Cancellation of Removal/Break in Continuous Physical Presence Based on Execution of Form I-826 and Voluntary Return

Posted on July 24, 2011 by Mike Baker

In Reyes-Sanchez v. Holder, 2011 WL 2725813 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Mexico whose application for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)], applicable to nonlawful permanent resident aliens, was denied by the IJ and the BIA. The circuit court agreed with the government that the petitioner’s apprehension by the U.S. Border Patrol and her formalized agreement to return to her native Mexico rather than to opt for an immigration court hearing interrupted her statutorily required 10-year period of continuous physical presence, thus rendering her ineligible to qualify for cancellation relief. The Seventh Circuit affirmed the agency’s determination that petitioner was ineligible for Cancellation of Removal because her voluntary return (Form I-826) after a brief visit to Mexico was under threat of prosecution and thus was sufficient to break her continuous presence in the United States.

The petitioner entered the U.S. without inspection in 1987. She subsequently married and raised three children in the U.S. She returned briefly to Mexico in 2001 and reentered the U.S. in August 2001 without being admitted or paroled. Upon her apprehension by the Border Patrol and placement into custody, she executed the Spanish version of Form I-826, Notice of Rights and Request for Disposition. It offered her three options: (1) hearing before IJ, (2) asylum hearing, or (3) acknowledgement of unlawful presence and agreement to return to native country as soon as arrangements can be made for departure. The petitioner chose the third option and was immediately returned to Mexico. In May 2003, she was apprehended in the U.S. by Immigration and Customs Enforcement (ICE) agents who were looking for her nephew, and she was placed into removal proceedings, charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] with being present in the U.S. without having been admitted or paroled.

Before the IJ, her counsel conceded the petitioner’s removability and opted not to ask for cancellation due to the break in residence. The IJ refused to grant a continuance pending the results of the petitioner’s legalization application but granted voluntary departure (VD) relief. While her case was pending before the BIA, the Eighth Circuit issued a decision, Ortiz-Cornejo v. Gonzales, 400 F.3d 610 (8th Cir. 2005), which held that merely being turned back at the border without any threat of deportation does not constitute a break in continuous physical presence for purposes of cancellation relief. Consequently, the Board returned Reyes-Sanchez’s case to the IJ for fact finding on the “break” issue. The IJ then proceeded to hold that the petitioner’s return to Mexico pursuant to the I-826 process was a response to a threat of removal and therefore broke her continuous U.S. presence. The BIA affirmed this result and did not extend her VD as she failed to post the required bond. In upholding the Board’s decision, it deferred to its precedent decision in Matter of Romalez-Alcaide, 23 I. & N. Dec. 423 (B.I.A. 2002) (en banc), which held that, in addition to the departures exceeding the specified durations under the statute, a departure under a threat of deportation also constitutes a break in the accrual of continuous physical presence for cancellation purposes. The Board characterized acceptance of voluntary departure under the prior regime as a “plea bargain” and remarked that this type of enforced departure should create no legitimate expectation by either of the parties that an alien could illegally reenter the U.S. and resume a period of continuous physical presence.

The court contrasted the situation where an alien is merely just turned around at the border without any particular process, noting that in its prior decision, Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), it deemed this type of return not to break the continuous presence as it could not be equated with a formal voluntary departure or departure under an order of removal or deportation. The court also cited to Matter of Avilez-Nava, 23 I. & N. Dec. 799 (B.I.A. 2005) (en banc), which recognized that a mere refusal to admit an alien at the border does not constitute a break in continuous physical presence as this does not involve a formal documented process pursuant to which the alien was determined to be inadmissible to the U.S. In that case, the Board outlined what might constitute a formal process, keying in on production of official forms and processes accompanying return of the alien to his or her native country.

The court outlined the process involved in Reyes’s case and deemed it to be sufficiently formalized. It considered that Reyes’s use of a fictitious name to sign the Form I-826 suggested that she understood the form did indeed carry legal consequences. The court rejected the counterarguments advanced by the petitioner, including that the use of the phrase “voluntary return” on the form was not the equivalent of “voluntary departure.” It pointed out that the use of different words in this context is not central to the law as interpreted by the Board in Romalez, supra, and that this understanding has been endorsed by every circuit court to consider this issue. The court noted that, at oral argument, petitioner’s counsel argued that the form was insufficient because it did not go the extra step of informing Ms. Reyes that she might have been eligible for cancellation of removal based on her 10 years of continuous residence from 1987 to 2001 but would have to request a hearing. In rejecting this argument, the court remarked that, given the myriad of circumstances that those apprehended at the border face, the brevity of Form I-826 may well have been preferable to providing each detainee a denser explanation of the relevant law. The court was satisfied that the BIA and IJ correctly determined that the petitioner’s continuous physical presence in the U.S. was interrupted when she chose to return to Mexico in a formal documented process while facing the threat of removal.

Posted in BIA, Board of Immigration Appeals | Leave a comment

BIA Addresses Whistleblowing as a Basis for Asylum: Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

Posted on July 23, 2011 by Mike Baker

The BIA found that retaliation for opposition to state corruption may form the basis for a claim based on political opinion if, post-REAL ID, the actual or imputed anti-corruption belief was one central reason for the harm. Matter of N-M-, 25 I&N Dec. 526 (BIA 2011)

Matter of N-M-, which arose within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit, involved a Colombian woman who had worked in a state-run agency where she was pressured to falsify information and hire contractors outside of the official hiring process.  When she refused to do so and voiced concerns about the corruption, she was transferred to a different position and threatened.  The immigration judge granted the woman asylum, the Department of Homeland Security appealed, and the BIA sustained the appeal and remanded the case for further fact finding.

In its decision, the BIA noted that in some circumstances, opposition to state corruption may demonstrate the respondent’s political opinion or give a persecutor reason to impute such political opinion” to the respondent, particularly where the opposition involved participating in “classic political activities” or exposing the corruption to other authorities.  Id. at 528.  However, when determining whether the respondent was persecuted on account of that actual or imputed political opinion, the BIA held that the respondent must provide some direct or circumstantial evidence that the persecutor targeted the respondent because of her political beliefs. Id.  Moreover, for cases arising under the REAL ID Act of 2005, the respondent must demonstrate that her actual or imputed political opinion was ‘one central reason’ for the persecution.  Id. at 532.  As a result, evidence simply showing the respondent was harmed in retaliation for exposing corruption linked to a political system is insufficient to prove that the respondent’s anti-corruption beliefs were ‘one central reason’ for her persecution. Id.

Finally, the BIA provided three factors that an adjudication “may find useful” when examining an asylum claim based on opposition to state corruption.  First, the adjudicator ‘may consider whether and to what extent the alien engaged in activities that could be perceived as expressions of anti-corruption beliefs.  Id. Second, the adjudicator should consider any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anti-corruption beliefs.  Id.  Finally, the adjudicator should consider ‘evidence regarding the pervasiveness of governmental corruption’s and ‘whether there are direct ties between the corrupt elements and higher level officials.  Id. at 533.  On the third point, the BIA noted that where a respondent threatens to expose corruption by rogue officials acting without the support of the government, “it seems less likely that the act would be perceived as politically motivated or threatening.”  Id.  Similarly, whether the government itself, and not just the corrupt individuals, retaliates against the respondent is relevant to this issue.  Id.

The U.S. Court of Appeals for the Seventh Circuit has issued several decisions regarding corruption or whistle-blower’s-based asylum claims. See e.g., Musabelliu v. Gonzalez, 442 F.3d 991 (7th Cir. 2006). The BIA’s discussion of Elias-Zacarias, 502 U.S. 478 (1992), in N-M- seems inconsistent with recent Seventh Circuit’s decisions regarding political opinion-based asylum claims.  Compare N-M- at 529 (asserting that the majority [in Elias-Zacarias] did not adopt the dissent’s argument that an inquiry into the individual persecutor’s motivation is unnecessary so long as an alien demonstrates that the persecution occurred in response to an act manifesting a political opinion) (internal citations omitted) with Martinez-Buendia v. Holder, 616 F.3d 711, 718 (7th Cir. 2010) (stating, “if 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.”).

Posted in BIA, Board of Immigration Appeals, whistleblower | Leave a comment

BIA Finds Driving with Wanton or Willful Disregard for Lives or Property to Elude Police is a CIMT

Posted on July 22, 2011 by Mike Baker

The BIA held in Matter of Ruiz-Lopez, 25 I.&N. Dec. 551 (B.I.A. June 3, 2011) that (1) the offense of driving a vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024 is a crime involving moral turpitude (CIMT) and (2) the maximum sentence possible for an offense, rather than the standard range of sentencing under a state’s sentencing guidelines, determines an alien’s eligibility for the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) [8 USCA § 1182(a)(2)(A)(ii)(II)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. without having been admitted or paroled. On December 29, 1997, he was convicted of attempting to elude a pursuing police vehicle in violation of Wash. Rev. Code § 46.61.024, for which he was sentenced to 40 days confinement. Subsequently, the Department of Homeland Security (DHS) charged that the respondent was inadmissible because he was convicted of a CIMT and was present in the U.S. without having been admitted or paroled. The immigration judge (IJ) sustained both charges. In addition, the IJ determined that the respondent’s conviction rendered him statutorily ineligible for cancellation of removal under INA § 240A(b) [8 USCA § 1229b(b)] (2006). The IJ ordered him removed from the U.S. and the respondent appealed to the BIA, contending that his conviction was not for a CIMT and that, even if it was, the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) applies so that he remains eligible for cancellation of removal.

At the time of the respondent’s conviction, Wash. Rev. Code § 46.61.024 provided, in pertinent part, that:

“Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.”

The respondent contended that his conviction was not for a CIMT because (1) pursuant to the holding in Matter of Khourn, 21 I. & N. Dec. 1041, 1046 (B.I.A. 1997), an evil intent is required for a finding of moral turpitude and although “a wanton or wilful disregard for the lives or property of others” must be established for a conviction under the Washington statute, no showing of evil intent is necessary; (2) although his attempt to elude a police officer was a willful act, it was not committed with the evil intent generally associated with other crimes found to involve moral turpitude, such as the offense of aggravated fleeing discussed in Mei v. Ashcroft, 393 F.3d 737 (7th Cir. 2004); and (3) “wanton disregard” equates to recklessness, which, under Matter of Fualaau, 21 I. & N. Dec. 475 (B.I.A. 1996), must be coupled with the infliction of serious bodily injury for a finding of moral turpitude, and under Wash. Rev. Code § 46.61.024 a person may be convicted based on a showing of wanton disregard for only property, without any serious bodily harm, and further, under the Board’s decisions in Matter of M-, 2 I. & N. Dec. 686 (C.O., B.I.A. 1946) (involving damage to railway telegraph property), and Matter of B-, 2 I. & N. Dec. 867 (C.O., B.I.A. 1947) (involving willful damage to mail boxes and other property), such reckless harm to property has not been considered to be morally turpitudinous. Therefore, he contended, the offense of attempting to elude a pursuing police vehicle under the Washington statute is not categorically a CIMT.

The Board, in an opinion written by Board Member Linda S. Wendtland for the panel which included Board Members Lauri S. Filppu and Roger Pauley, rejected each of these contentions. The Board noted that judicial and administrative precedents have recognized that “reckless disregard” can constitute the requisite “evil intent” for a CIMT under at least some circumstances. In rejecting the respondent’s reliance on Matter of Fualaau for the proposition that in order to involve moral turpitude, an offense with a mens rea of recklessness must be coupled with the infliction of serious bodily injury, the Board pointed out that (1) in Matter of Medina, 15 I. & N. Dec. 611, 613-14 (B.I.A. 1976), [FN6] aff’d sub nom. Medina-Luna v. INS, 547 F.2d 1171 (7th Cir. 1977) which involved aggravated assault, it concluded that moral turpitude inhered in criminally reckless conduct with the use of a deadly weapon as an aggravating factor, but with no serious bodily injury, and (2) whenever it has held that a “recklessness” mens rea requires either serious bodily injury or some other aggravating factor to establish moral turpitude, it has been in the specific context of assault offenses. Since the respondent’s offense did not involve assault, the Board found his argument in this regard unpersuasive. Moreover, the Board pointed out that, as a general rule, “the seriousness of a criminal offense . . . is [not] determinative of whether a crime involves moral turpitude,” Matter of Sejas, 24 I. & N. Dec. 236, 237 (B.I.A. 2007).

Turning to the offense for which the respondent was convicted, the Board explained that three elements are required to support a conviction of attempting to elude a pursing police officer under Wash. Rev. Code § 46.61.024: (1) a uniformed police officer whose vehicle is appropriately marked must give the driver of a motor vehicle a visual or audible signal to bring the vehicle to a stop; (2) the driver must willfully fail or refuse to immediately bring his vehicle to a stop; and (3) while attempting to elude a pursuing police vehicle, the driver must drive his or her vehicle in a manner indicating a wanton or willful disregard for the lives or property of others. The Board noted that, in construing this last element, the Supreme Court of Washington has stated that “[t]he statute is absolutely clear that at the very least the manner in which one drives must indicate wanton and willful disregard” and concluded that this “crime of felony flight” “[o]bviously … does contain culpable mental elements.” State v. Sherman, 653 P.2d 612, 615-16 (Wash. 1982) (en banc). Moreover, Washington courts have found that the usual meaning of “willful,” “wanton,” or “reckless” is that the actor “has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences, State v. Brown, 697 P.2d 583, 586 (Wash. Ct. App. 1985) (quoting W. Prosser & W. Keeton, Torts § 34, at 213 (5th ed. 1984)) (emphasis added).

The Board also pointed out that the U.S. Court of Appeals for the Seventh Circuit, in Mei v. Ashcroft, held that the Illinois offense of aggravated fleeing from a police officer–which involved the willful failure to obey a police officer’s order to stop, with the aggravating circumstance that the offender was driving at 21 or more miles per hour above the speed limit–is a CIMT. The court stated that “a person who deliberately flees at a high speed from an officer who, the fleer knows, wants him to stop, thus deliberately flouting lawful authority and endangering the officer, other drivers, passengers, and pedestrians, is deliberately engaged in seriously wrongful behavior.” Mei v. Ashcroft, 393 F.3d at 742. The Seventh Circuit pointed out that, while the driver may not want to endanger anyone, he has to know that he is greatly increasing the risk of an accident as a consequence of his deliberate and improper decision to ignore a lawful order of the police. Id. The Board noted further that, while Mei v. Ashcroft did not involve an offense containing an element of willful disregard for lives or property, the Seventh Circuit cited to a case that did: People v. Dewey, 49 Cal. Rptr. 2d 537, 541 (Cal. Ct. App. 1996), which held that California’s felony offense of fleeing or attempting to elude a pursuing peace officer by driving in willful or wanton disregard for the safety of persons or property was a CIMT and which specifically rejected the contention that the offense could not involve moral turpitude because an individual eluding a police officer might only be acting with the requisite disregard for the safety of property.

The Board found little distinction between the respondent’s offense and those considered in Mei v. Ashcroft and People v. Dewey as the respondent’s conduct was similar to that involved in those cases in that he willfully failed or refused to immediately bring his vehicle to a stop after a uniformed police officer in an appropriately marked vehicle gave him a signal to stop his motor vehicle and, while attempting to elude the pursuing police vehicle, drove his vehicle in a manner indicating a wanton and/or willful disregard for the risk of injury to another person or to property. Assuming arguendo that there is a “realistic probability” of prosecution under the Washington statute where the offense of attempting to elude a pursuing police vehicle was committed with a reckless disregard for only property, the Board found that moral turpitude necessarily inheres in such a crime given the combination of circumstances involved. The Board concluded that when a person deliberately flouts lawful authority and recklessly endangers the officer, other drivers, passengers, pedestrians, or property, he or she is “engaged in seriously wrongful behavior” that violates the accepted rules of morality and the duties owed to society. Thus the respondent’s conviction was for a CIMT.

The Board also found that the respondent was not eligible for the “petty offense” exception under INA § 212(a)(2)(A)(ii)(II) because the maximum penalty for the crime of which he was convicted is five years of imprisonment. The Board rejected the respondent’s assertion that he was eligible for this exception because the standard range of sentencing for his offense was from 0 to 60 days under the State of Washington’s Sentencing Guidelines, noting that the presumptive sentence is not the maximum sentence possible and that, although the respondent was only sentenced to a term of imprisonment of 40 days, the judgment and sentence stated that the maximum term of imprisonment for the crime to which he pled guilty was five years. Accordingly, the Board held that, because the respondent’s conviction for a CIMT does not come within the “petty offense” exception, he was convicted of an offense described under INA § 212(a)(2) and is therefore ineligible for cancellation of removal under INA § 240A(b)(1)(C). Accordingly, the appeal was dismissed.

As a side note, the BIA provided a paragraph detailing the proper analysis to use to determine whether a crime involves moral turpitude under Matter of Silva-Treviño, 24 I&N Dec. 687, 688-89 (A.G. 2008). 
The BIA explained,

“Pursuant to Matter of Silva-Trevino, the first stage of the analysis employs a categorical approach, under which the criminal statute at issue is examined to ascertain whether moral turpitude is intrinsic to all offenses that have a ‘realistic probability’ of being prosecuted under that statute. If the issue cannot be resolved under the categorical approach, the second stage involves a modified categorical inquiry, which requires inspection of specific documents comprising the alien’s record of conviction to discern the nature of the underlying conviction. Finally, if the record of conviction is inconclusive, the Attorney General has held that because moral turpitude is not an element of an offense, evidence beyond the record of conviction may be considered when evaluating whether an alien’s crime involved moral turpitude.”

Matter of Ruiz-Lopez, 25 I&N Dec. at 553. Silva-Treviño, the BIA suggests, requires a linear analysis: only use step two (the modified categorical approach) if step one does not answer the question; only use step three (the anything-goes prong) if step two does not answer the question. 

Posted in BIA, Board of Immigration Appeals, CIMT | Leave a comment

Withholding of Removal, Macedonia Stanojkova v. Holder (7th Cir. 2011)

Posted on July 22, 2011 by Mike Baker

No. 10-3327 Decision Date: July 14, 2011 Petition granted

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-3327_002.pdf (PDF)

Record failed to support Bd.’s denial of application for withholding of removal by aliens (native of Macedonia) alleging that they were persecuted by members of paramilitary police in native country because of their sympathetic views of Albanian minority within native country. While Bd. believed that aliens’ 10-minute confrontation with paramilitary police was insufficient to establish persecution claim, evidence was sufficient where: (1) alien claimed that police entered his home, rendered his parents unconscious, held gun to his head, and sexually assaulted his pregnant wife while accusing him of being against Macedonia; and (2) actual police were unwilling to arrest assailants. On remand, though, Bd. may consider improved conditions in Macedonia when evaluating alien’s claim.

In Stanojkova v. Holder, 2011 WL 2725850 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review filed by a Macedonian couple who claimed that they were victimized by rogue police officers, called “Lions,” on account of the male petitioner’s refusal to report for duty with the Macedonia army due to his disapproval with his country’s suppression of the Albanian minority. In remanding the matter back to the BIA to reassess whether the petitioners qualified for withholding of removal, the court took issue with the IJ’s and the Board’s prior determination that the mistreatment that they suffered, including a sexual assault of the wife-petitioner, constituted mere harassment as opposed to persecution. The court also pointed out that changed country conditions and the risk of future persecution were not addressed by the IJ or the Board in their prior deliberations, so those issues remained for consideration on remand.

Judge Richard Posner, writing for the court’s three-judge panel, started his opinion by providing the historical context and demographics, noting that Macedonia emerged as a country after the breakup of Yugoslavia and is mostly Slavic with about a quarter of the population being of Albanian ethnicity. He observed that Albanian extremists began an insurrection in January 2001, but it “petered out” after the “Ohrid Framework Agreement” was negotiated in August 2001 to grant greater rights to the Albanian minority. During that time period, the male petitioner declined to report for military duty. Consequently, in 2002 three armed and masked men broke into the petitioners’ home. They rendered the male petitioner’s parents unconscious with a chemical spray and then proceeded to menace the male petitioner with a gun to his head, accusing him of being a “betrayer of Macedonians” for not participating in the war (against the Albanian minority). One of the assailants sexually assaulted his wife, who was pregnant at the time, and when the husband intervened, he was beaten on his head and back with a gun. The attackers left because of the wife’s loud screams, and no actual rape occurred. Upon reporting this incident to the police, the petitioners were informed that the assailants were “Lions,” i.e., paramilitary police officers, with an implication that “ordinary” officers would not be able to afford protection. Consequently, the petitioners left their country.

They eventually came to the U.S. but without visas. In removal proceedings, they asked for asylum and related relief, but the IJ denied any relief, and the BIA, in a single-member decision, perfunctorily affirmed the IJ’s removal order. As explained by Judge Posner, the petitioners missed the one-year filing deadline to be considered for asylum but remained eligible for withholding of removal (under INA § 241(b)(3) [8 USCA § 1231(b)(3)]. They did not press a CAT claim before the court. He further explained that to obtain withholding requires a demonstration that the applicant will more likely than not be subjected to persecution if removed from the U.S. and that a finding of past persecution creates a rebuttable presumption of future persecution pursuant to 8 CFR § 1208.16(b)(1)(i). He pointed out that the IJ, seconded by the BIA, ruled that the presumption was inapplicable because of their conclusion that the petitioners had not been persecuted.

Judge Posner described the IJ’s decision as “garbled” on the issue of political motivation and criticized the IJ’s statement that there was no evidence of human rights abuses by the Macedonian army in 2001 as ignoring the State Department’s Country Report. He noted that the Board member found that the petitioners were credible but reasoned that the harm that they suffered during the home invasion did not rise to the level of persecution. He observed that neither the Board member nor the IJ made any effort to specify the amount of harm required to rise to the level of persecution and intimated that the court could not find a useful definition of persecution by the Board or the courts, although the importance of distinguishing between harassment and persecution has been noted. He remarked that “in terms of outcome the cases are all over the lot” and cited to an article by Jaya Ramji-Nogales et al., “Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform” (2009), documenting this phenomenon. He referred to the Board’s attempted definition of persecution in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), as “harm or suffering that is inflicted upon an individual for possessing a belief or characteristic a persecutor seeks to overcome.” However, he described this definition as “vacuous with regard to the minimum amount of harm required.” He lamented the fact that “responsibility on this point of law has, by default, devolved on the courts, yet only provisionally – only until the Board assumes the responsibility – to try to create some minimum coherence in the adjudication of claims of persecution, as [the Seventh Circuit has] tried to do in the [instant]opinion.” He suggested that, in light of the current situation in Macedonia, there may well be less than a 50% probability that the petitioners would be persecuted if returned to Macedonia, which is the ultimate issue in a withholding case, but that this was a matter to be addressed by the Board or the IJ on remand.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, withholding of removal | Leave a comment

ABRAHAM v. HOLDER, Seventh Circuit: Asylum/withholding of removal/lack of jurisdiction

Posted on June 17, 2011 by Mike Baker

ABRAHAM v. HOLDER-No. 10–2256. — June 1, 2011

Download Original From the court

Petitioner, a native of Syria, entered the U.S. on a fiance visa, but did not marry within 90 days. More than a year after her visa expired, she conceded removability and sought asylum as a Christian, subject to persecution in a Muslim country. The immigration judge denied the petition as untimely and found that she did not establish a clear probability that she would be persecuted; the BIA dismissed an appeal. The Seventh Circuit dismissed for lack of jurisdiction. An alien must apply for asylum within one year of arrival unless the alien demonstrates to the satisfaction of the Attorney General either changed circumstances which materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing, 8 U.S.C. 1158(a); courts have no jurisdiction to review the Attorney General’s determination. The denial of the petition to withhold removal was supported by substantial evidence.

“Almas Abraham petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) denying her application for asylum and withholding of removal. Because we lack jurisdiction to review the Board’s denial of her application for asylum in the circumstances presented here, we dismiss her petition with respect to asylum. We deny her petition with respect to her application for withholding of removal.

I.

Abraham is a native and citizen of Syria. She is also a Christian in a country where the vast majority of citizens are Muslims.2 Abraham entered the United States on May 17, 2004, at Chicago, with a K–1 nonimmigrant visa, which is also known as a “fiancé visa.” A fiancé visa permits a foreign citizen fiancé of a U.S. citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival. See 8 U.S.C. 1101(a)(15)(K)(i). Abraham did not marry her citizen sponsor within ninety days. She also failed to depart from the United States at the end of the ninety-day period. After overstaying her visa for more than a year, she filed an application for asylum on November 5, 2005.3 Abraham was served with a Notice to Appear charging that she was removable from the United States because she had remained longer than was permitted. She conceded that she was removable, and her application for asylum and withholding of removal proceeded to a full hearing before an Immigration Judge (“IJ”).

Abraham’s testimony before the IJ was riddled with inconsistencies. She testified, for example, that she lived with her parents until she moved to Damascus, but she also testified that she spent a month living with Al–Deri’s family after her family forced her to move out and before she moved to Damascus. She said that she began her relationship with Al–Deri in 2002 and that it went on for six or seven months before ending in June 2003. She later testified that the relationship began in 2001 and ended in August 2002. She told the IJ that she moved to Damascus in 2003 and became engaged to Dawood in April 2003, a time line that overlaps with her testimony that she broke off her relationship with Al–Deri in June 2003. She testified that she knew Dawood for only one week before becoming engaged to him and traveling to the United States, but she came to the United States in 2004, approximately one year after she claimed the engagement occurred. She testified that she lived with Dawood’s aunt and his first cousin’s family in Damascus and that the aunt introduced her to Dawood. But she also said that she lived in a church building that served as a refuge for people from Iraq, and that Dawood’s aunt was the only member of his family living in the church. She testified that, except for the letter from her uncle, she had no contact with any members of her family after moving to Damascus, but she also submitted to the IJ a photocopy of a permanent resident card for one of her brothers who was living in the United States. And after telling the IJ she had no contact with her family after leaving for Damascus, she also told the IJ that “of course” her parents knew she was coming to the United States in 2004 because she had to gather all of her documents and papers in order to file the forms to come to the United States. She testified alternately that her family first learned of her relationship with Al–Deri in 2002 and in 2003.

She testified consistently that after moving to Damascus, she suffered no more abuse from her family or Al–Deri. She conceded that she never reported any abuse from her family or from Al–Deri to the police because she did not want anyone to know what had happened and because the police do not help in these cases. The Human Rights Report confirms that the police are rarely contacted and are not helpful when a report of domestic violence is lodged.5

When asked what would happen if she returned to Syria, Abraham testified, “Either they would shun me and because I wouldn’t have any life to live there, I probably might kill myself.” R. at 129. She also testified that she feared harm from her family if she returned to Syria. Abraham also presented testimony from a cousin residing in the United States to corroborate her concern that her family might harm her if she returned to Syria. Her cousin testified that he believed Abraham would be the victim of an honor killing if she returned to Syria. He noted that he had a friend who served only three days in jail for killing his sister after she dishonored the family. The Human Rights Report also confirms that, until very recently, judges were allowed to waive or reduce punishment for perpetrators of honor killings. The law now stipulates a mandatory two-year minimum sentence for anyone convicted in an honor killing, but at the time Abraham left, a family member who killed her was unlikely to face significant legal sanctions. See Human Rights Report.

The IJ found that Abraham’s asylum application was not timely filed and that she did not meet any of the exceptions for extending the time to file. The IJ concluded that Abraham did not meet the standards to qualify for withholding of removal or for relief under the Convention Against Torture, and therefore denied her application in its entirety. The IJ first noted that Abraham had failed to file her application for asylum within one year of arriving in the United States. Under 8 U.S.C. § 1158(a)(2)(B), a claim for asylum not filed within a year of arrival in the United States will be denied unless it meets one of the exceptions contained in the statute. The IJ rejected Abraham’s argument that the letter from her uncle satisfied the only applicable exception for changed circumstances. See 8 U.S.C. § 1158(a)(2)(D) (permitting consideration of a late-filed application for asylum “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year] period”). The IJ found that the letter did not meet the materiality requirement of the statute because the letter only repeated a threat to Abraham’s safety that existed when she left Syria. Because those same circumstances existed when Abraham first arrived in the United States, the IJ found that she should be held to the one-year limit for filing claims for asylum. The IJ also noted that Abraham provided no information regarding the timing of her breakup with Dawood and thus it was impossible to determine whether she filed within a reasonable time after her nonimmigrant status expired. The IJ therefore denied the application for asylum as untimely.

The IJ then considered whether Abraham was eligible to be considered for withholding of removal. In order to qualify for withholding of removal, an applicant must demonstrate a clear probability that she will suffer persecution on account of race, religion, nationality, membership in a particular social group, or political opinion if she returns to her country of origin. See 8 U.S.C. § 1231(b)(3)(A). The IJ found that Abraham failed to demonstrate a “clear probability” that she would be persecuted on her return to Syria because her testimony was not credible, not persuasive, and not detailed enough to meet the standard of proof required. The IJ noted the multiple inconsistencies in Abraham’s testimony and found that, absent corroboration, Abraham had not shown that it was more likely than not that she would be persecuted. The IJ also found that Abraham had failed to establish that she had been persecuted in the past on account of one of the protected grounds in the statute. Again finding that Abraham’s testimony was not credible, the IJ also noted that the incidents of abuse she described were not severe, caused no injuries and required no medical treatment. Moreover, the IJ found that Abraham’s stated intent to return to Syria even though these incidents occurred undermined her claim that she had been persecuted in Syria. The IJ also noted that Abraham was able to live in Damascus for some period of time without any further abuse from either her family or Al–Deri. The IJ therefore concluded that Abraham would not be seriously harmed if she returned to Syria. Finally, the IJ concluded that Abraham had also failed to establish that any abuse she suffered was due to one of the protected grounds in the statute.

Abraham appealed to the BIA. The BIA first agreed with the IJ that Abraham’s claim for asylum was statutorily barred because it was untimely. The BIA then considered Abraham’s claim for withholding of removal and concluded that she failed to present sufficient corroborating evidence of critical elements of her claim. After noting that Abraham could have obtained corroboration from her brother living in the United States, the people with whom she lived in Damascus, her uncle, or anyone else who knew her in Syria, the BIA adopted and affirmed the IJ’s denial of relief. Abraham’s appeal was therefore dismissed.

II.

On appeal here, Abraham argues that the IJ and the BIA applied an incorrect legal standard to her application for asylum. She also asserts that the BIA’s decision is not supported by substantial evidence. Finally, she contends that we should reverse the decision denying her withholding of removal because the IJ and BIA ignored corroborating evidence that she provided and failed to forewarn her that they required additional corroborating evidence.

A.

Section 1158(a)(2) provides that an alien must apply for asylum within one year of the date of the alien’s arrival in the United States unless “the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified[.]” 8 U.S.C. § 1158(a)(2)(B) and (D). Section 1158 also provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).” 8 U.S.C. § 1158(a)(3). Therefore, in general, we lack jurisdiction to review the Attorney General’s rejection of an untimely request for asylum. Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir.2010). Notwithstanding that limitation on our jurisdiction, we retain authority to review constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D).

In order to get around the limit on our jurisdiction, Abraham attempts to characterize her claim as one involving a question of law. A review of her brief, however, reveals that she simply disagrees with the IJ’s conclusions regarding the facts of the case. In particular, she contests the IJ’s conclusion that she did not present evidence of a “material” change in circumstances. The IJ’s conclusion that Abraham lacked sufficient credible evidence to meet the materiality standard is not a question of law. Restrepo, 610 F.3d at 964–65 (noting that our circuit limits § 1252(a)(2)(D) to strictly legal controversies, and so we are not authorized to review applications of law to facts); Khan v. Filip, 554 F.3d 681, 687–89 (7th Cir.2009), cert. denied, 130 S.Ct. 1049 (2010) (concluding that our review under § 1252(a)(2)(D) is limited to “pure” questions of law); Vasile v. Gonzales, 417 F.3d 766, 768–69 (7th Cir.2005) (holding that the agency’s determination that an alien failed to file his asylum claim within one year and failed to qualify for an extension of time was an unreviewable question of fact and exercise of discretion). We therefore lack jurisdiction to consider Abraham’s petition as it relates to her claim for asylum and dismiss that part of her petition.

B.

We turn next to Abraham’s petition for review of the decision of the IJ and the BIA to deny her application for withholding of removal. Where the BIA’s order adopts and supplements the IJ’s decision, we review both. Surganova v. Holder, 612 F.3d 901, 904 (7th Cir.2010); Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir.2010); Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir.2009); Khan, 554 F.3d at 690. We examine the IJ’s factual findings deferentially and uphold them so long as they are supported by substantial evidence. Krishnapillai, 563 F.3d at 615; Khan, 554 F.3d at 690; Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir.2004). Under the substantial evidence test, we must uphold the IJ’s findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Balogun, 374 F.3d at 498. We may reverse the IJ’s determinations only if the evidence compels a different result. Balogun, 374 F.3d at 498.

Credibility determinations are questions of fact subject to this standard of review. Balogun, 374 F.3d at 498. See also Krishnapillai, 563 F.3d at 617 (holding that only in extraordinary circumstances will this court overturn an IJ’s credibility assessment). The Immigration and Nationality Act (“INA”), as amended by the REAL ID Act of 2005, sets forth the parameters for the Immigration Judge’s credibility determinations:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor․

8 U.S.C. § 1158(b)(1)(B)(iii). The REAL ID Act also modified the INA to allow immigration judges substantial discretion “to demand corroboration of an asylum applicant’s allegations whether or not the judge finds the applicant credible.” Krishnapillai, 563 F.3d at 618. “Only if such evidence is beyond the reasonable ability of the immigrant to obtain is the judge precluded from demanding corroboration.” Krishnapillai, 563 F.3d at 618; 8 U.S .C. § 1252(b)(4); Eke v. Mukasey, 512 F.3d 372, 381 (7th Cir.2008).

In this case, the IJ expressly found that Abraham’s testimony was not credible. That finding was well-supported by the numerous internal inconsistencies in her testimony. As we noted above, she testified inconsistently on a number of issues including: (1) her living situation after Al–Deri told her family about the relationship; (2) the time line for her relationship with Al–Deri, her move to Damascus, and her engagement to Dawood; (3) whether she had any contact with her family after moving to Damascus; and (4) whether her relationship with Al–Deri was consensual or forced upon her. We will not disturb the IJ’s credibility finding because it is supported by substantial evidence.

Nor is there any reason to overturn the decision of the IJ or the BIA requiring that Abraham produce corroboration of her claims. We cannot say that it would have been unreasonable in these circumstances to require corroboration because Abraham had contacts in Damascus who could verify her story, and also appears to have been in contact with her uncle and with a brother in the United States. Abraham complains that if the IJ wished for her to produce corroborative evidence, she should have been given notice of this requirement. But the REAL ID Act:

clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”). To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings—the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey, 533 F.3d 521, 530 (7th Cir.2008). There is therefore no need for additional notice. Abraham notes that the IJ and BIA did not address the testimony given by her cousin that she would be the victim of an honor killing on her return to Syria. That testimony did corroborate that honor killings occur in Syria and that punishment for the killers is virtually nonexistent. The cousin also stated his opinion that Abraham would be the victim of an honor killing if she returned to Syria. Although the IJ and BIA did not expressly mention this testimony, the IJ did not dispute that honor killings occurred in Syria and agreed that they are a “terrible problem” there. Oral Decision of the IJ (August 7, 2008), at 13. But the IJ found that, in light of all of the evidence, and because Abraham’s family and former boyfriend did not disturb her after she moved to Damascus, it was unlikely that they would harm her if she returned to Syria. Having reviewed the short and conclusory testimony of Abraham’s cousin, we conclude that no further analysis by the IJ or the BIA was necessary. It is clear from the record and from the IJ’s decision that the IJ understood all of the evidence presented and still found Abraham’s proof lacking. See Kiorkis v. Holder, 634 F.3d 924, 928–29 (7th Cir.2011) (recognizing that it is impossible for immigration courts to write an exegesis on every contention an applicant raises).

In short, the IJ found that Abraham did not produce sufficient credible evidence that she had suffered past persecution or would suffer persecution on her return to Syria. The IJ and BIA concluded that Abraham also failed to provide corroborating evidence of her claim in circumstances where it was not unreasonable to require her to produce corroboration. Because the decisions of the IJ and BIA are supported by substantial evidence, Abraham’s petition regarding withholding of removal is denied.

Dismissed in Part and Denied in Part.”

FOOTNOTES

2.  Seventy-four percent of Syrians are Sunni Muslims. Christians comprise approximately 10% of the Syrian population. See United States Department of State, Background Note: Syria, http:// www.state.gov/r/pa/ei/bgn/3580.htm (last visited May 10, 2011) (hereafter “State Dept. Report”).

3.  An application for asylum is automatically considered a request for withholding of removal. See 8 C.F.R. § 208.3(b) (“An asylum application shall be deemed to constitute at the same time an application for withholding of removal, unless adjudicated in deportation or exclusion proceedings commenced prior to April 1, 1997.”).

4.  Like much of Abraham’s testimony, her account of her relationship with Al–Deri contains a number of seeming inconsistencies. She twice described the relationship as a “dating relationship,” but also said it was “forced” and “not voluntary.” R. at 125, 132–33. At one point, she testified, “It was like he fall [sic] in love with me and he wanted me and I couldn’t do anything about it.” R. at 124. She also said that Al–Deri blamed her for starting the relationship and that for a time, she also blamed herself. R. at 132–33.

5.  According to the Human Rights Report, “The law does not specifically prohibit domestic violence, and violence against women occurred during the year. A 2006 study reported that as many as one in four women surveyed had been victims of domestic violence. The majority of domestic violence and sexual assault cases went unreported; victims have traditionally been reluctant to seek assistance outside the family for fear of social stigmatization. Observers reported that when some abused women tried to file a police report, the police did not respond to their claims aggressively, if at all. Women reported incidents at police stations of sexual harassment, verbal abuse, hair pulling, and slapping by police officers when attempting to file police reports, particularly at the criminal security branch at Bab Musallah in Damascus. Victims of domestic violence have the legal right to seek redress in court, but few did so because of the social stigma attached to such action.”

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