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CA7 Upholds denial of derivative asylum claim Bulgaria, May 2013

Posted on June 4, 2013 by Mike Baker

Bitsin v. Holder, Court of Appeals, 7th Circuit 2013

Bitsin, a citizen of Bulgaria, entered the U.S. in 2005. Before his visitor’s visa expired, Bitsin applied for a student visa, assisted by an attorney recommended by the college. Bitsin claimed that he believed that he could “just stay,” but not work, while his application was pending and that he was unable to locate the attorney. In 2007 removal proceedings, Bitsin applied for asylum, withholding of removal, and relief under the CAT. Bitsin testified that his father, a retired Bulgarian military officer, owned a private security company that threatened the interests of the Galev Brothers crime syndicate, also in the security services business. Bitsin testified concerning a shooting incident and that his father was taken into protective custody, while other families left the country. The Galev Brothers were acquitted; to Bitsin’s knowledge, his father remains under protection. Another cooperating witness was murdered while in police custody and his father’s neighbors were killed when a bomb exploded in their garage. An IJ held that Bitsin’s application for asylum was time-barred and that Bitsin had not established that he was more likely than not to suffer persecution should he be returned to Bulgaria. The BIA affirmed. The Seventh Circuit rejected a petition for review.

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_________________________________
VALENTIN ASENOV BITSIN, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 12-2717.
United States Court of Appeals, Seventh Circuit.

Argued January 22, 2013.
Decided May 31, 2013.
Before RIPPLE and ROVNER, Circuit Judges, and BARKER, District Judge.[*]

RIPPLE, Circuit Judge.

Valentin Asenov Bitsin, a native and citizen of Bulgaria, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying him asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). For the reasons set forth in this opinion, we dismiss the petition in part and deny it in part.

BACKGROUND

A. Facts

Mr. Bitsin last entered the United States in May 2005 as a visitor, authorized to stay until October 2005.[1] Before his visa expired, Mr. Bitsin decided that he would like to remain in the United States to pursue further education at Solex College in Chicago, Illinois. In August 2005, therefore, he submitted an application for a student visa; he was assisted in his application by an attorney, whom the college had suggested. Mr. Bitsin was advised that his application could take between six months and one year to process. According to Mr. Bitsin’s testimony at his removal hearing, it was his understanding that he would be “allowed to just stay,” but not to work, while the immigration authorities were processing his application.[2] Once his papers were filed, Mr. Bitsin attempted to contact the attorney by telephone to check the status of his application, but “[t]he telephone was out of service.”[3] He later went to the attorney’s office in person only to discover that the office had been closed. In 2007, he was arrested by immigration authorities and placed in removal proceedings.

B. Administrative Proceedings

In removal proceedings, Mr. Bitsin applied for asylum, withholding of removal and relief under the CAT. During the hearing, Mr. Bitsin testified that his father was Asen Bitsin, a retired military officer in Bulgaria. After retiring, he began his own private security company. Mr. Bitsin further stated that his father was quite successful and that this success threatened the business interests of an organized crime syndicate run by the “Galev Brothers,” who also were in the business of providing security services.[4]

In 2000, one of Asen’s businesses was attacked by individuals affiliated with the Galev Brothers. Asen was on the property at the time; he fired warning shots, accidentally hitting one of the intruders. Mr. Bitsin testified that, as a result of this incident, local police accused his father of unauthorized use of a weapon; the prosecutor, however, refused to pursue the matter on the ground that there was no evidence of criminal intent. Mr. Bitsin was a student in Blagoevgrad and was not present when the incident occurred.

Mr. Bitsin testified that, unbeknownst to him, his father continued to have difficulties with the Galev Brothers over the next few years and began to cooperate in an ongoing investigation of the Galev Brothers’ organization. In 2007, Bulgarian officials instituted a criminal proceeding against the Galev Brothers, which later was postponed because the targets of the investigation were seeking elected office. At some point after the proceedings began, the fact that Asen was planning to testify became known, and the Bulgarian government took him into protective custody. The trial recommenced in 2010,[5] and Asen testified in the proceedings. In November 2010, the Galev Brothers were acquitted. To Mr. Bitsin’s knowledge, his father remains under the protection of the Bulgarian government while the authorities “look[] for chances to reopen . . . the court proceedings.”[6]

Mr. Bitsin further testified that he is afraid to return to Bulgaria because of his father’s activities. He pointed to another cooperating witness by the name of Chorata, who was murdered while in police custody. Additionally, in 2009, neighbors of Asen, who, according to Mr. Bitsin, also were cooperating with the investigation of the Galev Brothers, were killed when a bomb exploded in their garage. Finally, Mr. Bitsin submitted evidence concerning a reporter, Lidia Pavlova, who lived in fear because she had attempted to expose the Galev Brothers’ criminal activities. An individual affiliated with the Galev Brothers attacked Pavlova’s son and received only six months’ probation for the attack.

In an oral ruling, the Immigration Judge (“IJ”) held that Mr. Bitsin’s application for asylum was time-barred because he had not applied for asylum within one year of arriving in the United States and did not “fall[] within any one of the exceptions contained in the regulations.”[7] With respect to the application for withholding of removal, the IJ determined that Mr. Bitsin had testified credibly concerning

his manner of entry into the United States, his repeated admissions as a J1, the incident in 2000 in which his father shot an intruder, his father’s involvement in a security business, and the threats against his father by what appears to have been a criminal mafia known as the Gruprovki and his fear of the Galev Brothers, and the criminal proceedings against the Galev Brothers which were undertaken in Bulgaria.[8]
Nevertheless, the IJ concluded that Mr. Bitsin had not established that he was more likely than not to suffer persecution should he be returned to Bulgaria. Specifically, the IJ found that “[h]e merely alleged that in the most general terms that he was the victim of corruption. That is not sufficient to establish a likelihood of persecution.”[9] The IJ also found that Mr. Bitsin had not met his burden of establishing that it was more likely than not that he would be tortured by the Bulgarian government or that the Bulgarian government would be complicit in his torture, should he be returned to his native country. Consequently, he was not eligible for relief under the CAT.

The BIA affirmed with its own opinion. It agreed with the IJ that Mr. Bitsin had not established an exception that would excuse the late filing of his asylum application. Specifically, he had not established that his filing for a change in status constituted “extraordinary circumstances.”[10] Nor had he “shown receipt of an affirmative communication from the [Department of Homeland Security], that would support his assertion on appeal that he was given the equivalent of an administrative parole.”[11] Furthermore, he had not established that his father’s involvement in the court case against the Galev Brothers “should be construed as an `activity’ that the respondent `bec[ame] involved in outside of [Bulgaria],'” so as to fall within the exception to the one-year requirement set forth in 8 C.F.R. § 1208.4(a)(4)(i)(B).[12] Consequently, his asylum application was untimely.

The BIA also agreed with the IJ that Mr. Bitsin had not established one of the requirements for withholding of removal: a clear probability of persecution on account of a protected category, namely his membership in a social group. It noted that Mr. Bitsin had lived in Bulgaria after Asen began having difficulties with the Galev Brothers, but that Mr. Bitsin “ha[d] not received any threats from any individual or entity for any reason.”[13] Moreover, Mr. Bitsin had “provided little detail about the circumstances surrounding the alleged explosion at another witness’s house or the shooting of a former cohort of the Galev Brothers, such that would support the conclusion that the respondent, as a son of a witness, would . . . more likely than not be targeted for persecution by the Galev Brothers.”[14] Additionally, Mr. Bitsin had not met his burden of showing that “the Bulgarian government would be unable or unwilling to protect [him], as [he] testified that the government protected his father whom it placed in a witness protection program.”[15]

Finally, the BIA concluded that the IJ “properly concluded that the respondent did not satisfy his burden of showing that it is more likely than not that he will be tortured by or at the instigation of or with the consent or acquiescence of the Bulgarian government.”[16] Consequently, Mr. Bitsin did not qualify for relief under the CAT.

Mr. Bitsin timely appealed.

DISCUSSION

On appeal, Mr. Bitsin seeks review and reversal of the BIA’s determinations with respect to his applications for asylum, withholding of removal and relief under the CAT. We turn our attention first to his arguments concerning asylum.

A. Jurisdiction to Review Asylum Determination

Section 1158(a)(2)(B) of Title 8 requires that aliens apply for asylum within one year after their arrival in the United States. An alien’s application for asylum nevertheless “may be considered” if he “demonstrates . . . either the existence of changed circumstances which materially affect [his] eligibility for asylum or extraordinary circumstances relating to the delay” in filing the application within the prescribed one-year period. 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3), however, deprives courts of jurisdiction to review a determination regarding the timeliness of an alien’s application for asylum or the existence of changed or extraordinary circumstances to excuse his late filing.[17]

Despite § 1158(a)(3), this court may review constitutional claims or questions of law related to the timely filing of an asylum application. See 8 U.S.C. § 1252(a)(2)(D).[18] We have interpreted this exception to apply “to strictly legal controversies,” by which we “mean[] that the parties contest a legal issue, and that the alien wins if the law provides what he says it does and loses if it provides what the agency says it does.” Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir. 2010).

In Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008), we considered whether an alien’s argument—that changed circumstances justified a delay in applying for asylum—was a pure question of law for purposes of § 1252(a)(2)(D). In that case,

[a]n immigration judge concluded that [Viracacha] had not established “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum,” § 1158(a)(2)(D). He argued that he fears the Revolutionary Armed Forces of Colombia (FARC), an insurgent group that threatened him with death after he opposed its operations. But because he told the immigration judge that he had left Colombia in 1998 precisely because of the FARC’s threats, the IJ found that he should have applied for asylum immediately on arriving in the United States. [Viracacha] testified that he delayed because he expected the domestic situation in Colombia to improve, but that it had instead (in his view) become worse. The IJ did not see this as an adequate justification, both because conditions in Colombia had not changed materially and because hoping for improvement does not justify delay in filing.
Id. at 512. The BIA affirmed. Before this court, Viracacha maintained that the IJ and the BIA “erred on a question of law,” and, therefore, his petition for review fell within the exception to the jurisdictional bar for “constitutional claims or questions of law.” Id. at 514 (citations omitted) (internal quotation marks omitted). We disagreed. We noted that the IJ had found that Viracacha “had deliberately refrained from making a timely application for asylum, and that any change in conditions in Colombia since then [wa]s not material.” Id. We explained that the first conclusion is one of “fact and the second is an application of law to fact; neither rests on or reflects a legal mistake.” Id.; see also Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006) (“Ferry’s argument that his pending adjustment of status application qualified as either a changed or extraordinary circumstance to excuse his untimely asylum application is a challenge to an exercise of discretion that remains outside our scope of review.”). Consequently, we did not have jurisdiction to consider the alien’s arguments. We likewise are precluded from considering Mr. Bitsin’s arguments concerning the materiality of any change in circumstances in Bulgaria.

Our review of Mr. Bitsin’s claim that he established “extraordinary circumstances” that justify the delay in his application similarly is barred. Whether particular facts constitute “extraordinary circumstances” is akin to whether particular “changed circumstances” are material. See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (holding that whether petitioner had “met her burden of demonstrating changed circumstances materially affecting asylum eligibility or extraordinary circumstances relating to the delay challenges [the Attorney General’s] exercise of discretion” and therefore “[s]uch a claim does not raise a constitutional claim or question of law covered by the REAL ID Act’s judicial review provision”). In either case, the question requires us to apply a legal standard to a given set of facts. See Zhu v. Gonzales, 493 F.3d 588, 596 (5th Cir. 2007) (“Thus, the IJ’s rejection of Zhu’s extraordinary-circum-stances claim was based on an evaluation of the facts and circumstances of her case. We do not have jurisdiction to review the IJ’s determination that Zhu’s asylum application was untimely.”). As we held in Viracacha, this type of issue does not raise a question of law, and it therefore does not fall within § 1252’s exception to the jurisdictional bar of § 1158.

Mr. Bitsin argues that the court nonetheless may consider his asylum application because the BIA committed an error of law in its interpretation of 8 C.F.R. § 1208.4(a)(5)(iv). Section 1208.4(a)(5) sets forth some “extraordinary circumstances” that justify an alien’s delay in filing for asylum, among which is: “(iv) The applicant . . . was given parole[] . . . .” Although Mr. Bitsin never was granted parole, he nevertheless claims that he obtained the equivalent of administrative parole when he filed his application for a student visa. He points to a United States Justice Department Memorandum, the subject of which is “Interpretation of `Period of Stay Authorized by the Attorney General’ in determining `unlawful presence’ under INA section 212(a)(9)(B)(ii),” to support his claim.[19] This memorandum, however, addresses how to calculate the period of unlawful presence for purposes of determining inadmissibility; it does not purport to speak to filing deadlines for asylum.[20]

Finally, Mr. Bitsin submits that we may review his asylum claim because the BIA incorrectly concluded, as a matter of law, that an alien asserting a derivative asylum claim may not invoke the changed circumstances exception to the one-year filing deadline. The BIA’s decision does not state, nor even suggest, such a result.

Section 1208.4 of Title 8 of the Code of Federal Regulations implements the one-year filing deadline for asylum applications, as well as the exceptions to that deadline, set forth in 8 U.S.C. § 1158. With respect to the “changed circumstances” exception, it states that “changed circumstances . . . shall refer to circumstances materially affecting the applicant’s eligibility for asylum.” Id. § 1208.4(a)(4)(i) (internal quotation marks omitted). These

include, but are not limited to: . . . (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk[.]
Id. (emphasis added).

Before the BIA, Mr. Bitsin argued that the IJ erred in failing to consider whether his father’s cooperation with the Bulgarian government constituted an “activit[y] the appellant bec[ame] involved in outside the country of feared persecution” for purposes of 8 C.F.R. § 1208.4(a)(4)(i) (B). The BIA correctly determined, however, that the IJ had not erred because there was “no support” for the conclusion that Asen’s “involvement in a Bulgarian case should be construed as an `activity’ ” that Mr. Bitsin himself “`bec[ame] involved in outside of the country of feared persecution.'” A.R. at 4 (alteration in original) (quoting 8 C.F.R. § 1208.4(a)(4)(i)(B)). Nothing in this statement holds—as Mr. Bitsin maintains—or even suggests that the actions or political opinions of a relative in the applicant’s country of origin cannot constitute changed circumstances. Indeed, in the present case, the BIA considered whether Asen’s cooperation materially affected Mr. Bitsin’s application, but concluded that it did not. See id.

In sum, none of the issues Mr. Bitsin raises with respect to the determination that he does not fall within an exception to the one-year filing deadline for asylum applications are “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Consequently, we do not have jurisdiction to consider the denial of his asylum application.

B. Withholding of Removal

An applicant is eligible for withholding of removal if he “demonstrate[s] a clear probability of persecution on account of his `race, religion, nationality, membership in a particular social group, or political opinion.'” Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007) (quoting 8 U.S.C. § 1231(b)(3)(A)). To establish a “clear probability,” the petitioner must show “that `it is more likely than not that [he] would be subject to persecution’ in the country to which he would be returned.” INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). “Persecution” does not include the actions of private citizens “unless the government is complicit in those acts or is unable or unwilling to take steps to prevent them.” Chakir v. Gonzales, 466 F.3d 563, 570 (7th Cir. 2006). We review the BIA’s decision[21] with respect to a denial of withholding of removal under the substantial evidence test. Haichun Liu v. Holder, 692 F.3d 848, 852 (7th Cir. 2012). Under the substantial evidence test, the decision of the Board “must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole,” and we will “reverse[] only if the evidence presented . . . was such that a reasonable factfinder would have to conclude” that the petitioner had met his burden. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks omitted).

Mr. Bitsin first maintains that, with respect to the decision to deny withholding of removal, the IJ mistakenly understood his claim to be based on his own, as opposed to his father’s, activities in Bulgaria. We observe that the IJ’s opinion does employ the first and third person interchangeably, which may suggest some confusion with respect to the nature of Mr. Bitsin’s claim. Nevertheless, the BIA clearly understood that Mr. Bitsin’s claim for relief centered on Asen’s activities, see, e.g., A.R. at 5 (“The respondent has endeavored to define his particular social group in several ways, but the definitions were all, ultimately, derived from his family relationship with his father who was a cooperating witness at a trial against the Galev Brothers[] . . . .”), and, in any event, it is the BIA’s decision, not the IJ’s, that this court reviews, Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004).

Mr. Bitsin next claims that the BIA ignored the credibility findings of the IJ and the wealth of the evidence in concluding that Asen was not “subject[ed] to a frivolous police investigation and slanderous media publicity” concerning the shooting incident in 2000. A.R. at 5 n.4. The IJ, however, did not make any credibility findings concerning the nature or significance of the shooting incident, but merely determined that Mr. Bitsin testified credibly that his father had shot an intruder. The IJ later concluded that he could not attribute to the incident the significance urged by Mr. Bitsin because it was “a non-political event involving his father working as a guard or protecting property as a security official.” Id. at 89. Moreover, neither the fact that the prosecutor declined to bring charges against Asen, nor the quotes from a local newspaper that characterize the shots as “fired to `prevent’ the intruder from `running farther,'” Pet’r’s Br. 24 (quoting A.R. at 190), required the BIA to conclude that the Galev Brothers had commanded the assistance of local police or the media in persecuting or slandering Asen.

At bottom, Mr. Bitsin argues that the evidence he presented required the BIA to conclude that, based on his familial ties with his father,[22] he will suffer harm at the hands of the Galev Brothers if returned to Bulgaria. As we noted previously, however, “persecution . . . does not encompass purely private actions.” Jonaitiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011). Consequently, Mr. Bitsin had to establish not only a clear probability that he would be persecuted at the hands of the Galev Brothers, but that the Bulgarian government either would be complicit in these actions or would be unwilling or unable to prevent them. See Chakir, 466 F.3d at 570.

Turning to the evidence supporting his claim that he would be harmed if he returned to Bulgaria, Mr. Bitsin points to his father’s participation in the trial against the Galev Brothers, the threats received by his father and his father’s placement in protective custody. He also relies on the harm that has befallen Chorata and Asen’s neighbors, whom, Mr. Bitsin asserts, were slated to testify against the Galev Brothers, and the attack on Pavlova’s son, for which the assailant received only six months’ probation.

Although Mr. Bitsin has produced evidence that he may be at risk if he returns to Bulgaria, the evidence does not require a reasonable factfinder to conclude either that Mr. Bitsin established a clear probability that he will suffer harm at the hands of the Galev Brothers or that the Bulgarian government is unable or unwilling to protect him. According to Mr. Bitsin, Asen has had difficulties with the Galev Brothers since 2000; nevertheless, although Mr. Bitsin was in Bulgaria intermittently until 2005, he never personally was threatened or harmed. More importantly, however, the Bulgarian authorities have not been complicit in the actions of the Galev Brothers, but have instituted and pursued criminal proceedings against them. We previously have observed that a government’s steps “to punish the persons responsible for the violence” supports a conclusion that it is not unwilling or unable to protect individuals who have been the victims of ethnic attacks. Vahora v. Holder, 707 F.3d 904, 908 (7th Cir. 2013). Additionally, the Bulgarian government has been providing Asen with protection, and has kept him safe, for almost two years following the conclusion of the Galev Brothers’ trial. Thus, this case does not present a situation where an individual has sought help, but simply was “advi[sed] to maintain a low profile”—circumstances which, we have concluded, are “strong evidence that the government . . . is indeed incapable of protecting” the applicant. Hor v. Gonzales, 421 F.3d 497, 502 (7th Cir. 2005).[23]

C. Relief under the CAT

Mr. Bitsin also seeks review of the BIA’s determination that he “did not satisfy his burden of showing that it is more likely than not that he will be tortured by or at the instigation of or with the consent or acquiescence of the Bulgarian government.” A.R. at 6. To prevail on his petition for review, Mr. Bitsin must establish that the BIA’s determination was not supported by substantial evidence. Wanjiru v. Holder, 705 F.3d 258, 265 (7th Cir. 2013). Under this deferential standard, we shall reverse only if a reasonable factfinder would have to conclude that Mr. Bitsin met his burden. See Elias-Zacarias, 502 U.S. at 481.

In order to establish eligibility for relief under the CAT, Mr. Bitsin must show that “`it is more likely than not that he . . . will be tortured'” if he is returned to Bulgaria. Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004) (quoting 8 C.F.R. § 208.16). According to the regulations, torture is defined as “any act by which severe pain or suffering[] . . . is intentionally inflicted on a person . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). Given that the Bulgarian authorities both have attempted to bring the Galev Brothers to justice and also have provided protection for Asen during the course of criminal proceedings, we cannot conclude that Mr. Bitsin has met his burden of showing that he will more likely than not be tortured “at the instigation of or with the consent or acquiescence of” the Bulgarian government should he return to that country.

Conclusion

For the foregoing reasons, we dismiss for lack of jurisdiction that portion of Mr. Bitsin’s petition related to his asylum application, and we deny that portion of Mr. Bitsin’s petition related to his claims for withholding of removal and relief under the CAT.

PETITION DISMISSED in part AND DENIED in part

[*] The Honorable Sarah Evans Barker, of the United States

District Court for the Southern District of Indiana, sitting by designation.

[1] He previously had come to the United States in both 2003 and 2004, also on visitor visas.

[2] A.R. at 128.

[3] Id.

[4] Id. at 133.

[5] When the trial recommenced, Mr. Bitsin’s mother and sister went to visit relatives in France. At the time of Mr. Bitsin’s merits hearing, they still resided there.

[6] A.R. at 144.

[7] Id. at 86.

[8] Id. at 87.

[9] Id.

[10] Id. at 3 (internal quotation marks omitted); see 8 U.S.C. § 1158(a)(2)(D).

[11] A.R. at 3 (internal quotation marks omitted).

[12] Id. at 4 (first alteration in original).

[13] Id. at 5.

[14] Id.

[15] Id. at 6.

[16] Id.

[17] 8 U.S.C. § 1158 provides, in relevant part:

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

(2) Exceptions

. . . .

(B) Time limit

Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.

. . . .

(D) Changed circumstances

An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).

(3) Limitation on judicial review

No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

[18] 8 U.S.C. § 1252(a)(2)(D) provides:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

[19] See Interpretation of “Period of Stay Authorized by the

Attorney General” in determining “unlawful presence” under INA section 212(a)(9)(B)(ii) (2003), http://www.uscis.gov/files/pressrelease/PofStay4023Pub.pdf.

[20] Mr. Bitsin also submits that a memorandum explaining the “Deferred Action for Childhood Arrivals” Program supports his claim. See Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. Mr. Bitsin did not come to the United States as a child. Moreover, the memorandum only sets forth the agency’s priorities with respect to allocation of prosecutorial resources; it does not speak to, nor does it create, rights for private individuals.

[21] Where, as here, the Board issued its own opinion, the Board’s decision forms the basis for our review. See, e.g., Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004).

[22] Mr. Bitsin contends that he will suffer persecution on the basis of his membership in the social group consisting of individuals who have testified (or will testify) against the Galev Brothers and of those individuals’ family members. See Pet’r’s Br. 25. He also claims that he will be persecuted on the basis that his father’s political opinion—”his father’s status as a whistleblower and his overt and public expressions of disapproval of the corrupt practices of the police and local authorities who provide assistance to the criminal activities of the Galev Brothers”—will be imputed to him. Id. at 26. We need not determine, however, whether Mr. Bitsin has met his burden of establishing that he is a member of a particular social group, or that his father’s activities constitute a political opinion that will be imputed to him, because we conclude that Mr. Bitsin has not met his initial burden of showing a clear probability of persecution should he be removed to Bulgaria. Cf. Jun Ying Wang v. Gonzales, 445 F.3d 993, 997 (7th Cir. 2006) (“Wang must make two showings. First, she must establish that she has suffered past persecution or has a well-founded fear of future persecution. Second, she must show that the persecution she endured (or fears she will endure) is `on account of’ one of the five statutorily protected grounds.”).

[23] In his reply brief, Mr. Bitsin argues that the IJ and the BIA erred in evaluating his claim for withholding of removal because they required him to meet a more onerous burden than we have imposed in prior cases. According to Mr. Bitsin, he was required to show “the complete helplessness of the Bulgarian government” to protect him from the Galev Brothers, whereas we previously have required only a showing that the government was unwilling or unable to afford protection. See Reply Br. 6-7 (internal quotation marks omitted) (emphasis removed). Mr. Bitsin only fully developed this argument in his reply brief, and, therefore, the argument is waived. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir. 2009) (“Bodenstab, however, did not develop these arguments until his reply brief and thus has waived any such argument.”).

Even if he had not waived the argument, however, we cannot agree that it provides a basis for reversal. As we previously have noted, we review the decision of the BIA, not the IJ. See supra note 21. In this case, the BIA did not fault Mr. Bitsin for failing to establish the complete helplessness of the Bulgarian government; instead, it stated that, “[e]ven if the Galev Brothers were acquitted by a regional court, this alone does not demonstrate that the Bulgarian government would be unable or unwilling to protect the respondent.” A.R. at 6 (emphasis added). The BIA then cited correctly one of our opinions, Margos v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006), in which we employed the following language: “This is not a case in which the government at issue is unwilling and completely unable to afford protection.” See also Hor v. Gonzales, 421 F.3d 497, 501 (7th Cir. 2005) (“You cannot even claim asylum on the basis of persecution by a private group unless the government either condones it or is helpless to prevent it[] . . . .”).

There simply is no evidence here that the BIA applied a standard more stringent than that the government of Bulgaria was “unable or unwilling” to protect Mr. Bitsin.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, derivative asylum claim, persecution on account of political opinion, well-founded fear of future persecution | Leave a comment

Sirbu v. Holder, Seventh Circuit, Past Persecution in Moldova

Posted on May 24, 2013 by Mike Baker

Victor Sirbu v. Eric Holder, Jr. 12-2320 Final Opinion Sirbu v Holder, Seventh Circuit, Past Persecution in Moldova

Husband, Sirbu, and wife, Prodan, entered the U.S. as nonimmigrant tourists in 2009 and overstayed their visas. They then filed a timely application for asylum, withholding of removal, and relief under the Convention Against Torture. Sirbu’s persecution claim is based on politically motivated mistreatment that occurred in Moldova between 2000 and 2009; he claims to fear prosecution based on his active opposition to the Communist Party. The government responded by charging them as removable under 8 U.S.C. 1227(a)(1)(B). An immigration judge denied relief. The Board of Immigration Appeals affirmed.

Sirbu’s persecution claim is based on politically motivated mistreatment that occurred in Moldova between 2000 and 2009. In 2001, the Moldovan Communist Party won the presidency and more than two-thirds of the seats in parliament. Moldovan security forces began to harass, detain, and beat members of opposition parties.

Sirbu was an active opponent of the Communist Party and was a victim of this political harassment and violence on several occasions, three of them in 2003. In January 2003, Sirbu participated in a large protest urging that Moldova join NATO and the European Union. He was arrested and detained for five hours. The next two encounters were violent. In February 2003, Sirbu participated in another anti-Communist protest. Two policemen hit him on the legs so sharply that he fell to the ground. He was then detained for about 40 hours without food or water. And in November 2003, police caught Sirbu participating in an anti-Communist Party meeting, struck him in the back, knocked him to the ground, and then detained and interrogated him overnight. In the following years, Sirbu experienced further political harassment and mistreatment, including the loss of his job, but was not deterred from political activity.

The Seventh Circuit granted their petition for review and remanded, finding that the immigration judge and the Board applied the wrong legal standard in holding that the facts did not “compel” a finding of past persecution. The proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution, not whether the evidence compels a finding of past persecution. If the Board concludes that Sirbu has demonstrated past persecution, the burden will shift to the government to prove that changed circumstances mean that Sirbu’s fear of persecution in Moldova is no longer well-founded.
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_________________________________________________________________
VICTOR SIRBU AND IULIA PRODAN, Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 12-2320.

United States Court of Appeals, Seventh Circuit.
Argued January 29, 2013.
Decided May 20, 2013.

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Moldovan citizens Victor Sirbu and his wife Iulia Prodan applied for asylum in the United States, as well as for withholding of removal and protection under the Convention Against Torture. Sirbu fears persecution by the Moldovan government based on his active and vocal opposition to the Communist Party. (Although the evidence indicates mistreatment of both Mr. Sirbu and Ms. Prodan for their anti-Communist political activities, Mr. Sirbu’s application is the lead one; Ms. Prodan’s application is derivative of his.) An immigration judge denied relief, finding that Sirbu’s evidence did not “compel a finding” of past persecution that could support asylum. The Board of Immigration Appeals affirmed the denial. Sirbu and Prodan have petitioned for review. Because the immigration judge and then the Board applied the wrong legal standard in deciding whether Sirbu had shown past persecution for his political activities, we grant the petition for review and remand the case for further proceedings.

I. Factual and Procedural Background

Sirbu and Prodan entered the United States as nonimmigrant tourists in 2009 and overstayed their visas. They then filed a timely application for asylum, withholding of removal, and relief under the Convention Against Torture. The government responded by charging Sirbu and Prodan as removable for overstaying their visas. See 8 U.S.C. § 1227(a)(1)(B). The couple admitted removability before an immigration judge in February 2010, and Sirbu renewed their application for asylum and related relief.

In the following years, Sirbu experienced further political harassment and mistreatment, including the loss of his job, but was not deterred from political activity. For our purposes, we focus on the most serious incident, which finally led Sirbu and Prodan to leave Moldova and later to seek asylum in the United States. Moldova held parliamentary elections on April 5, 2009. Both Sirbu and Prodan ran as candidates for parliament in opposition to Communist Party candidates. The Communist Party claimed victory, but on April 7, Sirbu and Prodan joined a large protest in the nation’s capital accusing the Communist Party of voter fraud. The protestors began to riot and the police arrested 300 people. See Protests in Moldova Explode, With Help of Twitter, NY Times (Apr. 7, 2009), http://www.nytimes.com/2009/04/08/world/europe/08moldova.html?pagewanted=all. Both Sirbu and Prodan were arrested and taken to a police station. While in police custody Sirbu was hit frequently on the head until he lost consciousness. Several other detainees died in custody after the protest and arrests. The police transferred Sirbu and Prodan to a police station in their hometown, and Sirbu was treated at a medical clinic for a concussion. They left for the United States later in April 2009.

After their departure from Moldova, Sirbu said, the police went to his parents’ home and told them he was on a “black list.” At the removal hearing Sirbu testified that he still feared returning to Moldova because many Communists still held positions of power even though opposition parties had won a narrow victory in new elections in July 2009 prompted by the April protests.[2]

The immigration judge denied Sirbu’s application for asylum. The judge explained: “After careful consideration of the record in its entirety, and considering all the incidents in the aggregate, [Sirbu’s] facts do not compel a finding that he suffered past persecution.” App. 9 (emphasis added). According to the immigration judge, Sirbu’s detentions were brief, he reported a physical injury resulting from only one of them (when he was beaten unconscious in April 2009), and after each incident he was able to pursue his anti-Communist political activities. Nor did Sirbu show a well-founded fear of future persecution, the judge concluded, because he did not corroborate his assertion about being on a police black list, the July 2009 elections had unseated the Communist Party president, and opposition parties had formed a strong coalition. Because Sirbu was ineligible for asylum, the judge concluded, he also failed to meet the higher standards for withholding of removal or Convention Against Torture protection.

The Board agreed with the immigration judge that Sirbu had “not met his burden of proof to establish that he suffered past persecution” and dismissed Sirbu’s appeal. In reaching this conclusion, the Board cited our decision in Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), for the proposition that persecution involves “the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force . . . or nonphysical harm of equal gravity.” The Board acknowledged that Sirbu had been beaten but noted he had sought medical treatment only once. In an important passage, the Board acknowledged that an applicant for asylum need not prove “serious injuries,” citing Asani v. INS, 154 F.3d 719, 722-24 (7th Cir. 1998), but found that Sirbu’s abuse did not rise to the level suffered in Asani. The Board found, instead, that the abuse of Sirbu was more comparable to the abuse in Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003), which the Board described as having upheld a finding of no past persecution where the applicant had been detained for three days without food or water and had been beaten. The Board did not address the issue of fear of future persecution, including whether, if past persecution had been shown, the government had shown political changes in Moldova sufficient to rebut the inference of reasonable fear of future persecution.

II. Discussion

In his petition for judicial review, Sirbu argues that the Board erred in concluding that he failed to establish that he suffered past persecution. He believes that his testimony and the documentary evidence show that he was persecuted for being politically active and for expressing his anti-Communist opinions and that he reasonably fears persecution if he were returned to Moldova.

Where the Board has agreed with the immigration judge’s decision and supplemented that opinion with its own observations, as it did here, we review both decisions. See Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011). We have reviewed both decisions and Sirbu’s evidence.

The immigration judge made a clear legal error by concluding that the “facts do not compel a finding that he suffered past persecution.” As the government acknowledged in the oral argument, whether the facts compel a finding of past persecution is the standard for judicial review, not for the immigration judge in the first instance. 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.

The Board appears to have repeated the immigration judge’s legal error. Though the Board did not say explicitly that the facts would not compel a finding of past persecution, the Board distinguished on factual grounds a case in which we had reversed a finding of no past persecution and held that the facts were indeed so powerful as to “compel” a finding of past persecution. App. 24, citing Asani, 154 F.3d at 722-24. The Board then found guidance from our decision in Dandan 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. App. 24, citing Dandan, 339 F.3d at 573-74. The Board also did not acknowledge the immigration judge’s legal error. The combination of the immigration judge’s application of the wrong standard, the Board’s failure to note the error, and the Board’s citations to Asani and Dandan persuades us that the Board applied the wrong legal standard.

The proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution, not whether the evidence compels a finding of past persecution. The difference may seem subtle, but it is actually vital in administering the law of asylum. Whether the facts compel a particular finding is a matter for appellate courts to determine in our deferential review of the Board’s decisions. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011); Matter of E-R-M-F- & A-S-M-, 25 I. & N. Dec. 580, 587 n.8 (BIA 2011). Our standard of review for factual questions is substantial evidence: “the agency’s determination will stand if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Vahora v. Holder, 626 F.3d 907, 912 (7th Cir. 2010); see Elias-Zacarias, 502 U.S. at 481.

We defer to the immigration judges and the Board because we expect them to exercise their expertise and judgment in the difficult cases. In cases like this one, though, where the Board and the immigration judge misread our decisions denying review because the evidence did not compel a finding of persecution as holding that the evidence either did not or could not support a finding of persecution, the proper roles of agency and reviewing court have been reversed.

That has happened too often. As we explained in Stanojkova v. Holder, the Board’s regulations and decisions do not provide a useful definition of persecution, and the Board seems to have abandoned this difficult responsibility to the courts. 645 F.3d 943, 948-49 (7th Cir. 2011), citing Sahi v. Gonzales, 416 F.3d 587, 588-89 (7th Cir. 2005), and Gomes v. Gonzales, 473 F.3d 746, 753-54 (7th Cir. 2007).

Our cases reviewing denials of asylum can read like grim exercises in measuring the precise extent of human cruelty and misery. We try to distinguish between harassment and persecution, “between the nasty and the barbaric.” Stanojkova, 645 F.3d at 948. How many times was the victim beaten? How severe were the beatings? Were bones broken? Did the victim lose consciousness? How many teeth were knocked out? Were there permanent injuries or scarring? How serious were the threats, and how cruelly were they communicated? That grim accounting cannot be avoided. Because of the deferential standard of review, our job in these cases is ordinarily to decide whether the evidence would compel any reasonable trier of fact to find that prior abuse of the petitioners amounted to persecution within the meaning of the law.[3]

In the close cases, where a reasonable trier of fact could make a decision either way, we should be able to defer to the judgment of the immigration judges and the Board. But the immigration judges and the Board turn the system upside down if they use our deferential decisions as setting new, lower floors for human cruelty than our immigration law says must be tolerated without granting asylum. That is what has happened in this case. It was a reversible error of law and the case must be remanded.

We express no opinion at this time on whether the incidents Sirbu described are severe enough to compel a finding of past persecution. On remand, though, the Board will need to consider all the evidence of persecution and in particular will need to address the significance of Sirbu’s testimony that he was beaten to the point of losing consciousness and suffering a concussion while in police custody. We are confident that this evidence is more than sufficient to support a finding of past persecution. See Stanojkova, 645 F.3d at 948 (use of significant physical force against a person’s body is persecution); Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995) (applicant for asylum must show “specific, detailed facts supporting the reasonableness of her fear that she will be singled out for persecution”).

If the Board concludes that Sirbu has demonstrated past persecution, the burden will shift to the government to prove that changed circumstances mean that Sirbu’s fear of persecution in Moldova is no longer wellfounded. See 8 C.F.R. § 208.13(b)(1)(ii). The Board did not address that issue, and we also do not address it at this stage. We GRANT the petition for review and REMAND the case for further proceedings consistent with this opinion.

[1] Since the immigration judge made no adverse credibility finding, our account of the facts specific to Sirbu is based largely on his written and oral testimony.

[2] See Communists Lose in Moldova Vote, NY Times (July 30, 2009), http://www.nytimes.com/2009/07/31/world/europe/31moldova.html?scp=16&sq=&st=nyt. Four opposition parties formed a new majority coalition that continues to govern Moldova. See CIA World Factbook, available at https://www.cia.gov/library/publications/the-world-factbook/geos/md.html (last visited May 16, 2013).

[3] Our cases illustrate this fine parsing of misery and cruelty. For cases reversing findings of no past persecution, see, e.g., Stanojkova, 645 F.3d at 947-48 (paramilitary police invaded home, beat applicant and held gun to his head, sexually fondled his wife, and robbed the couple); Vladimirova v. Ashcroft, 377 F.3d 690, 692 (7th Cir. 2004) (one beating caused miscarriage, and applicant suffered two other physical assaults and detentions and was threatened with sexual assault); Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003) (applicant was beaten on four occasions, his face was cut with a razor, and he was forced to watch his wife being raped); Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir. 2002) (ethnic Albanian soldiers in Serbian army were forced into battle as human shields without ammunition and tools needed for survival); Asani, 154 F.3d at 721 (applicant was detained in cell for two weeks with only enough room to stand handcuffed to radiator, was given one slice of bread and one glass of water a day, lost his job, and was later detained again and beaten, losing two teeth). Compare those to the following cases affirming findings of no past persecution: Nzeve v. Holder, 582 F.3d 678, 683-84 (7th Cir. 2009) (applicant suffered blisters and bruises and was threatened with death); Mema v. Gonzales, 474 F.3d 412, 416-18 (7th Cir. 2007) (applicant was beaten unconscious while in detention, but denial of asylum was reversed for failure to address fear of future persecution); Bejko v. Gonzales, 468 F.3d 482, 485 (7th Cir. 2006) (applicant was detained twice, once for two weeks in primitive conditions without enough food and water, but without need for medical treatment, and applicant was threatened that house would be blown up); Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006) (one beating with head injury requiring stitches); Prela v. Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (applicant was interrogated, searched, and detained for 24 hours, arrested, and threatened with unspecified injury); Dandan, 339 F.3d at 573-74 (applicant was detained for three days without food, interrogated, and beaten resulting in a swollen face); Yadegar-Sargis v. INS, 297 F.3d 596, 602 (7th Cir. 2002) (harassment and hardship did not show persecution; applicant had not been detained or physically assaulted); Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991) (applicant was jailed twice for three days and interrogated about political activity); Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir. 1990) (applicant was detained and interrogated several times and suffered economic losses but was not physically abused).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Moldovan Communist Party, not well-founded fear, past persecution, Past Persecution in Moldova, political asylum, political opinion | Tagged Past Persecution | Leave a comment

The Provisional Waiver

Posted on May 21, 2013 by Mike Baker

The Provisional Waiver

On January 3, 2013, U.S. Citizenship and Immigration Services (USCIS) published a final rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. The provisional unlawful presence waiver process is not a substantive change to the immigration laws but a procedural change in the way that a specific type of waiver application can be filed with USCIS. The new regulations create a process for United States Citizenship and Immigration Services (USCIS) to adjudicate a waiver for unlawful presence before the applicant triggers the need for the waiver by leaving the United States to attend her interview. This process allows those who qualify to stay with their families in the United States while the application is pending, avoiding the lengthy separation caused by adjudicating the waiver as part of the consular process and avoiding the risk of getting denied a waiver while outside the United States, which would prevent them from rejoining their families. An eligible applicant will not need to leave the United States to attend an interview until after USCIS approves the waiver. The new process is available only to immediate relatives of United States citizens who can show hardship to a United States citizen spouse or parent. Family members in other visa categories must still apply for the traditional I-601 waiver after attending a consular interview. While the new provisional waiver creates a new process for those that qualify, it does not alter the extreme hardship standard that applies to adjudication of unlawful presence waivers.

BACKGROUND

Under our current immigration laws, family members of U.S. citizens and lawful permanent residents (LPRs) who have entered the United States without inspection are ineligible to adjust status to become LPRs while in the United States. n1 Additionally, family members of permanent residents and certain family members of United States citizens (those who are not classified as immediate relatives) might not be eligible to adjust their status in the United States if they have worked without authorization or failed to maintain a legal status.

These groups of individuals must leave the United States to consular process to obtain LPR status. However, leaving the United States to consular process (that is, to obtain a visa at a U.S. consulate or embassy) will trigger the unlawful presence bars of inadmissibility. The unlawful presence ground of inadmissibility provides that those unlawfully present in the United States for a year or more are inadmissible for ten years. Those unlawfully present in the United States more than 180 days, but less than a year, are barred from admission for three years. These grounds are triggered only upon departure from the United States. Thus, an individual who has accrued more than six months of unlawful presence then leaves the United States to consular process will be barred from re-entering the United States for at least three years unless she obtains a waiver for the unlawful presence. To be eligible for a waiver, the applicant must show that barring the applicant’s admission into the United States will result in extreme hardship to a United States citizen or LPR spouse or parent. The form used for this waiver is Form I-601, and it is often referred to as an “I-601 waiver.”

Under the current process, these individuals cannot apply for the waiver until they have left the United States, triggering the unlawful presence bar. The applicant first must attend the consular interview, at which the interviewing officer determines that a waiver is needed. The applicant may then submit an application for a waiver, and must wait outside the United States until USCIS adjudicates the waiver application. This process can take from several months to over a year. If the waiver is denied, the individual will not be able to legally re-enter the United States until she has remained outside the United States the requisite time. For instance, without a waiver, those who have been present in the United States unlawfully for a year or more must remain outside the United States for ten years. This process results in long separations for families and entails so much risk that many eligible individuals are afraid to undergo the process.

PROVISIONAL WAIVER PROCESS

The new provisional waiver process allows immediate relatives of U.S. citizens to apply for a waiver of unlawful presence from within the United States. Under the new process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they will not need to leave the United States to attend their interviews until USCIS has provisionally granted the unlawful presence waiver. The new procedure avoids long separations and uncertainty for certain immigrant families.

This new process is available only to immediate relatives of U.S. citizens who will be subject to the unlawful presence ground of inadmissibility and no other grounds of inadmissibility. n5 If any other waivers are required, the applicant will not be able to use the provisional waiver process, although the traditional I-601 waiver remains an option. Likewise, family members of lawful permanent residents must still apply for a traditional I-601 waiver after attending an interview at the consulate.

Eligibility

The new provisional waiver process is available only to immediate relatives of United States citizens who are in the United States at the time of filing. To qualify, the applicant must be able to show extreme hardship to a U.S.citizen spouse or parent. The qualifying relative for hardship need not be the petitioner, but must be a U.S. citizen. For instance, under our immigration laws an adult U.S. citizen may petition for his or her parent as an immediate relative, but a U.S.-citizen child is not a qualifying relative for purposes of demonstrating hardship for a waiver of unlawful presence. For the provisional waiver, the beneficiary must be able to show hardship to a U.S.-citizen spouse or parent. Those who can demonstrate only hardship to an LPR spouse or parent must apply through the traditional I-601 process. Additionally, an applicant must be at least seventeen to apply. (This is not a limitation because unlawful presence does not begin to accrue until the age of eighteen.)

The individual must not be subject to other grounds of inadmissibility, and must not be subject to a final order of removal or subject to reinstatement. Although some individuals might be subject to a final order of removal without being subject to any additional grounds of inadmissibility, the new regulation makes a blanket rule that those with final orders cannot apply for a provisional waiver. This includes orders issued in removal proceedings, expedited removal, exclusion, or deportation proceedings. These individuals must use the traditional I-601 process.

At time of filing, the applicant must be the beneficiary of an approved immediate relative petition. The applicant’s case must be pending with the Department of State, and the immigrant visa processing fee must have been paid prior to the filing. While the visa processing must be underway, the Department of State must not have acted to schedule the immigrant visa interview for the applicant before the publication of date of the final rule in the Federal Register, January 3, 2013. If the interview was set before January 3, 2013, regardless of whether the date of interview is after, and regardless of whether the interview has been re-scheduled or continued, the person will not qualify under this process. (That is, the date of notice from DOS, not the date of interview, controls.)

Once visa processing fees are paid, the applicant must notify the National Visa Center (NVC) that she is applying for the provisional waiver by sending an e-mail to nvci601a@state.gov.

Those in removal proceedings may apply if their proceedings are administratively closed and have not been re-calendared. Individuals with cases pending before an immigration judge, under the Executive Office for Immigration Review (EOIR), will need to advocate for administrative closure to pursue provisional waivers.

Effective Date

The new process became effective on March 4, 2013. The filing fee is $585 for the I-601A provisional waiver form. (This is the same fee collected for the traditional I-601.) The projected processing time for the waivers is approximately four months. New Form I-601A and instructions.

UNRESOLVED ISSUES

Potential Grounds of Inadmissibility.

The new provisional waiver is available only to immediate relatives who have no other grounds of inadmissibility. If USCIS has “reason to believe” that you are inadmissible on some other ground, it will deny the provisional waiver. It is unclear how USCIS will apply this “reason to believe” standard and what information will be used to form the basis of such a determination. For instance, is an arrest, without a conviction, enough for USCIS to determine that it has reason to believe that the applicant may be inadmissible for a crime involving moral turpitude? It is also unclear whether practitioners will have an opportunity to make arguments to overcome such a determination. Until the process is underway, we will not know whether practitioners will have an opportunity to rebut USCIS’s position on inadmissibility in response to a request for evidence, or whether the agency will simply issue a denial.

Additionally, if the consular officer determines that an applicant is inadmissible on another ground, the USCIS approved provisional waiver will be automatically revoked. The new regulation does not envision reinstating a provisional waiver if the consular officer’s determination is overturned. The provisional waiver applicant will have no opportunity to file a motion to reopen, reconsider, or appeal the agency’s decision.

Process for Applicants in Removal

Those applying while in proceedings must have their cases administratively closed prior to filing for a provisional waiver. The regulation does not require DHS counsel to agree to administratively close cases for those who appear eligible. Thus, this determination will remain a case-by-case decision.

Additionally, should USCIS grant a provisional waiver in such a case, the applicant must re-calendar proceedings and get the case terminated or dismissed prior to departure. This process requires the cooperation of EOIR, but there is no regulation or EOIR policy to guide this process. This requires the judges to exercise discretion to terminate on this basis, and also requires re-calendaring cases into a busy and backlogged docket. Respondents in removal proceedings can wait several months for a master calendar hearing.

The explanatory notes provided with the published regulation do not further elaborate on what dispositions might qualify as “dismissal.” Arguably, an immigration judge could choose to grant voluntary departure, and refuse to terminate a case. As voluntary departure results in a dismissed case with no final order of removal, presumably this fits within the meaning of dismissal contemplated in the regulation, however the regulations do not address voluntary departure in this context.

Limited Scope

The final regulation limits the scope to immediate relatives of U.S. citizens who can demonstrate hardship to a qualifying U.S. citizen spouse or parent. USCIS should expand this program in the future to include family members of LPRs and other family members of U.S. citizens. After assessing the effectiveness of the new provisional unlawful presence waiver process and its operational impact, DHS, in consultation with DOS and other affected agencies, will consider expanding the provisional unlawful presence waiver process to other categories.

TIPS

Look for other issues of inadmissibility that may arise at the consulate, which would bar lawful re-entry. The provisional waiver does not waive the permanent bar found at INA § 212(a)(9)(C). Thus, if the noncitizen re-entered or attempted to enter illegally after accruing a year (in the aggregate) of unlawful presence in the United States, he will not be eligible for a waiver. Should this come to light at the consular interview and not before, he will be stuck outside the United States. Persons subject to the “permanent bar” cannot submit waiver applications until they have remained outside the United States for ten years.

Those who apply while removal proceedings are administratively closed will need to re-calendar proceedings to have the case terminated or dismissed after a provisional waiver application is granted. The case must be terminated or dismissed before the person departs the United States. Failure to do so could result in a self-deportation and prevent the client’s re-entry with the provisional waiver.

Supplemental information provided in the regulation makes clear that DHS envisions EOIR agreeing to terminate proceedings in these cases, but there is no rule or official policy on EOIR’s role in this process. Applicants should advocate for and seek termination before the immigration court based on the guidance issued with the regulations. Alternatively, after the provisional waiver is granted, an applicant who applied while her case was administratively closed could accept voluntary departure to complete consular processing. The regulation, however, discusses only termination or dismissal. Arguably, the case is dismissed without a final order of removal should an applicant accept voluntary departure. The preferable conclusion is termination.

Those who have already received notice of scheduling at the consulate seemingly are not eligible. That is, noncitizens in cases where DOS initially acted to schedule the immigrant visa interview before January 3, 2013, regardless of whether the interview has subsequently been rescheduled or cancelled, are not eligible for a provisional waiver in conjunction with that visa petition. However, there is still a possibility of filing a provisional waiver application in conjunction with a new visa filing. Any applicant who received a notice of consular interview dated before January 3, 2013, but remained in the United States should discuss with counsel the possibility of terminating the prior visa case and beginning the process anew with a second visa filing. The regulations provide that a person who is ineligible because of a previously scheduled interview may qualify if “(1) DOS terminated the immigrant visa registration associated with the previously scheduled interview, and they have a new immediate relative petition; or (2) the alien has a new immediate relative petition filed on his or her behalf by a different petitioner.” Based on this guidance, practitioners are requesting termination of prior visas to pursue new filings by the same petitioners. If a new petitioner files an I-130, terminating the prior visa is not necessary. This strategy, of course, requires paying all fees again. The other option is to continue with the consular process, filing a traditional I-601 waiver after attending the consular interview.

The waiver is unavailable to applicants who have received deferred action or Temporary Protected Status, but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal in compelling cases should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

People who have criminal records should be aware that there is a risk of referral to immigration court should USCIS deny the waiver. USCIS will follow its current policy on issuing a Notice to Appear (NTA) in immigration court. You can review the current referral policy on the USCIS website, or in Bender’s Immigration Bulletin. n11 USCIS’s NTA policy envisions referrals to ICE in cases where there are egregious public safety concerns or fraud in the immigration process. Additionally, if it appears that the alien is inadmissible or removable for a criminal offense not included on the list of offenses that amount to egregious public safety concerns, USCIS will complete the adjudication and then refer the case to ICE. USCIS will not issue an NTA if ICE declines to do so. Any applicant who has a potentially removable offense runs the risk of being referred to immigration court for removal proceedings. USCIS will not refer a case to immigration court for a simple denial where there are no security, criminal, or fraud concerns.

n1 INA §245(a), 8 U.S.C. §1255(a). There is a limited exception to this rule for those who qualify under INA § 245(i), which requires that the person be a qualified beneficiary of a visa petition filed on or before April 30, 2001. Additionally, those seeking to adjust as self-petitioners under the Violence Against Women Act do not need to show that they were inspected and admitted or paroled. See INA § 245(a).

n2 See INA §245(c).

n3 See INA §212(a)(9)(B), 8 U.S.C. § 1182(a)(9)(B).

n4 The Form I-601 is also used to waive other grounds of inadmissibility. See generally 8 C.F.R. §212.7.

Posted in Application for Provisional Unlawful Presence WaiverI-601A, How Does a U.S. Citizen File for a Provisional Unlawful Presence Waiver?, I-601A, Provisional Waivers, Stateside Processing of I-601A Waivers, The Provisional Waiver, Unlawful Presence, Waivers, Waivers of Inadmissibility | Tagged The Provisional Waiver | Leave a comment

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

Posted on May 9, 2013 by Mike Baker

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

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

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

_________________________________________________________________________________
United States Court of Appeals

For the Seventh Circuit

No. 12-2563

QIU YUN CHEN, Petitioner,

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

Respondent.

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

ARGUED MARCH 5, 2013—DECIDED MAY 9, 2013

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The order is therefore vacated and the case remanded.

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

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

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

Posted on May 8, 2013 by Mike Baker

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

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

Purpose

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

Scope

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

Authority

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

Background

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

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

Policy

I. National Security Cases

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

II. NTA Issuance Required by Statute or Regulation

USCIS will issue an NTA in the following circumstances: 4

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

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

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

D.Denials of NACARA 202 and HRIFA adjustments

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

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

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

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

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

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

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

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

III. Fraud Cases with a Statement of Findings Substantiating Fraud

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

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

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

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

1.Egregious Public Safety (EPS) Cases

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

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

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

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

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

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

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

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

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

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

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

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

Referral Process

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

In response to the RTI –

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

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

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

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

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

Office-Specific Processes

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

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

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

2. Non-Egregious Public Safety Criminal Cases

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

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

Referral Process

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

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

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

Office-Specific Processes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VI. Other Cases

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

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

VII. Exceptions

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

VIII. Coordination with ICE

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

Implementation

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

Use

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

_______________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 USCIS retains discretion to deny a request.

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

Posted in Notice to Appear, NTAs | Tagged Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens, NTAs | Leave a comment

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