Ni v. Holder, forced sterilization under China’s “one-child policy”

Posted on April 27, 2013 by Mike Baker

Docket: 12-2242

Opinion Date: April 26, 2013

Judge: Wood

12-2242 Ji Cheng Ni v.
  Eric H. Holder, Jr. 		agency 04/26/2013 Final
 Opinion		 Wood

Ni came to the U.S. in 2001 from Fujian Province, China. An Immigration
Judge ordered him removed in 2003, but he has remained in the U.S., and
has started a family. In 2011, following the birth of his second child,
Ni moved to reopen his removal proceedings, arguing that he will
personally face forced sterilization under China’s “one-child policy” if
he returns to Fujian Province, a form of persecution based on “political
opinion” for which asylum may be granted, 8 U.S.C. 1101(a)(42)(B).

The Board of Immigration Appeals denied Ni’s motion, holding that his
evidence was not sufficient to establish a change in circumstances or
country conditions, as generally required when an applicant moves to
reopen more than 90 days after entry of a final administrative order.

The Seventh Circuit granted review, noting that courts of appeals have
received scores of similar petitions involving Fujian Province in recent
years, and have regularly upheld the BIA’s refusal to grant relief.
“Routine can be numbing, however, and it can lead to errors. Here, the
BIA failed meaningfully to address documents bolstering Ni’s assertion
that family planning officials in and around his hometown recently
launched a crackdown on those who flout the “one-child policy.”

https://mikebakerlaw.com/blog/–skip-columns=guidwp-content/uploads/2013/04/12-2242-2013-04-26.pdf

United States Court of Appeals

For the Seventh Circuit

No. 12-2242

JI CHENG NI, a/k/a JI ZHENG NIA, Petitioner,

v.

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

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. No. A077-354-460

SUBMITTED DECEMBER 3, 2012 —DECIDED APRIL 26, 2013

Before WOOD and HAMILTON, Circuit Judges, and DARROW, District Judge.

The parties have waived oral argument in the case and thus the appeal is submitted on the briefs and record. See FED. R. APP. P.

The Honorable Sara Darrow, Judge of the United States District Court for the Central District of Illinois, sitting by designation.

WOOD, Circuit Judge. Ji Cheng Ni came to the United States in 2001 from his home in Fujian Province, China. An Immigration Judge ordered him removed in 2003, and his subsequent appeals were unsuccessful. See Ni v. Gonzales, 134 F. App’x 977 (7th Cir. 2005). Despite that order, Ni managed to remain in the United States, and he has since started a family. In 2011, following the birth of his second child, Ni moved to reopen his removal proceedings, arguing that he will personally face forced sterilization under China’s “one-child policy” if he returns to Fujian Province. Such direct harm constitutes a form of persecution based on “political opinion” for which asylum may be granted. See 8 U.S.C. § 1101(a)(42)(B); Lin v. U.S. Dep’t. of Justice, 494 F.3d 296 (2d Cir. 2007). The Board of Immigration Appeals (BIA or Board) denied Ni’s motion, holding that “his evidence [was] not sufficient to establish a change in circumstances or country conditions,” as generally is required when an applicant files a motion to reopen removal proceedings more than 90 days after the entry of a final administrative order.

The courts of appeals have received scores of strikingly similar petitions for review involving Fujian Province in recent years, and we have regularly upheld the BIA’s refusal to grant relief in such proceedings. Routine can be numbing, however, and it can lead to errors.

Here, in evaluating Ni’s motion to reopen, the BIA failed meaningfully to address documents bolstering Ni’s assertion that conditions in China have changed for the worse. Ni’s evidence indicates that family planning officials in and around his hometown recently launched a crackdown on those who flout the “one-child policy.” This oversight is particularly worrisome in light of the BIA’s frequent admonitions that such locality-specific evidence of coercive enforcement measures is necessary for asylum claims predicated on China’s population control policies. Because the BIA failed “to announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted,” see Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), we grant Ni’s petition for review.

I

A motion to reopen is “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana v. Holder, 130 S. Ct. 827, 834 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)). Subject to certain exceptions, an alien may file only one such motion, and he must do so within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7). These time and numerical limitations present no bar, however, to a motion to reopen that is “based on changed country conditions arising in the country . . . to which removal has been ordered.” § 1229a(c)(7)(C)(ii). The movant must present “evidence [that] is material and was not available and would not have been discovered or presented at the previous proceeding” to establish such a change. Id.

Because the Board has broad discretion in such matters, we employ a deferential standard of review. Kucana, 130 S. Ct. at 834. The BIA abuses its discretion if “it has made its decision without rational explanation, departs from established policies without explanation, or rests on an impermissible basis such as invidious discrimination.” Jiang v. Holder, 639 F.3d 751, 754 (7th Cir. 2010). Its determination must be “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir. 2006).

In assessing motions to reopen involving enforcement of China’s population policies, the BIA has emphasized that it assesses each application on a “case-by-case” basis. In re S-Y-G-, 24 I. & N. Dec. 247, 251 (BIA 2007). An applicant may successfully reopen his asylum case by showing “that (1) a relevant change in country conditions occurred, (2) the applicant has violated family planning policy as established in that alien’s local province, municipality, or other relevant area, and

(3) the violation would be punished in a way that would give rise to a well-founded fear of persecution.” Id. Should the BIA find that no relevant change has occurred, it must provide a “reasoned explanation for its finding that [a petitioner] ha[s] not provided evidence of changed conditions.” Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir. 2007). Importantly for present purposes, we cannot accept “an agency’s inadequately justified decision ‘by substituting what [we] consider[] to be a more adequate or proper basis’ for the decision.” Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

II

Ni arrived at Los Angeles International Airport on August 13, 2001, and promptly sought asylum. He initially claimed that he fled Fujian Province after Chinese authorities shuttered his bookstore in response to his sale of Falun Gong materials, but an Immigration Judge (IJ) denied relief on that basis in 2003 and ordered him removed. The BIA summarily affirmed the IJ’s opinion on June 8, 2004, and this court denied Ni’s petition for review on June 20, 2005. Ni, 134 F. App’x at 980.

At that point, rather than depart, Ni remained in New York City. In 2006, he married Feng Mei Yang, also a native and citizen of China, and they now have two children. On July 5, 2011, a month after the birth of his second child, Ni moved to reopen his removal proceedings. He asserted that under China’s strict family planning policy, the government permits couples to have only one child, and that he would be forced to undergo sterilization should he be removed to Fujian Province. If proven, this would make Ni eligible for asylum on “political opinion” grounds, since a person who can demonstrate a “well founded fear that he or she will be forced to undergo such a procedure [abortion or sterilization] or [be] subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).

Ni’s motion to reopen came seven years after the BIA’s final order of removal in 2004, well beyond the ordinary 90-day time limit. In order to obtain reopening, Ni had to make a threshold showing of “changed country conditions” in China. 8 U.S.C. § 1229a(c)(7)(C)(ii). Because the birth of Ni’s two children in the United States is “merely a change in personal circumstances” rather than a change in “country conditions,” Xiao Jun Liang v. Holder, 626 F.3d 983, 988 (7th Cir. 2010) (internal quotation marks and citations omitted), most of Ni’s motion focused on establishing an increase in forced sterilizations and abortions in Fujian Province in recent years.

Ni’s effort to make such a showing had to take into account the U.S. Department of State’s 2007 Country Profile of Asylum Claims and Country Conditions (2007 Country Profile), which states that “U.S. officials in China are not aware of [an] alleged official policy, at the national or provincial levels, mandating the sterilization of one partner of couples that have given birth to two children, at least one of whom was born abroad,” and that “central government policy prohibits the use of physical coercion to compel persons to submit to abortion or sterilization.” Nevertheless, portions of the 2007 Country Profile suggest that abuses may occur at the local level. In the past, the BIA has found this report to be “highly probative and reliable evidence of country conditions in Fujian Province” and has relied on it to deny asylum requests by similarly situated applicants. See In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010).

Ni had two responses to the 2007 Country Profile: he challenged its methodology and findings; and he argued that its relatively sanguine assessment established only a baseline of “country conditions in China as they existed on or before May 2007.” Since then, Ni contends, conditions have worsened. In support of this claim, Ni submitted nearly 900 pages of indexed documents, including a scholarly critique of the 2007 Country Profile by Dr. Flora Sapio; the 2009 and 2010 Annual Reports of the Congressional-Executive Commission on China (CECC Reports); various research articles and media reports; and, perhaps most importantly, dozens of directives and communiqués to and from local family planning officials throughout Fujian Province. We discuss these documents in greater depth below, but in general they support the proposition that enforcement of China’s family planning policy has become more stringent since 2007 in Fujian Province, and that coerced sterilization and abortions are becoming more common.

The BIA gave short shrift to Ni’s presentation. After cataloging the voluminous evidence Ni submitted, it offered a one and one-half page explanation of why these materials failed to persuade it of “changed conditions” in China. Most of this discussion focused on why the Board found the 2007 Country Profile reliable, and why it found Dr. Sapio’s critique unpersuasive. The Board did not directly address Ni’s contention that conditions had deteriorated since the issuance of the 2007 Country Profile, though it very briefly touched upon the 2009 and 2010 CECC Reports and the collection of government directives that Ni submitted. Neither set of materials, it concluded, was “sufficient to demonstrate that the respondent will be subjected to sterilization” or “suffer mistreatment amounting to persecution” upon return to China. Because Ni had “exceed[ed] the time limit for motions to reopen” and failed “to establish a change in circumstance or country conditions ‘arising in the country of nationality’ so as to create an exception to the time and number limitations for filing a late motion to reopen,” the BIA denied Ni’s motion to reopen.

III

Particularly when an alien submits nearly 1,000 pages of evidence, the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see also Iglesias, 540 F.3d at 531 (“[T]he BIA does not have to write an exegesis on every contention, [though] it must consider the issues raised . . . .”). But that does not mean that the Board can simply disregard relevant evidence. Here, it appears that the Board failed to notice that Ni presented precisely the sort of evidence it has demanded for a successful motion to reopen. We give examples below.

Initially, we confirm that the Board was entitled to reject Dr. Sapio’s critique of the 2007 Country Profile.

The BIA’s opinion reveals that it considered Dr. Sapio’s arguments, identified several weaknesses, and ultimately found that her “critique of the 2007 U.S. State Department Profile on China [was insufficient to] persuade [the Board] that the Profile is unreliable.” Though State Department reports are not “Holy Writ,” Galina v. INS, 213 F.3d 955, 959 (7th Cir. 2000), they are “entitled to deference,” Zheng v. Gonzales, 409 F.3d 804, 811 (7th Cir. 2005). Such reports “are accorded special weight, because they are based on the collective expertise and experience of the Department of State, which has diplomatic and consular representatives throughout the world.” In re H–L–H–, 25 I. & N. Dec. at 213 (internal quotation marks and citations omitted). We note that the BIA’s rejection of Dr. Sapio’s critique has been discussed in at least nineteen appellate cases from six circuits—many involving the same lawyers who represent Ni here—and not once has a court of appeals found the BIA’s rejection of Dr. Sapio’s report to constitute an abuse of discretion. See, e.g., Zheng v. Holder, 701 F.3d 237, 241-42 (7th Cir. 2012); Hang Chen v. Holder, 675 F.3d 100, 108 (1st Cir. 2012); Xiu Jin Yu v. Attorney Gen. of U.S., 429 F. App’x 158, 161 (3d Cir. 2011).

But it is one thing to accept the Board’s evaluation of Dr. Sapio’s contribution, and another to say that its treatment of the 2007 Country Profile as a whole was unobjectionable. The Board did not indicate, for example, what “conclusions” and “highly probative evidence” from the 2007 Country Profile it actually was crediting. This is a troubling omission, since the gravamen of Ni’s motion to reopen is that the relevant changes in Fujian Province postdate the May 2007 publication of the State Department’s report. In its brief, the government urges that the BIA “reasonably found persuasive and relied on” the following pieces of the Profile:

! “Central government policy prohibits the use of physical coercion to compel persons to submit to sterilization or abortion.”

! “U.S. diplomats in China have heard reports that local officials occasionally employ illegal means, such as forcibly performing abortions or sterilizations . . . but only . . . from Provinces other than Fujian.”

! “Consulate General officials visiting Fujian . . . did not find any cases of physical force employed in connection with abortion or sterilization.”

! “[I]n interviews with visa applicants from Fujian, representing a wide cross-section of society, Consulate General officers have found that many violators of the one-child policy paid fines but found no evidence of forced abortion or property confiscation.”

Ni’s motion to reopen accepted that this was the case in 2007, explaining that “[t]he Board has repeatedly emphasized its perception [based on the 2007 Country Profile] of the Chinese government’s enforcement of the population control policy on or before May 2007 as ‘lax.’ ” For present purposes, we accept this understanding of the Profile.

The crux of Ni’s argument, however, is that conditions in Fujian Province, and specifically in and around Ni’s small hometown of Guantou Town (population 5,790, see http://www.tiptopglobe.com/city?n=Guantou&p=5790#lat= 26.15544&lon=119.60815&zoom=7, last visited April 23, 2013) have since worsened. See Liang, 626 F.3d at 989 (“[U]nless [petitioner] could show that China’s enforcement of the policy had become more stringent in her province since her last hearing, she could not prevail.”). To support his contention, Ni pointed to reports issued in 2009 and 2010 by the Congressional-Executive Commission on China. These more recent reports, he argues, offer a darker assessment of conditions in China than the 2007 Country Profile. The reports were not buried in Ni’s filings: he discusses them at length in the body of the motion to reopen, and they appear as the first two exhibits in his lengthy appendix of “Background Documents in Support of Motion to Reopen.” The 2009 CECC Report (published October 10, 2009), for example, stated that “the use of coercive measures” to enforce birth control policies is now “commonplace”; that “in the past year, authorities in various localities forced women to undergo abortions, and in some cases, reportedly beat violators of population planning regulations”; and that “local authorities continue to mandate surgical sterilization and the use of contraception as a means to enforce birth quotas.” In some areas of Fujian Province, the Report specified, “authorities . . . employed abortion as an official policy instrument.” Fujian Province is also listed as an area where “population planning officials are authorized to take ‘remedial measures’ to deal with ‘out-of-plan’ pregnancies.” According to the Report’s authors, the term “remedial measures” (bujiu cuoshi) is often used as a euphemism for “compulsory abortion.” The 2010 CECC Report (published October 10, 2010) offers a similarly bleak assessment. Its key findings include the observation that “Chinese authorities continued [in 2010] to implement population planning policies that interfere with and control the reproductive lives of women [including] forced sterilization [and] forced abortions,” and that, at least with respect to migrant workers, forced abortions were becoming more common. Early in the year, the Report also observed, “authorities across a wide range of Chinese localities launched population planning enforcement campaigns—often dubbed ‘spring family planning service activities’ (chunji jisheng fuwu xingdong)—that employed coercive measures to terminate ‘out-of-plan’ pregnancies.” These coercive measures included forced sterilizations and abortions.

The BIA did not ignore these Reports altogether, but it brushed over them lightly with the following comment:

The evidence indicates that social compensation fees, job loss or demotion, loss of promotion opportunity, expulsion from the party, destruction of property, and other administrative punishments are used to enforce the family planning policy. [Citing 2009 and 2010 Congressional-Executive Commission Reports.] The evidence reflects that China regards a child of Chinese nationals who have not permanently settled in another country as a Chinese national, but it is not sufficient to demonstrate that the respondent will be subjected to sterilization. [Citing Liang v. Holder, 626 F.3d 983 (7th Cir. 2010); In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007)].

The opinion contains no further mention of the CECC Reports.

This response tells us almost nothing. It indicates that the BIA did credit the CECC Reports, at least in part. Why the BIA found the Reports’ discussion of certain “administrative punishments” and coercive tactics to be persuasive, but found the Reports’ discussion of forced sterilizations and abortions in Fujian Province not to be persuasive, however, remains a mystery. Though these same Reports have featured in previous asylum cases arising out of Fujian Province, the two cases cited by the BIA (Liang and S-Y-G-) make no mention of the Congressional-Executive Commission. We have no idea what bearing the Board thought that those cases have on Ni’s evidence. This underscores a final, overarching problem: the BIA appears to have misapprehended the purpose of this evidence. Ni’s argument was not that the CECC Reports constitute irrefutable proof that he “will be subjected to sterilization,” but rather that they evince a steady worsening of conditions serious enough to warrant reopening his case.

Six months before the BIA ruled on Ni’s motion to reopen, this court noted in a non-precedential order that “[t]he Board’s failure to address the [CECC] reports is troubling: CECC reports are official publications that should be afforded weight, and the Board ought to have explained how it reconciles the CECC reports with its view that China’s family-planning policy is enforced through administrative means.” Qiao Ling Lin v. Holder, 441 F. App’x 390, 394 (7th Cir. 2011). Though we have previously indicated that these reports, taken alone, may not be sufficient to demonstrate “changed country conditions,” see id.; see also Ping Zheng v. Holder, 701 F.3d 237 (7th Cir. 2012), they were far from the only evidence Ni presented. The Board’s ongoing refusal to respond meaningfully to such evidence is difficult to understand.

The BIA offered a similarly perfunctory response to dozens of official government publications Ni submitted that appear to corroborate his claim of a recent crackdown by family planning officials in Fujian Province. To give but a few examples, Ni presented a June 11, 2009, document issued by the People’s Government of Guantou Town that details a “Hundred-Day Battle on population and family planning,” during which officials should “complete the missions of required abortion, induced labor abortion, sterilization, and collection of social maintenance fees.” This grim missive provides for rewards and penalties based on progress toward family planning goals. A March 16, 2008, Guantou Town directive entitled “Notification with regard to Tightening of this year’s Implementation of Birth Control Measures” instructs officials to “step up your efforts on population and family planning . . . . [W]omen with two or more children are required to perform the sterilization.” A May 10, 2007, Guantou Township Committee document references another “One-Hundred Day Campaign” during which a Special Operation Command was established to “search and arrest the rule breaker. If women is [sic] confirmed to be pregnant without permit, send them to the County Hospital. Implement critical remedial measure.” Ni offered several more documents from Guantou Town containing similar statements.

Ni also submitted documents from authorities in Lianjiang County, in which Guantou Town is located. A December 24, 2010, announcement celebrating the “Launching [of] Countywide Massive Family Planning Clean-up Work” details a new campaign to “stop the extra births beyond the quota” through strict adherence to “four surgeries” and “double check-ups” targets. Officials are instructed to enter homes and “take every measure possible to raise the materialization rate” for “four surgeries.” Officials who do not meet goals will face “great severities” and will be assessed as “not qualified for the jobs for that year and will also be disciplined in other ways.” Ni also submitted numerous additional documents from neighboring Fuzhou and Changle City, as well as from other parts of Fujian Province. All of these materials bolster his assertion of a material change in country conditions.

The Board offered a similarly brief and desultory response to this evidence:

The respondent is from Guantou Town, Fuzhou City, and he has not shown that the documents and regulations from other towns and cities are applicable to him. The evidence that there have been reports of incidents of coercion to meet birth targets in some areas of China, contrary to the national policy, is not sufficient to establish that the respondent will suffer mistreatment amounting to persecution based on the birth of his children in the United States. See Chen v. Gonzales, 489 F.3d 861, 862 (7th Cir. 2007) (affidavits relating personal experiences or tales about sterilizations in Fujian following the birth of children in China would not establish that a person in the respondent’s position faces a material risk that this would happen to her based on the birth of her children in the United States).

Beyond these two sentences, the BIA offered no substantive commentary on Ni’s proffered government documents.

This too is an inadequate response. If these documents are genuine—and this remains an important “if”—they constitute strong evidence that harrowing practices are common in the part of Fujian Province (indeed, the very town) from which Ni hails. The BIA faulted Ni for “not show[ing] that the documents and regulations from other towns and cities are applicable to him” and for relying on evidence from other areas in China, but it ignored Ni’s evidence that directly addressed enforcement practices in Guantou Town, Lianjiang County, and Fuzhou City. 1 (We note that the

1 According to the State Department’s 2007 Country Profile, Guantou is a town in Lianjiang County, just north of Fuzhou City. Fuzhou City and Changle City are adjacent municipalities to the south and southeast, distinct from Lianjiang County. The BIA’s statement that Ni is from “Guantou Town, Fuzhou City,” is thus somewhat confusing, since the record indicates (continued…)

BIA appears to have recycled the “other towns and cities” language from previous “one-child policy” cases involving petitioners who, unlike Ni, failed to present evidence from their hometowns. See, e.g., Hang Chen, 675 F.3d at 105 (“The BIA also stated that Chen had not shown that other towns or cities’ regulations regarding family planning would apply to him.”)). Assuming that the Board actually examined Ni’s documents, we are left with nothing to indicate how the information contained within them affected its analysis. Nor, again, does the cited authority offer any insight: the petitioner in Chen presented no government documents in support of her motion to reopen. Even so, this court remanded because we worried that a newly discovered pamphlet from Changle City undermined the BIA’s conclusion “that Fujian no longer uses force in its family-planning program.” 489 F.3d at 863.

The government offers three theories for why the BIA might reasonably have discounted Ni’s documents from China: (1) the documents were not properly authenticated pursuant to 8 C.F.R. § 1287.6;

1 (…continued) that Guantou Town is not part of Fuzhou City proper. The BIA’s formulation suggests, however, that its later allusion to evidence from “other towns and cities” means “towns and cities outside the greater Fuzhou region.” If so, this compounds the BIA’s error, since the vast majority of documents Ni presented were, in fact, from government bodies in the general area (i.e., Fuzhou City, Changle City, and Lianjiang County).

(2) Ni had a prior adverse credibility finding during his earlier, unsuccessful asylum proceedings; and (3) the State Department’s 2007 Country Profile identified widespread fabrication and fraud in documents from Fujian Province. We address them in turn.

It does not appear that lack of authentication was the reason why the BIA discounted Ni’s documents from Guantou Town, Lianjiang County, and Fuzhou City; rather, it seems that it simply overlooked them. It is true that early in its opinion, the BIA noted that Ni’s “documents from China have not been authenticated pursuant to 8 C.F.R. § 1287.6,” but in the same sentence, the BIA also explained that Ni “offer[ed] evidence that his attorney sought to have some of them authenticated.” The Board said nothing about how this lack of authentication (or Ni’s efforts to comply with Section 1287.6) factored into its weighing of the documents’ evidentiary value, if at all, nor did it offer any other assessment of the documents’ authenticity. In other cases from China, courts have noted that the BIA does not treat failure to authenticate under Section 1287.6 as “an automatic rule of exclusion.” Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir. 2006) (failure to authenticate evidence “does not amount to presumptive proof of falsity”). This is a sensible approach, since “it may not be possible for an applicant filing a motion to reopen to obtain from a foreign government valid and proper authentication of a document [that] purports to threaten persecution.” Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007).

Moreover, the BIA apparently accepted that Ni’s documents from “other towns and cities” did constitute evidence of “coercion to meet birth targets in some [other] areas of China.” The government can point to nothing in the record that explains why the BIA would credit these (similarly unauthenticated) government documents, but not the more directly relevant evidence from Guantou Town and Lianjiang County. At best, it is unclear how or if the BIA weighed Ni’s government documents—evidence that goes to the heart of his asylum claim—and “[w]e cannot affirm the BIA if the basis for its decision is unclear.” Kadia v. Holder, 557 F.3d 464, 468 (7th Cir. 2009) (citing Chenery Corp., 332 U.S. at 196 (“If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable.”)).

The government’s other post hoc rationales fall short for similar reasons. At no point did the BIA suggest that it doubted the provenance of Ni’s documents, either because it was giving weight to its earlier adverse opinion of Ni’s credibility or because it credited the State Department’s warnings about “widespread fabrication and fraud in documents from Fujian Province.” The government’s first theory—that the Board’s adverse determination of Ni’s credibility during his religious persecution asylum claim “carries over” to a later asylum claim based on distinct facts—has been expressly rejected by this court and others. Gebreeyesus, 482 F.3d at 955; see also Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (“No one has explained how the IJ’s adverse credibility findings implicated Guo’s motion to reopen on a ground not previously dealt with by the IJ. Guo’s credibility (or lack thereof) for religious persecution simply is not relevant to her motion to reopen in this case, which relied principally on the fact of her second pregnancy in contravention of China’s one-child policy.”). And the BIA’s opinion makes no mention of the State Department’s apparent concern over “widespread fabrication and fraud” in documents that purport to be from Fujian Province. Finally, it is not this court’s job to conduct an independent assessment of the authenticity of Chinese official documents. We decline the government’s invitation to deny the petition on the theory that Ni’s documents may not be genuine, where the BIA has made no such determination on its own.

In short, the BIA’s opinion does not demonstrate that it reviewed and considered all of Ni’s evidence. We cannot mend “an agency’s inadequately justified decision ‘by substituting what [we] consider[] to be a more adequate or proper basis’ for the decision.” Borovsky, 612 F.3d at 921 (quoting Chenery Corp., 332 U.S. at 196). Accordingly, we conclude that further proceedings are necessary before Ni’s petition for review can properly be assessed.

IV

The government also urges that the BIA correctly rejected Ni’s motion because he failed to make a prima facie showing of eligibility for asylum or withholding of removal. It notes that “when the Board’s decision is supported by a rational explanation, [courts] have found no abuse of discretion when [the BIA] has looked at a movant’s prima facie case for asylum in evaluating her motion to reopen.” Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). Ni counters that the BIA applied a standard that was too strict, insofar as it demanded that Ni conclusively prove that he would be sterilized, rather than show a “reasonable likelihood” that he could later demonstrate an objectively reasonable fear of such persecution. See Liang, 626 F.3d at 989.

In this instance, neither side is right, for the simple reason that there is nothing in the Board’s opinion that looks like the ruling the government postulates. The Board did state at several points that individual pieces of evidence were “not sufficient to establish that Ni would face persecution.” But it never commented on the relevant standard for prima facie eligibility for asylum, nor did it announce that Ni had failed to make such a showing. The BIA’s decision rests only on Ni’s failure to meet “the requirements of section 240(c)(7)(C)(ii) of the Act because his evidence is not sufficient to establish a change in circumstances or country conditions,” nothing more. We add that we cannot deny the petition for review based on the assumption that the Board’s silence about Ni’s prima facie case must mean something favorable to the government.

In closing, we note that we make no prediction on the ultimate outcome of Ni’s motion to reopen or his application for asylum. But he is entitled to have the expert agency, the BIA, evaluate in a transparent way the evidence that he has presented. Simply stating that a 2007 document defeats a claim, when the alien has accepted 2007 as a baseline and has introduced voluminous evidence of change in later years, will not do. The BIA “must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Iglesias, 540 F.3d at 531. That has not yet happened here.

For these reasons, the petition for review is GRANTED, and Ni’s case is REMANDED to the BIA for further proceedings consistent with this opinion.

4-26-13

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, China one-child policy, China’s family planning policy, forced sterilization, Motions to Reopen | Tagged | Leave a comment

Adjustment of status under section 245(i)

Posted on April 19, 2013 by Mike Baker

Matter of Muhammad Imran BUTT, Respondent

Decided April 19, 2013

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Cite as 26 I&N Dec. 108 (BIA 2013) Interim Decision #3779

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

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

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FOR RESPONDENT: Richard A. Newman, Esquire, New York, New York

FOR DEPARTMENT OF HOMELAND SECURITY: Laurence Arturo, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY, GREER, and WENDTLAND, Board Members.

GREER, Board Member:

This case addresses whether the respondent’s labor certification application was “approvable when filed” and therefore served to “grandfather” him for purposes of establishing his eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006). The respondent’s employer did not pursue a full and favorable adjudication of the labor certification application that was filed before the April 30, 2001, sunset of section 245(i) of the Act, instead refiling it at a later date. In a decision dated October 5, 2009, an Immigration Judge found that the initial labor certification filed on the respondent’s behalf by his employer was not approvable when filed because it did not meet the regulatory requirements for certification. We disagree and conclude that the respondent’s labor certification application was “approvable when filed” because it was “properly filed,” “non-frivolous,” and “meritorious in fact” within the meaning of the governing regulations. The respondent’s appeal will therefore be sustained and the record will be remanded to the Immigration Judge for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Pakistan who entered the United States without inspection. On April 30, 2001, the Sweet ‘N’ Sour Corporation filed an Application for Alien Employment Certification (Form ETA 750) (labor certification) on the respondent’s behalf with the New York Department of Labor (“DOL”), seeking to employ him on a permanent basis as a manager. 1 The labor certification was date-stamped and accepted for processing.

On December 29, 2003, the New York DOL mailed the respondent’s employer a request for information regarding the labor certification application. The request solicited amendments to the ETA 750 Parts A and B, a statement from the employer explaining the company’s need for both a full-time manager and full-time assistant manager at the yogurt shop, and an accounting of the titles and duties of all the respondent’s direct subordinates, along with information about certain recruitment efforts undertaken by the employer to locate qualified United States workers for the position. The request also advised the employer that the company had 45 days to respond. The employer submitted a timely response to the New York DOL via certified mail sent on February 12, 2004. On September 1, 2004, the New York DOL mailed another request for information to the employer, requiring further amendments to the ETA 750 Parts A and B, a modification of the wage/salary offered for the position sought to be certified, and completion of additional recruitment efforts, along with proof of compliance with such requirements. However, the labor certification was ultimately not favorably adjudicated. 2

On March 22, 2005, the employer filed a new labor certification on the respondent’s behalf, again seeking to employ him as a manager. This second labor certification was approved on February 22, 2007. On August 10, 2007, relying on the approved labor certification, the employer filed a Petition for Alien Worker (Form I-140) with United States Citizenship and

1 Following the implementation of the Permanent Labor Certification program, effective March 25, 2005, the Form ETA 750 has been replaced by the current Application for Permanent Labor Certification (Form ETA 9089). See generally 20 C.F.R. § 656.17 (2012).

The respondent maintains that the labor certification was effectively withdrawn by his employer before the 45-day period expired. This assertion is supported by correspondence from the employer requesting the withdrawal, which was addressed to the New York DOL and dated September 27, 2004. The Department of Homeland Security maintains that the petition was denied and presented a United States Citizenship and Immigration Services document that references correspondence from the New York DOL that denied the labor certification based on the employer’s failure to timely respond to the September 1, 2004, request for information.

Immigration Services (“USCIS”) to accord the respondent third-preference employment-based classification (“EB-3”) under section 203(b)(3) of the Act, 8 U.S.C. § 1153(b)(3) (2006). The respondent concurrently filed his application for adjustment of status pursuant to section 245(i). The visa petition was approved on February 12, 2008, and the respondent was accorded a March 22, 2005, priority date. However, on June 12, 2008, the USCIS denied the respondent’s adjustment application, concluding that the original labor certification filed by his employer did not serve to “grandfather” the respondent under section 245(i) of the Act. According to the USCIS, although the labor certification was timely filed on April 30, 2001, the respondent did not establish that it was “approvable when filed”in accordance with the governing regulations because it was denied as a result of the employer’s failure to respond to a request for information.

The Department of Homeland Security (“DHS”) initiated removal proceedings against the respondent by the issuance of a notice to appear dated August 13, 2008. At a hearing before the Immigration Judge, the respondent conceded removability and requested the renewal of his adjustment application. The Immigration Judge found that the initial labor certification filed by the respondent’s employer was not “approvable when filed” within the meaning of the regulations, denied the adjustment application, and ordered the respondent removed. The respondent has appealed.

II. ISSUE

The issue on appeal is whether the labor certification filed by the respondent’s employer on April 30, 2001, serves to “grandfather” him under section 245(i) of the Act pursuant to 8 C.F.R. §§ 245.10(a)(1)(i)(B) and 1245.10(a)(1)(i)(B) (2012). To resolve this issue, we must consider whether the labor certification was “approvable when filed” because it was (1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous. See 8 C.F.R. §§ 245.10(a)(1)(i)(B), (2)(ii), (3), 1245.10(a)(1)(i)(B), (2)(ii),(3).

III. ANALYSIS

A. Section 245(i) Eligibility

An alien may apply for adjustment of status without first having been inspected and admitted or paroled if he qualifies for adjustment under section 245(i) of the Act as the beneficiary of a labor certification or visa petition filed on his behalf on or before April 30, 2001. See section 245(i) of the Act; 8 C.F.R. §§ 245.10(a)(1)(i), 1245.10(a)(1)(i). The alien may apply to adjust under section 245(i) of the Act either by using the qualifying labor certification or visa petition to adjust or, if he is adjusting through another labor certification or visa petition, by establishing that he is “grandfathered” by a filing from April 30, 2001, or earlier. See 8 C.F.R. §§ 245.10(a)(1), (3), 1245.10(a)(1), (3); see also Memorandum from William R. Yates, Assoc. Dir. for Operations, to USCIS officials (Mar. 9, 2005), 2005 WL 6286444 (INS) (interpreting the grandfather ing regulations as not limiting an alien to seeking adjustment of status solely on the basis of the qualifying immigrant visa petition); Memorandum from Robert L. Bach, Exec. Assoc. Comm., Office of Policy and Programs, to INS officials (Apr. 14, 1999), 1999 WL 33435638 (INS) (“Bach Memo I”) (adopting an “alien-based” reading of section 245(i), pursuant to which an alien may be grandfathered by a qualifying petition even if the petition is not the “vehicle” through which the alien ultimately adjusts). 3

In order to establish that an alien is grandfathered by a filing from April 30, 2001, or earlier, the labor certification or visa petition must have been approvable when filed, which is defined by regulation as a petition that is: (1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous.” See 8 C.F.R. §§ 245.10(a)(1)–(3), 1245.10(a)(1)–(3); see also Matter of Ilic, 25 I&N Dec. 717, 718 (BIA 2012); Matter of Legaspi, 25 I&N Dec. 328, 329 (BIA 2010). If these requirements are met,an alien may continue to be grandfathered even if the qualifying labor certification or visa petition is subsequently denied, revoked, or withdrawn.See 8 C.F.R. §§ 245.10(i), 1245.10(i).

Accordingly, in assessing whether the initial labor certification filed by the respondent’s employer on April 30, 2001, grandfathers the respondent under section 245(i) of the Act, we must determine whether the petition was “approvable when filed” and interpret what the term means when applied to a labor certification that subsequently becomes nonviable as a result of its denial, revocation, or withdrawal. We will discuss the meaning of the terms “properly filed,” “meritorious in fact,” and “non-frivolous” in interpreting when a labor certification may serve to grandfather an alien under section 245(i) of the Act.

Memoranda issued by the former Immigration and Naturalization Service and the USCIS addressing the issues raised in this appeal are not binding on the Board. See Matter of Avila-Perez, 24 I&N Dec. 78, 82 n.4 (BIA 2007). Similarly, less formal agency opinion letters do not bind the Board. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (“Interpretations such as those in opinion letters―like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law―do not warrant Chevron-style deference. Instead, interpretations contained in formats such as opinion letters are ‘entitled to respect’ . . . , but only to the extent that those interpretations have the ‘power to persuade.’” (citations omitted) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944))).

B. Properly Filed

According to 8 C.F.R. §§ 245.10(a)(2)(ii) and 1245.10(a)(2)(ii), a labor certification is “properly filed” if it was “accepted pursuant to the regulations of the Secretary of Labor, 20 CFR 656.21.” 4 In examining whether the employer’s original labor certification was properly filed, we first look to the United States DOL regulations that were applicable on April 30, 2001.

Under the regulations, an employer was required to submit a signed ETA 750 in duplicate with the local office serving the area where the proposed employment was to occur. 20 C.F.R. § 656.21(a) (2001). A completed ETA 750 included a statement of the alien’s qualifications (signed by the alien) and a description of the job offer, including items required by 20 C.F.R. § 656.21(b). 20 C.F.R. § 656.21(a)(1)–(2). If the labor certification was deemed complete by the local office, the ETA 750 was date-stamped and accepted for processing, but an incomplete form was returned to the employer by the local office with additional instructions for the employer to refile a complete application. 20 C.F.R. § 656.21(d); see also De Acosta v. Holder, 556 F.3d 16, 19-20 (1st Cir. 2009) (explaining that an incomplete application is not properly filed for purposes of establishing grandfathering under section 245(i) of the Act); 20 C.F.R. § 656.30(b)(1) (2001) (stating that a labor certification is “deemed validated” as of the date the local office date-stamps the application). 5

Accordingly, we conclude that a “properly filed” labor certification application must be a complete application. However, a complete application that raises additional questions in the adjudication process remains properly filed, notwithstanding the need for the employer to provide additional information to obtain a favorable adjudication of the application. 6

4 The DOL maintains sole jurisdiction over the processing of labor certifications. See 20 C.F.R. §§ 656.24, 656.26 (2012).5 Amendments to the regulations made subsequent to the filing of the respondent’s labor certification provide that a date stamp, which indicates the validation of a labor certification, may then be used by the DHS as the priority date on the related visa petition, as appropriate. See 20 C.F.R. § 656.30(a)(2) (2012); see also Technical Assistance Guide No. 656, I.C.656.21(4) (USDOL-ETA Sept. 1981) (“TAG”), available at IMMLS2D PSD TAG I C (Westlaw) (stating that the date stamped on the labor certification by the local office is used as the priority date for the filing of any related visa petition).6 For example, where an application is accepted for processing and the local office takes issue with the rate of pay offered or any job requirements that it deems unduly restrictive or impermissibly discriminatory, the petitioner is notified of the alleged defect and asked to address it. See 20 C.F.R. § 656.21(e), (f)(2). An employer’s failure to provide a timely response can form a basis for denying the labor certification.

Our definition of the term “properly filed” is consistent with that adopted by the former Immigration and Naturalization Service (“INS”). Initially, the April 14, 1999, Bach memorandum indicated that an alien maybe grandfathered by a labor certification filed on or before the sunset of section 245(i) of the Act if the alien demonstrates that the application met all of the relevant regulatory requirements established by the DOL for filing the application. See Bach Memo I, supra, at 6. Although the term “filing” was not defined in the memo, the former INS later consulted with the DOL and clarified this definition by explaining that a properly filed labor certification is one in which the ETA 750 is properly completed by the employer and the beneficiary alien, so long as the application is filed with the appropriate local office on or before the sunset date. See Memorandum from Robert L. Bach, Exec. Assoc. Comm., Office of Policy and Programs,to INS officials (June 10, 1999), 1999 WL 33435639 (INS) (“Bach Memo II”).

Subsequently, in an interim rule and request for public comment, the former INS again explained that it considered a labor certification “properly filed” when the ETA 750 was accepted for processing by the local office.See Adjustment of Status To That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility,66 Fed. Reg. 16,383, 16,385 (interim rule Mar. 26, 2001) (responding to the congressional amendments to section 245(i) of the Act brought about by the passage of the Legal Immigration Family Equity Act Amendments of 2000,Pub. L. No. 106-554, § 1502, 114 Stat. 2763, 2763A-324); see also Letter from Pearl Chang, Dir., Residence and Status Branch, INS, to H. Ronald Klasko, HQ ADN 70/23.1 (May 15, 2001) (“Klasko Letter”), reprinted in 78 Interpreter Releases, No. 22, June 4, 2001, app. IV at 931, 980–82,available at 78 No. 22 INTERREL 931 (Westlaw) (explaining that the INS read the term “properly filed” as it pertains to a labor certification by reference to the DOL regulations).

There is no question whether the respondent’s ETA 750 was accepted for processing by the local office on April 30, 2001. However, the Immigration Judge concluded that the labor certification was not “properly filed” because he found that it did not meet the regulatory requirements at See 20 C.F.R. § 656.21(e), (f)(2); see also Jin Qing Wu v. Holder, 705 F.3d 1 (1st Cir. 2013); 20 C.F.R. § 656.21(h) (stating that the petitioner is afforded 45 calendar days within which to remedy any deficiencies identified by the local office); TAG I.C.656.21(4). However, where an employer provides an untimely response to additional questions raised on a “validated” or complete application, such queries do not undermine the fact that the application was “properly filed.” See 20 C.F.R. § 656.30(b)(1); TAG I.L.656.30(1), available at IMMLS2D PSD TAG I L (Westlaw). 20 C.F.R. §§ 656.21(g)(4) and (h), which are related to the rate of pay set for the proffered position and the required timely response to a request for information. However, these factors relate, not to the completeness of the filing, but rather to questions raised by the completed filing that had to be subsequently adjudicated. Accordingly, we disagree with the Immigration Judge’s legal determination that the April 30, 2001, labor certification filed by the respondent’s employer was not “properly filed,” because it is clear that the local office deemed the application complete and date-stamped iton the sunset date.

C. Meritorious in Fact

Unlike the term “properly filed,” which is defined in the regulations, the phrase “meritorious in fact” is not. See 8 C.F.R. §§ 245.10(a)(3), 1245.10(a)(3). Moreover, neither we nor the United States Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, have previously interpreted the meaning of the phrase “meritorious in fact” in relation to labor certifications. Accordingly, in developing a formal definition of the term, we will examine case law defining it in other contexts. We will also look to agency memoranda and opinion letters related specifically to labor certifications.

With regard to visa petitions, the Second Circuit has explicitly found that the phrase “meritorious in fact” is ambiguous because it is not defined and can be given a variety of meanings. See Linares Huarcaya v. Mukasey, 550 F.3d 224, 229 (2d Cir. 2008); Butt v. Gonzales, 500 F.3d 130, 135 (2d Cir. 2007). The court has reasoned that when the terms “non-frivolous” and “meritorious in fact” are read together, the regulatory language indicates that a “meritorious in fact” filing need not actually be approved in order to grandfather an alien. See Butt v. Gonzales, 500 F.3d at 135.

In the context of a visa petition filed on the basis of a marriage, the Second Circuit adopted our definition of the term “meritorious in fact,” which required the underlying marriage to be bona fide at its inception for purposes of grandfathering an alien. Linares Huarcaya v. Mukasey, 550 F.3d at 228–30; see also Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267, 268 (BIA 2007) (adopting the definition of the term “meritorious in fact” as originally outlined in Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir.2004), in the context of a marriage-based visa petition), aff’d sub nom. Riero v. Holder, 337 F. App’x 71, 73 (2d Cir. 2009). The court reasoned that the definition of the term we used in the marriage-based context was reasonable and entitled to deference because it was consistent with the history of section 245(i) of the Act, which was aimed at protecting those who “‘had legitimate visa applications on file before the more restrictive amendment came into force,’ rather than giving applicants a ‘second bite atthe apple,’” where no such legitimate interest previously existed. Linares Huarcaya v. Mukasey, 550 F.3d at 230 (quoting Echevarria v. Keisler, 505 F.3d 16, 19–20 (1st Cir. 2007)). Under this reading of the term “meritorious in fact,” a subsequent breakdown or change in the relationship supporting the visa petition would not undermine the alien’s grandfathered status. See, e.g., 8 C.F.R. §§ 245.10(a)(3)–(4), 1245.10(a)(3)–(4). This is consistent with the historical purpose of the statute.

The Fourth Circuit has also provided some guidance for defining the term in the context of a special immigrant visa petition filed on behalf of a religious worker. Ogundipe v. Mukasey, 541 F.3d 257, 261 (4th Cir. 2008). Like the Second Circuit, the court relied on our analysis in Matter of Jara Riero and Jara Espinol in finding that a religious worker visa petition is “meritorious in fact” if it would have “merit[ed] a legal victory” had it been fully adjudicated, even if the petition was not fully prosecuted or actually approved. Id. at 260.

The approach that we have used, and with which the Second and Fourth Circuits agree, is appropriate in determining if a visa petition “merited a legal victory” upon filing. Id. In that context we have the ability to consider whether the visa petition would have been approved had it been adjudicated on the date it was filed, notwithstanding the fact that it may

(1) remain unadjudicated at some future date or (2) have been denied, withdrawn, or revoked as a result of subsequent events (for example, a divorce between the alien and the petitioning spouse, the marriage of an unmarried alien child where the child’s single status is critical to approval of the petition, or the closing of a petitioning business, which rendered it unable to offer the alien employee a job under the employment-based visa petition). See 8 C.F.R. §§ 245.10(a)(3)–(4), 1245.10(a)(3)–(4); see also 8 C.F.R. §§ 205.1(a)(3)(i)–(ii), 1205.1(a)(3)(i)–(ii) (2012).

However, this test requires some adaptation for labor certifications on account of the differences in the labor certification adjudication process. Labor certifications are different from visa petitions because when they are accepted by the DOL for processing, they are subject to further negotiation between the petitioning employer and the DOL as to the acceptable terms and conditions for employment. See 20 C.F.R. § 656.21(e), (f)(2). By necessity, the pertinent labor certification regulations provide a certain degree of flexibility for the employer and the DOL to modify the terms contained in the original filing in order to develop a labor certification that will ultimately be approved. Subject to some limitations, the employer is not required to start over with a new filing each time a term requires discussion and possible amendment during the process.

In light of the negotiated nature of the process, when the former INS consulted with the DOL regarding what type of labor certification might be deemed “approvable when filed,” the DOL indicated that the agency does not have the ability to state definitively whether a certification will be meritorious until its adjudication is complete. See Bach Memo II, supra, at 2 n.1. Therefore, the former INS adopted an approach that focused on whether a visa petition was “non-frivolous” and “properly filed” in presuming that most labor certifications meeting these requirements would also satisfy the “meritorious in fact” requirement for grandfathering purposes. See id.; see also Klasko Letter, supra (“In consultation with the[DOL] . . . the Service was assured that . . . [the DOL] considers every properly filed application for permanent labor certification to be approvable when filed . . . . Obviously, however, if the Service has evidence of a fraudulent or otherwise non-meritorious employment relationship, the standard would not be met.”).

The inquiry into the merits of a labor certification must necessarily be more limited than that employed in the context of adjudicating a visa petition. However, in focusing on whether a labor certification is “properly filed” and “non-frivolous” when determining whether an alien is grandfathered, we do not mean to imply that the merits of the labor certification are irrelevant. For example, an employer who submits a labor certification that is “non-frivolous” and “properly filed” may nevertheless not share the requisite employment relationship with the employee to support the labor certification and, ultimately, the approval of a visa petition. 7 Under such circumstances, although a labor certification may be“properly filed” and “non-frivolous,” the alien would not be grandfathered because the labor certification would not be “meritorious in fact.”

We now adopt a definition of the phrase “meritorious in fact” in the labor certification context that is consistent with the definition developed by the former INS. This definition was formulated in consultation with the DOL and takes into account the negotiated nature of labor certification adjudications. Consequently, we conclude that a labor certification is “meritorious in fact” if it was “properly filed” and “non-frivolous,” so long as a bona fide employer/employee relationship exists where the employer has the apparent ability to hire the sponsored alien and where there is no evidence that the labor certification is based on fraud. See Bach Memo II, supra, at 2; Klasko Letter, supra. In other words, a labor certification will be presumed to be “meritorious in fact” if it was “properly filed” and “non-frivolous,” absent any apparent bars to its approval. Accordingly, a

7 The First Circuit discussed an example of the lack of a qualifying employer/employee relationship in Da Cunha v. Mukasey, 304 F. App’x 892, 895 (1st Cir. 2008). The employer in that unpublished decision was inactive at the time the labor certification was filed. Since the inactive employer was not set up to employ anyone, it did not share a qualifying relationship with the proposed foreign national employee.

“properly filed” and “non-frivolous” labor certification will generally be“meritorious in fact” and thus, in turn, will also be “approvable when filed.” As a result, if a qualifying labor certification was filed on or before April 30, 2001, it will serve to grandfather the alien for whom the certification was sought.

D. Non-frivolous

Pursuant to the pertinent regulations, a labor certification or visa petition is “frivolous” if it is deemed to be “patently without substance.” 8 C.F.R. §§ 245.10(a)(3), 1245.10(a)(3). In these proceedings, the Immigration Judge did not find that the labor certification was frivolous; nor did the DHS make such an assertion on appeal. Moreover, the respondent’s employer filed a subsequent labor certification on his behalf for the same position, which was ultimately approved and forms the basis for the respondent’s current approved EB-3 visa petition. Accordingly, the labor certification meets this requirement of the three-part test for establishing grandfathering.

IV. CONCLUSION

In determining whether a labor certification is “approvable when filed,” we consider the regulatory requirements that the application must be

(1) “properly filed,” (2) “meritorious in fact,” and (3) “non-frivolous.” 8 C.F.R. §§ 245.10(a)(1)–(3), 1245.10(a)(1)–(3). A “properly filed” labor certification is one that is submitted to and accepted for processing as a completed application by the correct local office on or before April 30,2001. See 20 C.F.R. §§ 656.21(d), 656.30(b)(1). Date-stamping by the local office, which validates the labor certification as ready for adjudication, serves as evidence that the application was accepted for processing and was properly filed before the sunset date. A labor certification that is “properly filed” and “non-frivolous” will be presumed to be “meritorious in fact” if it presents no apparent bars to a favorable adjudication. See 20 C.F.R. § 656.21(e), (f)(2). A labor certification is “non-frivolous” so long as the filing is not deemed to be “patently without substance.” See 8 C.F.R. §§ 245.10(a)(3), 1245.10(a)(3).

Applying this test to the respondent’s case, we conclude that he is a grand fathered alien because the labor certification filed by his employer on his behalf on April 30, 2001, meets all of the regulatory requirements set forth at 8 C.F.R. §§ 245.10(a)(1)–(3) and 1245.10(a)(1)–(3). Specifically, the labor certification was accepted for processing on April 30, 2001, and it was therefore properly filed. Moreover, because it was properly filed and there is no record evidence indicating that the petition was frivolous or otherwise lacked a qualifying employer-employee relationship, the labor certification is presumed to be “meritorious in fact.” Since this presumption has not been rebutted, we conclude that the respondent is grandfathered by the labor certification for purposes of adjustment of status under section 245(i) of the Act. We will therefore remand the record for the Immigration Judge to consider whether the respondent is otherwise statutorily eligible for adjustment of status and whether he merits such relief in the exercise of discretion. Accordingly, the respondent’s appeal will be sustained and the record will be remanded.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Posted in 245(i), Adjustment of Status, adjustment of status under section 245(i), approvable when filed, BIA, grandfathering, non-frivolous, properly filed | Leave a comment

3, 10 and Permanent Bars

Posted on April 17, 2013 by Mike Baker

Dealing with the 3, 10 and “Permanent” Bars

Overview of the 3, 10 and Permanent Bars

  • INA §212(a)(9)(B)(i)(I) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of more than 180 days but less than one year, voluntarily departed the United States (whether or not pursuant to a grant of voluntary departure) prior to the commencement of proceedings under §235(b)(1) or §240 and again seeks admission within three years of the date of departure or removal.
  • INA §212(a)(9)(B)(i)(II) provides that a noncitizen is inadmissible if he or she was unlawfully present in the United States for a period of one year or more, departed the United States and again seeks admission within ten years of the date of departure or removal.
  • INA §212(a)(9)(C)(i)(I) provides that any alien who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to reenter the United States without being admitted, is inadmissible. The referenced period of unlawful presence is the aggregate of all periods of unlawful presence prior to the unlawful reentry or attempted reentry.
  • Under INA § 212(a)(9)(B)(ii), an alien is considered to be unlawfully present if he or she is present in the United States either after the period of stay authorized by the Attorney General has expired or without admission or parole. Aliens who enter the United States without admission or parole accrue unlawful presence as of the date of unlawful entry into the United States or April 1, 1997, whichever is later.

Legacy INS adopted the interpretation under which unlawful presence for an alien admitted as a nonimmigrant begins to accrue as of the date the alien’s nonimmigrant stay expires, as noted on Form I-94, Arrival/Departure Record. Under this interpretation, unlawful presence with respect to a nonimmigrant generally includes only periods of stay in the United States beyond the date noted on Form I-94.

If USCIS concludes prior to the expiration date that the alien violated his or her nonimmigrant status, unlawful presence will begin to accrue as of the date of the USCIS decision denying the requested immigration benefit, whether or not any form of review is sought. USCIS may find an alien to have violated his or her status, for example, while adjudicating an application for extension of nonimmigrant stay or reinstatement to bona fide nonimmigrant status, a change of nonimmigrant classification, or an application for adjustment of status.

A nonimmigrant issued a date-certain Form I 94, who is placed in removal proceedings before his or her authorized stay expires, will begin to accrue unlawful presence either when the date noted on Form I-94 has been reached, or when the immigration judge orders the alien to be removed, whichever date is earlier. When the Service places a nonimmigrant in removal proceedings, and the alien successfully contests the charges brought by the Service in a proceeding, the alien will be deemed not to have accrued any periods of unlawful presence in the United States during that proceeding.

For nonimmigrants admitted for duration of status (D/S), unlawful presence will begin to accrue only if the Service finds a status violation while adjudicating an application for another benefit, or if an immigration judge finds the alien in violation of status in removal proceedings. When the immigration judge finds that the alien violated his or her nonimmigrant status, unlawful presence begins to accrue as of the date of the judge’s order, whether or not the judge’s decision is appealed.

How The Three-Year Bar Is Triggered

  • The three-year bar only applies to an alien who is unlawfully present for more than 180 days but less than one year and who voluntarily departs the United States prior to the commencement of removal proceedings.
  • Thus, if the alien were present for more than 180 days but less than one year, and if he or she voluntarily departed the United States after removal proceedings were initiated, then the three-year bar does not apply.

How the Ten-Year Bar is Triggered

  • The ten-year bar is triggered by any departure from the U.S. An alien who has been unlawfully present in the U.S. for more than one year consecutively and again seeks admission is barred for ten years from the date of departure or removal from the U.S.
  • An alien who has been unlawfully present for an aggregate period of more than one year or who has been ordered removed, deported or excluded and who enters or attempts to reenter without inspection is inadmissible. A discretionary waiver is available but only after the alien has been outside of the U.S. for ten years or more. DHS may waive this ground for a battered spouse/child if there is a connection between the battering and the departure or reentry/attempted reentry.

Effect of Recent 9th Circuit Decision Carrillo de Palacios, 651 F.3d 1158 (9th Cir. 2011)

• Alien who accrued more than one year of unlawful presence prior to April 1, 1997* and who departed prior to April 1, 1997 but reentered EWI after April 1, 1997 is inadmissible under 212(a)(9)(C)(i)(I).

* April 1, 1997 is effective date of 212(a)(9)(C)(i)(I)

• “The statutory text is straightforward: an alien is inadmissible if she has been unlawfully present in the United States for an aggregate period of more than 1 year and subsequently enters the United States without being admitted.”

Does 245(i) Help?

No Unlawful Presence Bar if alien doesn’t depart.

245(i) Does not Waive Inadmissibility except INS General Counsel determined that persons who entered EWI are eligible to adjust under 245(i) notwithstanding 212(a)(6)(A).

But what if Alien Departed after UP and Reentered EWI? 245(i) v. 212(a)(9)(C)(i)(I)

  • 2005: In Padilla-Caldera v. Gonzales, 426 F.3d 1294 amended on reh’g by 453 F.3d 1237 (10th Cir. 2006), the court considered the canons of statutory construction to reach the conclusion that 245(i) trumps 212(a)(9)(C)(i)(I).
  • 2006: Acosta v. Gonzales, 439 F.3d 1158(9th Cir. 2006), the court held that 245(i) trumps 212(a)(9)(C)(i)(I)
  • 2007: Matter of Briones, 24 I&N Dec. 355 (BIA 2007), BIA holds that an alien who was inadmissible under INA§ 212(a)(9)(C)(i)(I) is ineligible for adjustment of status under §245(i).
  • 2010: Matter of Diaz, 25 I&N Dec. 188 (BIA 2010): BIA refused to follow Acosta in the Ninth Circuit because the Acosta decision predated Matter of Briones.
  • 2011: Padilla-Caldera v. Holder, 673 F.3d 1140 (10th Cir. 2011). Tenth holds that that the BIA’s determination in Matter of Briones, was a reasonable interpretation of ambiguous statutory provisions to which the court owed Chevron deference.

Can Time Spent in the U.S. Count Toward Satisfying the 3 and 10 year Bars?

The 3 and 10 year bars are triggered exclusively by the alien s departure from the United States as confirmed by the Board of Immigration Appeals in Matter of Rodarte, 23 I&N Dec. 905, 909 (BIA 2006), the Administrative Appeals Office in In re Sallez-Vaz (AAO, Feb. 22, 2005), the USCIS Adjudicators Field Manual, and all other relevant legal authority.

The plain statutory language of INA § 212(a)(9)(B)(i) imposes no requirement whatsoever that the period of inadmissibility be “served” outside the United States.

The USCIS Office of General Counsel specifically confirmed in written correspondence in 2006 and 2009 that the Section 212(a)(9)(B) period of inadmissibility begins to run with the initial departure from the U.S. that triggers the unlawful presence bar and continues to run even if the alien is subsequently paroled or admitted as a nonimmigrant under 212(d)(3).

But, according to the GC opinions, the period of inadmissibility will not run for an alien who returns to the U.S. unlawfully or remains in the United States unlawfully, thus essentially imposing a maintenance of status requirement that is not included in the statute.

In In re Sallez-Vaz (AAO, Feb. 22, 2005), the alien departed the U.S. after 180+ days (but less than one year) of unlawful presence while his adjustment of status application was pending with USCIS,and returned soon thereafter with advance parole. His adjustment application was denied by USCIS and certified to the AAO, which issued a ruling more than 3 years after the departure that triggered the bar. The AAO held:

“The passage of time has created a new circumstance which renders the applicant free from any bar to inadmissibility based upon his unlawful presence…It is apparent, therefore, that the applicant’s period of inadmissibility has now expired and he is no longer subject to the bar.”

Notably, unlike the USCIS General Counsel opinions, the AAO did not impose any other conditions (such as maintenance of status) for having the period of inadmissibility “run” during the alien’s presence in the U.S.

INA § 212(a)(9)(B) is in direct contrast with §212(a)(9)(A) and § 212(a)(9)(C), which each have “Exception” subsections that specifically state that the respective statutes do not apply to certain aliens who seek admission if, prior to the date of their re-embarkation at a place outside the U.S. (or attempt to be admitted from a contiguous territory), the Attorney General has consented to their reapplying for admission.

Also, please see 8 C.F.R. 212.2(a), which specifically states that an alien who has been deported or removed is inadmissible unless he remains outside the U.S. for 5 consecutive years from the date of deportation or removal.

Basic rules of statutory construction dictate that Congress’ failure to include a similar requirement in 212(a)(9)(B)(i) was intentional. Accordingly, an alien who is readmitted to the U.S. as a nonimmigrant, but without first receiving 212(d)(3) permission, should still be able to satisfy the 3 or 10 year period from within the U.S. if he is otherwise eligible to adjust status.

How Permanent is the “Permanent” Bar?

  • 212(a)(9)(C)(ii) includes immediate waiver exception for a person with approved “VAWA” petition where there is “a connection” between the alien having been battered or subjected to extreme cruelty and his/her removal, departure from the U.S., reentry/reentries to U.S., or attempted reentry.
  • 212(a)(9)(C)(ii) also includes a waiver exception for persons seeking admission more than 10 years after the date of last departure from U.S. if, prior to re-embarkation from outside U.S., the Attorney General has consented to the alien’s reapplying for admission.
  • Persons subject to 212(a)(9)(C)(i)(I) (EWI or attempted EWI after more than one year of unlawful presence) may still apply for 212(d)(3) waiver in conjunction with application for nonimmigrant visa, but should be mindful of likelihood of strict application of 214(b).
  • Persons subject to the permanent bar may also apply for 212(d)(3)(5) humanitarian parole, but should be mindful that such applications are normally approved only in urgent humanitarian cases and/or those involving significant public interest. Also, DHS is likely to limit the length of the parole to the period required to address the situation at hand.
Posted in 10 and “Permanent” Bars, 212(d)(3) Non-immigrant Visa Waiver, 245(i), Unlawful Presence, Waivers, Waivers of Inadmissibility | Tagged , | Leave a comment

Illegal reentry, United States v. Gutierrez-Ceja, Motion to Withdraw 7th Circuit

Posted on April 4, 2013 by Mike Baker

The defendant pleaded guilty to being in the U.S. illegally after having been removed. The judge sentenced him to 84 months in prison. The statutory maximum prison sentence for illegal reentry is usually 2 years, 8 U.S.C. 1326(a), but removal after conviction for an aggravated felony (defendant had two such convictions) increases the maximum to 20 years. § 1326(b)(2). Defendant’s appellate attorney asked to be allowed to withdraw from the case on the ground that there is no colorable basis for appealing, but also stated that the district court imposed conditions beyond its authority. The Seventh Circuit modified the judgment of the district court to eliminate the post-release terms concerning the use of controlled substances, drug tests, and collection of a DNA sample, and otherwise dismissed the appeal, granting the lawyer’s motion to withdraw.

Final Opinion

United States Court of Appeals

For the Seventh Circuit

No. 12-1388

UNITED STATES OF AMERICA, Plaintiff-Appellee.

v.

SANTIAGO GUTIERREZ-CEJA, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 362—James B. Zagel, Judge.

SUBMITTED FEBRUARY 25, 2013—DECIDED MARCH 29, 2013

Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The defendant pleaded guilty to being in the United States illegally after having been removed. The judge sentenced him to 84 months in prison. The statutory maximum prison sentence for illegal reentry is usually 2 years, 8 U.S.C. § 1326(a), but removal after conviction for an aggravated felony (the defendant had two such convictions) jacks up the maximum to 20 years. § 1326(b)(2). The defendant has appealed, but his lawyer asks to be allowed to withdraw from the case on the ground that there is no colorable basis for appealing. Anders v. California, 386
U.S. 738 (1967).

The request is surprising because the lawyer’s brief states that “the written Judgment [the sentence] included terms that may have been outside the district court’s authority to impose.” Indeed it did. But the brief goes on to state that “it appears unlikely that [those terms] will ever be enforced. As such, they are, at most, merely harmless error. In the alternative, if they must not remain in the Judgment, they are the type of error that this Court may excise directly, without disturbing the rest of what is an otherwise reasonable sentence. Therefore, it would be frivolous to argue on direct appeal that [the] case must be remanded because of an unlawful sentence.”

The lawyer is wrong in saying that the terms in question “may” have exceeded the court’s authority and in describing them as “merely harmless errors.”

In imposing sentence the district judge said: “I’m not imposing supervised release[,] because [the defendant is] going to be deported after this occurs.” Yet the written judgment, under the heading “additional imprisonment terms,” states that upon release from prison “the defendant is to be surrendered to a duly authorized official of the Department of Homeland Security for a determination on the issue of deportability” and “if ordered deported, the defendant shall not reenter the United States without” authorization in advance. The judgment continues: “if not deported, the defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and random drug tests thereafter, conducted by the U.S. Probation Office, not to exceed 104 tests per year. The defendant shall, pursuant to 18 U.S.C. Section 3583(d), cooperate in the collection of a DNA sample.”

The DNA provision is an express condition of supervised release; so is submission to a drug test within 15 days of release; and so are the provisions in the sentence relating to use of a controlled substance. The conditions relating to deportation are independent of supervised release and not challenged. But section 3583(d) is the only possible ground for the other impositions (refraining from use of a controlled substance and submitting to a drug test within 15 days of release) and it requires an order of supervised release as a precondition to their imposition. As for submission to random drug tests at the discretion of the probation office, it is unclear whether section 3583(d) permits the judge in an order of supervised release to leave the number of drug tests up to that office. The statute requires the defendant, after his first drug test (the one he is required to take within 15 days after his release), to “submit to . . . at least 2 periodic drug tests thereafter (as determined by the court)”—not as determined by the probation service. Our opinion in United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) said that the court must determine the number, but in United States v. Tejeda, 476 F.3d 471, 4774 (7th Cir. 2007), we suggested that it might “not be error to grant the probation officer discretion to designate testing which is incidental to the program,” provided it was not unlimited discretion. We said that the condition of supervised release that the defendant “participate in a program of testing and residential or outpatient treatment for drug and alcohol abuse, as approved by his supervising probation officer,” “until such time as he is released from such program,” with no mention of the specific number of drug tests that could be required, granted the probation office too much discretion. Id. at 472-74.

But those were cases in which the judge had not mentioned a number at all; in this case he mentioned a maximum number per year. The case law indicates that specifying a maximum number of tests is enough to comply with the statute, United States v. Garcia, 522 F.3d 855, 861 (9th Cir. 2008); United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005) (en banc); United States v. Melendez-Santana, 353 F.3d 93, 103 (1st Cir. 2003), and so, as we have held, is specifying a maximum number of tests per year. United States v. Guy, 174 F.3d 859, 862 (7th Cir. 1999). For that’s really the same thing, since the overall maximum number is simply the maximum per year times the number of years of supervised release—unless supervised release is imposed for the remainder of the defendant’s life after his release from prison. In that event specifying the maximum number per year may not suffice, though we have found no cases addressing the issue. It is not an issue in this case because the maximum term of supervised release that could have been imposed on the defendant was three years. See 18 U.S.C. §§ 3559(a)(3), 3582(b). And even when lifetime supervised release is ordered, a rough estimate of the total number of tests to which the defendant is likely to be subjected can be derived from longevity tables.

Allowing the sentencing judge to specify a maximum number of tests rather than a specific number is sensible, because the judge won’t have as good an idea of the optimal frequency of the drug tests as the probation service will. The rub here is that there was no order of supervised release, and so there is no way to compute the total number of tests to which the defendant might be subjected. Maybe an annual estimate is good enough— again we have found no cases addressing the issue— but the issue is at least an arguable one.

The judge would have been entitled to impose all the conditions he imposed had he ordered supervised release, at least if he had specified the term of supervised release. But in his oral sentence he expressly declined to order supervised release and the written judgment does not mention supervised release. The oral sentence reflects the judge’s confident belief that the defendant would be deported (“removed” is the current legal term for “deported,” and we’ll use the current term in the balance of this opinion) as soon as he was released from prison. But the “additional imprisonment terms” in the written sentence are premised on the possibility that he won’t be removed promptly, or maybe ever. A lot can happen in seven years, including changes in immigration law, changes in the defendant’s situation (marital, health, etc.), changes in conditions in the country to which the defendant might be ordered removed, and changes in enforcement policy. In addition, orders of removal are frequently disobeyed unless the person ordered removed is a prisoner and upon completion of his prison term is taken directly from prison to the plane that will fly him out of the United States.

The suggestion by the defendant’s lawyer that the judge’s error in imposing terms in the sentence that are authorized only if the judge imposes supervised release is harmless must assume that if we remanded for resentencing, of course the judge would impose supervised release so that he could re-impose the additional terms that he thought appropriate. But maybe not, since at the sentencing hearing he seemed confident that the defendant would be removed immediately upon completion of his prison term, making supervised release otiose. Maybe the “additional imprisonment terms” in the written sentence are boilerplate included by accident. But all that matters is that we have no authority to order a reversal in order to give the judge an opportunity to impose a term of supervised release—an additional sentence—when the government has not filed a cross-appeal. Greenlaw v. United States, 554 U.S. 237 (2008).

But we can take the lawyer’s alternative suggestion and “excise” the post-release terms, thereby modifying the sentence, and affirm it as modified. United States v. Ramirez, 675 F.3d 634, 639 n. 1, 646 (7th Cir. 2011) (per curiam); United States v. McKnight, 665 F.3d 786, 795 (7th Cir. 2011); United States v. Munoz, 610 F.3d 989, 997 (7th Cir. 2010); United States v. Boyd, 608 F.3d 331, 335 (7th Cir. 2010); United States v. Godoy, 2013 WL 425334, at *5 (D.C. Cir. Feb. 5, 2013); cf. Overstreet v. El Paso Disposal, L.P., 625 F.3d 844, 857 (5th Cir. 2010). That gives the defendant all the relief he could possibly obtain in a fully briefed and argued appellate proceeding.

When in a criminal appeal the court of appeals notices a plain error, it can reverse even if the appellant had not drawn the error to the court’s attention, Greenlaw v.United States, supra, 554 U.S. at 247; Silber v. United States, 370 U.S. 717, 718 (1962) (per curiam); United States v. Hampton, 585 F.3d 1033, 1044-45 (7th Cir. 2009); United States v. Washington, 558 F.3d 716, 721 (7th Cir. 2009); United States v. Sealed Appellant 1, 591 F.3d 812, 819 (5th Cir. 2009); United States v. Gari, 572 F.3d 1352, 136061 (11th Cir. 2009), and the present case is less extreme. Although the Anders brief is wrong in calling the district judge’s error in imposing post-release terms harmless—it is a plain error—the brief does at least point out that it was error.

In all but the rarest cases, the proper sequel to a determination that an Anders brief has identified a reversible error is to set the case for full briefing on the merits, both to give the government a chance to respond and to give the defendant’s lawyer a chance to explore further other possible grounds for reversal. Penson v. Ohio, 488 U.S. 75, 81-83 (1988). What makes this case unique, so far as we’ve been able to determine, is that the error is so patent that there is no response that the government could make to it, and that the Anders brief, while wobbly with respect to the error of imposing post-release conditions in the absence of an order of supervised release, adequately demonstrates the absence of any possible ground of appeal other than the post-release conditions. United States v. Tabb, 125 F.3d 583, 584-85 (7th Cir. 1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). And the brief does identify their imposition as error, even while mistakenly characterizing the error as harmless.

In these circumstances we can achieve judicial economy with no sacrifice of anyone’s legal rights by modifying the judgment of the district court to eliminate the post-release terms concerning the use of controlled substances, drug tests, and collection of a DNA sample, granting the lawyer’s motion to withdraw, and, having corrected the judgment, dismissing the appeal.

SO ORDERED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Aggravated felony, illegal reentry, Motion to withdraw from the case | Tagged | Leave a comment

Jabr v. Holder, Past Persecution, 7th Circuit

Posted on April 4, 2013 by Mike Baker

For more than two years, members of the Palestinian Islamic Jihad (PIJ), an organization that violently opposes the existence of Israel, tried to recruit Jabr to join their group. Jabr resisted because he is a member of Fatah, a political party that, according to Jabr, is open to cooperation with Israel. PIJ members harassed him, beat him, and labeled him a traitor to their cause. After surviving a brutal attack in 2006, Jabr fled to the U.S. Within a year of arriving, Jabr sought asylum, withholding of removal, and relief under the Convention Against Torture. Jabr claimed that he feared returning to Palestine because the same individuals associated with the PIJ that hurt him before will attack him again. The immigration judge denied his application. The Board of Immigration Appeals affirmed. The Seventh Circuit granted review, finding that the IJ and BIA overlooked material evidence demonstrating that Jabr suffered past persecution on account of his political opinion.

Case # Caption Case Type Filed Document Author
12-2593 Feras Jabr v.
  Eric Holder, Jr. 		agency 04/02/2013 Final
 Opinion		 Williams
12-2593 Feras Jabr v. Eric Holder, Jr. agency 12/07/2012 oral argument

United States Court of Appeals

For the Seventh Circuit

No. 12-2593

FERAS ALI JABR, Petitioner,

v.

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

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals. No. A094 998 344

ARGUED DECEMBER 7, 2012—DECIDED APRIL 2, 2013

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. For over two years, members of the Palestinian Islamic Jihad (“PIJ”), an organization that violently opposes the existence of Israel, tried to recruit Petitioner Feras Ali Jabr to join their group. Jabr resisted their efforts because he is a member of Fatah, a political party that, at least according to Jabr, is more open to cooperation with Israel. Jabr’s resistance left the PIJ frustrated and so its members harassed him, beat him, and labeled him a traitor to their cause. After surviving a brutal attack at the hands of the PIJ in 2006, Jabr fled the West Bank and headed for the United States. Within a year of arriving in the United States, Jabr filed an application for asylum, withholding of removal, and relief under the Convention Against Torture. Jabr claimed that he feared returning to Palestine because the same individuals associated with the PIJ that hurt him before will attack him again. The immigration judge (“IJ”) denied his application, the Board of Immigration Appeals (“BIA” or the “Board”) affirmed the denial of relief, and Jabr petitioned this court for review. Because we find that the IJ and BIA overlooked material evidence demonstrating that Jabr suffered past persecution on account of his political opinion, we grant the petition for review and remand the case for further proceedings.

I. BACKGROUND

Petitioner Feras Ali Jabr, his wife, and two of his children are natives of Nablus, a city located in the West Bank. Before moving to the United States, Jabr worked in the maintenance department at Najah National University in Nablus. Unbeknownst to Jabr, the PIJ was using the university as a breeding ground for recruitment. The PIJ is an avowed terrorist organization that rejects any diplomatic efforts with Israel and has declared a mission to liberate Palestine through violence.1

1 The United States designated the PIJ a terrorist organization in 1997. See Holly Fletcher, Palestinian Islamic Jihad, Council on Foreign Relations (Apr. 10, 2008), http://www.cfr.org/israel/ palestinian-islamic-jihad/p15984 (last visited March 20, 2013).

Jabr is a member of Fatah, a party that supports a peaceful resolution with Israel and opposes the views of the PIJ.

Beginning in 2005, members of the PIJ began to target Jabr for recruitment. As a member of Fatah, Jabr refused to join their ranks because of their political beliefs. At first, the PIJ members called him a coward, a traitor, and an “Israeli agent” for refusing them, but they did not physically hurt him. Eventually, the PIJ’s violence escalated and over the course of the next two years, Jabr was harassed and threatened, gunshots were fired at his car, and at one point, he was beaten so severely that he was hospitalized for several days. Jabr fled to the United States soon thereafter, but that did not stop the PIJ’s harassment. Several of its members have frequently visited the home of Jabr’s mother in search of him. During one such visit, members of the PIJ slipped a letter under her door declaring that Jabr “will never escape the punishment of God and the anger of the people.” The letter further called “upon all of our people in the city of Nablus to reject and persecute this person.”

In January 2007, Jabr filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). His application was not granted and the government began removal proceedings against him. At the hearing before the IJ, both

Jabr and his mother (while on a visit to the United States) testified, and the IJ found their testimony credible and consistent. However, the IJ denied Jabr relief after concluding that he did not establish that he was persecuted on account of his political opinion, religion, or membership in a particular social group. In the IJ’s view, the record showed that the PIJ was only interested in recruiting as many members as possible. Jabr appealed the IJ’s decision to the BIA, and the Board dismissed his appeal. The Board agreed that, even assuming that Jabr had expressed a political opinion in support of Fatah, there was no evidence that the PIJ acted on the basis of that opinion when its members attacked him. This petition for review followed.

II. ANALYSIS

When, as here, the decision of the Board relies on the IJ’s decision, we review the IJ’s decision as supplemented by the Board’s own analysis. Juarez v. Holder, 599 F.3d 560, 564 (7th Cir. 2010). We must uphold the decision to deny Jabr relief if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008), and will reverse “only if the evidence presented by [Jabr] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

To qualify for asylum, an applicant must demonstrate that he is a “refugee,” meaning one “who is unable or unwilling to return to his country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To show that he was persecuted by the PIJ “on account of” his political opinion, membership in a particular social group, and/or religion as he claims, Jabr “must put forth direct or circumstantial evidence that the [PIJ] was motivated by these factors.” Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011); see id. (“But it is not necessary that the persecutor be motivated primarily on account of one of the grounds in the Act; an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act.”) (internal citation and quotation marks omitted). In certain cases, “the factual circumstances alone may constitute sufficient circumstantial evidence of a persecutor’s . . . motives.” Martinez-Buendia v. Holder, 616 F.3d 711, 715 (7th Cir. 2010) (citing Espinosa-Cortez v. Attorney General, 607 F.3d 101 (3d Cir. 2010) (quoting Canales-Vargas v. Gonzales, 441 F.3d 739, 744 (9th Cir. 2006)). This is one of those cases.

The issue here is whether Jabr sufficiently showed that the persecution he endured was on account of a statutorily protected ground. The IJ concluded that members of the PIJ were simply interested in recruiting Jabr and found nothing in the record to suggest that they beat him because of his political opinion or allegiance to the Fatah group. The Board similarly concluded that the men who attacked Jabr did not say anything that would indicate they beat him on account of either an express or imputed political opinion. However, significant evidence in the record contradicts this conclusion. Jabr testified that he repeatedly made it clear to the PIJ that he would not join the organization because he disagreed with its political and religious beliefs, and the IJ found him credible. Jabr also attached several documents to his application for asylum, including a personal statement, a statement from the secretary of the Fatah movement stating that Jabr is a member, and an ominous “Explanatory Statement” issued by the Islamic Jihad that was left under his mother’s door. The statement warns of “Rogue Sources of Discord” and reads as translated in the record:

We [c]onfirm that one’s behind the confusion in the region is a small fragmented deteriorating group, sold itself to an objective and private agenda, which is not concerned about the interest of any member of our people. We specify in this regard (Feras Ali Jabr), who is accused of being a source of disturbance to the National Security, especially in Nablus Region. He distorted the reputation [of] the Mujahideen (Resistance Fighters). He will never escape the punishment of God and the anger of the people in the short or long term. Therefore, he and his alike individuals involved with spreading rumors, whom known to us at the Intelligence and Preventive Units, has to take lessons of their alike predecessors through history. Indeed God is not unaware of their injustice and criminality. Neither [will] the people . . . forgive their sins when the time comes to try such suspects and traitors. We call upon all of our people in the city of Nablus to reject and persecute this person. Furthermore, we demand that his family be blockaded to avoid their harm to the region as a whole.

(And the wrongdoers will indeed know their future fate.)

Alquids Brigades, the military wing of the Islamic Jehad Movement

The Board found that Jabr’s claim that the PIJ attacked him because of his political opinion was mere “speculation” because there was “no direct or circumstantial evidence supporting this assertion.” But this letter shows otherwise. By specifically naming Jabr and his family, this letter creates an unmistakable inference that the PIJ explicitly targeted Jabr on account of his contrary political stance. He told its members he was politically opposed to the PIJ, they beat him, and then they vowed to seek revenge. The beating and sending the letter were not methods of recruitment, they were means of intimidation and punishment. As we explained in Martinez-Buendia, “[i]f political opposition is the reason an individual refuses to cooperate with a guerrilla group, and that individual is persecuted for his refusal to cooperate, logic dictates that the persecution is on account of the individual’s political opinion.” 616 F.3d at 718.

This case is factually distinguished from INS v. Elias-Zacarias, the seminal forced-recruitment case relied on by the IJ and the government. In Elias-Zacarias, the petitioner refused to join the Guatemalan guerrilla forces because he did not want to break the law and was afraid that the government would retaliate against him for joining. The Court held that the petitioner failed to establish that he had “a ‘well-founded fear’ that the guerrillas will persecute him because of [his] political opinion, rather than because of his refusal to fight with them.” 502 U.S. at 483 (emphasis omitted). But we have explained before that “Elias-Zacarias does not stand for the proposition that attempted recruitment by a guerrilla group will never constitute persecution on account of the asylum seeker’s political beliefs.” Martinez-Buendia, 616 F.3d at 716. Rather, we must “carefully consider the factual record of each case when determining whether the petitioner’s fear of future persecution due to his refusing recruitment attempts constitutes persecution on account of political beliefs.” Id.

The record in this case shows that the PIJ’s harassment of Jabr was not simply to increase its numbers. Members of the Islamic Jihad clearly considered Jabr’s Fatah affiliation to be in direct political opposition to theirs, warning that he would learn the “lessons of . . . alike predecessors through history,” as his traitorous “sins” could not be forgiven. The text of the PIJ’s letter, in conjunction with the harassment and beating that preceded it, provides the required link between his political beliefs and the motives of his attackers, and so we conclude that the circumstances of this case are closer to Martinez-Buendia than Elias-Zacarias. The petitioner in Martinez-Buendia claimed that members of the Revolutionary Armed Forces of Columbia (“FARC”) persecuted her on account of her anti-FARC political affiliation. Members of the FARC harassed her for years, kidnapped her sister, and held a gun to her head. The IJ in that case found the petitioner completely credible, but like here, denied relief on the ground that she had not established past persecution on account of her political affiliation. We reversed, concluding that “[u]nlike the record in Elias-Zacarias, the specific facts of this case make it clear that Martinez-Buendia politically opposed the FARC and that her political beliefs were the reason for her refusal to cooperate with the FARC.” 616 F.3d at 716. We noted that “[w]hile it may be unclear whether the FARC initially targeted her to overcome her political stance, the later persecution came as a result of her refusal to cooperate with the FARC to advance their political agenda.” Id. at 717 (emphasis added). The same reasoning applies here. We do not know why members of the PIJ initially targeted Jabr. But whatever their initial reason, we know that they eventually came to consider him a traitor and “source of disturbance to the National Security” after he resisted their efforts and revealed himself as a member of Fatah.

Like Martinez-Buendia, Jabr did not refuse to cooperate with the PIJ because joining them was against the law, see Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005), or because he was afraid of retaliation by the government, see Elias-Zacarias, 502 U.S. at 480. He refused because he was politically opposed to the PIJ, and he directly communicated that disagreement to them. See Martinez-Buendia, 616 F.3d at 718. The fact that Jabr did not hold a “notable” political position of leadership within the Fatah movement—an assertion put forth by the IJ—is of no moment. We have never held that a petitioner must occupy a leadership position within his political or social group in order to receive asylum protection. All the petitioner needs to show is that his persecutor’s conduct was on account of an express or imputed political opinion, which Jabr has clearly demonstrated here.2

III. CONCLUSION

For the foregoing reasons, we GRANT the petition for review, VACATE the order of removal, and REMAND for further proceedings consistent with this opinion.

2 Jabr also challenges the Board’s failure to mention why he did not qualify for asylum on account of his religion. Jabr describes himself as a “moderate Muslim” and claims that he told members of the PIJ that he did not agree with their “extreme Islamic beliefs.” Because we conclude that Jabr has shown that he was persecuted on account of his political opinion and has a legitimate fear of future persecution, we need not reach the question of whether he also qualifies for asylum on account of his religion.

4-2-13

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Convention Against Torture, material evidence, Palestinian Islamic Jihad (PIJ), past persecution, political asylum, withholding of removal | Leave a comment