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

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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.”

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

BIA Outlines Framework for IJs to Analyze Cases in Which Issues of Mental Competency Are Raised

Posted on May 6, 2011 by Mike Baker

In Matter of M-A-M-, 25 I. & N. Dec. 474 (B.I.A. May 4, 2011), a panel of the Board of Immigration Appeals (BIA or Board) held that (1) aliens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required, (2) the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses, (3) if there are indicia of incompetency, the immigration judge (IJ) must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings, (4) if the alien lacks sufficient competency to proceed, the IJ will evaluate appropriate safeguards, and (5) IJs must articulate the rationale for their decisions regarding competency issues.

The Board starts out by setting forth the test for mental competency and defining who exactly is incompetent.

the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.

Proof of incompetency can include the following:

  • Noticeable behaviors “such as the inability to understand and respond to questions, the inability to stay on topic, or a high level of distraction.” 
  • “evidence of mental illness or incompetency”; and
  • evidence of applications for disability benefits and affidavits or testimony from friends or family members.
  1. When should Immigration Judges make competency determinations? 
  2. What factors should Immigration Judges consider and what procedures should they employ to make those determinations? 
  3. What safeguards should Immigration Judges prescribe to ensure that proceedings are sufficiently fair when competency is not established?

As a threshold matter, the BIA find that an alien is presumed to be competent to participate in removal proceedings. … Absent indicia of mental incompetency, an Immigration Judge is under no obligation to analyze an alien’s competency. … [However, the] Act and the regulations contemplate circumstances in which competency concerns trigger the application of appropriate safeguards. INA § 240(b)(3) [8 USCA § 1229a(b)(3)] provides, “If it is impracticable by reason of an alien’s mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien.”

The Board said:

The Act’s invocation of safeguards presumes that proceedings can go forward, even where the alien is incompetent, provided the proceeding is conducted fairly. … If an Immigration Judge determines that a respondent lacks sufficient competency to proceed with the hearing, the Immigration Judge will evaluate which available measures would result in a fair hearing.

Although the Act and the regulations provide direction for handling cases in which competency is an issue, they do not set forth the process that an Immigration Judge should use to assess the competency of an alien appearing in Immigration Court. This decision sets out a framework for that purpose.

Unlike in criminal proceedings, a lack of competency in civil immigration proceedings does not mean that the hearing cannot go forward; rather, procedural fairness is required. In immigration proceedings, the Fifth Amendment entitles aliens to due process of law. … Included in the rights that the Due Process Clause requires in removal proceedings is the right to a full and fair hearing.

To meet traditional standards of fundamental fairness in determining whether an alien is competent to participate in immigration proceedings, Immigration Judges must accord aliens the specific “rights and privileges” prescribed in the Act. … Therefore, the test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.

The Board said that in cases involving aliens with issues of mental competency, IJs will need to consider whether there is good cause to believe that the alien lacks sufficient competency to proceed without safeguards. The Board then outlined a wide variety of observations and evidence that constitute indicia of incompetency.

Because the Department of Homeland Security (DHS) will often be in possession of relevant evidence, particularly where the alien is detained, the Board said that DHS has an obligation to provide the immigration court with relevant materials in its possession that would inform the court about the respondent’s mental competency.

The Board noted that: Mental competency is not a static condition. … As a result, Immigration Judges need to consider indicia of incompetency throughout the course of proceedings to determine whether an alien’s condition has deteriorated or, on the other hand, whether competency has been restored.

Even if an alien has been deemed to be medically competent, there may be cases in which an Immigration Judge has good cause for concern about the ability to proceed, such as where the respondent has a long history of mental illness, has an acute illness, or was restored to competency, but there is reason to believe that the condition has changed. In such cases, Immigration Judges should apply appropriate safeguards.

On the other hand, we also recognize that there are many types of mental illness that, even though serious, would not prevent a respondent from meaningfully participating in immigration proceedings. In other words, a diagnosis of mental illness does not automatically equate to a lack of competency.

When there are indicia of incompetency, an Immigration Judge must take measures to determine whether a respondent is competent to participate in proceedings. The approach taken in any particular case will vary based on the circumstances of the case.

If an Immigration Judge determines that a respondent lacks sufficient competency to proceed with the hearing, the statute provides that the Immigration Judge “shall prescribe safeguards to protect the rights and privileges of the alien.” Section 240(b)(3) of the Act. Based on the statutory and regulatory parameters, we conclude that Immigration Judges have discretion to determine which safeguards are appropriate, given the particular circumstances in a case before them.

Drawing guidance from the regulations and legal precedent, we note that there are a number of safeguards available to Immigration Judges, some of which they may have already taken when initially assessing the respondent’s competency. Examples of appropriate safeguards include, but are not limited to, refusal to accept an admission of removability from an unrepresented respondent; identification and appearance of a family member or close friend who can assist the respondent and provide the court with information; docketing or managing the case to facilitate the respondent’s ability to obtain legal representation and/or medical treatment in an effort to restore competency; participation of a guardian in the proceedings; continuance of the case for good cause shown; closing the hearing to the public; waiving the respondent’s appearance; actively aiding in the development of the record, including the examination and cross-examination of witnesses; and reserving appeal rights for the respondent. The Immigration Judge will consider the facts and circumstances of an alien’s case to decide which of these or other relevant safeguards to utilize.

In some cases, even where the court and the parties undertake their best efforts to ensure appropriate safeguards, concerns may remain. In these cases, the Immigration Judge may pursue alternatives with the parties, such as administrative closure, while other options are explored, such as seeking treatment for the respondent.

To summarize, if there are no indicia of incompetency in an alien’s case, no further inquiry regarding competency is required. The test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses. If there are indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent for purposes of immigration proceedings. If the alien lacks sufficient competency to proceed, the Immigration Judge will evaluate and apply appropriate safeguards. The Immigration Judge must articulate the rationale for his or her decision.

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

Attorney General Vacates Decision and Remands Case in Which BIA Applied DOMA in Denying Gay Respondent’s Application for Cancellation of Removal

Posted on May 6, 2011 by Mike Baker

In Matter of Dorman, 25 I. & N. Dec. 485 (A.G. May 5, 2011), Attorney General Eric H. Holder, Jr. said:

Pursuant to my authority set forth in 8 C.F.R. § 1003.1(h)(1)(i), I order that the decision of the Board of Immigration Appeals (“Board”) in this case applying Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, be vacated, and that this matter be referred to me for review.

In the exercise of my review authority under that regulation, and upon consideration of the record in this case, I direct that the order of the Board be vacated and that this matter be remanded to the Board to make such findings as may be necessary to determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act; 3) what, if any, impact the timing of respondent’s civil union should have on his request for that discretionary relief; and 4) whether, if he had a “qualifying relative,” the respondent would be able to satisfy the exceptional and unusual hardship requirement for cancellation of removal.

The DOMA provides as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

THE HOMOSEXUAL EXCLUSION

Pre-1990 Act. Until 1991, gay and lesbian aliens were excludable on medical grounds, first as “persons of constitutional psychopathic inferiority” and then as persons afflicted with a “psychopathic personality” or “mental defect.” These characterizations reflected the earlier, dominant medical view of homosexuality as a mental illness. Following a federal appellate ruling that “psychopathic personality” was unconstitutionally vague as applied to homosexuals, Congress added the term “sexual deviation” in 1965, and reaffirmed the homosexual exclusion to “[resolve] any doubt on this point.” In 1967, the U.S. Supreme Court rejected a vagueness challenge to the statute, finding “beyond a shadow of a doubt” that Congress intended the phrase “psychopathic personality” to include homosexuals. Meanwhile, medical opinion evolved to adopt the now widespread view that homosexuality was not a psychiatric disorder. Accordingly, in 1979, the Public Health Service (PHS) discontinued its practice of certifying homosexuals as psychopathic personalities, which the INS had used to trigger exclusion. [In response, the INS adopted “Guidelines and Procedures for the Inspection of Aliens Who Are Suspected of Being Homosexual.” A forerunner of the U.S. military’s “don’t ask, don’t tell” policy, the Guidelines stated that only a voluntary admission of homosexuality would trigger the INS’s obligation to exclude homosexual aliens. In 1983, the U.S. Court of Appeals for the Ninth Circuit dealt a blow to the INS policy in the decision in Hill v. INS, 714 F.2d 1470 (9th Cir. 1983). That decision held that the INS may not exclude a self-declared homosexual on the basis of a medical ground of exclusion without certification by a PHS officer, basing its finding on Congressional intent. Congress intended to require a medical examination and certification of all aliens excluded on medical grounds, the court noted. Therefore, the INS may not exclude self-declared homosexuals without medical certification of psychopathic personality, sexual deviation, or mental defect.  The significance of this holding was that it reaffirmed the principle that exclusion based on medical grounds requires a medical certification; because the medical community no longer considered homosexuality to be a psychiatric disorder, a policy of excluding gays and lesbians on this basis was rendered invalid. The view of the court in Hill, however, was not universally held. Within weeks, the U.S. Court of Appeals for the Fifth Circuit reached the opposite conclusion in Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), holding that a medical certificate was not indispensable to exclude a professed homosexual, given the unmistakable intent of Congress to exclude gays.  An informed applicant’s admission that he or she fell within the excludable class of homosexuals was sufficient evidence on which to base an exclusion decision, the court held, notwithstanding the absence of a medical certification. “If only certification of homosexuality by a medical officer could warrant exclusion of homosexuals,” the court held, “then the Surgeon General would have effectively checkmated Congressional policy.” These opposing views kept matters in a somewhat uncertain state until Congress stepped in. The Immigration Act of 1990 (1990 Act) finally resolved the conflict. The 1990 Act: Repeal of the homosexual exclusion. The 1990 Act repealed the homosexual exclusion by eliminating the provision excluding persons “afflicted with a psychopathic personality, sexual deviation, or mental defect.”  The repeal brought the medical grounds of exclusion in step with accepted psychiatric opinion and also was aimed at the protection of personal privacy. An attorney representing a gay foreign national, however, still must be familiar with the issues related to inadmissibility based on “crimes of moral turpitude” or the denial of benefits based on a lack of “good moral character,” discussed below. While rarely enforced, these grounds can be potential obstacles to immigration, as they may with any alien wishing to immigrate to the U.S.

CONTINUING RISKS: MORAL TURPITUDE AND GOOD MORAL CHARACTER

The INA provides for the inadmissibility of an alien who is convicted of a crime of moral turpitude or who admits to acts constituting such a crime. Aliens who were inadmissible at the time of entry are also subject to removal. Moreover, aliens who are convicted of or who admit to crimes of moral turpitude within five years preceding application are barred from showing the good moral character required for naturalization. Such criminal conduct also can preclude other immigration benefits, such as cancellation of removal. Before the 1990 Act, courts interpreted the moral turpitude exclusion and the good moral character requirement in the “harsh light” of the categorical exclusion of gays. As noted above, while these grounds are rarely enforced, they still can be triggered by some homosexual conduct, which, like certain heterosexual activity, is deemed to have “adverse public effects.” Private sexual activity does not bar good moral character. Historically, a showing of good moral character was precluded by a federal or state criminal conviction. Since the 1950s, most courts have abandoned this standard and have defined good moral character by reference to the “common conscience” of the community. In 1949, Judge Learned Hand applied this standard to hold that neither sexual activity between unmarried heterosexuals nor extramarital heterosexual relationships necessarily barred a finding of good moral character, provided the conduct was private. The INS, likewise, has taken the view that sexual activity between unmarried persons, even if they are of the same sex, does not, by itself, bar a finding of good moral character.  In the 1970s, courts extended this analysis to hold that private, consensual homosexual behavior that does not involve any publicly offensive activities, such as solicitation or public display, does not preclude a finding of good moral character for naturalization purposes.  Effect of state criminal violations. The decision in Nemetz v. INS, 647 F.2d 432 (4th Cir. 1981) further extended the INA’s acceptance of gay aliens. Citing the constitutional requirement of a uniform rule of naturalization, the Nemetz decision held that whether a person is of good moral character for naturalization is a question of federal law whenever variations in state laws can lead to inconsistent results. Under this principle, private homosexual conduct that violates state criminal law does not, by itself, preclude a finding of good moral character. In this case, Mr. Nemetz was denied naturalization on the ground that his self-professed homosexual activity violated a Virginia sodomy statute, and, thus, was a crime of moral turpitude. Although a crime under Virginia law, consensual sodomy was and is not a crime in a number of states. Thus, the court said, the application of state law impermissibly would make eligibility for citizenship turn on an “accident of geography,” which would in turn undermine a uniform rule of naturalization. The court confirmed that private conduct is irrelevant for immigration purposes and that only acts harmful to the public can trigger the moral turpitude exclusion. In a reversal of policy, the INS adopted the Nemetz view, and INS Interpretations no longer bar a finding of good moral character solely because the homosexual conduct in question happens to be a crime under state law. The Interpretations, however, do preclude good moral character when the homosexual conduct involves minors, entails public solicitation, violates marital vows or has other “adverse public effects.”  Of course, a lack of candor about one’s homosexual activity can preclude a finding of good moral character. State Department regulations similarly provide that a determination that a crime involves moral turpitude (for purposes of ineligibility under INA § 212(a)(2)(A)(i)(I)) “shall be based upon the moral standards generally prevailing in the United States.”

IMMIGRATION BENEFITS BASED ON A SAME-SEX RELATIONSHIP

INA does not recognize same-sex partnerships. While the INA grants immediate relative status and other benefits to the alien spouse of a U.S. citizen, the U.S. Court of Appeals for the Ninth Circuit held in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) that Congress intended to preclude a gay marriage from conferring spousal benefits under the INA, even if the marriage was valid under state law. This means that under the law, for example, a gay permanent resident cannot file an immigrant petition on behalf of his or her same-sex partner and that same-sex partners cannot be granted status normally accorded to the spouses of nonimmigrants. Not inconsistent is the Foreign Affairs Manual (FAM), which recognizes common law marriage or cohabitation, provided “it is recognized by local laws as being fully equivalent in every respect to a traditional legal marriage, i.e., it bestows all of the same legal rights and duties.” The INA’s failure to confer benefits based on a same-sex relationship makes it the first line of inquiry to evaluate the foreign partner’s eligibility for benefits independent of the relationship. All nonimmigrant classes should be considered, including the B-2 category for the partner of an E, H, or L nonimmigrant, which the INS has said would be appropriate for the same-sex partner of such a nonimmigrant, if not otherwise excludable. An application for a B-2 visa under these circumstances should include evidence of the applicant’s unabandoned foreign residence, his or her relationship to the principal nonimmigrant, evidence of joint assets, and other evidence of the relationship, such as a letter from the principal’s U.S. employer, if available. A visa annotation identifying the principal can facilitate an extension of the B-2 visa, as can an affidavit of support from the principal.  Support for the use of the B-2 category under these circumstances can also be found in the FAM, which authorizes use of the B-2 visa when derivative status is not available to certain dependents of a nonimmigrant. The decision in Adams v. Howerton was predicated on the homosexual exclusion. The repeal of the exclusion once may have supported the argument that Congress thereby intended to recognize such marriages in immigration law. The Defense of Marriage Act (DOMA), enacted in 1996, however, undermines that argument. DOMA, passed in response to the possibility that the Hawaiian courts would permit same-sex marriages, defines “marriage” for purposes of any federal law as the legal union between a man and a woman.  Even if legally sanctioned in one or more states, a same-sex marriage, or even a registered partnership, might not be the best option for the foreign national partner of a U.S. citizen or permanent resident alien under present law. It is unlikely that the INS or the Visa Office will confer spousal benefits based on a same-sex relationship, especially in light of DOMA. Further, such a “marriage” can actually negate the foreign partner’s nonimmigrant intent, which might be required by the only visa categories available, such as visitor or student. Finally, for a foreign partner who is out of status, a spousal petition could alert the INS to institute proceedings.

ELIGIBILITY FOR ASYLUM BASED ON SEXUAL ORIENTATION

As noted by one commentator, in China, “the ‘cure’ for homosexuality is electric shock ‘therapy.”’ In some countries, Islamic law provides for the death penalty after four convictions for consensual homosexual activity.  Despite the severity of such persecution around the world, U.S. law and procedures historically precluded the grant of asylum for persecution based on sexual orientation.  In recent years, however, especially after the 1990 Act repealed the homosexual exclusion, the INS and the Executive Office for Immigration Review have granted asylum to lesbians and gays because of a well-founded fear of persecution on the basis of membership in a particular social group. This trend gained momentum in 1994, when the Attorney General designated as precedent the Board of Immigration Appeals (BIA)’s decision in Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), which involved a Cuban gay man fleeing government persecution. The Attorney General stated that “an individual who has been identified as a homosexual and persecuted by his or her government for that reason alone may be eligible for relief under the federal refugee laws on the basis of persecution because of membership in a particular social group.” According to the International Gay and Lesbian Human Rights Commission, the U.S. has granted asylum to about 300 gays and lesbians since 1994.  The INS also has said that HIV (human immunodeficiency virus)-positive individuals can constitute a particular social group for purposes of asylum and other discretionary forms of relief. In developing an asylum application based on sexual orientation, it is important to demonstrate that the persecution was directly on account of the applicant’s homosexuality and not on some other basis. Extensive materials on the worldwide persecution of homosexuals and humanitarian remedies are available from human rights and gay rights organizations. Convention Against Torture (CAT) remedies, which are broader than those afforded by traditional asylum law, may also be available to gay aliens.

COMPARATIVE ANALYSIS OF IMMIGRATION OPTIONS WORLDWIDE

A number of countries confer immigration benefits on the basis of long-term unmarried partnerships. Same-sex “registered partnerships” (a form of legal recognition of the relationship) are entitled to the same immigration benefits as heterosexual married couples in Denmark, Norway, Sweden, and Iceland. 

Other countries conferring immigration benefits based on a same-sex relationship are:

• The Netherlands. On January 14, 1998, the Netherlands adopted a registered partnership measure granting both heterosexual and homosexual partners every right of marriage except access to adoption and artificial insemination.
• France. In October 1999, France adopted the Civil Solidarity Pact, a sweeping domestic partnership law that gives unwed heterosexual and homosexual partners the same rights previously limited to married couples.
• Australia. The gay partner of an Australian citizen or resident can apply for an “interdependency temporary entry visa” and, later, for permanent residence.  Permanent residence requires proof that the partners had a mutual commitment to a shared life for the 12 months immediately preceding the date of the application.
• New Zealand. An unmarried partner of a homosexual or heterosexual New Zealand citizen or resident is eligible for residence provided that the couple has been living together in a genuine and stable relationship for at least 12 months immediately preceding the date of application.
• United Kingdom. The United Kingdom grants immigration benefits on the basis of a relationship in which the parties have been living together for at least two years with the intent to do so permanently, are legally unable to marry and will not require public funds.
• Belgium. Belgium will issue a residence permit to a foreign partner cohabiting in a same or opposite sex relationship with a person having a valid right to Belgian residence.
• Canada. Canada has granted residence to homosexual partners of its citizens on “humanitarian and compassionate” grounds and has taken steps to broaden immigration options based on gay relationships. Recently, an Immigration Legislative Review panel issued a report, Not Just Numbers: A Canadian Framework for Immigration, recommending the redefinition of “spouse” to mean a partner in an intimate relationship with cohabitation of at least one year. In January 1999, the Canadian Immigration Minister issued a follow-up report recommending that the definition of “family” be expanded to include same-sex and common-law couples.  On May 20, 1999, the Canadian Supreme Court ruled eight to one that same-sex partners are “spouses” for the purposes of family law, and Canada’s federal and provincial governments all agreed to rewrite their rules accordingly. The provinces of Ontario and Quebec have adopted laws giving homosexual couples the same rights as common-law pairs.
• Finland. The Immigration Office of Finland does not distinguish between heterosexual and homosexual common-law couples and has granted residence permits on the basis of homosexual relationships upon proof that the parties have lived together for at least one year.
• South Africa. The South African Constitutional Court recently ruled that the Aliens Control Act, which only allowed married partners of South African citizens to live and work in the country, unfairly discriminates against gay couples.
• Namibia. The High Court of Namibia granted a German lesbian residency in 1999, based on her long-term relationship with her Namibian partner and her contributions to Namibian society.
Several other countries, including the Czech Republic, Spain, Germany, Portugal, Switzerland, and Luxembourg, are considering partnership laws or similar legislation.  The broad rights of movement enjoyed by members of the European Economic Area would appear to expand the generous immigration benefits conferred by participating countries.

Posted in Asylum based on sexual orientation, DOMA | Leave a comment

Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011). Board Finds Record of Conviction Clear on Issue Relating to CIMT and Rejects IJ’s Use of Third Prong of Matter of Silva-Trevino

Posted on April 20, 2011 by Mike Baker

The Board of Immigration Appeals (BIA or Board) has followed the Attorney General’s precedent decision Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in holding that evidence outside of an alien’s record of conviction may properly be considered in determining whether the alien has been convicted of a crime involving moral turpitude (CIMT) only where the conviction record itself does not conclusively demonstrate whether the alien was convicted of engaging in conduct that constitutes a CIMT. Matter of Ahortalejo-Guzman, 25 I. & N. Dec. 465 (B.I.A. April 19, 2011).

The respondent is a native and citizen of Mexico who unlawfully entered the U.S. In September 1999, the respondent was convicted of assault in Texas based on his guilty plea to the crime. The Department of Homeland Security (DHS) filed a notice to appear in June 2009, charging the respondent with removability based on his unlawful presence in the U.S. At removal proceedings, the respondent conceded removability and applied for cancellation of removal for nonpermanent residents. The immigration judge (IJ) found that the respondent’s assault offense involved domestic violence and was therefore a CIMT. The IJ thus concluded that the respondent was ineligible for cancellation of removal because his conviction was for an offense included in INA § 240A(b)(1)(C) [8 USCA § 1229b(b)(1)(C)]. The respondent appealed the IJ’s decision, arguing that he was not convicted of assault involving family violence but was, instead, convicted only of simple assault, which is not a CIMT.

Board Member Roger Pauley wrote the opinion for the panel, which also included Board Members Patricia A. Cole and Anne J. Greer. He noted that, in order to resolve the matter, the Board needed to “address an aspect of the Attorney General’s decision in Matter of Silva-Trevino” to wit: whether, given the information in the record of conviction, the decision permits an IJ to consider evidence that is outside of the record of conviction to, in this case, determine whether the victim was the respondent’s common-law spouse.

The Board began its analysis by noting that cancellation of removal may be granted under § 240A(b)(1)(C) if, among other things, the alien has not been convicted of a CIMT under either INA § 212(a)(2)(A)(i)(I) [8 USCA § 1182(a)(2)(A)(i)(I)] or INA § 237(a)(2)(A)(i) [8 USCA 1227(a)(2)(A)(i)]. With regard to assault convictions, the Board noted that, while simple assault or battery is generally not considered to involve moral turpitude for purposes of immigration laws, an assault or battery that necessarily involves some aggravating factor that indicates the perpetrator’s moral depravity does in fact implicate moral turpitude for immigration purposes. Among these aggravating factors is the fact that the victim is the actor’s domestic partner.

DHS asserted that the victim in the instant matter was in fact the respondent’s common-law wife. To prove this, and in turn prove that the respondent’s conviction was for a CIMT, DHS submitted, among other things, a police department report of the incident, which indicated that the respondent was charged with assault pursuant to § 22.01 of the Texas Penal Code and that the victim of the assault was the respondent’s common-law wife. The IJ based his decision that the respondent had been convicted of CIMT on this document as well as testimony from the respondent that the victim was his common-law wife. Neither of these pieces of evidence were part of the record of conviction, the Board noted.

The Board then turned to Matter of Silva-Trevino to determine whether consideration of these pieces of evidence was in fact permissible. In that case, the Attorney General “established a new methodology for making determinations regarding crimes involving moral turpitude.” The case marked a departure from previous approaches with regard to this type of evidence, and the Attorney General stated that, “[i]n my view, when the record of conviction fails to show whether the alien was convicted of a crime involving moral turpitude, immigration judges should be permitted to consider evidence beyond that record if doing so is necessary and appropriate to ensure application of the Act’s moral turpitude provisions.” The Board observed that the record of conviction in this matter was silent with regard to the victim’s status and further that the “judgment and sentence specifically states, ‘The Court finds that this offense did not involve family violence.”’ The Board found that the record of conviction was thus not unclear about whether the conviction was for domestic assault and thus a CIMT.

The Board found that the IJ erred in examining documents beyond those in the record of conviction. It determined that the Attorney General in Silva-Trevino “adopted a hierarchical or sequential approach to the consideration of evidence in determining whether an alien has been convicted of a crime involving moral turpitude,” to wit:

In short, … adjudicators should: (1) look first to the statute of conviction under the categorical inquiry …; (2) if the categorical inquiry does not resolve the question, look to the alien’s record of conviction …; and (3) if the record of conviction does not resolve the inquiry, consider any additional evidence the adjudicator determines is necessary or appropriate to resolve accurately the moral turpitude question. The Board opined that the third stage outlined in Silva-Trevino is only appropriate “where the record of conviction does not itself resolve the issue, that is, where the record does not conclusively demonstrate whether an alien was convicted of engaging in conduct that constitutes a crime involving moral turpitude.” As the record of conviction in this matter did resolve the issue, the IJ was not permitted to rely on evidence beyond the record of conviction, the Board concluded. It remanded the matter with instructions for the IJ to further consider the respondent’s application for cancellation of removal.

Posted in BIA, Board of Immigration Appeals, CIMT, Crime involving moral turpitude | Leave a comment

Chinese asylum, Christian faith, past persecution. Ni v. Holder (7th Cir., March 25, 2011)

Posted on April 8, 2011 by Mike Baker

Bd. did not err in denying asylum request by alien (native of China) after finding that alien had failed to establish that he had personally been victim of past persecution on basis of his Christian religion or that he was exposed to individualized risk of future persecution. Alien typically cannot establish past persecution claim based upon persecution of third-party, and instant alien failed to show that physical beating of his parents due to their Christian religion was meant as act to injure him. Moreover, alien failed to establish well-founded fear of future persecution where: (1) persecution of parents occurred over 20 years ago; (2) record failed to show that Chinese officials have continued to target his family; and (3) alien failed to present evidence about conditions in area of China to which he would return.

Chinese petitioner appeals the BIA’s denial of his asylum claim on account of his Christian faith.  The Petitioner’s claim is premised principally on persecution that his parent’s suffered in 1982.  The Seventh Circuit affirmed the agency’s dismissal, finding the petitioner did not establish past persecution or a well-founded fear of future persecution.
Read the opinion here.
FLAUM, Evans, McCuskey (distct)
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-1691_002.pdf

Posted in 7th Circuit Cases- Aliens, Aliens, China one-child policy | Leave a comment