Guidance on Provisional Unlawful Presence Waivers

Posted on January 24, 2014 by Mike Baker

U.S. Department of Homeland Security January 24, 2014 Field Guidance

SUBJECT: Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers.

U.S. Citizenship and Immigration Services Field Operations Directorate Washington, DC 20529

Purpose: This field guidance addresses the adjudication of Form I-601A, Application for Provisional Unlawful Presence Waiver in cases involving applicants with criminal history.

Scope: This field guidance applies to and binds all USCIS employees. Authority: 8 CFR 212.7(e)

Guidance Pertaining to Applicants for Provisional Unlawful Presence Waivers

Background

On March 4, 2013, we began a new provisional unlawful presence waiver program for certain relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA). See 78 FR 536-01 (January 3, 2013). The provisional unlawful presence waiver process allows immediate relatives of U.S. citizens (spouses, children, or parents) who are currently residing in the United States to apply for a provisional waiver while in the United States, provided they meet all eligibility requirements outlined in 8 CFR 212.7(e) and warrant a favorable exercise of discretion.

There are several circumstances that may render an individual ineligible for a provisional unlawful presence waiver. For example, individuals with final orders of exclusion, deportation, or removal; individuals who are currently in removal proceedings that are not administratively closed at the time of filing; and individuals who have a pending application with USCIS for lawful permanent resident status are not eligible to apply for the provisional unlawful presence waiver. Individuals for whom there is a reason to believe that they may be subject to grounds of inadmissibility other than unlawful presence at the time of the immigrant visa interview with a Department of State (DOS) consular officer also are ineligible for the provisional unlawful presence waiver. See 8 CFR 212.7(e) (2013).

If a USCIS officer determines, based on the record, that there is a reason to believe that the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of his or her immigrant visa interview with a DOS consular officer, USCIS will deny the request for a provisional unlawful presence waiver. See 8 CFR 212.7(e)(4)(i) (2013).

In some cases, USCIS has denied a Form I-601A if an applicant has any criminal history. In these cases, if the record contains evidence that an applicant was charged with an offense or convicted of any crime (other than minor traffic citations such as parking violations, red light/stop sign violations, expired license or registration, or similar offenses), regardless of the sentence imposed or whether the offense is a crime involving moral turpitude (CIMT), USCIS has denied the Form I-601A. 1

All applicants who are ineligible for a provisional unlawful presence waiver, including applicants with a criminal history, may seek a waiver of inadmissibility abroad after they appear for their immigrant visa interviews at a U.S. Embassy or consulate.

We have examined whether USCIS officers should find a reason to believe that an applicant may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview if it appears that the applicant’s criminal offense falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) or it appears that the applicant’s criminal offense is not a crime involving moral turpitude (CIMT) under INA section 212(a)(2)(A)(i)(I). After further consideration, USCIS issues this field guidance.

Field Guidance

USCIS officers should review all evidence in the record, including any evidence submitted by the applicant or the attorney of record. If, based on all evidence in the record, it appears that the applicant’s criminal offense: (1) falls within the “petty offense” or “youthful offender” exception under INA section 212(a)(2)(A)(ii) at the time of the I-601A adjudication, or (2) is not a CIMT under INA section 212(a)(2)(A)(i)(I) that would render the applicant inadmissible, then USCIS officers should not find a reason to believe that the individual may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(I) at the time of the immigrant visa interview solely on account of that criminal offense. The USCIS officer should continue with the adjudication to determine whether the applicant meets the other requirements for the provisional unlawful presence waiver, including whether the applicant warrants a favorable exercise of discretion.

Use

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

Contact Information

Questions or suggestions regarding this field guidance should be addressed through appropriate directorate channels to the Field Operations Directorate.

Posted in Application for Provisional Unlawful Presence WaiverI-601A, I-601A, Provisional Waivers, Stateside Processing of I-601A Waivers, The Provisional Waiver, Unlawful Presence, Unlawfully Present in the United States, Waivers, Waivers of Inadmissibility | Tagged , | Leave a comment

CA7 holds that misadvice and failure to advise does not evade the non‐retroactivity of Padilla

Posted on January 10, 2014 by Mike Baker

Chavarria, born in Mexico, became a legal permanent U.S. resident in 1982. In 2009, Chavarria pleaded guilty to distributing cocaine. One year later, the Supreme Court decided Padilla v. Kentucky, imposing a duty on defense attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and held that legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas can support a Sixth Amendment claim of ineffective assistance of counsel. Chavarria filed a pro se motion under 28 U.S.C. 2255, claiming that his trial counsel stated that “the attorney had checked with the Bureau of Immigration and Customs Enforcement … and they said they were not interested” in deporting him. Chavarria was deported before counsel was appointed. The district court denied a motion to dismiss, holding that Padilla could be applied retroactively. Shortly thereafter, the Seventh Circuit decided, in Chaidez v. U.S., that Padilla was a new rule and not retroactive. The district court vacated its ruling and dismissed. While appeal was pending, the Supreme Court affirmed Chaidez, foreclosing Chavarria’s argument that Padilla was retroactive. The Seventh Circuit affirmed, rejecting an argument that Chaidez distinguished between providing no advice (actionable under Padilla) and providing bad advice (actionable under pre‐Padilla law).

Download Chavarria case

In the United States Court of Appeals For the Seventh Circuit No. 11‐3549 JULIO CESAR CHAVARRIA, Petitioner‐Appellant,

v.

UNITED STATES OF AMERICA, Respondent‐Appellee.

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:10‐CV‐191 — Joseph S. Van Bokkelen, Judge.

ARGUED OCTOBER 1, 2013 — DECIDED JANUARY 9, 2014

Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

CUDAHY, Circuit Judge. This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine. No. 11‐3549

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (2012) (explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement … and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padilla announced a new rule not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chaidez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues that Chaidez distinguished between providing no advice (actionable under the Padilla rule) and providing bad advice (actionable under pre‐Padilla law).

I.

At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padilla announced a new rule, which was not retroactive, when it affirmed our decision in Chaidez. Chaidez, 133 S. Ct. at 1105.

II.

His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alternative basis for a constitutional claim under pre‐Padilla law.

This argument about affirmative misadvice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre‐Padilla, misstatements about deportation could support an ineffective assistance claim. Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test of Strickland v. Washington, 466 U.S. 668 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non‐advice was not a relevant factor in Padilla. Second, the precedent, pre‐Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct‐collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non‐advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non‐advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach— and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre‐Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non‐advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language in Chaidez offers some support for Chavarria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion. See e.g., Chaidez, 133 S. Ct. at 1110 (referring jointly to scrutiny of a lawyer’s misadvice and “nonadvice”).

Ironically, Chavarria asks us to recognize a distinction between misadvice and non‐advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, the Padilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the possible absurd results. Padilla, 559 U.S. at 370–71. This discussion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non‐advice from the new rule it announced.

Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pre‐Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent. Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla‐like world.” Chaidez, 133 S. Ct. 1112.

The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an attorney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/nonadvice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre‐Padilla rule.

The district court correctly concluded that it was bound by Chaidez and that Padilla had no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non‐retroactivity of Padilla, we AFFIRM.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Chicago Immigration Court, ineffective assistance of counsel, Padilla, Padilla v. Kentucky | Leave a comment

CA7 denies I-751 extreme hardship waiver because an alien has no protected liberty interest in discretionary immigration relief

Posted on January 6, 2014 by Mike Baker

CA7 Denies Extreme-Hardship Waiver for Petitioner Convicted of Marriage Fraud. The court denied the petition for review, finding that the petitioner’s due process argument failed because he had no legitimate claim of entitlement to an extreme-hardship waiver under INA §216(c)(4).

Anouar Darif was charged in a three-count superceding indictment with conspiracy to commit marriage fraud, in violation of 18 U.S.C. § 371, marriage fraud, in violation of 8 U.S.C. § 1325(c), and witness tampering, in violation of 18 U.S.C. § 1512(b)(1).   The first two counts were based on allegations that Defendant, a native of Morocco, paid $3000 to Dianna Kirklin (“Kirklin”), an American citizen, to marry him and help him obtain a United States visa.   The third count was based on a letter that Defendant sent to Kirklin while he was in jail pending trial, in which he urged Kirklin to contradict testimony she gave before the grand jury in Defendant’s case.

Before proceeding to trial, Defendant filed a motion in limine seeking to prevent the government from introducing into evidence letters he had written to Kirklin.   Defendant also filed a motion to dismiss for improper selective prosecution.   The district court denied both of Defendant’s motions.   The district court also rejected several of Defendant’s proposed jury instructions.   A jury found Defendant guilty on all three counts.

Darif’s due-process argument focuses exclusively on the denial of his request for an extreme-hardship waiver, a discretionary form of immigration relief. See § 1186a(c)(4)(A). So even if Darif was statutorily eligible for a hardship waiver, the decision whether to grant one remained entirely discretionary. And indeed, the BIA denied a waiver in its discretion. Because Darif has no legitimate claim of entitlement to an extreme-hardship waiver under § 1186a(c)(4), his due-process argument necessarily fails.
Anouar Darif No. 12-1050

ANOUAR DARIF, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 12-1050

United States Court of Appeals, Seventh Circuit.
Argued September 28, 2012.
Decided January 2, 2014.

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Anouar Darif, a native and citizen of Morocco, married Dianna Kirklin, a citizen of the United States, and by virtue of the marriage was admitted into the United States as a conditional permanent resident in 2001. But the marriage was a sham. Darif was convicted of marriage fraud and related charges, and the Department of Homeland Security (“DHS”) initiated proceedings to remove him. An immigration judge (“IJ”) found Darif removable and rejected all of his arguments for relief. The Board of Immigration Appeals (“BIA” or “Board”) initially ordered further proceedings, but when the case returned to the BIA after remand, the Board likewise rejected all of Darif’s claims for relief from removal.

In his petition for review, Darif presses only his argument for an extreme-hardship waiver pursuant to 8 U.S.C. § 1186a(c)(4). He claims that the IJ was biased and otherwise denied him a full and fair hearing in violation of his right to due process. But regardless of the alleged flaws in the proceedings before the IJ, the BIA independently reviewed Darif’s request for a hardship waiver and exercised its discretion to deny it; we have no jurisdiction to review that discretionary determination. See 18 U.S.C. § 1252(a)(2)(B)(ii). Although we may review constitutional claims and questions of law, see id., Darif’s due-process argument cannot succeed because an alien has no protected liberty interest in discretionary immigration relief. Even if the due-process claim is recast as a challenge to the legal sufficiency of Darif’s hearing under the governing statutes and regulations, Darif was not prejudiced because the BIA gave his hardship claim plenary and independent consideration and denied it in an exercise of its discretion. Accordingly, we deny the petition for review.

I. Background.

Darif and Kirklin married in December 2000 in Morocco. Later that month Kirklin submitted an I-130 Petition for Alien Relative, the petition that must be filed to enable an alien spouse to obtain lawful permanent residence status. The approval of Kirklin’s petition allowed Darif to obtain the necessary visa to enter the United States, which he did in December 2001.

Because alien spouses married to United States citizens are admitted for permanent residence on a conditional basis, see 8 U.S.C. § 1186a(a)(1), Darif’s status in the United States was as a conditional permanent resident. To remove that conditional status, Darif and Kirklin had to comply with a number of requirements prescribed by statute, including jointly filing an I-751 Petition to Remove Conditions on Residence and undergoing a personal interview. See id. § 1186a(c)-(d); Hammad v. Holder, 603 F.3d 536, 538 (9th Cir. 2010). Darif and Kirklin initiated the process for removing his conditional status by filing the necessary I-751 petition in September 2003.

At some point evidence emerged that Darif had paid Kirklin $3,000 for the marriage, exposing it as a sham. In 2004 Darif was charged with marriage fraud in violation of 8 U.S.C. § 1325(c), conspiracy to commit marriage fraud in violation of 18 U.S.C. § 371, and witness tampering in violation of 18 U.S.C. § 1512(b)(1). A jury convicted Darif on all three counts the following year, and we affirmed his convictions on appeal. See United States v. Darif, 446 F.3d 701 (7th Cir. 2006).

An alien spouse’s visa may be revoked if it was obtained through marriage fraud, see 8 U.S.C. § 1155; El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004), and marriage fraud is a stand-alone ground for removal, see 8 U.S.C. § 1227(a)(1)(G). So in December 2005 the DHS terminated Darif’s conditional permanent resident status, see id. § 1186a(b)(1), and initiated removal proceedings the next month. The grounds for removal were threefold: (1) Darif’s conditional residency status had been terminated, see id. § 1227(a)(1)(D)(i); (2) Darif had committed marriage fraud, see id. § 1227(a)(1)(G)(ii); and (3) Darif was inadmissible at the time of entry, see id. § 1227(a)(1)(A). Notwithstanding his convictions, Darif continued to deny that his marriage was fraudulent.

Darif and Kirklin filed a number of petitions in an effort to stave off Darif’s removal. In January 2006 Kirklin filed a second I-130 Petition for Alien Relative seeking to establish that the marriage was really a good-faith marriage despite the jury’s verdict. In February 2006 Darif and Kirklin jointly filed another I-751 petition based on their continued marriage; they also asserted that Darif’s removal would cause extreme hardship. Finally, Darif filed his own I-751 petition relying solely on extreme hardship.

Only the request for an extreme-hardship waiver is at issue here, so we pause for a moment to sketch how this form of relief works. As we have noted, to remove the conditional status of permanent residence, an alien and his citizen spouse must jointly file a timely I-751 petition and submit to a personal interview. See id. § 1186a(c)(1). The petition must state, among other things, that the alien spouse and citizen spouse are married and that they did not marry for the purpose of gaining the alien spouse’s admission as an immigrant. Id. § 1186a(d)(1). The extreme-hardship waiver comes into play when the alien spouse cannot comply with the petition and interview requirements. See id. § 1186a(c)(4)(A). In that situation “[t]he Secretary of Homeland Security, in the Secretary’s discretion, may remove the conditional basis of the permanent resident status . . . if the alien demonstrates that . . . extreme hardship would result if such alien is removed.” Id. A favorable determination of extreme hardship would have counteracted at least one basis for Darif’s removal—that his conditional permanent residence status had been terminated. See id. § 1227(a)(1)(D)(ii).

Darif’s removal hearing was held on May 4, 2006, the day after we issued our opinion affirming Darif’s convictions. Darif and Kirklin appeared without an attorney. Apparently no one was aware of our decision the day before because the IJ continued the hearing to wait for the results of Darif’s criminal appeal. Darif maintains, however, that the judge made a number of off-the-record comments at this hearing suggesting that he was biased. Because the record reflects none of these comments, we take Darif’s version of events from his affidavit and accept it for the sake of argument. Darif states that at the beginning of the hearing, the IJ told Kirklin that she could let go of Darif’s arm because he was “not going anywhere . . . yet.” During the hearing itself, the judge referred to Darif’s convictions and said, “[Y]ou had better hope you win that appeal because if you don’t, you’re done, it’s over, you are out of here; there are no more continuances, no more chances.” The judge later referred again to Darif’s criminal case and told him that if he lost in the Seventh Circuit, he would lose in immigration court. Finally, when Darif asked the judge whether he should notify the court when his appeal was decided, the judge responded, “[O]h yeah, you can bring it in, we can get this over with real quick, the sooner the better.”

The IJ reconvened the hearing on June 1, 2006, having learned by then of our decision affirming Darif’s convictions. This time Darif appeared with counsel, so the judge continued the hearing to June 30 for purposes of “pleading and any and all forms of . . . relief.” The judge explained to Darif that on that date his counsel would tell the court “whether he wants to apply for a benefit or a defense.” Whether these statements meant that Darif needed to be prepared to present his evidence on all his claims for relief on June 30 would later become the subject of dispute.

At the June 30 hearing, the IJ determined that Darif was removable on all three grounds advanced by the government, essentially relying on Darif’s convictions for marriage fraud. Darif’s attorney then advised the judge that Darif was pursuing the following forms of relief: a continuance to allow adjudication of the recently filed I-130 and I-751 petitions; an extreme-hardship waiver under § 1186a(c)(4); a fraud waiver under 8 U.S.C. § 1227(a)(1)(H); withholding of removal under the Immigration and Nationality Act (“INA”); and protection under the Convention Against Torture (“CAT”).

The IJ first addressed Darif’s request for a continuance and denied it for lack of good cause. The judge noted that Darif had not informed the immigration authorities that his convictions had been affirmed and also that Darif’s convictions precluded him from establishing a good-faith marriage, which would doom the I-130 and I-751 petitions in any event. For good measure the judge added that even if the convictions did not have preclusive effect, he would deny the continuance in an exercise of his discretion.

The judge then addressed the request for an extremehardship waiver, expressing doubt that Darif was statutorily eligible because his conviction for marriage fraud meant that he never should have been conditionally admitted in the first place. Darif’s attorney took the position that the statute allowed for an extreme-hardship waiver despite the conviction. The judge was clearly skeptical and demanded legal authority in support of this position. Darif’s attorney responded that he was simply relying on his reading of the statute. The judge rejected the argument and held that Darif was statutorily ineligible for a hardship waiver as a consequence of his conviction of marriage fraud. The judge added that he would deny the waiver as a matter of discretion.

The judge moved next to Darif’s request for a fraud waiver under § 1227(a)(1)(H), quickly denying this form of relief because Darif did not have a qualifying spouse based on his fraudulent marriage and also because he was not otherwise admissible. That left only Darif’s requests for withholding of removal under the INA and protection under the CAT. The judge instructed Darif to call his first witness. Darif’s attorney was caught off guard and said that he was not prepared to present evidence. At this point a squabble ensued about whether at the June 1 hearing the judge had told Darif and his attorney to be prepared to introduce evidence on June 30.

The judge refused to continue the matter and insisted that Darif’s attorney move forward with evidence on the remaining forms of relief that Darif was requesting. Darif’s attorney declined, noting again that he did not have notice and was unprepared to move forward on the withholding and CAT claims. The judge construed Darif’s failure to present evidence as an abandonment of the claims and denied them. On September 1, 2006, the IJ issued a written order explaining his findings.

Before the written order issued, however, Darif moved for recusal, or in the alternative, rehearing. The motion was based primarily on the judge’s off-the-record comments at the May hearing. But Darif also maintained that recusal was necessary based on the judge’s handling of proceedings involving Ouaffa Melliani, a coconspirator in Darif’s marriage-fraud conspiracy. Finally, Darif contended that the IJ had denied him a full and fair opportunity to present evidence by insisting that he move forward at the June 30 hearing when he was unprepared to do so. The judge denied the motion in his September 1 written order denying relief from removal.

Darif appealed to the BIA and won a partial remand. The BIA found no basis for the IJ’s recusal and held that Darif was not eligible for a fraud waiver. But the BIA remanded for reconsideration of the claims for withholding of removal and protection under the CAT, concluding that it was reasonable for Darif’s counsel to assume that the IJ would not demand evidence on these forms of relief at the June 30 hearing. In a footnote the BIA also acknowledged that the IJ appeared to have erred in imposing a good-faith marriage requirement for eligibility for extreme-hardship waivers under § 1186a(c)(4), but suggested that the error was inconsequential because any application for such a waiver would be futile.

The IJ scheduled a new hearing in July 2008 but continued it twice to allow the Citizenship and Immigration Services (“USCIS”) to adjudicate the I-751 petition that Darif had filed seeking an extreme-hardship waiver. In early December 2008, the USCIS denied the extreme-hardship waiver because Darif was statutorily ineligible based on his technically still valid (if fraudulent) marriage to Kirklin.

When Darif’s hearing reconvened in March 2009, the IJ agreed with the USCIS’s decision, reasoning that the statute permitted extreme-hardship waivers only when an applicant could not file a joint petition with his spouse and submit to a personal interview. The judge noted that because Darif was technically still married to Kirklin, he was capable of complying with the petition and interview requirements of § 1186a(c)(1) and therefore resort to the extreme-hardship waiver was statutorily impermissible.

Darif’s attorney took issue with that reading of the statute, and the proceedings again became contentious. The judge demanded to know whether any legal authority supported Darif’s counsel’s interpretation and warned him that a frivolous application was sanctionable. Darif’s attorney replied that he did not have any legal authority but was again relying on his understanding of the text of the statute. The judge responded by reading the sanctions regulations to Darif’s attorney.

The implied threat of sanctions prompted counsel to ask the judge to relieve him as Darif’s attorney. A drawn-out exchange then ensued about whether the judge should allow Darif’s attorney to withdraw. The judge ultimately refused, noting that the attorney knew Darif’s case and that withdrawal would disadvantage his client. This got things back on track, and counsel proceeded to introduce evidence regarding Darif’s requests for withholding of removal and CAT protection.

The IJ denied Darif’s applications for withholding and protection under the CAT. In his written decision, the judge also explained his conclusion that Darif was statutorily ineligible for an extreme-hardship waiver because he was still married and therefore could file a joint I-751 petition. Finally, the judge urged the BIA to consider imposing sanctions against Darif’s attorney for advancing a frivolous argument about the statutory availability of an extreme-hardship waiver.

In the meantime, Darif and Kirklin were divorced. Based on this new development and before appealing the IJ’s decision to the BIA, Darif moved to reopen. He was careful not to concede the earlier point that his then-still-intact (if fraudulent) marriage made him statutorily ineligible for a hardship waiver under § 1186a(c)(4). But he argued that his recent divorce removed that impediment to relief. He also submitted an affidavit and other documents to support his substantive claim that multiple hardships would flow from his removal: (1) removal would sever family ties by effectively preventing him from seeing his adopted son; (2) he had resided in the United States for eight years; (3) he suffered from chronic back problems; (4) the Moroccan government may presume him to be a terrorist and torture him; (5) the King of Morocco may persecute him for deserting from his government job; (6) he owned his own culinary business in the United States; (7) he had no other means of adjusting his immigration status; (8) he had assisted local authorities in a criminal prosecution; (9) he had no other negative immigration history and was law abiding while in the United States; and (10) he was gainfully employed and supported his family.

With the motion to reopen pending, Darif again appealed to the BIA. The BIA treated the motion to reopen as a motion to remand and considered it with his appeal. In a decision issued in December 2011, the BIA dismissed the appeal and denied the motion, rejecting Darif’s claims for withholding of removal and protection under the CAT because he had not established a likelihood that he would be persecuted upon his removal to Morocco. The BIA also rejected Darif’s request for an extreme-hardship waiver, holding that his conviction for marriage fraud outweighed his claimed hardships. Alternatively, the BIA determined that Darif’s proffer was insufficient to show that any of the claimed hardships qualified as extreme. Finally, the BIA declined to make a sanctions determination, noting that if the IJ was concerned about counsel’s conduct, he should have filed a complaint with the disciplinary counsel for the Executive Office for Immigration Review.

Darif petitioned this court for review.

II. Discussion.

Darif challenges only the denial of an extreme-hardship waiver under § 1186a(c)(4). The scope of our review is limited. Where, as here, the BIA issues its own opinion rather than adopting or supplementing the IJ’s opinion, we review only the BIA’s opinion. See Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010). As relevant here, the BIA did not adopt the IJ’s analysis of the extreme-hardship waiver but instead exercised its own plenary review and rejected the claim based on different reasoning.

More fundamentally, Congress has strictly limited our jurisdiction to review challenges like Darif’s. We generally lack jurisdiction to review decisions committed to the immigration agency’s discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii). Extremehardship waivers are a discretionary form of relief, see id. § 1186a(c)(4), so we lack jurisdiction to review the substance of the BIA’s decision,[1] see Johns v. Holder, 678 F.3d 404, 406 (6th Cir. 2012); Iliev v. Holder, 613 F.3d 1019, 1023 (10th Cir. 2010). We retain jurisdiction to review constitutional claims and issues of law, see § 1252(a)(2)(D), and Darif has organized his petition for review around an argument that he was denied due process because the IJ was biased and interfered with his ability to fully and fairly present his case.

It is well established that aliens generally have due-process rights in proceedings to determine their removability. See Reno v. Flores, 507 U.S. 292, 306 (1993); Podio v. INS, 153 F.3d 506, 509 (7th Cir. 1998); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 101 (1903); Batanic v. INS, 12 F.3d 662, 666 (7th Cir. 1993). But this right does not extend to discretionary forms of relief from removal. See, e.g., Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008); Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005). We have repeatedly held that the opportunity for discretionary relief from removal is not a protected liberty interest because aliens do not have a legitimate claim of entitlement to it. See, e.g., Boadi v. Holder, 706 F.3d 854, 858 n.3 (7th Cir. 2013); Duron-Ortiz v. Holder, 698 F.3d 523, 529 (7th Cir. 2012); Delgado, 674 F.3d at 765; Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011); Hamdan, 425 F.3d at 1061. Rather, discretionary relief from removal is akin to “an `act of grace.'” Appiah v. U.S. INS, 202 F.3d 704, 709 (4th Cir. 2000) (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996)).

Darif’s due-process argument focuses exclusively on the denial of his request for an extreme-hardship waiver, a discretionary form of immigration relief. See § 1186a(c)(4)(A). So even if Darif was statutorily eligible for a hardship waiver, the decision whether to grant one remained entirely discretionary. And indeed, the BIA denied a waiver in its discretion. Because Darif has no legitimate claim of entitlement to an extreme-hardship waiver under § 1186a(c)(4), his due-process argument necessarily fails.

In his reply brief, Darif recasts the due-process claim as an argument about the legal sufficiency of his hearing before the IJ under the applicable statutes and regulations. We have sometimes permitted this kind of recharacterization. See, e.g., Delgado, 674 F.3d at 766; Khan, 517 F.3d at 518. Although a denial of discretionary relief may not be challenged on procedural due-process grounds, removal proceedings are subject to certain statutory and regulatory procedural requirements. See 8 U.S.C. § 1229a; 8 C.F.R. § 1240.1(c); Delgado, 674 F.3d at 765-66. These include “notice and an opportunity for a fair hearing.” Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). More specifically, aliens in removal proceedings are statutorily entitled to a “reasonable opportunity to examine the evidence[,]. . . to present evidence[,] . . . and to cross-examine witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4)(B). Regulations governing the immigration judge’s authority require the judge to “receive and consider material and relevant evidence.” 8 C.F.R. § 1240.1(c).

Accordingly, “[w]e have repeatedly reminded aliens claiming constitutional violations that immigration proceedings that meet statutory and regulatory standards comport with due process, and, as such, aliens are better-served by arguing instead that immigration proceedings infringed the statutory and regulatory right to a reasonable opportunity to present evidence.” Khan, 517 F.3d at 518. Whether the IJ failed to follow these statutory or regulatory procedures in denying a petition for discretionary relief is a question of law that we review de novo. See Delgado, 674 F.3d at 766.

But recasting his due-process argument as a claim about the IJ’s failure to follow the statutory and regulatory requirements doesn’t get Darif very far, for two independent reasons. First, arguments raised for the first time in a reply brief are waived. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 n.9 (7th Cir. 2012); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010); Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002). Darif didn’t pivot to an argument under the statutes and regulations until his reply brief. The argument is therefore waived.

Second, even if we were to conclude that the IJ’s handling of the hardship-waiver question during the removal proceedings fell short of the requirements in the governing statutes and regulations, Darif must establish prejudice before we would vacate the agency’s decision. See Khan, 517 F.3d at 518; Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007). And there was no prejudice here. Whatever shortcomings there may have been in the proceedings before the IJ (and we do not conclude that there were shortcomings), the BIA itself fully and independently considered the evidence Darif submitted in support of his petition for an extreme-hardship waiver under § 1186a(c)(4). Based on this independent and plenary review, the BIA concluded that Darif did not deserve this form of relief as a matter of discretion. That is, the BIA assumed without deciding that Darif was statutorily eligible for a hardship waiver and concluded—without relying on the IJ’s decision—that a waiver should be denied in an exercise of discretion. This approach is entirely appropriate and effectively forecloses our further review. See Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006) (“[W]hen an agency is entitled to deny relief as an exercise of discretion, it is always unnecessary and often inappropriate for a court to discuss the eligibility issue.”).

Notably, Darif does not argue that the IJ’s mishandling of his case deprived the BIA of evidence it needed to evaluate the hardship question. In short, the BIA provided Darif what he claims the IJ did not: an unbiased, complete consideration of his claim for an extreme-hardship waiver under § 1186a(c)(4). Accordingly, even if the IJ failed to comply with his statutory and regulatory duties, Darif suffered no prejudice.

The petition for review is DENIED.

[1] The Ninth Circuit has taken the position that federal courts retain jurisdiction to review credibility determinations made by the agency when determining whether a petitioner is eligible for an extreme-hardship waiver. See Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147 (9th Cir. 2005). This approach, however, has come under sharp criticism for its reliance on legislative history and its irreconcilability with the clear statutory text. See Iliev v. Holder, 613 F.3d 1019, 1024 (10th Cir. 2010); Contreras-Salinas v. Holder, 585 F.3d 710, 714 n.4 (2d Cir. 2009). Darif does not challenge an adverse credibility determination or the weight that the agency gave his evidence supporting his extreme-hardship petition, so we have no occasion to decide this legal point today.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, extreme hardship waiver, Good-Faith Marriage Waiver, I-751 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud, Petition for Removal of Conditions on Conditional Residence | Leave a comment

Kim v. Holder CA7 ineligible to adjust status because failed to maintain continuous lawful nonimmigrant status

Posted on December 21, 2013 by Mike Baker

Bd. did not err in ordering alien’s removal after his petition to adjust his status to that of lawful permanent resident had been denied due to alien’s failure to establish that he had been in lawful immigration status for 180-day period prior to his application to adjust his status. Record showed that alien’s F-2 status had been terminated on January 16, 2006, when United States Citizenship and Immigration Services (USCIS) terminated F-1 status of alien’s wife due to her non-attendance at school, and alien did not file his petition for change of status until August of 2007. While alien contended that USCIS mistakenly terminated his wife’s F-1 status, Bd. lacked jurisdiction to review USCIS’s discretionary denial of wife’s motion to reinstate her student status. Ct. also rejected alien’s claim that Bd. should have used prosecutorial discretion under 8 CFR section 1003.1(b) and (d) instead of ordering that he be removed because he no longer had valid visa to remain in country.

Kim, his wife Ko, and their children are citizens of South Korea who were admitted to the U.S. in 2003, as nonimmigrant visitors for pleasure. Before an extension expired, Ko, obtained an F-1 visa, changing her status to that of a nonimmigrant student. As beneficiary of his wife’s application, Kim’s status was changed to that of spouse of a nonimmigrant student. In 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated. U.S. Citizenship and Immigration Services stated that Ko was ineligible for reinstatement because she had stopped attending classes without informing the school of an illness that she later claimed. While Ko’s motion to reopen or reconsider was pending, Kim became the beneficiary of an approved immigrant visa as an alien worker and moved to adjust his status to that of lawful permanent resident. USCIS denied the application, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the U.S. In 2009, DHS charged Kim removable under 8 U.S.C. 1227(a)(1)(B). Kim argued that his failure to maintain legal status was due to circumstances beyond his control. The IJ found Kim removable. The BIA dismissed an appeal. The Seventh Circuit denied a petition for appeal.

Kim v. Holder CA7

YOUNG DONG KIM, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States Respondent.

No. 12-1626.

United States Court of Appeals, Seventh Circuit.

Argued: November 1, 2012.

Decided: December 16, 2013.

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge.

Young Dong Kim petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA” or “Board”). The Board determined that Kim was ineligible to adjust his status to that of lawful permanent resident because he failed to maintain continuous lawful nonimmigrant status prior to applying for adjustment. We conclude that Kim’s petition must be denied.

I.

Kim, his wife Jung O. Ko, and their two children are citizens of South Korea who were admitted to the United States on August 6, 2003, as nonimmigrant visitors for pleasure. Their B-2 visas allowed them to remain in the United States until February 2, 2004. They received an extension of this temporary period until August 2, 2004. On April 21, 2004, Kim’s wife, Ko, applied to change her status to that of a nonimmigrant student and her F-1 visa was granted on June 28, 2004. As a beneficiary of his wife’s application, Kim’s status was changed to that of the spouse of a nonimmigrant student, also known as F-2 status. Kim’s F-2 status was valid so long as his wife maintained her F-1 status.[1]

On January 16, 2006, Ko’s F-1 status and, consequently, Kim’s F-2 status, were terminated for reasons that will become apparent below. On May 9, 2006, Ko applied to reinstate her F-1 status with the United States Citizenship and Immigration Services (“USCIS”). On June 5, 2006, USCIS denied Ko’s application. Citing 8 C.F.R. § 214.2(f)(16), the Acting District Director explained:

You are deemed ineligible to file for a reinstatement of status to F-1 because you failed to establish to the satisfaction of the Service, that the violation of status resulted from circumstances beyond your control. You claimed that your failure to maintain your F[-]1 status was caused by circumstances beyond your control because of a serious illness. The letter from your doctor shows that you had been under his care starting December 17, 2005 through January 13, 2006. On June 2, 2006, your previous school was contacted and informed the Service that you stopped attending classes starting November 6, 2005. The school also stated that they do not know the reason why you stopped attending your classes. You have failed to inform your school DSO about your illness and as a result, your status was terminated by Goal Training, Inc. due to subject failure/s. Therefore, there is no other alternative than to deny the application for reinstatement.

Administrative Record (“A.R.”) at 292-93.[2]

On July 7, 2006, Ko filed a motion to reopen or reconsider the June 5, 2006 decision. The District Director denied Ko’s motion on May 15, 2008:

The motion allegedly indicates that the student, Jung O. Kim, has not been out of status for more than 5 months at the time of filing the request for reinstatement. To reiterate, the previous DSO, Tatiana Hamilton, was contacted on June 2, 2006. She stated that the student stopped attending her classes starting November 6, 2005. Additionally, the DSO stated that the school was never informed of the reason why the student stopped attending her classes and as a result, her status was terminated by Goal Training, Inc. Further, on April 15, 2008, the new DSO of Goal Training, Inc., Helen Andrusik, was contacted. Ms. Andrusik confirmed that the information provided by the previous DSO’s [sic] is highly accurate. She also stated that the student[`]s failing grades are likely caused by the attendance problems. Therefore, based on these facts, it was concluded that you fell out of status for over 5 months before your request for reinstatement was filed.

A.R. at 294-95.

While Ko’s motion to reopen or reconsider was still pending, Kim became the beneficiary of an approved immigrant visa petition for an alien worker, also known as a Form I-140 visa petition. In August 2007, Kim moved to adjust his status to that of lawful permanent resident based on his approved I-140 visa petition. In July 2009, the USCIS denied Kim’s application to adjust his status, finding that he was ineligible because he had failed to maintain continuous lawful status since entering the United States. In particular, the USCIS noted that Kim’s F-2 status was terminated in January 2006 when Ko lost her F-1 status. And, of course, Ko’s request for reinstatement of student status had been denied on June 5, 2006. Because Kim had failed to maintain lawful status for more than 180 days before applying to adjust his status, the USCIS deemed him ineligible to adjust his status under 8 U.S.C. § 1255(I). See also 8 U.S.C. § 1255(k)(2).

In October 2009, the Department of Homeland Security (“DHS”) issued Kim a Notice to Appear, charging him with being removable because he had overstayed his visa. See 8 U.S.C. § 1227(a)(1)(B). At a May 20, 2010 hearing before an immigration judge (“IJ”), Kim acknowledged that he was admitted to the United States on August 6, 2003 as a nonimmigrant B-2 visitor, that he was granted F-2 status on June 29, 2004, and that his F-2 status was terminated on January 16, 2006. But he denied that he remained in the United States without authorization after that date and denied that he was removable as charged. At this hearing and at another hearing in August 2010, Ko testified regarding the circumstances of the termination of her student status. Ko said that she stopped attending classes in February 2006 after the school wrongfully terminated her status for non-payment of tuition. She also testified that she became ill in January 2006 and could not attend school for that reason. Kim argued that his failure to maintain legal status from January 2006 through May 2008 was due to circumstances beyond his control and should be excused for that reason. He also maintained that his failure to maintain legal status was due to technical reasons, a failure which could also be legally excused.

The IJ found Kim removable and determined that he was ineligible for adjustment of status. Noting that Kim’s F-2 status terminated on January 16, 2006, the IJ found that Kim’s status was not reinstated or extended at any time by the DHS, and thus he had not maintained continuous lawful status as required. The IJ rejected Kim’s argument that Ko was dropped from the school register for technical reasons or through no fault of her own, and that the USCIS should have reinstated her. The IJ noted that he lacked the authority to reinstate Ko’s student status because the decision was within the sole discretion of the USCIS. Moreover, the IJ determined that Ko did not maintain her status during the time she was seeking reopening or reconsideration of the initial decision, distinguishing her case from that of In re L-K, 23 I&N Dec. 677 (BIA 2004). The IJ also concluded that the circumstances presented did not fall within the “technical reasons” exception that Kim sought to apply. 8 U.S.C. § 1255(c) and (k). Because Kim’s status was dependent on that of Ko, Kim was therefore subject to removal as charged. In addition to being removable as charged, Kim was not eligible for adjustment of status due to his failure to continuously maintain lawful nonimmigrant status. The IJ granted Kim, Ko and their children voluntary departure.

Kim filed a timely appeal to the BIA, arguing that the termination of his lawful status in January 2006 was improper, and that his failure to maintain legal status was due to excusable technical reasons. The BIA dismissed the appeal. The Board noted that neither the IJ nor the BIA have the authority to review the decision by USCIS denying Ko’s application to reinstate her student status. The BIA also agreed with the IJ that Ko and Kim’s failure to maintain lawful status could not be characterized as being through no fault of their own or for technical reasons under 8 U.S.C. § 1255(c)(2) and 8 C.F.R. § 1245.1(d)(2). Accordingly, the BIA concluded that Kim was ineligible to adjust his status, and the appeal was dismissed. Kim now petitions for review of the Board’s order.

II.

In his petition for review, Kim contends that the BIA’s review should have included consideration of a June 17, 2011 Memorandum issued by the Director of U.S. Immigration and Customs Enforcement (“ICE”) setting forth guidance on the exercise of prosecutorial discretion. He also contends that the BIA erred when it agreed with the IJ’s findings because the findings of the IJ and USCIS were in conflict. A more thorough review of the facts, Kim argues, would reveal that the DSO made a mistake and that Ko’s status was terminated through no fault of her own.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge’s decision as supplemented by the Board.” Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Cece, 733 F.3d at 675-76. We review questions of law de novo, deferring to the Board’s reasonable interpretation set forth in precedential opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Cece, 733 F.3d at 668-69.

A.

In June 2011, the ICE Director issued a Memorandum setting forth guidance on the exercise of prosecutorial discretion in immigration enforcement actions. See www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf (last visited Nov. 22, 2013) (hereafter “Memorandum”). The Memorandum acknowledged that ICE has limited resources to remove those who are in the United States illegally, and that the agency should therefore use its resources to ensure that enforcement priorities are met. In particular, the Memorandum specified that the agency’s limited resources should be used to promote national security, border security, public safety, and the integrity of the immigration system. In civil immigration enforcement actions, the Memorandum encouraged authorized ICE personnel to exercise prosecutorial discretion in a manner that promoted the stated goals. The Memorandum defined the broad range of enforcement decisions to which this discretion could be applied, set forth the particular agency personnel authorized to exercise that discretion, and provided an extensive list of factors to consider in exercising prosecutorial discretion.

Kim first faults the BIA for failing to consider the issue of prosecutorial discretion. Citing 8 U.S.C. § 1252(d)(1), the government contends that we should not reach this issue because Kim failed to raise it before the Board. But section 1252(d)(1) applies to the exhaustion of “administrative remedies available to the alien as of right,” and the Memorandum, by its own terms, does not “create any right or benefit, substantive or procedural, endorsable at law by any party in any administrative, civil or criminal matter.” Memorandum, at 6. See also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right”). Moreover, the Memorandum by its terms allows for an exercise of prosecutorial discretion at virtually any stage of a removal action, including on appeal.

But there are at least two other reasons that Kim’s claim for an exercise of prosecutorial discretion by the BIA must fail. First, the BIA does not possess the prosecutorial discretion detailed in the Memorandum. See 8 C.F.R. § 1003.1(b) and (d) (setting forth the appellate jurisdiction of the BIA and the Board’s powers generally). Indeed, the Memorandum itself lists the ICE employees who possess prosecutorial discretion and the members of the Board are not among those listed. Memorandum, at 3. Second, exercises of prosecutorial discretion by the DHS generally are immune from judicial review. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-92 (1999). See also 8 U.S.C. § 1252(g) (“Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”).

As the Supreme Court noted:

There was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General’s discrete acts of “commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders”-which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice (which had come to be known as “deferred action”) of exercising that discretion for humanitarian reasons or simply for its own convenience.

American-Arab Anti-Discrimination Committee, 525 U.S. at 483-84. Whether to exercise the prosecutorial discretion outlined in the Memorandum plainly comes within the purview of section 1252(g) and the Supreme Court’s decision in the American-Arab Anti-Discrimination Committee case. We therefore lack jurisdiction to review this claim.

B.

The USCIS found that Ko stopped attending school on November 6, 2005, and that she failed to inform the DSO why she stopped attending classes. Ko claimed that she stopped coming to class because of a serious illness but the USCIS rejected this explanation because a letter from her doctor demonstrated that she was under his care from December 17, 2005 through January 13, 2006, a period that began approximately five weeks after Ko stopped attending classes. The IJ found that Ko’s non-immigrant student status was terminated “on or about January 16, 2006,” which resulted in Kim losing his derivative status as well. The BIA agreed with this finding. In his petition for review, Kim contends that the finding by the USCIS that Ko stopped attending school in November 2005 was in error. Kim asserts that he provided documentary evidence that Ko was in class through January 2006 and that the DSO simply made a mistake. Kim also points out that the IJ found that Ko attended classes until January 2006, a finding that conflicts with that of the USCIS conclusion that Ko stopped attending classes on November 6, 2005. In light of this discrepancy, Kim argues that the BIA should not have deferred to the fact-findings of the IJ but should have independently reviewed the record and concluded that Ko lost her student status through no fault of her own, due to an error by the school’s DSO. Because Ko lost status through no fault of her own, Kim argues that he remained eligible to adjust his status based on his approved I-140 visa petition.

An alien may be eligible for adjustment of status “by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.” 8 U.S.C. § 1255(a). However, an alien who “is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States” is not eligible for adjustment of status. 8 U.S.C. § 1255(c)(2). For immigrants seeking an employment-based adjustment of status, as Kim was seeking here, the statute provides an exception to the requirement of continuous lawful status if the “alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days—(A) failed to maintain, continuously, a lawful status; (B) engaged in unauthorized employment; or (C) otherwise violated the terms and conditions of the alien’s admission.” 8 U.S.C. § 1255(k).

Kim’s lawful status was terminated as of January 16, 2006 at the latest, when Ko lost her student status. Kim does not dispute that USCIS denied Ko’s motion to reinstate her student status on June 5, 2006. Kim filed his application for an adjustment of status more than a year later, in August 2007. The record indisputably establishes, therefore, that Kim was out of lawful status for more than 180 days prior to filing his application to adjust his status.

That failure to maintain lawful status could be excused if Kim could demonstrate that it occurred through no fault of his own or that it was due to technical reasons. 8 U.S.C. § 1255(c)(2); 8 C.F.R. § 1245.1(d)(2). The regulation clearly spells out what is meant by “fault” and “technical reasons.” In relevant part, the regulation states:

No fault of the applicant or for technical reasons. The parenthetical phrase other than through no fault of his or her own or for technical reasons shall be limited to:

(I) Inaction of another individual or organization designated by regulation to act on behalf of an individual and over whose actions the individual has no control, if the inaction is acknowledged by that individual or organization (as, for example, where a designated school official certified under § 214.2(f) of 8 CFR chapter I or an exchange program sponsor under § 214.2(j) of 8 CFR chapter I did not provide required notification to the Service of continuation of status, or did not forward a request for continuation of status to the Service); or

(ii) A technical violation resulting from inaction of the Service (as for example, where an applicant establishes that he or she properly filed a timely request to maintain status and the Service has not yet acted on that request). An individual whose refugee or asylum status has expired through passage of time, but whose status has not been revoked, will be considered to have gone out of status for a technical reason.

8 C.F.R. § 1245.1(d)(2). Neither provision could alter the outcome here. Even if Ko’s motion to reinstate her student status was a timely filed request to maintain status within the meaning of 8 C.F.R. § 1245.1(d)(2)(ii), DHS took action by denying her request on June 5, 2006. Yet Kim did not file his request to adjust his status until August 2007, more than one year later and well beyond the 180 day limit. And Kim did not raise section 1245.1(d)(2)(I) until he filed this petition for review, failing to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1). A failure to exhaust “usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal.” Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011). No exception to that general rule applies in this instance.

Finally, there is no real discrepancy between the findings of the USCIS and the IJ. The USCIS determined that Ko stopped attending classes in November 2005, and her F-1 student status was terminated on January 16, 2006. As Ko’s spouse, Kim’s F-2 status terminated that same day. The IJ found that Ko’s student status was terminated “on or about January 16, 2006.” The IJ also remarked that “Ko dropped out of school in January of 2006.” Any discrepancy about the date would not matter in any case because neither the IJ nor the BIA may review the USCIS’s discretionary denial of a motion to reinstate student status. See 8 C.F.R. § 214.2(f)(16)(ii) (“if the Service does not reinstate the student, the student may not appeal that decision.”). See also In re Yazdani, 17 I&N Dec. 626, 628 (BIA 1981) (“The power, however, to reinstate student status or grant an extension of nonimmigrant stay lies within the exclusive jurisdiction of the District Director and neither the immigration judge nor the Board may review the propriety of the District Director’s determinations.”). Because the IJ and the Board had no authority to review the USCIS’s reasons for denying reinstatement, the asserted discrepancy between the findings of the USCIS and the IJ are irrelevant to Kim’s petition for review. Moreover, when Ko moved for reinstatement, she failed to demonstrate that she met the remaining requirements for reinstatement, including the requirement that the DSO submit a form recommending reinstatement. See 8 C.F.R. § 214.2(f)(16)(I). Kim offers no evidence in his petition that Ko met that additional requirement, and any error related to the date that Ko’s status was terminated could not affect the outcome here. The petition for review is therefore

DISMISSED IN PART AND DENIED IN PART.

[1] At that time, Kim’s status and that of his children depended on Ko’s status as a student. After Kim applied for adjustment of status, his case was consolidated with those of his wife and children in the agency below. The BIA’s final order of removal applied to Kim, Ko and their children, and our ruling on Kim’s petition also applies to the entire family.

[2] A “DSO” is a “Designated School Official.” In order for a school to be certified for the Student and Exchange Visitor Program (“SEVP”), the school must have dedicated employees for assisting and overseeing enrolled students holding F and M visas. DSOs must have an office at the school and be accessible to the F and/or M students at their school. They must also update and maintain student records in the Student and Exchange Visitor Information System (“SEVIS”). See 8 C.F.R. § 214.3(l); http://studyinthestates.dhs.gov/schools/dso (last visited November 8, 2013).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, extension of nonimmigrant stay | Tagged , | Leave a comment

CA7 denies Chinese Fujian Province Asylum based on family planning policy due to failure to present evidence of financial situation

Posted on December 12, 2013 by Mike Baker

Chen v. Holder Docket: 13-1758 Opinion Date: December 11, 2013

Chen faced deportation to Fujian Province and claimed to face a significant risk of persecution there because, since coming to the U.S. in 2002, she has given birth to two children in violation of China’s one‐child policy. The Board of Immigration Appeals denied her petition for asylum. The Seventh Circuit upheld the denial, noting that the Chinese government recently announced that it will permit an urban husband and wife, at least one of whom was an only child, to have two children. Chen’s husband is not an only child; Chen testified that her mother‐in‐law was punished for violating the policy. There is no information on whether Chen is an only child or whether the new policy will be applied retroactively. Fujian Province seems to enforce the one‐child policy more strictly. Nonetheless, the BIA noted that forced sterilization has become very rare and noted that Chen could avoid penalty by not registering the children with the government as permanent residents of China. The children would not be entitled to free public education, subsidized health care, and other benefits, but Chen’s failure to present evidence concerning her financial situation “is a fatal weakness in her case.”

13-1758-2013-12-11

XUE JUAN CHEN, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.



United States Court of Appeals, Seventh Circuit.

Argued October 8, 2013.

Decided December 11, 2013.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Once again we confront a challenge to the denial by the Board of Immigration Appeals of asylum to a Chinese woman whom the government wants to deport to China’s Fujian Province. She claims to face a significant risk of persecution there because, since coming to the United States in 2002, she has given birth to two children in violation of China’s one-child policy (the official designation is “family planning policy”). For similar cases see, e.g., Li Ying Zheng v. Holder, 722 F.3d 986 (7th Cir. 2013); Qiu Yun Chen v. Holder, 715 F.3d 207 (7th Cir. 2013); Xiu Zhen Lin v. Mukasey, 532 F.3d 596 (7th Cir. 2008).

Recently the Chinese government announced that it’s relaxing the one-child policy—it will permit an urban husband and wife at least one of whom was an only child to have two children. See, e.g., Chris Buckley, “After Decades, China Will Ease One-Child Policy,” New York Times, Nov. 16, 2013, p. A1, www.nytimes.com/2013/11/16/world/asia/china-to-loosen-its-one-child-policy.html (visited—as were all the websites cited in this opinion—on December 10, 2013). The petitioner’s husband is not an only child; the petitioner testified without contradiction that her mother-in-law was punished for violating the one-child policy. There is no indication whether the wife is an only child. There is also no indication that the new policy will be applied retroactively. Moreover, Fujian Province, as we have pointed out in previous cases (most recently in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209-10, 212), appears to march to its own beat, enforcing the one-child policy more strictly than existing Chinese law appears to permit. This makes it uncertain whether the petitioner will benefit from the new policy of the central government—a policy moreover merely announced and not yet implemented. (Chris Buckley’s article, supra, quotes a Chinese demographer as saying that “Now [the government is] just talking about launching this, but the specific policies have to be developed at the operational level.”) Prudently, the Justice Department has filed no post-argument submission suggesting that the new policy should affect our consideration of the petitioner’s appeal.

The Board’s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our vacating the denial of asylum. The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff’s alternative (and clearly meritless) claim for relief—withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be original—though none elsewhere in the brief, excluding the table of contents and other purely formal matter. All in all, in a 49-page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client.

An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party’s brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not how an adversarial system of adjudication works. Unlike the inquisitorial systems of Continental Europe, Japan, and elsewhere, our system is heavily dependent on the parties’ lawyers for evidence, research, and analysis. See Stephen McG. Bundy & Einer R. Elhauge, “Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation,” 79 Cal. L. Rev. 313, 315-19 (1991); cf. John Thibaut, Laurens Walker & E. Allan Lind, “Adversary Presentation and Bias in Legal Decisionmaking,” 86 Harv. L. Rev. 386, 386-90 (1972). American judges’ dependence on lawyers is suggested by the fact that the ratio of lawyers to judges is 6.29 times higher in the United States than in the principal Continental European judiciaries. Calculated from European Commission for the Efficiency of Justice, Evaluation Report on European Judicial Systems, p. 144 tab. 7.1, p. 308 tab. 12.1 (2012), www.coe.int/t/dghl/cooperation/cepej/evaluation/ 2012/Rapport_en.pdf; American Bar Association, Lawyer Demographics (2011), www.americanbar.org/content/dam/ aba/migrated/marketresearch/PublicDocuments/lawyer_ demographics_2011.authcheckdam.pdf; The American Bench: Judges of the Nation (Jenny Kimball et al. eds., 22d ed. 2012). We’re neither authorized nor equipped to write a lawyer’s brief for him.

The inadequacy of the brief in this case is especially unfortunate because the Board’s opinion and that of the immigration judge contain errors that have led to reversals of the Board in previous cases, though there are also, as we’ll see, critical gaps in the petitioner’s evidence.

The Board placed great weight on the fact that the petitioner may be able to avoid being forcibly sterilized upon returning to Fujian with her two children simply by not registering the children with the government as permanent residents of China. The Board pointed out that parents of children born abroad can, when they return to China, choose to either register their children and thus “obtain free public education and other benefits [for the children] or opt not to register their children, send them to private school, and pay more for similar benefits [including health care].” An unregistered child is (probably—little about Chinese law is certain, because China does not have the “rule of law” as understood in our legal system) not counted against the number of children (one, with immaterial exceptions) allowed by Chinese law. But unregistered persons appear to be virtual outlaws, and most Chinese families can afford neither private school nor private doctors. Congressional-Executive Commission on China, China’s Household Registration System: Sustained Reform Needed to Protect China’s Rural Migrants 7-10 (2005); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 61. The government’s brief candidly acknowledges the “severe consequences” of nonregistration.

The Board went on to say that even if the petitioner were found to have violated the one-child policy (that is, if she rejected the option of not registering her children), State Department and other country reports indicate that forced sterilizations have become so rare in Fujian Province that she had not “demonstrated a reasonable possibility that she would be forcibly sterilized if she returns to China.” But the Board in saying such things was cherry-picking among country reports (and within a 2007 State Department report) and other public documents, as in Qiu Yun Chen v. Holder, supra, 715 F.3d at 209-10. And it was ignoring evidence from other sources, including a Fujian government website that states that sterilization is mandatory for violators of the one-child policy. Id. at 212; “Replies to Robert Lin,” http://fjjsw.gov.cn:8080/html/5/383/XXXX_XXXXXXXXX.html (English translation at www.microsofttranslator.com/ bv.aspx?ref=IE8Activity&from=&to=en&a=http%3a%2f%2ffjj sw.gov.cn%3a8080%2fhtml%2f5%2f383%2f9626_200856322.h tml) (“.gov.cn” is the Chinese Government’s official web portal). The Board also applied the standard for authentication of documentary evidence that we rejected in Qiu Yun Chen v. Holder as too restrictive. 715 F.3d at 211.

The alternative to forced sterilization, the Board thought, might be a fine. But the Board ruled that even if the petitioner were fined 10 times her annual disposable income, she had not proved that imposition of such a fine would amount to persecution because “before she bought the restaurant she now owns, she made enough to send a few hundred dollars to China monthly.” That restaurant, which she owns jointly with her husband, is in Appleton, Wisconsin. There is no reason to think that she could earn a comparable income in China; and if not, she could not pay the fine. (But it remains to consider whether her husband might be able to pay it— read on.)

The petitioner’s lawyer could have found some live ammunition in the immigration judge’s opinion, no part of which the Board questioned. It states that the petitioner’s “testimony at her hearings was candid, internally consistent, and consistent with her asylum application and supporting documents. Moreover, many of the facts to which [she] testified and about which she had personal knowledge are corroborated by reliable supporting documents in the record. At her individual hearings, the Government did not attempt to impeach her credibility. The Court therefore finds the [petitioner’s] testimony credible.”

The petitioner testified that before coming to the United States in 2002 she had worked in a factory in which she earned 300 to 400 yuan a month. In 2002 this was a little more than $48 ($580 a year) at the official exchange rate of 8.277 yuan to a dollar. See Board of Governors of Federal Reserve System, “Historical Rates for the Chinese Yuan Renminbi,” www.federalreserve.gov/releases/h10/hist/ dat00_ch.htm. The immigration judge also accepted the petitioner’s estimate of 30,000 yuan as the fine she’d have to pay for violating the one-child policy. At the official exchange rate of 6.663 yuan per dollar in December 2012 (when the immigration judge rejected the asylum application), that is $4,502.

The immigration judge noted that the petitioner and her husband had invested $80,000 to buy their restaurant in Wisconsin, but that “otherwise, she has few assets, and her restaurant has not yet been very profitable.” So far as appears, the bulk of the $80,000 was borrowed. She acknowledged earning more than $1,000 a month in 2009 (the year before she testified before the immigration judge). That isn’t a great deal, but there is no evidence of what her husband’s earnings are. That is one yawning gap in the record; another is the absence of any evidence concerning the husband’s earning potential in China. These are serious gaps, attributable to the petitioner.

Refreshingly, after listing the “voluminous country conditions evidence regarding family planning policies in China” and noting their lack of consistency, the immigration judge said of these materials that “taken together … they depict China as a country with serious human rights problems and a strict family planning policy that severely restricts the number of children couples are allowed to have.” He went on to say that China’s human rights record is “poor” in a number of respects, including a “coercive birth limitation policy”; “local officials are under intense pressure to achieve family planning goals; physical coercion is sometimes reported. These findings are echoed throughout the record in submissions by both the Government and the [petitioner]…. Enforcement and application of the family planning policy are uneven and vary widely from region to region…. [M]edia sources, and hundreds of asylum claimants have described forcible and coercive sterilizations and abortions. In fact, Chinese government officials concede that overzealous officials may have perpetrated such acts.”

Yet the immigration judge’s opinion states that although documents “from committees in [the petitioner’s] and her husband’s village and town also suggest that she could be sterilized if she returned to China,” the documents “do not indicate that [she] would be forcibly sterilized; they only state that she `must’ be sterilized.” But doesn’t “must” imply “would”? We’re also perplexed by the immigration judge’s having given little (actually it seems zero) weight, on the ground of bias, to documents in which neighbors and friends of the petitioner reported forced sterilizations, yet giving no greater weight to similar documents submitted by strangers in other cases, on the ground that those were— other cases. We criticized this heads I win, tails you lose approach to evidence in our opinion in the earlier Chen case. See 715 F.3d at 212. And even if the immigration judge could ignore the documents, he could not, consistent with his determination that the petitioner’s testimony was credible, ignore as he did her testimony that a sister-in-law, cousin-in-law, several aunts, and her mother-in-law all were sterilized because they’d violated the one-child policy.

The immigration judge concluded (as did the Board when it reviewed his decision) that the petitioner could avoid persecution simply by not registering her children. Yet that could result in great hardship unless she is wealthy. The immigration judge said she’d “presented no evidence to demonstrate that the higher expenses incurred by forgoing the benefits obtained by registering in the household registration system would cause such `severe economic damage’ that it would amount to persecution.” But depending on how great the expense of educating and providing health care for two unregistered children is, registration may be no less costly than the $4,502 fine that she may not be able to pay. It seems questionable to require her to calculate these expense items rather than for the judge to derive them from credible studies. If she can’t get better work than as a factory hand, it’s hard to see how she can afford to provide private education and private health care for her children.

If she neither forgoes registering her children nor pays a fine (what is called a “social compensation fee”), she risks forcible sterilization. Yet even if she either forgoes registering her children or pays the fine, some risk of forcible sterilization would remain, since Fujian Province appears to have an independent family planning policy stricter than the national policy. See Qiu Yun Chen v. Holder, supra, 715 F.3d at 209; Ji Cheng Ni v. Holder, 715 F.3d 620, 626 (7th Cir. 2013); U.S. Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2012: China 58; Congressional-Executive Commission on China, Annual Report 90-91 (2012) and 2013 Annual Report 92 (quoted below). But presumably the Board’s conclusion that if the petitioner either doesn’t register her children or pays the social compensation fee the risk of forcible sterilization by the Fujian authorities would not rise to a level that would entitle her to asylum would withstand judicial review. See Huang v. Mukasey, 534 F.3d 618, 620-21 (7th Cir. 2008). The crucial question therefore is whether she can afford either the fine, or the costs that failure to register her children would entail. Those costs seem very high, as we’ve said, but she made no attempt to quantify them. As to whether she can afford to pay the fine instead, the immigration judge pointed out that she had “provided very little evidence regarding her personal financial situation.” He also noted that “she paid a large amount of money to smugglers to get to the United States” and that “the most exorbitant fine described in the record [$6,800] … is less than 10% of the [petitioner’s] investment in her restaurant”—a meaningless observation, if indeed the money to buy the restaurant was borrowed and she will return to a factory job if she is deported to China. But she presented no evidence of how much she and her husband (or other members of her family) paid the smugglers. Maybe there is family wealth, although her having been a factory worker in China suggests otherwise.

Also missing from the record is evidence of the husband’s earning potential in China. But the record does contain an affidavit signed by him (though ignored by the parties and the Board) in which he states that “we will … be fined for a huge amount of money because we have violated the [Fujian] Family Planning Policy. … Although we might be able to pay the fines, but we are not willing to because we think we have the right to give births” (emphasis added). This could be regarded as a fatal concession.

We continue to be distressed, however, by the Board’s seeming failure to consider the annual reports of the Congressional-Executive Commission on China, a responsible federal agency, where we read for example that “at least 18 of China’s 31 provincial-level jurisdictions permit officials to take steps to ensure that birth quotas are not exceeded; in practice, these steps can include forced abortion and forced sterilization.” Congressional-Executive Commission on China, 2009 Annual Report 153, 371 n. 24, citing the State Department’s 2008 Human Rights Report on China. And evidently the situation has worsened (though the new policy announcement, discussed at the beginning of this opinion, may herald amelioration): “provincial-level population planning regulations in at least 22 of China’s 31 provinciallevel jurisdictions explicitly endorse the practice [forced abortion], often referred to as a `remedial measure’ (bujiu cuoshi), as an official policy instrument.” Congressional-Executive Commission on China, 2013 Annual Report 100, 226 n. 36. And in the Commissioner’s 2009 report we read that a township in Fujian Province advised its officials “to `strictly act on the demand to carry out [sterilization] within one month’ for women who give birth to a second or third child.” Congressional-Executive Commission on China, 2009 Annual Report 155. Fujian is reported to have adopted an elaborate system of rewards and penalties for officials who do and do not fulfill forced-abortion and forced-sterilization targets. Id. at 156. Finally,

between October 2012 and July 2013, the Commission noted reports from at least eight provinces (Hubei, Guangdong, Anhui, Shandong, Henan, Guizhou, Hunan, and Fujian) using phrases such as “spare no efforts” (quanli yifu or fenli), “use all means necessary” (qian fang bai ji), “implement `man-on-man’ military tactics” (shixing “rendingren” zhanshu), “fight the family planning battle” (dahao jisheng gongjianzhan), and “assault and storm the fortifications” (tuji gongjian) to urge officials to implement family planning measures. The implementation measures promoted in these reports were harsh and invasive, including “remedial measures,” the “two inspections” (intrauterine device (IUD) inspections and pregnancy inspections), the “four procedures” (IUD implants, first-trimester abortions, mid- to late-term abortions, and sterilization), and the collection of “social maintenance fees.”

Congressional-Executive Commission on China, 2013 Annual Report 100 (footnotes omitted).

Still, both the immigration judge’s opinion and the Board’s opinion are improvements on what we faced in the Qiu Yun Chen case that we’ve been citing. And the government’s brief is refreshingly candid in acknowledging deficiencies in the agency’s analysis of China’s one-child policy. But the petitioner’s failure to present evidence concerning her and her husband’s financial situation is a fatal weakness in her case.

The petition to review the Board’s denial of asylum is

DENIED.

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