ramirez consented to a search of his car because, he testified, he didn’t have anything to hide. He testified that the gun the police found in his car belonged to Espinosa’s brother but that Avila-Ramirez was charged because it was his car.

So Avila-Ramirez denied committing any unlawful conduct in the events leading to his arrests or questioning after 1990. The immigration judge found Avila-Ramirez credible and gave his testimony full weight, and that testimony included denying the underlying conduct. But the judge, affirmed by the BIA, also found that the arrests and questioning showed a lack of rehabilitation. The judge further stated that Avila-Ramirez told the court he had rehabilitated himself, “but these repeated arrests” show otherwise. Finding Avila-Ramirez’s testimony fully credible and also finding that his arrests evidenced a lack of rehabilitation are seemingly contradictory findings.

And the agency found a lack of rehabilitation based on nothing more than uncorroborated police reports. Nonetheless, the government maintains that the BIA did not fail to follow its own precedent. The only decision the agency referenced regarding rehabilitation, Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995), does not authorize its ruling here. In Matter of Thomas, the BIA held that the immigration judge could consider the applicant’s convictions in the exercise of discretion even though the convictions were not yet final. Id. at 25. The BIA explained: “Although the respondent’s convictions are not yet final, we find the fact that he has been so convicted, whether by jury trial or upon his own plea of guilty, to constitute significant evidence that he has committed the crimes of which he has been found guilty.” Id. Avila-Ramirez, on the other hand, was not convicted after any of the arrests at issue. There is no “significant evidence” that he committed any crimes after 1990; he denied that he did the conduct alleged in police reports, and he was never convicted after that date.

Thomas does include the language: “In examining the presence of adverse factors on an application for discretionary relief, this Board has found it appropriate to consider evidence of unfavorable conduct, including criminal conduct which has not culminated in a final conviction for purposes of the Act.” Id. at 23. But the cases the BIA cited in support of this proposition make sense, and none involved only uncorroborated police reports. Some, for example, involved guilty pleas or other admissions. Matter of Seda, 17 I. & N. Dec. 550 (BIA 1980) (guilty plea); White v. I.N.S., 17 F.3d 475 (1st Cir. 1994) (guilty plea); Paredes-Urrestarazu v. I.N.S., 36 F.3d 801 (9th Cir. 1994) (pre-trial diversion where defendant initially testified that friend told him he had drugs for sale); Parcham v. I.N.S., 769 F.2d 1001 (4th Cir. 1985) (acknowledgment of participation in “violent demonstration” corroborated pending arson charges arising out of demonstration). Others concerned convictions with a judicial recommendation against deportation. Matter of Gonzalez, 16 I. & N. Dec. 134 (BIA 1977); Oviawe v. I.N.S., 853 F.2d 1428 (7th Cir. 1988); Giambanco v. I.N.S., 531 F.2d 141 (3d Cir. 1976). Another case involved a conviction that had been expunged. Villanueva-Franco v. I.N.S., 802 F.2d 327 (9th Cir. 1986). In short, all of the cases the BIA discussed in Matter of Thomas involved some corroboration beyond a mere arrest report. Save one, that is, and it is the one most relevant to our circumstances. Matter of Thomas cited favorably to Sierra-Reyes v. I.N.S., 585 F.2d 762, 764 n.3 (5th Cir. 1978), which the BIA described as “stating that police reports implicating respondent in criminal activity but which never resulted in prosecution due to a lack of sufficient evidence were not probative.” Matter of Thomas, 21 I. & N. Dec. at 24-25. That is what we have here: only uncorroborated police reports.

Soon after its decision in Matter of Thomas, the BIA considered the weight that could be given to uncorroborated arrest reports in a § 212(c) discretionary relief determination. But neither the BIA nor the immigration judge cited or discussed the BIA’s precedential decision in In re Catalina Arreguin De Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995). As a precedential decision, it is binding on the agency when it issues a non-precedential decision such as the one in this case. See 8 C.F.R. § 1003.1(g). In Arreguin, the applicant in her testimony before the immigration court denied any wrongdoing regarding the conduct described in an arrest report. Nonetheless, an immigration judge denied the request for § 212(c) relief after considering the arrest report and finding it to be a negative factor. The BIA reversed and explained:

The Immigration Judge concluded that this incident was a negative factor to be considered in exercising discretion. Just as we will not go behind a record of conviction to determine the guilt or innocence of an alien, so we are hesitant to give substantial weight to an arrest report, absent a conviction or corroborating evidence of the allegations contained therein. Here, the applicant conceded that the arrest took place but admitted to no wrongdoing. Considering that prosecution was declined and that there is no corroboration, from the applicant or otherwise, we give the apprehension report little weight.

21 I. & N. Dec. at 42. The BIA then weighed the favorable and negative facts in the record and found § 212(c) relief warranted. Id. at 42-43.

The Sixth Circuit ruled that Arreguin meant an immigration judge erred by denying relief based on uncorroborated arrest reports. Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 713 (6th Cir. 2004). After finding the facts before it “materially the same” to those in Arreguin, the court ruled that although the immigration judge was concerned that the petitioner “had a history of sexually abusing young children, he was not convicted of any such crime, denied committing such a crime, and was confronted with no independent evidence suggesting otherwise.” Id. at 712. The court held that the BIA’s “failure to follow its precedent” in Arreguin when it relied on uncorroborated arrest reports to deny discretionary relief was a legal error that subjected the petitioner to substantial prejudice. Id. at 713. As a result, the court remanded the case to the BIA with instructions not to consider the reports. Id.; cf. Padmore v. Holder, 609 F.3d 62, 69 (2d Cir. 2010) (noting concern with “the BIA’s apparent willingness to accept unproven and disputed allegations as true merely because they exist in the record”).

Here too, as in Arreguin, Avila-Ramirez acknowledged that arrests and questioning took place after 1990, but admitted to no wrongdoing. Avila-Ramirez was not prosecuted or convicted after these arrests, and there was no corroboration introduced at the immigration hearing. Yet the immigration judge and the BIA gave the arrest reports significant weight. That significant weight was given is clear, as the immigration judge found many factors in Avila-Ramirez’s favor but concluded he had not shown meaningful rehabilitation since his release from incarceration. That lack of rehabilitation finding can only be based on the uncorroborated arrests, as there is no other potentially negative factor in the record. Other points in the decision reinforce the weight placed on the uncorroborated arrests. Regarding Avila-Ramirez’s 1995 questioning for a financial crime, the immigration judge noted that although the charge was dropped, it “cast doubt” on whether he had “learned from his mistake the first time” of writing bad checks. The immigration judge also remarked that Avila-Ramirez’s “repeated aggressive displays toward significant others [was] cause for concern.” But Avila-Ramirez only had one conviction in this regard, in 1990; the “repeated” reference was to a 1995 arrest where Avila-Ramirez denied any wrongdoing.

The BIA’s failure to follow its own binding precedent was not harmless. Cf. Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (stating doctrine of harmless error applies to judicial review of immigration decisions). In addition to the weight given the arrests in the immigration judge’s decision, the BIA characterized Avila-Ramirez’s case as a “very close” one even when considering the arrest reports and stated that Avila-Ramirez had “substantial equities.” The arrest reports seemed to be the decisive factor in the BIA’s decision; absent the reports, there would be no basis in the record for the agency’s conclusion that Avila-Ramirez had not shown rehabilitation.

To be clear, this is not to say that we read Arreguin to prohibit any consideration of arrest reports in the weighing of discretionary factors. See Arreguin, 21 I. & N. Dec. at 42 (giving “little weight” to arrest report); Sorcia v. Holder, 643 F.3d 117, 126 (4th Cir. 2011) (stating that Arreguin “did not indicate that it was per se improper to consider an arrest report” and declining to vacate decision where BIA gave “little weight” to arrest report). Here, however, we find that the agency failed to follow its binding precedent in Arreguin, which it did not cite, when it gave significant weight to uncorroborated arrest reports in which Avila-Ramirez denied any wrongdoing after finding him credible. See Margulis v. Holder, 725 F.3d 785, 788 (7th Cir. 2013) (“The Board can reexamine, and if it wants overrule, a precedent, but it didn’t do that in this case. It ignored it. This is not permissible.”). As a result, we grant the petition for review and return Avila-Ramirez’s case to the BIA for additional consideration.

III. CONCLUSION.

The petition for review is GRANTED and this case is returned to the BIA for further proceedings consistent with this opinion.
AVILA-RAMIREZ v. Holder, Court of Appeals, 7th Circuit 2014
__________________________________________________________
In re Catalina Arreguin De Rodriguez, Applicant
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
File No. A35 507 157 – Dublin
INTERIM DECISION: 3247
DEPARTMENT OF JUSTICE, BOARD OF IMMIGRATION APPEALS 1995 21 I. & N. Dec. 38
May 11, 1995, Decided
(1) An alien who has committed a serious drug offense faces a difficult task in establishing that she merits discretionary relief; nevertheless, the applicant met her burden of demonstrating that relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), was warranted where this was her only conviction, the sentencing court noted her acceptance of responsibility and “minor role” in the offense, there was substantial evidence of efforts toward rehabilitation, and the applicant presented unusual or outstanding equities, including nearly 20 years of lawful residence and two minor dependent United States citizen children.

(2) In considering the factors to be weighed in the exercise of discretion with regard to an application for relief under section 212(c) of the Act, evidence such as community ties, property and business holdings, or special service to the community are to be considered in the applicant’s favor; however, the absence of those additional ties in themselves does not negate the weight to be accorded an applicant’s long residence in this country.
__________________________________________________________
In re Patrick Norman Thomas, Respondent
The appeal is dismissed.
File No. A72 477 545 – Fishkill
INTERIM DECISION: 3245
DEPARTMENT OF JUSTICE, BOARD OF IMMIGRATION APPEALS
21 I. & N. Dec. 20
April 28, 1995, Decided
(1) Inasmuch as a conviction does not attain a sufficient degree of finality for immigration purposes until direct appellate review has been exhausted or waived, a non-final conviction cannot support a charge of deportability, and likewise does not trigger a statutory bar to relief, under a section of the Immigration and Nationality Act premised on the existence of a conviction.

(2) In determining whether an application for relief is merited as a matter of discretion, evidence of unfavorable conduct, including criminal conduct which has not culminated in a final conviction for purposes of the Act, may be considered.

(3) When considering evidence of criminality in conjunction with an application for discretionary relief, the probative value of and corresponding weight, if any, assigned to that evidence will vary according to the facts and circumstances of each case and the nature and strength of the evidence presented.

Posted in 212(c), 7th Circuit, 7th Circuit Cases- Aliens, rehabilitation, uncorroborated arrest reports absent a conviction | Tagged | Leave a comment

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

Posted on August 19, 2014 by Mike Baker

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.

The petitioner, Mr. Adame, was placed into removal proceedings in 2009 after DHS discovered that he had pleaded guilty to “drinking in a park.” He was charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] (present in U.S. without inspection). After two continuances, the IJ denied Adame’s cancellation application, finding that he had not established any of the statutory requirements, namely 10 years’ continuous physical presence, good moral character, or demonstration of exceptional and extremely unusual hardship to his U.S.-citizen children. The IJ found that the earliest documentary evidence of Adame’s presence in the U.S. was a traffic ticket issued in 2001, only eight years before removal proceedings were commenced. He also ruled that Adame’s claim that he entered the U.S. in 1997 was not credible due to inconsistencies in his testimony and his arrest record, which included driving while intoxicated, loitering in a bar, and public intoxication. The Board affirmed the IJ’s removal order but opted to restrict its discussion to the continuous-residence issue. It considered that Adame’s testimonial evidence alone was insufficient and rejected his argument that the IJ should have warned him that he would need to present documentary evidence to support his contention that he entered the U.S. in 1997. The Board noted that the IJ told Adame at the first hearing that he would have to “present proof” of his residence and that “just saying you’ve been here” would not suffice.

The Seventh Circuit explained that, as a general matter, courts of appeals lack jurisdiction to review the denial of discretionary relief in immigration proceedings, citing to 8 USCA § 1252(a)(2)(B) (jurisdiction-stripping provision). However, it referred to the “important exception to this rule,” codified at 8 USCA § 1252(a)(2)(D), which provides that judicial review is available for petitions presenting a constitutional claim or question of law. It observed that, cognizant of the jurisdictional limitation, Adame had styled his petition as raising a due process claim–arguing that the IJ and the BIA violated the Fifth Amendment by determining that his testimony lacked credibility and by requiring him to submit extra documentation to prove his 10 years of continuance residence. Alternatively, he argued that the IJ should have granted him a continuance to collect this documentation. The court referred to the understanding, per its prior caselaw, Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), that an alien does not have a constitutionally protected interest embracing the right to a favorable discretionary decision to allow him or her to remain in the U.S. It remarked that, even if the IJ were flat-out wrong and Adame had resided in the U.S. for 10 consecutive years before receiving his notice to appear (commencing removal proceedings), the question remained of whether a court of appeals would be authorized to correct that error. The court emphasized that, even if the petitioner were to show that he established all of the statutory requirements to be considered for cancellation relief–the requisite physical presence, good moral character, and hardship to his family members–this would simply authorize the IJ to exercise discretion in Adame’s favor as, once the three criteria are established, the IJ may cancel removal. It cited again to Cevilla and to Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir. 2005), for the proposition that a noncitizen’s “right to due process does not extend to proceedings that provide only … discretionary relief.” Accordingly, it held that the IJ’s decision to deny cancellation of removal did not violate any rights protected by the Fifth Amendment’s Due Process Clause.

The court then addressed Adame’s purported “legal claim” that the IJ erred by calling for documentary evidence to supplement his testimony without considering whether that evidence could reasonably be obtained. The Seventh Circuit discoursed on varying circuit court decisions construing the parameters of “questions of law” under the jurisdictional statute, INA § 242(a)(2)(D). It acknowledged that the Fifth, Sixth, Eighth, and Ninth Circuits have endorsed the position that “questions of law” in this context extend to “questions involving the application of statutes and regulations to undisputed facts,” sometimes referred to as “mixed questions of fact and law.” It further noted that the First, Second, Third, and Fourth Circuits permit review of the threshold question of whether the correct legal standard was used but find no jurisdiction when the so-called legal question is simply a means of challenging factual conclusions. The Seventh Circuit recognized that its position on this subject has been a “strict” one in that it has for years adhered to the rule that § 1252(a)(2)(B) excludes from its 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). In this regard, the court cited Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (limiting review to constitutional claims and questions of statutory construction in this arena). Accordingly, the court declared that Mr. Adame’s challenge to the IJ’s demand for additional evidence fell outside of its authority. The court appreciated that the conflict in the circuits on the jurisdictional issue is a serious one and observed that, during oral argument, the government candidly informed the court that it would not press the same jurisdictional defense in other circuits.

The court also rejected the petitioner’s other challenges, including challenges to the agency’s moral character and hardship findings, and to the IJ’s conduct of the hearing. In regard to the continuance denial, the court concluded that the IJ’s ruling was within his discretion given that the petitioner had two years to gather supporting evidence and had not shown that he made a diligent effort to pursue possible leads to corroborate the requisite presence in the U.S.

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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

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

Posted on July 27, 2014 by Mike Baker

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