Rescission of lawful permanent resident status-7th Cir. 2010 Estrada v. Holder, No. 08-1226

Posted on May 4, 2010 by Mike Baker

Petition for review of the BIA’s affirmance of an IJ’s refusal to examine a Mexican citizen’s challenge to the validity of a 1996 rescission of his lawful-permanent-resident status by the INS is granted and the rescission order vacated and remanded as petitioner’s challenge to the sufficiency of the notice he received before the agency rescinded his permanent resident status was reviewable in his removal proceedings. However, district court’s decision to dismiss petitioner’s complaint for lack of subject matter jurisdiction is affirmed as the complaint filed in district court is the equivalent to a challenge to an order of removal within the meaning of 8 U.S.C. section 1252(a)(5), which permits judicial review only via a petition for review in the court of appeals.

Domingo Cueto Estrada, a native of Mexico, entered the United States illegally in 1987. Thanks to the Special  Agriculture Worker (“SAW”) program, 8 U.S.C. § 1160,  Cueto Estrada was granted lawful-permanent-resident  status in 1990. But the government soon suspected that  Cueto Estrada received his permanent-resident status by  fraudulent means. Domingo Luna, who helped Cueto  Estrada prepare his SAW application, was convicted of  filing false statements on other SAW applications in  violation of 8 U.S.C. § 1160(b)(7)(A)(ii). The government  believed Cueto Estrada likewise purchased fraudulent  employment documents from Luna to support his  SAW application.

In 1995 immigration authorities initiated proceedings  that led to the rescission of Cueto Estrada’s status as  a legal permanent resident. The INS sent Cueto Estrada  notice of its intent to rescind his permanent-resident  status; the notice was sent via certified mail to Cueto Estrada’s last-known address. Had Cueto Estrada responded to the notice, he would have been entitled to a hearing before an immigration judge to contest the rescission.  See 8 C.F.R. § 246.3. But the immigration agency never heard from Cueto Estrada, and in 1996 the INS rescinded  his peramanent resident status without a hearing as permitted by 8 C.F.R. § 246.2.

Cueto Estrada claims he never received the 1995 notice  and says he first learned that he had lost his permanent- resident status in 2005 when the Department of Homeland  Security initiated removal proceedings against him. Although he applied for cancellation of removal  under 8 U.S.C. § 1229b(a), his claim hinged on his ability  to show that he was a lawful permanent resident; if he  is not a lawful permanent resident, Cueto Estrada  admits he would be statutorily ineligible for cancellation  of removal under § 1229b(b). To make the required  showing, Cueto Estrada argued that the 1996 rescission  of his permanent-resident status was invalid because  he did not receive proper notice of the INS’s intent to  rescind. Had he been given proper notice, Cueto Estrada. Cueto Estrada was convicted of possessing heroin in 1999, a  violation of Illinois law. For purposes of this case, the Attorney  General alleges that Cueto Estrada could be removed via   proceedings under 8 U.S.C. § 1229a because he had committed  a state-law controlled-substance offense and because Cueto  Estrada arrived in the United States illegally. See 8 U.S.C.  § 1182(a)(2)(A)(i)(II), (a)(6)(A)(i). Cueto Estrada concedes he  can be removed on account of his drug conviction under  § 1182(a)(2)(A)(i)(II).

The IJ rejected this argument by relying on Rodriguez- Esteban, in which the BIA concluded that immigration  courts may not review a decision to rescind permanent-resident status made by the INS. The IJ thought that  Rodriguez-Esteban prohibited him from either revisiting  the merits of the INS’s decision to rescind Cueto  Estrada’s status or considering whether the rescission  order was invalid because the INS did not comply with its regulatory obligation to provide adequate notice of  the agency’s intent to institute rescission proceedings. Accordingly, since Cueto Estrada was no longer a lawful permanent resident, he was statutorily ineligible for  cancellation of removal under 8 U.S.C. § 1229b(a). The IJ  ordered Cueto Estrada removed. The BIA adopted and  affirmed the IJ’s decision in 2008, and Cueto Estrada  filed a petition for review in this court.

In early 2007, while these removal proceedings were  underway, Cueto Estrada asked the U.S. Citizenship and  Immigration Service (“USCIS”) to reconsider its 1996  decision to rescind his permanent-resident status,  arguing that the rescission was improper because he  never received notice of the INS’s intent to rescind.

The USCIS denied his request in April 2007, treating his  motion as untimely since it had been filed  years after  the 1996 decision was made, well outside the 30-day  period for filing reconsideration requests under 8 C.F.R.  § 103.5(a)(1)(i). At the time of the USCIS’s decision, the  IJ had not yet ordered Cueto Estrada removed, and  the USCIS observed that any relief Cueto Estrada  sought “may be raised with the [IJ] during your removal  proceeding.” Cueto Estrada filed a petition for review  of the USCIS decision with this court in 2007, but we dismissed it for lack of jurisdiction. Accordingly, Cueto  Estrada challenged the USCIS order by filing a complaint  with the district court. Although he claimed that  the USCIS’s refusal to revisit its 1996 rescission order  violated the Administrative Procedure Act (“APA”) and his due-process rights, the district court treated Cueto  Estrada’s complaint as a challenge to a removal order and dismissed his case for lack of jurisdiction. Cueto Estrada appealed this dismissal, and we consolidated his appeal with his petition for review.

We acknowledge that on remand Cueto Estrada  could win his battle against the 1996 rescission order but lose his campaign to stay in this country. Cueto  Estrada remains statutorily ineligible for cancellation of  removal under 8 U.S.C. § 1229b(a) unless he can restore  his permanent-resident status. If Cueto Estrada convinces  the immigration agency that the rescission order  is invalid, that  only means he becomes statutorily  eligible for cancellation of removal under § 1229b(a); it does not entitle him to relief from removal. A decision  to cancel removal—regardless of whether the alien is a lawful permanent resident—is a discretionary one,  Bakarian v. Mukasey, 541 F.3d 775, 785 (7th Cir. 2008), and  the BIA might decide against granting Cueto Estrada  the relief he seeks. In an effort to persuade us that  remand would be futile, the Attorney General has identified  several reasons why the agency would not likely  cancel removal in this case. But the decision to grant  Cueto Estrada relief lies with immigration officials  who are charged with balancing the factors identified  in Matter of Marin, 16 INA Dec. 581, 584-87 (BIA 1978),  and we will not assume that they would decline to cancel removal.

Estrada v. Holder (Sykes)
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Asylum, China’s one-child policy and membership in social group-7th Cir. 2010 Chen v. Holder, No. 08-2836

Posted on May 3, 2010 by Mike Baker

A Chinese national and citizen’s petition for review of the BIA’s affirmance of Immigration Judge’s denial of his application for asylum and related relief, claiming that he has been or will be persecuted because of his family’s resistance to China’s one-child policy and his membership in social groups that include his family and the hei haizi (i.e., someone born in violation of China’s one-child policy), is granted and the matter remanded where: 1) the agency’s analysis of petitioner’s asylum claim was incomplete as the BIA failed to address his claim of past persecution based on imputed political opinion as, although his mother’s forcible sterilization does not automatically entitle him to a finding of past persecution, it may in combination with other evidence show that his family’s resistance to China’s population-control policy has been imputed to him; and 2) the BIA failed to consider the cumulative significance of the hardships visited upon petitioner and his family, and the future hardships he would face if returned, when evaluating his fear of future persecution.

SYKES, Circuit Judge. Shi Chen is a native of China who as the fifth child in his family was born in severe violation of China’s one-child policy. As a penalty for his unlawful birth, his mother was forcibly sterilized, and his parents were required to pay a large fine that equaled the family’s annual income. Chen’s aunt had earlier been forced to abort an illegal pregnancy and she, too, was thereafter involuntarily sterilized.

Children born illegally in China–known as the hei haizi–may not be listed on their family registry, the hukou, and are therefore denied many of the rights of full citizenship. Among these are the right to state-provided elementary schooling, higher education, and health care; the right to be included in the family’s land and food allocation; and the right to move freely about the country. The hei haizi are also excluded from many jobs, may not acquire property, and in some cases are denied the right to marry and have children. Chen’s parents paid large fines in order to list Chen on the back of their hukou; though this did not legalize him, it did allow him to attend school as long as his parents continued to pay the ongoing fines. Their ability to do so ran out before he reached high school.

When he was 17 years old, Chen left China for the United States and upon arrival was immediately detained by immigration officials. He applied for asylum, withholding of removal, and protection under the Convention Against Torture, arguing that he has been or will be persecuted because of his family’s resistance to China’s one-child policy and his membership in social groups that include his family and the hei haizi. See 8 U.S.C. § 1101(a)(42)(B) (persecution on account of political opinion includes persecution for resistance to a coercive population-control program). An Immigration Judge (“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) affirmed. Chen petitioned this court for review.

We grant the petition and remand to the immigration agency for further proceedings. The agency’s analysis of Chen’s asylum claim was incomplete. The BIA failed to address Chen’s claim of past persecution based on imputed political opinion–that is, the persecution that his mother and other family members suffered for their resistance to China’s coercive population-control policy. His mother’s forcible sterilization does not automatically entitle Chen to a finding of past persecution, but it may in combination with other evidence show that his family’s resistance to China’s population-control policy has been imputed to him. The BIA also failed to consider the cumulative significance of the hardships visited upon Chen and his family–and the future hardships he would face if returned–when evaluating Chen’s fear of future persecution.

I. Background

Chinese law significantly restricts the freedom of its citizens to bear children. No family is permitted to have more than two children, and Chinese law limits most families to one child. BUREAU OF DEMOCRACY, HUMAN RIGHTS &LABOR, U.S. DEPARTMENT OF STATE, CHINA: PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 21 (Oct. 2005) (“2005 COUNTRY REPORT”). Married couples are required  to use birth control and must obtain official permission–in the form of a “birth permit”–before having a second child; some provinces require a birth permit for a first child as well. Id. at 22. Violations carry heavy fines–“social maintenance and compensation” fees–as well as other consequences for the parents, including job loss or demotion, imprisonment in a “population school,” and forcible abortion or sterilization. Id. at 22-23.

Lawfully born Chinese children are listed on the family hukou, a registration document that entitles family members to the rights of full citizenship. Children born unlawfully are known as the hei haizi (meaning “black children”) and are ineligible for registration on the hukou. IMMIGRATION & NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE, PERSPECTIVE SERIES: CHINESE STATE BIRTH PLANNING IN THE 1990S AND BEYOND 38 (Sept. 2001). These “unplanned persons” are denied the right to state-provided elementary schooling, higher education, health care, and other governmental services and benefits. Id. As adults they are excluded from many jobs, may not purchase property, and may be denied the right to marry and have children. Id.; see also 2005 COUNTRY REPORT, at 23 (describing China’s unregistered “floating” population).

Shi Chen was born in violation of China’s one-child policy. He is a native of a small village in the Fujian province and is the youngest of five children and the only boy. Chen’s parents spent many years evading the population-control authorities in their village, and his family paid dearly for his birth. Soon after Chen was born, his mother–who lived in hiding while pregnant to avoid a forced abortion–was involuntarily sterilized. His mother’s sister had earlier been forced to abort an illegal pregnancy in her ninth month; afterward she was involuntarily sterilized. Chen’s parents were required to pay a large fine equivalent to the family’s annual income as a penalty for his unlawful birth. They had to give away one of his sisters shortly after she was born because they could not afford to keep her. During an earlier pregnancy, Chen’s mother fell off a ladder while fleeing from population-control authorities; she broke both her ankles, and the baby was stillborn.

Because Chen was born illegally, he could not be registered on the hukou and his family was denied the food and land allocation provided for lawfully born children. Payment of additional, ongoing fines allowed his family to list Chen’s name on the back of their hukou. This permitted him to attend school as long as his parents continued to pay; they were able to do so through the equivalent of middle-school but not beyond. (Chen’s father is a subsistence farmer and works odd jobs for extra income to support the family.) As a member of the hei haizi, Chen asserts that he is denied access to health care and other governmental services; is excluded from higher education and many types of employment; and will be denied the right to marry and have children, the right to own property, and the right to freely travel within and outside of China.

In 2004, when he was 17, Chen obtained false travel documents and fled China for the United States. Upon arrival in this country, he was detained by immigration officials and placed in removal proceedings. Chen conceded removability and applied for asylum, withholding of removal, and protection against removal under the Convention Against Torture (“CAT”). Citing his family’s history of persecution for violating China’s one-child policy, he claimed he would be targeted for forced sterilization and other persecution if returned to China.

The IJ who heard Chen’s case credited his testimony (it was corroborated by several affidavits–most notably, one from his father) but rejected his claims for relief, concluding that Chen had not established past persecution or a well-founded fear of future persecution. In the IJ’s view, the economic plight his family suffered on account of his birth was not severe enough to be considered past persecution, especially since Chen had never been detained by Chinese authorities and had been permitted to attend school. The IJ also rejected Chen’s argument that he had a well-founded fear of persecution based on his status as a member of the hei haizi.

The BIA affirmed the IJ’s decision but conducted its own analysis. Acknowledging that economic harm can constitute persecution in appropriate circumstances, the BIA held that the economic hardship Chen’s family suffered was not significant enough to constitute persecution. The BIA also rejected Chen’s argument that he had a well-founded fear of future persecution; the agency based this conclusion on the fact that Chen had found employment after his family could no longer afford the fines necessary to permit him to attend school and had also obtained a Chinese passport before leaving the country. Finally, the BIA rejected Chen’s claim that he would be targeted for sterilization based on his family’s resistance to China’s population-control policy. The BIA noted that it had never before held that “the political opinion of a parent who has been forcibly sterilized can be imputed to that parent’s child,” and “current caselaw [in the Seventh Circuit] does not allow the respondent’s mother’s political opinion to be imputed to him.” Chen petitioned this court for review.

II. Discussion

Where, as here, the BIA conducts its own analysis rather than supplementing or adopting the decision of the IJ, we review the BIA’s decision. Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007). The agency’s legal conclusions are reviewed de novo. See Mekhtiev v. Holder, 559 F.3d 725, 729 (7th Cir. 2009). We will uphold the agency’s factual findings so long as they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008) (quotation marks omitted). Under this deferential standard of review, reversal is warranted only if “the evidence compels a different result”; we will not overturn the agency’s findings simply because we might have decided the case differently. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). On the other hand, remand may be warranted when the agency overlooks key aspects of an asylum-seeker’s claim and might reach a different conclusion after a more complete evaluation of the record. See Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999).

The Attorney General has discretion to grant an alien asylum under the Immigration and Nationality Act if the alien qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1). A refugee is a person who is unwilling or unable to return to his native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). A showing of past persecution will trigger a rebuttable presumption that the alien has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). Even if an alien cannot show he has been subject to past persecution, he may nevertheless be eligible for asylum if he has a well-founded fear of future persecution. Id. § 208.13(b)(2). This requires the alien to show that his fear of persecution is both “subjectively genuine and objectively reasonable.” Bolante v. Mukasey, 539 F.3d 790, 794 (7th Cir. 2008). To prevail under this standard, the alien must present “specific, detailed facts showing a good reason to fear that he . . . will be singled out for persecution.” Sayaxing v. INS, 179 F.3d 515, 520 (7th Cir. 1999) (quotation marks omitted).

Chen’s claims for relief are premised on his assertion that he has been or will be persecuted on account of political opinion and membership in a particular social group. Regarding the former ground, Chen’s argument is based on § 1101(a)(42)(B), which provides that persons who have been subjected to certain coercive population-control measures or otherwise have been or will be subjected to persecution for resistance to a coercive population-control program are deemed to have been persecuted on account of their political opinion. More specifically:

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

8 U.S.C. § 1101(a)(42)(B). This subsection of the statute creates four classes of refugees: (1) those who have been forced to have an abortion or who have been involuntarily sterilized; (2) those who have been persecuted for failing or refusing a coerced abortion or sterilization or for other resistance to a coercive population-control program; (3) those who have a well-founded fear that they will be forced to have an abortion or be sterilized; and (4) those who have a well-founded fear that they will be persecuted for failing or refusing such procedures or for resisting a coercive population-control program. See Lin v. Ashcroft, 385 F.3d 748, 752-53 (7th Cir. 2004).

The Attorney General has concluded that only those who have themselves been forced to have an abortion or have been involuntarily sterilized fall into the first class of refugees. Matter of J-S-, 24 I. &N. Dec. 520, 527 (AG 2008); see also 8 C.F.R. § 1208.13(b)(1) (aliens who fall into this category are automatically entitled to the presumption of a well-founded fear of future persecution). Overruling BIA precedent, Matter of J-S- held that an asylum-seeker whose spouse has suffered a forced abortion or sterilization is not per se eligible for asylum. Rather, the applicant must show that he or she personally suffered or will suffer persecution for resisting a coercive population-control program. Matter of J-S-, 24 I.&N. Dec. at 542; accord Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir. 2009); Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir. 2007) (en banc).

Accordingly, under Matter of J-S-, evidence that the applicant’s spouse was forced to abort a pregnancy or undergo involuntary sterilization is relevant to the applicant’s claim but does not alone establish eligibility; the applicant must also present evidence of his or her own past persecution or reasonable fear of future persecution. See Matter of J-S-, 24 I. & N. Dec. at 534-35 (“Some  spouses may not have ‘resisted,’ and in fact may have affirmatively supported, the forced abortion or sterilization procedure that was performed on the spouse who remains in China. . . . [A]pplicants must present proof, of which their spouse’s treatment may be a part, of persecution for refusing to undergo forced abortion or sterilization procedures or for engaging in ‘other resistance’ to a coercive population control program, or of persecution on account of another ground for asylum enumerated in the Act.”). The Attorney General’s interpretation of § 1101(a)(42)(B) is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), and the rationale of Matter of J-S- applies with equal force to the claim of an asylum-seeker like Chen whose parent has been forced to have an abortion or undergo sterilization. See Chen v. U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir. 2005) (per curiam) (“[C]hildren are not per se as eligible for relief . . . as those directly victimized themselves.”); Zhang v. Gonzales, 408 F.3d 1239, 1245-46 (9th Cir. 2005) (same); Wang v. Gonzales, 405 F.3d 134, 142-43 (3d Cir. 2005) (same).

So Chen does not fall into the first category of refugees created by § 1101(a)(42)(B). Under the rationale of Matter of J-S-, Chen is not automatically eligible for asylum because his mother was sterilized against her will. Nor does Chen fall into the second class of refugees; he has not “failed or refused” to be sterilized and has not otherwise “resisted” China’s one-child policy. He may, however, fall within the third and fourth classes of refugees under § 1101(a)(42)(B)–those who have a well-founded fear of involuntary sterilization (forced abortion obviously is not at issue here), or those who fear persecution for refusing sterilization or otherwise resisting a coercive population-control program. Chen has consistently argued that he fears he will be involuntarily sterilized and otherwise persecuted because of his and his family’s violation of China’s one-child policy.

Chen’s claim is thus based partly on a theory of imputed political opinion. He contends that Chinese population-control authorities either have imputed or will impute his parent’s resistance to China’s one-child policy to him. The BIA flatly rejected this argument based on a perceived lack of circuit precedent to support it. To the contrary, however, it is well established in this circuit that an alien may base a persecution claim on imputed political opinion. Under this theory the alien is asserting that his persecutors have mistreated or will mistreat him because they attribute someone else’s–often a family member’s–political beliefs to him. See Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007) (“[A]sylum is available to persons who have been persecuted based on imputed political opinion, including situations where a persecutor attributes the political opinion of one or more family members to the asylum applicant.” (emphasis removed)); Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir. 2005); Lwin v. INS, 144 F.3d 505, 509-10 (7th Cir. 1998). To prevail on this sort of claim, the alien must show that (1) his persecutors attributed the political opinion of another to him, and (2) the attributed opinion motivated or will motivate the persecution. Sankoh v. Mukasey, 539 F.3d 456, 471 (7th Cir. 2008).

Chen argues that population-control authorities have attributed or will attribute his parent’s flagrant violation of China’s population-control program to him and that he is therefore likely to be targeted for involuntary sterilization if returned to China. The Second and Ninth Circuits have recognized that an asylum claim alleging persecution for resistance to a coercive population-control program under § 1101(a)(42)(B) may be partially based on imputed political opinion–more specifically, such a claim may rely in part on a parent’s persecution for resisting a coercive population-control program. See Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007); Zhang, 408 F.3d at 1246-47; Jie Lin v. Ashcroft, 377 F.3d 1014, 1031 (9th Cir. 2004). This is a specific application of the more general imputed political-opinion theory–already established in this circuit–and we therefore follow the lead of these circuits in recognizing it here.

Our decision in Chen v. Gonzales, 457 F.3d 670, 674-75 (7th Cir. 2006), is not to the contrary. The alien in Chen had two children in the United States, intended to have more children in China, and feared she would be involuntarily sterilized. To support her claim, the alien submitted State Department reports and evidence that her parents had been involuntarily sterilized. We noted that this evidence did not compel the conclusion that the alien would be sterilized upon her return to China because the alien’s parents had been “sterilized many years ago under circumstances bearing no relation to her present circumstances.” Id. at 675.

Here, in contrast, Chen has submitted specific and detailed evidence tending to show that he and his family have been uniquely targeted by the population-control committee in their village based on their persistent resistance to China’s one-child policy. He submitted evidence that his family spent many years hiding from population-control authorities in their village; his mother lost a child in utero when she fell trying to escape population-control authorities; his mother was forcibly sterilized after his birth; his aunt suffered a forcible abortion and was thereafter involuntarily sterilized; his parents had to give away one of his sisters because they could not afford her; and his family was subjected to significant economic hardship as a result of their extreme resistance to China’s one-child policy.

As we have noted, the BIA summarily rejected the imputed political-opinion basis of Chen’s claim without analysis, having concluded that “current caselaw” in this circuit did not support it. But the concept of persecution based on imputed political opinion has long been recognized in this circuit, and Chen’s claim falls comfortably within this theory of relief. Accordingly, remand is in order to give the BIA “the first opportunity to pass judgment on . . . [a] claim it previously ignored.” Hamdan v. Mukasey, 528 F.3d 986, 992-93 (7th Cir. 2008). The agency should consider “the totality of the circumstances . . . to determine whether harm suffered by family members in combination with other factors may constitute past persecution of the applicant, even if government authorities neither directly harmed the applicant nor harmed the family member in order to target the applicant.” Jiang, 500 F.3d at 141.

There is another reason to return this case to the agency: Chen also presented evidence that as a member of the hei haizi–a child ineligible for registration on the hukou because he was born in violation of China’s population-control program–he has been and will continue to be deprived of many fundamental rights and governmental benefits. This evidence, he argued, both buttressed his claim of persecution based on political opinion and established a separate ground for relief based on persecution because of his membership in a particular social group. The BIA’s treatment of this claim, too, was incomplete. The agency did not evaluate the cumulative significance of these hardships when evaluating Chen’s claim of past persecution (on political-opinion grounds or based on his membership in a particular social group); nor did the agency properly account for this evidence in evaluating the reasonableness of his fear of future persecution.

Many of the hardships Chen suffered as a hei haizi and will continue to face if returned to China are economic in nature. Because of his unlawful birth, Chen and his family were subjected to severe financial deprivation; this took the form of enormous fines–at his birth and thereafter to allow him to attend school–as well as the denial of the land and food allotment permitted to lawfully born children. His father testified via affidavit that as a result of these fines, the family–already very poor–often went hungry. Chen submitted evidence that as an unregistered person, he is denied access to government-provided higher education, health care (except that which can obtained at high cost on the black market), and many forms of employment.

It is well established that persecution can take the form of economic deprivation as well as physical mistreatment, see, e.g., Yun Jian Zhang v. Gonzales, 495 F.3d 773, 777 (7th Cir. 2007); Tarraf v. Gonzales, 495 F.3d 525, 535 (7th Cir. 2007); a claim of persecution based on economic deprivation generally requires a showing of a ” ‘deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life,’ ” Xiu Ling Chen v. Gonzales, 489 F.3d 861, 863 (7th Cir. 2007) (quoting In re T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007) (emphasis removed in Xiu Ling Chen)). This does not mean, however, that the alien must establish a “total deprivation of livelihood on account of his protected status.” Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir. 2005) (internal quotation marks omitted).

Considered in the aggregate, the economic hardships imposed as a penalty for violation of China’s population-control policy may, in appropriate cases, constitute persecution. The Third Circuit has concluded as much in a case involving a Chinese father of four who sought asylum based on the economic deprivations his family suffered because of their violation of China’s one-child policy:

[W]hile Li’s family did not reach near-starvation levels, we can fairly say that the economic restrictions allegedly faced by the Li family were “severe.” In the aggregate, a fine of more than a year and a half’s salary; blacklisting from any government employment and from most other forms of legitimate employment; the loss of health benefits, school tuition, and food rations; and the confiscation of household furniture and appliances from a relatively poor family constitute deliberate imposition of severe economic disadvantage which could threaten his family’s freedom if not their lives. Moreover, the economic harm in Li’s case was deliberately imposed as a form of punishment because of his violation of China’s population control policy, rather than being the result of “natural” economic downturns or generally harsh conditions shared by others in China. We hold that, when viewed in the aggregate, Li’s allegations amount to economic persecution.

Li v. Attorney General, 400 F.3d 157, 169 (3d Cir. 2005).

Beyond economic deprivations, Chen has presented evidence that as a hei haizi he is deprived of other fundamental rights as well: He cannot acquire property or move freely about the country, and may be denied the right to marry and have children. We have often emphasized the importance of evaluating the “cumulative significance” of multiple claimed hardships in evaluating asylum claims. See Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th Cir. 2008). Here, however, the BIA dismissed Chen’s claim of persecution based on his status as a hei haizi by reference to a solitary piece of evidence–the fact that Chen was able to obtain a passport and therefore “was given the right to travel by the Chinese government.” This is woefully inadequate. The BIA ignored much of Chen’s evidence and never addressed his argument about the combined effect of the economic and noneconomic deprivations he and his family have suffered and that he contends he will continue to suffer if returned to China. See Joshi v. Ashcroft, 389 F.3d 732, 736-37 (7th Cir. 2004) (“A decision that resolves a critical factual question without mention of the principal evidence cannot be considered adequately reasoned.”).

We do not now conclude that the record compels a conclusion that Chen suffered past persecution or has an objectively reasonable fear of future persecution based on imputed political opinion or membership in his family or the hei haizi, or both. Because the BIA’s analysis flowed from a misapprehension of the state of this circuit’s caselaw and was otherwise incomplete, these are matters for the BIA to address on remand, in light of the principles we have explained here and based on the totality of the evidence.

Accordingly, we GRANT the petition for review, VACATE the decision of the BIA, and REMAND for further proceedings consistent with this opinion.

Chen v. Holder (Sykes)
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Adjustment of Status to LPR Constitutes Admission for Purposes of Continuous Residence Requirement of INA § 212(h) Matter of KOLJENOVIC

Posted on April 30, 2010 by Mike Baker

An alien who entered the U.S. without inspection and later obtained lawful permanent resident (LPR) status through adjustment of status has “previously been admitted to the U.S. as an alien lawfully admitted for permanent residence” and must therefore satisfy the seven-year continuous-residence requirement of INA § 212(h) [8 USCA § 1182(h)] (2006) to be eligible for a waiver of inadmissibility, the Board of Immigration Appeals (BIA or Board) has concluded.
Matter of Koljenovic, 25 I. & N. Dec. 219 (B.I.A. Apr. 21, 2010).

The respondent, a native and citizen of Montenegro, originally entered the U.S. without inspection. He subsequently adjusted his status to that of an LPR in September 2001. In December 2004, the respondent was convicted of second-degree organized fraud under Fla. Stat. Ann. § 817.034(4)(a)(2). He was placed in removal proceedings when, in August 2006, he sought admission to the U.S. as a returning LPR. During removal proceedings, the respondent admitted that he was removable as a result of his conviction but sought a waiver under INA § 212(h). The immigration judge (IJ) denied the request, finding that the respondent lacked the requisite seven years of lawful continuous residence since he acquired his LPR status. The respondent appealed the IJ’s decision, asserting that the seven-year requirement does not apply to him because he was not admitted as an LPR when he adjusted his status.

The Board, began by setting out the relevant statutory provision of INA § 212(h)(2) (2006), which states that no waiver may be granted: “in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

The Board noted that the term “admission” as defined in INA § 101(a)(13)(A) [8 USCA § 1101(a)(13)(A)] (2006)–“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”–does not have that same meaning in the context of INA § 212. For purposes of INA § 212, “admitted … as an alien lawfully admitted for permanent residence” could mean “either … inspection and authorization to enter at the border or … adjustment of status if the alien is already in the United States.”

The Board further opined that it has “consistently construed an adjustment of status as an ‘admission.”’ It argued that holding otherwise would in fact mean that “aliens who entered without inspection and later adjusted their status would never have been ‘admitted’ for permanent residence and would therefore be ineligible for relief from removal that includes an ‘admission’ requirement” and such a finding would be inconsistent with the INA.

As further evidence that adjustment to LPR status equates with an alien having been admitted to the U.S., the Board noted that INA § 245(b) [8 USCA § 1255(b)] requires the Attorney General to “‘record the alien’s lawful admission for permanent residence as of the date’ that adjustment of status was granted.”

Applying these prior holdings to the present case, the Board stated that the respondent’s only admission to the U.S. occurred in 2001 when he was granted his LPR status. Finding that being granted LPR status was not an admission would in fact lead to absurd results under the legislative scheme, the Board stated.

The Board cited to legislative history in support of its conclusion. The Board noted that the language at issue in this case was added to INA § 212(h) by § 348 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The Conference Report accompanying the IIRIRA states, “The managers intend that the provisions governing continuous residence set forth in INA section 240A as enacted by this legislation shall be applied as well for purposes of waivers under INA section 212(h).” The Board asserted that INA § 240A(a)(2) [8 USCA § 1229b(a)(2)] (2006) establishes a continuous residence requirement of seven years for cancellation of removal for LPRs and concluded that the Conference Report’s reference to INA § 240A reflects “Congress’ intent to create congruity in the residence requirements for these two forms of relief, both of which are available to lawful permanent residents.” Further, the Board held that not treating an alien’s adjustment of status as an admission that invokes the seven-year residence requirement would frustrate the legislative purpose because an alien who obtained lawful permanent residence through adjustment of status but who has not resided continuously in the U.S. for seven years and who is removable for a criminal conviction would be ineligible for cancellation of removal under INA § 240A but would be eligible for a waiver under § 212(h).

The Board concluded the opinion by focusing on the fact that time in status has historically been a factor in determining eligibility for various forms of relief. It noted that the important factor in this case is not so much how the respondent achieved admission to the U.S. but, rather, how much time has elapsed since he was admitted. The Board suggested that holding that the seven-year continuous-residence requirement did not apply to individuals like the respondent who obtained LPR status while in the U.S. would in fact allow most LPRs to “forever avoid the effect of the aggravated felony bar” in INA § 212(h), a result that would most likely be contrary to congressional intent.

The Board found that the seven-year continuous-residence requirement of INA § 212(h) applies to the respondent because his adjustment of status constitutes an admission and is the only possible date of admission given that he entered without inspection. Because the respondent does not have the requisite seven years of continuous residence, the Board found that he was ineligible for a § 212(h) waiver and dismissed the appeal.

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ACLU of Arizona Section By Section Analysis of SB 1070 “Immigration; Law Enforcement; Safe Neighborhoods

Posted on April 25, 2010 by Mike Baker

Summary of major provisions: This bill unconstitutionally allows the state of Arizona to regulate immigration by establishing a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents. It gives local police officers authority to investigate, detain and arrest people for perceived immigration violations without the benefit of proper training, exacerbating the problem of racial profiling and raising concerns about the prolonged detention of citizens and legal residents.

Section 2 Would create a new section A.R.S. § 11-1051 that:
 
(A)    Prohibits cities, towns, and counties from having any policy in place limiting the investigation of violations of federal enforcement laws to less than the full extent permitted by federal law.
 
This appears to prohibit localities from having policies aimed at increasing trust within immigrant communities, such as not questioning victims and witnesses of crime about their immigration status. It also severely ties the hands of local governments by not permitting them to exercise their own judgment about the allocation of law enforcement resources because it requires police agencies to treat administrative violations of the immigration law on the same level as serious felonies. We are aware of no other law—except funding incentives—that attempt to dictate law enforcement priorities in this way.
 
(B)    Requires police officers to make a reasonable attempt to determine the immigration status of a person whenever there is reasonable suspicion that the person is person is unlawfully present and verify that status with the federal government, except to the extent that it would hinder an ongoing investigation.
 
(C)    Provides for the transfer of any noncitizen who is unlawfully present to federal custody upon discharge from prison or assessment of a fine after conviction of a state offense.
 
This law is unnecessary as to any person who is booked into a jail or serves time in prison because federal law already provides for a process by which individuals are checked against law enforcement databases and immigration “holds” or detainers can be placed on persons who are identified as non- U.S. citizens. A detainer ensures that the person will be transferred to federal custody instead of being released.
 
(D)    Provides authority for state and local law enforcement to transport noncitizens in their custody suspected of being unlawfully present to federal authorities, even outside the jurisdiction of the local agency.
 
This law is unnecessary as to any person who the federal government has reason to believe is in the country illegally because federal law already provides for a process by which those persons can be transported to federal custody. Local agencies can also contract with federal authorities to be reimbursed the cost of detaining and transporting such persons. The only reason why this provision seems to have been included is to permit local law enforcement to transport undocumented immigrants to some point of transfer other than the local Immigration and Customs Enforcement (ICE) office— i.e., ICE is, for whatever reason, not interested in taking custody of the person.
 
(E)    Gives police officers authority to conduct warrantless arrests of persons for whom the officer has probable cause to believe have committed any public offense that makes those persons deportable.
To the extent that provision attempts to create state arrest authority for administrative violations of federal immigration law, it is likely to be deemed invalid by the courts because states cannot create such arrest authority where it does not exist under federal law. As the Ninth Circuit held in a case from Arizona called Gonzales v. City of Peoria, while Arizona could authorize Peoria to enforce the criminal provisions of the immigration law, “we firmly emphasized that this authorization is limited to criminal violations.” The court took issue with the Peoria Police Department policy because it obscured the difference between civil administrative violations and criminal violations of the immigration law, and, as the court stressed, the lack of documentation or an admission of illegal presence “does not, without more, provide probable cause of [any] criminal violation” of the immigration law. Officers not trained in federal immigration law who attempt to exercise this arrest authority would be subject to legal liability for violations of the Fourth Amendment. In addition, an immigration judge could invalidate the arrest of immigrants by Arizona police officers pursuant to this provision because even federal immigration agents do not have the power to conduct warrantless arrests away from the border unless the agent can articulate specific reasons to believe the person was likely to escape before a warrant could be obtained. 8 U.S.C. § 1357(a)(2).
 
(F)    Establishes that, except as provided in federal law, state and local government officials cannot be prohibited from maintaining information about the immigration status of individuals or communicating that information to any other governmental entity, including the federal government, in the course of 1) verifying eligibility for public benefits, 2) verifying claims of residence or domicile, 3) verifying the identity of any person detained, or 4) determining if the person is compliance with federal alien registration laws.
 
This provision is unnecessary with respect to any legitimate attempt to communicate with federal authorities for the purpose of enforcing the federal immigration laws. 8 U.S.C. § 1373(a) and (b) already provide that such communications and the maintenance of information about immigration status cannot be restricted. However, the bill seems to direct government officials to communicate and maintain such information even in contexts where doing so might constitute an unwarranted invasion of privacy and discourage lawful participation in public benefits programs and services intended for an entire community. In this respect, the provision is likely a nullity, as it would be in conflict with federal law.
 
(G)    Creates a private right of action for any person to sue a city, town, or county for any violation of subsection (A) and establishes civil penalties for the city, town, or county.
 
This subjects local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is vindicated in court, it will still have to incur the costs of defense.
 
(H)    Directs that civil penalties assessed against cities, towns, or counties shall be applied towards a DPS Gang and Immigration Intelligence Team Enforcement Mission (GIITEM) Fund.
 
(I)    Indemnifies police officers against costs and attorneys’ fees incurred in connection with any litigation brought by citizens and residents who were wrongfully detained, questioned, arrested, or transported, unless the officer was acting in bad faith.
 
(J)    Declares that the above provisions shall be implemented in a manner consistent with federal immigration laws and civil rights protections.
 
It is unclear what this provision could mean in practice, since several of the provisions of the bill are facially inconsistent with federal statutes, regulations, and the constitutions of the United States and Arizona.
 
Section 3
 
Would create a new section A.R.S. § 13-1509 that establishes a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents (8 U.S.C. §§ 1304(e), 1306(a)). The first offense would be a class 1 misdemeanor, punishable by up to six months of jail time and an additional $500 fine, as well as jail costs, with the assessments to be applied towards the GIITEM Fund. The second offense would be a class 4 felony and an additional $1,000 fine and jail costs. Persons who have accepted voluntary removal or who had been deported in the past 5 years would be subject to a class 4 felony charge upon their first arrest under this Section. A person found in possession of drugs or weapons would face a class 3 felony charge upon their first arrest.
 
This provision is a back door attempt to create the state arrest authority for immigration violations described above, without any training or supervision by federal authorities. This attempt will likely be invalidated by the courts because it violates the Supremacy Clause of the U.S. Constitution. The Constitution grants the federal government exclusive power to regulate our borders and, with very few exceptions, states are not free to create their own laws regulating immigration.
 
Section 4
 
Adds a provision to the state human smuggling statute at A.R.S. § 13-2319 clarifying that a police officer may stop any car if there is reasonable suspicion to believe the driver is committing a civil traffic violation and the human smuggling law.
This law is unnecessary to the extent that police officers already have the authority to briefly detain the occupants of a car in order to investigate a traffic violation or possible criminal activity. Officers may not detain anyone for longer than it takes to issue a traffic citation or dispel their suspicions of criminal activity.
 
Section 5
 
Would add a new section, A.R.S. § 13-2928, that makes it a class 1 misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver is impeding the normal flow of traffic. It also makes it a misdemeanor for a worker to get into a car if it is impeding traffic. Finally, this Section would criminalize the solicitation of work (by a gesture or nod) by undocumented immigrants in any public place.
 
In order to be subject to the first or second parts of this Section, the vehicle in question has to be obstructing traffic. This provision is adds no value insofar as there are already laws on the books that address traffic hazards. It is also likely to be found unconstitutional by the courts because the third part singles out the speech of immigrant day laborers for criminalization. The solicitation of work has been found by courts across the county to be protected speech under the First Amendment.
 
Would add a new section, A.R.S. § 13-2929, that makes unlawful for any person who is “in violation of a criminal offense” to transport, move, conceal, harbor, shield from detection, or attempt to do any of the above, any undocumented immigrant if the person knows or recklessly disregards the fact that the immigrant has entered or remained in the United States illegally. It also makes it a state crime to encourage or induce any immigrant to come, enter, or reside in the country illegally. A person who violates this law would be subject to a class 1 misdemeanor and a fine of at least $1,000, with additional penalties where the offense involves ten or more immigrants. Any means of transportation used in connection with the crime will be impounded.
 
This provision is unnecessary because the exact same actions (transporting, moving, concealing, harboring, and shielding undocumented immigrants) are already prohibited under federal law where the person commits those acts with the intent to further the immigrant’s violation of the law. 8 U.S.C. § 1324(a)(1)(a). Furthermore, Arizona peace officers have explicit authority to arrest anyone who violates the federal harboring law, 8 U.S.C. § 1324(c), and vehicles used to commit the offense may be seized. 8 U.S.C. § 1324(b). Courts have not permitted prosecutions under the federal statute where a person offers a ride or shelter to another person out of humanitarian concern rather than with the intent to further the violation, such as for a profit motive.    There is also a specific provision in the federal statute exempting churches who provide room and board to members of their congregation serving as ministers or missionaries. To the extent that the state law is applied differently than the federal law, it could be invalidated as violating the Supremacy Clause of the U.S. Constitution. The state offense also adds a requirement that the person already be violating some other criminal law in order to be found guilty.
 
Section 6
 
Amends Arizona’s state law on warrantless arrests, A.R.S. § 13-3883 to include the arrest of persons who have committed any public offense that makes them deportable.
 
Sections 7 and 8
 
Adds a new section to the state employer sanctions law, A.R.S. § 23-212, that establishes an affirmative defense to a violation of the law if they were entrapped by law enforcement. To assert the defense, an employer must prove—by a preponderance of the evidence—that the idea of committing the violation started with the undercover officer, the officer urged or induced the employer to commit the violation, and the employer was not predisposed to commit the violation.

Section 9
 
Adds a new section to the state law on verification of employment eligibility, A.R.S. § 23-214, that requires employers to keep records of their verification of eligibility for the duration of the worker’s employment with the company or at least three years, whichever is longer.
 
Section 10
 
Adds a new section to the state law governing impoundment of vehicles, A.R.S. § 28-3511, mandating the impoundment of any vehicle used to transport, move, conceal, harbor, or shield an undocumented immigrant.
 
Section 11
 
Establishes the purposes and process for GIITEM Fund appropriations.
 
Section 12
 
States that the remaining provisions of the bill are severable and will remain in effect even if certain portions are held to be invalid.

ACLU of Arizona 
P.O. Box 17148
Posted in Law Enforcement | Leave a comment

Cancellation of Removal/Battered-Spouse Provision-7th Cir. 2010

Posted on April 21, 2010 by Mike Baker

Benaouicha v. Holder (Hamilton)
Oral Argument | Full Text

Bd. did not err in affirming IJ’s order denying alien’s request for cancellation of removal based on alien’s allegation that he was battered spouse as contemplated under 8 USC section 1229b(b)(2)(A). Ct. rejected alien’s contention that IJ failed to give him opportunity to establish that he was person of good moral character so as to potentially qualify for said cancellation since alien conceded that he was deportable under section 1227(a)(2)(A)(i) for having been convicted of crime of moral turpitude.

In Benaouicha v. Holder, 2010 WL 1292718 (7th Cir. 2010), the U.S. Court of Appeals for the Seventh Circuit denied a petition for review filed by a citizen of Algeria who sought to defend his removal proceeding by advancing a claim that he qualified for cancellation of removal as a “battered spouse” pursuant to INA § 240A(b)(2) [8 USCA § 1229b(b)(2)]. The court agreed with the determination by the BIA, which upheld the IJ’s order of removal, that the petitioner was statutorily ineligible for cancellation because he had been convicted of a crime involving moral turpitude (CIMT) so that it was not necessary to consider the other requirement, to wit: good moral character.

In September 2000, the petitioner was admitted to the U.S. to attend an airline training academy, but he never enrolled in the school. In 2003, he was convicted of a federal offense under 18 USCA § 1001(a)(2) for falsely applying for a social security card and served a six-month sentence. Upon release from federal custody, DHS commenced removal proceedings against him, alleging removability under INA § 237(a)(1)(C) [8 USCA § 1227(a)(1)(C)] for failing to comply with the conditions of his nonimmigrant status and under INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] for being inadmissible at the time of entry. DHS subsequently added an additional charge under INA § 237(a)(2)(A)(i) [8 USCA § 1227(a)(2)(A)(i)] for having a conviction for a CIMT committed within five years of admission and for which a sentence of one year or longer may be imposed. Before the IJ, the petitioner conceded that he was removable on all three charges; however, as relief from removal, he sought adjustment of status to lawful permanent resident based on his marriage to a U.S. citizen. In January 2005, while the removal proceedings were pending, he pled guilty to a battery offense under Ind. Code § 35-42-2-1, and received a one-year suspended sentence and one year of probation. The court noted that the victim of the battery was the petitioner’s wife. In February 2006, the petitioner requested a continuance of his immigration court hearing because his marriage had dissolved and he had filed an I-360 petition for classification as a battered or abused spouse of a U.S. citizen. The IJ allowed for several continuances while the I-360 petition was under review, but the petition was ultimately denied by USCIS’ Vermont Service Center. Despite a pending appeal to the BIA respecting the I-360, the IJ denied a further continuance, ruled that the petitioner was ineligible for cancellation of removal, and ordered him removed. After the BIA upheld this result, the petitioner appealed to the Circuit Court, arguing, inter alia, that the BIA erred by ordering his removal without allowing him to demonstrate that he was a person of good moral character, which is one of the requirements for the cancellation application that he had endeavored to pursue before the IJ.

The court indicated that it had jurisdiction over the legal claims presented by the petitioner pursuant to INA § 242(a)(2)(D) [8 USCA § 1252(a)(2)(D)], notwithstanding the jurisdictional bar pertaining to the granting of cancellation relief set forth at INA § 242(a)(2)(B)(i) [8 USCA § 1252(a)(2)(B)(i)]. It proceeded to paraphrase the five elements necessary for an applicant to qualify for a grant of cancellation relief under the “battered spouse” provision: (1) he or she has been subject to battery or extreme cruelty by a U.S. citizen spouse, (2) he or she has been physically present in the U.S. for not less than three years, (3) he or she has been a person of good moral character, (4) he or she is not deportable under §§ 237(a)(1)(G), (a)(2) or (a)(4) and has not been convicted of an aggravated felony, and (5) his removal would result in extreme hardship to him or her or his or her child or parent. The court emphasized that the petitioner conceded that he was deportable under INA § 237(a)(2)(A) for having been convicted of a CIMT, thus rendering him ineligible under the fourth prong, as outlined above. The court thus concluded that, even if he could have convinced the government that he satisfied the good-moral-character requirement, as was argued in his brief before the court, the petitioner still remained ineligible for cancellation.

The court also clarified that, to the extent that the petitioner was attempting to appeal USCIS’ denial of his I-360 visa petition or was asking the court to remedy the apparent failure of the Vermont Service Center to tender his appeal to the BIA, the court could not address those matters for which it lacked jurisdiction. It pointed out that there was no final administrative decision regarding this “visa application” and that it had no effect on the separate removal order, which was reviewed under INA § 242.

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